Part 3322 Agreements concerning contract conditions
(1) An association of contract drivers may enter into an agreement with a bailor of a public vehicle, or with an association of employing contractors representing bailors of public vehicles, with respect to the conditions of contracts of bailment made with that bailor or with bailors represented by the association.(2) An association of contract carriers may enter into an agreement with a principal contractor, or with an association of employing contractors, with respect to the conditions of contracts of a specified class made with carriers by that principal contractor or with principal contractors represented by the association.(3) A group of carriers may enter into an agreement with a principal contractor, or with an association of employing contractors, with respect to the conditions of contracts of a specified class made with those carriers by that principal contractor or with principal contractors represented by that association. Those carriers are taken to be one of the parties to the agreement for the purposes of this Part.(4) An agreement under this section is required to be in writing and signed by or on behalf of the parties to it.(4A) An agreement under this section must identify the parties to the agreement and describe the class of contracts to which it relates. In particular, an agreement under subsection (3) must identify each member of the group of carriers that enters into the agreement.(5) An agreement under this section is called a contract agreement.
323 Contract agreement required to be approved
(1) A contract agreement does not have effect unless it is approved by the Commission under this Part.(2) This section extends to a contract agreement that varies an earlier agreement.
324 Application for approval of contract agreement
(1) Application for approval of a contract agreement may be made by lodging the agreement with the Industrial Registrar in accordance with this Part and the rules of the Commission.(2) At proceedings of the Commission relating to any such application for approval, the following may appear or be represented:(a) any party to the agreement,(b) any association registered under this Chapter if its members or persons eligible to become members are affected by the agreement (but only with leave of the Commission),(c) a State peak council (but only with leave of the Commission),(d) the President of the Anti-Discrimination Board (but only with leave of the Commission).
325 Approval of contract agreement by Commission
(1) The Commission is to approve each contract agreement lodged for approval, but only if the Commission is satisfied that:(a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and(b) the agreement does not, on balance, provide a net detriment to the drivers or carriers who are to be covered by the agreement when compared with the aggregate package of conditions of engagement under relevant contract determinations that would otherwise apply to the drivers or carriers, and(c) the parties understand the effect of the agreement, and(d) the parties did not enter the agreement under duress.(2) This subsection applies to a contract agreement that applies to contracts of carriage entered into by some but not all of the carriers engaged by the principal contractor or contractors bound by the agreement, unless those carriers comprise a distinct geographical, operational or organisational unit. The Commission is not to approve such a contract agreement if it is satisfied that:(a) the contract agreement fails to cover other carriers engaged by the principal contractor or contractors who would reasonably be expected to be covered, given the nature of the work performed under the contracts to which the agreement applies and the organisational and operational relationships between the carriers bound by the agreement and those other carriers, and(b) it is unfair not to cover the carriers excluded from the contract agreement.(3) The Commission is to follow the principles for approval set under section 33 (Principles for approval of enterprise agreements), with any necessary modifications, when deciding whether to approve a contract agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement.
325A Special requirements relating to contract agreements to which groups of carriers are parties
(1) A contract agreement to which a group of carriers is a party is not to be approved unless the requirements of this section have been complied with.(2) Before or at the time the principal contractor, or association of principal contractors, first undertakes formal negotiations with a group of carriers for the purposes of a contract agreement, the principal contractor or association is to advise the Industrial Registrar in writing of the following:(a) that a contract agreement is proposed or under negotiation,(b) the contract determinations or contract agreements that then apply to the carriers.(3) The Industrial Registrar is to advise such persons or bodies as are prescribed by the regulations of the proposed contract agreement.(4) The contract agreement must be approved in a secret ballot by not less than 65% of the carriers who enter into the agreement.(5) The Industrial Registrar must, after the contract agreement is lodged for approval, prepare a report for the Commission comparing the conditions of engagement under the agreement and the conditions of engagement that would otherwise apply to the carriers under relevant contract determinations.(6) Section 37 applies to secret ballots under this Part in the same way as it applies to secret ballots under Part 2 of Chapter 2. Section 344 extends to that application of section 37.
326 Persons bound by contract agreement
(1) A contract agreement is binding on:(a) the parties to the agreement, and(b) in the case of a party that is an association of employing contractors—all members of the association or a specified member or class of members, as provided by the agreement, and(c) in the case of a party that is an association of contract drivers or contract carriers—all bailees or carriers who are members of the association, or who are eligible to be members of the association and who enter into contracts of the class to which the contract agreement relates.(2) A contract agreement that, by the operation of this Part, is binding on a corporation as a member of an association of contract carriers is, except to the extent that the agreement otherwise provides, also binding on:(a) any director of the corporation, or any member of the family of any such director, who personally does work under a contract to which the agreement relates and to which the corporation is a party, and(b) any holder of shares in the corporation who personally does work under any such contract if that holder, together with the members of his or her family, has a controlling interest in the corporation, and(c) any member of the family of the holder of shares in the corporation who personally does work under any such contract if that holder, together with the members of his or her family, has a controlling interest in the corporation.
327 Contract agreements prevail over contract determinations
The provisions of a contract agreement prevail over the provisions of any contract determination of the Commission that deal with the same matters in so far as the provisions of the determination apply to a person bound by the agreement.
328 Term of contract agreement
(1) A contract agreement applies for the period specified in it as its nominal term and, after that period, until terminated in accordance with this Part.(2) The nominal term of a contract agreement must not be less than 12 months nor more than 3 years.(3) However, a contract agreement made for a project may have a specified nominal term not exceeding the expected duration of the project.(4) A contract agreement varying an earlier agreement applies for the residue of the term of the agreement it varies.
329 Variation of a contract agreement
(1) A contract agreement may be varied at any time by a further contract agreement made and approved in accordance with this Part.(2) It does not matter that the parties to the further agreement are not the same as the parties to the earlier agreement.
330 Termination of contract agreement
(1) A contract agreement can be terminated only in accordance with this section.(2) A contract agreement can be terminated at any time with the approval of all the parties to it, whether during or after its nominal term.(3) A contract agreement can also be terminated at or after the end of its nominal term by any one of the parties giving at least 3 months’ notice of intention to terminate to each other party. The notice may be served before the end of the nominal term.(3A) In the case of a contract agreement to which a group of carriers is a party, the proposed termination of the agreement by the carriers must be approved in a secret ballot by not less than 65% of the carriers covered by the agreement at the time the ballot is conducted.(4) Termination of the contract agreement is not effective until the Industrial Registrar has been given written notice of the approval to terminate or of service of the notice of intention to terminate.
331 Register and publication of contract agreements
(1) The Industrial Registrar is to keep a register of all contract agreements that have been approved by the Commission, approvals or notices to terminate contract agreements and such other particulars as the Industrial Registrar considers appropriate.(2) The Industrial Registrar is to publish the following details on the NSW industrial relations website of each contract agreement as soon as practicable after the agreement is approved:(a) the identity of the parties to the agreement and the description of the drivers or carriers for whom it is made,(b) the commencement and the nominal term of the agreement,(c) a statement of whether the agreement is a new agreement or the variation of an earlier agreement.(3) The register of contract agreements is to be open for public inspection during ordinary office hours.(4) A person may make copies of any document kept in the register of contract agreements on payment of such fee, if any, as is prescribed by the regulations.