TWU & Cement Australia Pty Ltd re increased engagement of outside hire [2015] NSWIRComm 1008

TWU & Cement Australia Pty Ltd re increased engagement of outside hire [2015] NSWIRComm 1008

Clause 9.2 was clear and unambiguous. Its use of "may" was permissive and did not support inserting "only" or treating "casual carriers" as third party outside hire. In the context of clauses 7.2, 9.1 and 23.2, and the statutory declaration attached to the Agreement, contract carriers had no guaranteed route, run, customer, volume or remuneration and the Company retained discretion to allocate work. The term "casual carrier" referred to a carrier within the meaning of s 309 of the Industrial Relations Act 1996 and to casual contract carriers not engaged on a regular basis, not to third party outside hire transport providers. Because there was no ambiguity, the Union's extrinsic materials...

Jurisdiction
Australia
Judgment Date
12 May 2015
Procedural Posture
Industrial Dispute Notification and Application for Interpretation of an Industrial Instrument Under S 175 of the Industrial Relations Act 1996 / Principal Judgment After Hearing
Outcome
Application dismissed
Legal Topics
['preference of Engagement' 'outside Hire Carriers' 'contract Carriers' 'extrinsic Materials' 'ambiguity' 'contra Proferentem' 'powers of the Commission Under S 175 of the Industrial Relations Act 1996']
['industrial Relations' 'contract Determination' 'interpretation of Industrial Instruments'] ['preference of Engagement' 'outside Hire Carriers' 'contract Carriers' 'extrinsic Materials' 'ambiguity' 'contra Proferentem' 'powers of the Commission Under S 175 of the Industrial Relations Act 1996']

Case Brief

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Procedural Posture

Industrial Dispute Notification and Application for Interpretation of an Industrial Instrument Under S 175 of the Industrial Relations Act 1996 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether clause 9.2 of the Cement Australia – TWU Contract Agreement (CA 05/1) conferred a preference of engagement on contract carriers over casual carriers or third party outside hire transport providers.' 'Whether clause 9.2 was ambiguous so as to permit reliance on extrinsic materials concerning negotiations, historical records and meeting minutes.' 'Whether the term "casual carriers" in clause 9.2 included third party outside hire transport providers.' 'Whether the contra proferentem rule applied to the interpretation of clause 9.2.' "Whether the Agreement, without the Union's construction of clause 9.2, could be treated as unfair or the Company's allocation of work as unconscionable."]

Ratio Decidendi

Clause 9.2 was clear and unambiguous. Its use of "may" was permissive and did not support inserting "only" or treating "casual carriers" as third party outside hire. In the context of clauses 7.2, 9.1 and 23.2, and the statutory declaration attached to the Agreement, contract carriers had no guaranteed route, run, customer, volume or remuneration and the Company retained discretion to allocate work. The term "casual carrier" referred to a carrier within the meaning of s 309 of the Industrial Relations Act 1996 and to casual contract carriers not engaged on a regular basis, not to third party outside hire transport providers. Because there was no ambiguity, the Union's extrinsic materials...

Court Disposition

Application dismissed

Orders

  • ["The Union's application for interpretation pursuant to s 175 of the Industrial Relations Act 1996 is dismissed." 'The matter is concluded.']