[2013] RSRTFB 7

 

ROAD SAFETY REMUNERATION TRIBUNAL

DECISION


Road Safety Remuneration Act 2012

s.27 - Making road safety remuneration order

Annual Work Program
(RTP2012/1)
Transport Workers’ Union of Australia

(RTO2013/1)
Australian Road Transport Industrial Organization
(RTO2013/2)
National Union of Workers
(RTO2013/3)
Intercapital Trucking Pty Ltd
(RTO2013/4)

PRESIDENT ACTON
COMMISSIONER HAMPTON
PROFESSOR WILLIAMSON



MELBOURNE, 17 DECEMBER 2013

Road safety remuneration order (RSRO).

Road Transport and Distribution and Long Distance Operations
Road Safety Remuneration Order 2014

CONTENTS

Paragraph

Introduction

[1]

Processes and Proceedings

[11]

    (a) First annual work program and applications

[12]

    (b) Research

[20]

    (c) Transport and logistics sites’ visits

[22]

    (d) Facilitated discussions conducted by the Tribunal

[23]

    (e) Publication of the draft RSRO

[26]

    (f) Written submissions, comments and hearings on the draft RSRO

[30]

General material presented to the Tribunal

[61]

Material and submissions on the clauses in the draft RSRO and other claims

[96]

1. Title

[96]

2. Commencement and expiry

[97]

3. Definitions and interpretation

[101]

4. Coverage

[108]

5. Dispute resolution

[137]

6. Whistleblower protection

[140]

7. Contracts

[148]

8. Work payments

[192]

9. Clothing provision or reimbursement

[218]

10. Payment time

[228]

11. Safe driving plans

[248]

12. Training

[299]

13. Drug and alcohol policy

[336]

14. Other claims

[365]

Jurisdiction

[370]

Matters the Tribunal must have regard to in deciding whether to make a RSRO

[406]

Conclusion

[425]

Attachment A - Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014

Attachment B - Facilitated Discussions Report

Attachment C - Written submissions, written comments and appearances at the hearings on the draft road safety remuneration order

Attachment D - Exhibits tendered at the hearings on the draft road safety remuneration order

Abbreviations

ABI

Australian Business Industrial

ACCI

Australian Chamber of Commerce and Industry

AFEI

Australian Federation of Employers and Industries

AIG

The Australian Industry Group

ALC

Australian Logistics Council

ALC RLSC Code

Australian Logistics Council Retail Logistics Supply Chain Code of Practice Responsibility Matrix

ALRTA

Australian Livestock and Rural Transporters Association Inc

ANRA

Australian National Retailers Association Ltd

ARTIO

Australian Road Transport Industrial Organization

ATA

Australian Trucking Association

Business SA

South Australian Employers' Chamber of Commerce and Industry Incorporated t/as Business SA

Coles

Coles Supermarkets Australia Pty Ltd

FW Act

Fair Work Act 2009 (Cth)

FWC

Fair Work Commission

LHDA

Longhaul Drivers Association Incorporated

Linfox

Linfox Australia Pty Ltd

LRTA of WA

Livestock and Rural Transport Association of Western Australia (Inc)

MBA

Master Builders Australia Limited

NATA

National Association of Testing Authorities Australia

NatRoad

NatRoad Limited

NGINA

Nursery & Garden Industry NSW & ACT Limited

NSW Business Chamber

NSW Business Chamber Limited

NSW contract determination

Transport Industry - Mutual Responsibility for Road Safety (State) Contract Determination

NSW Mutual Responsibility case

Transport Industry-Mutual Responsibility for Road Safety (State) Award and Contract Determination (No. 2)

NSW state award

Transport Industry - Mutual Responsibility for Road Safety (State) Award

NTC

National Transport Commission

NUW

National Union of Workers

ODFC Code

Owner Drivers and Forestry Contractors Code of Practice

Quinlan Report

Report of Inquiry into Safety in the Long Haul Trucking Industry

RSR Act

Road Safety Remuneration Act 2012 (Cth)

RSRO

road safety remuneration order

RSR Regulation

Road Safety Remuneration Regulation 2012

RSRT

Road Safety Remuneration Tribunal

SARTA

The South Australian Road Transport Association Incorporated

TCF

textile, clothing and footwear

Toll

Toll Holdings Limited

TWU

Transport Workers’ Union of Australia

VAFI

Victorian Association of Forest Industries

Victorian ODFC Act

Owner Drivers and Forestry Contractors Act 2005 (Vic)

Western Australian ODCD Act

Owner-Driver (Contracts and Disputes) Act 2007 (WA)

Woolworths

Woolworths Limited

2001 Inquiry

Report of Inquiry into Safety in the Long Haul Trucking Industry

2004 Inquiry

Report of Inquiry: Owner Drivers and Forestry Contractors

2008 NTC Inquiry

Safe Payments: Addressing the Underlying Causes of Unsafe Practices in the Road Transport Industry

2008 Report

Remuneration and Safety in the Australian Heavy Vehicle Industry: A Review undertaken for the National Transport Commission

2014 RSRO

Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014

Introduction

[1] The Road Safety Remuneration Tribunal (the Tribunal) has decided to make a road safety remuneration order (RSRO) entitled the Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014 1 (2014 RSRO), as set out in Attachment A to this decision.

[2] The 2014 RSRO has the following application clause:

[3] Supermarket chain” is defined in the 2014 RSRO to mean “a business which operates five or more supermarkets.”

[4] The 2014 RSRO sets out requirements regarding:

[5] The 2014 RSRO commences on 1 May 2014 and expires on 30 April 2018.

[6] In accordance with the Tribunal’s statement of 12 July 2013, 2 the issue of rates of payment for road transport drivers is to be the subject of future proceedings of the Tribunal and so is not dealt with in this decision. Those future proceedings will also consider associated issues, such as methods for dealing with the issue, the different forms of payment and what constitutes work.

[7] The making of a RSRO in at least some form was widely supported, including by the Australian Chamber of Commerce and Industry (ACCI), Australian Business Industrial (ABI), NSW Business Chamber Limited (NSW Business Chamber), Master Builders Australia Limited (MBA), Australian Road Transport Industrial Organization (ARTIO), Coles Supermarkets Australia Pty Ltd (Coles), Australian National Retailers Association Ltd (ANRA), Linfox Australia Pty Ltd (Linfox), Toll Holdings Limited (Toll), Transport Workers’ Union of Australia (TWU), National Union of Workers (NUW), Intercapital Trucking Pty Ltd and Australian Fast Freight Pty Ltd.

[8] The Tribunal has been very much assisted in deciding to make the 2014 RSRO by contributions from a broad spectrum of the road transport industry.

[9] In this decision we initially set out the processes and proceedings leading to it. Subsequently, we detail the general material presented to the Tribunal relevant to a RSRO and consider the material and submissions presented to the Tribunal on the clauses in the draft RSRO that we published previously, as well as other claims. We then turn to consider the Tribunal’s jurisdiction and deal with the matters the Tribunal must have regard to in deciding whether to make a RSRO, before concluding.

[10] Accordingly, we now set out the processes and proceedings leading to this decision.

Processes and proceedings

[11] This decision follows the publication of the Tribunal’s first annual work program and its receipt of applications for RSROs, research, visits to various transport and logistics’ sites, facilitated discussions, publication of a draft RSRO, written submissions and comments to the Tribunal and hearings. We detail these processes and proceedings below.

(a) First annual work program and applications

[12] The Road Safety Remuneration Act 2012 (Cth) (RSR Act) provides that the Tribunal may make a RSRO 3 on its own initiative if the RSRO is in relation to a matter identified in its annual work program4 or on application by certain persons.5

[13] The Tribunal was established under the RSR Act on 1 July 2012. After extensive consultation with interested persons, including a public hearing, the Tribunal published its first annual work program on 10 December 2012. 6 The first annual work program was published on the Tribunal’s website and widely reported in road transport industry publications. The website invites interested persons to subscribe to it so as to receive email updates about the work of the Tribunal.

[14] The first annual work program identified the retail, livestock, bulk grain, interstate long distance and intrastate long distance sectors of the road transport industry as those the Tribunal proposed to inquire into with a view to making a RSRO. The first annual work program also set out a timetable and processes for the conduct of the inquiry.

[15] The timetable invited any person wanting the Tribunal to make a RSRO in relation to one or more of the sectors identified in the first annual work program to forward to the Tribunal by 4 March 2013:

[16] Proposed RSROs, including in some instances applications for RSROs, and/or written submissions were received from nine persons. The details of the applications received are as follows:

Application number

Applicant

Nature of application

RTO2013/1

Transport Workers’ Union of Australia

A RSRO for the retail sector covering various topics.

A RSRO for the interstate and intrastate long distance sectors covering various topics.

RTO2013/2

Australian Road Transport Industrial Organization

A RSRO for the interstate and intrastate long distance sectors covering various topics.

RTO2013/3

National Union of Workers

A RSRO for the retail sector covering various topics.

RTO2013/4

Intercapital Trucking Pty Ltd

A RSRO for the long distance sectors covering various topics.

[17] The topics covered by the applications included:

[18] The proposed RSROs, applications and submissions received were published on the Tribunal’s website and persons wanting to comment on that material were invited to do so in writing by 22 April 2013. 7 That date was later extended to 13 May 2013.8 Information about the Tribunal, opportunities to comment, its industry consultation sessions and research conducted for it was also widely disseminated through a Tribunal newsletter.

[19] The written comments received by the Tribunal on the proposed RSROs, applications and submissions were also published on the Tribunal’s website. Written comments were received from:

(b) Research

[20] In December 2012 and March 2013, comparative schedules of the provisions in modern awards, state awards, contract determinations, enterprise agreements, state guideline rates and cost schedules across the road transport industry in Australia, prepared by Fair Work Commission (FWC) staff who provide the administrative support for the Tribunal, were published on the Tribunal’s website.

[21] On 3 July 2013, comparative schedules of the costs, assumptions and sources relating to guideline rates for contractor drivers produced by the Transport Industry Council in Victoria and published in Western Australia and contractor driver rates contained in a contract determination applying to some contractor drivers in New South Wales, prepared by FWC staff, were published on the Tribunal’s website.

(c) Transport and logistics sites’ visits

[22] From 11 April 2013 to 3 July 2013 members of the Tribunal visited 24 transport and logistics sites across Australia. These visits were advertised in advance on the Tribunal’s website and open to all those interested in attending.

(d) Facilitated discussions conducted by the Tribunal

[23] In June 2013 Deputy President Asbury facilitated discussions between interested persons on the proposed RSROs of various parties. Those facilitated discussions were advertised in advance on the Tribunal’s website and open to all those interested in attending.

[24] A report on the facilitated discussions was prepared by Deputy President Asbury and published on the Tribunal’s website. The report details areas of consensus and disagreement on the content for a draft RSRO. A copy of the facilitated discussions report dated 28 June 2013 is at Attachment B to this decision.

[25] On 8 July 2013 a Full Bench of the Tribunal conducted a hearing in respect of its first annual work program, the applications for RSROs and the facilitated discussions report. The purpose of the hearing was to provide a further opportunity for persons to be heard on the matters. The hearing was advertised in advance on the Tribunal’s website and open to all those interested in attending. The following made written submissions for, or appeared at, that hearing:

(e) Publication of the draft RSRO

[26] The RSR Act provides that before making a RSRO, the Tribunal must prepare and consult on a draft RSRO 9 and publish the draft RSRO on the Tribunal’s website and by any other means it considers appropriate.10

[27] Following the written submissions including proposed RSROs and applications, written comments, research, transport and logistics sites’ visits, facilitated discussions and hearing processes we have outlined, on 12 July 2013 a Full Bench of the Tribunal issued a statement to which was attached a draft RSRO prepared by the Tribunal. 11 The statement and draft RSRO were published on the Tribunal’s website. They were also widely reported in road transport industry publications, in our view making further publication by the Tribunal beyond its website and its email subscriber list unnecessary.

[28] The draft RSRO covers the following topics:

[29] The coverage term in the draft RSRO is as follows:

(f) Written submissions, comments and hearings on the draft RSRO

[30] The RSR Act requires the Tribunal to give affected persons and bodies a reasonable opportunity to make, and comment on, submissions in relation to a draft RSRO. In this regard, s.24 of the RSR Act is as follows:

[31] Section 25 of the RSR Act provides that the Tribunal may, but is not required to, hold a hearing in relation to a draft RSRO.

[32] Section 26 of the RSR Act states:

[33] In the statement of the Tribunal of 12 July 2013 12 to which the prepared draft RSRO was attached, the Tribunal advised that those wanting to make submissions and/or present evidence to the Tribunal on the draft RSRO could do so by making written submissions and/or presenting written witness statements to the Tribunal by midday on 26 July 2013. The statement also advised that those wanting to make comments and/or present evidence in reply to the Tribunal on the written submissions and/or written witness statements received on the draft RSRO could do so in writing to the Tribunal by 5 August 2013. Further, the statement advised that the Tribunal would conduct hearings on the draft RSRO from 13-16 August 2013 in Sydney with video links to capital cities in other states and territories. The statement also indicated the material received would be published on the Tribunal’s website, subject to confidentiality or commercial sensitivity considerations.

[34] Between 18 and 22 July 2013 the following organisations sought that the above timetable be varied:

[35] They were supported by Business SA and the Australian Federation of Employers and Industries (AFEI).

[36] These organisations wanted a minimum of five to eight weeks from 12 July 2013 to consult with their members on the draft RSRO and to make written submissions and present evidence.

[37] The Tribunal conducted a hearing on their applications to vary the timetable.

[38] The TWU and two companies directly involved in the road transport industry, Australian Fast Freight Pty Ltd and Robert Mitchell Transport Pty Ltd, opposed the timetable contained in the 12 July 2013 statement being varied, as did Intercapital Trucking Pty Ltd. Although, the TWU did not oppose some extension to the dates for the making of written submissions and comments, so long as the hearing dates were not delayed.

[39] ARTIO indicated it had no objection to the hearing dates set out in the timetable in the 12 July 2013 statement. However, they also said that while they were able to comply with the timetable for the making of written submissions, they would be assisted by some additional time to make their written submissions in respect of the draft RSRO.

[40] Linfox and Toll did not oppose the timetable contained in the 12 July 2013 statement.

[41] ANRA and Coles neither supported nor opposed the timetable in the 12 July 2013 statement being varied.

[42] Having regard to the submissions made on the applications to vary the timetable, on 23 July 2013 a Full Bench of the Tribunal issued a statement on the matter as follows:

[43] On 5 August 2013, the ACCI, ABI and NSW Business Chamber made an application to set aside the timetable published by the Tribunal for written comments and/or witness statements in reply and for the hearings on the Tribunal’s draft RSRO. They maintained it was impossible for any party to properly respond to or comment on the volume of written submissions and witness statements made to the Tribunal on the draft RSRO within the timeframes contained in the timetable. They also referred to the provisions of s.24(4) of the RSR Act. They sought a further 4 to 6 weeks to make written comments and/or witness statements in reply.

[44] The application of the ACCI, ABI and NSW Business Chamber was supported by the AIG, ATA NSW, NatRoad, Toll, AFEI, ARTIO and ALRTA. ARTIO suggested the hearings scheduled for 12 to 16 August 2013 could be used to deal with jurisdictional issues.

[45] The application for the timetable to be vacated was opposed by the TWU, which maintained that the issues raised in the written submissions and witness statements were not novel. Mr Steve Melichar of Australian Fast Freight Pty Ltd, Mr Robert Mitchell of Robert Mitchell Transport Pty Ltd, Mr Jerry Brown-Sarre of Intercapital Trucking Pty Ltd and Mr Timothy Kikkert also opposed the timetable being vacated.

[46] ANRA neither opposed nor supported the application of the ACCI, ABI and NSW Business Chamber. Linfox and Coles did not oppose the application. Coles also sought to present some oral evidence in reply at the hearings scheduled for 12 to 16 August 2013.

[47] Having regard to the submissions made on the application to set aside the timetable, on 6 August 2013 a Full Bench of the Tribunal issued a statement on the matter as follows:

[48] The scheduled hearings were conducted on 12-14 August 2013. On 15 August 2013 the TWU wrote to the Tribunal seeking an adjournment of the proceedings for three to four weeks on the basis that one of their witnesses, Professor Michael Quinlan, who had filed a written witness statement but who was unexpectedly unavailable for cross-examination, may be available at that later time. The adjournment was not opposed by other persons who had appeared at the proceedings on the previous three days. The proceedings were then adjourned until 29-31 October 2013.

[49] On 19 September 2013 the TWU wrote to the Tribunal seeking to submit to the Tribunal four further witness statements from road transport drivers who would be available for cross-examination at the next Tribunal hearing, subject to the drivers’ identity not being published. They also sought to submit a witness statement from Professor Quinlan who was unlikely to be available for cross-examination at the hearing or, alternatively, a witness statement from a Dr Michael Rawling who would be available for cross-examination.

[50] That course was opposed by ANRA, Coles, Toll, Linfox, ABI, ARTIO, AFEI and the AIG. It was also opposed by Intercapital Trucking Pty Ltd and Australian Fast Freight Pty Ltd at least in so far as the four witness statements from the road transport drivers were concerned.

[51] Having regard to the submissions made on the matters, on 16 October 2013 the Full Bench of the Tribunal issued a decision as follows:

[52] Hearings before the Tribunal proceeded on 29-30 October 2013 during which Dr Rawling gave evidence, various persons made oral submissions and several persons who were not able to appear at the proceedings provided written submissions which were admitted by the Tribunal. The TWU was given leave to file a written submission in reply with the Tribunal by 1 November 2013 and the Tribunal adjourned with its decision on any RSRO reserved.

[53] A list of the written submissions and written comments made to the Tribunal on the draft RSRO, and those who appeared at the hearings on the draft RSRO is at Attachment C.

[54] A list of the documents tendered to the Tribunal during its hearings on the draft RSRO and marked as exhibits is at Attachment D.

[55] The written submissions, written comments, documents tendered and transcript of the hearings were progressively published on the Tribunal’s website.

[56] In final submissions on 30 October 2013, the ACCI, ABI, NSW Business Chamber and MBA maintained they had not been given a reasonable opportunity to present evidence to the Tribunal from employers or hirers and, as a result, were not afforded the reasonable opportunity contemplated by s.24 of the RSR Act. Nonetheless, they submitted that some form of RSRO should be made by the Tribunal. 16

[57] We have earlier set out s.24 of the RSR Act. Section 24(1) requires the Tribunal to ensure that “all persons and bodies likely to be affected if a road safety remuneration order based on the draft [RSRO] were to be made” (underlining added) have a reasonable opportunity to make written submissions to the Tribunal for its consideration in relation to the draft RSRO.

[58] Section 24(4) requires the Tribunal to ensure that “all persons and bodies likely to be affected if a road safety remuneration order based on the draft were to be made have a reasonable opportunity to make comments to the Tribunal” (underlining added) on the material published by the Tribunal from the s.24(1) submissions. Section 25 of the RSR Act provides that the Tribunal can, but is not required to, hold a hearing in relation to the draft RSRO.

[59] We were, and remain, satisfied that the timetable we adopted provided all persons and bodies likely to be affected by a RSRO based on the draft RSRO the requisite “reasonable opportunity”.

[60] Having set out the processes and proceedings leading to this decision, we next detail the general material presented to the Tribunal relevant to a RSRO.

General material presented to the Tribunal

[61] Set out below is some of the general material presented to the Tribunal relevant to a RSRO. Subsequently we consider the material and submissions presented to the Tribunal in respect of the clauses in the draft RSRO that we published previously and other claims, including the evidence of the witnesses for ARTIO, Coles and Linfox.

[62] Road accident data relevant to the road transport industry was presented to the Tribunal by ARTIO. Research material was also presented by the TWU on the relationship between remuneration and safety in the road transport industry. This included empirical research reports on remuneration factors and safety-related outcomes including crashes, on-road performance in general, stimulant use and fatigue and speeding. These studies were conducted mainly in Australia, but some material was also presented from overseas.

[63] Further, material was presented from government-initiated and other inquiries into the road transport industry.

[64] Firstly, we were referred to an inquiry initiated by the Motor Accidents Authority of New South Wales which reported in 2001. The Report of Inquiry into Safety in the Long Haul Trucking Industry 17 (2001 Inquiry) conducted by Professor Michael Quinlan of the University of New South Wales concluded that:

[65] Some of the more specific evidence and findings of the 2001 Inquiry were stated as follows:

[66] The 2001 Inquiry also stated the following in making its recommendations:

[67] Secondly, we were referred to the inquiry initiated by the Victorian Minister for Industrial Relations in 2004. The Report of Inquiry: Owner Drivers and Forestry Contractors 21 (2004 Inquiry) stated:

[68] The 2004 Inquiry went on to state that:

[69] Nonetheless, the 2004 Inquiry also noted that:

[70] The debate highlighted in the 2004 Inquiry is dealt with in later inquiries to which we refer.

[71] Thirdly, we were referred to the 2006 decision of a Full Bench of the Industrial Relations Commission of New South Wales in Transport Industry-Mutual Responsibility for Road Safety (State) Award and Contract Determination (No. 2) 25 (NSW Mutual Responsibility case). The decision concerned an application by the TWU for two industrial instruments regarding the road transport industry. In its decision, the Full Bench in the NSW Mutual Responsibility case referred to the largely uncontested evidence of Mr Wayne Forno, an Assistant State Secretary of the TWU, who summarised the situation as follows:

[72] Professor Quinlan gave evidence before the Full Bench in the NSW Mutual Responsibility case. He said that the TWU’s application addressed a number of matters identified in the aforementioned 2001 Inquiry he had conducted and subsequent research. He said that:

[73] The Full Bench in the NSW Mutual Responsibility case said that they considered the evidence in the proceedings established that there is a direct link between methods of payment and/or rates of pay and safety outcomes. 28 They pointed out that the conclusion that there is an association between payment and safety was acknowledged by the two New South Wales Road Transport Association officers who gave evidence before them.29 Further, they said the issues they had identified in the case were not confined to a particular sector of the road transport industry or class of driver, be they employees or contract carriers.30

[74] The Full Bench went on to make the Transport Industry - Mutual Responsibility for Road Safety (State) Award 31 (NSW state award) and the Transport Industry - Mutual Responsibility for Road Safety (State) Contract Determination32 (NSW contract determination) with provisions in respect of safe driving plans, basic occupational health and safety training and a drug and alcohol policy.

[75] Fourthly, we referred to a 2008 report prepared for the National Transport Commission entitled Remuneration and Safety in the Australian Heavy Vehicle Industry: A Review undertaken for the National Transport Commission 33 (2008 Report) by Professor Quinlan and the Honourable Lance Wright, QC which included the following:

[76] The 2008 Report also raised what it saw as a number of significant problems with the conclusions of the SCOT Working Group Report and Paper referred to in the 2004 Inquiry. The 2008 Report maintained that the SCOT Working Group Report and Paper had oversimplified some of the evidence and failed to consider occupational health and safety outcomes other than crashes, and that comparing different types of employment is unlikely to uncover the effects of different types of remuneration as all drivers may be affected by remuneration-related pressures.

[77] The 2008 Report made a number of recommendations including the following:

[78] Fifthly, we were referred to the 2008 inquiry established by the Australian Transport Council as part of the National Transport Policy Framework. This inquiry was conducted under the auspices of the National Transport Commission (NTC) and became the Safe Payments Project. The report from the 2008 inquiry entitled Safe Payments: Addressing the Underlying Causes of Unsafe Practices in the Road Transport Industry 35 (2008 NTC Inquiry) stated the following:

[79] The 2008 NTC Inquiry concluded that:

[80] Several individuals also gave evidence before us.

[81] Dr Michael Rawling, Lecturer in the Faculty of Law at the University of Technology Sydney, outlined some of the research surrounding supply chains in the road transport industry. He said that those at the top of the supply chain wielded considerable commercial influence over others in the supply chain and were in a position to affect some of the major parameters that impact upon where and how work is performed. Dr Rawling also drew a parallel with chain of supply regulation operating in the textile, clothing and footwear (TCF) industry. We note in that regard that the research is at an early stage and the TCF model operates in a somewhat different context. 38

[82] Mr Michael Kaine, Assistant National Secretary of the TWU, said that existing compliance efforts to deal with the problems in the road transport industry have not been effective because they focus on the symptoms of the problems, symptoms such as speeding, fatigue, the use of artificial stimulants to combat fatigue, logbook manipulation, speed limiter alteration and so on. 39

[83] Mr Kaine’s evidence was that both road transport companies, who employ and/or hire road transport drivers, and owner-drivers compete for a limited amount of work in which price is the main determining factor in deciding whether they win or lose contracts. They are price takers who then cut corners, including by placing pressure on their road transport drivers which results in unsafe work practices or contracting out economically unviable road transport services to others who have difficulty performing the services in a legal and safe manner and who may “do what it takes” to make the services profitable for them. 40

[84] Further, he said that the TWU has made ongoing attempts to have occupational health and safety (OH&S) regulators and occupational health and safety laws recognise and deal with the economic pressures in the road transport industry that lead to road transport services being performed in an unsafe manner, but the TWU has been persistently told by occupational health and safety regulators and governments that rates of payment and economic considerations are and should remain beyond the scope of occupational health and safety laws. 41 He maintained that the role and function of the National Heavy Vehicle Regulator is to provide nationally consistent administration of heavy vehicle road laws, which laws are principally focused on post-breach enforcement and chain of responsibility provisions, centred on the symptoms of speeding, fatigue and load restraint.42

[85] Mr Paul Clapson, an owner-driver contracted for nearly six years to perform delivery work for George Weston Foods Limited trading as Tip Top, gave evidence about changes that Tip Top have introduced to the road transport services provided by him and other owner-drivers and the impact of those changes on him. 43

[86] Mr Mark Trevillian, a road transport driver employed by Toll transporting goods and produce from the Woolworths Limited (Woolworths) Distribution Centre at Minchinbury in New South Wales and a TWU delegate, gave evidence that the inbound freight delivery to the distribution centre can be done by anyone operating in the road transport industry, as suppliers to Woolworths are responsible for organising and managing the transport of their freight to the distribution centre. He said that the owner-drivers get paid by the kilometre, not the hour, so that if the wheels on their vehicle are not turning then they are not getting paid. He said that from his own observations and discussions owner-drivers will:

[87] He added that from his observations the road transport drivers employed by Toll perform their road transport services legally, but other employed road transport drivers whose remuneration is based on trip rates engage in similar unsafe practices to those of the owner-drivers because they face similar pressures to keep their vehicle moving.

[88] He said that as the TWU delegate he had seen inbound road transport drivers coming in that were barely able to keep their heads up they are so exhausted. He contended that management just try and turn them around as quickly as possible and get them out of the distribution centre.

[89] Mr Trevillian gave an illustration of the way in which “logbooks” may be falsified. He said:

[90] In relation to the alleged falsification of “logbooks”, we note that Mr Trevillian conceded that his observations about the current practice was not based upon direct observations and that his earlier direct experience in that regard was some 13 years ago. 45

[91] Mr Eric Pickering, a road transport driver involved in interstate line haul operations at Linfox, gave evidence that Linfox audited a small contractor at his depot who was running three trucks and it transpired that the contractor was not paying his road transport drivers properly, was paying them cash and did not know the surnames of the drivers, was not paying superannuation and had no insurance. 46 Mr Nicholas Leon, Workplace Relations Manager for New South Wales and Queensland for Linfox, gave evidence that immediately subsequent to the Linfox audit the contractor’s engagement was terminated by Linfox.

[92] Mr Brad Stratham, a Chartered Accountant who advises owner-drivers and small fleet operators across a broad section of the road transport industry about their businesses, gave evidence that:

[93] Mr Frank Black, an owner-driver, gave evidence that most times hirers tell him the rate of payment they are offering and it is futile to try and negotiate a higher rate, and as an owner-driver prompt recovery of payment due is important to being able to meet insurances, registration, fuel, vehicle maintenance and other vehicle running costs. 48

[94] We regard this material as relevant to our decision.

[95] Having detailed the general material presented to the Tribunal relevant to a RSRO, we now turn to consider the material and submissions presented to the Tribunal on the clauses in the draft RSRO that we published previously and other claims. Subsequently, we consider jurisdictional issues and the matters the Tribunal must have regard to in deciding whether to make a RSRO and then conclude.

Material and submissions on the clauses in the draft RSRO and other claims

1. Title

[96] The draft RSRO is named the “Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2013”. There was little support for changing this title and there is merit in retaining it, except as to its date given what we say below. This results in the following “Title” clause:

2. Commencement and expiry

[97] The draft RSRO provides for any RSRO to have a commencement date of 1 October 2013 and an expiry date of 30 September 2017.

[98] Before us, some sought a commencement date well into 2014. The rationale for such a delayed commencement time being to enable those affected to adjust to the changes. The NSW Small Business Commissioner also sought a “grace” period for compliance with any RSRO after it commences. Further, there was some support for the life of a RSRO being shorter than four years.

[99] A commencement and expiry clause is necessary to the operation of a RSRO, but of no effect unless the RSRO has substantive terms. We think there is merit in providing for a delay in the commencement of any RSRO to 1 May 2014 and an expiry date of 30 April 2018. Such a delay allows those affected a period of adjustment between its publication and commencement. With respect to the expiry date, we note that s.32 of the RSR Act provides for the Tribunal to vary a RSRO at any time before its expiry date on its own initiative or on application by certain persons and bodies. Further, s.31 of the RSR Act provides that the Tribunal must review a RSRO at some time in the period of 12 months ending on its expiry date. In the circumstances, we are not persuaded the expiry date of any RSRO should be earlier.

[100] These considerations result in the following “Commencement and expiry” clause:

3. Definitions and interpretation

[101] There is a definitions and interpretation clause in the draft RSRO.

[102] Again, a definitions and interpretations clause is necessary to the operation of any RSRO, but of no effect unless the RSRO has substantive terms.

[103] Some who made submissions to us sought changes to the definitions included in the draft RSRO. Those definitions generally reflect the definitions used in the RSR Act. We are not persuaded there is merit in using different definitions to those in the RSR Act. We consider using different definitions is likely to create confusion or uncertainty.

[104] With this in mind, however, there is merit in altering the definition of “related individual of a corporation” in the draft RSRO so that it better reflects the definition in the RSR Act. To this end, we will add the phrase “each of the following individuals” after the word “means” so that the definition reads as follows:

[105] Changes to the definitions in the draft RSRO of “long distance travel”, “registered training provider” (or its replacement with “registered training organisation”) and “work”, which are not from the RSR Act, were also sought by some. Others sought the inclusion of specific definitions arising from the changes they sought to other clauses.

[106] We will deal with these changes later in this decision when considering the clauses to which they are relevant. Nonetheless, we indicate at this stage that we have deleted the definitions of “long distance travel”, “registered training provider” and “work” from the “Definitions and interpretation” clause. We have also added to the “Definitions and interpretation” clause the following:

[107] This results in the following “Definitions and interpretation” clause:

4. Coverage

[108] The draft RSRO contains the following coverage clause:

[109] The Road Transport and Distribution Award 2010 49 as in force on 1 July 2012 states that the “road transport and distribution industry” means:

[110] The Road Transport (Long Distance Operations) Award 2010 50 as in force on 1 July 2012 states that:

[111] The ACCI, ABI and NSW Business Chamber initially submitted subclause 4.1(a) of the draft RSRO should be changed to:

[112] They maintained that having regard to relevant dictionary definitions of the words “retail” and “goods”, the composite term “retail goods” means “goods to be sold to their ultimate consumers, usually in small quantities”. They pointed out the General Retail Industry Award 2010 51 defined the “general retail industry” as meaning “sale or hire of goods … to final consumers for personal or household consumption”. They suggested the RSRO define “retail goods” as meaning “goods to be sold or hired to final consumers for personal or household consumption”.

[113] Further, they submitted the term “long distance travel” contained in subclause 4.1(a) of the draft RSRO and defined in clause 3 of the draft RSRO should be deleted. This is because its definition is significantly broader than the term “long distance operation” in the Road Transport (Long Distance Operations) Award 2010, the definition of “long distance travel” would extend to work which is not subject to the same circumstances and stresses as is a “long distance operation”, and to situations where it is impossible to predict in advance whether a series of journeys in a day will exceed 500 kilometres, and beyond the “long distance sector” in the Tribunal’s first annual work program. Further, the regulatory burden will be minimised by harmonising the long distance concepts in the RSRO and the Road Transport (Long Distance Operations) Award 2010, and the Tribunal’s first annual work program.

[114] They also submitted the phrase “involving or in connection with” is likely to create uncertainty about the extent of coverage of the RSRO and extend to parts of industry where there is no evidence of remuneration-related safety concerns.

[115] In addition, they submitted the Tribunal should consider excluding from the coverage of the RSRO work which only intermittently or occasionally comes within the coverage of the RSRO.

[116] Later, the ACCI, ABI, NSW Business Chamber and MBA submitted there was insufficient material before the Tribunal to expressly include the livestock and bulk grain sectors or, in totality, the retail sector within the coverage of the RSRO. However, they indicated that if the RSRO was to cover the retail sector in totality then the relevant definition in the General Retail Industry Award 2010 should be adopted. Similarly, they submitted the Tribunal should be cautious about the reach of the long distance sectors covered in the RSRO, having regard to the material before the Tribunal.

[117] As a result, they finally proposed that the coverage clause of the RSRO be worded as follows:

[118] They proposed that “general freight” be defined in clause 3 of the RSRO as:

[119] They proposed “specialised vehicle” be defined in clause 3 of the RSRO as:

[120] Similar concerns to those initially raised by the ACCI, ABI and NSW Business Chamber were raised by the AIG and ARTIO. The AIG also submitted that a transport provider may not know the freight they are moving is retail goods and it is not workable to identify a supply chain by reference to the length of distance a road transport driver travels. They pointed out that in their application for RSROs, the TWU defined coverage of the RSROs by reference to sectors, defining the “retail sector” as “that part of the road transport industry involving the transport and delivery of goods which are ultimately retailed in a supermarket chain” and defined “supermarket chain” as “a business, including a franchise, which operates five or more supermarket stores, and without limiting the generality of this definition, shall include the businesses operating under the names identified in Schedule A” to their proposed RSRO.

[121] Toll proposed that subclause 4.1(a) in the draft RSRO be amended in the RSRO to read:

[122] As a corollary they proposed that “retail sector” be defined in the RSRO as “the transportation of goods by road into or from a fast moving consumer goods distribution centre” or as proposed by the TWU in its application for a RSRO.

[123] Toll proposed such amendments having regard to the breadth of the term “involving, or in connection with retail goods” and the potential uncertainty associated with such a phrase.

[124] Later they emphasised that any RSRO should be based on supply chains where a major retailer is at the apex of the supply chain.

[125] Australia Post proposed that subclause 4.1(a) of the draft RSRO be amended in any RSRO to:

[126] As a corollary they submitted “retail sector” could be defined in the RSRO as “that part of the road transport industry involving the business to business transportation by road of retail goods.”

[127] Australia Post was concerned about the breadth of the term “retail goods” in the draft RSRO. They also proposed that the coverage of the RSRO should be limited to heavy vehicles greater than 4.5 tonnes gross vehicle mass.

[128] A few others submitted the RSRO should exempt small business. ALRTA submitted the livestock and bulk grain sectors should be the subject of a separate and specific RSRO which includes provisions tailored to suit the different operational conditions for each sector and Livestock and Rural Transport Association of Western Australia (Inc) (LRTA of WA) recommended the Tribunal consider exempting transporters predominantly engaged in transporting commodities for on farm primary production from a RSRO or issuing a separate RSRO for rural transport.

[129] The TWU, while content with the coverage clause in the draft RSRO, in comments in reply suggested there was some merit in any initial RSRO being confined to the retail and long distance sectors. In their proposed orders of 4 March 2013, they gave these sectors the following meanings:

[130] Schedule A listed Coles, Bi-Lo, Coles Express, Liquorland, Vintage Cellars, First Choice Liquor, Bunnings, Officeworks, Target, Kmart, Woolworths, Woolworths Metro, Food for Less, Safeway, Flemings, Big W, BWS, Dan Murphy’s, Wine Market, Cellarmasters, Langtons, Door Buster, Thomas Dux, Masters Home Improvement, Aldi, Franklins, IGA, Supa IGA, IGA X-Press, Lucky 7, Cellarbrations, IGA Liquor, Bottle-O, Mitre 10, Foodland, Harris Farm Markets, Foodworks, SPAR, 5 Star, Drake Supermarkets, Costco, Supabarn and 7-Eleven.

[131] Section 27(4) of the RSR Act requires a RSRO to specify the road transport drivers to whom it applies and the persons on whom any requirements in the RSRO are imposed. Requirements may be imposed on an employer or hirer of a road transport driver, and a participant in the supply chain in relation to a road transport driver, to whom the RSRO applies. As a result, there is a need to change the title of clause 4 to “Application” and to amend clause 4 so that it refers to the road transport drivers to whom it “applies”.

[132] We are not persuaded the application clause should only be in respect of contractor drivers. We think it preferable to consider whether requirements should only be imposed in respect of contractor drivers on a clause by clause basis given the material before us.

[133] In so far as the road transport and distribution industry is concerned, we are persuaded we should limit the application clause to a certain part of that industry. This is because, beyond long distance operations in the private transport industry, the material before us concentrated on the road transport services along the supply chain to a supermarket chain.

[134] Within that context, it was concerned with the road transport driver providing a road transport service that their employer or hirer knows (or reasonably ought to know) is wholly or substantially in relation to freight that the employer or hirer knows (or reasonably ought to know) will ultimately be sold or hired by a supermarket chain. We will amend the application clause to reflect this.

[135] With respect to long distance operations in the private transport industry, we are not persuaded we should generally limit the application clause to certain freight and vehicles in that industry given the material before us. We think it preferable to deal, as appropriate, with the different circumstances of parts of that industry on a clause by clause basis.

[136] This results in the renaming of the “Coverage” clause and the following the “Application” clause:

5. Dispute resolution

[137] There is a dispute resolution clause in the draft RSRO as follows:

[138] In the 12 July 2013 Statement we indicated that while we had included a dispute resolution procedure in the draft RSRO, there was a question about the need for such a provision given the terms of Part 4 of the RSR Act and whether the dispute resolution clause in the draft RSRO enhanced or diminished rights. 52 While some took no objection to the dispute resolution clause in the draft RSRO, we are persuaded the dispute resolution clause in the draft RSRO at its subclauses 5.1 to 5.2 imposes conditions precedent to accessing the disputes provisions in Part 4 of the RSR Act, and in other subclauses is inconsistent with the RSR Act.

[139] We think there is merit in the dispute resolution clause referring to the availability of Part 4 of the RSR Act in respect of disputes, in a similar manner to the way in which modern awards refer to the National Employment Standards in the Fair Work Act 2009 (Cth) (FW Act). That results in the following “Dispute resolution” clause:

6. Whistleblower protection

[140] A whistleblower protection clause is included in the draft RSRO as follows:

[141] This whistleblower protection clause contained in the draft RSRO provides that a participant in the supply chain in relation to a road transport driver must not take adverse conduct against the road transport driver because of the driver’s workplace entitlements or exercise thereof.

[142] The TWU, Wayne Lewis Transport Pty Ltd and Australian Fast Freight Pty Ltd supported the inclusion of the whistleblower protection clause in a RSRO. ALRTA also generally supported the clause while raising some concerns about its impact in respect of contractor drivers.

[143] The AIG, ACCI, ABI, NSW Business Chamber, MBA and AFEI submitted a RSRO should not replicate the general protections provisions of the FW Act or extend beyond them. The AIG so submitted having regard to Part 4 of the RSR Act and the inclusion of the RSR Act as a workplace law in the FW Act, the potential for such a clause to result in unmeritorious and speculative claims with little capacity for them to be dealt with efficiently under compliance provisions and the capacity for participants in the supply chain to breach it. Some of these reasons were effectively endorsed by the ACCI, ABI, NSW Business Chamber, MBA, AFEI and ATA NSW.

[144] Coles recognised that subclause 6.2(c)(ii) of the draft RSRO provides a road transport driver with a cause of action where it is alleged that the adverse conduct has occurred by reason of a complaint or inquiry in relation to employment or engagement. They submitted that where the road transport driver is an employee, the protection is caught by Division 3 of Part 3-1 of the FW Act. They went on to submit that to the extent that such a complaint or inquiry, that is in relation to engagement broadly, goes beyond that mentioned in subclause 6.2(c)(i) of the draft RSRO, that is relating to the Act or the order, there is a question as to whether it falls within the contemplation of s.27 of the RSR Act. ANRA supported Coles’ submission.

[145] We think there is merit in amending the name of the clause to “Adverse conduct protection” to better reflect the nature of the protection afforded by the clause. We have also come to the view that there is merit in deleting subclause 6.2(c)(ii) of the clause in the draft RSRO at this stage. Subclause 6.2(c)(ii) significantly expands the operation of the clause.

[146] Further, we consider we should add to the end of subclause 6.5 of the draft RSRO the phrase “in respect of the conduct constituting the adverse conduct”, so as to make clear that subclause 6.1 does not apply in circumstances where the road transport driver would otherwise have the right to a cause of action under Division 3 of Part 3-1 of the FW Act.

[147] Such amendments result in the following “Adverse conduct protection” clause:

7. Contracts

[148] A contracts clause is included in the draft RSRO as follows:

[149] In respect of clause 7, Nursery & Garden Industry NSW & ACT Limited (NGINA) submitted that:

[150] The TWU proposed clause 7 be amended by adding a new subclause 7.2(k), varying subclauses 7.2(k) and 7.4 in the draft RSRO and adding a new subclause 7.5 as follows:

[151] They proposed the amendments to subclause 7.4 to impose an obligation on supply chain participants to ensure the amount paid under a contract for the transportation of freight is sufficient to enable the road transport driver ultimately responsible for the carriage of the freight to be paid in accordance with the RSRO or any applicable instrument. Their proposed new subclause 7.5 is designed to require participants in the supply chain to ensure strict compliance with the RSRO is a condition of any road transport contracts within its supply chain.

[152] ANRA proposed that subclause 7.4 be amended to the following:

or

[153] They proposed such amendments to meet concerns about what might be considered “reasonable steps” and because of the potential breadth of subclause 7.4 in the draft RSRO. They submitted the TWU’s proposed additional subclause X.2(k), additions to subclause 7.4 and additional subclause X.5 are vague, uncertain or unnecessary.

[154] They did not oppose the Linfox proposed amendments as set out below, although they preferred their proposed amendments to subclause 7.4 of the draft RSRO over Linfox’s proposed subclause 7.6 and Toll’s proposed revision of subclause 7.4 of the draft RSRO as set out below. They did not oppose Toll’s proposed new subclause 7.5, but regarded its inclusion or otherwise as a matter for the Tribunal.

[155] For similar reasons Coles also proposed subclause 7.4 be varied to the following:

[156] Mr Craig Wickham, General Manager of Transport and Integration at Coles, gave evidence about Coles’ road freight supply chain as follows:

[157] The table above shows the number of freight movements per annum in which Coles is a participant in the supply chain and associated supply chain contracts per annum. In the table “DC” means Distribution Centre and “3PL” means third party logistics providers.

[158] In respect of clause 7.4 of the draft RSRO, Mr Wickham’s evidence was that:

[159] VicForests, the Victorian Association of Forest Industries (VAFI), South East Fibre Exports Pty Ltd and Fellows (Australia) Pty Limited sought the removal of subclause 7.4 of the draft RSRO for similar reasons.

[160] Conplant Pty Ltd maintained subclauses 7.2(g), 7.2(i) and 7.4 are impractical and subclause 7.3 could be costly to administer.

[161] Linfox proposed clause 7 be amended to the following:

[162] They submitted the amendments recognised that employee road transport drivers generally have limited contracts of employment which act to expressly incorporate the terms of the relevant modern award or enterprise agreement. They perceived that subclause 7.2(f) in the draft RSRO required hirers to provide contractor drivers with a guaranteed number of hours and removed it on that basis. To promote safety, they also considered it desirable for hirers and others to be able to audit the records of contractor drivers.

[163] They supported, in principle, the prospect of a carve out provision for road transport drivers who perform “one off” or “ad hoc” work.

[164] ARTIO supported Linfox in respect of the written contracts and stressed the clause should provide for more regular review of fuel costs. Mr Timothy Kikkert also submitted the clause should provide for more regular review of fuel costs.

[165] Toll submitted casual employees, ad hoc or itinerant contractor drivers and employees covered by an enterprise agreement should be excluded from clause 7 of the draft RSRO. They saw merit in distinguishing between employee drivers and contractor drivers as submitted by Linfox. They also considered subclause 7.4 to be uncertain and unclear. Further, they submitted any provision in the RSRO relating to contracts should allow for a significant transitional period.

[166] They proposed that subclause 7.4 be amended to the following:

[167] Toll also proposed a new subclause 7.5 as follows:

[168] They considered the TWU’s addition of the words “or indirectly cause” to subclause 7.2(k) of the draft RSRO was likely to give rise to confusion and disputation.

[169] They did not support Linfox’s proposed subclause 7.6, although they agreed there may be merit in a RSRO allowing for audits to be undertaken.

[170] The ACCI, ABI, NSW Business Chamber and MBA proposed the contracts clause in a RSRO be amended to the following:

[171] In support of this version of a contracts clause they submitted that written contracts are not needed for employee road transport drivers given they are covered by modern awards, it is impractical to establish detailed written contracts for contractor drivers who undertake irregular and intermittent contracts of carriage for a hirer and the Owner Drivers and Forestry Contractors Act 2005 (Vic) (Victorian ODFC Act) recognises this in respect of its written contracts provisions. Any written contract provision in a RSRO should be aligned with the Victorian ODFC Act.

[172] The ACCI, ABI, NSW Business Chamber and MBA proposed written contracts contain similar provisions to those in the Victorian ODFC Act. The Victorian ODFC Act followed the earlier mentioned Report of Inquiry: Owner Drivers and Forestry Contractors which was undertaken by Industrial Relations Victoria and which recommended the enactment of legislation requiring written contracts for owner drivers.

[173] Intercapital Trucking Pty Ltd proposed clause 7 be amended as follows:

[174] AFEI, the AIG, ALRTA and ATA NSW opposed the clause as contained in the draft RSRO citing some or all of practicality, administrative burden and cost.

[175] In comments in reply, the AIG submitted that if the TWU’s proposed subclause X.2(k) is to be included in a RSRO, it is essential that the RSRO identifies the contractual provisions that would be contraventions. They regarded the TWU’s proposed subclauses X.4 and X.5 as unworkable.

[176] A survey by NatRoad 53 of around 60 of its members, some 56% of whom are small businesses and about 86% of whom do long distance work, about the draft RSRO was said to show in respect of those who answered the question that 62% had no written contracts. NatRoad maintained the clause is impractical and costly for small and medium sized operators in regional or remote areas who provide ad hoc/short notice services.

[177] The Victorian ODFC Act requires written contracts for a contractor driver engaged for no fixed duration or for a period of at least 30 days. 54 The Victorian ODFC Act also sets out provisions regarding notice of termination of engagement55 and payment in lieu,56 and payments by a contractor driver to a hirer or deductions by the hirer from amounts payable to the contractor driver.57

[178] In respect of written contracts the Victorian ODFC Act is as follows:

[179] We note that s.119 of the RSR Act provides as follows with respect to employer and hirer obligations in relation to records:

[180] Part 7 of the Road Safety Remuneration Regulation 2012 (RSR Regulation) contains detailed provisions regarding record keeping by an employer or hirer of a road transport driver as follows:

[181] Part 7 of the RSR Regulation seems to require an employer or hirer of a road transport driver on whom any RSRO imposes a requirement to keep detailed written records regardless of the period of employment or engagement of the road transport driver.

[182] We are not persuaded we should limit the requirement to provide a written contract to those employed or engaged for longer periods or to only contractor drivers, given the application of Part 7 of the RSR Regulation.

[183] However, in our view, there is merit in amending the contracts clause in the draft RSRO to include a specific subclause allowing the written contract to be in electronic form. The extra administrative requirements resulting from a requirement for written contracts can be eased by allowing them to be in electronic format. This may include email. We add that we think there is scope for innovation about the form of a written contract. For example, it could be included on the back of, or otherwise form part of, a consignment note.

[184] We also think there is merit in amending subclause 7.2(e) of the draft RSRO concerning remuneration to specify some of the types of rates commonly paid in the road transport industry having regard to the material before us.

[185] Further, we will amend subclause 7.2(f) of the draft RSRO concerning guaranteed hours or income to meet the concerns of Linfox, although we point out its unamended form is a feature of the Victorian ODFC Act. 58 Consistent with the suggestion of Linfox, we will add that the written contract must identify any modern award, enterprise agreement or other industrial instrument covering or applying to the road transport driver.

[186] In recognition of the submissions of ARTIO and others who sought a more regular than annual review of fuel costs, we are of the view that the clause should require a written contract to contain a mechanism for a least annual review and any agreed adjustment of the remuneration paid to a road transport driver.

[187] Further, the clause will include a subclause requiring the written contract to set out the types of payments that may be sought by a hirer from a contractor driver and/or the types of deductions that may be made from a valid taxation invoice. Such a subclause is consistent with requirements in the Victorian ODFC Act 59 and has the benefits arising from contractual certainty between the parties.

[188] In addition, the period an employer or hirer must keep a copy of the contract will be amended to seven years having regard to the requirement in Part 7 of the RSR Regulation.

[189] We have concluded there is merit in providing a form of subclause 7.4 in the draft RSRO, concerning the contractual requirements of participants in the supply chain, as a new separate clause 8 “Other contracts” and largely adopting the wording for such a clause proposed by ANRA and Coles so as to provide the greater clarity sought by others.

[190] We are not persuaded we should adopt the additional subclauses sought by the TWU, preferring the clarity in wording of clauses 7 and 8 as we have amended them.

[191] These considerations result in the following “Written contracts for road transport drivers” clause and “Other contracts” clause:

8. Work payments

[192] In the statement of 12 July 2013, the Tribunal said the following in respect of work payments:

[193] The aforementioned conference has not yet been convened.

[194] Further to the statement of 12 July 2013, the following clause is in the draft RSRO:

[195] “Work” is defined in clause 3 of the draft RSRO as follows:

[196] ALRTA was generally supportive of road transport drivers being paid for all work undertaken, including waiting time and washouts.

[197] Toll supported clause 8 in the draft RSRO, although they sought changes to the definition of “work” in clause 3 of the draft RSRO. They submitted the opening words of the definition should be amended to read:

[198] They also submitted that paragraph (d) in the definition of “work” in clause 3 of the draft RSRO should be subject to the driver being in control of the vehicle at the time and paragraph (k) should be confined to a maximum of 7.6 hours in any 24 hour period in keeping with industry practice.

[199] They maintained “work” in any RSRO should not be defined by reference to “time” as road transport drivers are paid for work not by reference to time spent working.

[200] As a fall-back alternative, Toll saw merit in the Linfox proposal in respect of clause 8 of the draft RSRO. They opposed the TWU’s redrafting of clause 8 as set out below.

[201] With respect to the definition of “work” proposed below by the TWU, Toll submitted:

[202] The ACCI, ABI, NSW Business Chamber and MBA suggested clause 8 in the draft RSRO be replaced with the following:

[203] They were concerned about the uncertainty associated with the term “reasonable amount” and the definition of “work” in the current clause in the draft RSRO. They proposed the opening words and paragraph (a) of the definition of “work” in clause 3 of the draft RSRO be amended to the following:

[204] The definition of the term “reasonable amount” was also of concern to ATA NSW and NGINA.

[205] The AIG proposed that clause 8 of the draft RSRO be amended to the following:

[206] Intercapital Trucking Pty Ltd propose as an interim position that clause 8 of the draft RSRO be amended to the following:

[207] Linfox suggested clause 8 of the draft RSRO be replaced with the following:

[208] They also proposed the definition of “work” in clause 3 of the draft RSRO be amended to:

[209] Linfox opposed the TWU’s proposed amendments to the definition of “work” as set out below. They submitted “work” in any RSRO should only encompass work for which a road transport driver is entitled to be paid under a contract of employment or a road transport contract and any interpretation which encompasses administrative tasks, unrelated to the service being provided to the hirer, leaves the opportunity for contractor drivers to be paid for such tasks under the work payments clause in the draft RSRO.

[210] ANRA did not oppose Linfox’s proposed amendment further detailing the specific costs which would need to be taken into account in calculating a “reasonable amount for work”, but recognised others acting as hirers were better placed to comment on the proposed amendment. They opposed subclause 8.4 proposed by Linfox which they saw as a matter for commercial negotiation. They also opposed the TWU’s redrafting of clause 8 of the draft RSRO as set out below.

[211] The TWU proposed substantial redrafting of clause 8 of the draft RSRO to the following:

X.3 All participants in the supply chain in relation to a road transport driver are accountable for contractor drivers being paid in a way that:

[212] The TWU proposed the definition of “work” in clause 3 of the draft RSRO be amended to the following:

[213] The TWU supported a “floor” of minimum rates for contractor drivers being established in a RSRO, as did Australian Fast Freight Pty Ltd and Mr Frank Black.

[214] The TWU tendered s.127 of the Industrial Relations Act 1996 (NSW) concerning the liability of a principal contractor for the remuneration payable to employees of a subcontractor in support of their proposed amendments to clause 8 of the draft RSRO.

[215] In our statement of 12 July 2013 we indicated that the President of the Tribunal would convene a conference of interested parties on the issue of rates of payment for the road transport drivers covered by the draft RSRO, but that we had prepared a basic draft provision on minimum rates of payment for contractor drivers.

[216] Given the differing views we have set out on the issue of work payments, we think that in the context of a clause concerning “work payments” the term “reasonable amount” is unhelpful. To define the term at this stage or indeed go further as proposed by the TWU, prior to the conference the President is to convene on the issue of rates of payment and associated issues and before all interested have had the opportunity to advance their views on those issues, does not seem appropriate.

[217] In the circumstances, we will delete the work payments clause at this stage. As a corollary, we will also delete the definition of “work” in clause 3 at this stage. That definition was only included in the draft RSRO because of the work payments clause contained in the draft RSRO. It is a concept better left to be developed as part of the future proceedings on the issue of rates of payment for road transport drivers and associated issues. We note, however, that before us there was considerable agreement between many as to what constitutes work.

9. Clothing provision or reimbursement

[218] Clause 9 of the draft RSRO which concerns clothing provision or reimbursement in respect of contractor drivers is as follows:

[219] Australian Fast Freight Pty Ltd and Wayne Lewis Transport Pty Ltd agreed with the inclusion of the clause in a RSRO.

[220] The ACCI, ABI, NSW Business Chamber and MBA sought as an alternative to the provision that a hirer be able to ensure the cost of purchasing the clothing is accounted for in any cost model used to determine the contractor driver’s remuneration. They proposed clause 9 of the draft RSRO be amended to the following in any RSRO:

[221] The TWU proposed that the clause be renamed “Reimbursement for reasonable business expenses” and the following subclause be added to it:

[222] The AIG submitted it was not unreasonable to expect a contractor driver to provide their own equipment and it may be a factor taken into account in their rate of payment. Further, the AIG submitted it was unrealistic to expect a hirer to meet the costs of purchasing or supplying generic safety/protective equipment or clothing to a contractor driver where the contractor driver is engaged for a short term or on an ad hoc basis or for multiple hirers. The AIG said it was essential that any RSRO not require a hirer to reimburse a contractor driver for the purchase of particular items unless the purchase has been authorised by the hirer in advance and the contractor driver has provided the hirer with a receipt confirming the purchase. The AIG submitted that subclause 9.3 of the draft RSRO is beyond jurisdiction as it imposes a requirement on a contractor driver. The AIG’s submission was supported, at least in part, by ALRTA, ATA NSW and Conplant Pty Ltd. The AIG opposed the TWU’s proposed addition to clause 9 of the draft RSRO.

[223] ANRA also opposed the TWU’s proposed addition to clause 9 of the draft RSRO on the basis that it duplicated other clauses in the draft RSRO and/or any RSRO should not impose an absolute obligation on retailer consignors or consignees to bear the cost of all business expenses.

[224] Business SA submitted that clause 9 of the draft RSRO imposes another cost on hirers and that to direct a hirer to provide or alternatively reimburse a contractor driver for the expense of special clothing such as uniforms, particularly when the clothing and equipment has the hirer’s logo, is problematic because it could blur the lines of whether an individual is an employee or a contractor.

[225] Linfox sought the deletion of clause 9 of the draft RSRO from any RSRO and submitted that the issue of clothing and reimbursement is best dealt with through work payments.

[226] Toll advised that in parts of its business, contractor drivers are charged a fixed weekly amount for a range of things, including the provision of uniforms and that this is permitted by the Victorian ODFC Act. They saw merit in the AIG position, but submitted that if the Tribunal adopts the approach to work payments advocated by Linfox they would support the Linfox position.

[227] We will delete the clothing provision or reimbursement clause at this stage. We consider that it is more appropriate for the Tribunal to consider such a provision, including the addition proposed by the TWU, as part of its future deliberations on the issue of rates of payment for road transport drivers and associated issues.

10. Payment time

[228] Clause 10 of the draft RSRO concerns payment time and is as follows:

[229] The TWU, Australian Fast Freight Pty Ltd and Coles did not seek any change to the clause.

[230] Others had concerns around the 14 day period in subclause 10.2 of the draft RSRO, the no deductions provision in subclause 10.4 of the draft RSRO and potential disputes over the payment time provision.

[231] ALRTA and Conplant Pty Ltd proposed a payment period not exceeding 30 days because they consider 14 days is unrealistic. The AIG also proposed a minimum payment term of 30 days if a payment term is to be adopted in a RSRO, consistent with the Owner-Driver (Contracts and Disputes) Act 2007 (WA) (Western Australian ODCD Act), and transitional arrangements to facilitate the introduction of such a provision. LRTA of WA made similar submissions. NGINA submitted that payment terms are commonly 30 days. VicForests proposed payment be within 30 days of the end of the month on which the road transport service is provided by the contractor driver. The Victorian Department of Treasury and Finance pointed to the provisions in the Owner Drivers and Forestry Contractors Code of Practice (ODFC Code) under the Victorian ODFC Act indicating that a contract term for payment after more than 30 days is likely to be unjust. They also submitted that the Victorian ODFC Act allows deductions in certain limited circumstances. We note that ss.23 and 24 of the Victorian ODFC Act are as follows:

[232] The AIG also submitted that subclause 10.3 of the draft RSRO is redundant and should be deleted or be subject to subclause 10.2 of the draft RSRO. Further, they sought the deletion of subclause 10.4 of the draft RSRO on the basis that such deductions are not uncommon for fuel, for parts and equipment which are provided by the hirer to the contractor driver at discounted prices and for damage to equipment or goods for which a contractor driver is culpable.

[233] The ACCI, ABI, NSW Business Chamber and MBA sought that clause 10 of the draft RSRO be amended to the following:

[234] Linfox proposed that clause 10 of the draft RSRO be amended to the following:

[235] Linfox maintained that those with current contractual arrangements providing for a payment period of greater than 14 days should be able to have those arrangements remain in place for accounting reasons provided the period in the contract is not greater than 30 days. Further, they said their other changes will allow a hirer to withhold payment in circumstances where a dispute arises around a contractor driver’s entitlement to payment and avoid a hirer having to recover funds paid by way of litigation.

[236] Intercapital Trucking Pty Ltd proposed that the clause be amended to the following:

[237] Toll proposed that subclause 10.1 of the draft RSRO should be subject to a requirement that the contractor driver has completed the services required to be performed under the relevant road transport contract, with disputed amounts being dealt with under Part 4 of the RSR Act. Toll also submitted that subclause 10.4 of the draft RSRO should be amended by adding the word “unauthorised” before the word “deductions”, as it is authorised by its contractor drivers to make certain deductions, such as for income protection insurance premiums. Toll agreed with the Linfox proposed amendments to clause 10 of the draft RSRO.

[238] ARTIO also referred to the use of Part 4 of the RSR Act for resolution of disputed payment amounts. They submitted that following the resolution of the disputed amount any RSRO should compel payment within 72 hours.

[239] The Waste Contractors & Recyclers Association of NSW sought that subclause 10.1 of the draft RSRO be amended to add the phrase “, unless Commonwealth, State or Territory legislation specifically provides otherwise” and subclause 10.4 of the draft RSRO be amended to add the phrase “, unless specifically permitted by Commonwealth, State or Territory legislation.” They submitted that those clauses in the draft RSRO appear to be in conflict with NSW workers’ compensation, payroll tax and industrial relations legislation. Such legislation is to the effect that a principal contractor is liable to pay a subcontractor’s liabilities for workers’ compensation, payroll tax and the remuneration of employees of the subcontractor unless the principal contractor obtains a statement from the subcontractor that the liabilities have been met. Further, a principal contractor may withhold any payment due to a subcontractor under the contract until the subcontractor gives the written statement.

[240] South East Fibre Exports Pty Ltd submitted that the clause should not be included in a RSRO and that it pays its contractor drivers within 7 working days of the end of the month. Alternatively, they submitted that subclause 10.4 in the draft RSRO should allow deductions from taxation invoices by agreement. They allow their contractor drivers to book fuel from their refuelling outlet and deduct fuel, tyres, oil and other consumables from their due payments to the contractor drivers.

[241] VAFI opposed the clause.

[242] The abovementioned NatRoad survey of its members was said to show that about 82% had 30 day payment terms, but only some 45% received payment, on average, in 30 days and some 29% received payment in later than 90 days.

[243] There is considerable support for a payment time clause, albeit one with amendments.

[244] We are persuaded we should amend subclause 10.1 in the draft RSRO to require payment by a hirer to a contractor driver within 30, rather than 14, days of receipt by the hirer of a valid taxation invoice. Within 30 days reflects the Western Australian ODCD Act and is consistent with the ODFC Code under the Victorian ODFC Act.

[245] We will also amend the payment time clause to make clear that payment within 30 days is required in respect of undisputed amounts in a valid taxation invoice. At this stage we will leave the basis on which disputed amounts are paid as part of the resolution of the dispute. As a corollary of that we will also delete subclause 10.3 of the draft RSRO.

[246] Further, we are satisfied we should replace subclause 10.4 in the draft RSRO which prohibited deductions by a hirer from the amount set out in a valid taxation invoice with several subclauses. Those subclauses provide that a hirer must not make a contractor driver pay any amount, or make deductions from an amount payable to the contractor driver, unless certain criteria are met, including that the payments or deductions are permitted by Commonwealth, State or Territory legislation as in force on the date of the publication of any RSRO. Such subclauses recognise existing provisions in such legislation and in the Victorian ODFC Act.

[247] These considerations result in the following “Payment time” clause:

11. Safe driving plans

[248] Clause 11 of the draft RSRO concerns safe driving plans and is as follows:

[249] “Long distance travel” is defined in the draft RSRO as:

[250] Linfox submitted that safe driving plans are fundamental to ensuring the safety of the community and improving safety in the road transport industry. Linfox proposed that the definition of “long distance travel” be amended as follows to avoid “long distance travel” covering a high volume of short term trips:

[251] Linfox otherwise supported the safe driving plans clause in the draft RSRO.

[252] Wayne Lewis Transport Pty Ltd also supported clause 11 in the draft RSRO.

[253] VicForests questioned the intrusive nature of clause 11 in the draft RSRO and its potential overlap with other existing requirements. Nonetheless, they proposed an additional clause be added to clause 11 of the draft RSRO as follows:

[254] The TWU referred to its definition of the inter and intra state long distance sectors as relevant to safe driving plans in a RSRO. That definition as contained in its proposed RSRO of 4 March 2013 is as follows:

[255] The TWU proposed additions to the safe driving plans clause in the draft RSRO as follows:

[256] They proposed such additions on the basis that they consider real safety improvements can only be made if each link in the contracting chain has the responsibility to ensure the safe performance of the work. Further, they submitted copies of safe driving plans must also be required by participants at the top of the supply chain to make them accountable for ensuring all driving is done in a safe manner.

[257] In comments in reply, the TWU supported the definition of “long distance travel” in the draft RSRO. They also noted that key provisions in its proposed RSROs of 4 March 2013 in relation to consignors, consignees and intermediaries included ensuring that:

[258] Further, they indicated that while they did not object to the use of electronic devices to comply with a safe driving plan obligation, any electronic method must comply with the requirements of a RSRO.

[259] ANRA proposed that “long distance travel” should be defined in a manner consistent with the definition of a “long distance operation” in the Road Transport (Long Distance Operations) Award 2010.

[260] ANRA also proposed an amendment to subclause 11.5 in the draft RSRO to the following:

[261] They sought such an amendment on the basis that there should be a right to be consulted rather than an obligation to consult and also on the basis of practicality and clarity, particularly when the supply chain participant is a consignee. In comments in reply, however, ANRA supported Coles’ approach in respect of subclause 11.5 as set out below. Further, ANRA raised issues about the practicality of all relevant participants in the supply chain actually checking odometer readings. ANRA supported safe driving plans being able to be prepared and held in electronic format.

[262] ANRA opposed the TWU’s proposed subclauses X.B and X.D above on the basis they would impose an unnecessarily broad obligation and significant burden on retailers.

[263] Coles proposed that “long distance travel” be defined in a manner consistent with the definition for “long distance operation” in the Road Transport (Long Distance Operations) Award 2010 or, alternatively, as follows:

[264] Coles also proposed that subclauses 11.4 and 11.5 in the draft RSRO be replaced with the following:

and

[265] They submitted that placing the onus on consignors and consignees is clearer and more enforceable and better balances and acknowledges the existing regulatory onus.

[266] With respect to subclauses 11.6 and 11.8(k) of the draft RSRO they submitted that it will rarely be practical for participants in the supply chain to witness a road transport driver’s completion of the times and odometer readings.

[267] The evidence of Mr Wickham for Coles in respect of clauses 11.4 to 11.6 of the draft RSRO was as follows:

[268] Mr David Vaughan, National Compliance Manager for Coles, gave evidence that Coles has an inbound freight management system (IFS). He said:

[269] The driver declaration form is countersigned by a Coles’ representative.

[270] Mr Vaughan also gave evidence about the chain of responsibility training Coles provides. The “Receiving” training module delivered to all Coles’ receiving team members includes the following:

[271] Mr Vaughan’s evidence was that Coles undertakes annual audits of its contract partners to ensure compliance with the Australian Logistics Council Retail Logistics Supply Chain Code of Practice Responsibility Matrix (ALC RLSC Code) covering matters such as the contract partners’ safe driving plans, training for those they employ or engage, and drug and alcohol policy.

[272] Toll supported the imposition of an obligation for safe driving plans for long distance work but questioned the need for a paper based approach suggested by subclause 11.2 of the draft RSRO, given the increasing use of technology in the road transport industry. They also submitted subclauses 11.4 to 11.5 of the draft RSRO would be difficult to comply with in practice and subclauses 11.6 and 11.8(k) of the draft RSRO are unnecessary given work diary requirements. They did not support subclause 11.8 of the draft RSRO as it would require a revision of all their safe driving plans with no demonstrable benefit. They opposed the TWU’s proposed additional subclauses X.B and X.D. They also submitted any provision for safe driving plans should allow for a significant transition period.

[273] In terms of amendments to clause 11 of the draft RSRO, Toll proposed that:

[274] The ACCI, ABI, NSW Business Chamber and MBA questioned the need for a safe driving plan given existing law and technology. However, they submitted that if one is to operate it should be a “long distance journey management plan” as follows:

[275] Their proposed Attachment A is as follows:

[276] VAFI and South East Fibre Exports Pty Ltd sought that clause 11 of the draft RSRO only apply to direct employers and hirers of road transport drivers and odometer readings only be checked by them before and after deliveries.

[277] ARTIO supported the safe driving plan concept but submitted those with existing safe driving plans that comply with clause 11 of the draft RSRO should not have to alter their format. They also suggested that producing, auditing and storing safe driving plans may be too administratively burdensome and costly, and the use of technology should be recognised.

[278] Intercapital Trucking Pty Ltd and Fast Freight Pty Ltd considered some parts of clause 11 were contained in work diaries required by the Heavy Vehicle National Law.

[279] The AIG submitted that clause 11 of the draft RSRO overlaps with existing law, contains provisions inconsistent with some employers or hirers existing safe driving plans, fails to recognise existing technology, assumes an employer or hirer will know all of the locations a driver will attend, is unrealistic and burdensome, requires a road transport driver’s co-operation and breaches confidentiality. However, they said the mandatory instruction in subclause 11.8(j) of the draft RSRO should be limited to “include instruction that a Road Transport Driver must not drive whilst fatigued”. Further, they agreed with the provisions of the TWU’s proposed additional subclause X.A if the remaining provisions regarding safe driving plans are to be included in a RSRO. They opposed the TWU’s proposed additional subclause X.B on the basis of practicality and given the role of the Fair Work Ombudsman. They also opposed the TWU’s proposed subclause X.D on the basis of administrative burden and confidentiality concerns.

[280] Clause 11 in the draft RSRO was opposed for similar reasons to those submitted by the AIG, by AFEI, ALRTA, ATA NSW, Metro Freight Lines Pty Ltd, The South Australian Road Transport Association Incorporated (SARTA), LRTA of WA, Conplant Pty Ltd and Fellows (Australia) Pty Limited.

[281] NatRoad, NGINA and the NSW Small Business Commissioner opposed the application of clause 11 to small businesses. The previously mentioned NatRoad survey of its members was said to show that about 55% had safe driving plans for all long distance trips.

[282] The ALC RLSC Code requires a carrier to put in place a driver fatigue management plan/strategy, consignors not to require drivers to undermine trip plans and consignees to report any non-conformance with the safe driving plan to the consignor and carrier.

[283] As previously indicated, the decision of the Full Bench of the Industrial Relations Commission of New South Wales in the NSW Mutual Responsibility case provided for safe driving plans for those operating wholly or partly in New South Wales.

[284] The resultant NSW award and NSW contract determination subsequently established safe driving plan obligations. The safe driving plan obligations in these two industrial instruments are similar. That contained in the NSW contract determination is as follows:

[285] In the NSW contract determination a:

[286] Annexure A to the NSW contract determination is as follows:

Annexure A - Safe Driving Plan (Example)

Operator/Consignor Identification

Delivery Period and PUD Details

Remuneration

 

 

How Work is Remunerated having regard to

 

 

health and safety

 

 

Kilometre rates for driving and hourly rate for

 

 

loading/unloading/queuing time

 

Consignor:

XYZ

Pick Up Location:

Remuneration Method and Rate:

 

<Address>

Toll Minchinbury

Transport Industry (State) Award - Grade 7

 

 

Distribution Centre

Long Distance Rates (29.54 cents per km) plus

 

 

 

Hourly rate of ($17.25 base) for all time

 

 

 

loading/unloading/queuing.

Transport

Toll

Delivery Location:

Remuneration Monitoring/Measuring Systems:

Operator:

<Address>

Wagga Wagga XYZ’s Store

GPS, On Board Computer, Auditing cross checks

 

 

 

of pay, log book, timesheet, consignment note,

 

 

 

GPS & Engine Records, SDP

 

 

Period:

Means to Limit Work Hours and Work Contact

 

 

 

with manager (<insert phone number>) for

 

 

12.30 pm Delivery Window

reporting unexpected delays and rescheduling

 

 

 

journey if necessary

Planned Application of Hours

 

Planned Total Trip Time: 11.75 hours

 

7 am - 15 minute pre-trip inspection

 

7.15 am to 12.00 pm (Minchinbury - Wagga Wagga) 4.45 hrs driving

 

30 minutes break prior to unloading

 

12.30-1.30 pm loading unloading

 

1.30 pm to 4.15 pm (Wagga Wagga/Marulan)

 

30 minutes Marulan (4.45pm)

 

4.45 - 6.45 Marulan - Minchinbury 2 hours

 

Confirmation that driver has been inducted and trained in OHS policy

 

Confirmation that driver has been inducted and trained in company D&A policy

 

[287] The Toll Group and Transport Workers Union Fair Work Agreement 2011-2013 64 (Toll Agreement) includes a safe system of work clause recognising the need to plan for safe driving. Clause 36 of that Toll Agreement is as follows:

[288] The Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011 65 (Linfox Agreement) details the Linfox Driver Fatigue Safe Driving Plan as follows:

[289] The Schedule B mentioned in the Linfox Agreement is as follows:

[290] Where it is appropriate, we see no difficulty in combining a safe driving plan with a work diary required under other law, with the aim of administrative efficiency. However, a work diary and/or a GPS-based system monitoring matters on a real-time basis do not replace a safe driving plan. A safe driving plan is designed to be proactive, requiring an employer or hirer to give forethought to whether the road transport service to be performed by the road transport driver is capable of being performed legally and safely. A real time monitoring system is likely to be reactive, necessitating action when the road transport driver has performed or is about to perform the road transport service illegally or unsafely. This is recognised in the Safe Driving Plan form in the Linfox Agreement.

[291] That is not to say that written safe driving plans must be paper based. We recognise technology is playing an increasingly important role in the road transport industry and can contribute much to improvements in the industry. The inclusion of an option to use an electronic work diary under the Heavy Vehicle National Law is an important example. As a result, we will amend the safe driving plans clause contained in the draft RSRO to make it clear that a safe driving plan or part of it can be in an electronic format. Where an electronic format is used any signature requirements of the safe driving plan could be met by the electronic method identifying the person whose signature is required and their intention that they be taken as having signed.

[292] Further, we have been persuaded we should provide for an employer or hirer to use electronic means to monitor on a real time basis matters that a safe driving plan would otherwise provide for a road transport driver to record. This reflects the proposal of the ACCI, ABI, NSW Business Chamber and MBA without losing the proactive element of a safe driving plan.

[293] We have decided not to publish a pro-forma safe driving plan. That would pre-empt the desirable combination of the safe driving plan and work diary. Further, like ARTIO and VicForests, we recognise the requirements in a safe driving plan clause may be achieved in a variety of ways.

[294] We will amend subclause 11.1 of the safe driving plans clause in the draft RSRO so that the obligation applies where a road transport driver is to undertake a long distance operation using a motor vehicle with a gross vehicle mass (GVM) of more than 4.5 tonnes. This recognises the safe driving plans provision specified in the NSW industrial instruments and has regard to the general coverage of the Heavy Vehicle National Law. Further, we are satisfied that “Long distance operation” and “gross vehicle mass” should be defined in clause 3 in the same terms as they are in the Road Transport (Long Distance Operations) Award 2010.

[295] Having regard to the material before us, we have also been persuaded we should amend the matters that must be included in a safe driving plan to require it to also provide for the road transport driver to record details about the vehicles used in the performance of the relevant road transport service and the type of Fatigue Risk Management System they are operating under and to declare pre-departure on various issues. In addition, we have been persuaded we should amend the matters so as to identify potential risks and means of lessening them and to include instructions about how the road transport driver is to inform their employer or hirer of circumstances making compliance with the plan impracticable. As a result, the safe driving plans clause would simply detail the collection of other matters the ACCI, ABI, NSW Business Chamber, MBA and Linfox included in their “safe driving plan” forms and that are in the NSW contract determination.

[296] We will delete some matters which are now covered by the contracts clauses and the need for a participant in the supply chain to witness vehicle odometer readings. We will also provide that a participant in the supply chain only needs to witness a safe driving plan where practicable and where electronic means are not being used to monitor the matters on a real time basis. We note that Coles’ representatives currently sign driver declaration forms, as well as make a number of other written records in respect of road transport drivers who enter their sites.

[297] We will alter the record keeping requirement in respect of safe driving plans to seven years having regard to Part 7 of the RSR Regulation.

[298] This results in the following “Safe driving plans” clause:

12. Training

[299] Clause 12 of the draft RSRO concerns training and is as follows:

[300] The clause in at least its current form was specifically supported by Australian Fast Freight Pty Ltd, Wayne Lewis Transport Pty Ltd and JKR Training for Business Pty Ltd. Others also supported a training clause for a RSRO but suggested amendments to that in the draft RSRO.

[301] The TWU submitted that basic training in workplace health and safety is required due to widespread ignorance of workplace health and safety obligations. They also proposed that subclause 12.2 in the draft RSRO be amended to the following to provide for consultation with road transport drivers on the training provider:

[302] They also proposed a new subclause regarding a training levy be added as follows:

[303] The TWU proposal for a training levy was specifically opposed by Coles, ANRA and the AIG.

[304] Toll submitted that clause 12 of the draft RSRO should not apply in respect of ad hoc or itinerant contractor drivers and that any expenses incurred by the road transport driver in undertaking the training should first be approved by the employer or hirer.

[305] As a result, Toll proposed the clause in the draft RSRO be amended by adding the following clause:

[306] They also proposed that subclause 12.7 in the draft RSRO be amended by adding to the end of it the phrase “subject to the road transport driver having obtained the prior consent of the employer or hirer to incurring the expenses.”

[307] Toll also saw merit in the Linfox proposed subclauses 12.1 to 12.3 below.

[308] Linfox proposed the clause be amended to the following:

[309] They submitted the training module cited in subclause 12.1 of the draft RSRO is too generic for the needs of road transport drivers. Further, they submitted it is unnecessary to require employers or hirers to source training providers externally where an employer or hirer is sophisticated enough to facilitate training within its own organisation.

[310] The ACCI, ABI, NSW Business Chamber and MBA expressed some similar concerns to those expressed by AFEI and others as set out below about the training clause in the draft RSRO. Nonetheless, the ACCI, ABI, NSW Business Chamber and MBA proposed that the clause be amended to the following, subject to such a clause being within the Tribunal’s jurisdiction:

[311] The AIG expressed some similar concerns to those expressed by AFEI and others as set out below. However, the AIG submitted that if a RSRO includes a provision regarding training then the clause should be amended as follows:

[312] Nonetheless, they submitted that many employers or hirers already provide training which is arguably better than that which may be offered by a registered training organisation and which may include training more directly tailored to an employer’s or hirer’s specific operations.

[313] The AIG opposed the TWU’s changes to subclause 12.2 of the draft RSRO on the basis it would be unrealistic to expect an employer or hirer to consult with each driver regarding the choice of training provider and the Tribunal would not have the power to make a decision regarding a dispute over the training provider.

[314] The AIG also submitted the references to “existing road transport driver” and “newly employed or engaged road transport driver” in subclause 12.3 of the draft RSRO should be defined so that the order is simple and easy to understand, particularly in circumstances where a contractor driver is only engaged to perform separate discrete road transport contracts, where there is no on-going contractual relationship between the hirer and contractor driver.

[315] The AIG further proposed that subclause 12.5 in the draft RSRO be deleted as the term “without loss of pay” is confusing and difficult to quantify and should not include compensation associated with the actual performance of work such as disability allowances. Further, they submitted that the context of subclause 12.5 is a matter that should be addressed through the award system if there is any contention that the relevant modern awards are not providing a fair and relevant safety net. Alternatively, they proposed that subclause 12.5 of the draft RSRO be amended to the following:

[316] The AIG went on to express concern that subclause 12.6 in the draft RSRO may result in a hirer paying a contractor driver more than would be required to be paid to an employee driver, particularly when the contractor driver could engage a replacement driver for their vehicle whilst they undertook their training.

[317] In respect of subclause 12.7 of the draft RSRO, the AIG submitted that it needs to be clarified that the mentioned expenses do not extend to costs associated with travelling to training and that to be reimbursed for expenses a road transport driver should first have to obtain authorisation from their employer or hirer to incur the expenses.

[318] Finally, the AIG submitted a new subclause 12.8 should be included to avoid unnecessary repeat training, as follows:

[319] ALRTA suggested any training requirement in a RSRO recognise previous training undertaken as part of approved accreditation schemes, be limited to “train the trainer” and only apply to new entrants to the industry.

[320] The training clause in the draft RSRO is opposed by AFEI, ARTIO, ATA NSW, Business SA, Conplant Pty Ltd, NatRoad, NGINA and SARTA. Their opposition was based on some or all of the following:

[321] The NatRoad survey of its members was said to show about 70% were in a position where all their road transport drivers receive approved work health and safety training and some 85% pay for all road transport driver training.

[322] Ms Jody Freestone, General Manger of Freestone’s Transport Pty Ltd (Freestone’s), gave evidence that Freestone’s has 60 heavy vehicles and 80 employees and its predominant freight task is long distance interstate transport, carrying out some 10,000 interstate loads per annum. She testified that Freestone’s currently undertakes:

[323] Further, she gave evidence that Freestone’s training is performed by their driver trainer who is familiar with their business and policies and knowledgeable about the industry and therefore provides training which is directly relevant and delivered by an informed person.

[324] Ms Freestone did not see the value, additional benefit or significant positive safety outcomes resulting from mandatory certification in a generic health and safety module given by a registered training provider. She perceived this as creating another financial burden to already suffering transport fleets.

[325] She said she had examined the module contents of TLIF1001A and noted it had no components regarding on road safety or driver skills. She did not understand why an outside training provider is best placed to educate employees on topics that seem to be very specific to Freestone’s and topics already covered by their induction process.

[326] Ms Freestone estimated that the costs of having to comply with the training provision in a RSRO would be significant. She said that, while the Australian Government website states the cost is generally $90, in her experience such courses cost in excess of $200. Even at $90 for 80 drivers plus wages the cost would be approximately $20,000 plus lost productivity or revenue that the driver would have derived for the business. She found it concerning that the additional expense for new drivers could be wasted if the driver does not stay with the business.

[327] The enterprise agreements for Linfox and Toll also provide for occupational health and safety training and/or “blue card” training for their employee road transport drivers.

[328] Further, the ALC RLSC Code requires a carrier to ensure drivers are suitably trained in the equipment to be used in the loading, transporting and unloading of consignments.

[329] The material before us recognises the importance of health and safety training relevant to a road transport driver’s work. The nature of that necessary training will vary depending on the work performed, so the National Competency Standard (module) TLIF1001A may not always be sufficient. As a result, we have been persuaded we should amend the work health and safety training obligation in subclause 12.1 to allow an employer or hirer flexibility as to the nature of the training that will meet the obligation and by whom it is provided. We also think it important to recognise different employers and hirers have varying capacities to meet the work health and safety training obligation. As a corollary, we will delete subclauses 12.2 and 12.3 of the draft RSRO. However, given the nature of the training obligation, we are not persuaded the obligation should not apply in respect of all road transport drivers or that the obligation should be further delayed.

[330] These amendments are generally consistent with the proposals of the ACCI, ABI, NSW Business Chamber, MBA, the AIG, Toll, Linfox, ALRTA and the evidence of Ms Freestone. They also recognise the concerns of others including AFEI, ARTIO, ATA NSW, Business SA, NatRoad and SARTA.

[331] We have also decided we should delete subclause 12.4 concerning training in a drug and alcohol policy and deal with that matter when considering the drug and alcohol policy clause in the draft RSRO.

[332] Further, we will delete subclauses 12.5 and 12.6 of the draft RSRO concerning payment for time spent in training. We think it preferable to leave this issue to the future consideration of the issue of rates of payment for road transport drivers and associated issues, bearing in mind there are some extant industrial instrument provisions that would apply to such training.

[333] We are satisfied we should amend subclause 12.7 of the draft RSRO to clarify that the reimbursement of expenses is in respect of training undertaken whilst employed or engaged by the employer or hirer and is subject to the prior consent of the employer or hirer having been obtained and the employer or hirer not unreasonably withholding such consent. This is consistent with the suggestions of the AIG and Toll.

[334] We have not been persuaded at this stage that the training levy clause sought by the TWU is necessary or appropriate.

[335] These considerations result in the following “Training” clause:

13. Drug and alcohol policy

[336] Clause 13 of the draft RSRO concerns a drug and alcohol policy and is as follows:

[337] The terms of the clause in the draft RSRO are supported by Australian Fast Freight Pty Ltd, Wayne Lewis Transport Pty Ltd and JKR Training for Business Pty Ltd.

[338] Toll, while supporting the clause, suggested that subclause 13.3 in the draft RSRO be amended to the following:

[339] Toll opposed the TWU’s proposed subclause X.1 as set out below. They also opposed the TWU’s proposed subclause X.3 on the basis of it potentially creating confusion and disputation and subclause X.4 on the basis that it is inappropriate and unnecessary.

[340] The TWU, while supporting the clause, suggested the following additional subclauses and amendments:

[341] They considered the basic safety mechanism of a drug and alcohol policy should be made operational throughout the road transport industry, given the ample evidence of significant illicit drug use in the industry to combat fatigue. They emphasised their proposed RSRO of 4 March 2013 provided for differential requirements for compliance and was framed to provide a clear and appropriate response recognising logistical concerns. It provided that:

[342] ANRA submitted the TWU’s proposed subclause X.1 is unnecessary and inappropriate. They supported the retention of subclause 13.3 in the draft RSRO, but submitted that should the Tribunal be minded to impose an obligation similar to that set out in Toll’s amendment to subclause 13.3, then the obligation to take “reasonable steps” should be clarified to make it clear that the obligation will be fulfilled by the participant in the supply chain conducting a systems based audit of any other participant with whom it has entered into a contract for the transport of freight. Coles particularly opposed the TWU’s proposed subclause X.1 and parts of the TWU’s proposed subclause X.3.

[343] ATA NSW suggested changes to the terminology used in the clause as follows:

[344] They also proposed the deletion of subclause 13.3 of the draft RSRO.

[345] The ACCI, ABI, NSW Business Chamber and MBA submitted that if a drug and alcohol policy clause is within the Tribunal’s jurisdiction, then subclause 13.2 in the draft RSRO should be made discretionary and subclause 13.3 of the draft RSRO should be deleted. They also proposed that subclause 13.1 of the RSRO be amended to the following:

[346] They submitted the clause in the draft RSRO may be beyond the expertise or budget of a small business operator.

[347] NGINA supported the merits of the clause but expressed concern about the administrative and additional cost burden of random testing for small businesses.

[348] Conplant Pty Ltd was concerned about the prescriptive approach in the clause. In particular, they were concerned about the mandatory testing in subclause 13.2(e)(i) of the draft RSRO and pointed out their only option was to discontinue the engagement of a contractor driver who returned a positive drug and/or alcohol reading.

[349] The AIG expressed concern about the cost and administrative burden of implementing the clause and road transport driver compliance with a drug and alcohol policy based on the clause. They took particular objection to the validity of subclause 13.3.

[350] They also objected to the TWU’s proposed subclauses X.1 and X.3 on the basis of them being unnecessary and inappropriate or unclear. With respect to the TWU’s proposed subclause X.4, they suggested that it is doubtful the TWU would have the resources to be able to comply with the clause in a timely manner.

[351] Linfox opposed the TWU’s proposed amendments to clause 13 of the draft RSRO and supported the drug and alcohol policy clause in the draft RSRO.

[352] ALRTA, while generally supportive of a requirement for employers and hirers to have a drug and alcohol policy, pointed to existing legislation prohibiting drug and alcohol consumption when operating a heavy vehicle.

[353] Similarly, Business SA while supportive of the intent of the clause questioned its need given many employers and hirers already have drug and alcohol policies in place.

[354] AFEI opposed the clause on the basis of it being unrelated to safety risk and its additional cost.

[355] The NatRoad survey of its members was said to show that about 82% have a written drug and alcohol policy.

[356] The inquiry by the House of Representatives Standing Committee on Communication, Transport and Arts into managing fatigue in transport entitled Beyond the Midnight Oil: An Inquiry into Managing Fatigue in Transport 67 recommended the following in respect of drugs in the road transport industry:

[357] The ALC RLSC Code provides that a carrier should have a drug and alcohol policy which includes random testing, a consignor must have a drug and alcohol policy that addresses the consumption, possession, use and supply of drugs within the workplace and a consignee is to notify the carrier and consignor if a driver appears to be affected by drugs and/or alcohol.

[358] Enterprise agreements for Linfox and Toll provide for drug and alcohol procedure training and drug and alcohol testing for their employee road transport drivers in accordance with their drug and alcohol policy or procedures. Further, Linfox has a drug and alcohol policy providing for random and causal drug and alcohol testing of its contractor drivers.

[359] The drug and alcohol policy clause arising from the NSW Mutual Responsibility case and contained in the NSW state award and NSW contract determination are similar. That in the NSW contract determination is as follows:

[360] We have been persuaded we should amend the clause in the draft RSRO to require the employer or hirer to consult with their road transport drivers so far as is reasonably practicable in preparing the drug and alcohol policy, to require an employer or hirer to investigate and respond to notifications about drug and alcohol dependency and abuse and to specify the drug and blood alcohol content levels that will constitute a breach of the policy.

[361] We are also satisfied we should amend the clause in the draft RSRO to refer to mandatory drug and blood alcohol content testing in accordance with the Australian standards and to specify the procedure to apply when a result in breach of the policy is recorded and verified from a mandatory test. However, we will not specify when mandatory blood and alcohol content testing is to occur. Employers or hirers may be guided by at least the principles in the NSW contract determination in this respect. It states that the drug and alcohol policy developed and introduced is to be consistent with the principle that drug and alcohol testing is carried out in a way which:

[362] We will amend subclause 13.2(a) of the draft RSRO regarding training in the drug and alcohol policy, and include a provision for reimbursement of a road transport driver’s expenses in respect of such training, consistent with the changes made to the training clause in the draft RSRO. We will also delete subclause 13.3 in the draft RSRO having regard to clause 8 “Other contracts”.

[363] In our view these changes appropriately deal with the suggested amendments to the clause in the draft RSRO.

[364] This results in the following “Drug and alcohol policy” clause:

14. Other claims

[365] The TWU also sought clauses imposing further requirements on participants in the supply chain regarding safe work and records retention.

[366] Other parties also sought various other clauses.

[367] We are not persuaded there is a sound basis for these other clauses at this stage.

[368] However, we reiterate the issue of rates of payment for road transport drivers and associated issues is to be the subject of future proceedings before the Tribunal.

[369] We next consider the Tribunal’s jurisdiction to make a RSRO.

Jurisdiction

[370] The object of the RSR Act is set out in s.3 as follows:

[371] Section 19(1) of the RSR Act provides that the “Tribunal may make a road safety remuneration order under this Part consistent with the object of this Act.” A note to s.19(1) states that s.27 provides for what a RSRO may deal with.

[372] Section 27 of the RSR Act is as follows:

[373] AFEI submitted that the Tribunal lacks jurisdiction to make a RSRO.

[374] The AIG submitted the Tribunal lacks jurisdiction to include the whistleblower protection and drug and alcohol policy clauses contained in the draft RSRO in a RSRO and elements of the safe driving plan and training clauses contained in the draft RSRO in a RSRO.

[375] The ACCI, ABI, NSW Business Chamber and MBA also submitted the Tribunal lacks jurisdiction to include the safe driving plan, training and drug and alcohol policy clauses contained in the draft RSRO in a RSRO and elements of the contracts clause contained in the draft RSRO in a RSRO.

[376] Further, Business SA submitted the Tribunal lacks jurisdiction to include the dispute resolution and whistleblower protection clauses contained in the draft RSRO in a RSRO.

[377] We are not persuaded there is any jurisdictional impediment to the Tribunal making a RSRO or one containing the terms of the clauses remaining from our earlier consideration of the clauses in the draft RSRO (the remaining clauses). We are satisfied we have jurisdiction to make a RSRO and one in the terms of the remaining clauses.

[378] The remaining clauses only impose requirements on an employer or hirer of a road transport driver to whom the clauses apply and a participant in the supply chain in relation to such a road transport driver. Although, this is not to say such requirements could not be conditional. A road transport driver to whom the remaining clauses apply is within the categories of road transport driver covered by the first annual work program and the applications for RSROs before us. The remaining clauses are within the provisions covered in the applications for RSROs before us and the draft RSRO.

[379] With respect to the subject matter of, or part of, the remaining clauses, the object of the RSR Act, which is referred to in s.19(1) of the RSR Act regarding the Tribunal’s power to make a RSRO, is “to promote safety and fairness in the road transport industry” 69 and to do that by a variety of means. Those means include “developing and applying reasonable and enforceable standards throughout the road transport industry supply chain to ensure the safety of road transport drivers”70 and “ensuring that hirers of road transport drivers and participants in the supply chain take responsibility for implementing and maintaining those standards”,71 as well as remuneration-related means.

[380] Further, s.27 of the RSR Act concerns what a RSRO may deal with. Section 27(1) provides that the Tribunal may make “any provision in the order that the Tribunal considers appropriate in relation to remuneration and related conditions for road transport drivers”. 72 [Underlining added]

[381] As we have set out, s.27(2) of the RSR Act provides that without limiting s.27(1), “the Tribunal may make provision in the [RSRO] in relation to any of the following:

[382] The phrase “in relation to” has been interpreted as requiring “no more than a relationship, whether direct or indirect, between two subject matters”, subject to any contrary indication derived from its context or drafting history. 73

[383] The word “remuneration” is defined in s.4 of the RSR Act as follows:

[384] The term “related conditions” is defined in s.4 of the RSR Act as follows:

[385] Moreover, a grant of legislative power necessarily includes within it “every power and every control the denial of which would render the grant itself ineffective”. 74

[386] The breadth of these provisions and the definitions of the terms and phrases in them indicate the Tribunal’s jurisdiction extends to at least the remaining clauses.

[387] The Explanatory Memorandum to the Road Safety Remuneration Bill 2011 (RSR Bill) supports this conclusion.

[388] In respect of clause 3 of the RSR Bill, the Explanatory Memorandum states:

[389] In respect of clause 27 of the RSR Bill, the Explanatory Memorandum states:

[390] The material before us indicates remuneration related matters contribute to the work practices of road transport drivers.

[391] Inadequate rates of payment pressure road transport drivers to perform more road transport services to supplement their earnings and to speed illegally, exceed working hours limits and/or not take required rest breaks to be able to do so, and/or to perform the extra road transport services while fatigued or under the influence of drugs to combat fatigue.

[392] Various forms of payment by result, such as kilometre rates and trip payments, for the road transport service provided by a road transport driver are an incentive for the road transport driver to speed illegally, exceed working hours limits and/or not take required rest breaks in order to provide the road transport service more quickly so that they can perform other road transport services for payment.

[393] Lengthy delays in payment to contractor drivers, which places pressure on the cash flow they need, can result in road transport services being performed in inappropriately maintained vehicles and contractor drivers speeding illegally, exceeding working hours limits and/or not taking required rest breaks so that they can perform additional road transport services to make up the necessary cash flow. Such delays can also result in contractor drivers performing additional road transport services while fatigued or under the influence of drugs to combat fatigue so as to be able to make up the necessary cash flow.

[394] Speeding illegally, exceeding working hours limits, not taking required rest breaks, driving while fatigued or under the influence of drugs to combat fatigue and performing a road transport service in an inappropriately maintained vehicle are clearly unsafe work practices.

[395] The “Payment time” clause in the remaining clauses is about payment periods. It is also a provision in relation to conditions of engagement for contractor drivers and relates to ways of reducing the pressure lengthy delays in payments, being a remunerated-related pressure, places on cash flow and thereby contributes to unsafe work practices.

[396] The “Safe driving plans” clause is a provision in relation to conditions about minimum remuneration and other entitlements, or conditions about minimum rates of remuneration and conditions of engagement, for road transport drivers. It relates to ways of reducing or removing the remuneration-related incentive that various forms of payment by result and/or pressure that inadequate rates of payment contribute to unsafe work practices.

[397] In this regard, the “Safe driving plans” clause requires an employer or hirer to provide a written record of how the road transport service to be provided by a road transport driver as part of a long distance operation is to be performed in accordance with safe work practices. It also requires consideration of whether any unsafe work practices arose in the performance of the road transport service. Such a record and consideration will necessarily expose or highlight, for the employer or hirer, road transport driver and participant in the supply chain in relation to the road transport driver, the work and hours required of the road transport driver in the performance of the road transport service. This is information which is central to the provision of adequate rates of payment and/or suitable forms of payment for the road transport service and contracts relevant thereto. Thereby, it is information which is central to reducing or removing a remuneration-related incentive and/or pressure that contributes to unsafe work practices.

[398] The “Training” clause which requires an employer or hirer to take all reasonable measures to ensure a road transport driver employed or engaged by them is trained in work health and safety systems and procedures relevant to the road transport service to be provided by the road transport driver is a provision in relation to remuneration and related conditions for road transport drivers. It relates to conditions about minimum remuneration and other entitlements, or conditions about minimum rates of remuneration and conditions of engagement, for road transport drivers. It also relates to conditions for loading and unloading vehicles, load limits and matters of that kind. In this regard, the clause concerns training in work health and safety for the proper performance by the road transport driver of the road transport service to which the remuneration for the road transport service is attached. This includes health and safety training relating to the loading and unloading of vehicles, load limits and matters of that kind which are parts of the road transport service. The “Training” clause is also integral to the “Safe driving plans” clause, such training being necessary to the effective operation of the “Safe driving plans” clause and the road transport driver’s contribution to it.

[399] The associated reimbursement for expenses the road transport driver reasonably incurs in undertaking the work health and safety systems and procedures training whilst employed or engaged by the employer or hirer is a provision in relation to remuneration and related conditions for road transport drivers. It relates to conditions about minimum remuneration and other entitlements, or conditions about minimum rates of remuneration and conditions of engagement, for road transport drivers.

[400] The “Drug and alcohol policy” clause requiring an employer or hirer to prepare and implement a written drug and alcohol policy covering a road transport driver employed or engaged by them and to take all reasonable measures to ensure the road transport driver is trained in the policy is a provision in relation to conditions of engagement or other entitlements for road transport drivers which is integral to the “Training” clause. A drug and alcohol policy being a necessary part of work health and safety systems and procedures relevant to the road transport service to be provided by a road transport driver.

[401] The associated reimbursement for expenses the road transport driver reasonably incurs in undertaking drug and alcohol policy training whilst employed or engaged by the hirer is a provision in relation to remuneration and related conditions for road transport drivers. It relates to conditions about minimum remuneration and other entitlements, or conditions about minimum rates of remuneration and conditions of engagement, for road transport drivers.

[402] The “Written contracts for road transport drivers” clause requires that an employer or hirer provide a road transport driver, prior to their employment or engagement, with a written contract covering the employment or engagement of the road transport driver and setting out, amongst other things, the remuneration to be paid to the road transport driver. It is a provision in relation to remuneration and related conditions for road transport drivers. It relates to conditions about minimum remuneration and other entitlements, or conditions about minimum rates of remuneration and conditions of engagement, for road transport drivers.

[403] The “Other contracts” clause requires a participant in the supply chain in relation to a road transport driver to take all reasonable measures to ensure any contract it has with another participant in the supply chain contains provisions which are relevantly consistent with the requirements of a RSRO. It is a provision in relation to remuneration and related conditions for road transport drivers. It is a provision relating to conditions about minimum remuneration and other entitlements, or conditions about minimum rates of remuneration and conditions of engagement, for road transport drivers which is integral to the “Safe driving plans” and other remaining clauses. The content of contracts between participants in the supply chain being relevant to an employer’s or hirer’s capacity to provide adequate rates of remuneration and/or suitable forms of payment to a road transport driver and to comply with the other remaining clauses.

[404] The “Adverse conduct protection” clause provides that a participant in the supply chain in relation to a road transport driver must not take adverse conduct against the road transport driver because of matters to do with a workplace entitlement of the road transport driver. The clause provides protection to a road transport driver beyond the general protections provisions in Division 3 of Part 3-1 of the FW Act. It is a provision in relation to remuneration and related conditions for road transport drivers. It is a provision relating to conditions about minimum remuneration and other entitlements, or conditions about minimum rates of remuneration and conditions of engagement, for road transport drivers which is integral to the other remaining clauses. This is particularly so having regard to the material before us about the influence of various participants in the supply chain. The “Dispute resolution” clause, which merely reiterates the law, is similarly integral.

[405] We next deal with the matters the Tribunal is required to have regard to in deciding whether to make a RSRO, and then conclude.

Matters the Tribunal must have regard to in deciding whether to make a RSRO

[406] Section 20 of the RSR Act sets out matters the Tribunal must have regard to in deciding whether to make a RSRO as follows:

[407] The Road Safety Remuneration Regulation 2012 prescribes the following laws for the purposes of s.20(1)(g) of the RSR Act:

[408] The inquiries and evidence from individuals to which we have referred establish the need to apply fair, reasonable and enforceable standards in the road transport industry to ensure the safety and fair treatment of road transport drivers. While some in the road transport industry are appropriately dealing with the safety and fair treatment of road transport drivers, others are not. Various parties’ support for forms of the various clauses in the draft RSRO emphasises that need.

[409] The remaining clauses from our earlier consideration of the clauses in the draft RSRO are directed to that end in that part of the road transport industry which was the focus before us.

[410] In this regard, the requirements in the remaining clauses apply fair, reasonable and enforceable standards in the road transport industry.

[411] The safe driving plans, training and drug and alcohol policy clauses apply nationally and are consistent with clauses awarded in the NSW Mutual Responsibility case by the Industrial Relations Commission of New South Wales. They are also consistent with provisions in the ALC RLSC Code, albeit the clauses are enforceable. Further, they are consistent with rights some employers and hirers of the road transport drivers already perceive as necessary for the safety and fair treatment of their road transport drivers and provide to them through enterprise agreements and the like.

[412] The payment time clause, a nationally applicable and enforceable clause, is consistent with the Western Australian ODCD Act and the ODFC Code under the Victorian ODFC Act, while recognising existing law on payments a hirer can require or deduct. The written contracts for road transport drivers clause, again a nationally applicable and enforceable clause, marries requirements in the Victorian ODFC Act with Part 7 of the RSR Regulation and recognises the increasing use of electronic technology.

[413] The other contracts clause, which is nationally applicable and enforceable, imposes obligations with respect to the contracts between supply chain participants in respect of the requirements of a RSRO, while recognising the limits of such contracts.

[414] The adverse conduct protection clause extends part of the general protections provisions of the FW Act in recognition of the limits of those provisions in respect of a participant in the supply chain in relation to a road transport driver, and the importance of such supply chain participants to the safety and fair treatment of road transport drivers. It merely requires a supply chain participant in relation to a road transport driver not to take defined adverse conduct against the road transport driver for defined reasons. It is a nationally applicable clause, enforceable as part of a RSRO.

[415] The dispute resolution clause reiterates the law.

[416] Further, the requirements in the remaining clauses are clearly concerned with ensuring the safety and fair treatment of the road transport drivers. For example, the payment time clause requires payment for a road transport service provided by a contractor driver within 30 days of invoice to provide the contractor driver with the cash flow for such things as vehicle maintenance. The written contracts for road transport drivers clause requires the provision of a written contract to a road transport driver prior to their employment or engagement covering matters such as the nature of the road transport service to be provided by the road transport driver, the remuneration for it, the payments that may be sought or deductions that may be made by the employer or hirer and the processes by which the road transport driver is to provide certain driving licence information. It provides clarity about the agreement on the matters and for the avoidance of the misunderstandings or disputes that lead to unsafe work practices for the road transport driver.

[417] We consider the detrimental impact, if any, of any RSRO containing the remaining clauses on the viability of businesses in the road transport industry, the national economy or the movement of freight across the nation is likely to be minimal. This is because of the limited and flexible nature of the remaining clauses, their current existence in similar or more onerous form in some states and relevant parts of the road transport industry and the delayed commencement clause. Indeed, given the matters with which the remaining clauses are concerned, the impact of any RSRO containing the remaining clauses may well be positive as the productivity reducing and cost effects of road accidents and other occupational health and safety problems involving road transport drivers are diminished.

[418] With respect to the special circumstances of areas that are particularly reliant on the road transport industry, such as rural, regional and other isolated areas, we recognise that such areas are more likely to be affected by the road transport services provided by road transport drivers as part of long distance operations in a heavy vehicle. Further, we recognise that, amongst other things, employers or hirers of road transport drivers and other participants in the supply chain in relation to the road transport drivers in such areas may have fewer resources. The application clause has been influenced by the special circumstances of such areas. In addition, with the special circumstances in mind, the safe driving plans clause applies in respect of a road transport driver undertaking a long distance operation using a motor vehicle with a gross vehicle mass of more than 4.5 tonnes. Moreover, where appropriate, the other remaining clauses provide for flexibility by requiring an employer or hirer to “take all reasonable measures” or act “so far as is reasonably practicable”, leave the means of implementation of a clause to the employer or hirer and provide for electronic means of compliance.

[419] As earlier indicated, the issue of rates of payment for road transport drivers and associated issues is to be the subject of future proceedings of the Tribunal. The remaining clauses are otherwise not inconsistent with orders and determinations made by the expert panel of the FWC, or indeed its predecessor, in annual wage reviews and the reasons for those orders and determinations.

[420] With respect to the modern awards relevant to the road transport industry and the reasons for those awards, the application clause is established in part by reference to the industry within the meaning of two of those modern awards being the Road Transport and Distribution Award 2010 76 and the Road Transport (Long Distance Operations) Award 2010,77 bearing in mind the reasons for those modern awards and the focus of the proceedings before us. Further, the remaining clauses are not inconsistent with any of the modern awards relevant to the road transport industry and the reasons for them.

[421] The remaining clauses do not unnecessarily overlap with the FW Act or the other laws prescribed for the purposes of s.20(g) of the RSR Act. The dispute resolution clause merely refers to the dispute resolution provisions in the RSR Act. While some suggested the training clause and the drug and alcohol policy clause in the draft RSRO unnecessarily overlapped with the prescribed laws, we are not persuaded that is so. In any instance, the training clause and the drug and alcohol policy clause recognise the broad context in which the prescribed laws operate and provide needed specificity within that context. Further, none of the remaining clauses are inconsistent with the FW Act or prescribed laws.

[422] With respect to the need to reduce complexity and for any RSRO to be simple and easy to understand, amongst other things the application clause has been crafted by reference to two relevant modern awards and the remaining clauses aim to use terminology consistent with the RSR Act and those two modern awards. In addition, we have endeavoured to write the remaining clauses in plain English, specifying clear minimum entitlements and obligations.

[423] Finally, in regard to the need to minimise the compliance burden on the road transport industry, the remaining clauses have national applicability and, where relevant and appropriate, the remaining clauses allow for electronic means of compliance and for dovetailing with other legal obligations and operational requirements, such as work diaries and consignment notes. Further, as appropriate, the remaining clauses provide flexibility in respect of their requirements and leave open the means of their implementation.

[424] The matters in s.20 of the RSR Act favour the making of a RSRO in the terms of the remaining clauses. We are satisfied having regard to the matters in s.20 of the RSR Act that we should make a RSRO in the terms of the remaining clauses.

Conclusion

[425] In this decision we have set out the processes and proceedings leading to it, detailed the general material presented to the Tribunal relevant to a RSRO, considered the material and submissions presented to the Tribunal in respect of the clauses in the draft RSRO that we published previously and on other claims, considered the Tribunal’s jurisdiction and dealt with the matters the Tribunal is required to have regard to in deciding whether to make a RSRO.

[426] As a result, we have decided to make the Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014 78 as set out in Attachment A to this decision. It is in the terms of the remaining clauses that we earlier set out.

[427] The 2014 RSRO commences on 1 May 2014 and expires on 30 April 2018.

[428] The 2014 RSRO does not deal with the issue of rates of payment for road transport drivers and associated issues. The President of the Tribunal will convene a conference of interested persons about future proceedings of the Tribunal in respect of those issues and the second annual work program of the Tribunal.

PRESIDENT

Appearances:

M. Gibian of counsel with M. Kaine and L. Tucker for the Transport Workers’ Union of Australia.

A. Carter for the Transport Workers’ Union of Australia, Union of Employees (Queensland Branch).

T. Degen for the Australian Road Transport Industrial Organization.

D. Sloan and K. Heraghty for Toll Holdings Limited.

S. Jauncey and T. Reaburn for the Australian National Retailers Association Ltd.

M. Baroni and M. Parker for Linfox Australia Pty Ltd.

C. Gardiner and A. Pollock for Coles Supermarkets Australia Pty Ltd.

B. Ferguson, S. Smith, M. Mead and P. Salewicz for The Australian Industry Group, Ai Group Legal, George Weston Foods Limited and ATA NSW.

R. Warren of counsel with A. Doyle, S. Forster and P. Stuckey-Clarke for the Australian Federation of Employers and Industries.

A. Spottiswood for NatRoad Limited.

N. Ward, O. Fagir and L. Izzol for the Australian Chamber of Commerce and Industry, Australian Business Industrial, the NSW Business Chamber Limited and Master Builders Australia Limited.

H. Wallgren and S. West for the South Australian Employers’ Chamber of Commerce and Industry Incorporated t/as Business SA.

R. Mitchell, S. Melichar and T. Kikkert for Robert Mitchell Transport Pty Ltd and Australian Fast Freight Pty Ltd.

J. Brown-Sarre for Intercapital Trucking Pty Ltd.

ATTACHMENT A

PR350280

ORDER

Road Safety Remuneration Act 2012

s.27 - Making road safety remuneration order

Annual Work Program

(RTP2012/1)

Transport Workers’ Union of Australia
(RTO2013/1)
Australian Road Transport Industrial Organization
(RTO2013/2)
National Union of Workers
(RTO2013/3)
Intercapital Trucking Pty Ltd
(RTO2013/4)

PRESIDENT ACTON
COMMISSIONER HAMPTON
PROFESSOR WILLIAMSON



MELBOURNE, 17 DECEMBER 2013

Road safety remuneration order (RSRO).

Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014

Table of Contents

  Part 1—Application and Operation
1. Title
2. Commencement and expirey
3. Definitions and interpretation
4. Application
  Part 2—Dispute Resolution and Adverse Conduct Protection
5. Dispute resolution
6. Adverse conduct protection
  Part 3—Contracts
7. Written contracts for road transport drivers
8. Other contracts
  Part 4—Payment Related Matters
9. Payment time
  Part 5—Safe Driving Plans, Training and Drug and Alcohol Policy
10. Safe driving plans
11. Training
12. Drug and alcohol policy
   

Part 1—Application and Operation

1. Title

This order is the Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014.

2. Commencement and expiry

This order commences on 1 May 2014 and expires on 30 April 2018.

3. Definitions and interpretation

In this order, unless the contrary intention appears:

4. Application

4.1 This order applies to a road transport driver employed or engaged in:

4.2 This order imposes requirements on an employer or a hirer of a road transport driver to whom this order applies, and on a participant in the supply chain in relation to a road transport driver to whom this order applies.

Part 2—Dispute Resolution and Adverse Conduct Protection

5. Dispute resolution

Part 4 of the Act provides for the Road Safety Remuneration Tribunal, on application, to deal with certain disputes about remuneration or related conditions.

6. Adverse conduct protection

6.1 A participant in the supply chain in relation to a road transport driver must not take adverse conduct against the road transport driver:

6.2 In subclause 6.1, a road transport driver has a workplace entitlement if the road transport driver:

6.3 In subclause 6.1, adverse conduct means conduct causing, comprising or involving any of the following:

6.4 Adverse conduct does not include conduct authorised by or under other law.

6.5 Subclause 6.1 does not apply in circumstances where the road transport driver would otherwise have the right to a cause of action under Division 3 of Part 3-1 of the Fair Work Act 2009 (Cth), in respect of the conduct constituting the adverse conduct.

Part 3—Contracts

7. Written contracts for road transport drivers

7.1 An employer or hirer must provide a road transport driver with a written employment contract or written road transport contract covering the employment or engagement of the road transport driver, prior to the road transport driver commencing their employment or engagement with the employer or hirer.

7.2 The written employment contract or written road transport contract may be in an electronic format.

7.3 The written employment contract or written road transport contract must at a minimum:

7.4 An employer or hirer must keep a copy of all employment contracts or road transport contracts made with a road transport driver for a period of seven years from the date of cessation of the contract.

8. Other contracts

A participant in the supply chain in relation to a road transport driver must take all reasonable measures to ensure that any contract it has with another participant in the supply chain contains provisions which are relevantly consistent with the requirements of this order.

Part 4—Payment Related Matters

9. Payment time

9.1 A hirer must pay to a contractor driver any undisputed amount set out in a valid taxation invoice provided by the contractor driver, or generated for the contractor driver, for the provision of a road transport service on any given day, within 30 days of the date of receipt by the hirer of the invoice.

9.2 The requirement in subclause 9.1 applies:

9.3 A hirer must not require a contractor driver to pay any amount, or make any deductions from an amount payable to a contractor driver, in respect of the provision of any services or equipment by the hirer or any other person to the contractor driver unless:

9.4 A hirer must not require a contractor driver to pay any amount, or make any deductions from an amount payable to a contractor driver, in respect of insurance unless:

9.5 Without limiting subclauses 9.3 and 9.4, a hirer must not otherwise require a contractor driver to pay any amount, or make any deductions from an amount payable to a contractor driver, unless specifically permitted by Commonwealth, State or Territory legislation as in force on 17 December 2013.

Part 5—Safe Driving Plans, Training and Drug and Alcohol Policy

10. Safe driving plans

10.1 An employer or hirer must prepare a written safe driving plan for a road transport driver employed or engaged by them who is to undertake a long distance operation for the employer or hirer using a motor vehicle with a gross vehicle mass of more than 4.5 tonnes.

10.2 The safe driving plan must be prepared in relation to the road transport service to be provided by the road transport driver as part of the long distance operation.

10.3 The safe driving plan must be reviewed regularly and updated by the employer or hirer when there is any change in the circumstances applicable to the long distance operation to be undertaken, or the road transport service to be provided, by the road transport driver or when safety issues warrant a review and update.

10.4 The safe driving plan must be prepared and implemented, and reviewed and updated, in consultation with the road transport driver.

10.5 The safe driving plan must be provided to the road transport driver by the employer or hirer on each occasion the road transport service is provided.

10.6 The safe driving plan must:

10.7 Subject to subclause 10.9, the safe driving plan must also:

10.8 Subject to subclause 10.9, a participant in the supply chain in relation to a road transport driver must, where practicable, witness a safe driving plan that is being completed by the road transport driver, in accordance with the requirement in subclause 10.7(a).

10.9 The safe driving plan need not contain the provisions in subclauses 10.7(a) or (b) if the employer or hirer uses electronic means to monitor on a real time basis the matters those subclauses provide to be recorded.

10.10 The written safe driving plan, or part of it, may be in an electronic format.

10.11 Completed safe driving plans returned to an employer or hirer and any associated electronic records must be reviewed regularly by the employer or hirer to identify safety issues that have arisen in the provision of the road transport service covered by the safe driving plan and opportunities for improvement.

10.12 An employer or hirer must keep a copy of a completed safe driving plan and any associated electronic records for a period of seven years and make a completed safe driving plan and any associated electronic records available to the road transport driver on request. These plans and records may be kept electronically.

11. Training

11.1 An employer or hirer must take all reasonable measures to ensure a road transport driver employed or engaged by them is trained in work health and safety systems and procedures relevant to the road transport service to be provided by the road transport driver.

11.2 The employer or hirer must reimburse the road transport driver for any expenses reasonably incurred by the road transport driver in undertaking the training specified in subclause 11.1 whilst employed or engaged by the employer or hirer on the road transport driver providing to the employer or hirer satisfactory evidence of such expenditure, subject to the road transport driver having obtained the prior consent of the employer or hirer to incurring the expenses and the employer or hirer not unreasonably withholding such consent.

12. Drug and alcohol policy

12.1 An employer or hirer must prepare and implement a written drug and alcohol policy covering a road transport driver employed or engaged by them.

12.2 The employer or hirer must, so far as is reasonably practicable, consult with their road transport drivers in preparing the drug and alcohol policy.

12.3 The drug and alcohol policy must:

12.4 An employer or hirer must take all reasonable measures to ensure a road transport driver employed or engaged by them is trained in the employer’s or hirer’s drug and alcohol policy.

12.5 The employer or hirer must reimburse the road transport driver for any expenses reasonably incurred by the road transport driver in undertaking the training specified in subclause 12.4 whilst employed or engaged by the employer or hirer on the road transport driver providing to the employer or hirer satisfactory evidence of such expenditure, subject to the road transport driver having obtained the prior consent of the employer or hirer to incurring the expenses and the employer or hirer not unreasonably withholding such consent.

PRESIDENT

Printed by authority of the Commonwealth Government printer

<Price Code C>

ATTACHMENT B

Facilitated Discussions Report

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ATTACHMENT C

Written submissions, written comments and appearances at the hearings on the draft road safety remuneration order

Written submissions on the draft road safety remuneration order

Written comments in reply to the written submissions on the draft road safety remuneration order

ATA NSW
● Australian Business Industrial
Australian Chamber of Commerce and Industry
Australian Fast Freight Pty Ltd
● Australian Federation of Employers and Industries
Australian National Retailers Association Ltd
Australian Road Transport Industrial Organization
Intercapital Trucking Pty Ltd
Linfox Australia Pty Ltd
National Road Freighters Association Inc
● NatRoad Limited
● NSW Business Chamber Limited
Pickering Transport Pty Ltd
Robert Mitchell Transport Pty Ltd
● The Australian Industry Group
Timothy Kikkert
Toll Holdings Limited
Transport Workers' Union of Australia
Department of Treasury and Finance (Victoria)

Written submissions in reply following the hearings on the draft road safety remuneration order

Transport Workers' Union of Australia

Appearances at the hearings on the draft road safety remuneration order -
Date of first appearance

 

ATTACHMENT D

Exhibits tendered at the hearings on the draft road safety remuneration order

AUSTRALIAN CHAMBER OF COMMERCE AND INDUSTRY, AUSTRALIAN BUSINESS INDUSTRIAL, THE NSW BUSINESS CHAMBER LIMITED AND MASTER BUILDERS AUSTRALIA LIMITED

Exhibit No.

Date
Tendered

Tendered
by

Description

ABI 1

30/10/13

Mr N. Ward

Draft Order “A”.

ABI 2

30/10/13

Mr N. Ward

Draft Order “B”.

ABI 3

30/10/13

Mr N. Ward

Section 313 of the Industrial Relations Act 1996 (NSW).

       

THE AUSTRALIAN INDUSTRY GROUP, AI GROUP LEGAL, GEORGE WESTON FOODS LIMITED, AND ATA NSW

Exhibit No.

Date
Tendered

Tendered
by

Description

F 2

29/10/13

Mr S. Smith

    ● Department of Infrastructure and Regional Development, Australian Government, Heavy Vehicle Regulatory Reform, viewed 29 October 2013,
    <http://www.infrastructure. gov .au/roads/vehicle _regulationlris/index.aspx>.

    ● VicRoads, Heavy Vehicle National Law, viewed 29 October 2013, <http://www.vicroads.vic.gov.au/Home/Moreinfoandservices/HeavyVehicles/Heavy+Vehicle+National+Law.htm>.
    ● Heavy Vehicle National Law Act 2012 (QLD).

       

AUSTRALIAN NATIONAL RETAILERS ASSOCIATION LTD

Exhibit No.

Date
Tendered

Tendered
by

Description

ANRA 1

30/10/13

Mr S. Jauncey

Macquarie Dictionary Online, definition of “base”, viewed 15 August 2013, <http://www.macquariedictionary.com.au>.

       

AUSTRALIAN ROAD TRANSPORT INDUSTRIAL ORGANIZATION

Exhibit No.

Date
Tendered

Tendered
by

Description

ARTIO 1

14/8/13

Mr T. Degen

Witness statement of Jody Freestone.

ARTIO 2

14/8/13

Mr T. Degen

Department of Transport and Main Roads (Queensland), ‘Fatal Road Traffic Crashes in Queensland 2011—A report on the road toll’, prepared by the Centre of National Research and Rehabilitation Medicine, University of Queensland, October 2012, 66-69.

ARTIO 3

14/8/13

Mr T. Degen

Department of Transport and Main Roads (Queensland), ‘Heavy Vehicle Safety Bulletin’, produced by Transport and Main Roads in conjunction with the Heavy Vehicle Safety Group, 8th edition, July 2013.

ARTIO 4

14/8/13

Mr T. Degen

Margaret Prendergast, ‘Heavy Truck Crash Data Analysis Fatal Crash Update to 2012’, (RFIC meeting, NSW Centre for Road Safety, Transport for NSW, May 2013).

ARTIO 5

14/8/13

Mr T. Degen

Australia New Zealand Policing Advisory Agency, Operation Austrans, viewed 14 August 2013, <https://www.anzpaa.org.au/current-initiatives/operation-austrans >.

ARTIO 6

14/8/13

Mr T. Degen

Austrans Comparisons May 2011-12-13 Chart.

ARTIO 7

14/8/13

Mr T. Degen

Owen P. Driscoll, ‘2013 Major Accident Investigation Report’ (Report, National Truck Accident Research Centre, 2013).

ARTIO 8

14/8/13

Mr T. Degen

Australian Trucking Association, ‘A future strategy for road supply and charging in Australia’ (Report, March 2013), 10-20.

ARTIO 9

14/8/13

Mr T. Degen

Victorian Transport Association, ‘Heavy Vehicle Incident Report’ (Report, 23 July 2013).

ARTIO 10

14/8/13

Mr T. Degen

Australian Logistics Council, ‘Retail Logistics Supply Chain 10 Point Code of Practice.’

ARTIO 11

14/8/13

Mr T. Degen

Department of Infrastructure and Transport, ‘Fatal Heavy Vehicle Crashes Australia Quarterly Bulletin’, October - December 2012.

       

COLES SUPERMARKETS AUSTRALIA PTY LTD

Exhibit No.

Date
Tendered

Tendered
by

Description

Coles 1

13/8/13

Mr C. Gardiner

Witness statement of Craig Wickham.

Coles 2

13/8/13

Mr C. Gardiner

Jeff Waters, Supermarket Pressure Blamed for Road Deaths, viewed 10 May 2012, ABC News, <http://www.rsrt.gov.au/default/assets/File/exhibits_draftRSRO/Coles2.pdf >.

Coles 3

14/8/13

Mr C. Gardiner

Witness statement David Vaughan.

Coles 4

30/10/13

Mr C. Gardiner

Written submissions of Coles Supermarkets Australia Pty Ltd.

Coles 5

30/10/13

Mr C. Gardiner

Flow Chart entitled ‘Coles Supply Chain - Summary of Evidence’.

       

GRAHAM GARNER (VIC/NSW DELEGATE FOR THE NATIONAL ROAD FREIGHTERS ASSOCIATION INC)

Exhibit No.

Date
Tendered

Tendered
by

Description

GA 1

30/10/13

Mr G. Garner

Written submission from Graham Garner.

       

INTERCAPITAL TRUCKING PTY LTD

Exhibit No.

Date
Tendered

Tendered
by

Description

Intercapital 1

29/10/13

Mr J. Brown-Sarre

Written submission of Intercapital Trucking Pty Ltd.

       

LINFOX AUSTRALIA PTY LTD

Exhibit No.

Date
Tendered

Tendered
by

Description

Linfox 1

14/8/13

Mr M. Baroni

Witness statement of Nicholas Leon.

Linfox 2

14/8/13

Mr M. Baroni

Schedule B - Template Linfox Driver Fatigue Safe Journey Plan.

Linfox 3

29/10/13

Mr M. Baroni

Draft Order.

       

TRANSPORT WORKERS’ UNION OF AUSTRALIA

Exhibit No.

Date
Tendered

Tendered
by

Description

TWU 1

12/8/13

Mr M. Gibian

Witness statement of Michael Kaine.

TWU 2

12/8/13

Mr M. Gibian

Witness statement of Paul Clapson.

TWU 3

12/8/13

Mr M. Gibian

Witness statement of Mark Trevillian.

TWU 4

12/8/13

Mr M. Gibian

Witness statement of Charlie Iglio.

TWU 5

12/8/13

Mr M. Gibian

Witness statement of Eric Pickering.

TWU 6

13/8/13

Mr M. Gibian

Witness statement of Frank Black.

TWU 7

13/8/13

Mr M. Gibian

Witness statement of Brad Statham.

TWU 8

13/8/13

Mr M. Gibian

Wesfarmers, ‘Wesfarmers Annual Report 2012’, 18-22.

TWU 9

13/8/13

Mr M. Gibian

    ● Coles, ‘Coles Supplier Delivery Standards (Domestic)’, August 2013.
    ● Coles Supplier Portal.

TWU 10

13/8/13

Mr M. Gibian

Australian Logistics Council, ‘Retail Logistics Supply Chain Code of Practice,’ Version 1, 1 June 2011.

TWU 11

14/8/13

Mr M. Gibian

Witness statement of Ray Childs.

TWU 12

14/8/13

Mr M. Gibian

Witness statement of Keith McGuckin.

TWU 13

14/8/13

Mr M. Gibian

Witness statement of Keith Stone.

TWU 14

14/8/13

Mr M. Gibian

Witness statement of Michael Knowles.

TWU 15

14/8/13

Mr M. Gibian

Witness statement of Dr Michael Belzer.

TWU 16

14/8/13

Mr M. Gibian

Witness statement of Steve Larkins.

TWU 17

14/8/13

Mr M. Gibian

Witness statement of TWU - Driver - 6.

TWU 18

14/8/13

Mr M. Gibian

Michael Quinlan, ‘Supply Chains and Networks’, Safe Work Australia, Canberra, July 2011.

TWU 19

14/8/13

Mr M. Gibian

Claire Mayhew and Michael Quinlan, ‘Economic Pressure, Multi-Tiered Subcontracting and Occupational Health and Safety in Australian Long-Haul Trucking,’ (2006) 28(3) Employee Relations 212.

TWU 20

14/8/13

Mr M. Gibian

Claire Mayhew and Michael Quinlan, ‘Occupational Violence in Long Distance Road Transport:  A Study of 300 Australian Truck Drivers,’ (2001) 13(1) Current Issues in Criminal Justice 36.

TWU 21

14/8/13

Mr M. Gibian

Claire Mayhew et al, ‘The Effects of Subcontracting/Outsourcing on Occupational Health and Safety:  Survey Evidence from Four Australian Industries’, (1997) 25(1-3)(February-April) Safety Science 163.

TWU 22

14/8/13

Mr M. Gibian

Michael Quinlan, ‘Report of Inquiry into Safety in the Long Haul Trucking Industry’, Executive Summary, Motor Accidents Authority of New South Wales, 2001.

TWU 23

14/8/13

Mr M. Gibian

Michael Quinlan and Lance Wright, Report prepared for the National Transport Commission, Remuneration and Safety in the Australian Heavy Vehicle Industry:  A Review undertaken for the National Transport Commission, October 2008.

TWU 24

14/8/13

Mr M. Gibian

National Transport Commission et al, ‘Safe Payments - Addressing the Underlying Causes of Unsafe Practices in the Road Transport Industry’, National Transport Commission, October 2008.

TWU 25

14/8/13

Mr M. Gibian

David A. Hensher and Helen C. Battellino, ‘Long-Distance Trucking:  Why Do Truckies Speed?’ Papers of the Australasian Transport Research Forum, 15(2), 1990.

TWU 26

14/8/13

Mr M. Gibian

Michael H. Belzer, ‘The Economics of Safety: How Compensation Affects Commercial Motor Vehicle Driver Safety’, Paper prepared for the Safe Rates Summit, November 2011.

TWU 27

14/8/13

Mr M. Gibian

Ann Williamson, ‘Predictors of Psychostimulant Use by Long-Distance Truck Drivers’, (2007) 166(11) American Journal of Epidemiology 1320.

TWU 28

14/8/13

Mr M. Gibian

Michael H. Belzer, ‘Report of Analysis: Truck Crashes and Work-Related Factors Associated with Drivers and Motor Carriers’, Prepared for the Federal Motor Carrier Safety Administration by Sound Science Inc, 28 April 2009.

TWU 29

14/8/13

Mr M. Gibian

Department of Infrastructure and Transport, ‘Fatal Heavy Vehicle Crashes Australia Quarterly Bulletin’, Bulletin, October - December 2012.

TWU 30

14/8/13

Mr M. Gibian

David A Hensher et al, ‘Long Distance Truck Drivers: On-Road Performance and Economic Reward’, Research and Analysis Report CR99, Department of Transport and Communications, Federal Office of Road Safety, 1991.

TWU 31

14/8/13

Mr M. Gibian

House of Representatives Standing Committee on Communications, Transport and the Arts, Parliament of Australia, ‘Beyond the Midnight Oil: An Inquiry into Managing Fatigue in Transport’, (2000).

TWU 32

14/8/13

Mr M. Gibian

Industrial Relations Victoria, Report of Inquiry: Owner Drivers and Forestry Contractors, Volume 1 Report and Recommendations, February 2005.

TWU 33

14/8/13

Mr M. Gibian

Christopher Jones et al, ‘Legal Implications of Fatigue in the Australian Transportation Industries’, (2003) 45(3) Journal of Industrial Relations 344.

TWU 34

14/8/13

Mr M. Gibian

Richard Johnstone, ‘The Legal Framework for Regulating Road Transport Safety: Chains of Responsibility, Compliance and Enforcement’, Working Paper 1, National Research Centre for Occupational Health and Safety Regulation, March 2002.

TWU 35

14/8/13

Mr M. Gibian

Igor M. Nossar, ‘The Scope for Appropriate Cross-Jurisdictional Regulation of International Contract Networks: Recent Developments in Australia and their Supranational Implications’, (An edited version of the keynote presentation at the ILO Workshop on Better Health and Safety for Suppliers, Toronto Canada, 17 April 2007).

TWU36

14/8/13

Mr M. Gibian

Michael Quinlan, ‘Road Haulage in Australia: Keeping Vulnerable Workers Safe and Sound’, (2012) 6 (Autumn/Winter) HesaMag, International News.

TWU 37

14/8/13

Mr M. Gibian

Michael Rawling and Sarah Kaine, ‘Regulating Supply Chains to Provide a Safe Rate for Road Transport Workers’, (2012) 25 Australian Journal of Labour Law 237.

TWU 38

14/8/13

Mr M. Gibian

Michael Rawling, ‘A Generic Model of Regulating Supply Chain Outsourcing’, (Research Paper No. 07-07, Australian National University College of Law, April 2007).

TWU 39

14/8/13

Mr M. Gibian

Michael Rawling, ‘The Regulation of Outwork and the Federal Takeover of Labour Law’, (Research paper No. 07-20, Australian National University College of Law, April 2007).

TWU 40

14/8/13

Mr M. Gibian

Daniel A. Rodriguez et al, ‘Pay Incentives and Truck Driver Safety: A Case Study’, (2006) 59(2) Industrial and Labour Relations Review 205.

TWU 41

14/8/13

Mr M. Gibian

Daniel A. Rodriguez et al, ‘The Effects of Truck Driver Wages and Working Conditions on Highway Safety: A Case Study’, (Paper No. 03-2125, Transport Research Record).

TWU 42

14/8/13

Mr M. Gibian

Department of Education, Employment and Workplace Relations, ‘Safe Rates, Safe Roads’, Directions Paper, Safe Rates Advisory Group, 2010.

TWU 43

14/8/13

Mr M. Gibian

Textile, Clothing and Footwear Union of Australia (NSW/SA/Tas Branch), ‘Submission for the National Review into Modern Occupational Health and Safety Laws in relation to OHS within the context of Contract Networks’, Submission No. 211 to the National Review into Model OHS Laws, Department of Education, Employment and Workplace Relations, 2008.

TWU 44

14/8/13

Mr M. Gibian

TransEco Pty Ltd, ‘Costings to Create a System of Safe, Fair and Sustainable Rates for Employed and Self-Employed Drivers in the Road Freight Industry of Australia (An Extract)’, Report for Transport Workers’ Union of Australia, 1 August 2013.

TWU 45

14/8/13

Mr M. Gibian

Transport Workers’ Union of Australia, ‘Toward A Safe & Sustainable Transport Industry’, Submission to Safe Payments Inquiry, National Transport Commission, 2008.

TWU 46

14/8/13

Mr M. Gibian

Transport Workers’ Union of Australia, Submission to Department of Education, Employment and Workplace Relations, ‘Safe Rates Submission’, 11 February 2011.

TWU 47

14/8/13

Mr M. Gibian

Chapter 6 of Industrial Relations Act 1996 (NSW).

TWU 48

14/8/13

Mr M. Gibian

Occupational Health and Safety Amendment (Long Distance Truck Driver Fatigue) Regulation 2005 No 221 (NSW).

TWU 49

14/8/13

Mr M. Gibian

Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No. 2), Re [2006] NSWIRComm 328.

TWU 50

14/8/13

Mr M. Gibian

Toll Group and Transport Workers Union Fair Work Agreement 2011 to 2013 [AE888229].

TWU 51

14/8/13

Mr M. Gibian

Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011 [AE885455].

TWU 52

14/8/13

Mr M. Gibian

Industrial Commission of NSW, Report to The Honourable E. A. Willis, BA., M.L.A., Minister for Labour and Industry on Section 88E of the Industrial Arbitration Act 1940-1968, in so far as it concerns Drivers of Taxi-cabs, Private Hire Cars, Motor Omnibuses, Public Motor Vehicles and Lorry Owner-Drivers’, 23 February 1970.

TWU 53

29/10/13

Mr M. Gibian

Statement of Dr Michael James Rawling.

TWU 54

29/10/13

Mr M. Gibian

‘Ethical Clothing Trades Extended Responsibility Scheme’, established under Part 3 of the Industrial Relations (Ethical Clothing Trades) Act 2001 (NSW).

TWU 55

29/10/13

Mr M. Gibian

Document prepared by the Transport Workers’ Union of Australia, Extracts from reports/inquiries.

TWU 56

29/10/13

Mr M. Gibian

Schedule F of the Textile, Clothing, Footwear and Associated Industries Award 2010 [MA000017].

TWU 57

29/10/13

Mr M. Gibian

Section 127 of Industrial Relations Act 1996 (NSW).

 1   PR350280.

 2   [2013] RSRTFB 3.

 3   Road Safety Remuneration Act 2012 (Cth), s.19(1).

 4   Road Safety Remuneration Act 2012 (Cth), s.19(2).

 5   Road Safety Remuneration Act 2012 (Cth), s.19(3).

 6   Annual Work Program, [2012] RSRTFB 3.

 7   Annual Work Program and Others, Statement [2013] RSRT 1.

 8   Annual Work Program and Others, Statement [2013] RSRT 2.

 9   Road Safety Remuneration Act 2012 (Cth), s.22.

 10   Road Safety Remuneration Act 2012 (Cth), s.23.

 11   Annual Work Program and Others, [2013] RSRTFB 3.

 12   Ibid.

 13   Annual Work Program and Others, [2013] RSRTFB 4.

 14   Annual Work Program and Others, [2013] RSRTFB 6.

 15   Annual Work Program and Others, [2013] RSRTFB 11.

 16   Transcript in RTP2012/1, RTO2013/1, RTO2013/2, RTO2013/3 and RTO2013/4 at PN3605-3608.

 17   Exhibit TWU 22.

 18   Ibid at p.5.

 19   Ibid.

 20   Ibid at pp. 13-15.

 21   Exhibit TWU 32.

 22   Ibid at p.106.

 23   Ibid at pp.106-107.

 24   Ibid at pp. 107-108.

 25   [2006] NSWIRComm 328.

 26   Ibid at paragraph 16.

 27   Ibid at paragraph 20.

 28   Ibid at paragraph 34.

 29   Ibid at paragraph 35.

 30   Ibid at paragraph 238.

 31   C5263.

 32   C5264.

 33   Exhibit TWU 23.

 34   Ibid at pp. 149-150.

 35   Exhibit TWU 24.

 36   Ibid at pp. 18-19 and 21

 37   Ibid at p. 47.

 38   Exhibit TWU 53.

 39   Exhibit TWU 1 at paragraph 13.

 40   Ibid at paragraphs 29 and 34.

 41   Ibid at paragraph 20.

 42   Ibid at paragraph 42.

 43   Exhibit TWU 2.

 44   Exhibit TWU 3.

 45   Transcript in RTP2012/1, RTO2013/1, RTO2013/2, RTO2013/3 and RTO2013/4 at PN498-PN507.

 46   Exhibit TWU 5 at p. 5.

 47   Exhibit TWU 7 at paragraphs 13, 24 and 26-28

 48   Exhibit TWU 6 at paragraphs 25 and 27.

 49   MA000038.

 50   MA000039.

 51   MA000004.

 52   Annual Work Program and Others, [2013] RSRTFB 3 at paragraph 39.

 53   NatRoad Limited submission of 1 August 2013.

 54   Owner Drivers and Forestry Contractors Act 2005 (Vic), s.19.

 55   Owner Drivers and Forestry Contractors Act 2005 (Vic), s.21.

 56   Owner Drivers and Forestry Contractors Act 2005 (Vic), s.22.

 57   Owner Drivers and Forestry Contractors Act 2005 (Vic), ss.23 and 24.

 58   Owner Drivers and Forestry Contractors Act 2005 (Vic), s.20(b).

 59   Owner Drivers and Forestry Contractors Act 2005 (Vic), ss.23-24.

 60   [2013] RSRTFB 3.

 61   Exhibit Coles 1.

 62   Exhibit Coles 3.

 63   Ibid.

 64   AE888229.

 65   AE885455.

 66   Exhibit ARTIO 1 at paragraph 7.

 67   Exhibit TWU 31.

 68   Ibid at p. ix.

 69   Road Safety Remuneration Tribunal Act 2012 (Cth), s.3.

 70   Road Safety Remuneration Tribunal Act 2012 (Cth), s.3(d).

 71   Road Safety Remuneration Tribunal Act 2012 (Cth), s.3(e).

 72   Road Safety Remuneration Tribunal Act 2012 (Cth), s.27(1).

 73   O’Grady v Northern Queensland Co Ltd, (1990) 169 CLR 356 at 376.

 74   D’Emden v Pedder, (1904) 1 CLR 91 at 110.

 75   Road Safety Remuneration Regulation 2012, reg. 2.1.

 76   MA000038.

 77   MA000039.

 78   PR350280.

Printed by authority of the Commonwealth Government printer

<Price Code Y  PR350120>