Contractor Driver Minimum Payments Road Safety Remuneration Order 2016

PR350441

ORDER

Road Safety Remuneration Act 2012
s.18 – RSR Act – Tribunal must prepare and publish a work program each year
s.19(2) – RSR Act – Road safety remuneration order application
s.22 RSR Act – Tribunal to prepare and consult on draft order
s.27 RSR Act – Making road safety remuneration order

Third Annual Work Program
(RTP2014/1)

Transport Workers’ Union of Australia
(RTO2013/1 and RTO2015/3)

Australian Road Transport Industrial Organization
(RTO2013/2)

National Union of Workers
(RTO2013/3)

Intercapital Trucking Pty Ltd
(RTO2013/4)

Steven Corcoran
(RTO2013/5 and RTO2014/1)

PRESIDENT ACTON
COMMISSIONER HAMPTON
PROFESSOR WILLIAMSON

MELBOURNE, 18 DECEMBER 2015

Draft road safety remuneration order (RSRO) – Payments for contractor drivers – Unpaid leave – Supply chain contracts – Promotion of orders.

Contractor Driver Minimum Payments Road Safety Remuneration Order 2016

Table of Contents

Part 1—Application and Operation

1. Title
2. Commencement and expiry
3. Definitions and interpretation
4. Application
5. Promotion of orders
6. Savings clause

Part 2— Dispute Resolution

7. Dispute resolution

Part 3—Contracts

8. Supply chain contracts

Part 4—Payments

9. Minimum payments for a distribution operation
10. Minimum payments for a long distance operation
11. Facilitative provisions

Part 5—Leave

12. Unpaid leave

Schedule A—Minimum payments for a Distribution Operation
Schedule B—Minimum payments for a Long Distance Operation

Part 1—Application and Operation

1. Title

This order is the Contractor Driver Minimum Payments Road Safety Remuneration Order 2016.

2. Commencement and expiry

This order commences on 4 April 2016 and expires on 3 April 2020.

3. Definitions and interpretation

In this order, unless the contrary intention appears:

Act means the Road Safety Remuneration Act 2012 (Cth).

Commonwealth authority means:

(a) a body corporate established for a public purpose by or under a law of the Commonwealth; or

(b) a body corporate:

(i) incorporated under a law of the Commonwealth or a State or Territory; and

(ii) in which the Commonwealth has a controlling interest.

consignor or consignee means a person:

(a) who is the consignor or consignee of a thing in respect of which a road transport driver is providing road transport services; and

(b) to whom any of the following apply:

(i) the person is a constitutional corporation, the Commonwealth, a Commonwealth authority, a Territory or a Territory authority; or

(ii) the person is an individual who is resident in, or a body corporate that has its principal place of business in, a Territory; or

(iii) the person is the consignor or consignee for the purposes of a business undertaking of a constitutional corporation; or

(iv) the person is the consignor or consignee for the purposes of the Commonwealth, a Commonwealth authority, a Territory or a Territory authority; or

(v) the person is the consignor or consignee in the course of or in relation to constitutional trade or commerce; or

(vi) the person is a corporation that was the consignor or consignee of a thing for the purposes of the business of that corporation.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

(a) between Australia and a place outside Australia; or

(b) among the States; or

(c) between a State and a Territory; or

(d) between two Territories; or

(e) within a Territory.

contractor driver means a road transport driver who is an independent contractor.

controlling interest means controlling interest in a corporation.

controlling interest in a corporation means an interest in the corporation that enables the person holding the interest to:

(a) control the composition of the board of directors of the corporation; or

(b) cast or control the casting of more than one half of the maximum number of votes that might be cast at a general meeting of the corporation; or

(c) control more than one half of the issued share capital of the corporation (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).

distribution operation means a road transport service which does not involve a long distance operation.

Fair Work Ombudsman means the Fair Work Ombudsman under the Fair Work Act 2009 (Cth).

gross vehicle mass (GVM) means the maximum permissible mass (whether described as the gross train vehicle mass or otherwise) for the motor vehicle and its load (but excluding any trailer and its load) as stated in a certificate of registration or other certificate that is issued in respect of the motor vehicle by the relevant authority or by the corresponding authority of another State or Territory or that is required by the law to be painted or displayed on the motor vehicle.

GST means the Goods and Services tax.

hirer means the party to a road transport contract, other than the contractor driver who is a party to the road transport contract.

immediate family of an individual has the same meaning as immediate family has for a national system employee under the Fair Work Act 2009 (Cth).

independent contractor is not confined to an individual.

intermediary means a person who is party to a contract for the carriage of goods, and that contract concerns the transport of a thing in respect of which a road transport driver is providing road transport services, provided:

(a) the person is a constitutional corporation, the Commonwealth, a Commonwealth authority, a Territory or a Territory authority; or

(b) the contract was entered into in a Territory; or

(c) at least one of the parties to the contract is an individual who is resident in, or a body corporate that has its principal place of business in, a Territory; or

(d) the contract is for the purposes of a business undertaking of a constitutional corporation; or

(e) the contract is for the purposes of the Commonwealth, a Commonwealth authority, a Territory or a Territory authority; or

(f) the contract was made in the course of or in relation to constitutional trade or commerce; or

(g) the person is a corporation that has entered into the contract for the purposes of the business of that corporation.

interstate operation means an operation involving a vehicle moving livestock or materials whether in a raw or manufactured state from a principal point of commencement in one State or Territory to a principal point of destination in another State or Territory. Provided that to be an interstate operation the distance involved must exceed 200 kilometres, for any single journey. An area within a radius of 32 kilometres from the GPO of a capital city will be deemed to be the capital city.

livestock means horses, cattle, sheep, pigs, goats or poultry.

long distance operation means any interstate operation, or any return journey where the distance travelled exceeds 500 kilometres and the operation involves a vehicle moving livestock or materials whether in a raw or manufactured state from a principal point of commencement to a principal point of destination. An area within a radius of 32 kilometres from the GPO of a capital city will be deemed to be the capital city.

operator of premises for loading and unloading means a person who is a constitutional corporation that operates premises or part of premises:

(a) that are used by a road transport driver to load or unload a vehicle; and

(b) at which an average of at least 5 vehicles are loaded or unloaded on each active day the premises or part of the premises are used to load or unload vehicles, having regard to each active day in the previous 12 months or, if the corporation first used the premises or part of the premises to load or unload vehicles less than 12 months ago, having regard to each active day in the period since the premises or part of the premises were first used to load or unload vehicles.

participant in the supply chain means a participant in the supply chain in relation to a road transport driver.

participant in the supply chain in relation to a road transport driver means a consignor or consignee, intermediary or operator of premises for loading and unloading.

related individual means a related individual of a corporation.

related individual of a corporation means each of the following individuals:

(a) a director of the corporation;

(b) a member of the immediate family of a director of the corporation;

(c) an individual who, together with members of the individual’s immediate family, has a controlling interest in the corporation;

(d) a member of the immediate family of an individual who, together with members of the individual’s immediate family, has a controlling interest in the corporation.

road transport contract means a contract for services under which a contractor driver is to provide road transport services to the hirer, including a reference to a condition or collateral arrangement that relates to the contract.

road transport driver means:

(a) an individual, other than a related individual of a corporation who drives one or more of the corporation’s vehicles, who engages in the road transport industry by driving a vehicle to transport things by road, provided the individual does so:

(i) as an employee of a constitutional corporation, the Commonwealth, a Commonwealth authority, a Territory or a Territory authority; or

(ii) under a road transport contract the other party to which is a constitutional corporation, the Commonwealth, a Commonwealth authority, a Territory or a Territory authority; or

(iii) under a contract entered into in a Territory; or

(iv) under a contract at least one of the parties to which is an individual who is resident in, or a body corporate that has its principal place of business in, a Territory; or

(v) for the purposes of a business undertaking of a constitutional corporation; or

(vi) for the purposes of the Commonwealth, a Commonwealth authority, a Territory or a Territory authority; or

(vii) in the course of or in relation to constitutional trade or commerce; or

(viii) under a road transport contract the other party to which is a corporation that has entered into the contract for the purposes of the business of that corporation.

(b) a corporation that engages in the road transport industry by transporting things by road using one or more vehicles supplied by the corporation or a related individual, provided:

(i) the vehicle or each vehicle is mainly driven by a related individual; and

(ii) the related individual’s principal occupation is driving the vehicle or vehicles; and

(iii) the corporation is a constitutional corporation.

road transport industry means any of the following:

(a) the road transport and distribution industry within the meaning of the Road Transport and Distribution Award 2010 as in force on 1 July 2012;

(b) long distance operations in the private transport industry within the meaning of the Road Transport (Long Distance Operations) Award 2010 as in force on 1 July 2012;

(c) the cash in transit industry within the meaning of the Transport (Cash in Transit) Award 2010 as in force on 1 July 2012;

(d) the waste management industry within the meaning of the Waste Management Award 2010 as in force on 1 July 2012;

(e) the meaning prescribed by the Road Safety Remuneration Regulation 2012 by reference to a modern award specified in the regulation.

road transport service means a service provided in the road transport industry.

supermarket chain means a business which operates five or more supermarkets.

Territory authority means:

(a) a body corporate established for a public purpose by or under a law of a Territory; or

(b) a body corporate:

(i) incorporated under a law of the Commonwealth or a State or Territory; and

(ii) in which a Territory has a controlling interest.

unpaid leave means a period in which the contractor driver is both not required to be available for engagement by the hirer and is not engaged by the hirer.

4. Application

4.1 Subject to subclause 4.3, this order applies to a contractor driver engaged in:

(a) the road transport and distribution industry within the meaning of the Road Transport and Distribution Award 2010 as in force on 1 July 2012, in respect of the provision by the contractor driver of a road transport service wholly or substantially in relation to goods, wares, merchandise, material or anything whatsoever destined for sale or hire by a supermarket chain; or

(b) long distance operations in the private transport industry within the meaning of the Road Transport (Long Distance Operations) Award 2010 as in force on 1 July 2012.

4.2 This order imposes requirements on a hirer of a contractor driver to whom this order applies, and on a participant in the supply chain in relation to a contractor driver to whom this order applies.

4.3 This order does not apply to a contractor driver engaged in:

(a) the cash in transit industry within the meaning of the Transport (Cash in Transit) Award 2010 as in force on 1 July 2012; or

(b) the waste management industry within the meaning of the Waste Management Award 2010 as in force on 1 July 2012;

(c) the sector of the road transport industry which is directly related to wharf and port container work; and

(d) the oil, fuel and gas sectors of the road transport industry.

5. Promotion of orders

5.1 A hirer of a contractor driver must display this order, the Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014 and any variations to either of them:

(a) where practicable, at each of the hirer's work sites or depots involved in the provision by the
contractor driver of the road transport service; and

(b) on each of the hirer’s websites.

5.2 A hirer of a contractor driver must take all reasonable steps to advise each contractor driver it engages to provide a road transport service and to whom this order applies that:

(a) this order and the Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014 applies to them; and

(b) access to this order, the Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014 and variations to either of them are available at each of the hirer’s work sites or depots, on each of the hirer’s websites or on the Road Safety Remuneration Tribunal’s website: www.rsrt.gov.au.

6. Savings clause

Nothing in this order requires a hirer of a contractor driver to reduce any remuneration or related conditions that the hirer is providing to the contractor driver pursuant to an agreement between the hirer, on the one part, and the contractor driver, on the other part.

Part 2— Dispute Resolution

7. 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.

Part 3—Contracts

8. Supply chain contracts

8.1 Clause 8 applies in relation to a road transport contract and a contract for the carriage of goods irrespective of when the contract is made, including whether the contract is made before, on or after the day on which this order commences.

8.2 A participant in the supply chain in relation to a road transport driver must take all reasonable steps to ensure that any contract that the participant has with another participant in the supply chain does not contain any provision that is intended to have the effect, or that has the effect, of preventing or impeding compliance by a hirer, who engages a contractor driver, with the requirements imposed by this order.

8.3 Subclauses 8.3 to 8.12 apply to a person who, in a financial year, is both:

(a) a party to a contract for the carriage of goods, and that contract concerns the transport of a thing in respect of which a road transport driver is providing road transport services; and

(b) the hirer to whom a contractor driver is to provide road transport services under a road transport contract in respect of the thing referred to in subclause 8.3(a).

8.4 Subclauses 8.3 to 8.12 also apply to a person in subclause 8.5(a) or (b).

8.5 The hirer referred to in subclause 8.3 must permit the following persons to conduct an audit of the hirer’s compliance, in relation to the contractor driver, in the relevant financial year with the requirements imposed on the hirer by Part 4 of this order:

(a) a person who is the other party to the contract for the carriage of goods referred to in subclause 8.3(a);

(b) a person, other than the hirer, who in the relevant financial year is a party to a contract for the carriage of goods with the person referred to in subclause 8.5(a), and that contract concerns the transport of a thing:

(i) in respect of which a road transport driver is providing road transport services; and

(ii) the road transport services in respect of which are provided by the contractor driver under the road transport contract referred to in subclause 8.3(b).

8.6 Subclause 8.5 only requires the hirer to permit a person referred to in subclause 8.5(a) or (b) to conduct an audit in relation to a financial year if the person is, in that financial year, a party to a contract for the carriage of goods that singly provides, or to two or more contracts for the carriage of goods that collectively provide, for the carriage of goods on 270 or more days in that financial year.

8.7 A person permitted to conduct an audit under subclause 8.5:

(a) must conduct it by 31 December immediately following the end of the relevant financial year; and

(b) may conduct it by reviewing all, or a reasonably representative sample, of the records referred to in subclause 8.9(b).

8.8 The hirer must take all reasonable steps to facilitate the conduct of the audit referred to in subclause 8.5.

8.9 Without limiting subclause 8.8, all reasonable steps include:

(a) advising the person referred to in subclause 8.5(a) by 31 August immediately following the end of the relevant financial year that in that financial year the hirer was a party to the road transport contract referred to in subclause 8.3(b); and

(b) complying with any reasonable request by a person referred to in subclause 8.5(a) or (b) for access to records that show the hirer has complied, in relation to the contractor driver, in that financial year with the requirements imposed by Part 4 of this order.

8.10 The person referred to in subclause 8.5(a) must take all reasonable steps to notify the person referred to in subclause 8.5(b) by 30 September immediately following the end of the relevant financial year of any advice received under subclause 8.9(a).

8.11 If the person referred to in subclause 8.5(a) or (b) forms a reasonable belief, arising out of the audit, that the hirer has not complied, in relation to the contractor driver, in the relevant financial year with the requirements imposed by Part 4 of this order:

(a) the person must give written notice of that belief to the hirer; and

(b) the written notice referred to in subclause 8.11(a) must:

(i) set out the nature of the non-compliance and the action required to rectify it; and

(ii) require the hirer to rectify the non-compliance within 28 days after the giving of the notice.

8.12 If the person who gives a written notice under subclause 8.11(a) is not reasonably satisfied that the noncompliance has been rectified by the hirer as required by the notice, the person must immediately advise the Fair Work Ombudsman of:

(a) the person’s reasonable belief that the hirer has not complied, in relation to the contractor driver, in the relevant financial year with the requirements imposed by Part 4 of this order; and

(b) the nature of the non-compliance.

Part 4—Payments

9. Minimum payments for a distribution operation

9.1 A hirer who engages a contractor driver to provide a road transport service which does not involve a long distance operation must pay the contractor driver:

(a) at no less than the relevant rate per hour in Schedule A for each hour, (and pro-rata for any part of an hour), that the contractor driver necessarily spends in providing the road transport service; and

(b) at no less than the relevant rate per kilometre in Schedule A for each kilometre that the contractor driver necessarily travels in providing the road transport service.

9.2 A hirer who engages a contractor to provide a road transport service which does not involve a long distance operation may pay the contractor driver under clause 10, instead of clause 9, for each day the contractor driver necessarily travels 400 or more kilometres in providing the road transport service.

9.3 A hirer who engages a contractor driver to provide a road transport service which does not involve a long distance operation may pay the contractor driver for the road transport service by a method other than that in subclauses 9.1 and 9.2, provided that the other method does not result in the hirer paying the contractor driver, over a period of 28 consecutive days, an amount which is less than the amount the hirer would have had to pay the contractor driver under subclauses 9.1 and 9.2 over the period of 28 consecutive days.

9.4 A hirer who, under subclause 9.3, pays a contractor driver by a method other than that in subclauses 9.1 and 9.2 must:

(a) keep records which set out the amount the hirer would have had to pay the contractor driver under subclause 9.1 over the period of 28 consecutive days and how that amount has been calculated; and

(b) pay the contractor driver the difference between the amount the hirer has paid or is to pay the contractor driver, under subclause 9.3, over the period of 28 consecutive days and the amount the hirer would have had to pay the contractor driver, under subclauses 9.1 and 9.2, over the period of 28 consecutive days; and

(c) generate a valid taxation invoice for the contractor driver covering the difference between the two amounts in subclause 9.4(b) and must pay the contractor driver the difference between the two amounts within 30 days after the period of 28 consecutive days.

9.5 Subclauses 9.3 to 9.4 cease to operate at midnight on 3 October 2016.

10. Minimum payments for a long distance operation

10.1 A hirer who engages a contractor driver to provide a road transport service which does involve a long distance operation must pay the contractor driver:

(a) at no less than the relevant rate per hour in Schedule B for each hour (and pro-rata for any part of an hour), that the contractor driver necessarily spends in providing the road transport service; and

(b) at no less than the relevant rate per kilometre in Schedule B for each kilometre that the contractor driver necessarily travels in providing the road transport service.

10.2 A hirer who engages a contractor driver to provide a road transport service which does involve a long distance operation may pay the contractor driver for the road transport service by a method other than that in subclause 10.1, provided that the other method does not result in the hirer paying the contractor driver, over a period of 28 consecutive days, an amount which is less than the amount the hirer would have had to pay the contractor driver under subclause 10.1 over the period of 28 consecutive days.

10.3 A hirer who, under subclause 10.2, pays a contractor driver by a method other than that in subclause 10.1 must:

(a) keep records which set out the amount the hirer would have had to pay the contractor driver under subclause 10.1 over the period of 28 consecutive days and how that amount has been calculated; and

(b) pay the contractor driver the difference between the amount the hirer has paid or is to pay the contractor driver, under subclause 10.2, over the period of 28 consecutive days and the amount the hirer would have had to pay the contractor driver, under subclause 10.1, over the period of 28 consecutive days; and

(c) generate a valid taxation invoice for the contractor driver covering the difference between the two amounts in subclause 10.3(b) and must pay the contractor driver the difference between the two amounts within 30 days after the period of 28 consecutive days.

11. Facilitative provisions

11.1 For the purposes of clauses 9 and 10, each hour, or part thereof, that the contractor driver necessarily spends in providing the road transport service includes, but is not limited to:

(a) each hour, or part thereof, during which the contractor driver is required by the hirer to be at the disposal and/or direction of the hirer; and

(b) each period of rest time of 30 or less continuous minutes that the contractor driver is required by law to rest, unless another road transport driver is driving the vehicle used in the provision of the road transport service while the contractor driver is taking such rest time; and

(c) each hour, or part thereof, that the contractor driver is, or is assisting or supervising another person who is:

(i) driving a vehicle used in the provision of the road transport service; and/or

(ii) queuing and/or waiting, whilst in control of the vehicle used in the provision of the road transport service; and/or

(iii) loading things onto or unloading things from the vehicle and/or a trailer used in the provision of the road transport service, including tarping, installing or removing gates and the operation of on-board cranes, or waiting for someone else to do so; and/or

(iv) cleaning, inspecting, servicing or repairing a vehicle supplied by the hirer and/or a trailer supplied by the hirer that is used in the provision of the road transport service provided the cleaning, inspecting, servicing or repairing is reasonably required in order to provide the road transport service; and/or

(v) inspecting or attending to a load on the vehicle and/or a trailer used in the provision of the road transport service; and/or

(vi) refuelling the vehicle used in the provision of the road transport service, where the provision of the road transport service requires more fuel than the fuel tank of the vehicle can hold; and/or

(vii) recording information or completing a document as required by the hirer in relation to the vehicle and/or a trailer used in the provision of the road transport service; and/or

(viii) waiting in a location because of a natural disaster (eg flood or bushfire) or other emergency, provided that only up to a maximum of eight hours of such waiting in any period of 24 hours shall be counted and provided the contractor driver advised the hirer as soon as possible of the waiting and took all reasonable measures to minimise the waiting.

11.2 For the purposes of clauses 9 and 10, each hour, or part thereof, that the contractor driver necessarily spends in providing the road transport service does not include any hour, or part thereof, which is lost because of a breakdown in a vehicle and/or trailer supplied by the contractor driver or an accident involving the contractor driver.

11.3 For the purposes of clauses 9 and 10, each kilometre that the contractor driver necessarily travels in providing the road transport service is counted:

(a) from the work site or depot where the contractor driver is principally engaged by the hirer; or

(b) where the contractor driver is not principally engaged at a work site or depot, from a location specified by the hirer which is reasonable taking into account the road transport service provided by the contractor driver; and

(c) to the location at which the road transport service provided by the contractor driver concludes.

Part 5—Leave

12. Unpaid leave

12.1 Clause 12 applies where a hirer regularly engages a contractor driver to provide a road transport service during the 12 months which precede the date of an anniversary of the date of the first engagement by the hirer of the contractor driver to provide a road transport service.

12.2 A hirer must permit a contractor driver to take unpaid leave of up to four weeks during the 12 months which follow the date of each anniversary of the date of the first engagement by the hirer of the contractor driver to provide a road transport service.

12.3 The hirer must not unreasonably refuse to agree to the dates the contractor driver requests of the hirer to take the period of unpaid leave.

 

PRESIDENT

Schedule A—Minimum payments for a Distribution Operation

Download Schedule A—Minimum payments for a Distribution Operation (PDF)

Schedule B—Minimum payments for a Long Distance Operation

Download Schedule B—Minimum payments for a Long Distance Operation (PDF)