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Thursday, 15 March 2012
Page: 3067


Mr SHORTEN (MaribyrnongMinister for Financial Services and Superannuation and Minister for Employment and Workplace Relations) (11:55): by leave—I present a supplementary explanatory memorandum to the bill and move government amendments (1)-(64), as circulated, together:

(1) Clause 4, page 3 (line 4), omit "33(2)", substitute "33(1)".

(2) Clause 4, page 3 (after line 4), after the definition of applicable services, insert:

approval - pending: see subsection 37A(5).

(3) Clause 4, page 3, after the proposed definition of approval-pending, insert:

approved road transport collective agreement means a road transport collective agreement for which an approval under Part 3 is in effect.

(4) Clause 4, page 3 (after line 28), after the definition of constitutional trade or commerce, insert:

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

(5) Clause 4, page 4 (line 10), omit "a safe remuneration approval", substitute "an approved road transport collective agreement".

(6) Clause 4, page 4 (after line 24), after the definition of immediate family, insert:

independent contractor is not confined to an individual.

(7) Clause 4, page 4 (after line 30), after the definition of inspector, insert:

lawyer means a person who is admitted to the legal profession by a Supreme Court of a State or Territory.

(8) Clause 4, page 5 (line 8), omit "33(3)", substitute "33(1)".

(9) Clause 4, page 5 (line 9), omit "33(2)", substitute "33(1)".

(10) Clause 4, page 5 (line 23), omit "subsection 33(2)", substitute "subsections 33(1) and (2)".

(11) Clause 4, page 6 (lines 16 and 17), omit the definition of safe remuneration approval.

(12) Clause 8, page 9 (lines 13 and 14), omit "road transport driver who is an independent contractor", substitute "contractor driver".

(13) Clause 13, page 13 (line 18), omit "road transport driver who is an independent contractor", substitute "contractor driver".

(14) Clause 19, page 17 (lines 18 to 20), omit paragraph (3)(d), substitute:

(d) an organisation that is entitled to represent the interests of a road transport driver or employer to whom the order will apply;

(15) Clause 19, page 17 (line 21), after "association", insert "(other than an organisation)".

(16) Clause 27, page 22 (lines 15 and 16), omit "road transport drivers who are independent contractors", substitute "contractor drivers".

(17) Clause 27, page 23 (line 6), after "date", insert ", or if there is a series of commencement dates, after the earliest of those dates".

(18) Clause 31, page 24 (line 8), omit "revoke the order and".

(19) Clause 31, page 24 (line 14), omit "not", substitute "decide not to".

(20) Clause 32, page 25 (lines 8 to 10), omit paragraph (2)(c), substitute:

(c) an organisation that is entitled to represent the interests of a road transport driver or employer to whom the order applies;

(21) Clause 32, page 25 (line 11), after "association", insert "(other than an organisation)".

(22) Heading to Part 3, page 26 (lines 1 to 3), omit the heading, substitute:

Part 3—Approval of certain collective agreements involving contractor drivers

(23) Page 26 (before line 5), before clause 33, insert:

32A Power to approve road transport collective agreements

(1) The Tribunal may approve a road transport collective agreement under this Part.

(2) In deciding whether to approve a road transport collective agreement, the Tribunal may have regard to whether the benefit of approving the agreement would outweigh the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if the Tribunal approved the agreement.

(24) Clause 33, page 26 (lines 5 to 25), omit the clause, substitute:

33 Road transport collective agreements

(1) A road transport collective agreement is an agreement:

(a) between:

   (i) contractor drivers (the participating drivers) with whom a hirer or potential hirer proposes to contract for the provision of specified road transport services (the applicable services); and

   (ii) the hirer or potential hirer of the drivers (the participating hirer); and

(b) that specifies:

   (i) who the participating hirer is; and

   (ii) who the participating drivers are; and

   (iii) the basis on which the participating drivers became part of that group of drivers; and

(c) that specifies remuneration or related conditions (or both) for participating drivers who provide applicable services to the participating hirer.

Note:   If the Tribunal approves the agreement, its effect is not limited to participating drivers: see section 36.

(2) However, an agreement made under any of the following laws is not a road transport collective agreement:

(a) Chapter 6 of the Industrial Relations Act 1996 of New South Wales (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);

(b) the Owner Drivers and Forestry Contractors Act 2005 of Victoria;

(c) the Owner-Drivers (Contracts and Disputes) Act 2007 of Western Australia;

(d) a law of a State or Territory that is specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified.

(3) The regulations may prescribe a code of conduct in relation to collective bargaining for road transport collective agreements.

(4) Before the Governor-General makes a regulation under subsection (3), the Minister must consult with industry and the Tribunal.

(5) A code of conduct prescribed under subsection (3) must have as its object the facilitation of effective and efficient collective bargaining for road transport collective agreements.

(6) Despite any other law of the Commonwealth, a State or a Territory, a road transport collective agreement has no effect unless it is an approved road transport collective agreement.

Note:   Subsection (6) does not affect agreements made under any of the laws mentioned in subsection (2), as they are not road transport collective agreements.

(25) Clause 34, page 26 (line 27), omit "grant a safe remuneration approval for", substitute "approve".

(26) Clause 34, page 27 (after line 5), after paragraph 34(c), insert:

(ca) the participating hirer and the participating drivers have conducted themselves in accordance with any code of conduct prescribed under subsection 33(3); and

(27) Heading to clause 35, page 27 (line 9), omit the heading, substitute:

35 Approval of road transport collective agreements

(28) Clause 35, page 27 (line 10), omit "decides to grant a safe remuneration approval for", substitute "approves".

(29) Clause 35, page 27 (lines 13 and 14), omit "road transport drivers", substitute "contractor drivers".

(30) Clause 35, page 27 (line 16), omit "In addition to the statement in subsection (1), the approval must", substitute "The statement under subsection (1) must also".

(31) Clause 35, page 27 (lines 23 and 24), omit "road transport driver", substitute "contractor driver".

(32) Clause 35, page 27 (line 29), omit "approval", substitute "statement".

(33) Clause 35, page 27 (line 31), omit "approval", substitute "statement".

(34) Heading to clause 36, page 28 (line 1), omit the heading, substitute:

36 Effect of approval

(35) Clause 36, page 28 (lines 2 to 6), omit subclause (1), substitute:

(1) The participating hirer in relation to an approved road transport collective agreement must not provide remuneration or related conditions, to a contractor driver who is providing applicable services to the participating hirer, that are less beneficial than the remuneration or related conditions specified in the agreement.

(36) Clause 36, page 28 (line 8), omit "road transport driver", substitute "contractor driver".

(37) Clause 36, page 28 (line 10), omit "to which the approval relates".

(38) Clause 37, page 28 (lines 13 and 14), omit "grants a safe remuneration approval has no effect in relation to a road transport driver", substitute "approves a road transport collective agreement has no effect in relation to a contractor driver".

(39) Clause 37, page 28 (lines 16 to 22), omit subclause (2), substitute:

(2) If a road safety remuneration order takes effect after the Tribunal approves a road transport collective agreement, the agreement ceases to have effect in relation to a contractor driver to the extent that the remuneration or related conditions specified in the agreement are less beneficial to the driver than a term of the order that applies to the driver.

(40) Page 28 (after line 22), after clause 37, insert:

37A Authorisation of conduct for the purposes of the Competition and Consumer Act 2010

Conduct in accordance with approved road transport collective agreement

(1) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, anything done in accordance with an approved road transport collective agreement by:

(a) the participating hirer; or

(b) a contractor driver who is providing applicable services to the participating hirer; or

(c) a person representing a person or persons referred to in paragraph (a) or (b);

is specified in and specifically authorised by this Act.

Entry into approval-pending road transport collective agreement

(2) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, entry into an approval-pending road transport collective agreement by:

(a) a hirer or potential hirer of contractor drivers; and

(b) contractor drivers;

is specified in and specifically authorised by this Act.

Conduct in preparation for or incidental to entry into or obtaining approval of approval-pending road transport collective agreement

(3) For the purposes of subsection 51(1) of the Competition and Consumer Act 2010, anything:

(a) done by:

   (i) a hirer or potential hirer of contractor drivers; or

   (ii) a contractor driver; or

   (iii) a person representing a person or persons referred to in subparagraph (i) or (ii); and

(b) done in preparation for, or incidental to, entry into, or seeking approval of, an approval-pending road transport collective agreement;

is specified in and specifically authorised by this Act.

Certain conduct not protected

(4) Despite subsections (1), (2) and (3), conduct referred to in those subsections is not specified in or specifically authorised by this Act if the conduct is:

(a) making a contract or arrangement, or arriving at an understanding, that is or contains an exclusionary provision within the meaning of section 4D of the Competition and Consumer Act 2010; or

(b) conduct that is boycott conduct within the meaning of subsection 87AA(2) of the Competition and Consumer Act 2010.

Meaning of approval-pending

(5) A road transport collective agreement is approval-pending if:

(a) approval of the agreement under this Part is intended to be or has been sought; and

(b) the Tribunal has neither approved nor refused to approve the agreement.

(41) Heading to clause 38, page 28 (line 23), omit "safe remuneration".

(42) Clause 38, page 28 (line 24), omit "A safe remuneration approval", substitute "The approval of a road transport collective agreement".

(43) Clause 38, page 28 (line 25), omit "in", substitute "for".

(44) Heading to clause 39, page 28 (lines 26 and 27), omit the heading, substitute:

39 Approvals to be given by dual FWA member or Full Bench

(45) Clause 39, page 28 (line 28), omit "granting safe remuneration approvals", substitute "approving road transport collective agreements".

(46) Clause 40, page 29 (line 13), at the end of subclause (1), add:

; and (c) if subsection 41(2) or 42(2) applies to the dispute—the application is made before the end of the relevant period under section 40A.

(47) Page 29 (after line 16), after clause 40, insert:

40A Time limit for certain applications

(1) For the purposes of paragraph 40(1)(c), an application must be made before the end of:

(a) the period of:

   (i) if subsection 41(2) applies—14 days after the dismissal took effect; or

   (ii) if subsection 42(2) applies—28 days after the termination took effect; or

(b) if the Tribunal allows a further period under subsection (2)—the further period allowed by the Tribunal.

(2) The Tribunal may allow a further period for the application to be made if the Tribunal is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the road transport driver first became aware of the dismissal or termination after it had taken effect; and

(c) any action taken by the driver to dispute the dismissal or termination; and

(d) prejudice to the employer or hirer of the driver (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the driver and other drivers in a similar position.

(48) Heading to clause 42, page 30 (line 15), omit the heading, substitute:

42 Disputes involving contractor drivers

(49) Heading to subclause 42(1), page 30 (line 16), omit the heading, substitute:

Dispute between contractor driver and hirer

(50) Clause 42, page 30 (lines 17 and 18), omit "road transport driver who is an independent contractor", substitute "contractor driver".

(51) Heading to subclause 42(2), page 30 (line 23), omit the heading, substitute:

Dispute between contractor driver and former hirer

(52) Clause 42, page 30 (lines 24 and 25), omit "road transport driver who is an independent contractor", substitute "contractor driver".

(53) Clause 46, page 33 (table item 1, column 2), omit "a registered employee association", substitute "an organisation".

(54) Clause 46, page 34 (table item 2, column 2), omit "a registered employee association", substitute "an organisation".

(55) Clause 46, page 34 (table item 3, column 2), omit "a registered employee association", substitute "an organisation".

(56) Clause 46, page 34 (table item 5, column 2), omit "a registered employee association", substitute "an organisation".

(57) Clause 47, page 35 (line 6), omit "A registered employee association", substitute "An organisation".

(58) Clause 47, page 35 (line 11), omit "association", substitute "organisation".

(59) Clause 47, page 35 (line 13), after "association", insert "(other than an organisation)".

(60) Clause 61, page 41 (lines 4 and 5), omit "in relation to safe remuneration approvals", substitute "of approved road transport collective agreements".

(61) Clause 80, page 53 (line 19), omit "grant safe remuneration approvals in relation to", substitute "approve".

(62) Clause 80, page 53 (lines 26 and 27), omit paragraph 80(e), substitute:

(e) any other functions prescribed by the regulations;

(f) any other functions conferred on the Tribunal by another law of the Commonwealth.

(63) Clause 92, page 59 (lines 29 and 30), omit "to grant, or refuse to grant, a safe remuneration approval in relation to", substitute "to approve, or refuse to approve,".

(64) Clause 117, page 71 (line 28), omit "granted", substitute "approved".

The government has moved amendments to the Road Safety Remuneration Bill 2011. The amendments the government is proposing today were developed in response to feedback received through submissions made by industry stakeholders to the parliamentary inquiry into the bills to align rules regarding exemptions from competition law for bargaining with those currently in operation in New South Wales, Victoria and Western Australia and to make consequential amendments and fix minor drafting errors. I would like to thank the House Standing Committee on Infrastructure and Communications, chaired by the member for Cunningham, for conducting the parliamentary inquiry into the bills. I note that the committee recommended that the House should pass its legislation.

The amendments proposed by the government to the Road Safety Remuneration Bill 2011 are designed to clarify the tribunal's role in approving road transport collective agreements consistent with the concurrent operation of laws regulating owner-drivers in New South Wales, Victoria and Western Australia, to make clear that collective agreements entered into by contract drivers under these state laws are not road transport agreements for the purposes of part 3 of the bill and to allow certain conduct by contract drivers and their hirers to be exempt from the operation of the Competition and Consumer Act 2010. The effect of these amendments will be to enable contract drivers and hirers to collectively bargain and enter into approved collective agreements without breaching the Competition and Consumer Act. In addition, these amendments would ensure the same standing for registered employer organisations as it does for registered employee organisations under the legislation, provide time limits for when applications can be made to deal with a dispute arising from a dismissal or contract termination and make minor technical amendments to correct editorial errors or minor omissions.