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Road Safety Remuneration Bill 2012

Part 2 Road safety remuneration orders

Division 1 Preparation of annual work program

18   Tribunal must prepare and publish a work program each year

             (1)  Before the end of each year of its operation, the Tribunal must prepare a work program for the next year.

             (2)  The work program must identify the matters the Tribunal proposes to inquire into in the next year of its operation, with a view to making a road safety remuneration order in relation to any or all of those matters. The matters identified may be any or all of the following:

                     (a)  a sector or sectors of the road transport industry;

                     (b)  issues for the road transport industry or a sector of the industry;

                     (c)  practices affecting the road transport industry or a sector of the industry.

             (3)  In preparing its work program for a year, the Tribunal must consult with industry.

             (4)  The Tribunal must publish its work program on the Tribunal’s website and by any other means the Tribunal considers appropriate.

             (5)  A work program prepared under subsection (1) is not a legislative instrument.



 

Division 2 Power to make a road safety remuneration order

19   Power to make a road safety remuneration order

             (1)  The Tribunal may make a road safety remuneration order under this Part consistent with the object of this Act.

Note:          See section 27 for what the order may deal with.

Tribunal may make order on its own initiative

             (2)  The Tribunal may make the order on its own initiative if the order is in relation to a matter identified in its work program.

Tribunal may make order on application

             (3)  The Tribunal may make the order on application by any of the following whether or not the order is in relation to a matter identified in its work program:

                     (a)  a road transport driver;

                     (b)  an employer or hirer of a road transport driver;

                     (c)  a participant in the supply chain in relation to a road transport driver;

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

                     (e)  an industrial association (other than an organisation) that is entitled to represent the interests of a road transport driver, employer or hirer of a road transport driver or participant in the supply chain in relation to a road transport driver, if:

                              (i)  the person or each person whose interests the industrial association claims to be representing by making the application has consented to the making of the application; and

                             (ii)  the Tribunal has permitted the application to be made.

             (4)  An application that relates to a matter not identified in the Tribunal’s work program must relate to a matter that is capable of being included in the Tribunal’s work program under subsection 18(2).

Tribunal may refuse to consider application

             (5)  The Tribunal may refuse to consider an application under subsection (3):

                     (a)  if the application relates to a matter not identified in the Tribunal’s work program—because the Tribunal considers that it is not appropriate to deal with the matter at the time; or

                     (b)  for any other reason.

             (6)  The Tribunal must notify the applicant of any refusal by the Tribunal to consider an application.

20   Matters the Tribunal must have regard to

             (1)  In deciding whether to make a road safety remuneration order, the Tribunal must have regard to the following matters:

                     (a)  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;

                     (b)  the likely impact of any order on the viability of businesses in the road transport industry;

                     (c)  the special circumstances of areas that are particularly reliant on the road transport industry, such as rural, regional and other isolated areas;

                     (d)  the likely impact of any order on the national economy and on the movement of freight across the nation;

                     (e)  orders and determinations made by the Minimum Wage Panel of Fair Work Australia in annual wage reviews and the reasons for those orders and determinations;

                      (f)  any modern awards relevant to the road transport industry (see subsection (2)) and the reasons for those awards;

                     (g)  the need to avoid unnecessary overlap with the Fair Work Act 2009 and any other laws prescribed for the purposes of this paragraph;

                     (h)  the need to reduce complexity and for any order to be simple and easy to understand;

                      (i)  the need to minimise the compliance burden on the road transport industry;

                      (j)  any other matter prescribed by the regulations for the purposes of this paragraph.

             (2)  For the purposes of paragraph (1)(f), each of the awards referred to in the definition of road transport industry (including an award referred to in regulations made for the purposes of paragraph (e) of the definition) is taken to be relevant to the road transport industry.

21   Publication of research

             (1)  The Tribunal must publish any research undertaken or commissioned by the Tribunal for the purposes of determining whether to make a road safety remuneration order or the terms in which any order should be made, so that submissions can be made under section 24 addressing issues covered by the research.

             (2)  The publication must be on the Tribunal’s website and by any other means the Tribunal considers appropriate.



 

Division 3 Preparing and consulting on draft road safety remuneration order

22   Tribunal to prepare and consult on draft order

                   Before making a road safety remuneration order, the Tribunal must prepare and consult on a draft of the order in accordance with this Division.

23   Publication of draft order

                   The Tribunal must publish the draft of the order on the Tribunal’s website and by any other means the Tribunal considers appropriate.

24   Affected persons and bodies to have a reasonable opportunity to make and comment on submissions for draft order

             (1)  The Tribunal must ensure that the following persons have a reasonable opportunity to make written submissions to the Tribunal for its consideration in relation to the draft of the order:

                     (a)  all persons and bodies likely to be affected if a road safety remuneration order based on the draft were to be made;

                     (b)  any person or body prescribed by the regulations for the purposes of this paragraph.

             (2)  The Tribunal must publish all submissions made to the Tribunal.

             (3)  However, if a submission made by a person or body includes information that is claimed by the person or body to be confidential or commercially sensitive, and the Tribunal is satisfied that the information is confidential or commercially sensitive, the Tribunal:

                     (a)  may decide not to publish the information; and

                     (b)  may instead publish:

                              (i)  a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

                             (ii)  if the Tribunal considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.

             (4)  The Tribunal must 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 on the material published under subsections (2) and (3), for its consideration.

             (5)  The publishing of material under subsections (2) and (3) must be on the Tribunal’s website and by any other means the Tribunal considers appropriate.

             (6)  A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

25   Hearings in relation to draft order

                   The Tribunal may, but is not required to, hold a hearing in relation to the draft of the order.

Note:          See section 88.

26   Finalising draft order

             (1)  The Tribunal may make any changes it thinks appropriate to the draft of the order, before making a road safety remuneration order based on the draft.

             (2)  The Tribunal may decide that no road safety remuneration order is to be made based on the draft. If the Tribunal does so, the Tribunal must publish notice of the decision on its website and by any other means the Tribunal considers appropriate.



 

Division 4 Making road safety remuneration order

27   Making road safety remuneration order

What the order may deal with

             (1)  If the Tribunal decides to make a road safety remuneration order, 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 to whom the order applies.

             (2)  Without limiting subsection (1), the Tribunal may make provision in the order in relation to any of the following:

                     (a)  conditions about minimum remuneration and other entitlements for road transport drivers who are employees, additional to those set out in any modern award relevant to the road transport industry (see subsection 20(2));

                     (b)  conditions about minimum rates of remuneration and conditions of engagement for contractor drivers;

                     (c)  conditions for loading and unloading vehicles, waiting times, working hours, load limits, payment methods and payment periods;

                     (d)  ways of reducing or removing remuneration-related incentives, pressures and practices that contribute to unsafe work practices.

             (3)  The order may impose requirements, in relation to a matter for which provision is made, on any or all of the following:

                     (a)  an employer or hirer of a road transport driver to whom the order applies;

                     (b)  a participant in the supply chain in relation to a road transport driver to whom the order applies.

Content of the order

             (4)  The order must specify:

                     (a)  the road transport drivers to whom the order applies; and

                     (b)  the persons on whom any requirements in the order are imposed; and

                     (c)  a commencement date for the order or a series of commencement dates (see subsection (5)); and

                     (d)  an expiry date for the order (which must not be later than 4 years after the commencement date, or if there is a series of commencement dates, after the earliest of those dates).

             (5)  The order may take effect in stages (as provided in the order) if the Tribunal considers that it is not feasible for the order to take effect on a single date.

Publication of order

             (6)  The Tribunal must publish the order on the Tribunal’s website and by any other means the Tribunal considers appropriate.

28   Persons on whom requirements are imposed must not contravene order

                   A person on whom a road safety remuneration order imposes a requirement must not contravene the requirement.

Note:          This section is a civil remedy provision (see Division 1 of Part 5).

29   Expiry of order

                   A road safety remuneration order ceases to have effect at the end of the expiry date specified in the order.

30   Road safety remuneration orders to be made by Full Bench

                   The function of making road safety remuneration orders under this Part is to be performed by a Full Bench of the Tribunal.



 

Division 5 Variation and review of road safety remuneration order

31   Review of road safety remuneration order

             (1)  The Tribunal must review a road safety remuneration order at some time in the period of 12 months ending on the expiry date specified in the order.

             (2)  After reviewing the order and before the expiry date, the Tribunal must do one of the following:

                     (a)  replace it with a road safety remuneration order in the same terms except for a new expiry date (which must be no more than 4 years after the date the replacement order is made);

                     (b)  replace it with a road safety remuneration order in different terms;

                     (c)  decide not to replace it.

             (3)  The Tribunal must ensure that the following persons have a reasonable opportunity to make written submissions to the Tribunal for its consideration in relation to action the Tribunal proposes to take under subsection (2):

                     (a)  all persons and bodies likely to be affected by the proposed action;

                     (b)  any person or body prescribed by the regulations for the purposes of this paragraph.

             (4)  Section 21 applies in relation to research undertaken or commissioned for the purposes of deciding on a proposed action under subsection (2).

             (5)  Subsections 24(2) to (6) apply in relation to submissions made in relation to the proposed action, as if they were submissions made under subsection 24(1).

32   Variation of road safety remuneration order

             (1)  At any time before the expiry date specified in a road safety remuneration order, the Tribunal may vary the order:

                     (a)  on its own initiative; or

                     (b)  on application by a person referred to in subsection (2).

             (2)  The Tribunal may vary the order on application by any of the following:

                     (a)  an employer or hirer of a road transport driver to whom the order applies;

                     (b)  a participant in the supply chain in relation to a driver to whom the order applies;

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

                     (d)  an industrial association (other than an organisation) that is entitled to represent the interests of a road transport driver, employer or hirer of a road transport driver or participant in the supply chain in relation to a road transport driver, if:

                              (i)  the person or each person whose interests the industrial association claims to be representing by making the application has consented to the making of the application; and

                             (ii)  the Tribunal has permitted the application to be made.

             (3)  In deciding whether to vary the order, the Tribunal must have regard to the matters in section 20.

             (4)  Before varying the order, the Tribunal must prepare and consult on a draft of the variation in accordance with Division 3, as if references in that Division to making an order were references to varying an order.

             (5)  Subsection (4) does not apply if the Tribunal considers that the variation is minor or technical.