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Road Safety Remuneration Bill 2012

Part 6 Road Safety Remuneration Tribunal

Division 1 Establishment and functions of Tribunal

79   Establishment of Tribunal

             (1)  The Road Safety Remuneration Tribunal is established by this section.

             (2)  The Tribunal consists of:

                     (a)  the President; and

                     (b)  at least 2 and no more than 4 persons who are experienced in workplace relations matters; and

                     (c)  at least 2 and no more than 4 persons who have knowledge of, or experience in, one or more of the following fields:

                              (i)  transport and logistics;

                             (ii)  driving in the road transport industry;

                            (iii)  business, industry or commerce;

                            (iv)  work health and safety in the road transport industry.

80   Functions of Tribunal

                   The Tribunal has the following functions:

                     (a)  to make road safety remuneration orders under Part 2;

                     (b)  to approve road transport collective agreements under Part 3;

                     (c)  to deal with certain disputes relating to road transport drivers, their employers or hirers and participants in the supply chain under Part 4;

                     (d)  to conduct research into remuneration-related matters that may affect safety in the road transport industry;

                     (e)  any other functions prescribed by the regulations;

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

81   Tribunal has privileges and immunities of the Crown

                   The Tribunal has the privileges and immunities of the Crown.

82   Protection of Tribunal members

                   A member of the Tribunal has, in performing his or her functions or exercising his or her powers as a member of the Tribunal, the same protection and immunity as a Justice of the High Court.



 

Division 2 Performance of functions of Tribunal

Subdivision A Role of the President

83   Role of President in performance of functions

                   The President is responsible for ensuring that the Tribunal performs its functions efficiently and effectively.

Subdivision B Applications to Tribunal

84   Dismissing applications

             (1)  Without limiting when the Tribunal may dismiss an application, the Tribunal may dismiss an application if:

                     (a)  the application is not made in accordance with this Act; or

                     (b)  the application is frivolous or vexatious; or

                     (c)  the application has no reasonable prospects of success.

             (2)  The Tribunal may dismiss an application:

                     (a)  on its own initiative; or

                     (b)  on application.

Subdivision C Performance of functions

85   Performance of functions generally

             (1)  In performing its functions, the Tribunal:

                     (a)  may regulate the conduct of its proceedings as it sees fit and is not bound to act in a formal manner; and

                     (b)  is not bound by the rules of evidence and procedure in relation to any matter it is dealing with (even if it conducts a hearing in relation to the matter).

             (2)  The performance of the functions of the Tribunal is not affected by reason only of there being a vacancy in the membership of the Tribunal, unless the vacancy is in the office of the President.

86   Powers of Tribunal to perform functions

             (1)  The Tribunal may, except as provided by this Act, inform itself in relation to matters it is dealing with in any manner it considers appropriate.

             (2)  Without limiting subsection (1), the Tribunal may inform itself in the following ways:

                     (a)  by requiring a compellable person to attend before the Tribunal;

                     (b)  by inviting, subject to any terms and conditions determined by the Tribunal, oral or written submissions (see for example subsection 24(1));

                     (c)  by requiring a compellable person to provide copies of documents or records, or to provide any other information to the Tribunal;

                     (d)  by taking evidence under oath or affirmation in accordance with the regulations (if any);

                     (e)  by conducting inquiries;

                      (f)  by undertaking or commissioning research;

                     (g)  by conducting a conference (see section 87);

                     (h)  by holding a hearing (see section 88).

87   Conferences

             (1)  For the purposes of performing a function of the Tribunal, the Tribunal may direct a compellable person to attend a conference at a specified time and place.

             (2)  If a Full Bench is performing the function, the President is responsible for conducting the conference. Otherwise, the dual FWA member performing the function is responsible.

             (3)  The conference must be conducted in private, unless the person conducting the conference directs that it be conducted in public.

             (4)  If the conference is to arbitrate a dispute under Part 4, then despite subsections (1) and (3):

                     (a)  the Tribunal must not direct a person to attend the conference unless the person is a party to the dispute; and

                     (b)  the person conducting the conference must not direct that it be conducted in public.

88   Hearings

             (1)  The Tribunal is not required to hold a hearing in performing functions under this Act.

             (2)  If the Tribunal holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

             (3)  The Tribunal may make the following orders in relation to a hearing that the Tribunal holds if the Tribunal is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

                     (a)  orders that all or part of the hearing is to be held in private;

                     (b)  orders about who may be present at the hearing;

                     (c)  orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;

                     (d)  orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

                              (i)  evidence given in the hearing;

                             (ii)  matters contained in documents before the Tribunal in relation to the hearing.

             (4)  Subsection (3) does not apply to the publication of a submission made to the Tribunal for consideration in determining whether to make a road safety remuneration order or take a proposed action under subsection 31(2) (see subsections 24(3) and 31(4)).

89   Offences in relation to attendance before Tribunal

Required to attend

             (1)  A person commits an offence if:

                     (a)  the person has been required to attend before the Tribunal; and

                     (b)  the person fails to attend as required.

Penalty:  Imprisonment for 6 months.

Oath or affirmation

             (2)  A person commits an offence if:

                     (a)  the person attends before the Tribunal; and

                     (b)  the Tribunal requires the person to take an oath or make an affirmation; and

                     (c)  the person refuses or fails to be sworn or to make an affirmation as required.

Penalty:  Imprisonment for 6 months.

Questions or documents

             (3)  A person commits an offence if:

                     (a)  the person attends before the Tribunal; and

                     (b)  the Tribunal requires the person to answer a question or produce a document; and

                     (c)  the person refuses or fails to answer the question or produce the document.

Penalty:  Imprisonment for 6 months.

Defence of reasonable excuse

             (4)  Subsection (1), (2) or (3) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code .

90   Confidential evidence

             (1)  The Tribunal may make an order prohibiting or restricting the publication of the following in relation to a matter before the Tribunal (whether or not the Tribunal holds a hearing in relation to the matter) if the Tribunal is satisfied that it is desirable to do so because of the confidential nature of the evidence, or for any other reason:

                     (a)  evidence given to the Tribunal in relation to the matter;

                     (b)  the names and addresses of persons making submissions to the Tribunal in relation to the matter;

                     (c)  matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal in relation to the matter;

                     (d)  the whole or any part of its decisions or reasons in relation to the matter.

             (2)  Subsection (1) does not apply to the publication of a submission made to the Tribunal for consideration in determining whether to make a road safety remuneration order or take a proposed action under subsection 31(2) (see subsections 24(3) and 31(4)).

Subdivision D Representation by lawyers and paid agents

91   Representation by lawyers and paid agents

             (1)  Except as provided by subsection (2) or the procedural rules, a person may be represented in a matter before the Tribunal (including by making an application or submission to the Tribunal on behalf of the person) by a lawyer or paid agent only with the permission of the Tribunal.

             (2)  The Tribunal’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under section 24 or 31.

             (3)  For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

                     (a)  is an employee or officer of the person; or

                     (b)  is an employee or officer of an industrial association that is representing the person.

Subdivision E Appeals

92   Appeal of decisions

             (1)  A person who is aggrieved by:

                     (a)  a decision of a dual FWA member to approve, or refuse to approve, a road transport collective agreement under Part 3; or

                     (b)  a decision of a dual FWA member in relation to a dispute being dealt with under Part 4;

may appeal the decision with the permission of the Tribunal.

             (2)  The person may appeal the decision by applying to the Tribunal.

             (3)  A Full Bench must:

                     (a)  decide whether to grant permission to appeal the decision; and

                     (b)  if the Full Bench decides to grant permission—hear the appeal in accordance with section 94.

             (4)  Without limiting when permission to appeal may be granted, a Full Bench must grant permission if the Full Bench is satisfied that it is in the public interest to do so.

93   Staying decisions that are appealed

             (1)  The Full Bench may order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the Full Bench considers appropriate, until a decision in relation to the appeal is made or the Full Bench makes a further order.

             (2)  An order under subsection (1) in relation to the appeal may be made by:

                     (a)  the Full Bench; or

                     (b)  the President.

94   Process for appealing decisions

             (1)  The Full Bench may deal with an appeal in any manner it considers appropriate, including by holding a hearing or conducting a conference.

Note:          See sections 87 and 88.

             (2)  The Full Bench may:

                     (a)  admit further evidence; and

                     (b)  take into account any other information or evidence.

             (3)  The Full Bench may do any of the following in relation to the appeal:

                     (a)  confirm, quash or vary the decision;

                     (b)  make a further decision in relation to the matter that is the subject of the appeal;

                     (c)  refer the matter that is the subject of the appeal to a dual FWA member and:

                              (i)  require the member to deal with the subject matter of the decision; or

                             (ii)  require the member to act in accordance with the directions of the Full Bench.

95   Referring questions of law to the Federal Court

             (1)  The President may refer a question of law arising in a matter being appealed to the Full Bench for the opinion of the Federal Court.

             (2)  A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

             (3)  The Full Bench may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the Tribunal may exercise powers in relation to the matter.

             (4)  Once the Federal Court has determined the question, the Full Bench may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the Full Bench has not already done so).

             (5)  However, if the Full Bench has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the Full Bench must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.

Subdivision F Organisation of Tribunal

96   Constitution of Full Bench

             (1)  If a function of the Tribunal may or must be performed by a Full Bench of the Tribunal, the Full Bench is to consist of either:

                     (a)  3 members of the Tribunal, being the President, one dual FWA member and one industry member; or

                     (b)  5 members of the Tribunal, being the President, 2 dual FWA members and 2 industry members.

             (2)  The President is to determine how many and which members of the Tribunal form part of a Full Bench.

             (3)  A decision of a majority of the members on the Full Bench prevails.



 

Division 3 Members of Tribunal

Subdivision A Appointment of members of Tribunal

97   Appointment

             (1)  The members of the Tribunal are to be appointed by the Governor-General by written instrument for a period not exceeding 5 years.

             (2)  The person appointed as the President must also be a Deputy President of Fair Work Australia.

             (3)  The persons appointed for the purposes of paragraph 79(2)(b) must also be Deputy Presidents or Commissioners of Fair Work Australia.

98   Basis of appointment of industry members

                   An industry member of the Tribunal holds office on a part-time basis.

Note:          Members of the Tribunal who are dual FWA members are permitted to hold dual appointments under section 632 of the Fair Work Act 2009 .

Subdivision B Terms and conditions of members of Tribunal

99   Outside employment of industry members

                   An industry member must not engage in any paid employment that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties.

100   Remuneration

             (1)  A dual FWA member is not to be paid any remuneration or allowances in relation to the member’s office as a member of the Tribunal.

             (2)  An industry member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by that Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.

             (3)  An industry member is to be paid the allowances prescribed by the regulations.

             (4)  This section has effect subject to the Remuneration Tribunal Act 1973 .

101   Leave of absence

                   A dual FWA member is allowed to be absent from the Tribunal during any period of recreation leave or any other leave of absence to which the member is entitled under section 639 of the Fair Work Act 2009 .

102   Disclosure of interests

             (1)  This section applies if:

                     (a)  a member of the Tribunal (other than the President) is dealing with, or will deal with, a matter; and

                     (b)  the member has or acquires any interest (the potential conflict ), pecuniary or otherwise, that conflicts or could conflict with the proper performance of the member’s functions in relation to the matter.

             (2)  The member must disclose the potential conflict to the President.

             (3)  If the member does so, the member may only deal, or continue to deal, with the matter with the President’s approval.

             (4)  The President must direct a member of the Tribunal not to deal, or to no longer deal, with a matter if:

                     (a)  the President becomes aware that the member has a potential conflict in relation to the matter (whether or not because of a disclosure referred to in subsection (2)); and

                     (b)  the President considers that the member should not deal, or should no longer deal, with the matter.

             (5)  To avoid doubt, subsection (4) applies to a member even if the President has previously given approval to the member under subsection (3).

103   Termination of appointment on grounds of misbehaviour or incapacity

                   The Governor-General may terminate the appointment of a member of the Tribunal if an address praying for the termination, on one of the following grounds, is presented to the Governor-General by each House of the Parliament in the same session:

                     (a)  proved misbehaviour;

                     (b)  the member is unable to perform the duties of his or her office because of physical or mental incapacity.

104   Suspension on grounds of misbehaviour or incapacity

Governor-General may suspend member

             (1)  The Governor-General may suspend a member of the Tribunal from office:

                     (a)  for misbehaviour; or

                     (b)  if the member is unable to perform the duties of his or her office because of physical or mental incapacity.

Statement of grounds

             (2)  The Minister must cause to be tabled in each House of Parliament, within 7 sitting days of that House after the suspension, a statement identifying the member and setting out the ground of the suspension.

Resolution by a House of Parliament

             (3)  A House of the Parliament may, within 15 sitting days of that House after the day the statement has been tabled in it, declare by resolution that the appointment of the member should be terminated.

Suspension terminates

             (4)  If a House does not pass a resolution in that way, the suspension terminates.

Appointment to be terminated

             (5)  If each House of the Parliament passes a resolution in that way, the Governor-General must terminate the appointment of the member.

Suspension not to affect entitlements

             (6)  The suspension of a member under this section does not affect any entitlement of the member to be paid remuneration and allowances in accordance with this Act.

105   Termination of appointment for bankruptcy, etc.

                   The Governor-General must terminate the appointment of a member if:

                     (a)  the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  the member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  the member fails, without reasonable excuse, to comply with section 102 (disclosure of interests).

106   Termination of appointment for outside employment

                   The Governor-General must terminate the appointment of an industry member if the member engages in paid employment that, in the President’s opinion, conflicts or may conflict with the proper performance of the member’s duties (see section 99).

107   Automatic cessation of appointment for loss of qualification

             (1)  If the President ceases to be a Deputy President of Fair Work Australia, the President’s appointment to the Tribunal ceases on the same day.

             (2)  If a person appointed for the purposes of paragraph 79(2)(b) ceases to be a Deputy President or Commissioner of Fair Work Australia, the person’s appointment to the Tribunal ceases on the same day.

108   Resignation

             (1)  A member of the Tribunal may resign his or her appointment by giving the Governor-General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

109   Other terms and conditions of members

                   A member of the Tribunal holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General.

110   Acting appointments

             (1)  The Minister may, by written instrument, appoint a person who is qualified for appointment as a particular kind of member of the Tribunal to act as a member of that kind:

                     (a)  during a vacancy in the office of a member of that kind (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when a member of that kind:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

             (2)  The appointment must be for a specified period of not more than 12 months.

Note:          For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901 .

Subdivision C Miscellaneous matters relating to members of Tribunal

111   Disclosure of information by Tribunal

                   The Tribunal may disclose information acquired by the Tribunal in the course of performing its functions or exercising its powers if the President reasonably believes:

                     (a)  that it is necessary or appropriate to do so in the course of performing the Tribunal’s functions or exercising the Tribunal’s powers; or

                     (b)  that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.



 

Division 4 General Manager and consultants

112   Role of General Manager of Fair Work Australia

             (1)  The General Manager of Fair Work Australia has the function of assisting the President in ensuring that the Tribunal performs its functions efficiently and effectively.

             (2)  The General Manager has power to do all things necessary or convenient to be done for the purpose of performing his or her function.

             (3)  In particular, the General Manager is to assist the President in ensuring that the Tribunal performs its function under paragraph 80(d) and may engage persons having suitable qualifications and experience as consultants for this purpose.

             (4)  The President may direct the General Manager as to the manner in which the General Manager is to perform his or her functions or exercise his or her powers.

             (5)  The direction may be of a general nature or may relate to a particular matter.

             (6)  The General Manager must comply with the direction except to the extent that compliance with the direction would be inconsistent with the General Manager’s:

                     (a)  performance of functions or exercise of powers in relation to Fair Work Australia; or

                     (b)  performance of functions or exercise of powers under the Financial Management and Accountability Act 1997 in relation to Fair Work Australia; or

                     (c)  performance of functions or exercise of powers under the Public Service Act 1999 in relation to Fair Work Australia.

             (7)  If a direction is in writing, the direction is not a legislative instrument.



 

Division 5 Miscellaneous matters relating to Tribunal

113   Procedural rules

             (1)  After consulting the other members of the Tribunal, the President may, by legislative instrument, make procedural rules in relation to:

                     (a)  the practice and procedure to be followed by the Tribunal; or

                     (b)  the conduct of business in relation to matters the Tribunal is authorised to deal with.

             (2)  Without limiting subsection (1), the procedural rules may provide for the following:

                     (a)  the requirements for making an application to the Tribunal;

                     (b)  the circumstances in which a lawyer or paid agent may make an application or submission to the Tribunal on behalf of a person who is entitled to make the application or submission;

                     (c)  the form and manner in which, and the time within which, submissions may or must be made to the Tribunal;

                     (d)  the procedural requirements for making decisions of the Tribunal;

                     (e)  the form and manner in which the Tribunal gives directions and notifies persons of things;

                      (f)  who is notified by the Tribunal of things;

                     (g)  the manner in which conferences are to be conducted.

             (3)  To avoid doubt, subsection (1) includes the power to make procedural rules in relation to any functions conferred on the Tribunal by any other law of the Commonwealth.

114   Regulations dealing with Tribunal matters

                   The regulations may provide for any matter that the procedural rules may provide for.

Note:          Regulations prevail over procedural rules if inconsistent (see subsection 121(2)).

115   Costs

             (1)  A person must bear the person’s own costs in relation to a matter before the Tribunal.

             (2)  However, the Tribunal may order a person to bear some or all of the costs of another person in relation to an application to the Tribunal if:

                     (a)  the Tribunal is satisfied that the person made or responded to the application vexatiously or without reasonable cause; or

                     (b)  the Tribunal is satisfied that it should have been reasonably apparent to the person that the person’s application or response had no reasonable prospect of success.

             (3)  A person on whom an order imposes a requirement to pay costs must not contravene the requirement.

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

116   Annual report

             (1)  The President must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Tribunal during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901 , which contains extra rules about annual reports.

             (2)  To avoid doubt, subsection (1) does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988 .

117   President must provide certain information etc. to the Minister and Fair Work Ombudsman

             (1)  The President must provide the Minister and the Fair Work Ombudsman with:

                     (a)  copies of any enforceable instrument made or approved by the Tribunal; and

                     (b)  the information and copies of documents prescribed by the regulations;

by the time, and in the form, prescribed.

             (2)  The regulations may prescribe information and documents relating to or derived from information that:

                     (a)  is publicly available; and

                     (b)  relates to matters the Tribunal is authorised to deal with.