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Road Safety Remuneration Bill 2012

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2010-2011

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

ROAD SAFETY REMUNERATION BILL 2011

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, Senator the Hon Chris Evans)

 



ROAD SAFETY REMUNERATION BILL 2011

 

OUTLINE

The Bill will establish a new Road Safety Remuneration Tribunal which will have the objective of promoting safety and fairness in the road transport industry. 

The Tribunal will be empowered to inquire into sectors, issues and practices within the road transport industry and, where appropriate, determine mandatory minimum rates of pay and related conditions for employed and self-employed drivers.  These determinations, to be known as Road Safety Remuneration Orders (RSROs), will be in addition to any existing rights employed drivers have under industrial instruments/contracts of employment and self-employed (independent contractor) drivers have under their contracts for services.  RSROs may be made by the Tribunal on its own initiative or on application;

The Tribunal will also be empowered to grant ‘safe remuneration approvals’ in relation to the remuneration and remuneration-related conditions contained in a road transport collective agreement between a hirer and all self-employed (independent contractor) drivers with whom the hirer proposes to contract.

 

Finally, the Tribunal will be empowered to resolve disputes between drivers, their hirers or employers and participants in the road transport industry supply chain about remuneration and related conditions in so far as they provide incentives to work in an unsafe manner.  The Tribunal can also deal with disputes arising from the termination of a road transport contract.  The Tribunal may deal with a dispute as it considers appropriate, including by:

 

o    mediation or conciliation;

o    making a recommendation or expressing an opinion;

o    arbitration with the consent of the parties.



The Tribunal will be made up of a mixture of FWA members and expert members with qualifications relevant to the road transport industry.  The Tribunal secretariat will be provided by the General Manager of FWA.

The Bill will also establish a compliance regime for the enforcement of RSROs, safe remuneration approvals and any orders arising out of the arbitration (by consent) of a dispute.  Compliance functions will be performed by the FWO and, in some cases, by organisations registered under the Fair Work (Registered Organisations) Act 2009 who hold entry permits under the FW Act. 

The Bill complements existing Federal legislation such as the FW Act and the Independent Contractors Act 2006 ; current State-based schemes dealing with owner-driver contracts; and proposed State-based heavy vehicle laws. 

 

Abbreviations used in this EM

 

Meaning

FW Act

Fair Work Act 2009

FWA

Fair Work Australia

FWO

Fair Work Ombudsman

RSRO

road safety remuneration order

 

FINANCIAL IMPACT STATEMENT

The cost of establishing the Road Safety Remuneration System is $11.77 million over four years commencing in 2011-12.  These costs will be fully offset by the Department of Education, Employment and Workplace Relations. 

 

 

 





Part 1 - Preliminary



Overview

1.                        Part 1 sets out various preliminary provisions. 

 

2.                        Division 1 contains the short title, commencement and the object of the Bill.

 

3.                        Division 2 contains definition provisions that explain meanings of the terms used throughout the Bill.  Division 2 also contains provisions establishing the requisite constitutional connection for the Bill.    

 

4.                        The Bill will apply to all employed and self-employed (independent contractor) drivers in the road transport industry, to the fullest extent possible under the Constitution.  The road transport industry is defined by reference to the coverage of the existing 4 modern awards that apply in the industry.  The Bill will allow for the Tribunal to make RSROs for the benefit of all drivers.  These RSROs will apply to employers and hirers of drivers, as well as other parties in the road transport supply chain.  The Bill relies on the corporations power (51(xx) of the Constitution), the trade and commerce power (paragraph 51(i)), the Commonwealth’s power to regulate entities of the Commonwealth and Commonwealth authorities and the territories power.  The Bill includes severance provisions to allow for the Bill to be read down to limit the corporations power to operations for the business of the corporation if necessary.

 

5.                        Division 3 sets out the interaction with other laws.  This Bill is not intended to over-ride the relevant State laws dealing with owner-driver contracts but this Bill provides that any benefit arising for a driver under an RSRO or approval granted will not be reduced because of the operation of any existing law of the Commonwealth or any State or Territory law.  The current relevant State laws are set out in the Bill, which also allows for other State laws to be added by regulation.  In particular, this Bill is not intended to overlap or duplicate the provisions in the future National Heavy Vehicle laws.

Notes on clauses

Division 1 - General

Clause 1 - Short title

6.                        This is a formal provision specifying the short title of the Bill. 

Clause 2 - Commencement

7.                        This clause specifies that the Bill commences on 1 July 2012.

Clause 3 - Object

8.                        This clause sets out the object of the Bill.  The object is to promote safety and fairness in the road transport industry by doing such things as ensuring that the drivers do not have remuneration-related incentives to work in an unsafe manner and ensuring that all participants in the supply chain take responsibility for ensuring standards are maintained and commercial incentives and pressures and industry practices that contribute to unsafe work practices are removed.   Safety and fairness is also to be promoted by facilitating access to dispute resolution procedures relating to remuneration and related conditions.

Division 2 - Definitions

Clause 4 - Definitions

9.                        This clause contains a list of every term that is defined in the Bill.  It includes a number of ‘signpost’ definitions that refer readers to the sections in which terms are substantively defined.

 

10.                    In most cases, key terms will be explained in the context in which they first appear in the Bill.   

Clause 5 - Meaning of road transport driver - general

11.                    This clause, with clauses 6, 7 and 9, identifies the constitutional basis for the Bill. 

 

12.                    For the purposes of the Bill, a road transport driver may be either an individual (to whom clause 6 applies) or a corporation (to which clause 7 applies).           

 

13.                    While the Bill is generally directed to providing the protections set out in the object to individuals driving road transport vehicles, there are limited circumstances where it is considered fair that owner-drivers who have opted for a corporate status should be provided the same protections without being considered as hirers or employers under the Bill. 

 

14.                    The term ‘road transport industry’ is defined in clause 4 to mean 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 regulations by reference to a modern award specified in the regulations.

 

15.                    These awards are available on the FWO ’s website at www.fairwork.gov.au. 

 

16.                    Paragraph (e) of the definition of ‘road transport industry’ in clause 4 ensures that the provision can continue to operate effectively if or when existing road transport industry awards are amended or new road transport industry awards are made.

Clause 6 - Meaning of road transport driver - individual



17.                    Clause 6 sets out which individuals are ‘road transport drivers’ for the purposes of this Bill.  An individual is a road transport driver if the person drives a vehicle as an employee of or under an independent contract with a constitutional corporation, the Commonwealth, a Commonwealth authority, a Territory or a Territory authority.  An individual is also a road transport driver if the contract of employment or contract for services is within a Territory .  The employment or contract of services for a driver engaging in road transport services for the purposes of a business undertaking of a constitutional corporation or for the purposes of the Commonwealth, a Commonwealth authority, a Territory or a Territory authority is also covered by the Bill.  Lastly, if a person engages in the road transport industry as a driver in the course of or in relation to constitutional trade and commerce the person is a road transport driver for the purposes of this Bill. 

 

18.                    ‘Constitutional trade and commerce’ is defined in clause 4 to mean interstate and overseas trade and commerce falling within section 51(i) of the Constitution or relating to territories falling within section 122 of the Constitution. 

 

19.                    Subclause 6(2) is a reading down provision.  It provides that the clause describing the constitutional coverage for individual drivers based on an independent contract with another party which is a constitutional corporation may be read as if the provision were confined to circumstances where the contract is entered into for the purposes of the business of that constitutional corporation.  This clause is included to allow subclause 6(1) to be valid even if a court were to decide that the power to legislate in relation to a constitutional corporation is limited to dealing only with matters related to the business functions and activities of constitutional corporations and to their business relationships.  This reading down clause would not need to take effect unless clause 6(1)(b)(ii) was considered to be too vague constitutionally. 

Clause 7 - Meaning of road transport driver - corporation

20.                    Clause 7 sets out which corporations are ‘road transport drivers’.  While the Bill is generally directed to providing the protections set out in the object to individual drivers, there are limited circumstances where it is considered fair that owner-drivers who have opted for a corporate status should be provided the same protections without being considered as hirers under the Bill.  A corporation can be a road transport driver if it is a constitutional corporation engaged in the road transport industry by transporting things (including freight) by road using one or more vehi c les supplied by the corporation or an individual related to the corporation where the vehicle or vehicles are mainly driven by a related individual whose principal occupation is driving the vehicle or vehicles.  This allows for the small incorporated owner-driver to rely on other individuals to drive the vehicles occasionally, as long as he or she is mainly the driver.  

 

21.                    Subclause 7(2) makes it clear that where an owner-driver is within the meaning of a road transport driver as a corporation, the person who falls within the meaning of ‘related individual’ who drives the vehicle is not also a road transport driver.

 

22.                    A ‘related individual’ is defined in subclause 7(3) as a director of the corporation, a member of the immediate family of a director of a corporation , an individual who together with members of the individual’s immediate family has a controlling interest in the corporation or 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.  This means that the person mainly driving the vehicle or vehicles must be in one of these specified relationships with the corporation.

 

23.                    The immediate family of the related individual has the same meaning as in the FW Act -  that is, a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the related individual or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the related individual.  These terms may themselves be defined as used in all Commonwealth legislation. 

Clause 8 - Meaning of hirer of road transport driver and road transport contract

24.                    Subclause 8(1) defines ‘road transport contract’ to mean a contract for services where a road transport driver who is an independent contractor provides road transport services to the other party to the contract .  That other party to the contract is referred to as the ‘hirer’ in the Bill.

 

25.                    Subclause 8(2) provides that a road transport contract includes a reference to a condition or collateral arrangement that relates to the contract.  This would mean, for example, that a side agreement that refers to the operation of the services contract could be treated itself as part of the services contract.  This ensures that technical distinctions do not need to be drawn between the services contract and other agreements between the parties that are likely to impact on the operation of the services contract.  A similar provision currently exists in subsection 5(4) of the Independent Contractors Act 2006

 

26.                    Subclause 8(3) provides that a contract may be oral or in writing or partly oral and partly written.



 

Clause 9 - Meaning of participant in the supply chain

27.                    The Bill operates to impose responsibility on all parties in the supply chain for road transport services to ensure the object of the Act is given effect to the fullest extent possible within constitutional power.  The term ‘supply chain’ has its usual meaning within the road transport industry for this purpose and does not need to be separately defined. 

 

28.                    Subclause 9(1) prescribes that a person is a participant in the supply chain in relation to a road transport driver in three categories of road transport activities set out in the section.

 

29.                    Subclause 9(2) provides that the consignor and consignee of something that a road transport driver is providing road transport services for is a participant in the supply chain if the person has the requisite constitutional connection.  The constitutional connection specifies that the consignor and consignee are covered if:

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

·          the person is an individual resident in or a corporation that has its principal place of business in a Territory;

·          the person is the consignor or consignee for the purposes of a business undertaking of a constitutional corporation;

·          the person is the consignor or consignee for the purpose of the Commonwealth, a Commonwealth authority, a Territory or a Territory authority; or

·          the person is acting in the course of or in relation to constitutional trade and commerce.  Constitutional trade and commerce is defined to mean interstate and overseas trade and commerce falling within section 51(i) of the Constitution or relating to territories falling within section 122 of the Constitution.

 

30.                    Subclause 9(3) provides for the clause describing the constitutional coverage of consignors and consignees who are constitutional corporations to be read down as if the provision was confined to circumstances where the constitutional corporation was a consignor or consignee of something for the purposes of the business of that corporation.  This clause is included to allow subclause 9(2) to be valid even if a court were to decide that the power to legislate in relation to a constitutional corporation is limited to dealing only with matters for the purposes of the business of that corporation.

 

31.                    Both ‘consignor’ and ‘consignee’ are terms which have their ordinary meaning within the road transport industry and are not defined separately in the Bill.

 

32.                    Subclause 9(4) describes another party who is neither the consignor nor the consignee but is an intermediary in a contract about something for which a road transport driver is providing road transport services as a participant in the supply chain if the person has the requisite constitutional connection.  The constitutional connection specifies that person is covered if:

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

·          the contract was entered into in a Territory;

·          at least one of the parties to the contract is a person who is resident in or a corporation that has its principal place of business in a Territory,

·          the contract is for the purposes of a business undertaking of a constitutional corporation;

·          the contract is for the purpose of the Commonwealth, a Commonwealth authority, a Territory or a Territory authority; or

·          the person is acting in the course of or in relation to constitutional trade and commerce.  Constitutional trade and commerce is defined to mean interstate and overseas trade and commerce falling within section 51(i) of the Constitution or relating to territories falling within section 122 of the Constitution.

 

33.                    Subclause 9(5) has the same effect for the constitutional basis of the intermediary provision as clause 9(3) has for the consignor and consignee provision. 

 

34.                    Subclause 9(6) describes an operator of premises for loading and unloading as a participant in the supply chain.  This provision applies to constitutional corporations that operate premises which can impact on the safe and fair operations of the road transport industry.  The term ‘operator of premises for loading and unloading’ is used as a term to describe the persons covered by this provision.  These are facilities which are used by a road transport driver to load or unload a vehicle, for example, animal feed lots, distribution centres or ports.  The premises are not covered if they are used only occasionally (set at less than 5 vehicles a day) for loading and unloading vehicles. 

 

35.                    Subclause 9(7) describes the term ‘average day’ as used in subclause 9(6) by reference to the activity over the previous 12 months or for a premises for loading and unloading that has not operated for 12 months -  over every day for which the premises have been used for loading and unloading.

 

36.                    Subclause 9(8) clarifies that the term ‘premises’ includes parts of premises. 

Division 3 - Application of this Act

Subdivision A - Interaction with other laws

Clause 10 - Concurrent operation generally intended

37.                    Clause 10 establishes the relationship between this Bill and other State or Territory and Commonwealth laws.  The intention is that any other law of the Commonwealth or any State or Territory law will operate concurrently with this Bill.

 

38.                    Subclause 10(2) clarifies that this Bill is not intended to exclude or limit the operation of certain specified Acts.  In particular, the Bill is not intended to exclude or limit the operation of State legislation dealing specifically with owner-driver contracts .  The specified Acts are:

·          the FW Act;

·          the Independent Contractors Act 2006 (but see subsections (3) and (14) of that Act);

·          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);

·          the Owner Drivers and Forestry Contractors Act 2005 of Victoria; and

·          the Owner-Drivers (Contracts and Disputes) Act 2007 of Western Australia.

 

39.                    Paragraph 10(2)(f) also allows for regulations to be made to specify a law of a State or Territory that is for the purposes of clarifying that the particular Act is not excluded or limited, to the extent described in the regulations.  It is proposed to prescribe State laws, notably the National Heavy Vehicle laws, once they have been enacted. 

 

40.                    Subclause 10(3) clarifies that this provision expressing the concurrent operation of other laws is subject to the express provisions in Subdivision A. 

Clause 11 - Interaction of enforceable instruments with State and Territory laws

41.                    Clause 11 specifies that an enforceable instrument will prevail over any State or territory law to the extent of any inconsistency. 

Clause 12 - Interaction of enforceable instruments with other Commonwealth instruments (employees)

42.                    This clause provides for the interaction between enforceable instruments and other instruments under the FW Act regime that set out terms and conditions of employment for drivers.  Subclause 12(1) provides that an enforceable instrument, to the extent that it is more beneficial to the driver, overrides a term of a modern award, enterprise agreement, FWA order or a transitional instrument under the FW Act regime.  Subclause 12(2) defines the terms used in subclause 12(1) by reference to that FW Act regime. 

Clause 13 - Interaction of enforceable instruments with road transport contracts (independent contractors)

43.                    Clause 13 makes it clear that a driver who operates as an independent contractor is entitled to receive the benefit of an enforceable instrument under this Bill regardless of the terms of the road transport contract that the driver has entered into. 

 

44.                    An enforceable instrument for the purposes of clauses 12 and 13 is any of an RSRO; a safe remuneration approval; or an arbitration order (see clause 4).



 

Clause 14 - Interaction with Independent Contractors Act 2006

45.                    This provision clarifies that a court considering an application under the Independent Contractors Act 2006 might (but is not required to) take as relevant to that consideration any applicable enforceable instrument.

Subdivision B - Miscellaneous

Clause 15 - Act binds the Crown

46.                    This Bill will apply to the Crown in each of its capacities, not only in right of the Commonwealth.

 

47.                    However, the clause makes clear that even though the Bill will apply to the Crown, the Crown is not liable to be prosecuted for any offence under the Bill.

 

48.                    To avoid doubt, subclause 15(3) makes plain that the Crown may be liable to pay a pecuniary penalty under clause 50, which deals with pecuniary penalties orders.

Clause 16 - Act not to apply so as to exceed Commonwealth power

49.                    This clause reflects the intention that the Bill would not operate beyond the limits of the constitutional power of the Commonwealth.  The clause enables any invalid application of the Bill to be read down so that only the valid application is taken to have been intended.  The reading down of invalid applications is not available where otherwise valid applications can only operate together with the invalid applications.

Clause 17 - Acquisition of property

 

50.                    It is not anticipated that the Bill or instruments made under the Bill will give effect to any acquisition of property other than on just terms contrary to paragraph 51(xxxi) of the Constitution.  Clause 17 is included out of an abundance of caution to ensure that an acquisition contrary to paragraph 51(xxxi) cannot take place.  In any circumstance where an acquisition contrary to paragraph 51(xxxi) is effected, the relevant law or instrument does not apply.



 



Part 2 - Road Safety Remuneration Orders

 

Overview

51.                    Part 2 contains provisions about the making of RSROs. 

 

52.                    Division 1 requires the Tribunal to prepare and publish an annual work program. 

 

53.                    Division 2 empowers the Tribunal to make RSROs but does not require the Tribunal to make an order.  This division sets out the matters the Tribunal must have regard to in making orders.   It also requires the Tribunal to publish its research. 

 

54.                    Division 3 requires the Tribunal to prepare a draft order for the purposes of consultation. 

 

55.                    Division 4 contains requirements about how an order is made and the consequences of an order. 

 

56.                    Division 5 contains provisions about the review and variation of RSROs.    

Notes on clauses

Division 1 - Preparation of annual work program

Clause 18 - Tribunal must prepare and publish a work program each year

57.                    This clause sets out requirements for a work program to be prepared and published annually by the Tribunal.

 

58.                    Subclause 18(1) provides that before the end of each year of its operation, the Tribunal must prepare a work program for the next year.

 

59.                    Subclause 18(2) sets out what must be in a work program.  The work program must identify the matters the Tribunal proposes to inquire into in the year ahead, with a view to making an RSRO in relation to particular matters.  These matters may be about any or all of the matters related to a sector or sectors of the road transport industry, issues for the road transport industry or a sector of the industry, or practices affecting the road transport industry or a sector of the industry.

 

60.                    Subclause 18(3) requires the Tribunal to consult with industry when preparing its work program.

 

61.                    Subclause 18(4) provides that the Tribunal must publish its work program on the Tribunal’s website, and by any other means the Tribunal considers appropriate.

 

62.                    Subclause 18(5) is included to clarify for the reader that the Tribunal’s work program is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .  This subclause is merely declaratory of the law and is not an actual exemption from that Act.       

Division 2 - Power to make a road safety remuneration order

Clause 19 - Power to make a road safety remuneration order

63.                    Subclause 19(1) enables the Tribunal to make an RSRO under this Part consistent with the object of this Bill which is set out in clause 3. 

 

64.                    Subclause 19(2) allows the Tribunal to make an RSRO on its own initiative if the order is in relation to a matter identified in its work program.

 

65.                    Subclause 19(3) enables the Tribunal to make an RSRO in relation to a matter, whether or not it is indentified in its work program, on application by individuals or organisations that are listed in the paragraphs under clause subclause 19(3).  They are:

·          a road transport driver (paragraph 19(3)(a));

·          an employer or hirer of a road transport driver (paragraph 19(3)(b));

·          a participant in the supply chain in relation to a road transport driver (paragraph 19(3)(c));

·          a registered employee association that is entitled to represent the interests of a road transport driver to whom the order will apply (paragraph 19(3)(d)); or

·          an industrial association that is entitled to represent the interests of a road transport driver, employer or hirer of road transport drivers or participants in the supply chain in relation to road transport drivers, if the following conditions are met:

§   if the represented persons, whose interests the industrial association claims to be representing by making the application, have consented to the making of the application; and

§   the Tribunal has permitted the application to be made (paragraph 19(3)(e)).

 

66.                    Subclause 19(4) provides that an application that relates to a matter that is not identified in the Tribunal’s work program must be a  matter capable of being included in the Tribunal’s work program, that is, it must be about sectors, issues or practices affecting the road transport industry. 

      

67.                    Subclause 19(5) sets out when the Tribunal may refuse to consider an application made by the individuals or organisations listed under subsection 19(3).  The Tribunal may refuse to consider an application:

·          if the application relates to a matter not identified in the work program, if it considers that it is not appropriate to deal with the matter at the time (paragraph 19(5)(a)), or

·          for any other reason (paragraph 19(5)(b)).

 

68.                    Subclause 19(6) requires the Tribunal to notify the applicant of any refusal by the Tribunal to consider an application.

Clause 20 - Matters the Tribunal must have regard to

69.                    Subclause 20(1) sets out the matters that the Tribunal must have regard to when making RSROs.  The matters are:

·          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;

·          the likely impact of any order on the viability of businesses in the road transport industry;

·          the special circumstances of areas that are particularly reliant on the road transport industry, such as rural, regional and other isolated areas.  The intention in this paragraph is to also take into account the special circumstances of areas that may be isolated in ways that are not merely related to their geographical positions;

·          the likely impact of any order on the national economy and on the movement of freight across the nation;

·          orders and determinations made by the Minimum Wage Panel of FWA in annual wage reviews and the reasons for those orders and determinations;

·          any modern awards relevant to the road transport industry and the reasons for those awards.  In this paragraph there is reference to subclause 20(2), which explains that 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 the definition) is taken to be relevant to the road transport industry;

·          the need to avoid any unnecessary overlap with the FW Act and any other laws prescribed for the purposes of this subclause, including the National Heavy Vehicle laws when they are enacted;

·          the need to reduce complexity and for any order to be simple and easy to understand.  The intention of this paragraph is to ensure that either the existing complexity in road transport regulation is not increased, or that it is reduced;

·          the need to minimise the compliance burden on the road transport industry;

·          any other matter prescribed by regulations for the purposes of this subclause.

 

70.                    Subclause 20(2) refers to a previous paragraph about modern awards (20(1)(f)), and explains that modern awards can be taken to be relevant to the road transport industry if they are listed in the definition of ‘road transport industry’.



 

Clause 21 - Publication of research

71.                    Subclause 21(1) requires the Tribunal to publish any research undertaken or commissioned by the Tribunal for the purposes of determining:

·          whether to make the RSRO; or

·          the terms in which the order should be made. 

 

72.                    The research should be published so that submissions can be made under clause 24 addressing issues covered by the research.  Clause 24 provides that persons who will be affected by a proposed RSRO will be able to have an opportunity to comment or make further submissions about a draft order.

 

73.                    Subclause 21(2) requires that publication of the relevant research must be on the Tribunal’s website, or by any other means the Tribunal considers appropriate.

Division 3 - Preparing and consulting on draft road safety remuneration order

Clause 22 - Tribunal to prepare and consult on draft order

74.                    This clause provides that, before making an RSRO, the Tribunal must prepare and consult on a draft of the order.  On the basis that the Tribunal is preparing a draft, it is assumed for the purposes of this clause that any draft must have been made by considering the matters in clause 20 and must contain the required content in clause 27.  These matters are what must be considered by the Tribunal before making an RSRO.

Clause 23 - Publication of draft order

75.                    This clause requires the Tribunal to publish the draft of the order on the Tribunal’s website and by any other means the Tribunal considers appropriate.

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

76.                    Subclause 24(1) requires the Tribunal to give affected persons or bodies, including prescribed persons or bodies, a reasonable opportunity to make written submissions to the Tribunal for its consideration in relation to the draft order.  Affected persons or bodies are those:

·          likely to be affected, if an RSRO based on the draft were to be made, (paragraph 24(1)(a));

·          prescribed by regulations for the purposes of this subclause (paragraph 24(1)(b)). 

 

77.                    Subclause 24(2) provides that the Tribunal must publish all submissions made to the Tribunal about draft orders.

 

78.                    Subclause 24(3) sets out exceptions to the requirement for submissions to be published under subclause 24(2).  If a person claims that a submission contains information that is confidential or commercially sensitive, and the Tribunal is satisfied that the information is confidential or commercially sensitive, there is provision in subparagraph 24(3)(a) that the Tribunal may decide not to publish it, or there is provision in subparagraph 24(3)(b) that they may instead publish:

·          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 (subparagraph 24(3)(b)(i)); or

·          if a summary is not practicable, a statement that confidential or commercially sensitive information in the submission has not been published (subparagraph 24(3)(b)(ii)).

 

79.                    Subclause 24(4) requires the Tribunal to ensure that all persons and bodies likely to be affected if an RSRO based on the draft were to be made, have a reasonable opportunity to make comments to the Tribunal on the published material for its consideration.

 

80.                    Subclause 24(5) requires the Tribunal to publish the material described in subclauses 24(2) and 24(3) on its website or by any other means the Tribunal considers appropriate.

 

81.                    Subclause 24(6) clarifies that a reference to a submission in this Bill includes a reference to a summary or statement referred to in subclause 24(3)(b), which is about confidential or commercially sensitive submissions that cannot be published in full. 

Clause 25 - Hearings in relation to draft order

82.                    This clause provides that the Tribunal may, but is not required to, hold a hearing in relation to the draft of the order.  There is more information about Tribunal hearings in clause 88.

Clause 26 - Finalising draft order

83.                    This clause outlines how the Tribunal will finalise the draft order either by making, or deciding not to make, an RSRO.

 

84.                    Subclause 26(1) provides that the Tribunal can make an RSRO based on the draft order.  In doing so, it may make any changes to the draft it thinks appropriate.

 

85.                    Subclause 26(2) provides that the Tribunal may decide that no RSRO is to be made based on the draft.  Such a decision may be appropriate after the Tribunal considers all of the relevant submissions.  The Tribunal must publish the decision not to make an order on its website or by any other means it considers appropriate.  The Tribunal is not required to make an order after it has prepared and consulted on a draft order.



 

Division 4-Making road safety remuneration order

Clause 27 - Making road safety remuneration order

86.                    This clause provides that the RSRO will be about remuneration and related conditions and sets out to whom the remuneration and related conditions will relate.  It also sets out a comprehensive, but not exclusive, list of things the order may relate to, and what the order must specify.

 

87.                    Subclause 27(1) provides that the Tribunal may make any provision in the order it considers appropriate in relation to remuneration and related conditions for road transport drivers. 

 

88.                    Subclause 27(2) provides that the Tribunal can make orders in relation to matters listed in this subclause.  It should be noted that this list is also referred to in the definition of ‘related conditions’ as including ‘matters of a kind referred to in subclause 27(2)’.  The definition is intended to identify the broad scope of ‘related conditions’, without unduly limiting what the Tribunal may find necessary to make orders about.  Also, the beginning of subclause 27(2) specifically notes that the list is not intended to place limits on what the Tribunal can make orders about under subclause 27(1). 

 

89.                    The list provides guidance to the Tribunal about what matters can be related conditions.  It should be remembered that subclause 20(2) includes provisions that will also require the Tribunal to take into account existing laws and other road transport regulatory systems.  It is not intended to overlap or duplicate conditions (such as fatigue laws) which will be set out in the National Heavy Vehicle laws.

 

90.                    The Tribunal can make orders in relation to any of the following:

·          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.  The relevant modern awards are those referred to in the definition of ‘road transport industry’;

·          conditions about minimum rates of remuneration and conditions of engagement for road transport drivers who are independent contractors;

·          conditions about industry practices for loading and unloading vehicles, waiting times, working hours, load limits, payment methods and payment periods;

·          ways of reducing or removing remuneration-related incentives,  pressures, and practices (including practices of participants in the supply chain) that contribute unsafe work practices (for example, speeding or excessive working hours).

 

91.                    Subclause 27(3) explains that the order may impose requirements on any or all of: an employer or hirer of a road transport driver to whom the order applies or a participant in the supply chain in relation to a road transport driver to whom the order applies.

 

92.                    Subclause 27(4) requires that the Tribunal must specify certain things in the order.  These are:

·          the road transport drivers to whom the order applies (paragraph 27(4)(a)); and

·          the persons (listed in subclause 27(3)) on whom any requirements in the order are imposed (paragraph 27(4)(b));

·          a commencement date for the order or a series of commencement dates if the Tribunal considers it appropriate that an order should be ‘phased in’ under subclause 27(5) which is explained below (paragraph 27(4)(c)); and

·          an expiry date.  This date must not be later than 4 years after the commencement date of the order (paragraph 27(4)(d)).  Clause 29 specifies that an order ceases to have effect at the end of the expiry date specified.



93.                    Subclause 27(5) provides that an RSRO may take effect in stages if it is not feasible for the order to take effect on a single date.  This provision contemplates that there may be situations where affected members of the road transport industry will need time to change their practices or otherwise prepare for changes resulting from an order.

 

94.                    Subclause 27(6) provides that the Tribunal must publish the order on the Tribunal’s website, and by any other means the Tribunal considers appropriate.

Clause 28 - Persons on whom requirements are imposed must not contravene order

95.                    This clause provides that a person on whom the RSRO imposes a requirement must not contravene the requirement in the order.  A contravention will attract a civil penalty of up to 60 points, as described in Division 1 of Part 5.

Clause 29 - Expiry of order

96.                    This clause provides that an RSRO ceases to have effect at the end of the expiry date specified in the order.

Clause 30 - Road safety remuneration orders to be made by Full Bench



97.                    This clause provides that the function of making RSROs is to be performed by a Full Bench of the Tribunal.  This is to reflect the thorough research and deliberation which is undertaken before an order is made.  ‘Full Bench’ is defined in clause 96.

Division 5 - Variation and review of road safety remuneration order

Clause 31 - Review of road safety remuneration order

98.                    This clause provides that RSROs must be reviewed by the Tribunal in a timely manner, and that after the review, the Tribunal must revoke the order and either replace it or not replace it.  Persons or bodies likely to be affected by the replacement or non-replacement of the order must be given an opportunity to make written submissions to the Tribunal for its consideration.  These submissions will be made and considered in the same way as submissions for draft RSROs, and research done in relation to a review must be published in the same way as research done for an RSRO.

 

99.                    Subclause 31(1) requires the Tribunal to review an RSRO at some time in the period of 12 months ending on the expiry date specified in the order.  This provision provides the Tribunal with some flexibility in relation to when to commence a review, but also specifies a deadline by which the review must be completed.

 

100.                Subclause 31(2) requires that, after reviewing the order and before the expiry date, the Tribunal must revoke the order and do one of the following:

·          replace it with an RSRO 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) (paragraph 31(2)(a));

·          replace it with an RSRO in different terms (paragraph 31(2)(b));

·          not replace it (paragraph 31(2)(c)).

 

101.                Subclause 31(3) provides that the Tribunal must ensure that all persons and bodies likely to be affected by the action proposed as a result of the review have a reasonable opportunity to make written submissions to the Tribunal for its consideration about the review. 

 

102.                Subclause 31(4) provides that research undertaken or commissioned in relation to the proposed action will be treated in the same way as research undertaken or commissioned for the purposes of determining whether to make an RSRO.

 

103.                Subclause 31(5) provides that submissions made in relation to the proposed action will be treated in the same way as submissions about draft RSROs.

Clause 32 - Variation of road safety remuneration order

104.                Subclause 32(1) provides that at any time before the expiry date specified in an RSRO, the Tribunal may vary the order.  It may do so:

·          on its own initiative; or

·          on application by a person listed in subclause 32(2).

 

105.                Paragraphs 32(2)(a) to (d) sets out the persons who can apply for a variation of an order:

·          an employer or hirer of a road transport driver to whom the order applies (paragraph 32(2)(a)); or

·          a participant in the supply chain in relation to a driver to whom the order applies (paragraph 32(2)(b)); or

·          a registered employee association that is entitled to represent the interests of a road transport driver to whom the order applies (paragraph 32(2)(c));

·          an industrial association that is entitled to represent the interests of a road transport driver, the employer or hirer of a road transport driver or a participant in the supply chain in relation to a road transport driver, if:

o    the represented persons, whose interests the industrial association claims to be representing by making the application, have consented to the making of the application; and

o    the Tribunal has permitted the application to be made (paragraph 32(2)(d)).

 

106.                Subclause 32(3) provides that, in deciding whether to vary the order, the Tribunal must have regard to the matters in clause 20, which specifies the matters the Tribunal must have regard to when making an RSRO.

 

107.                Subclause 32(4) provides that, before varying the order, the Tribunal must prepare and consult on a draft of the variation in accordance with Division 3, as though references in that Division to making an order were references to varying an order.  Division 3 is about preparing and consulting on draft RSROs.

 

108.                Subclause 32(5) provides that the processes and requirements in subsection 32(4) do not apply if the Tribunal considers that the variation is minor or technical.

 



 



Part 3 - Safe remuneration approvals in relation to certain collective agreements involving independent contractors

Overview

109.                Part 3 contains provisions about the grant of safe remuneration approvals in relation to certain collective agreements involving independent contractors.    

 

110.                In certain circumstances, road transport drivers who are independent contractors and a hirer or potential hirer may bargain for a road transport collective agreement in respect of the provision of road transport services.  The parties may apply to the Tribunal for a safe remuneration approval in respect of the road transport collective agreement.  A safe remuneration approval is a document issued by the Tribunal which sets out remuneration or related conditions the hirer is required to provide to all drivers providing the applicable services to the hirer. 

Notes on clauses

Clause 33 - Power to grant a safe remuneration approval

111.                Subclause 33(1) provides that the Tribunal may grant a safe remuneration approval for a road transport collective agreement involving self-employed (independent contractor) drivers if the Tribunal is satisfied of the matters contained in clause 34.

 

112.                Subclause 33(2) defines a road transport collective agreement as a collective agreement between road transport drivers (who are independent contractors) and the hirer who proposes to contract with them for them for the provision of road transport services (called applicable services). 

 

113.                Subclause 33(3) provides that the road transport collective agreement must specify the road transport drivers with whom the participating hirer proposes to contract.  These drivers are called the participating drivers to signal their role in the collective agreement making and safe remuneration approval process.  The road transport collective agreement must also state the basis on which the participating drivers became part of the group.  As the safe remuneration approval, once granted, will bind not only the participating drivers, but any road transport driver that the participating hirer is currently hiring or will hire (see clause 36), the Tribunal can consider whether the group of participating drivers was fairly chosen.

Clause 34 - Matters about which the Tribunal must be satisfied

114.                The Tribunal must not grant a safe remuneration approval unless it is satisfied with the criteria set out in clause 34.  A discussion of the clause 34 criteria is included below.

 

115.                The first criterion is that an RSRO that applies to the participating drivers must be in effect.  Requiring that an RSRO be in place relating to the participating drivers before they can apply for safe remuneration approval will ensure that the rigorous process of making the RSRO is not dispensed with, and that a safe remuneration approval will only provide for terms that do not undercut an RSRO.   

 

116.                In addition, a majority of the participating drivers must be better off overall when providing applicable services if the agreement applied than if the RSRO applied. 

 

117.                A further requirement is that where the agreement is to last more than one year, the agreement must contain an appropriate method for adjusting remuneration during the period of the agreement.  This is to ensure that the remuneration for road transport drivers remains in line with CPI, minimum wage and other considerations.

 

118.                The list of matters set out in clause 34 is not exclusive.  In considering whether or not to grant a safe remuneration approval the Tribunal can have regard to any other matters it considers relevant, for example, whether the group of participating drivers has been fairly chosen.

Clause 35 - Grant of safe remuneration approval

119.                Clause 35 sets out the procedure for the granting of a safe remuneration approval.  Subclause 35(1) provides that if granting an approval the Tribunal must state in writing that the Tribunal is satisfied that the remuneration and any related conditions in the agreement are adequate to ensure that road transport drivers do not have remuneration-related incentives to work in an unsafe manner.

 

120.                Subclause 35(2) provides for the additional content of the approval which is that it must:

·           specify the participating hirer;

·          specify the remuneration (including any method for adjusting remuneration during the period of the agreement) and any related conditions in the agreement

·          specify the applicable services;

·          state that the participating hirer is required to provide at least the specified remuneration and related conditions to any road transport driver providing applicable services to the hirer; and

·          specify an expiry date for the approval (which must not be more than 4 years from the date of the statement).

 

121.                Subclause 35(3) provides that the Tribunal must give a copy of the approval to the participating hirer and each of the participating drivers and publish the approval on the Tribunal’s website and by any other means the Tribunal considers appropriate.

Clause 36 - Effect of safe remuneration approval

122.                Clause 36 provides for the effect of a safe remuneration approval.  Subclause 36(1) provides that the participating hirer specified in a safe remuneration approval must not provide remuneration or related conditions to a road transport driver providing applicable services to the hirer that are less beneficial than the remuneration or related conditions specified in the approval.  A note informs the reader that subclause 36(1) is a civil remedy provision.

 

123.                Subclause 36(2) provides that subclause (1) applies in relation to a road transport driver regardless of whether the driver was a participating driver in relation to the agreement to which the approval relates.  That is, once the Tribunal has granted a safe remuneration approval in relation to a hirer, that hirer is bound by the terms in that approval for all the drivers that it hires or has currently hired - not just for the participating drivers. 

Clause 37 - Relationship with road safety remuneration orders

124.                This clause provides for the interaction between a safe remuneration approval and an RSRO.  Subclause 37(1) provides that an RSRO that is in effect at the time the Tribunal grants a safe remuneration approval has no effect in relation to a road transport driver who provides applicable services to the participating hirer. 

 

125.                While a safe remuneration approval cannot be granted unless there is already an RSRO in place, a new RSRO may be made, or an existing RSRO may be varied, after a safe remuneration approval is granted.  Subclause 37(2) provides that if an RSRO takes effect after a safe remuneration approval is granted, the approval ceases to have effect in relation to a road transport driver who provides applicable services to the participating hirer, to the extent that the remuneration or related conditions specified in the approval are less beneficial to the driver than a term of the order that applies to the driver. 

Clause 38 - Expiry of safe remuneration approval

126.                Clause 38 provides that a safe remuneration approval ceases to have effect at the end of the expiry date specified in the approval.

Clause 39 - Safe remuneration approvals to be granted by dual FWA member or Full Bench

127.                Clause 39 provides that the function of granting safe remuneration approvals under this Part is to be performed by, at the President’s discretion, either a dual FWA member or a Full Bench of the Tribunal.



 



Part 4 - Disputes about remuneration and related conditions

Overview

128.                Part 4 contains provisions about disputes about remuneration and related conditions.  The Tribunal will be able to deal with disputes between employee road transport drivers and their employers, independent contractor road transport drivers and  their hirers and disputes involving supply chain participants. 

Notes on clauses

Clause 40 - Tribunal may deal with disputes about remuneration and related conditions

129.                Clause 40 provides that the Tribunal may deal with a dispute on application by a party to the dispute or an industrial association that is entitled to represent the interests of a party to the dispute, provided that the party has consented to the making of an application by the association.  The Tribunal may also choose to deal with 2 or more disputes together, regardless of whether the disputes involve employee road transport drivers, independent contractor road transport drivers or participants in the supply chain.

Clause 41 - Disputes involving employee road transport drivers

130.                Subclause 41(1) provides that the Tribunal may deal with a dispute between a road transport driver who is an employee and the employer of the driver if the dispute is about remuneration or related conditions provided by the employer that could affect whether the driver works in an unsafe manner.  The subclause specifies that the parties to the dispute are the driver and the employer.

 

131.                A note informs the reader that disputes involving drivers who are employees may also be dealt with under the FW Act (see section 595 of that Act).

 

132.                Subclause 41(2) provides for the circumstances in which the Tribunal may deal with a dispute between a road transport driver and a former employer of the driver.  These circumstances are if the dispute is about the former employer dismissing the driver and the driver contends that the dismissal was mainly because the driver refused to work in an unsafe manner.  The subclause specifies that the parties to the dispute are the driver and the former employer.

 

133.                Subclauses 41(3) and 41(4) provide for the interaction between these procedures and FW Act dispute resolution procedures.  Subclause 41(3) provides that a road transport driver who has applied to the Tribunal under clause 40 in relation to a matter must not make an application or complaint under the FW Act in relation to the same matter, unless the application to the Tribunal has been withdrawn or has failed for want of jurisdiction.

 

134.                Subclause 41(4) provides that a road transport driver who has made an application or complaint in relation to a matter under the FW Act must not apply to the Tribunal under section 40 in relation to the same matter, unless the application or complaint under the FW Act has been withdrawn or has failed for want of jurisdiction. 

Clause 42 - Disputes involving independent contractor road transport drivers

135.                Subclause 42(1) provides that the Tribunal may deal with a dispute between a road transport driver who is an independent contractor and the hirer of the driver if the dispute is about remuneration or related conditions in a road transport contract between the driver and hirer that could affect whether the driver works in an unsafe manner.  The subclause specifies that the parties to the dispute are the driver and the hirer. 

 

136.                Subclause 42(2) provides that the Tribunal may deal with a dispute between a road transport driver who is an independent contractor and a former hirer of the driver if the dispute is about the former hirer terminating the road transport contract and the driver contends that the termination was mainly because the driver refused to work in an unsafe manner.  The subclause specifies that the parties to the dispute are the driver and the former hirer. 

Clause 43 - Disputes involving participants in the supply chain

137.                Clause 43 provides for the circumstances in which the Tribunal may deal with a dispute that is about practices of one or more participants in the supply chain in relation to a road transport driver.  These circumstances are if the employer or hirer of the driver contends that the practices affect the employer’s or hirer’s ability to provide  remuneration or related conditions to the driver that do not provide incentives to work in an unsafe manner and the driver and employer or hirer have applied to the Tribunal under clause 40.

 

138.                Clause 43 further provides that the parties to the dispute are the driver, the employer or hirer and the participant or participants in the supply chain whose practices the dispute relates to.

Clause 44 - How Tribunal may deal with disputes

139.                Subclause 44(1) provides that if the Tribunal decides to deal with the dispute, it may deal with it as the Tribunal considers appropriate.  The ways the dispute may be dealt with include by mediation or conciliation, by making a recommendation or expressing an opinion or, if the parties to the dispute agree, by arbitrating (however described) the dispute. 

 

140.                Subclause 44(2) provides that if the Tribunal arbitrates the dispute, it may make any order that it considers appropriate to ensure that the driver does not have remuneration-related incentives to work in an unsafe manner. 

 

141.                Subclause 44(3) provides that the arbitration order may impose the requirements specified in the order on any or all of:

·          a party to the dispute;

·          a participant in the supply chain in relation to the road transport driver who is not a party to the dispute but who has agreed to be bound by the outcome of the arbitration. 

 

142.                Subclause 44(4) provides that a person on whom an arbitration order imposes a requirement must not contravene the requirement.  A note informs the reader that this subsection is a civil remedy provision.

Clause 45 - Disputes about safe remuneration to be dealt with by dual FWA member

143.                Clause 45 provides that the function of dealing with disputes under this Part is to be performed by a dual FWA member.



 



Part 5 - Compliance

Overview

144.                Part 5 establishes a compliance framework for the road safety remuneration system established by this Bill. 

 

145.                Division 1 contains machinery provisions about civil provisions.  In the Bill, there are a number of obligations imposed on persons that are civil remedy provisions.  If a civil remedy provision is contravened, a person may apply to a court for an order for a pecuniary penalty and other orders against the alleged wrong-doer.  Each clause in the Bill that is a civil remedy provision is appropriately sign posted, using a legislative note, which draws the reader’s attention to this Part of the Bill. 

 

146.                Division 2 confers jurisdiction on the Federal Court of Australia and the Federal Magistrates Court in matters arising under the Bill, and generally requires this jurisdiction to be exercised in the Fair Work Divisions of those courts.  Eligible State and Territory courts will also be able to exercise jurisdiction under the Bill.

 

147.                Division 3 confers compliance functions on the FWO.

 

148.                Division 4 allows provides for right of entry in certain circumstances.

Notes on clauses

Division 1 - Civil remedy provisions and orders

Subdivision A - Applications for orders

Clause 46 - Civil remedy provisions

149.                All civil remedy provisions have been set out in this Part using a simple and user friendly table which sets out the relevant provisions, who has standing to pursue the penalty and the maximum penalty units that the Court can order.  For each civil remedy provision set out in the table, subject to clauses 47 and 48 and Subdivision B of this Division, eligible persons may apply to the Federal Court, the Federal Magistrates Court, or an eligible State or Territory court, for orders in relation to a contravention or proposed contravention of the relevant civil remedy provision.

Clause 47 - Limitations on who may apply for orders etc. 

150.                Subclause 47(1) limits when a person or entity referred to in Column 2 of the table at clause 46 has standing to bring proceedings.  There are limitations in relation to a road transport driver, an employer of a road transport driver, a hirer of a road transport driver, a participant in the supply chain in relation to a road transport driver, a registered employee association and an industrial association.

 

151.                A road transport driver, an employer of a road transport driver, a hirer of a road transport driver and a participant in the supply chain in relation to a road transport driver may apply for an order only if the person is affected by the contravention, or will be affected by the proposed contravention. 

 

152.                A registered employee association may apply for an order only if the contravention affects a person or the proposed contravention will affect a person and the association is entitled to represent the interests of the person.

 

153.                An industrial association may apply for an order only if the contravention affects a person or the proposed contravention will affect a person, the association is entitled to represent the interests of the person and the person has consented to the association making the application. 

 

154.                A person may also be prescribed by regulation to have standing.

Clause 48 - Time limit on applications

155.                Clause 48 places a time limit on applications for orders under this Division that a civil remedy provision has been contravened of 6 years after the day on which the contravention occurred.  A note directs the reader that the time limits on orders relation to underpayments is specified in subclause 49(4).

Subdivision B­ - Orders

Clause 49 - Orders that can be made

156.                Clause 49 provides for the orders that can be made if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

 

157.                Subclause 49(1) provides that the Federal Court or the Federal Magistrates Court may make a range of orders including injunctions and awarding compensation.  The court may make any other order the court considers appropriate to stop, or to rectify the effects of, the contravention or proposed contravention.

 

158.                Subclause 49(2) provides that an eligible State or Territory court may order a person to pay an amount to, or on behalf of, another person to who an order made under this Bill applies if the court is satisfied that the person was required to pay the amount to the other person under this Bill or an enforceable instrument; and the person has contravened a civil remedy provision by failing to pay the amount. The court may order a person to pay an amount if the court is satisfied that the person was required to pay the amount to or on behalf of the other person under this Bill or an enforceable instrument and the person has contravened a civil remedy provision by failing to pay the amount. 

 

159.                Identical notes under subclause 49(1) and 49(2) refer the reader to clause 50 for the court’s power to make pecuniary penalty orders.

 

160.                Subclause 49(3) provides that a court may make an order on its own initiative, during proceedings before the court or on application. 

 

161.                Subclause 49(4) provides that a court must not make an order under this section in relation to an underpayment that relates to a person that is more than 6 years before the proceedings concerned commenced.

Clause 50 - Pecuniary penalty orders

162.                Subclause 50(1) provides that the Federal Court, the Federal Magistrates Court or an eligible State or Territory court may, on application, order a person to pay to the Commonwealth a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

 

163.                A note directs the reader to column 3 of the table in subclause 46(2) which sets out the maximum penalty that the court may order the person to pay.

 

164.                Subclause 50(2) provides for the maximum pecuniary penalty that can be imposed on an individual or a body corporate.  This provision refers the reader to subclause 46(2) where the penalty units are identified in the table.  If the person is a body corporate the maximum penalty is five times higher than that of an individual.

 

165.                Subclause 50(3) provides that the pecuniary penalty is a civil debt payable to the Commonwealth. 

 

166.                Subclause 50(4) provides that the Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person.  The debt arising from the order is taken to be a judgment debt.

 

167.                Subclause 50(5) provides that for the avoidance of doubt, a court may make a pecuniary penalty order in addition to one or more orders under clause 49.

 Clause 51 - Interest up to judgment

168.                Subclause 51(1) applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Bill or an enforceable instrument.

 

169.                Under subclause 51(2) the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.  The words ‘on application’ are intended to make it clear that the court is not required to order interest if a party does not apply for interest.  Similarly, where the parties file consent orders in court and the orders do not provide for the imposition of interest it is intended that the court would not award interest on the amount of its own motion.

 

170.                Subclause 51(3), without limiting subclause (2), provides that in determining an amount of interest the court must take into account the period between the day the course of action arose and the day the order is made.  It allows the court to award interest on an amount prior to the filing of proceedings in court. 

Subdivision C - General provisions about civil remedies

Clause 52 - Contravening a civil remedy provision is not an offence

171.                This clause makes it clear that contravening a civil remedy provision is not an offence and therefore cannot result in a criminal conviction.

Clause 53 - Involvement in contravention treated in same away as actual contravention

172.                This clause means that where a person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.  Subclause 53(2) sets out when a person is taken to be ‘involved in’ a contravention. 

Clause 54 - Proceedings may be heard together

173.                This clause provides that a court may direct that 2 or more proceedings for civil remedy orders are to be heard together. 

Clause 55 - Civil evidence and procedure rules for proceedings relating to civil remedy provisions

174.                Clause 55 provides that a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision. 

Clause 56 - Civil proceedings after criminal proceedings

175.                This clause provides that none of the Federal Court, the Federal Magistrates Court or an eligible State or Territory court may make a pecuniary penalty order against a person for a contravention of a civil remedy provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention. 

Clause 57 - Criminal proceedings during civil proceedings

176.                Subclause 57(1) provides that proceedings for a pecuniary penalty order against a person for a contravention of a civil remedy provision are stayed if criminal proceedings are commenced or have already been commenced against the person for an offence and the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.

 

177.                Subclause 57(2) provides that the proceedings for the order (the civil proceedings) may be resumed if the person is not convicted of the offence.  Otherwise the civil proceedings are dismissed and costs must not be awarded in relation to the civil proceedings.

Clause 58 - Criminal proceedings after civil proceedings

178.                Clause 58 provides that criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a civil remedy provision regardless of whether a pecuniary penalty order has been made against the person.

Clause 59 - Evidence given in proceedings for penalty not admissible in criminal proceedings

179.                Subclause 59(1) provides that evidence given, or documents produced, in proceedings for a pecuniary penalty are inadmissible in subsequent criminal proceedings which relate to substantially the same conduct.

 

180.                Subclause 59(2) provides an exception to the rule in subclause 59(1) where a person gives false evidence in those proceedings.

Clause 60 - Civil double jeopardy

181.                This clause applies the double jeopardy principle to pecuniary penalties under the Bill.  Under this clause, where a person is ordered to pay a pecuniary penalty under the Bill in relation to particular conduct, the person is not liable to pay a pecuniary penalty under another law of the Commonwealth relating to the same conduct. 

 

182.                A note refers the reader to subclause 50(5) that a court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct.

Clause 61 - Course of conduct

183.                Subclause 61(1) provides that where the same person commits two or more contraventions of a civil remedy provision referred to in subclause 61(2), arising out of a course of conduct by that person, the contraventions are to be taken to constitute a single contravention for the purposes of this Part. 

 

184.                Subclause 61(3) provides that subclause 61(1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision.



 

Division 2 - Jurisdiction and power of courts

Subdivision A - Jurisdiction and powers of the Federal Court

Clause 62 - Conferring jurisdiction on the Federal Court

185.                Clause 62 confers original jurisdiction on the Federal Court in relation to any civil matter arising under the Bill. 

 

186.                The jurisdiction conferred on the Federal Court by the Bill is in addition to (and not intended to derogate from) the jurisdiction conferred on the Federal Court of Australia by section 39B of the Judiciary Act 1903 .  This includes jurisdiction in any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth (subsection 39B(1)). 

Clause 63 - Exercising jurisdiction in the Fair Work Division of the Federal Court

187.                This clause requires the jurisdiction conferred on the Federal Court by the Bill to be exercised by the Fair Work Division of the Federal Court in certain circumstances, including where:

·          an application is made to the Federal Court under the Bill;

·          a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Bill;

·          a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Bill;

·          an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Bill;

·          an appeal is instituted in the Federal Court from a judgment of the Federal Magistrates Court or a court of a State or Territory in a matter arising under this Bill;

·          proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Magistrates Court;

·          the Federal Magistrates Court or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Bill;

·          the President refers, under section 95 of this Bill, a question of law to the Federal Court;

·          the High Court remits a matter arising under this Bill to the Federal Court. 

 

Clause 64 - No limitation on Federal Court’s powers

188.                For the avoidance of doubt, this clause provides that nothing in the Bill limits the Federal Court’s powers (including its powers to grant injunctions and make declarations) under sections 21, 22 or 23 of the Federal Court of Australia Act 1976 .

 

189.                The clause is intended to address authorities which have held that federal industrial laws exhaustively contain the remedies available to enforce those laws.    

Clause 65 - Appeals from eligible State or Territory courts

190.                Subclause 65(1) provides that an appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Bill.

 

191.                Subclause 65(2) provides that no appeal lies from a decision of an eligible State or Territory court exercising jurisdiction under this Bill, except:

 

·           if the court was exercising summary jurisdiction- an appeal to that court or another eligible State or Territory court of the same State or Territory, as provided for by a law of that State or Territory; or

·          in any case - an appeal as provided for by subclause (1).

 

192.                Subclause 65(3) provides that an appeal lies to the Federal Court from a decision of an eligible State or Territory court made on appeal from a decision that was a decision of that court or another eligible State or Territory court of the same State or Territory and was made in the exercise of jurisdiction under this Bill. 

 

193.                Subclause 65(4) provides that no appeal lies from a decision to which subclause (3) applies, except an appeal as provided for by that subclause. 

 

194.                Subclause 65(5) provides that it is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subclause (1) or (3). 

Subdivision B - Jurisdiction and powers of the Federal Magistrates Court

Clause 66 - Conferring jurisdiction on the Federal Magistrates Court

195.                This clause confers jurisdiction on the Federal Magistrates Court in relation to any civil matter arising under this Bill. 

Clause 67 - Exercising jurisdiction in the Fair Work Division of the Federal Magistrates Court

196.                This clause requires the jurisdiction conferred on the Federal Magistrates Court by the Bill to be exercised by the Fair Work Division of the Federal Magistrates Court in certain circumstances, including where:

·          An application is made to the Federal Magistrates Court under this Bill,

·          An injunction is sought under section 15 of the Federal Magistrates Act 1999 in relation to a matter arising under this Bill;

·          A declaration is sought under section 16 of the Federal Magistrates Act 1999 in relation to a matter arising under this Bill;

·          Proceedings in relation to a matter arising under this Bill are transferred to the Federal Magistrates Court form the Federal Court; or

·          The High Court remits a matter arising under this Bill to the Federal Magistrates Court.

 

Clause 68 - No limitation on Federal Magistrates Court’s powers

197.                For the avoidance of doubt this clause provides that nothing in the Bill limits the Federal Magistrates Court’s powers (including its powers to grant injunctions and make declarations) under sections 14, 15 or 16 of the Federal Magistrates Act 1999.

Subdivision C - Small claims procedure

Clause 69 - Applicants may choose small claims procedure

198.                Clause 69 provides that proceedings are to be dealt with as small claims proceedings where certain conditions are met.  Proceedings can be in a State magistrates court or the Federal Magistrates Court. 

 

199.                Subclause 69(2) provides that the court may award not more than $20,000 in a small claims proceeding.

 

200.                Subclause 69(3) provides that when dealing with a matter under the small claims procedure, the court may act in an informal manner.  It is not bound by any rules of evidence and procedure and may act without regard to legal forms and technicalities.  This is intended to ensure that claims for a relatively small amount of money are dealt with efficiently and expeditiously by the courts.

 

201.                Subclause 69(4) provides that at any stage of the small claims proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment.  This is intended to ensure that small claims are not subject to onerous procedural requirements.

 

202.                Subclause 69(5) provides that a party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court.  Subclause 69(6) provides that if the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged. 

 

203.                Subclause 69(7) provides that for the purposes of this section, a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person. 

 

204.                Subclause 69(8) allows for the making of regulations for a party, in specified circumstances, to be represented by an official of an industrial association.

 

205.                However, subclause 69(9) permits regulations to be made about representation by an industrial association in a State court only to the extent any law of the State allows. 



 

Subdivision D - Miscellaneous

Clause 70 - Costs only if proceedings instituted vexatiously etc.

206.                Subclause 70(1) provides that a party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Bill may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subclause 70(2).

 

207.                Subclause 70(2) provides the circumstances in which a party may be ordered to pay costs. These circumstances are where the court is satisfied that the party instituted the proceedings vexatiously or without reasonably cause or the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs, or the party unreasonably refused to participate in a matter before the Tribunal and the matter arose from the same facts as the proceedings.

Clause 71 - No imprisonment for failure to pay pecuniary penalty

208.                Subclause 71(1) provides that a court (including a court of a State or Territory) may not order a person to serve a sentence of imprisonment if the person fails to pay a pecuniary penalty imposed under this Bill. 

 

209.                Subclause 71(2) provides that this section applies despite any other law of the Commonwealth, a State or a Territory. 

Clause 72 - Regulations dealing with matters relating to court proceedings

210.                Clause 72 provides that the regulations may provide for fees to be charged in relation to proceedings in a court (including a court of a State or Territory).

Division 3 -Fair Work Ombudsman

Subdivision A - Role of the Fair Work Ombudsman

Clause 73 - Functions of the Fair Work Ombudsman

211.                The functions of the FWO for the purposes of this Bill are set out in this clause.

 

212.                The FWO is to have a range of functions in relation to the Bill in exercising its compliance role.  The FWO will have the function to monitor compliance with this Bill and enforceable instruments, including by providing education, assistance and advice to road transport drivers, their employers or hirers and participants in the supply chain in relation to road transport drivers.  FWO will have the function to inquire into, and investigate, any act or practice that may be contrary to this Bill or an enforceable instrument  made under this Bill.  Inspectors will be able to exercise a range of powers to determine compliance. 

 

213.                The functions of the FWO emphasise preventative compliance (e.g. education and advice) but in some instances the FWO will need to enforce compliance more formally.  The FWO will be able to commence proceedings in a court to enforce this Bill and orders made and safe remuneration approvals granted under this Bill.  The FWO will be able to refer matters to relevant authorities.  The FWO will also be able to represent drivers who are, or may become, a party to proceedings in a court under this Bill, if the FWO considers that representing the drivers will promote compliance with this Bill or an order made or safe remuneration approval granted under this Bill.

Clause 74 - Exercise of compliance powers

214.                Fair Work Inspectors have a range of compliance powers under Subdivision D of Division 3 of Part 5-2 of the FW Act, which can be exercised for the compliance purposes described in section 706 of that Act, including for the purposes of a provision of another Act conferring functions or powers on inspectors.  Clause 74 enables Fair Work Inspectors to exercise their compliance powers (other than those under sections 715 or 716 of the Fair Work Act  2009 ) for the purpose of determining whether this Bill or an enforceable instrument is being or has been complied with.

 

215.                Subclause 74(2) then provides that, for the purposes of the FW Act, a purpose referred to in subclause 74(1) is taken to be a compliance purpose and a civil remedy provision under clause 28 or subclauses 36(1), 44(4), 76(6) or 119(1) or (2) is taken to be a civil remedy provision.  By specifying that the purposes referred to in subclause (1) are compliance purposes this allows Fair Work Inspectors to exercise their powers to enter premises under section 708 of theFW Act (which refers to the power to enter business premises if the inspector reasonably believes that there are documents or records relevant to compliance purposes on the premises) and their compliance powers under section 711 (power to ask for a person’s name and address, which only applies in situations where an inspector reasonably believes that a person has contravened a civil remedy provision).

 

216.                Section 715 of the FW Act deals with enforceable undertakings relating to contraventions of civil remedy provisions.  However, employers will not be able to make enforceable undertakings to remedy a contravention of a civil penalty provision of this Bill.  Therefore, it is not necessary for Fair Work Inspectors to be able to exercise this power.  Section 716 of the FW Act deals with compliance notices under that Act. 

Clause 75 - Referring matters to the FWO

217.                Subclause 75(1) provides that the General Manager may refer a matter to the FWO for investigation if the General Manager has reason to believe that a person has not complied with an enforceable instrument in relation to another person and the General Manager does not believe that the persons are able to resolve the matter themselves.

 

218.                Subclause 75(2) provides that the General Manager must inform the persons, in writing, if the General Manager refers the matter to the FWO.

 

219.                Subclause 75(3) provides that the General Manager must inform the FWO about any action taken or information obtained by the General Manager in relation to the matter.

Subdivision B - Compliance notices

Clause 76 - Compliance notices

220.                Clause 76 provides for the giving of compliance notices by inspectors, it sets out the required content of such a notice and specifies the relationship between a compliance notice and the civil remedy provisions and that a person must not fail to comply with the notice.

 

221.                Subclause 76(1) provides that this clause applies if an inspector reasonably believes that a person has contravened a term of an enforceable instrument. 

 

222.                Subclause 76(2) provides that the inspector may give the person a compliance notice requiring them to take specified action to remedy the direct effects of the contravention and to produce reasonable evidence of the person’s compliance with the notice.  The notice must specify a reasonable time frame in which a person is required to do comply with the notice.

 

223.                Subclause 76(3) sets out the further required content of a compliance notice.  A compliance notice must also set out the name of the person to whom the notice is given, the name of the inspector who gave the notice and brief details of the contravention.  It must also explain that a failure to comply with the notice may contravene a civil remedy and that the person may apply to the Federal Court, the Federal Magistrates Court or an eligible State or Territory Court for a review of the notice on the basis of either or both of the following grounds:

·          that the person has not committed a contravention set out in the notice;

·          the notice does not comply with subclause (2) or (3). 

 

224.                The notice can also set out any other matters prescribed by the regulations.

 

225.                Subclause 76(4) provides that an inspector must not apply for an order under Division 1 of this Part in relation to a contravention of a civil remedy provision if the inspector has given the person a compliance notice in relation to the contravention and either the notice has not been withdrawn, and the person has complied with the notice or the person has made an application under clause 77 in relation to the notice that has not been completely dealt with. 

 

226.                A note indicates that a person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so. 

 

227.                Subclause 76(5) provides that a person who complies with a notice in relation to a contravention of a civil remedy provision is not taken to have admitted to contravening the provision or to have been found to have contravened the provision. 

 

228.                Subclause 76(6) provides that a person must not fail to comply with a compliance notice given under this clause.  A note highlights that this is a civil remedy provision.  Subclause 76(7) provides that subclause 76(6) does not apply if the person has a reasonable excuse.

Clause 77 -  Review of compliance notices

229.                Subclause 77(1) provides the grounds on which a person may apply for a review of a compliance notice they have been given.  A person may apply to the Federal Court, the Federal Magistrates Court or an eligible State or Territory court for a review of the notice on either or both of the following grounds: the person has not committed a contravention set out in the notice or the notice does not comply with subclause 76(2) or (3).

 

230.                Subclause 77(2) provides that at any time after the application has been made, the court may stay the operation of the notice on the terms and conditions that the court considers appropriate.

 

231.                Subclause 77(3) provides that the court may make any order it considers appropriate in relation to the notice.   

Division 4 - Right of entry



Clause 78 - Right of entry for suspected contravention of this Act or enforceable-e instrument

232.                Subsection 481(1) of the FW Act allows entry onto premises to investigate a suspected contravention of that Act or a term of a fair work instrument.  This clause extends that provision to breaches of this Bill or an enforceable instrument.

 



 



Part 6 - Road Safety Remuneration Tribunal

Overview

233.                This Part deals with the administrative architecture of the new road safety remuneration system.

 

234.                Division 1 establishes and confers functions on the Road Safety Remuneration Tribunal.  The Tribunal will be made up of a mixture of FWA members and expert members with qualifications relevant to the road transport industry. 

 

235.                Division 2 deals with the performance of the functions of the Tribunal.

 

236.                Division 3 deals with the appointment, terms and conditions of Tribunal members.

 

237.                Division 4 is about the administrative support for the Tribunal.  The Tribunal secretariat will be provided by the General Manager of FWA.

 

238.                Division 5 contains miscellaneous provisions relating to the Tribunal, such as its procedural rules, annual reporting obligations and information sharing. 

Notes on clauses

Division 1 - Establishment and functions of Tribunal

Clause 79 - Establishment of Tribunal

239.                This clause establishes the Road Safety Remuneration Tribunal.  The Tribunal will consist of the President (who must be a FWA Deputy President (subclause 97(2)); persons experienced in workplace relations matters (who must be either FWA Deputy Presidents or Commissioners (subclause 97(3)); and persons with experience in issues particularly relevant to the road transport industry or in solving the challenges facing the road transport industry.

Clause 80 - Functions of Tribunal

240.                This clause outlines the functions of the Tribunal.  Further detail about the Tribunal’s functions are set out in Parts 2, 3 and 4 of the Bill.

Clause 81 - Tribunal has privileges and immunities of the Crown

241.                This clause provides that the Tribunal has the privileges and immunities of the Crown in right of the Commonwealth.

Clause 82 - Protection of Tribunal members

242.                The Tribunal is an independent statutory body.  To enhance the independence of the Tribunal members and provide them with the freedom to make decisions, this clause provides that a Tribunal member has the same protection and immunity as a Justice of the High Court in performing his or her functions or exercising his or her powers, including immunity from suit and immunity against the disclosure of certain information. 

Division 2 - Performance of functions of Tribunal

Subdivision A - Role of the President

Clause 83 - Role of President in performance of functions

243.                This clause provides that the President of the Tribunal is responsible for ensuring that the Tribunal performs its functions efficiently and effectively. 

Subdivision B - Applications to Tribunal

Clause 84 - Dismissing applications

244.                The Tribunal may dismiss, on its own initiative or by application, an application which is not made in accordance with the Bill, or that is frivolous, vexatious or has no reasonable prospects of success.  Clause 115 also deals with costs orders in relation to these applications.

Subdivision C - Performance of functions

Clause 85 - Performance of functions generally

245.                The Tribunal is not bound to act in a formal manner and may conduct proceedings as it sees fit.  Further, the Tribunal is not bound by the rules of evidence and procedure in relation to a matter before it.  This is the case regardless of whether or not the Tribunal holds a hearing in relation to the matter. 

 

246.                A vacancy in the membership of the Tribunal will not affect the performance of the functions of the Tribunal unless it is the Presidency which is vacant.  Clause 110 allows the Minister to make acting appointments to temporarily fill vacancies or absences.

Clause 86 - Powers of Tribunal to perform functions

247.                This clause provides the Tribunal with flexibility and discretion as to how it is able to inform itself in relation to any matter before it.  Subclause 86(2) lists some ways in which the Tribunal may inform itself, including by requiring a compellable person to attend before the Tribunal; inviting submissions; requiring a compellable person to provide copies of documents, records or any other information; taking evidence under oath or evidence; conducting inquiries; undertaking or commissioning research;  conducting a conference or holding a hearing.

 

248.                A compellable person is a road transport driver; the employer or hirer of a road transport driver; or a participant in the supply chain in relation to a road transport driver involved in a matter the Tribunal is dealing with.

 

249.                This clause does not override the privilege against self-incrimination.  Where the privilege against self-incrimination would apply, there would be a defence of reasonable excuse for the related offence provisions and the person would not have to provide the documents or information.

Clause 87 - Conferences

250.                The Tribunal may direct a compellable person to attend a conference at a specified time and place for the purposes of performing a function (see clause 80 for Tribunal functions).  The conference must be conducted in private unless the person conducting the conference directs that it be conducted in public.

 

251.                If the function is being performed by the Full Bench, the President is responsible for conducting the conference.  Otherwise, the dual FWA member performing the function is responsible. 

 

252.                Where the conference is to arbitrate a dispute under Part 4, the Tribunal cannot direct a person to attend unless the person is a party to the dispute.  Conferences to arbitrate under Part 4 must not be conducted in public.

Clause 88 - Hearings

253.                To discourage overly formal and adversarial processes, the Tribunal may, but is not required to, hold a hearing in performing functions under this Bill.  A hearing must be held in public unless the Tribunal is satisfied that it would be desirable to do otherwise because of the confidential nature of the evidence or for any other reason. 

 

254.                Subclause 88(2) allows the Tribunal to conduct hearings in private and make appropriate suppression orders having regard to the confidential nature of any information and evidence, or any other reasons.

 

255.                However, 88(3) does not apply to the publication of a submission made to the Tribunal for consideration in determining whether to make an RSRO or take a proposed action under subclause 31(2).  Subclause 24(3) deals with confidential or commercially sensitive submissions in relation to draft orders and subclause 31(4) provides that the publication requirements under clause 21 apply in relation to research undertaken or commissioned for the purposes of deciding on a proposed action under subclause 31(2).            

Clause 89 - Offences in relation to attendance etc.  before Tribunal

256.                Subclause 89(1) provides that where a person is required to attend before the Tribunal, it is an offence to fail to turn up as required. 

 

257.                Subclause 89(2) provides that where the Tribunal requires a person who is attending before the Tribunal to take an oath or make an affirmation, it is an offence to refuse or fail to be sworn or to make an affirmation.

 

258.                Subclause 89(3) provides that where the Tribunal requires a person who is attending before the Tribunal to answer a question or produce a document, it is an offence to refuse or fail to answer the question or produce the document.

 

259.                The penalty for each of these offences is 6 months imprisonment and reflects the penalty in the FW Act for a similar offence. 

 

260.                However, subclauses 89(1), (2) and (3) do not apply if the person has a reasonable excuse.  The note alerts the reader to the fact that a defendant bears an evidential burden to prove that they have a reasonable excuse and refers the reader to subsection 13.3(3) of the Criminal Code .  This is because the particular circumstances that will need to be relied on to establish the existence of a reasonable excuse will be peculiar to the knowledge of the defendant.            

Clause 90 - Confidential evidence

261.                Clause 90 allows the Tribunal to make appropriate suppression orders having regard to the confidential nature of any information and evidence or any other reason in relation to a matter before it.  This does not apply to the publication of a submission made to the Tribunal for consideration in making an RSRO or take a proposed action under subclause 31(2).  Subclause 24(3) deals with confidential or commercially sensitive submissions in relation to draft orders and subclause 31(4) provides that the publication requirements under clause 21 apply in relation to research undertaken or commissioned for the purposes of deciding on a proposed action under subclause 31(2).

Subdivision D - Representation by lawyers and paid agents

Clause 91 - Representation by lawyer and paid agents

262.                The Tribunal is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner.  Persons dealing with the Tribunal would generally represent themselves and may only be represented by a lawyer or paid agent with the permission of the Tribunal or in accordance with the procedural rules.  However, the Tribunal’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission on a draft order under clause 24 or 31.

 

263.                A person is not taken to be represented by a lawyer or paid agent if the lawyer or paid agent is an employee or officer of the person or an employee or officer of an industrial association that is representing the person.

Subdivision E - Appeals

Clause 92 - Appeal of decisions

264.                This clause makes provision for the appeal of a decision of a dual FWA member to the Full Bench of the Tribunal.  Only decisions of a single member may be appealed, which limits in practice the appeals to appeals in relation to a decision to grant or refuse to grant a safe remuneration approval in relation to a road transport collective agreement under Part 3 or a decision in relation to a dispute being dealt with under Part 4.

 

265.                A person who is aggrieved by such a decision may appeal the decision by applying to the Tribunal.  In some cases, the number of potential persons aggrieved by a decision could be large - e.g., where the decision has been made to refuse to grant a safe remuneration approval.  The requirement for the Tribunal to grant permission will prevent frivolous or vexatious appeals.  The Full Bench of the Tribunal must then decide whether to grant permission to appeal the decision, and, if the permission is granted, it will hear the appeal in accordance with clause 94.  The Full Bench must grant permission to appeal if it is satisfied that it is in the public interest to do so.

Clause 93 - Staying decisions that are appealed

266.                Where the Full Bench hears an appeal from a decision, the Full Bench may order that the operation of the whole or part of the original decision be stayed, on any terms and conditions that the Full Bench considers appropriate, until a decision in relation to the appeal or review is made or the Full Bench makes a further order.  The order may be made by either the Full Bench or the President as the most senior member on the Bench.

Clause 94 - Process for appealing decisions

267.                The Full Bench has the discretion to deal with matters as it considers appropriate, including deciding whether to hold a hearing or conducting a hearing.  A note refers readers to clauses 87 and 88, which deal with hearings and conferences. 

 

268.                Although an appeal can and usually will be conducted by reference to the original evidence, the Full Bench is not limited to the evidence before the primary decision-maker and can take into account further evidence or information (see subclause 94(2))

 

269.                The Full Bench is also able to confirm, quash or vary the original decision.  It may also make a further decision in relation to the subject matter that is the subject of the appeal.  Finally, the Full Bench may refer the matter that is the subject of the appeal to a dual FWA member and require the member to either deal with the subject matter of the decision, or act in accordance with the directions of the Full Bench.

Clause 95 - Referring questions of law to the Federal Court

270.                The President will be able to refer a matter of law arising from a matter being appealed to the Federal Court, which must then be determined by the Full Court of the Federal Court.  However, the Tribunal 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.

 

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

Clause 96 - Constitution of Full Bench

272.                A Full Bench must consist of either 3 members of the Tribunal (being the President, one dual FWA member and one industry member) or 5 members of the Tribunal (being the President, two dual FWA members and two industry members). 

 

273.                The composition of a Full Bench is a matter within the discretion of the President.  This ensures that the members of the Tribunal with appropriate experience and qualifications are involved in certain functions. 

 

274.                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

Clause 97 - Appointment

275.                The members of the Tribunal will be appointed by the Governor-General for a period not exciting 5 years.

 

276.                The person appointed as the President must also be a Deputy President of FWA.

 

277.                A person appointed as a person experienced in workplace relations matters must also be a Deputy President or Commissioner of FWA.



 

Clause 98 - Basis of appointment of industry members

278.                An industry member of the Tribunal holds office on a part-time basis.  The note points out to the reader those members of the Tribunal who are dual FWA members are permitted to hold dual appointments under section 632 of the FW Act .

Subdivision B - Terms and conditions of members of Tribunal

Clause 99 - Outside employment of industry members

279.                Tribunal members 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.  The appointment of a Tribunal member who breaches this provision will be terminated under clause 106.

Clause 100 - Remuneration

280.                A dual FWA member will not be paid any remuneration or allowances in relation to the member’s office as a member of the Tribunal.

 

281.                An industry member will be paid the remuneration determined by the Remuneration Tribunal .  Where there is no applicable determination in operation, the member will be paid the remuneration prescribed by the regulations.

 

282.                An industry member will be paid the allowances prescribed by the regulations.

 

283.                This clause has effect subject to the Remuneration Tribunal Act 1973 .

Clause 101 - Leave of absence

284.                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 FW Act.

Clause 102 - Disclosure of interests

285.                A Tribunal member (other than the President) is required to disclose to the President any interest, pecuniary or otherwise, that conflicts or could conflict with the proper performance of the member’s functions in relation to a matter that the member is dealing with or will deal with.

 

286.                If a Tribunal member discloses a potential conflict to the President, the member may only deal or continue to deal with the matter with approval of the President.

 

287.                Where the President becomes aware that a member has a potential conflict in relation to a matter (whether or not because of the member’s disclosure) and the President considers that the member should not deal or should no longer deal with the matter, the President must direct the member accordingly.  This applies even where the President has previously given approval to the member to deal or continue dealing with the matter under subclause 102(3).

Clause 103 - Termination of appointment on grounds of misbehaviour or incapacity

288.                Clause 103 provides that the Governor-General may terminate the appointment of a Tribunal Member for misbehaviour, or where the Tribunal Member is unable to perform the duties of the office because of his or her physical or mental incapacity.  However, to preserve the independence of Tribunal Members from the executive, the Governor-General can only do so when petitioned by both Houses of Parliament in the same session.  This ensures that Tribunal Members have the same protections from termination that apply to federal judges under paragraph 72(ii) the Constitution.

Clause 104 - Suspension on grounds of misbehaviour or incapacity

289.                Notwithstanding the limits on termination contained in clause 103, clause 104 enables the Governor-General to suspend, on full pay, a Tribunal Member (other than the President) from office on the grounds of misbehaviour or incapacity.  The Minister is required to table a statement in both Houses of Parliament within seven sitting days of the suspension outlining the ground of the suspension.  The suspension would operate for a further 15 sitting days unless both Houses of Parliament resolve to request that the Governor-General terminate the appointment.  If this occurs, the Governor-General must terminate the appointment.

Clause 105 - Termination of appointment for bankruptcy, etc.

290.                Clause 105 sets out the circumstances in which the Governor-General must terminate the appointment of a Tribunal Member (other than the President).  These circumstances include bankruptcy, unapproved absenteeism in excess of the specified period, or for failure, without reasonable excuse, to meet the disclosure of interest requirements contained in clause 102.

 

291.                These provisions reflect the standard grounds for termination of appointments of statutory office holders. 

Clause 106 - Termination of employment for outside employment

292.                Clause 106 requires the Governor-General to terminate the appointment of a Tribunal member for engaging in paid employment that, in the President’s opinion, conflicts or may conflict with the proper performance of the member’s duties (see clause 99).

Clause 107 - Automatic cessation of appointment for loss of qualification

293.                Clause 107 sets out the requirement that the President of the Tribunal must be a Deputy President of FWA and that the workplace relations experts must be a Deputy President or Commissioner of FWA.

 

294.                Where either the President or a workplace relations expert ceases to be either a Deputy President or Commissioner of FWA as required, clause 107 provides that the person’s appointment to the Tribunal ceases on the same day. 

Clause 108 - Resignation

295.                A Tribunal member may resign his or her appointment by giving written notice to the Governor-General. The resignation takes place on the day it is received by the Governor-General or a later day, if specified in the resignation.

Clause 109 - Other terms and conditions of members

296.                This clause permits the Governor-General to determine the terms and conditions of appointment of Tribunal members that are not otherwise provided for in this Bill (including any regulations).

Clause 110 - Acting appointments

297.                Clause 110 provides the circumstances in which the Minister may make acting appointments.

Subdivision C - Miscellaneous matters relating to members of Tribunal

Clause 111 - Disclosure of information by Tribunal

298.                The Tribunal may disclose information acquired or held by it, where it is necessary or appropriate to do so in the course of performing functions or exercising powers under the Bill or to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.

 

299.                The scope of disclosure would, without specific provision, be limited by the operation of the Privacy Act 1988 and the Crimes Act 1914.

Division 4 - General Manager and consultants

Clause 112 - Role of General Manager of Fair Work Australia

300.                Clause 112 sets out the role of the General Manager of FWA.  The General Manager has the function of assisting the President in ensuring that the Tribunal performs its functions efficiently and effectively and the General Manager has the power to do things necessary or convenient to be done for the purpose of performing his or her function.

 

301.                In particular, the General Manager is to assist the President in conducting research into remuneration-related matters that may affect safety in the road transport industry under paragraph 80(d). 

 

302.                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 (subclause 112(4)).  Subclause 112(6) provides that the General Manager is not required to comply with a direction from the President to the extent that compliance would be inconsistent with the General Manager’s performance, functions, or exercise of powers under his or her performance of functions or exercise of powers in relation to FWA, the   Financial Management and Accountability Act 1997  (in relation to FWA) or the   Public Service Act 1999 (in relation to FWA) .

 

303.                Subclause 112(7) is included to clarify for the reader that a direction made in writing under subclause 112(4) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .  This subclause is merely declaratory of the law and is not an actual exemption from that Act.      

Division 5 - Miscellaneous matters relating to Tribunal

Clause 113 - Procedural rules

304.                The procedures of the Tribunal are generally within the discretion of the Tribunal.  Subclause 113(1) provides that the President may make procedural rules about the practice and procedures to be followed by the Tribunal or the conduct of business in relation to matters before the Tribunal.  The President is required to consult with the other Tribunal Members before making such rules.  Procedural rules would be a legislative instrument and therefore subject to publication requirements and disallowance provisions contained in the  Legislative Instruments Act 2003 .

 

305.                Subclause 113(2) lists some of the matters that the President may make procedural rules about, including the procedural requirements concerning applications, submissions, directions, notifications and making the Tribunal decisions. 

 

306.                For the avoidance of doubt, subclause 113(3) provides that the power to make procedural rules extends to any functions conferred on the Tribunal by any other law of the Commonwealth.

Clause 114 - Regulations dealing with Tribunal matters

307.                Clause 114 provides that the regulations may provide for any matter that the procedural rules may also provide for.  This will enable certain the Tribunal procedures to be mandated if necessary.

 

308.                The note following this clause sets out that such regulations prevail over procedural rules to the extent of any inconsistency, referring the reader to subclause 121(2). 

Clause 115 - Costs

309.                Generally, a person must bear their own costs in relation to a matter before the Tribunal.

 

310.                However, subclause 115(2) provides an exception to this general rule in certain limited circumstances.  The Tribunal may order a person to bear all or some of the costs of another person where the Tribunal is satisfied that the person made an application vexatiously or without reasonable cause, or the application or response to an application had no reasonable prospects of success.

 

311.                A person to whom a costs order applies must not contravene a term of the order.  A note alerts the reader that this subsection is a civil remedy provision.

Clause 116 - Annual report

312.                The Tribunal will produce an annual report about the operations of the Tribunal to be presented to the Parliament.  Subclause 116(1) requires the President to provide an annual report to the Minister as soon as practicable after the end of each financial year about the operations of FWA during that year. The note points the reader to section 34C of the Acts Interpretations Act 1901 , which contains extra rules about annual reports.

 

313.                For the avoidance of doubt, subclause 116(2) clarifies that subclause 116(1) does not constitute authorisation or requirement to disclose personal information for the purposes of the   Privacy Act 1988 .

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

314.                Subclause 117(1) requires the President of the Tribunal to provide information to the Minister and the FWO, including copies of any enforceable instrument made or granted by the Tribunal and any information prescribed by the regulations. The information may contain personal information.  This clause authorises the disclosure of personal information for the purposes of Information Privacy Principle 11.1(d) of the   Privacy Act 1988 which permits the disclosure of personal information where authorised by law.

 

315.                To assist the Minister to remain informed about trends, research, and matters before the Tribunal, personal information may need to be disclosed from time to time.  Similarly, to facilitate information sharing and the efficient operation of the Tribunal, it will be necessary for personal information to be disclosed to the FWO at times.  As the FWO will be a statutory appointment separate from the Department and Minister, specific provision is made for the disclosure of information to the FWO.

 

316.                Subclause 117(2) provides that the regulations may prescribe information and documents relating to or derived from information that is publicly available and relates to matters the Tribunal is authorised to deal with.



 



Part 7 - Miscellaneous

Overview

317.                Part 7 contains provides that this Bill is a workplace law for the purposes of the FW Act, which provides protections to a person exercising their workplace rights under this Bill.  This Part also imposes obligations in relation to record keeping, provides for a review of this Bill after 3 years from commencement, and allows for regulations to be made.

Notes on clauses

Clause 118 - This Act is a workplace law

318.                Clause 118 provides that this Bill is a workplace law for the purposes of the FW Act.  A note refers the reader to section 341 of the FW Act.

 

319.                By defining this Bill as a workplace law for the purposes of the FW Act a person exercising their workplace rights under a workplace law gains the protections in Part 3-1 of the FW Act relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements).  Certain persons, including employers, independent contractors, hirers, employees and industrial associations, are prohibited from taking adverse action against certain other persons because the other person has or exercises a workplace right.  Adverse action includes dismissal of an employee but also includes a range of other action such as prejudicing an employee or independent contractor.  Coercion and misrepresentations in relation to workplace rights are also prohibited. 

Clause 119 - Employer and hirer obligations in relation to records

320.                Clause 119(1) provides that a person who is the employer or hirer of a road transport driver must make, and keep for 7 years, records of the kind prescribed by the regulations in relation to each road transport driver the person employs or engages.  A note informs the reader that this subclause is a civil remedy provision.

 

321.                Subclause 119(2) provides that if a form is prescribed by the regulations the records must be in that form and include any information prescribed by the regulations.  A note directs the reader that this subclause is a civil remedy provision. 

 

322.                Subclause 119( 3) provides that the regulations may provide for the inspection of those records.

Clause 120 - Review of this Act

323.                The Minister is obliged to cause a review of the operation of this Bill to be undertaken 3 years after commencement (that is, 1 July 2015).  The review should be completed within 6 months (that is, by 31 December 2015) and a written report of the review should be given to the Minister and published on the departmental website.  The Minister may, but is not required to, table the report.

Clause 121 - Regulations

324.                Clause 121 provides that the Governor-General may make regulations prescribing matters required by or permitted by this Bill to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Bill.  Regulations made under the Bill will prevail over procedural rules made under the Bill to the extent of any inconsistency.

 

325.                Subclause 121(2) provides that Regulations made under this Bill prevail over procedural rules made under this Bill, to the extent of any inconsistency.