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Road Safety Remuneration Bill 2012

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2010-2011-2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

ROAD SAFETY REMUNERATION BILL 2011

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Employment and Workplace Relations, the Honourable Bill Shorten MP)



AMENDMENTS TO THE ROAD SAFETY REMUNERATION BILL 2011

OUTLINE

The Government will move amendments to the Road Safety Remuneration Bill 2011 (the Bill).  The main amendments would amend Part 3 of the Bill relating to approval of certain collective agreements involving contractor drivers.  These amendments will:

·          Clarify the Tribunal’s role in approving road transport collective agreements;

·          consistent with the concurrent operation of laws regulating owner-drivers in New South Wales, Victoria and Western Australia, make clear that collective agreements entered into by contract drivers under these State laws are not road transport agreements for the purposes of Part 3 of the Bill;

·          enable the regulations to prescribe a code of conduct to facilitate the effective and efficient collective bargaining for road transport collective agreements; and

·          allow certain conduct by contractor drivers and their hirers to be exempt from the operation of the Competition and Consumer Act 2010 (the Competition and Consumer Act) .  The effect of these amendments will be to enable contractor drivers and hirers to collectively bargain and enter into approved collective agreements without breaching the Competition and Consumer Act. 

In addition, the amendments would:

·          ensure the same standing for registered employer organisations as it does for registered employee organisations; 

·          provide time limits for when application can be made to deal with a dispute arising from a dismissal or contract termination; and 

·          make a number of technical amendments which are consequential on the changes to Part 3 and which correct editorial errors or minor omissions.

FINANCIAL IMPACT STATEMENT

The measures proposed in this Bill are budget neutral.

 

NOTES ON AMENDMENTS

1.       In these notes on amendments, the following abbreviations are used:

the Bill

Road Safety Remuneration Bill 2011

Tribunal

Road Safety Remuneration Tribunal

Competition and Consumer Act

Competition and Consumer Act 2010



Amendment 1 - Clause 4, page 3 (line 4)

1)                         This item would include a new definition of ‘applicable services’ by reference to subclause 33(1) - see amendment 24.

Amendment 2 - Clause 4, page 3 (after line 4)

2)                         This item would include a new definition for ‘approval-pending’ by reference to subclause 37A(4) - see amendment 40.

Amendment 3 - Clause 4, page 3 (after line 4)

3)                         This item would include a new definition for ‘approved road transport collective agreement’.  The amendments to Part 3 of the Bill will provide that road transport collective agreements are to be approved by the Tribunal.  The Bill, as introduced, provided that the Tribunal was to grant safe remuneration approvals in respect of road transport collective agreements.

Amendment 4 - Clause 4, page 3 (after line 28)

4)                         This item would include a new definition for ‘contractor driver’.  This is a technical amendment.  The new definition of ‘contractor driver’ will replace the references to ‘independent contractor road transport drivers’, ‘independent contractor’ and ‘road transport driver who is an independent contractor’.

Amendment 5- Clause 4, page 4 (after line 10)

5)                          This item would amend the definition of ‘enforceable instrument’ to reflect that approvals of road transport collective agreements will replace safe remuneration approvals.

Amendment 6 - Clause 4, page 4 (after line 24)

6)                         This item would clarify that the term  ‘independent contractor’ is not confined to an individual.  This reflects that, under the Bill, road transport drivers who are independent contractors may operate through corporate structures - see clause 5 of the Bill.

Amendment 7 - Clause 4, page 4 (after line 30)

7)                         This item would include a definition for ‘lawyer’.  The term is used in clauses 69, 91 and 113 of the Bill.

Amendment 8 - Clause 4, page 5 (line 8)

Amendment 9 - Clause 4, page 5 (line 9)

Amendment 10 - Clause 4, page 5 (line 23)

8)                         These items would make minor technical changes consequential on the amendments made by amendment 24.

Amendment 11 - Clause 4, page 6 (lines 16 and 17)

9)                         This item would delete the definition of ‘safe remuneration approval’.  The Bill as introduced would have required the Tribunal to provide safe remuneration approvals in respect of road transport collective agreements.  In effect this would have meant that the Tribunal would only have approved those parts of a road transport collective agreement that contained provisions about remuneration and related conditions.  Under the proposed amendments to Part 3 road transport collective agreements in their entirety will be approved by the Tribunal - see Amendment 22-3, 25, 27-28, 30, 32-35, 37-39 41-45.  In considering an agreement, the Tribunal may have regard to whether the benefit of approving the agreement would outweigh the detriment to the public constituted by any lessening of competition that would or could result if the agreement were approved.  These amendments clarify the Tribunal’s role in approving road transport collective agreements by requiring the Tribunal to have regard to the entire road transport collective agreement when considering whether or not to approve the agreement.    

Amendment 12- Clause 8, page 9 (lines 13 and 14)

Amendment 13 - Clause 13, page 13 (line 18)

Amendment 16 - Clause 27, page 22 (lines 15 and 16)

10)                     These items would make technical amendments, substituting the term ‘contractor driver’ for ‘road transport driver who is an independent contractor’.



Amendment 14 - Clause 19, page 17 (lines 18 to 20)

Amendment 15 - clause 19, page 17 (line 21)

 

11)                     These amendments would allow all registered organisations, and not just registered employee associations, to apply for a road safety remuneration order on behalf of its members.

Amendment 17 - Clause 27, page 23 (line 6)

12)                     This item would amend clause 27 to make clear that if there is a series of commencement dates, the expiry date of the road safety remuneration order must not be later than 4 years after the earliest of those dates.

Amendment 18 - Clause 31, page 24 (line 8)

Amendment 19 - Clause 31, page 24 (line 14)

13)                     These items would amend clause 31 so that the Tribunal is no longer required to revoke a road safety remuneration order after reviewing the order and before the expiry date. Under clause 31, the Tribunal will already be required to either re-make the same order with a new expiry date, make a new road safety remuneration order or not replace the expired order.

Amendment 20 - Clause 32, page 25 (lines 8 to 10)

Amendment 21 - Clause 32, page 25 (line 11)

14)                     These items would amend clause 32 to allow all registered organisations, and not just registered employee associations, to apply for a variation of a road safety remuneration order on behalf of its members.



 

Amendment 22 - Heading to Part 3, page 26 (lines 1 to 3)

15)                     This item would substitute a  new heading to Part 3. This reflects that approvals of road transport collective agreements will replace safe remuneration approvals.

16)                     The Bill as introduced would have required the Tribunal to provide safe remuneration approvals in respect of road transport collective agreements.  In effect this would have meant that the Tribunal would only have approved those parts of a road transport collective agreement that contained provisions about remuneration and related conditions.  This amendment and related amendments in items 23, 25, 27-28, 30, 32-35, 37-39 41-45 clarify the Tribunal’s role in approving road transport collective agreements by requiring the Tribunal to have regard to the entire road transport collective agreement when considering whether or not to approve the agreement.  The Tribunal may also have regard to whether the benefit of approving the agreement would outweigh the detriment to the public constituted by any lessening of competition that would or could result if the agreement were approved. 

Amendment 23 - Clause 32A, page 26 (before line 5)

 

17)                     This item would insert new clause 32A which relates to the power to approve road transport collective agreements. 



18)                     New subclause 32A(1) provides that the Tribunal may approve a road transport collective agreement under this Part.  Subclause 32A(2) provides that in deciding whether to approve a road transport collective agreement, the Tribunal may have regard to competition policy issues. 

 

Amendment 24 - Clause 33, page 26 (lines 5 to 25)

 

19)                     This item would omit the existing clause 33 (which provides for safe remuneration approvals) and substitute a new clause 33 (which deals with road transport collective agreements). 

 

20)                     New subclause 33(1) defines a road transport collective agreement for the purposes of Part 3 as an agreement between certain contractor drivers and the hirer or potential hirer of the drivers that meets certain content requirements.  Significantly, the agreement must specify the basis on which the participating drivers who have entered into the agreement became part of the group.  This will enable the Tribunal to determine whether the group of drivers was fairly chosen and are genuinely representative of the drivers with whom the participating hirer will contract.  A note alerts the reader that if the Tribunal approves the agreement, its effect is not limited to participating drivers and refers the reader to clause 36.

 

21)                     New subclause 33(2) clarifies that collective agreements entered into by contract drivers under certain State laws that regulate contract drivers are not road transport agreements for the purposes of this Act.   This is consistent with clause 10 of the Bill that provides for the concurrent operation of those State Acts.  Contract drivers in New South Wales, Victoria and Western Australia will continue to be able to bargain for and enter into agreements under the laws in place in those States as well as under the provisions in this Bill (if they are within its constitutional scope).

 

22)                     New subclauses 33(3)-(5) provide that the regulations may prescribe a code of conduct to facilitate the effective and efficient collective bargaining for road transport collective agreements.  The code of conduct must be developed in consultation with the road transport industry and the Tribunal.  Participating hirers and drivers are required to conduct themselves in accordance with any prescribed code of conduct - see item 26.  

 

23)                     Subclause 33(4) provides that despite any other law of the Commonwealth, a State or a Territory, a road transport collective agreement (other than a collective agreement entered into by contract drivers under a specified State law) has no effect unless it is an approved road transport collective agreement.

 

Amendment 25 - Clause 34, page 26 (line 27)

 

24)                     This item would amend clause 34 to reflect that approvals of road transport collective agreements will replace safe remuneration approvals.

 

Amendment 26 - Clause 34 page 27 (after line 5)

 

25)                     This item would insert a new paragraph (ca) in clause 34 which will require the Tribunal to be satisfied that the participating hirer and the participating drivers have conducted themselves in accordance with any prescribed code of conduct before approving  a road transport collective agreement.

 

Amendment 27 - Heading to clause 35, page 27 (line 9)

Amendment 28 - Clause 35, page 27 (line 10)

Amendment 29 - Clause 35, page 27 (lines 13 and 14)

Amendment 30 - Clause 35, page 27 (line 16)

Amendment 31 - Clause 35, page 27 (lines 23 and 24)

Amendment 32 - Clause 35, page 27 (line 29)

Amendment 33 - Clause 35, page 27 (line 31)

 

26)                     These items would make various technical amendments to clause 35 to reflect that approvals of road transport collective agreements will replace safe remuneration approvals and the use of the term ‘contractor driver’ to replace ‘road transport drivers’.

Amendment 34 - Heading to clause 36, page 28 (line 1)

Amendment 35 - Clause 36, page 28 (lines 2 to 6)

Amendment 36 - Clause 36, page 28 (line 8)

Amendment 37 - Clause 36, page 28 (line 10)



27)                     These items would make various technical amendments to clause 36 to reflect that approvals of road transport collective agreements will replace safe remuneration approvals and the use of the term ‘contractor driver’ to replace ‘road transport drivers’.

Amendment 38 - Clause 37, page 28 (lines 13 and 14)

Amendment 39 - Clause 37, page 28 (lines 16 to 22)



28)                     These items would make various technical amendments to clause 37 to reflect that approvals of road transport collective agreements will replace safe remuneration approvals and the use of the term ‘contractor driver’ to replace ‘road transport drivers’.

Amendment 40 - After clause 37, page 28 (after line 22)

 

29)                     This item would insert new clause 37A which provides for the authorisation of certain conduct for the purposes of the Competition and Consumer Act.

 

30)                     Subsection 51(1) of the Competition and Consumer Act provides that an Act can specify, and specifically authorise, conduct that would otherwise contravene the restrictive trade practices provisions of that Act.

 

31)                     Subclause 37A(1) provides that for the purposes of subclause 51(1) of the Competition and Consumer Act, and subject to the exclusion in subclause 37A(4), anything done in accordance with an approved road transport collective agreement by the participating driver, a contractor driver (who is providing applicable services to the participating hirer) or their representatives is specified in and specifically authorised by this Act.

 

32)                     Subclause 37A(2) provides that for the purposes of subclause 51(1) of the Competition and Consumer Act, and subject to the exclusion in subclause 37A(4), entry into an approval-pending road transport collective agreement by a hirer or potential hirer of contractor drivers and contractor drivers is specified in and specifically authorised by this Act. 

 

33)                     Subclause 37A(3) provides that for the purposes of subsection 51(1) of the Competition and Consumer Act, and subject to the exclusion in subclause 37A(4), anything  done by a hirer or potential hirer, a contract driver or their representatives

in preparation for, or incidental to, entry into an approval-pending road transport collective agreement is specified in and specifically authorised by this Act.

 

34)                     Subclause 37A(4) limits the scope of the authorisations contained in subclauses 37A(1)-(3) by providing that the following conduct is not specifically authorised:

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

·          secondary boycotts as defined by reference to subsection 87AA(2) of the Competition and Consumer Act.

 

35)                     Clause 37A(5) provides for the meaning of ‘approval-pending.’

 

Amendment 41 - Heading to clause 38, page 28 (line 23)

Amendment 42 - Clause 38, page 28 (line 24)

Amendment 43 - Clause 38, page 28 (line 25)

Amendment 44 - Heading to clause 39, page 28 (lines 26 and 27)

Amendment 45 - Clause 39, page 28 (line 28)

 

36)                     These items would make various technical amendments to clauses 38 and 39 to reflect that approvals of road transport collective agreements will replace safe remuneration approvals.



 

Amendment 46 - Clause 40, page 29 (line 13)

Amendment 47 - After clause 40, page 29 (after line 16)  

 

37)                     These amendments would introduce a time limit for applications to have disputes about dismissals and contract terminations dealt with by the Tribunal.  An application must be made to the Tribunal 14 days after the dismissal took effect (for disputes between an employee and their employer) or 28 days after the termination took effect (for disputes between an employee and their former employer).

 

38)                     The Tribunal is able to allow a further period for the application in exceptional circumstances, taking into account the matters listed in clause 40A(2).

 

39)                     The requirement for a time limit is to encourage employees and contract drivers to promptly take disputes to the Tribunal and to discourage disputes being taken to the Tribunal long after the matter has occurred.

 

Amendment 48 - Heading to clause 42, page 30 (line 15)

Amendment 49 - Heading to subclause 42(1), page 30 (line 16)

Amendment 50 - Clause 42, page 30 (lines 17 and 18)

Amendment 51 - Heading to subclause 42(2), page 30 (line 23)

Amendment 52 - Clause 42, page 30 (lines 24 and 25)

 

40)                     These items replace references to ‘independent contractor road transport drivers’, ‘independent contractor’ and ‘road transport driver who is an independent contractor’ with the defined term ‘contractor driver’ - see amendments 4 and 6.

 

Amendment 53 - Clause 46 , page 33 (table item 1, column 2 )

Amendment 54 - Clause 46 , page 34 (table item 2, column 2 )

Amendment 55 - Clause 46 , page 34 (table item 3, column 2 )

Amendment 56 - Clause 46 , page 34 (table item 5, column 2 )

Amendment 57 - Clause 47, page 35 (line 6)

Amendment 58 - Clause 47 , page 35 (line 11

Amendment 59 - Clause 47, page 35 (line 13)

 

41)                     These amendments would allow all registered organisations, and not just registered employee associations, to apply for an order in relation to a contravention or a proposed contravention of a civil remedy provision if the organisation is entitled to represent the interests of a person affected by the contravention or proposed contravention.

 

Amendment 60 - Clause 61, page 41 (lines 4 and 5)

Amendment 61 - Clause 80, page 53 (line 19)

Amendment 63 - Clause 92, page 59 (lines 29 and 30)

Amendment 64 - Clause 117, page 71 (line 28)

 

42)                     These items would make technical amendments to reflect that approvals of road transport collective agreements will replace safe remuneration approvals.

43)                     These items would replace the references to ‘safe remuneration approvals’, and the granting of safe remuneration approvals, with references to ‘approved road transport collective agreements’ and the approval of road transport collective agreements. This reflects the proposed Part 3, which replaces safe remuneration approvals with road transport collective agreements.

 

Amendment 62 - Clause 80, page 53 (lines 26 and 27)

 

44)                     This technical amendment clarifies that the Tribunal may also have other functions conferred on it by regulations made under the Act by another law of the Commonwealth.