ROAD SAFETY REMUNERATION BILL 2011 Explanatory Memorandum
ROAD SAFETY REMUNERATION BILL 2011
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
Explanatory Memorandum -Outline
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.
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Explanatory Memorandum - Outline
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.
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Explanatory Memorandum - Part 1- Preliminary
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.
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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.
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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
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(including freight) by road using one or more vehicles 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.
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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:
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· 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:
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· 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).
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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.
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Explanatory Memorandum - Part 2 - Road Safety Remuneration Orders
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.
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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
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· 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'.
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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.
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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.
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Explanatory Memorandum - Part 2 - Road Safety Remuneration Orders
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.
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Explanatory Memorandum - Part 2 - Road Safety Remuneration Orders
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
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Explanatory Memorandum - Part 2 - Road Safety Remuneration Orders
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));
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Explanatory Memorandum - Part 2 - Road Safety Remuneration Orders
· 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.
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Explanatory Memorandum - Part 3 - Grant of safe remuneration approval in relation to certain
collective agreements involving independent contractors
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
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Explanatory Memorandum - Part 3 - Grant of safe remuneration approval in relation to certain
collective agreements involving independent contractors
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
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Explanatory Memorandum - Part 3 - Grant of safe remuneration approval in relation to certain
collective agreements involving independent contractors
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.
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Explanatory Memorandum - Part 4 - Disputes about safe remuneration
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.
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Explanatory Memorandum - Part 4 - Disputes about safe remuneration
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.
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Explanatory Memorandum - Part 4 - Disputes about safe remuneration
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.
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Explanatory Memorandum - Part 5 - Compliance
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.
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Explanatory Memorandum - Part 5 - Compliance
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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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 the FW 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.
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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.
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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.
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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
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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.
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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).
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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.
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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.
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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.
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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
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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.
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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).
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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.
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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.
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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
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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.
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