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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Owner Drivers and Forestry Contractors Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Definitions 2
4. Owner drivers and owner driver contracts 6
5. Haulage contractors and haulage contracts 7
6. Harvesting contractors and harvesting contracts 8
7. Regulations regarding contractors and contracts 9
8. Application of Act 10
9. Act binds the Crown 11
PART 2--CONTRACTING REQUIREMENTS 12
Division 1--Information Booklet 12
10. Information booklet 12
11. Information booklet not required for short term engagements 12
12. Information booklet to be given to tenderers 13
13. Contents and availability of information booklet 13
Division 2--Rates and Costs Schedules 13
14. Rates and costs schedules 13
15. Publication of schedules 14
16. Provision of applicable schedule to contractor before
engagement 15
17. Provision of applicable schedule to tenderers 16
18. Provision of revised schedule to contractor during engagement 16
Division 3--Requirements for Ongoing Engagements 17
19. Application of Division 17
20. Requirements for regulated contracts 18
21. Notice of termination 18
22. Payment in lieu of notice 19
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Division 4--Further Contractual Requirements 21
23. Costs of insurance 21
24. Amounts for provision of services or equipment by hirer or
other persons 21
Division 5--Joint Negotiations 22
25. Negotiating agents for contractors 22
26. Negotiating agents for hirers 22
PART 3--CODES OF PRACTICE 24
27. Prescribing codes of practice 24
28. Consultation 24
29. Application of codes of practice 24
30. Compliance with codes of practice 24
PART 4--UNCONSCIONABLE CONDUCT 25
31. Unconscionable conduct by hirers 25
32. Unconscionable conduct by contractors 26
PART 5--DISPUTE RESOLUTION 29
Division 1--Introduction 29
33. Meaning of "dispute" 29
Division 2--Alternative Dispute Resolution 29
34. What alternative dispute resolution includes 29
35. Referral of disputes for alternative dispute resolution 30
36. Representation at alternative dispute resolution 30
37. Costs of alternative dispute resolution 31
38. Statements made during alternative dispute resolution not
admissible 31
39. Immunity of person conducting alternative dispute resolution 31
Division 3--The Tribunal 32
40. Disputes must first be referred for alternative dispute resolution
before proceeding to the Tribunal 32
41. Jurisdiction of the Tribunal 32
42. Time limit for applications 32
43. Parties 33
44. Powers of the Tribunal 33
45. Additional power of Tribunal where failure to give information
booklet or rates and costs schedule 35
46. Orders to prevent the entering into of contracts 36
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Division 4--Extension of Contract Variation Orders 37
47. Application of Division 37
48. What is the extension of a contract variation order? 37
49. Application for extension of contract variation order 38
50. Procedure on application 38
51. Making and publicising order 39
52. When does order take effect? 39
53. Variation and revocation of order 40
PART 6--THE SMALL BUSINESS COMMISSIONER 41
54. Functions of the Small Business Commissioner under this Act 41
PART 7--INDUSTRY COUNCILS 42
Division 1--Transport Industry Council of Victoria 42
55. Establishment and functions 42
56. Membership 43
57. Constitution and procedure 44
Division 2--Forestry Industry Council of Victoria 44
58. Establishment and functions 44
59. Membership 46
60. Constitution and procedure 47
PART 8--GENERAL 48
61. Subjecting contractors or others to detriment 48
62. Conduct of partnerships 49
63. Conduct of agents imputed to corporations 49
64. Trade Practices Act and Competition Code 50
65. Act prevails over regulated contracts 51
66. Regulations 51
PART 9--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998 53
67. Victorian Civil and Administrative Tribunal Act 1998 53
PART 10--TRANSITIONAL 55
68. Contracting requirements 55
69. Transitional provisions for unconscionable conduct and
disputes 56
__________________
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Clause Page
SCHEDULE 1--Constitution and Procedure of Industry Councils 57
ENDNOTES 62
INDEX 63
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PARLIAMENT OF VICTORIA
A BILL
to regulate the relationship between persons who contract to transport
goods in a vehicle, or harvest forest products using motorised
equipment, supplied by them and persons who hire them, to amend the
Victorian Civil and Administrative Tribunal Act 1998 and for
other purposes.
Owner Drivers and Forestry
Contractors Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to regulate the
relationship between persons who contract to
transport goods in a vehicle, or harvest forest
5
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Act No.
Part 1--Preliminary
s. 2
products using motorised equipment, supplied by
them and persons who hire them, principally by--
(a) requiring information to be given to
contractors;
(b) providing requirements for contracts;
5
(c) allowing negotiating agents to be appointed;
(d) providing a dispute-resolution mechanism;
(e) conferring functions on the Small Business
Commissioner;
(f) establishing a Transport Industry Council
10
and a Forestry Industry Council;
(g) providing for codes of practice to be made;
(h) prohibiting unconscionable conduct;
(i) providing certain authorisations for the
purposes of competition laws;
15
(j) amending the Victorian Civil and
Administrative Tribunal Act 1998.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
20
(2) If a provision of this Act does not come into
operation before 1 December 2006, it comes into
operation on that day.
3. Definitions
In this Act--
25
"business day" means a day other than a
Saturday, a Sunday or a public holiday
within the meaning of the Public Holidays
Act 1993;
"code of practice" means a code of practice
30
made under Part 3;
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s. 3
"contractor" means--
(a) an owner driver; or
(b) a haulage contractor; or
(c) a harvesting contractor;
"corporation" has the same meaning as in the
5
Corporations Act;
"dispute" has the meaning given by section 33;
"freight broker" means a broker or agent in the
business of procuring or arranging the
engagement of contractors by hirers;
10
"forest products" includes--
(a) saw logs, pulp wood, woodchips and
fuel wood; and
(b) residual matter, such as waste bark or
branches, that is processed on site for
15
use as woodchips, boiler fuel, compost
or mulch--
but does not include firewood collected for
domestic use;
"forestry contractor" means a haulage
20
contractor or a harvesting contractor;
"Forestry Industry Council" means Forestry
Industry Council of Victoria established by
section 58;
"goods" includes freight and materials;
25
"harvesting contract" has the meaning given in
section 6(2);
"harvesting contractor" has the meaning given
in section 6(1);
3
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"haulage contract" has the meaning given in
section 5(2);
"haulage contractor" has the meaning given in
section 5(1);
"heavy vehicle" has the same meaning as in the
5
Road Safety Act 1986;
"hirer" means a person who engages a contractor
under one or more regulated contracts;
"industry council" means Transport Industry
Council or Forestry Industry Council;
10
"listed public company" has the same meaning
as in the Income Tax Assessment Act 1997
of the Commonwealth;
"motorised equipment" means--
(a) a wheeled or tracked machine powered
15
by a combustion engine, such as a
bulldozer, grader, excavator or skidder;
or
(b) other equipment powered by a
combustion engine, such as a chainsaw,
20
purpose-built forest harvesting
machine, hydraulic loading equipment
or cable logging system;
"negotiating agent" means a person or group of
persons appointed under Division 5 of
25
Part 2;
"officer" of a corporation has the same meaning
as in the Corporations Act;
"owner driver" has the meaning given in
section 4(1);
30
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"owner driver contract" has the meaning given
in section 4(2);
"person" includes a partnership;
"rates and costs schedule" means a schedule
published under section 15 as revised from
5
time to time;
"regulated contract" means an owner driver
contract, a haulage contract or a harvesting
contract;
"Small Business Commissioner" means Small
10
Business Commissioner appointed under the
Small Business Commissioner Act 2003;
"Transport Industry Council" means Transport
Industry Council of Victoria established by
section 55;
15
"Tribunal" means Victorian Civil and
Administrative Tribunal established by
section 8 of the Victorian Civil and
Administrative Tribunal Act 1998;
"vehicle" means--
20
(a) a vehicle that is used on a highway
within the meaning of the Road Safety
Act 1986 and that is built to be
propelled by a motor that forms part of
the vehicle; or
25
(b) a bicycle.
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4. Owner drivers and owner driver contracts
(1) For the purposes of this Act, an "owner driver"
is--
(a) a natural person who carries on a business of
transporting goods in one or more vehicles
5
supplied by him or her and operated by him
or her (whether solely or with the use of
additional or relief operators); or
(b) a corporation (other than a listed public
company) that carries on a business of
10
transporting goods in one or more vehicles
supplied by the corporation or an officer of
the corporation and operated by an officer of
the corporation (whether solely or with the
use of additional or relief operators); or
15
(c) a partnership of persons referred to in
paragraph (a)--
but does not include a haulage contractor.
(2) For the purposes of this Act, an "owner driver
contract" is a contract made in the course of
20
business by an owner driver with another person
for the transport of goods by the owner driver.
(3) It is irrelevant whether an owner driver contract
provides for an owner driver to perform services
other than transporting goods, as long as the
25
services to be performed under the contract
predominantly relate to the transport of goods.
(4) For the avoidance of doubt, an owner driver
contract does not include a contract that is a
contract of employment.
30
(5) Sub-sections (1) and (2) are subject to section 7.
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5. Haulage contractors and haulage contracts
(1) For the purposes of this Act, a "haulage
contractor" is--
(a) a natural person who carries on a business of
transporting forest products in one or more
5
vehicles supplied by him or her and operated
by him or her (whether solely or with the use
of additional or relief operators); or
(b) a corporation (other than a listed public
company) that carries on a business of
10
transporting forest products in one or more
vehicles supplied by the corporation or an
officer of the corporation and operated by an
officer of the corporation (whether solely or
with the use of additional or relief operators);
15
or
(c) a partnership of persons referred to in
paragraph (a).
(2) For the purposes of this Act, a "haulage
contract" is a contract made in the course of
20
business by a haulage contractor with another
person for the transport of forest products by the
haulage contractor.
(3) It is irrelevant whether a haulage contract provides
for a haulage contractor to perform services other
25
than transporting forest products, as long as the
services to be performed under the contract
predominantly relate to the transport of forest
products.
(4) For the avoidance of doubt, a haulage contract
30
does not include a contract that is a contract of
employment.
(5) Sub-sections (1) and (2) are subject to section 7.
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6. Harvesting contractors and harvesting contracts
(1) For the purposes of this Act, a "harvesting
contractor" is--
(a) a natural person who carries on a business of
harvesting forest products using motorised
5
equipment supplied by him or her; or
(b) a corporation (other than a listed public
company) that carries on a business of
harvesting forest products using motorised
equipment supplied by the corporation or an
10
officer of the corporation; or
(c) a partnership of persons referred to in
paragraph (a).
(2) For the purposes of this Act, a "harvesting
contract" is a contract made in the course of
15
business by a harvesting contractor with another
person for the harvesting of forest products by the
harvesting contractor.
(3) It is irrelevant whether a harvesting contract
provides for a harvesting contractor to perform
20
services other than harvesting forest products, as
long as the services to be performed under the
contract predominantly relate to the harvesting of
forest products.
(4) For the avoidance of doubt, a harvesting contract
25
does not include a contract that is a contract of
employment.
(5) Sub-sections (1) and (2) are subject to section 7.
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s. 7
(6) In this section--
"harvesting" includes--
(a) felling or cutting trees or parts of trees;
(b) extracting, grading and loading forest
products;
5
(c) undertaking any works, including road
works, coupe rehabilitation and
construction of boundary trails,
ancillary to any of the activities referred
to in paragraphs (a) and (b).
10
7. Regulations regarding contractors and contracts
The regulations may prescribe--
(a) persons of a specified class to be contractors
for the purposes of this Act or the regulations
or specified provisions of this Act or the
15
regulations;
(b) persons of a specified class not to be
contractors for the purposes of this Act or the
regulations or specified provisions of this
Act or the regulations;
20
(c) contracts of a specified class to be regulated
contracts for the purposes of this Act or the
regulations or specified provisions of this
Act or the regulations;
(d) contracts of a specified class not to be
25
regulated contracts for the purposes of this
Act or the regulations or specified provisions
of this Act or the regulations.
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8. Application of Act
(1) This Act applies to owner drivers who are
engaged--
(a) under an owner driver contract that is made
in Victoria or that is subject to the law of
5
Victoria; or
(b) to transport goods wholly within Victoria; or
(c) to transport goods from Victoria to another
place or from another place to Victoria, if a
substantial part of the services under the
10
owner driver contract are performed in
Victoria.
(2) This Act applies to haulage contractors who are
engaged--
(a) under a haulage contract that is made in
15
Victoria or that is subject to the law of
Victoria; or
(b) to transport forest products wholly within
Victoria; or
(c) to transport forest products from Victoria to
20
another place or from another place to
Victoria, if a substantial part of the services
under the haulage contract are performed in
Victoria.
(3) This Act applies to harvesting contractors who are
25
engaged--
(a) under a harvesting contract that is made in
Victoria or that is subject to the law of
Victoria; or
(b) to harvest forest products within Victoria.
30
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(4) However, this Act does not apply to an owner
driver or haulage contractor who has the benefit
of, or is otherwise covered by, a contract
determination made under Chapter 6 of the
Industrial Relations Act 1996 of New South
5
Wales.
9. Act binds the Crown
This Act binds the Crown in right of Victoria and
also, so far as the legislative power of the
Parliament permits, the Crown in all its other
10
capacities.
__________________
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Act No.
Part 2--Contracting Requirements
s. 10
PART 2--CONTRACTING REQUIREMENTS
Division 1--Information Booklet
10. Information booklet
(1) A hirer who intends to engage a contractor
(otherwise than through a freight broker) must
5
give the contractor an information booklet that
complies with section 13(1) at least 3 business
days before the hirer engages the contractor.
(2) A freight broker who procures or arranges the
engagement of a contractor by a hirer must give
10
the contractor an information booklet that
complies with section 13(1) at least 3 business
days before the contractor is engaged.
Note: A failure to comply with this section may result in the
15 Tribunal making an order under section 45 regarding
payment to the contractor.
11. Information booklet not required for short term
engagements
(1) Section 10 does not apply if the contractor is
engaged for a period of less than 30 days.
20
(2) However, if a contractor is engaged by the same
hirer or through the same freight broker for a total
of at least 30 days in any 3 month period, the
information booklet must be given to the
contractor on the 30th day on which the contractor
25
is engaged in that period.
(3) An information booklet is not required to be given
more than once under sub-section (2).
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s. 12
12. Information booklet to be given to tenderers
(1) This section applies to a hirer who undertakes a
tender process for the purpose of engaging a
contractor.
(2) The hirer must not accept a tender from a
5
contractor unless the hirer has given the contractor
an information booklet that complies with
section 13(1) at least 3 business days before the
tender is lodged.
10 Note: A failure to comply with this section may result in the
Tribunal making an order under section 45 regarding
payment to the contractor.
13. Contents and availability of information booklet
(1) An information booklet must contain the
information, and be in the form, determined by the
15
Minister.
(2) The Secretary to the Department administered by
the Minister must make information booklets
available to hirers and freight brokers on request.
(3) The Secretary may make the booklets available,
20
and publish them, on the Internet or in any other
manner the Secretary considers appropriate.
Division 2--Rates and Costs Schedules
14. Rates and costs schedules
(1) The Minister, in consultation with the industry
25
councils, must--
(a) develop rates and costs schedules for
contractors; and
(b) revise each schedule at periods not
exceeding 12 months.
30
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s. 15
(2) Each schedule must--
(a) specify the class of contractor and vehicle or
motorised equipment to which it applies; and
(b) contain the following information--
(i) typical fixed and variable overhead
5
costs for that class of contractor and
vehicle or equipment; and
(ii) the base hourly rate and casual hourly
rate that would typically apply to that
class of contractor if a contractor of that
10
class were performing substantially
similar work as an employee.
(3) For the purposes of sub-section (2)(b)(i), fixed
and variable overhead costs include, but are not
limited to--
15
(a) vehicle or equipment registration,
maintenance and running costs;
(b) business administration and insurance costs
(including any premiums payable under the
Accident Compensation (WorkCover
20
Insurance) Act 1993);
(c) self-funding of superannuation;
(d) finance costs;
(e) costs of complying with any applicable laws;
(f) costs of engaging additional or relief labour;
25
(g) depreciation of vehicles or equipment.
15. Publication of schedules
(1) The Minister must publish each rates and costs
schedule and each revision of those schedules in
the Government Gazette.
30
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(2) The Secretary to the Department administered by
the Minister must make the schedules and revised
schedules available to hirers and freight brokers
on request.
(3) The Secretary may make the schedules and
5
revised schedules available, and publish them, on
the Internet or in any other manner the Secretary
considers appropriate.
16. Provision of applicable schedule to contractor
before engagement
10
(1) A hirer who intends to engage a contractor (other
than through a freight broker) must give the
contractor a copy of the most recently published
rates and costs schedule applicable to that
contractor and the relevant class of vehicle or
15
motorised equipment at least 3 business days
before the hirer engages the contractor.
(2) A freight broker who procures or arranges the
engagement of a contractor by a hirer must give
the contractor a copy of the most recently
20
published rates and costs schedule applicable to
the contractor and the relevant class of vehicle or
motorised equipment at least 3 business days
before the contractor is engaged.
(3) Sub-section (1) or (2) does not apply if the
25
contractor is engaged for a period of less than
30 days.
(4) However, if a contractor is engaged by the same
hirer or through the same freight broker for a total
of at least 30 days in any 3 month period, the most
30
recently published applicable schedule must be
given to the contractor on the 30th day on which
the contractor is engaged in that period.
Note: A failure to comply with this section may result in the
35 Tribunal making an order under section 45 regarding
payment to the contractor.
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s. 17
17. Provision of applicable schedule to tenderers
(1) This section applies to a hirer who undertakes a
tender process for the purpose of engaging a
contractor.
(2) The hirer must not accept a tender from a
5
contractor unless the hirer has given the contractor
a copy of the most recently published rates and
costs schedule applicable to that contractor and
the relevant class of vehicle or motorised
equipment at least 3 business days before the
10
tender is lodged.
Note: A failure to comply with this section may result in the
Tribunal making an order under section 45 regarding
payment to the contractor.
18. Provision of revised schedule to contractor during
15
engagement
(1) A hirer who has engaged a contractor (other than
through a freight broker) must, during the
engagement, give the contractor a copy of each
revision of the applicable rates and costs schedule
20
as soon as practicable after the revision is
published.
(2) A freight broker who has procured or arranged the
engagement of a contractor by a hirer must, during
the engagement, give the contractor a copy of
25
each revision of the applicable rates and costs
schedule as soon as practicable after the revision
is published.
(3) Sub-section (1) or (2) does not apply if the
contractor is engaged for a period of less than
30
30 days.
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s. 19
(4) However, if a contractor is engaged by the same
hirer or through the same freight broker for a total
of at least 30 days in any 3 month period, the most
recently published applicable schedule must be
given to the contractor on the 30th day on which
5
the contractor is engaged in that period.
(5) Sub-section (4) does not apply if the contractor
has been given a copy of the most recently
published applicable schedule under section 16(4).
10 Note: A failure to comply with this section may result in the
Tribunal making an order under section 45 regarding
payment to the contractor.
Division 3--Requirements for Ongoing Engagements
19. Application of Division
(1) This Division applies to any ongoing engagement
15
of a contractor that is--
(a) of no fixed duration; or
(b) for a period of at least 30 days.
(2) A contractor's engagement is to be regarded as
ongoing--
20
(a) despite any interruption or ending of the
engagement by the hirer if the interruption or
ending is made or done with the intention of
avoiding obligations under this Division; and
(b) irrespective of the number of regulated
25
contracts under which the contractor is
engaged during the engagement.
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Part 2--Contracting Requirements
s. 20
20. Requirements for regulated contracts
A regulated contract under which a contractor is
engaged must--
(a) be in writing; and
(b) state the guaranteed minimum number of
5
hours of work or income level that the
contractor will receive; and
(c) set out the rates to be paid to the contractor;
and
(d) set out the minimum period of notice of
10
termination of the engagement, or payment
in lieu of notice, in accordance with
sections 21 and 22.
Note: There is no minimum period of notice for ongoing
15 engagements of less than 3 months--see section
21(4)(c).
21. Notice of termination
(1) The minimum period of notice of termination of
an engagement is as set out in the following table.
Category of contractor Minimum notice period
Forestry contractor 3 months
Owner driver of heavy 3 months
vehicle
Other owner driver 1 month
(2) Sub-section (1) does not apply to an engagement
20
if--
(a) at the contractor's request, the Small
Business Commissioner certifies in writing
that he or she, or a person acting on his or
her behalf, has explained to the contractor--
25
(i) the effect of sub-section (1); and
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Part 2--Contracting Requirements
s. 22
(ii) that the giving of the certificate and the
giving by the contractor of a notice
under paragraph (b) will result in sub-
section (1) not applying to the
engagement; and
5
(b) after having been given a certificate under
paragraph (a), the contractor gives the hirer a
written notice waiving the application of
sub-section (1) to the engagement.
(3) The Small Business Commissioner must issue a
10
certificate under sub-section (2)(a) within 21 days
after being requested to do so by the contractor,
but a certificate issued later than that is not invalid
only because of that fact.
(4) Sub-section (1) does not apply to--
15
(a) termination of the engagement by the hirer
on the ground of serious and wilful
misconduct; or
(b) termination of the engagement by the
contractor on the ground of a material breach
20
of contract by the hirer; or
(c) an ongoing engagement for a period of less
than 3 months.
(5) Nothing in this section prevents persons entering a
regulated contract under which notice of
25
termination may not be given before a specified
date.
22. Payment in lieu of notice
(1) A hirer may, in lieu of the notice period required
by section 21, pay a contractor an amount
30
calculated in accordance with this section.
(2) The amount is the gross amount less the
deductible amount.
19
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s. 22
(3) The "gross amount" is the higher of--
(a) the amount that would be paid under the
regulated contract for the minimum number
of hours specified in the contract over the
minimum required period of notice;
5
(b) the monthly average of the amount paid to
the contractor by the hirer over the period of
6 months immediately before the termination
multiplied by the number of months of the
minimum required period of notice.
10
(4) The "deductible amount" is--
(a) if the relevant vehicle or motorised
equipment is subject to finance arrangements
at the time of termination, the amount of
fixed overhead costs as provided in the most
15
recent applicable rates and costs schedule
that would be payable over the minimum
required period of notice; or
(b) if the relevant vehicle or motorised
equipment is not subject to finance
20
arrangements at the time of termination, the
amount of fixed and variable overhead costs
as provided in the most recent applicable
rates and costs schedule that would be
payable over the minimum required period
25
of notice.
(5) In this section--
"finance arrangements" includes any fees,
interest, charges or expenses incurred by a
contractor in respect of the purchase, hire
30
purchase or lease of a vehicle or motorised
equipment used to provide services under the
regulated contract.
20
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Part 2--Contracting Requirements
s. 23
Division 4--Further Contractual Requirements
23. Costs of insurance
A hirer must not require a contractor to pay any
amount, or make any deductions from money
payable to a contractor, in respect of insurance
5
unless--
(a) an insurance policy is in force; and
(b) the hirer has provided a copy of the policy to
the contractor.
24. Amounts for provision of services or equipment by
10
hirer or other persons
A hirer must not require a contractor to pay any
amount, or make any deductions from money
payable to a contractor, in respect of the provision
of any services or equipment by the hirer or any
15
other person to the contractor unless--
(a) the amounts are specified in the regulated
contract; and
(b) the amounts are a direct and proper reflection
of the actual cost of the services or
20
equipment in respect of which the costs are
charged; and
(c) if practicable, the hirer has given the
contractor an opportunity to obtain the
services or equipment from another supplier.
25
21
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Part 2--Contracting Requirements
s. 25
Division 5--Joint Negotiations
25. Negotiating agents for contractors
(1) A contractor or a group of contractors may, by
instrument, appoint a person or group of persons
to be the negotiating agent for the contractor or
5
contractors in relation to the engagement of the
contractor or contractors, including the making,
variation or termination of regulated contracts.
(2) Subject to sub-section (3), a hirer must not refuse
to recognise a negotiating agent duly appointed by
10
a contractor or group of contractors for the
purposes of sub-section (1).
(3) Sub-section (2) does not apply if the hirer has not
been given a copy of the agent's instrument of
appointment before the refusal.
15
(4) If requested to do so by the negotiating agent, a
hirer must deal exclusively with the agent within
the scope of the agent's authority.
(5) A person must not coerce, or attempt to coerce, a
contractor or group of contractors--
20
(a) to appoint, or not to appoint, a particular
person or group of persons as a negotiating
agent; or
(b) to terminate the appointment of a negotiating
agent.
25
26. Negotiating agents for hirers
(1) A hirer may, by instrument, appoint a person or
group of persons to be the negotiating agent for
the hirer in relation to the engagement of a
contractor or contractors, including the making,
30
variation or termination of regulated contracts.
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(2) Subject to sub-section (3), a contractor or group of
contractors must not refuse to recognise a
negotiating agent duly appointed by a hirer for the
purposes of sub-section (1).
(3) Sub-section (2) does not apply if the person, or a
5
representative of the group, refusing has not been
given a copy of the agent's instrument of
appointment before the refusal.
(4) If requested to do so by the negotiating agent, a
contractor or group of contractors must deal
10
exclusively with the agent within the scope of the
agent's authority.
(5) A person must not coerce, or attempt to coerce, a
hirer--
(a) to appoint, or not to appoint, a particular
15
person or group of persons as a negotiating
agent; or
(b) to terminate the appointment of a negotiating
agent.
__________________
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Act No.
Part 3--Codes of Practice
s. 27
PART 3--CODES OF PRACTICE
27. Prescribing codes of practice
(1) The Governor in Council, on the recommendation
of the Minister, may make regulations prescribing
codes of practice in relation to the engagement of
5
contractors.
(2) A code of practice may require hirers to adopt the
standards of conduct and practice set out in the
code with respect to contractors or classes of
contractors.
10
28. Consultation
(1) Before making a recommendation under
section 27(1) for a code of practice in respect of
owner drivers or a class of owner drivers, the
Minister must consult with the Transport Industry
15
Council.
(2) Before making a recommendation under
section 27(1) for a code of practice in respect of
forestry contractors or a class of forestry
contractors, the Minister must consult with the
20
Forestry Industry Council.
29. Application of codes of practice
A code of practice must specify the classes of
hirers and contractors to which it applies.
30. Compliance with codes of practice
25
A person to whom a code of practice applies must
comply with the code of practice to the extent that
it imposes duties or obligations on the person or
prohibits the person from engaging in certain
conduct.
30
__________________
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Act No.
Part 4--Unconscionable Conduct
s. 31
PART 4--UNCONSCIONABLE CONDUCT
31. Unconscionable conduct by hirers
(1) A hirer must not engage in unconscionable
conduct with respect to a contractor.
(2) Without in any way limiting the matters to which
5
the Tribunal may have regard for the purpose of
determining whether a hirer has contravened sub-
section (1), the Tribunal may have regard to any
one or more of the following--
(a) the relative strengths of the bargaining
10
positions of the hirer and the contractor;
(b) whether, as a result of conduct engaged in by
the hirer, the contractor was required to
comply with conditions that were not
reasonably necessary for the protection of
15
the legitimate interests of the hirer;
(c) whether the contractor was able to
understand any documents relating to the
acquisition or possible acquisition by the
hirer of services from the contractor;
20
(d) whether any undue influence or pressure was
exerted on, or any unfair tactics were used
against, the contractor or a person acting on
behalf of the contractor by the hirer or a
person acting on behalf of the hirer in
25
relation to the acquisition or possible
acquisition of the services from the
contractor;
(e) the amount for which, and the circumstances
in which, the contractor could have supplied
30
identical or equivalent services to a person
other than the hirer, including as an
employee;
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s. 32
(f) the extent to which the hirer's conduct
towards the contractor was consistent with
the hirer's conduct in similar transactions
between the hirer and other like contractors;
(g) the requirements of any applicable code of
5
practice;
(h) the extent to which the hirer unreasonably
failed to disclose to the contractor--
(i) any intended conduct of the hirer that
might affect the interests of the
10
contractor;
(ii) any risks to the contractor arising from
the hirer's intended conduct being risks
that the hirer should have foreseen
would not be apparent to the contractor;
15
(i) the extent to which the hirer was willing to
negotiate the terms and conditions of any
contract for the acquisition or possible
acquisition of services from the contractor;
(j) the extent to which the hirer and the
20
contractor acted in good faith;
(k) whether or not the regulated contract allows
for the payment of any increases in fixed and
variable overhead costs on a regular and
systematic basis.
25
32. Unconscionable conduct by contractors
(1) A contractor must not engage in unconscionable
conduct with respect to a hirer.
(2) Without in any way limiting the matters to which
the Tribunal may have regard for the purpose of
30
determining whether a contractor has contravened
sub-section (1), the Tribunal may have regard to
any one or more of the following--
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Part 4--Unconscionable Conduct
s. 32
(a) the relative strengths of the bargaining
positions of the contractor and the hirer;
(b) whether, as a result of conduct engaged in by
the contractor, the hirer was required to
comply with conditions that were not
5
reasonably necessary for the protection of
the legitimate interests of the contractor;
(c) whether the hirer was able to understand any
documents relating to the provision or
possible provision by the contractor of
10
services to the hirer;
(d) whether any undue influence or pressure was
exerted on, or any unfair tactics were used
against, the hirer or a person acting on behalf
of the hirer by the contractor or a person
15
acting on behalf of the contractor in relation
to the provision or possible provision by the
contractor of services to the hirer;
(e) the amount for which, and the circumstances
in which, the hirer could have acquired
20
identical or equivalent services from a
person other than the contractor, including
from an employee;
(f) the extent to which the contractor's conduct
towards the hirer was consistent with the
25
contractor's conduct in similar transactions
between the contractor and other like hirers;
(g) the requirements of any applicable code of
practice;
(h) the extent to which the contractor
30
unreasonably failed to disclose to the hirer--
(i) any intended conduct of the contractor
that might affect the interests of the
hirer;
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Part 4--Unconscionable Conduct
s. 32
(ii) any risks to the hirer arising from the
contractor's intended conduct, being
risks that the contractor should have
foreseen would not be apparent to the
hirer;
5
(i) the extent to which the contractor was
willing to negotiate the terms and conditions
of any contract for the provision or possible
provision of services by the contractor;
(j) the extent to which the contractor and the
10
hirer acted in good faith.
__________________
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Act No.
Part 5--Dispute Resolution
s. 33
PART 5--DISPUTE RESOLUTION
Division 1--Introduction
33. Meaning of "dispute"
(1) In this Part, "dispute" means a dispute between
one or more contractors and one or more hirers
5
arising under or in relation to this Act, a code of
practice or a regulated contract, and includes an
allegation that a person has contravened this Act,
the regulations, a code of practice or a regulated
contract.
10
(2) In this Part--
"contractor" includes a former contractor;
"hirer" includes a former hirer.
Division 2--Alternative Dispute Resolution
34. What alternative dispute resolution includes
15
(1) Alternative dispute resolution under this Part
extends to preliminary assistance in dispute
resolution, such as the giving of advice designed
to ensure that--
(a) the parties are fully aware of their rights and
20
obligations; and
(b) there is full and open communication
between the parties concerning the dispute.
(2) In this Part--
(a) a reference to alternative dispute resolution
25
includes a reference to mediation; and
(b) a reference to a person conducting
alternative dispute resolution includes a
reference to a mediator conducting
mediation.
30
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35. Referral of disputes for alternative dispute
resolution
(1) A contractor or a hirer (or both) may refer a
dispute to the Small Business Commissioner for
alternative dispute resolution.
5
(2) The referral must be accompanied by the
application fee (if any) set by the Small Business
Commissioner, which must not be more than the
maximum fee (if any) prescribed by the
regulations.
10
Note: The parties may ask the Commissioner for
preliminary assistance before referring the dispute
(see section 34).
(3) The Commissioner must arrange for each dispute
referred in accordance with this section to be the
15
subject of--
(a) mediation by a mediator; or
(b) another appropriate form of alternative
dispute resolution by a suitably qualified
person.
20
36. Representation at alternative dispute resolution
(1) A party to alternative dispute resolution may be
represented by--
(a) an Australian legal practitioner (within the
meaning of the Legal Profession Act 2004);
25
or
(b) in the case of a party that is a contractor--an
association, including a trade union, that
represents contractors or a class of
contractors; or
30
(c) in the case of a party that is a hirer--an
association that represents hirers or a class of
hirers; or
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(d) any other person considered appropriate by
the person conducting the alternative dispute
resolution.
(2) Despite sub-section (1), the person conducting the
alternative dispute resolution may meet with the
5
party (alone or together with any other party)
without the party's representative being present.
37. Costs of alternative dispute resolution
(1) The costs of alternative dispute resolution are to
be paid by the parties as follows--
10
(a) in the proportions that the parties agree
among themselves; or
(b) if the parties cannot agree, in equal shares.
(2) In this section--
"costs" of alternative dispute resolution means
15
the fees and expenses of the person
conducting the alternative dispute resolution.
38. Statements made during alternative dispute
resolution not admissible
A statement or admission made in the course of
20
alternative dispute resolution under this Part is not
admissible in any legal proceedings.
39. Immunity of person conducting alternative dispute
resolution
(1) A person conducting alternative dispute resolution
25
under this Part is not personally liable for
anything done or omitted to be done in good
faith--
(a) in the exercise of a power or performance of
a function under this Act; or
30
(b) in the reasonable belief that the act or
omission was in the exercise of a power or
performance of a function under this Act.
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s. 40
(2) Any liability resulting from an act or omission
that, but for sub-section (1), would attach to a
person attaches instead to the State.
Division 3--The Tribunal
40. Disputes must first be referred for alternative
5
dispute resolution before proceeding to the Tribunal
(1) A dispute may be the subject of proceedings
before the Tribunal only if the Small Business
Commissioner has certified in writing that
alternative dispute resolution under this Part has
10
failed, or is unlikely, to resolve it.
(2) This section does not apply to proceedings for an
order in the nature of an injunction.
(3) This section does not affect the validity of any
decision made by the Tribunal.
15
41. Jurisdiction of the Tribunal
(1) The Tribunal has jurisdiction to hear and
determine an application by one or more
contractors or hirers seeking resolution of a
dispute.
20
(2) The Tribunal also has jurisdiction to hear and
determine any other application that may be made
to it under this Act.
42. Time limit for applications
(1) An application under section 41(1) involving an
25
allegation of unlawful termination of the
engagement of a contractor must be made within
12 months after the date on which the engagement
is alleged to have been terminated.
(2) An application under section 41(1) in any other
30
case must be made within 6 years after the date on
which the dispute arose.
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Part 5--Dispute Resolution
s. 43
43. Parties
The parties to a proceeding before the Tribunal on
an application under section 41(1) are--
(a) the applicant or applicants; and
(b) the other party or parties to the dispute; and
5
(c) any other person the Tribunal considers it
appropriate to join as a party to the
proceeding.
44. Powers of the Tribunal
(1) The Tribunal may do any one or more of the
10
following in relation to a dispute--
(a) refer the dispute to a mediator appointed by
the Tribunal;
(b) order the payment of a sum of money--
(i) found to be owing by one party to
15
another party;
(ii) by way of damages (including
exemplary damages and damages in the
nature of interest);
(iii) by way of restitution;
20
(c) order the refund of any money paid under a
regulated contract or under a void contract;
(d) make an order in the nature of an order for
specific performance of a regulated contract;
(e) declare that a debt is, or is not, owing;
25
(f) order a party to do or refrain from doing
something;
(g) make any other order it considers fair,
including declaring void any unjust term of a
regulated contract, inserting a term into a
30
regulated contract or otherwise varying a
regulated contract to avoid injustice.
33
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(2) In determining whether a term of a regulated
contract is unjust, the Tribunal may have regard
to--
(a) the intelligibility of the contract generally,
and of the term in particular;
5
(b) the extent to which the term, and its legal
and practical effect, were accurately
explained to the relevant party before the
term was agreed to and the extent to which
the relevant party understood the term and its
10
effect;
(c) the relative bargaining power of the parties
to the contract;
(d) the consequences to the parties to the
contract if the term is complied with or not
15
complied with and the relative hardship of
those consequences to each party;
(e) whether or not it was reasonably practicable
for the relevant party to reject, or negotiate
for a change to, the term before it was agreed
20
to;
(f) the relationship of the term to the other terms
of the contract;
(g) whether the relevant party obtained
independent legal or other expert advice
25
before agreeing to the term;
(h) whether unfair pressure, undue influence or
unfair tactics were used to obtain the relevant
party's consent to the contract or the term;
(i) whether at the time the term was agreed to
30
the relevant party knew, or could probably
have found out by asking, that the term
would cause any other relevant party
hardship;
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Part 5--Dispute Resolution
s. 45
(j) the conduct of the parties to the contract after
the term was agreed to;
(k) whether the term is usually found in
regulated contracts of that kind;
(l) the justification for the term;
5
(m) whether the term is unconscionable, harsh or
oppressive;
(n) whether the term is inconsistent with any
part of a relevant code of practice, whether
or not that part of the code imposes duties or
10
obligations on a person or prohibits a person
from engaging in certain conduct;
(o) any other factor the Tribunal thinks is
relevant.
(3) Despite anything to the contrary in this section, in
15
determining whether a term of a regulated contract
is unjust, the Tribunal must not have regard to any
injustice arising from circumstances that were not
reasonably foreseeable when the term was agreed
to.
20
(4) In awarding damages in the nature of interest, the
Tribunal may base the amount awarded on the
interest rate fixed from time to time under
section 2 of the Penalty Interest Rates Act 1983
or on any lesser rate it thinks appropriate.
25
45. Additional power of Tribunal where failure to give
information booklet or rates and costs schedule
(1) This section applies to a dispute involving an
allegation that a hirer or freight broker failed to
give a contractor an information booklet or a copy
30
of a rates and costs schedule in accordance with
Division 1 or 2 of Part 2.
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Part 5--Dispute Resolution
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(2) Despite any provision in the relevant regulated
contract, the Tribunal may make an order that the
contractor is to be paid an amount specified by the
Tribunal for the contractor's services under the
contract.
5
(3) In deciding what amount to specify in the order,
the Tribunal must have regard to the following--
(a) the terms of the relevant regulated contract;
(b) the amount to which the contractor would
have been entitled if the contractor had
10
provided the services as an employee;
(c) any applicable rates and costs schedule;
(d) what is a fair and reasonable amount in the
circumstances.
46. Orders to prevent the entering into of contracts
15
(1) The Tribunal, when making an order in relation to
a dispute or at a later time, may make any further
order the Tribunal considers appropriate for the
purpose of prohibiting (either absolutely or
otherwise than in accordance with specified
20
conditions) a relevant person from--
(a) entering into any specified kind of regulated
contract; or
(b) doing any act (whether by way of advertising
or otherwise) that may reasonably be
25
construed as being intended to induce other
persons to enter into any such contract.
(2) An order under this section must identify the
person or persons bound by the order and takes
effect in respect of each of those persons on
30
service of a copy of the order on the person.
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Part 5--Dispute Resolution
s. 47
(3) In this section--
"relevant person" means--
(a) a party to the proceeding; or
(b) any other person who is, in any way
considered relevant by the Tribunal,
5
associated with a party to the
proceeding.
Division 4--Extension of Contract Variation Orders
47. Application of Division
(1) This Division applies if, in a proceeding in
10
relation to a dispute, the Tribunal makes an
order--
(a) declaring void a term of a regulated contract;
or
(b) inserting a term into a regulated contract; or
15
(c) otherwise varying a regulated contract.
(2) In this Division, an order referred to in sub-
section (1) is called a "contract variation
order".
48. What is the extension of a contract variation order?
20
(1) The extension of a contract variation order is an
order made by the Tribunal declaring that a
contract variation order is, subject to any
conditions, exceptions or limitations that are
specified in the order, extended generally to
25
regulated contracts of a specified class.
(2) An order extending a contract variation order has
the effect of binding all hirers and contractors who
enter, or have entered, into regulated contracts of
the specified class.
30
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s. 49
(3) If an order extending a contract variation order is
made, subject to any conditions, exceptions and
limitations that are specified in the order--
(a) if the contract variation order declared a term
of a regulated contract void--any equivalent
5
term in a regulated contract in the specified
class is void;
(b) if the contract variation order inserted a term
into a regulated contract--that term is
inserted into each regulated contract in the
10
specified class that does not contain the term;
(c) if the contract variation order otherwise
varied a regulated contract--each regulated
contract in the specified class is taken to be
varied accordingly.
15
49. Application for extension of contract variation order
An application for an order extending a contract
variation order may be made by--
(a) an association, including a trade union, that
represents contractors or a class of
20
contractors; or
(b) an association that represents hirers or a class
of hirers.
50. Procedure on application
(1) An applicant for an order extending a contract
25
variation order must publish, as required by the
rules, a notice--
(a) specifying the class of regulated contracts in
relation to which the order is sought; and
(b) specifying the terms of the contract variation
30
order; and
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Part 5--Dispute Resolution
s. 51
(c) inviting any association or person interested
and wanting to be heard or make a written
submission to appear before the Tribunal or
make a written submission to the Tribunal as
specified in the notice.
5
(2) Before making an order extending a contract
variation order, the Tribunal must hear all
associations and persons appearing.
(3) In this section--
"rules" mean rules made by the Rules Committee
10
under section 157 of the Victorian Civil and
Administrative Tribunal Act 1998.
51. Making and publicising order
(1) The Tribunal may make an order extending a
contract variation order if satisfied that it is
15
appropriate to do so.
(2) An applicant for the order must publish the
order--
(a) in the Government Gazette and in a daily
newspaper circulating generally throughout
20
Victoria; and
(b) in any other manner directed by the Tribunal.
(3) Nothing in this section takes away from
section 116 of the Victorian Civil and
Administrative Tribunal Act 1998.
25
52. When does order take effect?
An order extending a contract variation order
takes effect when it is published in the
Government Gazette or at any later time specified
in the order.
30
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Part 5--Dispute Resolution
s. 53
53. Variation and revocation of order
The Tribunal may vary or revoke an order
extending a contract variation order at any time on
its own initiative or on application by an
association that represents contractors or hirers or
5
by any person affected by the order.
__________________
40
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Act No.
Part 6--The Small Business Commissioner
s. 54
PART 6--THE SMALL BUSINESS COMMISSIONER
54. Functions of the Small Business Commissioner
under this Act
(1) The Small Business Commissioner has the
following functions under this Act--
5
(a) to make arrangements to facilitate the
resolution by mediation, or by another
appropriate form of alternative dispute
resolution, of disputes (whether or not any
particular dispute has been formally referred
10
under this Act to the Commissioner);
(b) any other functions that are given to the
Commissioner by or under this Act.
(2) In arranging for the resolution of disputes, the
Commissioner must have regard to the need for
15
the mediation or other form of alternative dispute
resolution to be conducted by persons who are
experienced in the field of regulated contracts.
(3) The Commissioner may personally conduct a
mediation or other form of alternative dispute
20
resolution and is entitled to be paid his or her fees
and expenses for doing so, which must not be
more than the maximum amount (if any)
prescribed by the regulations.
(4) The Commissioner is not subject to the Minister's
25
control or direction in exercising his or her
function under sub-section (1)(a) or (3).
__________________
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Part 7--Industry Councils
s. 55
PART 7--INDUSTRY COUNCILS
Division 1--Transport Industry Council of Victoria
55. Establishment and functions
(1) The Transport Industry Council of Victoria is
established.
5
(2) The Transport Industry Council has the functions
conferred on it by or under this Act or any other
Act.
(3) Without limiting sub-section (2), the Transport
Industry Council has the following functions--
10
(a) to advise and make recommendations to the
Minister on the content of--
(i) codes of practice in respect of owner
drivers; and
(ii) the information booklet for owner
15
drivers;
(b) to advise and make recommendations to the
Minister on rates and costs schedules for
owner drivers;
(c) to develop, publish and promote model
20
owner driver contracts;
(d) to advise the Minister on any other matters
relevant to--
(i) owner driver contracts; and
(ii) the commercial practices generally
25
engaged in by owner drivers and hirers
in relation to each other.
(4) The Transport Industry Council may provide
advice, and make recommendations, to the
Minister even if the Minister has not requested it
30
to do so.
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Part 7--Industry Councils
s. 56
(5) In performing its functions, the Transport Industry
Council is subject to the control and direction of
the Minister.
(6) Without limiting the matters on which the
Minister may direct the Transport Industry
5
Council, the Minister may impose deadlines on
the Council for the provision of advice and
recommendations.
56. Membership
(1) The Transport Industry Council consists of the
10
following 10 members appointed by the
Minister--
(a) a chairperson;
(b) 1 part-time member nominated by the Roads
Corporation;
15
Note: The part-time member nominated by the Roads
Corporation does not have any voting rights on
the Council: see clause 7(4) of Schedule 1.
(c) the following 8 part-time members--
(i) 1 person nominated by the Victorian
20
Employers' Chamber of Commerce and
Industry;
(ii) 1 person nominated by the Australian
Industry Group;
(iii) 2 persons nominated by the Victorian
25
Transport Association Inc.;
(iv) 2 persons nominated by the Victorian
Trades Hall Council;
(v) 2 persons nominated by the Transport
Workers' Union of Australia.
30
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Part 7--Industry Councils
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(2) If, for the purposes of section (1)(b) or (c)--
(a) a nomination is not submitted within the
time or in the manner directed by the
Minister; or
(b) a person nominated is considered by the
5
Minister to be unsuitable or inappropriate for
membership of the Transport Industry
Council--
the Minister may instead--
(c) appoint a person who in the Minister's
10
opinion is suitably representative of the
persons represented by the body referred to
in those paragraphs to be a member; or
(d) call for a further nomination from the
relevant body.
15
(3) In this section--
"Roads Corporation" means the Roads
Corporation established by section 15 of the
Transport Act 1983.
57. Constitution and procedure
20
Schedule 1 has effect with respect to the Transport
Industry Council.
Division 2--Forestry Industry Council of Victoria
58. Establishment and functions
(1) The Forestry Industry Council of Victoria is
25
established.
(2) The Forestry Industry Council has the functions
conferred on it by or under this Act or any other
Act.
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Part 7--Industry Councils
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(3) Without limiting sub-section (2), the Forestry
Industry Council has the following functions--
(a) to advise and make recommendations to the
Minister on the content of--
(i) codes of practice in respect of forestry
5
contractors; and
(ii) the information booklet for forestry
contractors;
(b) to advise and make recommendations to the
Minister on rates and costs schedules for
10
forestry contractors;
(c) to develop, publish and promote model
haulage contracts and model harvesting
contracts;
(d) to advise the Minister on any other matters
15
relevant to--
(i) haulage or harvesting contracts; and
(ii) the commercial practices generally
engaged in by forestry contractors and
hirers in relation to each other.
20
(4) The Forestry Industry Council may provide
advice, and make recommendations, to the
Minister even if the Minister has not requested it
to do so.
(5) In performing its functions, the Forestry Industry
25
Council is subject to the control and direction of
the Minister.
(6) Without limiting the matters on which the
Minister may direct the Forestry Industry Council,
the Minister may impose deadlines on the Council
30
for the provision of advice and recommendations.
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Act No.
Part 7--Industry Councils
s. 59
59. Membership
(1) The Forestry Industry Council consists of the
following 10 members appointed by the
Minister--
(a) a chairperson;
5
(b) 1 part-time member nominated by the
Secretary to the Department of Primary
Industries;
Note: The part-time member nominated by the
10 Secretary does not have any voting rights on
the Council: see clause 7(4) of Schedule 1.
(c) the following 8 part-time members--
(i) 1 person nominated by the Victorian
Association of Forest Industries;
(ii) 1 person nominated by the Australian
15
Plantation Products and Paper Industry
Council Ltd (A.C.N. 005 904 898);
(iii) 2 persons nominated by the
Construction, Forestry, Mining and
Energy Union;
20
(iv) 2 persons nominated by the Victorian
Harvesting and Cartage Council;
(v) 2 persons nominated by VicForests.
(2) If, for the purposes of section (1)(b) or (c)--
(a) a nomination is not submitted within the
25
time or in the manner directed by the
Minister; or
(b) a person nominated is considered by the
Minister to be unsuitable or inappropriate for
membership of the Forestry Industry
30
Council--
the Minister may instead--
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Part 7--Industry Councils
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(c) appoint a person who in the Minister's
opinion is suitably representative of the
persons represented by the body referred to
in those paragraphs to be a member; or
(d) call for a further nomination from the
5
relevant body.
(3) In this section--
"VicForests" has the same meaning as in the
Conservation, Forests and Lands Act
1987.
10
60. Constitution and procedure
Schedule 1 has effect with respect to the Forestry
Industry Council.
__________________
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Act No.
Part 8--General
s. 61
PART 8--GENERAL
61. Subjecting contractors or others to detriment
(1) A person must not subject or threaten to subject
another person to any detriment for the reason, or
for reasons including the reason, that the other
5
person, or a person associated with the other
person, has--
(a) claimed, or proposes to claim, a benefit or
exercised, or proposes to exercise, a power
or right that the other person or associate is
10
entitled to claim or exercise under this Act or
a code of practice; or
(b) brought, or proposes to bring, or otherwise
participated in, a proceeding under this Act;
or
15
(c) informed, or proposes to inform, any person
of an alleged contravention of this Act, the
regulations, a code of practice or an order of
the Tribunal under this Act; or
(d) participated, or proposes to participate, in
20
joint negotiations relating to regulated
contracts or the engagement of contractors.
(2) A hirer must not subject or threaten to subject a
contractor to any detriment because the contractor,
or a person associated with the contractor, has--
25
(a) raised, or proposes to raise, issues of health
and safety in relation to the performance of
services under a regulated contract; or
(b) sought, or proposes to seek, to--
(i) negotiate a proposed engagement or
30
regulated contract; or
(ii) renegotiate an existing engagement or
regulated contract.
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Part 8--General
s. 62
(3) For the purposes of this section, subjecting a
contractor or other person to detriment includes
doing any one or more of the following--
(a) terminating the contractor's or other person's
engagement;
5
(b) injuring the contractor or other person in
relation to the terms and conditions of a
regulated contract to which the contractor or
person is a party;
(c) altering the position of a contractor or other
10
person so as to prejudice their interests under
a regulated contract;
(d) refusing to engage a person as a contractor;
(e) discriminating against a person in the terms
or conditions on which the person is to be
15
engaged as a contractor.
62. Conduct of partnerships
If a partnership, or any partner on behalf of a
partnership, engages in any conduct, that conduct
is, for the purposes of this Act, taken to have been
20
engaged in by each partner.
63. Conduct of agents imputed to corporations
For the purposes of this Act, any conduct engaged
in on behalf of a corporation--
(a) by an officer, employee or agent of the
25
corporation acting within the scope of the
person's actual or apparent authority; or
(b) by any other person at the direction, or with
the consent (express or implied) of such an
officer, employee or agent--
30
is also conduct engaged in by the corporation.
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Act No.
Part 8--General
s. 64
64. Trade Practices Act and Competition Code
(1) For the purposes of the Trade Practices Act 1974
of the Commonwealth and the Competition Code,
the following things are authorised by this Act--
(a) the making of a code of practice;
5
(b) anything done by a person in order to
comply with this Act, the regulations or a
code of practice;
(c) anything done by a contractor or group of
contractors preparatory to entering into, or in
10
anticipation of, joint negotiations with a
single business, including the appointment of
a negotiating agent to conduct those joint
negotiations;
(d) anything done by a negotiating agent, as
15
authorised by this Act and in accordance
with the agent's terms of appointment, in
conducting joint negotiations with a single
business;
(e) any dealings by a contractor or group of
20
contractors with their negotiating agent for
the purposes of conducting joint negotiations
with a single business.
(2) For the purposes of this section--
(a) a "single business" is a business, project or
25
undertaking that is carried on by one hirer;
(b) if 2 or more hirers carry on a business,
project or undertaking as a joint venture or
common enterprise, the hirers are taken to be
one hirer;
30
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s. 65
(c) if 2 or more corporations that are related to
each other for the purposes of the
Corporations Act each carry on a single
business--
(i) the corporations are to be treated as one
5
hirer; and
(ii) the single businesses are to be treated
as one single business.
65. Act prevails over regulated contracts
(1) A provision of a regulated contract or any other
10
agreement is void to the extent that--
(a) it is contrary to or inconsistent with anything
in this Act, the regulations, a code of practice
or an order made by the Tribunal under
Division 4 of Part 5; or
15
(b) it purports to exclude the application of
provisions of this Act or the regulations.
(2) Despite sub-section (1), during the period of
6 months beginning on and including the
commencement day, a provision of a regulated
20
contract that is contrary to or inconsistent with a
provision of Division 3 or 4 of Part 2 prevails to
the extent of the inconsistency.
(3) In sub-section (2), "commencement day" means
the day on which Division 3 of Part 2 comes into
25
operation.
66. Regulations
(1) The Governor in Council may make regulations
for or with respect to any matter or thing required
or permitted by this Act to be prescribed or
30
necessary to be prescribed to give effect to this
Act.
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Part 8--General
s. 66
(2) Regulations made under this Act--
(a) may be of general or limited application;
(b) may differ according to differences in time,
place or circumstances;
(c) may apply, adopt or incorporate any matter
5
contained in any document, whether--
(i) wholly or partially or as amended by
the regulations;
(ii) as in force at a particular time or as in
force from time to time.
10
__________________
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Act No.
Part 9--Amendment of Victorian Civil and Administrative Tribunal Act
s. 67
1998
See:
PART 9--AMENDMENT OF VICTORIAN CIVIL AND
Act No.
ADMINISTRATIVE TRIBUNAL ACT 1998 53/1998.
Reprint No. 3
as at
67. Victorian Civil and Administrative Tribunal Act 1 July 2003
1998 and
amending
(1) In section 73(2A) of the Victorian Civil and
5 Act Nos
18/2003,
Administrative Tribunal Act 1998-- 30/2003,
75/2003,
(a) in paragraph (b), for "1999." substitute 10/2004,
"1999; or"; 12/2004 (as
amended by
No. 39/2004),
(b) after paragraph (b) insert-- 53/2004,
99/2004 and
"(c) under the Owner Drivers and
10 108/2004.
Forestry Contractors Act 2005.". LawToday:
www.dms.
(2) In Schedule 1 to the Victorian Civil and dpc.vic.
gov.au
Administrative Tribunal Act 1998, after Part 15
insert--
"PART 15AA--OWNER DRIVERS AND
15
FORESTRY CONTRACTORS ACT 2005
51AA. Representation
In a proceeding under Part 5 of the Owner
Drivers and Forestry Contractors Act 2005,
20 a party may be represented by--
(a) a professional advocate; or
(b) the party's negotiating agent (within the
meaning of that Act); or
(c) in the case of a party that is a
25 contractor--an association, including a
trade union, that represents contractors or
a class of contractors; or
(d) in the case of a party that is a hirer--an
association that represents hirers or a
30 class of hirers.
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Part 9--Amendment of Victorian Civil and Administrative Tribunal Act
s. 67
1998
51AB. Costs
(1) In determining whether to make an order for
costs in a proceeding under the Owner Drivers
and Forestry Contractors Act 2005, the
5 Tribunal may have regard to whether a party
refused to take part in, or withdrew from,
alternative dispute resolution conducted under
Part 5 of that Act.
(2) Sub-clause (1) is in addition to the matters that
10 the Tribunal may have regard to under section
109(3).
51AC. Effect of certain orders
Section 118(1) does not apply to an order made
under section 46 or 51 of the Owner Drivers
15 and Forestry Contractors Act 2005.".
__________________
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Act No.
Part 10--Transitional
s. 68
PART 10--TRANSITIONAL
68. Contracting requirements
(1) Division 1 of Part 2 applies in relation to
contractors who are engaged on or after the
commencement of that Division.
5
(2) In addition, if a contractor who is engaged before
that commencement continues to be engaged by
the same hirer, or through the same freight broker,
during the period of 45 days after that
commencement, Division 1 of Part 2 applies in
10
relation to the contractor as if the contractor had
been engaged on the first day after the end of that
period.
(3) Division 2 of Part 2 applies in relation to
contractors who are engaged on or after the
15
commencement of that Division.
(4) In addition, if a contractor who is engaged before
that commencement continues to be engaged by
the same hirer, or through the same freight broker,
during the period of 45 days after that
20
commencement, Division 2 of Part 2 applies in
relation to the contractor as if the contractor had
been engaged on the first day after the end of that
period.
(5) Divisions 3 and 4 of Part 2 apply in relation to
25
contractors who are engaged on or after the
commencement of that Division.
(6) In addition, if a contractor who is engaged before
that commencement continues to be engaged by
the same hirer, or through the same freight broker,
30
during the period of 6 months after that
commencement, Divisions 3 and 4 of Part 2 apply
in relation to the contractor as if the contractor had
been engaged on the first day after the end of that
period.
35
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Part 10--Transitional
s. 69
69. Transitional provisions for unconscionable conduct
and disputes
(1) Part 4 applies to conduct whether occurring before
or after the commencement of that Part.
(2) A dispute may be resolved under Part 5 whether
5
the conduct giving rise to the dispute occurred
before or after the commencement of section 33.
__________________
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Sch. 1
SCHEDULE 1
Sections 57 and 60
CONSTITUTION AND PROCEDURE OF INDUSTRY COUNCILS
PART 1--CONSTITUTION
5 1. Definition
In this Schedule--
"Council" means the Transport Industry Council or the
Forestry Industry Council.
2. Period of office of members
10 Subject to this Part, a member of a Council holds office for
the period (not exceeding 3 years) specified in his or her
instrument of appointment, and is eligible for
re-appointment.
3. Payment of members
15 A member of a Council (other than a member who is an
employee within the meaning of the Public Administration
Act 2004) is entitled to be paid the fees and allowances (if
any) that are fixed from time to time by the Minister.
4. Acting members
20 (1) The Minister may appoint an eligible person to act as
member--
(a) during a vacancy in the office of a member; or
(b) during an absence (for any reason) from office of a
member; or
25 (c) during a period in which a member is unable (for any
reason) to perform the duties of office.
(2) In the case of an acting member appointed for a member
who was appointed from an organisation mentioned in
sections 56(1)(b) or (c) or 59(1)(b) or (c), the acting member
30 must, if possible, be appointed from the same organisation
or another organisation nominated by it.
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(3) The Minister may--
(a) determine the terms and conditions of appointment of
an acting member; and
(b) terminate the appointment at any time.
5 (4) While acting in a member's place, the acting member--
(a) has all the powers and must perform all the duties of
the member; and
(b) is entitled to be paid the fees and allowances (if any)
to which the member would have been entitled.
10 (5) An acting member is eligible for re-appointment.
5. Resignation and removal
(1) A member may resign from the office of member by writing
signed by the member and delivered to the Minister.
(2) The Minister may remove a member from office at any time.
15 (3) The office of a member also becomes vacant if the
member--
(a) becomes an insolvent under administration within the
meaning of the Corporations Act; or
(b) is convicted in Victoria of an offence punishable by
20 imprisonment for 12 months or more or elsewhere of
an offence that, if committed in Victoria, would be
punishable by imprisonment for 12 months or more;
or
(c) becomes incapable of performing the duties of a
25 member; or
(d) is absent, without leave first being granted by the
relevant Council, for 4 consecutive meetings of that
Council of which reasonable notice has been given to
the member personally or by post, fax or e-mail.
30 6. Effect of other Acts
(1) The Public Administration Act 2004 does not apply to a
member in respect of the office of member.
(2) If by or under any Act provision is made--
(a) requiring a person who is the holder of a specified
35 office to devote the whole of his or her time to the
duties of that office; or
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(b) prohibiting the person from engaging in employment
outside the duties of that office--
the provision does not operate to disqualify the person from
holding that office and also the office of a member or from
5 accepting and retaining any remuneration payable to the
person under this Act as a member.
(3) For the avoidance of doubt, the office of member is not to be
taken to be an office or place of profit under the Crown for
the purposes of section 55(d), 80A(5A)(a) or 83(4) of the
10 Constitution Act 1975 or section 13A(5A)(a) or (5C) of the
County Court Act 1958.
PART 2--PROCEDURE
7. General procedure
(1) The chairperson, or in his or her absence, the acting
15 chairperson, or in the absence of both of them, a member
elected by the members present, must preside at a meeting
of the relevant Council.
(2) The quorum of a Council is 5 members.
(3) Subject to sub-clause (4), a question arising at a meeting is
20 determined by a majority of votes and the person presiding
has a deliberative vote and, in the case of an equality of
votes, a second or casting vote.
(4) The Council members appointed under sections 56(1)(b) and
59(1)(b) do not have voting rights.
25 (5) A Council must ensure that accurate minutes are kept of
each meeting.
(6) A Council may transact any of its business at a meeting at
which the members or any of them participate by telephone,
closed-circuit television or in any similar way.
30 (7) Subject to this Act, a Council may regulate its own
procedure.
8. Conflicts of interest
(1) If--
(a) a member of a Council has a direct or indirect
35 pecuniary interest in a matter being considered, or
about to be considered, by the Council; and
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(b) the interest could conflict with the proper
performance of the member's duties in relation to the
consideration of the matter--
the member, as soon as practicable after becoming aware of
5 the relevant facts, must disclose the nature of the interest at a
meeting of the Council.
(2) A disclosure under sub-clause (1) must be recorded in the
minutes of the meeting and, unless the Council otherwise
determines, the member--
10 (a) must not be present during any deliberation of the
Council in relation to the matter; and
(b) must not take part in any decision of the Council in
relation to the matter.
(3) For the purpose of the making of a determination of the
15 Council under sub-clause (2) in relation to a member who
has made a disclosure under sub-clause (1), a member who
has a direct or indirect pecuniary interest in the matter to
which the disclosure relates--
(a) must not be present during any deliberation of the
20 Council in relation to the matter; and
(b) must not take part in any decision of the Council in
relation to the matter.
(4) Sub-clauses (1) and (2) do not apply in relation to a matter
relating to the supply of goods or services to the member if
25 the goods or services are, or are to be, available to members
of the public on the same terms and conditions.
9. Resolutions without meetings
(1) If--
(a) a Council has taken reasonable steps to give notice to
30 each member setting out the terms of a proposed
resolution; and
(b) at least 5 of the members sign a document containing
a statement that they are in favour of the resolution in
the terms set out in the document--
35 a resolution in those terms is deemed to have been passed at
a meeting of the Council held on the day on which the
document is signed or, if the members referred to in
paragraph (b) do not sign on the same day, on the day on
which the last of those members signs the document.
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(2) For the purposes of sub-clause (1), 2 or more separate
documents containing a statement in identical terms, each of
which is signed by one or more members, are deemed to
constitute one document.
5 (3) If a resolution is deemed by this clause to have been passed
at a meeting of the Council, each member must as soon as
practicable be advised of the matter and given a copy of the
resolution.
(4) The members referred to in sub-clause (1)(b) must not
10 include a member who, because of clause 7(4) or 8, is not
entitled to vote on the resolution.
10. Effect of a vacancy or defect
An act or decision of a Council is not invalid only
because--
15 (a) of a vacancy in its membership; or
(b) of a defect or irregularity in the appointment of any of
its members (acting or otherwise); or
(c) in the case of an acting member, the occasion for the
member so acting had not arisen or had ceased.
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
INDEX
Subject Section
Act
amendments to other Acts 67
application 8
commencement 2
Crown bound by 9
prevails over regulated contracts 65
purpose 1
things authorised for purposes of competition laws 64
transitional provisions 6869
3, 2730
Codes of practice
64
Competition Code
Contractors
application of Act to 8
as tenderers 12, 17
definition 3, 33
forestry contractors 3, 28
harvesting contractors and contracts 3, 6
haulage contractors and contracts 3, 5
information booklets for 1013
insurance costs 23
negotiating agents 2526
ongoing engagement of 1922
owner drivers and owner driver contracts 3, 4, 28
rates and costs schedules for 1418
regulations 7
services, equipment provided by hirers to 24
subjected to detriment 61
termination of engagement 2022
unconscionable conduct 32
See also Disputes; Regulated contracts
Contract variation orders See Regulated contracts
Contracts See Regulated contracts
3, 63
Corporations
44
Damages
36, 22, 33, 37, 46,
Definitions
47, 50, 56, 59, 64,
65, Sch. 1
Disputes
alternative dispute resolution
costs 37
failure 40
immunity of person conducting 39
matters included in 34
referral of disputes for 35
representation of parties 36
statements, admissions made during 38
definition 3, 33
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Subject Section
regarding failure to give information booklets, rates
and costs schedules 45
regarding unlawful termination 42
See also Victorian Civil and Administrative
Tribunal
Extension of contract variation orders
See Regulated contracts
Forest products (def.) 3
Forestry contractors See Contractors 3, 28
Forestry Industry Council of Victoria
consultation with 14, 28
definition 3
establishment and functions 58
membership, procedure 5960, Sch. 1
3, 1011, 16, 18
Freight brokers
Harvesting contractors and contracts
See Contractors; Regulated contracts
Haulage contractors and contracts
See Contractors; Regulated contracts
Heavy vehicles (def.) 3
Hirers
definition 3, 33
duties regarding
codes of practice 2730
information booklets 1012
insurance costs 23
payment in lieu of notice 22
rates and costs schedules 1618
services, equipment provided to contractors 24
powers, duties regarding negotiating agents 2526
subjecting contractors, others to detriment 61
unconscionable conduct 31
See also Disputes
Industry councils
See Forestry Industry Council;
Transport Industry Council
Information booklets
contents and availability 13
failure to provide 45
provision to contractors, tenderers 1012
Minister
powers, duties regarding
codes of practice 2728
Forestry Industry Council 5859
information booklets 13
rates and costs schedules 1415
Transport Industry Council 5556
Motorised equipment (def.) 3
3, 2526
Negotiating agents
Owner drivers and owner driver contracts
See Contractors; Regulated contracts
62
Partnerships
64
551295B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005
Owner Drivers and Forestry Contractors Act 2005
Act No.
Subject Section
Rates and costs schedules
definition 3
development, revision, contents 14
failure to provide 45
provision to contractors, tenderers 1618
publication 15
Regulated contracts
Act prevails over 65
definition 3
extension of contract variation orders
application of Part 5, Division 4 47
applications for 49
definition and effect 48
definition of contract variation orders 47
making, publication of 51
notice requirements 50
time for taking effect 52
variation, revocation 53
orders preventing entering into 46
regulations 7
requirements 2022
unjust, void terms 44, 47, 48, 65
See also Disputes
7, 27, 66
Regulations
13
Secretary
Small Business Commissioner
certificates waiving notice of termination 21
definition 3
functions in general 54
functions, powers regarding dispute resolution 35, 40, 54
12, 17
Tenderers
64
Trade Practices Act 1974 (Commonwealth)
6869
Transitional provisions
Transport Industry Council
consultation with 14, 28
definition 3
establishment and functions 55
membership, procedure 5657, Sch. 1
Tribunal
See Victorian Civil and Administrative Tribunal
3132
Unconscionable conduct
Vehicles (def.) 3
Victorian Civil and Administrative Tribunal
dispute resolution
jurisdiction of Tribunal 41
parties to proceedings 43
powers, orders of Tribunal 4446
requirements for proceedings 40
time limit for applications 42
extension of contract variation orders 4753
65
551295B.I1-19/4/2005 BILL LA INTRODUCTION 19/4/2005
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