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Explanatory Memorandum

Owner-Drivers (Contracts and Disputes) Amendment Bill 2022

Background to the Owner-Drivers (Contracts and Disputes) Act 2007

The Owner-Drivers (Contracts and Disputes) Act 2007 established the legislative

framework to regulate the relationship between parties that enter into contracts to

transport goods in heavy vehicles in Western Australia (owner-drivers) and those that

hire them to do so (hirers). It promotes a safe road freight transport industry by setting

sustainable guideline rates for owner-drivers and cost schedules through a code of

conduct.

The Owner-Drivers (Contracts and Disputes) Act 2007 also established the Road

Freight Transport Industry Council to assist in the development of a safe and

sustainable road freight industry and the Road Freight Transport Industry Tribunal

which provides for dispute resolution between owner-drivers and hirers.

The Owner-Drivers (Contracts and Disputes) Act 2007 was passed by Parliament in

May 2007.

Overview of Bill

The Owner-Drivers (Contracts and Disputes) Amendment Bill 2022 makes

amendments the Owner-Driver (Contracts and Disputes) Act 2007. The amendments

are designed to improve operational and administrative arrangements and provide

clearer legislative protections between heavy vehicle owner-drivers and hirers in the

Western Australian road freight transport industry.

The amendments will promote safe and sustainable operations across the road

transport industry in Western Australia by enhancing the existing state owner-driver

legislative framework. The bill includes new provisions setting enforceable minimum

notice periods for the termination of owner-driver contracts and clarifies the Road

Freight Transport Industry Tribunal’s powers and jurisdiction in regard to owner-driver

contract disputes to ensure greater consistency in determinations.

The objectives of the Bill are as follows:

• Clarify Tribunal’s jurisdiction in relation to expired contracts.

• Enhance the Tribunal’s powers by expanding the scope for determining

‘unconscionable conduct’ by hirers or owner-drivers.

• Introduce Right of Entry provisions to investigate suspected breaches of the

Owner-Drivers (Contracts and Disputes) Act 2007.

• Introduce Statutory minimum notice periods or payment in lieu of termination of

all owner-driver contracts.

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• Address various administrative deficiencies that have emerged since the

Owner-Drivers (Contracts and Disputes) Act 2007 commenced operations in

2008. These administrative amendments include replacing obsolete

terminology and clarifying procedures in relation to dispute resolution.

A clause-by-clause commentary on the Bill is provided below.

PART 1 - PRELIMINARY

Clause 1 Short Title

The short title of the proposed Act is the Owner-Drivers (Contracts and

Disputes) Amendment Act 2022.

Clause 2 Commencement

Clause 2 provides for various commencement dates to apply to different

sections of the Act as follows:

Subsection (a) provides that sections 1 and 2 will come into operation

on the day on which the Act receives the Royal Assent.

Subsection (b) provides that section 12 commences immediately after

the Industrial Relations Legislation Amendment Act 2021 section 65

comes into operation which amends section 98 of the Industrial

Relations Act 1979 dealing with the powers of industrial inspectors by

condensing and modernising these provisions. Existing references to

section 98 of the Industrial Relations Act 1979 in the Owner-Drivers

(Contracts and Disputes) Act 2007 will be updated by section 12, which

amends section 32.

Subsection (c) provides that sections 17 and 18 commence immediately

after sections 35 and 36 of the Owner-Drivers (Contracts and Disputes)

Act 2007 come into operation. Sections 35 and 36 must be commenced

by proclamation (as provided by section 2 of the Owner-Drivers

(Contracts and Disputes) Act 2007).

Subsection (d) provides that the remaining provisions of the Act

commence on proclamation. This is necessary as consequential

regulation amendments will need to be made to the Owner-Drivers

(Contracts and Disputes) (Code of Conduct) Regulations 2010 in

support of the Bill and resourcing, procedural and communication

activities to be undertaken by various agencies including the Department

of Transport, Department of Mines Industry Regulation and Safety and

Western Australian Industrial Relations Commission in support of the

operation of the Bill.

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Clause 3 Act amended This Act amends the Owner-Drivers (Contracts and Disputes) Act 2007.

Clause 4 Section 3 amended

Clause 4 inserts various new terms for interpretation of the Owner-Driver

(Contracts and Disputes) Act 2007 in section 3 in alphabetical order.

They are:

Minimum notice period 90 days; or if the aggregate term of

the original contract and any

consecutive series of successive

contracts between the same parties

that contain substantially similar

terms and conditions is less than 90

days – 7 days.

The 90 day minimum notice period is intended to apply for sequential

short-term contracts of similar scope between the same parties to ensure

that hirers and owner-drivers do not enter into a series shorter contracts

to avoid compliance with the 90 day minimum notice period provisions.

For example, this means in the case of a series of 89 day contracts

between the same parties for substantially similar work, the notice of

termination period will be 90 days (not 7 days).

Notice period In relation to the termination of an owner-

driver contract, is the period –

(a) beginning on the day on which one

party gives the other party written

notice of termination of the contract;

and

(b) ending on the day on which the

termination of the contract is to take

effect.

Prescribed representative body means a body that represent

the interests of owner-drivers

or hirers that is prescribed by

the regulations for the

purposes of this definition.

In relation to section 18 this provides that the Minister shall seek

nominations for appointments to the Road Freight Transport Industry

Council from prescribed representative bodies as well as other person

or bodies prescribed in section 18 subsection (3). Following passage of

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the Bill it is intended for the Owner-Driver (Contracts and Disputes)

(Code of Conduct) Regulations 2010 to be amended to prescribe the

“Western Roads Federation” as a representative body.

Transport association means –

(a) representative body prescribed by the

regulations for the purpose of this

definition; or

(b) the Transport Workers Union of

Australia, Industrial Union of Works

Western Australian Branch.

In relation to proposed section 34B. this relates to who can apply to be

an authorised representative for the purposes of right of entry to conduct

and investigate a suspected breach of the Act.

In relation to section 40, this relates to who can refer disputes and

matters to the Road Freight Transport Industrial Tribunal.

PART 2 – CONTENT OF OWNER-DRIVER CONTRACTS

Division 1 – Prohibited provisions

Clause 5 Section 10A. inserted

This inserts the new proposed section 10A. Prohibited: provisions

allowing less than minimum notice period after section 10 and inserts

substantive provisions to set out that a provision in an owner-driver

contract has no effect if it purports to allow a party to terminate the

contract by giving notice of less than the minimum notice period.

This provision relates to a new definition included in clause 4 which

provides that a minimum notice period means 90 days; or if the

aggregate term of the original contract and any consecutive series of

successive contracts between the same parties that contain

substantially similar terms and conditions is less than 90 days – 7 days.

And is to be read in conjunction with the termination of contract implied

provisions set out in Schedule 1 Division 4.

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Division 2 – Implied provisions

Clause 6 Section 15A inserted

Clause 6 inserts new proposed section 15A. – Minimum period of

notice for terminating contract after section 15 and inserts substantive

provisions that set out that the provisions in Schedule 1 Division 4 –

termination of contract provisions, are implied in an owner-driver

contract that does not have a valid provision about the notice period

required to be given to terminate an owner-driver contract.

This provision is to be read in conjunction with new definition of minimum

notice period proposed in clause 4 which provides that a minimum notice

period means 90 days or if the aggregate term of the original contract

and any consecutive series of successive contracts between the same

parties that contain substantially similar terms and conditions is less than

90 days – 7 days.

PART 3 – ROAD FREIGHT TRANSPORT INDUSTRY COUNCIL

Clause 7 Section 18. – Membership of Council amended

Clause 7 deletes existing section 18(3)(b) which removes the obsolete

reference to the organisation known as “the Transport Forum WA Inc.”

which is no longer in existence and inserts a new proposed section

18(3)(b). Clause 7 inserts a section 18(3)(b) to provide that the Minister

is to seek Council membership nominations from a prescribed

representative body as defined in clause 4.

The purpose of the amendment is to ensure that the Minister seeks

Council Membership nominations from organisations that represent a

balanced perspective representing interests of both owner-drivers and

hirers.

Clause 7 also makes a minor grammatical correction to section 18(3)(c)

by inserting a comma after the second occurrence of the word “workers”.

PART 6 – UNCONSCIONABLE CONDUCT

Clause 8 Section 30. – Unconscionable conduct by hirers amended

Amends section 30 subsection (2) for the purpose of clarifying the

matters that the Tribunal may have regard to for determining whether a

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hirer has engaged in conduct that is unconscionable. In particular,

whether any term of the contract is an “unfair term”, with respect to the

acquisition of services under an owner-driver contract.

An equivalent provision in respect of owner-driver’s conduct is set out in

clause 10 below for the purpose of empowering the Tribunal to take into

consideration actions which may constitute unconscionable conduct on

the side of both parties to the owner-driver contract.

Similar provisions are prescribed under the Victorian Owner Drivers and

Forestry Contractors Act 2005 section 44 subsection (2) which sets out

what the Tribunal may have regard to when determining whether a term

of a regulated contract is unjust.

Clause 9 Section 31. – Unconscionable conduct by owner-drivers amended

This amends section 31 subsection (2) for the purpose of clarifying the

matters that the Tribunal may have regard to for determining whether an

owner-driver has engaged in conduct that is unconscionable. In

particular, including whether any term of the contract is an “unfair term”

with respect to the provision of services under an owner-driver contract.

An equivalent provision in respect of hirer’s conduct is set out by clause

8 above for the purpose of empowering the Tribunal to take into

consideration actions which may constitute unconscionable conduct on

the side of both parties to the owner-driver contract.

Clause 10 Section 31A. inserted

This clause inserts a new proposed section 31A. Unfair terms at the

end of Part 6 – Unconscionable conduct and substantive provisions

relating to unconscionable conduct by hirers set out in section 30

subsection (2)(l) and unconscionable conduct by owner-drivers set out

in section 31 subclause (2)(k).

Subclause (1) prescribes the particular matters that the Road Freight

Transport Industry Tribunal may have regard to in determining whether

a term of an owner-driver contract is unfair.

Subclause (2) provides that for the purpose of subsection (1)(d), a term

of an owner-driver contract that provides for the payment by the hirer to

the owner-driver of less than the guideline rate is presumed to be unfair,

unless the hirer can demonstrate otherwise. For example, this may

include that the owner-driver has been able to achieve cost savings

across their operations which are factored into their negotiated rate for

the provision of services under the owner-driver contract.

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Subclause (3) provides that in considering whether any contract terms

are unfair, the Tribunal must not have regard to any unfairness arising

out of circumstances that were not reasonably foreseeable when the

parties agreed to the term.

These provisions mirror the Victorian Owner Drivers and Forestry

Contractors Act 2005 section 44 – ‘Powers of the Tribunal’ subclause 2

which sets out what the Tribunal may have regard to when determining

whether a term of a regulated contract is unjust.

Clause 11 Parts 6A and 6B inserted

This clause inserts new parts 6A and 6B before Part 7 – Inspectors.

Part 6A - Misleading or deceptive conduct

Proposed section 31B. Misleading or deceptive conduct by hirers

This provides that a hirer must not engage in conduct that is misleading

or deceptive, with respect to an owner-driver in relation to the acquisition

or possible acquisition by the hirer of services from the owner-driver

under an owner-driver contract. The purpose of the provision is to

prohibit misleading and deceptive conduct in regard to procuring an

owner-driver’s services by a hirer under an owner-driver contract.

An equivalent provision in respect of owner-driver’s conduct is set out in

proposed section 31C for the purpose of proscribing misleading or

deceptive conduct on the side of both parties to the owner-driver

contract.

Proposed section 31C. Misleading or deceptive conduct by owner-

drivers

This provides that an owner-driver must not engage in conduct that is

misleading or deceptive with respect to a hirer in relation to the provision

or possible provision by the owner-driver of services to the hirer under

an owner-driver contract. The purpose of the provision is to prohibit

misleading and deceptive conduct in regard to the delivery of services

by owner-drivers to the hirer under an owner-driver contract.

An equivalent provision in respect of hirer’s conduct is set out in

proposed section 31B. for the purpose of proscribing misleading or

deceptive conduct on the side of both parties to the owner-driver

contract.

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Part 6B – Discrimination

Proposed section 31D. Discrimination against owner-driver

This inserts a new proposed section 31D. subclause (1) sets out that a

hirer must not subject or threaten to subject an owner-driver or a person

associated with the owner-driver to any detriment for claiming a benefit

or exercising a power or right under the Owner-Driver (Contracts and

Disputes) Act 2007.

Subclause (2) provides that a hirer must not subject or threaten to

subject an owner-driver to any detriment because the owner-driver, or a

person associated with the owner-driver, has raised an issue of health

and safety in relation to the performance of services under an owner-

driver contract or in negotiating or renegotiation of an existing owner-

driver contract.

Subclause (3) specifies the types of actions that are considered to

subject an owner-driver to detriment for the purpose of determining

whether a hirer has discriminated against an owner-driver.

PART 7 – INSPECTORS

Clause 12 Section 32. Functions of inspectors amended

This deletes subclause (1)(b) to reflect consequential amendments

being made by section 65 of the Industrial Relations Legislation

Amendment Act 2021 which deletes section 98(3)(a) which includes

among other things, removing reference to the term “instrument” and

will commence when clause 2 subsection (c) comes into effect.

PART 8 – RIGHTS OF ENTRY, INSPECTION AND ACCESS TO RECORDS

Clause 13 Part 8 Division 1 inserted

This inserts a new Division 1 heading and substantive provision at the

beginning of Part 8 – rights of entry, inspection and access to records.

Division 1 - Preliminary

Proposed section 33A. Term used: record

This defines that the term ‘record’ means a record required to be kept

under the Owner-Drivers Code of Conduct made under Part 4 of the

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Owner-Drivers (Contracts and Disputes) Act 2007 and prescribed in

Schedule 1 of the Owner-Drivers (Contracts and Disputes) (Code of

Conduct) Regulations 2010.

Clause 14 Part 8 Division 2 heading inserted

This inserts a new heading Division 2 – Access to records in Part 8 –

rights of entry, inspection and access to records before section 34.

Clause 15 Section 34 Access to and inspection of records amended

This amends section 34 subsection (2)(a) by inserting the word hirers

before the word records and in subsection 2(b) deleting the words

“concerned that are required to be kept by the hirer under the code of

conduct; and” and inserting the words “concerned; and”.

These amendments are consequential in relation to the new definition of

‘record’ in proposed section 33A inserted by clause 13, which prescribes

the information relating to an owner-driver that a hirer must produce on

request by a ‘relevant person’ as defined in section 34 subsection 1 of

the Owner-Drivers (Contracts and Disputes) Act 2007.

Clause 15 also makes minor amendments to reflect current drafting style

by deleting the words “or extracts from” in section 34(3)(c)(ii) and

deleting “seventh” and inserting “7th” in section 34(3)(d).

Clause 16 Part 8 Division 3 inserted

This inserts new heading Division 3 – Authorised representative’s

right of entry to conduct investigation and substantive provisions in

proposed section 34A after section 34 in Part 8 – rights of entry,

inspection and access to records.

Division 3 – Authorised representative’s right of entry to conduct

investigation

Proposed section 34A. Terms used

This inserts section 34A. to define the intended meanings of new terms

under Division 3 – Authorised representative’s right of entry to conduct

investigation.

‘Authorised representative’ means a person to whom an authority is

issued under section 34B(2). Similar provision is set out in section 49G.

of the Industrial Relations Act 1979.

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‘Occupier’ of a workplace, includes a person in charge of the workplace.

‘Officer’ has the meaning given in the Industrial Relations Act 1979

section 7, which provides that an officer is a person who carries out, or

whose duty is or includes the carrying out of, the whole or part of the

functions of an office in an organisation.

‘Organisation’ has the meaning given in the Industrial Relations Act 1979

section 7, which provides that an organisation is an organisation that is

registered under Division 4 - Industrial organisations and associations of

Part II - The Western Australian Industrial Relations Commission.

Proposed section 34B. Authorised representative

This inserts section 34B. subsection (1) which provides that the

secretary of an organisation that is a transport association may apply to

the Registrar for a person nominated in the application to be issued with

an authority for the purposes of Part 8 – rights of entry, inspection and

access to records, division 3 – Authorised representative’s right of entry

to conduct investigation.

The policy intent of this provision is to provide that only a transport

association that is also an organisation registered under the Industrial

Relations Act 1979 (WA) or the Fair Work Act 2009 (Cwlth) that by its

constitution and rules can represent the interests of the road transport

industry, and enrol owner-drivers as members, is able to apply to be an

authorised representative or to nominate persons to be an authorised

representative for the purpose of investigating suspected breaches

under the Owner-Drivers (Contracts and Disputes) Act 2007. This

effectively limits potential authorised representatives to being persons

with expertise in the road transport industry and organisations subject to

the rigour of the requirements of registered organisations under the

respective commonwealth and state acts.

Subsection (2) provides that subject to subsection (3), the Registrar to

whom an application is made under subsection (1) must issue a written

authority for the purposes of this Division to the person nominated in the

application. Registrar is defined under section 3 as having the meaning

given to that term by the Industrial Relations Act 1979 (WA) section 7.

That is the chief executive officer of the registrar’s Department or, if

another person is designated as the Registrar under the Industrial

Relations Act 1979 (WA), that person.

Subsection (3) provides that the Registrar must not issue an authority

unless the person nominated in the application is an officer or employee

of the organisation that makes the application under subsection (1) and;

is the holder of a valid authority issued under section 49J(1) of the

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Industrial Relations Act 1979 (WA) or an entry permit issued under

section 512 of the Fair Work Act 2009 (Cwlth); and which has not

previously been revoked by the Tribunal.

Subsection (4) provides that despite section 43 – applied provisions:

practice, procedure and appeals, section 49 of the Industrial Relations

Act 1979 (WA), does not apply to a decision of the Tribunal under

subsection (3)(c) that a new authority may be issued. This means that

there is no right of appeal for a Tribunal decision to reissue an authority

under the Owner-Driver’s (Contracts and Disputes) Act 2007.

Subsection (5) provides that an authority issued under subsection (2)

remains in force until it is revoked or suspended. This sets out that the

owner-driver right of entry authority does not have a prescribed expiry

date.

These provisions align with section 49J – Authorising authorised

representatives under the Industrial Relations Act 1979.

Proposed section 34C. Authorised representative who ceases to

hold authority or entry permit

This inserts new section 34C. subsection (1) provides that an authorised

representative must, within 28 days of ceasing to hold an authority or

permit referred to in section 34B subsection (3)(b), that is either an

authority issued under section 49J(1) of the Industrial Relations Act 1979

or an entry permit issued under section 512 of the Fair Work Act 2009

(Cwlth), inform the Register that they no longer hold the authority or

permit.

Subsection (2) provides that a contravention of subsection (1) is not an

offence, but that subsection (1) is a civil penalty provision for the

purposes of the Industrial Relations Act 1979 section 83E. This provision

applies the penalties framework from the IR Act and applies it to the

Owner-Drivers (Contracts and Disputes) Act 2007. This means that for

a contravention of these provisions, an industrial magistrate’s court may,

among other things, make an order imposing a penalty on the person,

not exceeding $5000 for an employer, organisation or association or

$1000 for in any other case.

These provisions align with section 49J(9) – Authorising authorised

representatives and section 49O - Enforcement provisions under the

Industrial Relations Act 1979.

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Proposed section 34D. Revocation or suspension of authority

This inserts new section 34D. subsection (1) provides that subject to

subsection (2), the Registrar must revoke an authorised representative’s

authority either on application by the secretary of the organisation that

made the application under section 34B(1) or if the Registrar becomes

aware that the authorised representative no longer holds either an

authority issued under section 49J(1) of the Industrial Relations Act 1979

or an entry permit issued under section 512 the Fair Work Act 2009

(Cwlth).

Subsection (2) provides that the Registrar must not revoke an authority

under subsection (1) if proceedings pursuant to an application made

under subsection (3) in relation to the authority are pending or in

progress.

Subsection (3) provides that the Tribunal may, on application by any

person, revoke, or suspend for a period determined by the Tribunal, an

authority issued under section 34B(2) if satisfied that the authorised

representative has acted in an improper manner in the exercise of any

power conferred by Part 8 – Rights of entry, inspection and access to

records Division 1 – Preliminary, or has intentionally and unduly hindered

a hirer or owner-driver during their work time, or no longer holds an entry

permit issued under either authority issued under section 49J(1) of the

Industrial Relations Act 1979 or an entry permit issued under section 512

of the Fair Work Act 2009 (Cwlth).

Subsection (4) provides that an application under subsection (3) for the

revocation of an authority must set out the grounds on which the

application is made.

Subsection (5) provides that an authorised representative whose

authority is revoked must, within 14 days of being informed in writing by

the Registrar that their authority is revoked, return their written authority

to the Registrar. Equivalent to provision set out in section 49J(9) of the

Industrial Relations Act 1979.

Subsection (6) provides that a contravention of subsection (5) is not an

offence, but that subsection is a civil penalty provision for the purposes

of the Industrial Relations Act 1979 section 83E. This provision applies

the penalties framework from the IR Act and applies it to the Owner-

Drivers (Contracts and Disputes) Act 2007. This means that for a

contravention of these provisions, an industrial magistrate’s court may,

among other things, make an order imposing a penalty on the person,

not exceeding $5000 for an employer, organisation or association or

$1000 for in any other case.

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These provisions align with section 49J – Authorising authorised

representatives and section 49O - Enforcement provisions under the

Industrial Relations Act 1979.

Proposed section 34E. Written authority of owner-driver required

This inserts new section 34E. which provides that an authorised

representative is not entitled to exercise a power conferred by Part 8 –

Rights of entry, inspection and access to records Division 1 –

Preliminary, for the purpose of conducting an investigation into a

suspected breach of an owner-driver contract to which the owner-driver

is a party unless they are authorised in writing by the owner-driver who

is a party to the contract to carry out the investigation. The purpose of

the provision is to ensure that the owner-driver provides consent for the

authorised representative to carry out an investigation into a suspected

breach of an owner-driver contract.

Similar provisions is included is s.49I of the Industrial Relations Act 1979,

whereby an employee is employed under an “employ-employee

agreement” where the employee must authorise the authorised

representative to investigate a suspected breach of an industrial law,

instrument of Occupational Health and Safety law.

Clause 17 Section 35. Authorised representative’s right of entry

This deletes section 35 which is subject to the commencement

provisions set out in clause 2(B). The clause inserts provisions that an

authorised representative, that is a person who holds an authority issued

under proposed section 34B(3)(b) may enter an owner-drivers

workplace to investigate any suspected breach under the Owner-Drivers

(Contracts and Disputes) Act 2007, Owner-Drivers (Contracts and

Disputes) (Code of Conduct) 2010 or an owner-driver contract to which

the owner-driver is a party.

Under the Owner-Drivers (Contracts and Disputes) Act 2007 the term

‘workplace’ is defined as a place, whether or not in a vehicle, building or

other structure, where owner-drivers or hirers work or are likely to be in

the course of their work.

Similar provision is included is s.49I – entry to investigate certain

breaches, of the Industrial Relations Act 1979.

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Proposed section 35A. Authority must be shown on request

This inserts a new section 35A. to provide that an authorised

representative must not enter or remain in a workplace if they fail or

refuse to show, on request by the occupier, their written authority to enter

the workplace.

Similar provision is included in the Industrial Relations Act 1979 section

49L – Authority must be shown on request.

Proposed section 35B. Conduct in the workplace

This inserts new proposed section 35B to provide that an authorised

representative does not have the right under section 35 to enter into any

part of a workplace that is principally used for habitation by an occupier

or a member of the occupier’s household.

The proposed section 35B aligns with existing section 49K of the

Industrial Relations Act 1979. However, it does not adopt the

amendments to section 49K made by the Industrial Relations

Amendment Act 2021, which enables an authorised representative to

apply to the Commission for an order permitting entry to habitation

premises under s. 49I(1). Section 495(3) provides that the Commission

may only make the order if it is satisfied that exceptional circumstances

exist. As the amendment to section 49K aims to provide a balance

between privacy considerations and the need to ensure appropriate

protection for employees that work in their employer’s home, it is not

considered relevant in the context of the owner-driver legislation.

Subsection 2 provides that an authorised representative must comply

with any reasonable request by an occupier to take a particular route to

reach a room or area in the workplace.

Subsection (3) provides that a request made under subsection (2) is not

unreasonable only because the route is not that which the authorised

representative would have chosen.

Proposed section 35C. Authorised representative’s powers relating

to the production and inspection of record or other document

This inserts new section 35C. that provides that for the purpose of

investigating a suspected breach referred to in section 35, an authorised

representative may under subsection 1(a) subject to section (2), require

the hirer to produce for the authorised representative’s inspection, during

working hours at the workplace or at any mutually convenient time and

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place, a record or other document kept by the hirer that is related to the

suspected breach.

Subsection 1(b) provides that an authorised representative may make

copes of the record or other document related to the suspected breach.

Subsection 1(c) provides that an authorised representative may during

working hours, inspect, and take photographs, film and audio, video or

other records of, any work, material, machinery or appliance that is

relevant to the suspected breach.

Section 49I(2) of the IR Act has been amended to expressly provide

that when investigating a suspected breach, an authorised

representatives may use electronic means to record work, material,

machinery or appliances, as per section 24(5) of the Industrial

Relations Legislation Amendment Act 2021. This was a

recommendation of the Ministerial Review and recognises that

electronic recordings may be an accurate and efficient way of

investigating a suspected breach and preserving evidence, as opposed

to relying solely on the visual observations of an authorised

representative.

Subsection (2) provides that an authorised representative must not

require the hirers to produce a record or other document unless before

exercising the power, the representative has given the hirers either at

least 24 hours’ written notice of the requirement where the document is

kept at the workplace where the owner-driver works or at least 48

hours’ written notice if the record is kept elsewhere.

Subsection (3) provides that the Tribunal may, on application of the

authorised representative, waive the requirement under subsection (2)

to give the hirer notice of an intended exercise of a power if the

Tribunal is satisfied that to give such notice would defeat the purpose

for which the power is intended to be exercised.

Subsection (4) provides that if the requirement for notice is waived

under subsection (3), the Tribunal must give the authorised

representative a certificate authorising the exercise of the power

without notice and the authorised representative must, after entering

the workplace and before requiring the production of the record or

other document, give the person who is the occupier of the workplace

the certificate or a copy of the certificate.

Subsection (5) provides that nothing in this section limits or otherwise

affects the powers of an inspector under this Act.

Similar provisions are included is s.49I – entry to investigate certain

breaches, of the Industrial Relations Act 1979.

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Clause 18 Section 36. Prohibiting the obstruction or delay of exercise of

power amended

This clause amends section 36 which is subject to the commencement

provisions set out in clause 2(c). to provide under subsection (1) that an

occupier of a workplace must not refuse, or intentionally and unduly

delay, an authorised representative’s entry to the workplace under

section 35.

Subsection (2) provides that a person must not intentionally an unduly

hinder or obstruct an authorised representative exercising a power

conferred by section 35 under Part 8 – Rights of entry, inspection and

access to records, Division 1 – preliminary.

These provisions align with section 49M of the Industrial Relations Act

1979.

PART 9 – ROAD FREIGHT TRANSPORT INDSUTRY TRIBUNAL

Clause 19 Section 37. Terms used amended

This deletes the definition of “transport association” which makes

obsolete reference to “the Transport Forum WA Inc”.

The definition of transport association inserted by clause 4 terms used,

applies to Part 9 – Road Freight Transport Industry Tribunal and means

a prescribed representative body or the Transport Workers Union of

Australia, Industrial Union of Works Western Australian Branch.

The purpose of the amendment is to ensure that organisations that

represent the interests of both owner-drivers and hirers are able refer

disputes and matters to the Tribunal under section 40 and make

application to the Tribunal to enforce conciliation, direction, order or

declarations as set out in sections 44 and 45 if a person contravenes

these provisions in line with enforcement provisions in section 46.

Clause 20 Section 38. Industrial Relations Commission sitting as the Road

Freight Transport Industry Tribunal amened

This amends section 38 to provide that under new subsection (1)(c) the

Western Australian Industrial Relations Commission (WAIRC) has

jurisdiction to enquire into, deal with, hear or determine any matter

referred to in Part 8 – Rights of entry, inspection and access to records

in relation to an authorised representative.

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New subsection 1(d) provides that the WAIRC may make a summary

determination in accordance with section 38A – Tribunal’s power to

make summary determination.

New subsection 1(e) provides that the WAIRC may make a default

determination in accordance with section 38B – Tribunal’s power to

make default determination.

The purpose of these provisions is to enable the Tribunal to immediately

dispose of payment disputes where no answering statement has been

filed or there is no defense to the claim as set out in proposed sections

38A. and 38B. which is common practice in other civil proceedings.

Clause 21 Section 38A. and 38B inserted

This clause inserts proposed sections 38A. and 38B after section 38.

‘Industrial Relations Commission sitting as the Road Freight Transport

Industry Tribunal’.

Proposed section 38A. Tribunal’s power to make summary

determination

This inserts new section 38A. to provide that under subsection 1 the

Tribunal may determine a dispute or matter referred under Part 9 – Road

Freight Transport Industry Tribunal without a hearing if each party to the

proceedings has had a reasonable opportunity to be heard and the

Tribunal is satisfied that a person has frivolously or vexatiously referred

or defended a dispute or matter or a party’s case has no merit.

Subsection (2) provides that the Tribunal may, upon making a summary

determination, make 1 or more of the orders set out in section 47A –

Remedies that may be given.

Subsection (3) provides that the power in subsection (1) may be

exercised in relation to all or part of a dispute or matter and either on the

Tribunal’s own initiative or on the application of a party to the

proceedings.

Subsection (4) provides that the Tribunal may set aside a summary

determination and may do so on conditions as to the payment of costs

or as to other matters.

Subsection (5) provides that there is no right of appeal to a decision

made by the Tribunal to refuse or make a summary determination or to

set aside a summary determination, despite section 43 which applies

various provisions under the Industrial Relations Act 1979 to the Owner-

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Driver (Contracts and Disputes) Act 2007, including section 49 – Appeal

from Commission’s decision of the Industrial Relations Act 1979.

Proposed section 38B. Tribunal’s power to make default

determination

This inserts new section 38B, subsection (1) provides that this section

does not apply a failure to comply with the determination of a dispute or

matter by the Tribunal or an order made in or as a consequent of the

determination of a dispute or matter by the Tribunal.

Subsection (2) provides that the Tribunal may make a determination

against the party without a hearing (default determination) if a party to

the proceedings does not comply with a direction, order or declaration

made by the Tribunal during the course of the proceedings or fails to file

a response within the prescribed period of time.

Subsection (3) provides that the Tribunal may, upon making a default

determination, make 1 or more of the orders set out in section 47A –

Remedies that may be given.

Subsection (4) provides that the Tribunal may set aside a default

determination and may do so on conditions as to the payment of costs

or as to other matters.

Subsection (5) provides that there is no right of appeal to a decision

made by the Tribunal to make a default or set aside a default

determination despite section 43 which applies various provisions under

the Industrial Relations Act 1979 to the Owner-Driver (Contracts and

Disputes) Act 2007, including section 49 – Appeal from Commission’s

decision of the Industrial Relations Act 1979.

This provides that a person can appeal against the making of a

summary or default judgement (as implied by subsection (4)).

However, there is no right of appeal in relation to a decision of the

tribunal not to make a summary or default judgment. That is, if the

Tribunal decides to keep the matter on foot to be argued, that decision

cannot be appealed against. The Magistrates Court (Civil Proceedings)

Act 2004 has similar provision for summary judgements (sections 18

and 19).

Clause 22 Section 40. Persons who may refer disputes and matters to the

Tribunal amended

This amends section 40 by inserting subsection (2) to provide that

despite subsection (1) a dispute or matter under or in relation to an

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owner-driver contract cannot be referred to the Tribunal under

subsection (1)(a) or (c) more than 12 months after the contract expires.

The purpose of this provision is to clarify the Tribunals jurisdiction in

relation to expired owner-driver contracts.

Clause 23 Section 41A. inserted

This inserts section 41A. after section 41. – ‘Intervention in proceeding’.

Proposed section 41A. - When referral not required

This inserts new section 41A. subsection (1) provides that this section

applies if a payment dispute (the first payment dispute) arising under or

in relation to, an owner-driver contract is referred to the Tribunal under

Part 9 – Road Freight Transport Industry Tribunal.

Subsection (2) provides that when determining the first payment dispute,

the Tribunal may determine a subsequent payment dispute (the

subsequent payment dispute) if it arises under the same owner-driver

contract and is substantially similar to the first payment dispute.

Subsection (3) provides that subsection (2) applies whether or not the

subsequent payment dispute is referred to the Tribunal under Part 9 –

Road Freight Transport Industry Tribunal.

The purpose of these provisions is to set out that multiple referrals to the

Tribunal are not required where a continuing contravention has resulted

in non-payment after a dispute has been referred to the Tribunal.

Clause 24 Section 43. Applied provisions: practice, procedure and appeals

amended

This amends section 43 to clarify that various provisions of the Industrial

Relations Act 1979 apply to the exercise of the jurisdiction of the

Commission as prescribed in section 43 except as otherwise provided

under the Owner-Drivers (Contracts and Disputes) Act 2007. This

relates to provisions in clause 16 and 21 which disapplies section 49 of

the Industrial Relations Act 1979, to provide that an appeal of the

Tribunal’s decision cannot be made in relation to a default or summary

determination or where the Tribunal has revoked a right of entry

authority.

Clause 25 Section 47. Determination of dispute where no resolution by

conciliation amended

This makes consequential amendments to section 47 by deleting

subsections (1), (2) (4) and (5) and inserting a new subsection (1) that

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provides that the Industrial Relations Commission sitting as the Road

Freight Transport Industry Tribunal may hear and determine a dispute

for the purposes of section 38(1)(a).

It further provides that the Tribunal may enquire into and deal with a

matter in relation to the negotiation of an owner-driver contract for the

purposes of section 38(1)(b) if the dispute or matter is not resolved by

conciliation under section 44 or disposed of by the Tribunal making a

summary determination under section 38A or disposed of the by the

Tribunal making a default determination under section 38B.

Clause 26 Section 47A. Remedies that may be given inserted

This inserts new section 47A. after section 47. – Determination of dispute

where no resolution can be reached by conciliation.

Proposed section 47A. Remedies that may be given

This section applies consequential amendments. Subclause (1) provides

that in making a determination under section 38A(1), 38B(2) or 47(1),

the Tribunal may order the payment of a sum of money found by the

Tribunal to be owing by one party to another party or by ways of

damages or by way of restitution, order the refund of any money paid

under an owner-driver contract, make an order in the nature of an order

for specific performance of an owner-driver contract, declare that a debt

is or is not owing, order a party to do or refrain from doing something or

make any other order it considers fair.

Subclause (2) provides that without limiting subsection (1), if the tribunal

determines that a hirer or owner-driver has engaged in conduct that is

unconscionable having regard to an unfair term of the owner-driver

contract the Tribunal may declare a term of the contract void, insert a

new term into the contract to vary a term of the contract.

The purpose of this amendment is to enable the Tribunal to replace

unjust contract terms once they are declared void.

Clause 27 Section 48. Order to prevent entering into of owner-driver contracts

amended

This makes a consequential amendment to section 48 to update

reference to new section 47A. Remedies that may be given as provided

by clause 27.

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PART 10 - MISCELLANEOUS

Clause 28 Section 53. Confidentiality amended

This amends section 53 by deleting “any” and inserting “a” in subclause

(a) and deletes reference to “duty” in subclause (b) to “performing their

function” for drafting consistency.

PART 11 – TRANSITIONAL PROVISIONS

Clause 29 Part 11 inserted

This inserts new Part heading and substantive provisions after section

59. – Review of Act.

Part 11 – Transitional Provisions

Proposed section 60. Notice of termination before commencement

day

This provides for transitional provisions relating to the notice of

determination provisions set out in clause 32 which inserts Schedule 1

Division 4 – Termination of contract.

Subclause (1) inserts new section 60 to define “commencement day” to

mean the day on which the owner-driver (Contracts and Disputes)

Amendment Bill 2022 sections 5 and 31 come into operation.

Subclause (2) provides that section 10A and Schedule 1 Division 4 do

not apply in relation to a notice of termination given before

commencement day.

This means that if before commencement day as defined in s. 6(1), a

party to an owner-driver contracts gives the other party notice of

termination of the owner-driver contract, the Owner-Drivers (Contracts

and Disputes) Amendment Act 2022 does not apply to the extent that it

affects the validity of that notice of termination.

SCHEDULE 1 – IMPLIED PROVISIONS

Clause 30 Schedule 1 – Implied provisions heading amended

Makes consequential amendments to delete the reference after the

heading to Schedule 1 and inserts s. 13, 14, 15, 15A and 16.

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Clause 31 Schedule 1 Division 4 – Termination of contract inserted

This inserts new division heading and substantive provisions at the end

of Schedule 1 – Implied provisions, Division 3 – Making claims for

payment.

Proposed clause 4. Notice of termination

This inserts new clause 4 notice of termination to payment in lieu

provisions to provide that:

Subclause (1) a party (the terminating party) may terminate this contract

by giving written notice to the other party (the non-terminating party).

Subclause (2) provides that a written notice of termination must state the

day on which the notice is given and the day on which the termination of

this contract is to take effect.

Subclause (3) provides that a notice of termination given under

subclause (1) has no effect in the notice period is less that the minimum

notice period.

Subclause (4) provides that subclause (3) does not apply if an owner-

driver contract is terminated due to a material breach, serious or wilful

misconduct of the owner-driver or exceptional circumstances beyond the

control of the terminating party that were not reasonably foreseeable at

the time of entering into the owner-driver contract.

Some examples of serious misconduct can include:

 Causing a serious and imminent safety risk

 Being under the influence of alcohol or drugs at work

 Assaulting a workmate

 Theft or fraud

 Damaging the reputation or profitability of the business

Proposed clause 5. Payment in lieu of notice

Clause 32 inserts new clause 5 that provides that despite clause 4(3),

the hirer may terminate this contract by paying the owner-driver if the

termination is to take effect immediately the total amount that would be

payable under this contract in respect of the minimum notice period, less

25 per cent.

However, if a notice period is given but it is less that the minimum notice

period, the amount payable for work performed by the owner-driver

during the notice period and the amount that would be payable under

this contract in respect of the balance of the minimum notice period, less

25 per cent.

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The purpose of the provision is to set out that hirers may in lieu of the

minimum notice period, make payment to an owner-driver to the amount

representing the minimum notice period minus an amount representing

variable overhead costs such as fuel, tyres, servicing, repairs and

maintenance calculated as 25 percent of the contract value. These

overhead costs are not incurred as a result of the remainder of the

services under the contract not being carried out.

Similar provision is provided for under the Victorian Owner Drivers and

Forestry Contractors Act 2005 section 22.

SCHEDULE 2 – CONSTITUTION AND PROCEEDINGS OF COUNCIL

Division 1 – General provisions

Clause 32 Schedule 2 clause 1 amended

This amends clause (1) to reflect current drafting style by deleting

reference to “his or her” and replacing it with reference to “their”.

Subclause (2) provides that despite subclause (1), if the term of office of

a member of the Road Freight Transport Industry Council expires by

effluxion of time without a person having been appointed to fill the

vacancy, the member continues in office until the earlier of the following

– the vacancy is filled, the member resigns under clause 3(1)(a), the

member is removed from office under clause 3(2) or the member dies.

Similar Term of Office provisions are prescribed in schedule 1 clause

2(2) of the Planning and Development Act 2005.