Owner-Drivers (Contracts and Disputes) Amendment Bill 2022 -  Second Reading speech presented in the Legislative Council (p. 3903b)
Bill No.75
22 Jun 2022
Legislative Council Second Reading - 30 Aug 2022

Extract from Hansard [COUNCIL — Tuesday, 30 August 2022]

p3903b-3904a Hon Sue Ellery

[1]

OWNER-DRIVERS (CONTRACTS AND DISPUTES) AMENDMENT BILL 2022 Receipt and First Reading

Bill received from the Assembly; and, on motion by Hon Sue Ellery (Leader of the House), read a first time. Second Reading

HON SUE ELLERY (South Metropolitan — Leader of the House) [8.57 pm]: I move — That the bill be now read a second time.

The Owner-Drivers (Contracts and Disputes) Amendment Bill 2022 will amend the Owner-Drivers (Contracts and Disputes) Act 2007. The act established a framework for the regulation of contractual dealings between independent contractor owner–drivers and their hirers. It promotes a safe and sustainable road freight transport industry in Western Australia. The bill will provide additional protections for those small businesses and will resolve some of the questions that have arisen concerning aspects of the act’s operation. Our freight supply chains are key to our economic success and are critical to meeting our growing and varied freight task. The road transport industry is crucial to freight delivery throughout metropolitan and regional Western Australia and, indeed, across the country. Owner–drivers play a vital role in our road freight transport supply chain, but there is successive contracting out of work on every step along that chain. Commercial power decreases with each successive step, and at the end of the chain are the most vulnerable and least protected sector— the owner–drivers. They bear the brunt of structural factors in the road transport sector. They are isolated, and turnover is high. This lessens their bargaining power in a highly competitive market for transport services. The result is often that equitable contractual arrangements are difficult to achieve. The relative unequal bargaining power between owner–drivers and hirers combined with fierce competition in the industry means they may be forced to accept work at below market rate or, indeed, to have no work at all. All this is happening against a backdrop of challenging times for the Australian freight industry. In August 2019, the then federal Department of Infrastructure, Transport, Regional Development and Communications published a report on freight volumes. It forecast an increase in volumes of nearly 60 per cent to 2040. The amendments proposed in the bill seek to improve the position of owner–drivers. It also aims to enhance the legislation’s operational efficiency. The amendments are the fruit of several years’ work. Work started in 2014 when the Department of Transport first undertook a review of the act, as required under section 59. The purpose of the review was to evaluate the impact and effectiveness of the legislation after five years of operation. It recommended that the act be retained in its current form and that further evaluation be completed on the outcome of the national review of the commonwealth’s Road Safety Remuneration Act 2012. That act was subsequently repealed. In 2018, a further review was commenced to consider the operational effectiveness of the legislation. Throughout the review process, extensive consultation was undertaken with industry associations and unions. The following suite of proposals in the bill is based on those discussions. Minimum notice periods for termination: For contracts of greater than three months, there will be a 90-day minimum termination notice period, or payment in lieu of such notice. For contracts of less than three months, there will be a seven-day minimum termination notice period, or payment in lieu. Unfair or unjust contract provisions: Clarification of the relationship between provisions using the terms “unjust” and “unfair” will provide that such conduct can be a matter that the Road Freight Transport Industry Tribunal considers when making determinations on unconscionable conduct. Misleading and deceptive conduct: The notion of misleading and deceptive conduct is now well established in a number of other areas of life and the law. The act will now align with those areas, as such behaviour will be specifically prohibited. A workplace right of entry: A workplace right of entry to investigate is well established in the Industrial Relations Act 1979. There will be a workplace right of entry power for an owner–driver’s authorised representative for the purpose of investigating suspected breaches of the act. Discrimination: Discrimination is outlawed in many areas. This area will be no exception. Discrimination will be a form of unconscionable conduct under the act. Noncompliance with guideline rates: The act provides for the Road Freight Transport Industry Council to publish guideline rates to inform industry participants when they bargain about rates of pay. Noncompliance with guideline rates will be a relevant factor when the Road Freight Transport Industry Tribunal determines whether there has been unconscionable dealing. Changes to the tribunal’s powers and jurisdiction: A number of changes will ensure that the Road Freight Transport Industry Tribunal is better equipped to deliver just and efficient outcomes in dispute resolution. The tribunal will have the power to facilitate bargaining in joint negotiations by making circuit-breaker orders if all parties do not

Extract from Hansard [COUNCIL — Tuesday, 30 August 2022]

p3903b-3904a Hon Sue Ellery

[2]

come to agreement. The tribunal will be able to deal with multiple payment disputes, such as when there is continuing non-payment after a dispute is referred to it. A number of amendments will resolve uncertainty about the tribunal’s abilities. There is currently doubt about whether a party to a contract can apply to the tribunal after the contract has expired. Through this bill, a party will be able to apply until 12 months after expiry. There is uncertainty about whether the tribunal has the ability to vary an owner–driver contract term in addition to declaring contract terms void. Through this bill, the tribunal will be able to vary terms. Finally, opinions differ on whether the tribunal can summarily dispose of payment disputes when no answering statement has been filed or when there is no defence to the claim. Through this bill, the tribunal will be able to do so. In addition to the proposals already outlined, the government is committed to, in the future, introduce further amendments to WA owner–driver laws to broaden the scope of the act beyond the current 4.5-tonne gross vehicle mass limitation. This legislation has been through significant consultation with industry through the Road Freight Transport Industry Council. The minister would like to thank the members of the council, including the Transport Workers Union, Western Roads Federation and industry representatives, for their work on these amendments. I am sure that most members will agree that the Western Australian owner–drivers and their hirers deserve the benefits of rights that many others now take for granted. Equally, I am sure that all members will support the measures that will facilitate the Road Freight Transport Industry Tribunal in the performance of its functions. Pursuant to standing order 126(1), I advise that this bill is not a uniform legislation bill. It does not ratify or give effect to an intergovernmental or multilateral agreement to which the government of the state is a party; nor does this bill, by reason of its subject matter, introduce a uniform scheme or uniform laws throughout the commonwealth. I commend the bill to the house and I table the explanatory memorandum. [See paper 1522.] Debate adjourned, pursuant to standing orders.