The Road Safety Remuneration Bill 2011 (the Bill) was introduced to Federal Parliament on 23 November 2011. The Bill applies to road transport drivers, employers, hirers and participants in the supply chain and is targeted at addressing the working conditions of transport drivers. By focusing on the working hours and pay of transport drivers, the Bill hopes to have a run on effect on the safety of transport workers and other road users.
Application of the Bill
The Bill applies to drivers and their employers, hirers and independent contractors, and participants in the supply chain in the road transport industry.
Establishment of the Road Safety Remuneration Tribunal
If passed, the Bill will set up a Road Safety Remuneration Tribunal made up of Fair Work Australia (FWA) members plus road transport experts. Under the Bill, the Tribunal has the authority to determine minimum rates of pay and related conditions for employed and self-employed drivers. Its key responsibilities include:
- Making road safety remuneration orders
- Making safe remuneration approvals
- Resolving disputes between participants in the road transport industry and participants concerning particular employment conditions. The Tribunal may order the parties to engage in mediation and conciliation, but it may only order arbitration if the parties agree.
Road safety remuneration orders (RSRO)
RSROs may contain minimum remuneration and employment conditions, additional to those contained in the current award. An RSRO may also address industry practices for the loading and unloading of vehicles and associated waiting times, payment methods and prescribe maximum working hours.
The Tribunal may make an RSRO on its own initiative, or on the application of certain persons.
However, an RSRO may only be made by a Full Bench of the Tribunal, where it has followed a consultation process in relation to the draft order.
Making safe remuneration approvals (SRA)
The Tribunal will be granted the power to make SRA with respect to an agreement between an independent contractor driver(s) and a hirer (road transport collective agreement). An SRA will define the minimum conditions to apply to all contracts between the hirer and any owner driver providing transport services to that hirer. Any conditions imposed must be over and above those provided in the relevant award.
The Tribunal must not grant a safe remuneration approval for a road transport collective agreement unless the Tribunal is satisfied that certain conditions are met. These include whether a majority of the participating drivers would be better off overall when providing applicable services if the agreement applied than if the order applied and whether a majority of the participating drivers have approved the agreement. SRA's must specify the following:
- A statement to the effect the Tribunal is satisfied that the remuneration and any related conditions in the agreement are adequate to ensure that road transport drivers do not have remuneration related incentives to work in an unsafe manner
- The participating hirer
- The remuneration (including any method for adjusting remuneration during the period of the agreement) and any related conditions in the agreement
- The applicable services
- An expiry date for the approval (which must not be more than four years from the date of the statement)
- The function of granting safe remuneration approvals under this Part is to be performed by, a Tribunal member who is also a member of FWA or a Full Bench of the Tribunal.
The Bill's penalties will be enforced by the Fair Work Ombudsman. The failure to comply with a requirement under a RSRO or SRA will attract a civil penalty of up to $6,600 for an individual or up to $33,000 for a 'body corporate'.
A right of entry under section 481 of the Fair Work Act 2009, granted with to a suspected contravention of a term of a fair work instrument, includes a reference to a contravention Road Safety Remuneration Bill, once enacted.
Steps for Employers
Currently, parliamentary debate on the Bill and related legislation has been adjourned. If the legislation is passed, the Tribunal will commence operation on 1 July 2012.
The timing is right for employers and others in the industry to review their current work practices to ensure that their systems are not only efficient but safe. Industry members should consider conducting a risk assessment of their current structure and arrangements to review whether they currently have any incentive based arrangements with subcontractors and employees. Such risk assessment should also take into account contracts with subcontractors and host employers. On the basis of the assessment, and any other business requirements industry members should consider the following topics:
- Whether employees and subcontractors are able to meet their current employment and delivery obligations, be they be implied by the employer or others in the supply chain including hirers, in a safe manner taking into account fatigue management and time restraints
- Exploration of methods to reduce loading and unloading times and waiting times
- Exploration of alternative work practices and arrangements to reduce and / or eliminate those practices which encourage unsafe work.
Our workplace relations and OHS teams can assist industry members in assessing the impact the Bill and proposed legislation will have on your business and also assist in developing your risk assessments or reviewing your work practices.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.