New laws making transport industry contracts fairer kick in today, August 26.
The laws open up the Fair Work Commission to owner-drivers and gig workers for the first time, for disputes and the setting of enforceable standards.
From February, the laws will also bring automatic protections against unfair contract terminations or “deactivations”.
A new “expert panel” of the Fair Work Commission will set standards in road transport, with the objective of making the industry “safe, sustainable and viable”.
The panel will set those standards informed by consultation with the industry through a Road Transport Advisory Group (RTAG).
Employment Minister Murray Watt recently appointed TWU NSW/QLD secretary Richard Olsen and ARTIO secretary Peter Anderson to the RTAG, who will chair subcommittees with industry participants on relevant standards.
A transport industry alliance of TWU, ARTIO, NRFA, NatRoad and state-based transport associations has welcomed the commencement of the reforms.
Australian Road Transport Industrial Organisation secretary Peter Anderson said this day has been a “long time coming”.
“Transport is now getting the recognition it deserves with a dedicated system to establish harmony and sustainability,” he said.
“Transport businesses can have more confidence that a level playing field will bring about fair competition, with protection against the threat of the gig economy.
“As a member of the Road Transport Advisory Group, I look forward to consulting with the broader industry to ensure standards meet the road transport objective of making our essential industry safe, sustainable and viable.”
National Road Transport Association CEO Warren Clark added: “These changes bring hope that insolvency rates will reduce, that road tragedies will reduce, and that we can work in an industry that is sustainable and viable for all participants.
“It’s now about how we as an industry use this system to ensure standards are created and implemented properly.
“We have been given the tools to build a stronger transport industry, it’s up to us to use them.”
What you need to know about the new legislation
Here’s what else you need to know about the Closing Loopholes legislation and the procedures for dealing with UCTs that are “quick, flexible and informal”, according to NatRoad.
When can the FWC make an order in relation to a UCT?
The FWC can make an order if it is satisfied that the services contract includes one or more UCTs which relate to matters like rates, hours of work, termination or disputes.
Orders can only be made upon application. In considering whether to make an order, the FWC must take into account fairness between both parties to the contract.
The FWC may also only make an order where the income of the applicant is below the ‘contractor high income threshold’. This threshold has not yet been set, and consultation with the road transport sector and other interested parties is underway.
It is unclear at this point how this figure is to be calculated (eg, net or gross income, or averaged over a period of time), but this, along with the figure itself, will be set out in the yet to be made regulations.
What matters will be considered by the FWC in deciding whether a term is unfair?
In determining whether a term of a services contract is unfair, the FWC may take into account:
- the relative bargaining power of the parties;
- whether the contract as a whole: o displays a significant imbalance between the rights and obligations of the parties; or provides for a total remuneration for performing work that is:
-less than contractors performing the same or similar work would receive under a minimum standards order or minimum standards guidelines; or
– less than employees performing the same or similar work would receive;
- whether the contract term under consideration:
– is reasonably necessary to protect the legitimate interests of a party to the contract;
– imposes a harsh, unjust or unreasonable requirement on a party to the contract; and
– any other matter that the FWC considers relevant.
What types of orders can be made when a term is found to be unfair?
The types of orders which the FWC may make are:
- an order setting aside all or part of a services contract; or
- an order amending or varying all or part of a services contract.
How will all of this happen in practice?
An application must be made to the FWC by a person who is a party to a services contract, or an organisation representing the industrial interests of a party to a services contract.
Note that a ‘person’ can include a company. As discussed above, an application can only be made by a person who earns less than the contractor ‘high income threshold’.
The FWC may conduct a conference or hearing in relation to the application.
This is all smoke and mirrors no small businesses will ever get contracts while linfox and qube are around