Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Owner Drivers and Forestry
Contractors Amendment Bill 2019
Introduction Print
EXPLANATORY MEMORANDUM
General
The purpose of the Bill is to make miscellaneous amendments to the Owner
Drivers and Forestry Contractors Act 2005 including to support best
practice and education and training in the relevant industries and establish
a compliance and enforcement regime by creating offences and inspection
powers to support mandatory requirements in the Act.
Clause Notes
Clause 1 outlines the purpose of the Bill, which is to make miscellaneous
amendments to the Owner Drivers and Forestry Contractors
Act 2005.
Clause 2 sets out when the provisions of the Bill come into operation.
The clause provides for the provisions of the Bill to come into
operation by proclamation, with a default date of 1 May 2020
for any provisions that have not been proclaimed by then.
Clause 3 provides that the Owner Drivers and Forestry Contractors
Act 2005 is called the Principal Act.
Clause 4 makes changes to the purpose of the Principal Act.
Subclause (1) provides that in section 1 of the Principal Act
"The purpose" will be substituted with "The main purpose"
as subclause (2) establishes a further purpose of the Principal
Act.
591001 1 BILL LA INTRODUCTION 30/4/2019
Subclause (2) inserts a further purpose of the Principal Act which
is to promote--
best practice in the transport and forestry industries in
relation to the engagement of owner drivers and forestry
contractors; and
education and training for owner drivers and forestry
contractors.
Clause 5 inserts definitions in section 3 of the Principal Act, including--
authorised officer, meaning a person appointed under
section 60A. This definition is required as the Bill sets
out a new compliance and enforcement framework and
authorised officers are responsible for monitoring and
enforcing compliance.
excavation work, meaning work involving the removal
of soil or rock from a site to form an open face, hole or
cavity. This definition is needed for the definition of
tip truck driver.
tip truck driver, meaning a contractor who drives a
tip truck in connection with excavation work in the
building and construction industry. This definition
limits the application of this new provision to ensure
that tip truck drivers in the rural road transport sector
are not captured. This definition is being inserted as
new sections 11A and 16A set out new requirements for
the provision of the information booklet and applicable
rates and costs schedule to tip truck drivers.
The definition of freight broker is replaced by a new definition
to clarify that a freight broker includes a person who provides an
online platform that facilitates the engagement of contractors by
hirers. This ensures that modern business models or platforms
that are involved in the delivery of goods are covered.
Clause 6 amends section 10 of the Principal Act to create new offences
by inserting penalties for not providing an information booklet
to contractors.
Subclause (1) creates offences by inserting a penalty provision at
the foot of section 10(1) and (2). The maximum penalties for the
offences are 25 penalty units for a body corporate and 5 penalty
units in any other case.
2
Subclause (2) inserts new subsection (3) in section 10 to provide
that section 10 does not apply to the engagement of tip truck
drivers, as new section 11A sets out new requirements for the
provision of the information booklet to tip truck drivers.
Subclause (3) inserts new notes to replace the existing note.
New note 1 explains that section 26A sets out how the
information booklet can be given to contractors. New note 2
explains that new section 60P applies to an offence against
subsection (1) or (2). New note 3 provides that a failure to
comply with this section may result in the Tribunal making
an order under section 45.
Clause 7 amends section 11 of the Principal Act, which sets out when
an information booklet is required to be provided for short term
engagements.
Subclause (1) amends subsection (3) in section 11, which has
the effect of requiring that the information booklet must be
provided when it is revised. The purpose of the amendment
is to ensure the revised information booklet is provided to
contractors to ensure they have up-to-date information.
Subclause (2) inserts new subsection (4) in section 11, which
provides that section 11 does not apply to the engagement of tip
truck drivers, as new section 11A sets out new requirements for
the provision of the information booklet to tip truck drivers.
Clause 8 inserts a new section 11A in the Principal Act to provide for the
provision of an information booklet to tip truck drivers.
Subsections (1) and (2) require hirers or freight brokers to
provide tip truck drivers with an information booklet at least
3 days before they enter into a contract. It is an offence not
to provide the information booklet, with a maximum penalty
of 25 penalty units for a body corporate and 5 penalty units in
any other case.
The purpose of this new section is to protect tip truck drivers
who do not meet the engagement threshold requirements
specified under the Principal Act, being engaged by a hirer or
freight broker for 30 days or 30 days within a 3-month period.
3
Subsection (3) requires a hirer or freight broker to provide
tip truck drivers with an information booklet once, unless the
information booklet has been revised since it was last given.
The purpose of this subsection is to ensure tip truck drivers
have access to the most recent version of the information
booklet.
New notes are being inserted at the end of section 11A.
New note 1 explains that section 26A sets out how the
information booklet can be given to contractors. New note 2
explains that new section 60P applies to an offence against
subsection (1) or (2). New note 3 provides that a failure to
comply with this section may result in the Tribunal making
an order under section 45.
This new section only applies to tip truck drivers in connection
with excavation work in the building and construction industry.
It does not capture tip truck drivers operating in the rural road
transport sector (see the definition of tip truck driver being
inserted by clause 5(2)).
Tip truck drivers in the rural road transport sector are not being
covered as this new section is being inserted in response to
recommendation 31 of the Victorian Inquiry into Labour Hire
and Insecure Work. Recommendation 31 related to tip truck
drivers undertaking excavation work in the building and
construction sector. This recommendation was accepted by
the Government.
Clause 9 amends section 12 of the Principal Act to create a new offence
by inserting penalties for not providing the information booklet
to tenderers.
Subclause (1) creates an offence by inserting a penalty provision
at the foot of section 12(2). The maximum penalty for the
offence is 25 penalty units for a body corporate and 5 penalty
units in any other case.
Subclause (2) inserts new notes to replace the existing note.
New note 1 explains that section 26A sets out how the
information booklet can be given to contractors. New note 2
explains that new section 60P applies to an offence against
subsection (2). New note 3 provides that a failure to comply with
this section may result in the Tribunal making an order under
section 45.
4
Clause 10 omits otiose words "to the Department administered by the
Minister" from section 13(2) of the Principal Act as Secretary is
now defined in section 3 of the Principal Act (see clause 5(1)).
Clause 11 omits otiose words "to the Department administered by the
Minister" from section 15(2) of the Principal Act as Secretary is
now defined in section 3 of the Principal Act (see clause 5(1)).
Clause 12 amends section 16 of the Principal Act to create new offences by
inserting penalties for not providing the applicable rate and costs
schedule to contractors before their engagement.
Subclause (2) amends section 16(1) and subclause (4) amends
section 16(2) by inserting penalty provisions. The maximum
penalty is 25 penalty units for a body corporate and 5 penalty
units in any other case.
Subclause (5) substitutes section 16(3), and provides that hirers
and freight brokers are not required to provide contractors with
the applicable rates and costs schedule--
if contractors are re-engaged and the interval
between the engagements does not exceed
12 months. The Principal Act currently requires
a hirer and freight broker to provide the applicable
rates and costs schedule each time contractors are
engaged, regardless of whether it has been revised; or
if contractors are engaged for a period of less than
30 days.
Subclause (6) inserts section 16(5) in the Principal Act.
It provides that section 16 does not apply to the engagement of
tip truck drivers, as new section 16A sets out new requirements
for the provision of the applicable schedule to tip truck drivers.
Subclause (7) inserts new notes to replace the existing note.
New note 1 explains that section 26A sets out how the applicable
schedule can be given to contractors. New note 2 explains that
new section 60P applies to an offence against subsection (1)
or (2). New note 3 provides that a failure to comply with
this section may result in the Tribunal making an order under
section 45.
5
Clause 13 inserts a new section 16A in the Principal Act, to detail when
the applicable schedule must be provided to tip truck drivers.
Subsections (1) and (2) require hirers and freight brokers to
provide tip truck drivers with the applicable rate and costs
schedule at least 3 days before they enter into a contract.
Failure to do so is an offence, with a maximum penalty of
25 penalty units for a body corporate and 5 penalty units in
any other case.
This new section seeks to protect tip truck drivers who do not
meet the engagement threshold requirements specified under
the Principal Act, being engaged by a hirer or freight broker
for 30 days or 30 days within a 3-month period.
Subsection (3) requires a hirer or freight broker to provide tip
truck drivers with the applicable rates and costs schedule once,
if the interval between engagements does not exceed 12 months.
Notes are inserted at the end of section 16A. Note 1 explains
that section 26A sets out how the applicable schedule can be
given to contractors. Note 2 explains that new section 60P
applies to an offence against subsection (1) or (2). Note 3
provides that a failure to comply with this section may result
in the Tribunal making an order under section 45.
This new section only applies to tip truck drivers in connection
with excavation work in the building and construction industry.
It does not capture tip truck drivers operating in the rural road
transport sector (see the definition of tip truck driver being
inserted by cause 5(2)).
Tip truck drivers in the rural road transport sector are not being
covered as this new section is being inserted in response to
recommendation 31 of the Victorian Inquiry into Labour Hire
and Insecure Work. Recommendation 31 related to tip truck
drivers undertaking excavation work in the building and
construction sector. This recommendation was accepted by
the Government.
Clause 14 amends section 17 of the Principal Act to create a new offence
by inserting penalties for not providing the applicable schedule
to tenderers.
6
Subclause (1) creates an offence by inserting a penalty provision
at the foot of section 17(2). The maximum penalty for the
offence is 25 penalty units for a body corporate and 5 penalty
units in any other case.
Subclause (2) inserts new notes to replace the existing note.
New note 1 explains that section 26A sets out how the applicable
schedule can be given to contractors. New note 2 explains that
new section 60P applies to an offence against subsection (2).
New note 3 provides that a failure to comply with this section
may result in the Tribunal making an order under section 45.
Clause 15 substitutes section 18(5) of the Principal Act to provide that
subsections (3) and (4) do not apply to tip truck drivers.
The purpose of the amendment is to ensure that tip truck drivers
receive the applicable rates and costs schedule regardless of the
period of time they are engaged. For all other contractors, hirers
only need to be provided with the revised applicable rates and
costs schedule if they are engaged for 30 days or at least 30 days
in 3 months.
Subclause (2) inserts new notes to replace the existing note.
New note 1 explains that section 26A sets out how the applicable
schedule can be given to contractors. New note 2 provides that
a failure to comply with this section may result in the Tribunal
making an order under section 45.
Clause 16 amends section 20 of the Principal Act to insert subsection (2).
This subsection creates a new offence where hirers enter into
regulated contracts that do not comply with section 20 of the
Principal Act.
The maximum penalty for the offence is 25 penalty units for a
body corporate and 5 penalty units in any other case.
A new note is inserted that explains section 60P applies to an
offence against this subsection.
Clause 17 inserts a new section 22A in the Principal Act. The purpose of
the amendment is to create an offence where hirers do not give
the minimum period of notice or payment in lieu of notice, as
required by sections 21 and 22. The maximum penalty for the
offence is 25 penalty units for a body corporate and 5 penalty
units in any other case.
7
Clause 18 inserts a new section 24A in the Principal Act. Subsection (1)
requires hirers to pay an amount payable under a regulated
contract within 30 days after the receipt of an invoice from the
contractor. Subsection (2) provides that subsection (1) does
not apply if there is a dispute over the amount payable or the
hirer and contractor agree to a different payment period that is
not unfair to one of the parties.
The purpose of the new section is to ensure that businesses make
prompt payments to small business owners in the transport and
forestry industries.
Clause 19 amends section 25 of the Principal Act to insert subsection (6),
which provides for contractors to be offered a regulated contract
on the same terms and conditions as an existing jointly negotiated
contract.
This provision seeks to ensure that contractors can benefit from
jointly negotiated contracts, while at the same time retaining the
opportunity to negotiate their own contractual arrangements.
Clause 20 inserts a new Division 6 in Part 2 of the Principal Act, which
consists of new section 26A. The heading to Division 6 is
"General".
New section 26A details the manner in which hirers and freight
brokers may give information to contractors.
The purpose of the amendment is to make clear that hirers and
freight brokers are not limited in the manner in which they can
provide the information booklet and the applicable rates and
costs schedule to contractors. Examples of methods of providing
these information tools are: via a link to an Internet site (or any
other form of electronic communication under the Electronic
Transactions (Victoria) Act 2000) or in hard copy by mail or
in person.
Clause 21 amends section 34 of the Principal Act to provide that alternative
dispute resolution includes arbitration conducted by an arbitrator.
The purpose of this amendment is to specify that the Small
Business Commission can arrange for disputes to be arbitrated.
8
Subclause (2) provides that the Commercial Arbitration
Act 2011 does not apply to an arbitration conducted under
this Division.
Clause 22 amends section 35(3) of the Principal Act to provide for the
Small Business Commission to arrange for arbitration by an
arbitrator.
The clause also inserts a new subsection (4) in section 35 to
allow the Small Business Commission to arrange for a different
form of alternative dispute resolution where the parties to the
dispute agree.
These amendments seek to ensure that matters can proceed
to arbitration at the Small Business Commission if the parties
agree.
Clause 23 makes consequential amendments to section 54 of the
Principal Act, to stipulate that a function of the Small
Business Commission is to organise arbitration.
Clause 24 amends section 55(3) of the Principal Act to expand the
functions of the Transport Industry Council to include
providing advice and making recommendations to the
Minister on promoting industry best practice, and education
and training for owner drivers.
Clause 25 amends section 56(1)(c)(i) of the Principal Act to omit
"Employers" as the Victorian Employers Chamber of
Commerce and Industry is now known as the Victorian
Chamber of Commerce and Industry.
Clause 26 amends section 58(3) of the Principal Act to expand the
functions of the Forestry Industry Council to include
providing advice and making recommendations to the
Minister on promoting industry best practice, and education
and training for forestry contractors.
Clause 27 omits an otiose reference to the name of the Secretary's
Department in section 59(1)(b) of the Principal Act as
Secretary is now defined in section 3 of the Principal Act
(see clause 5(1)).
9
Clause 28 inserts new Part 7A--Compliance and Enforcement--in the
Principal Act.
Division 1--Authorised officers
New section 60A provides for the appointment of authorised
officers. The Secretary may, by instrument, appoint a person
employed under Part 3 of the Public Administration Act 2004
to be an authorised officer for the purposes of the Act.
New section 60B sets out identity card matters for authorised
officers. In summary, subsection (1) imposes an obligation on
the Secretary to issue an identity card to each authorised officer,
subsection (2) imposes an obligation on an authorised officer to
produce their identity card for inspection in certain circumstances
and subsection (3) imposes an obligation on a person to whom
an identity card has been issued who ceases to be an authorised
officer to return the identity card. Breach of subsection (2) or (3)
is an offence with a maximum penalty of 10 penalty units.
New section 60C provides that an authorised officer is subject
to the Secretary's directions in the performance of the authorised
officer's functions or exercise of the authorised officer's powers
under the Act or the regulations. Subsection (2) provides that a
direction may be of a general nature or may relate to a specified
matter or specified class of matter.
Division 2--Powers of authorised officers
New section 60D outlines that an authorised officer may exercise
powers in relation to the Act and regulations to--
provide information to hirers and contractors;
monitor compliance;
investigate possible contraventions;
perform any other function or exercise any other power
under the Act or Regulations.
New section 60E sets out an authorised officer's power to require
information or documents. Subsection (1) provides that an
authorised officer may require by written notice that a person
provide any information an authorised officer requires, or
produce any document in the possession or control of that person
the purpose of exercising the officer's powers under section 60D.
10
The notice must specify a reasonable time in which the notice
must be complied with.
Subsection (2) provides that the notice must warn the person
that a failure to comply with the notice, without reasonable
excuse, is an offence, and if the notice is directed to a natural
person, it must inform them that the person may refuse to
produce the document or information if it would tend to
incriminate them. Subsection (3) empowers an authorised
officer to inspect, or make copies or take extracts from, a
document.
New section 60F sets out matters relating to entry and inspection
of premises with consent. Subsection (1) provides that, for a
purpose referred to in section 60D, an authorised officer, with
the consent of the occupier of the premises, may do the things
specified in that subsection. An example is to inspect and make
copies or take extracts from documents.
Subsection (2) sets out the steps that an authorised officer must
complete before entering any premises and before the occupier
consents to the entry. These include producing the authorised
officer's identity card and informing the occupier of the purpose
of the entry and that the occupier may refuse to give consent to
the entry.
Subsection (3) sets out the acknowledgement requirements
that a relevant authorised officer must complete in regard to
an occupier who has consented to an entry and inspection.
Subsection (4) provides that an occupier who signs an
acknowledgement must be given a copy of the signed
acknowledgement before the authorised officer leaves
the premises.
Subsection (5) provides that an authorised officer must not
remain on the premises any longer than is reasonably necessary
to perform functions or exercise powers under the new Part.
New section 60G(1) provides that an authorised officer may
retain a document for the period necessary to perform functions
or exercise powers under the new Part.
Subsection (2) provides that if a document is retained, the
authorised officer must allow the owner of the document
to inspect it, make copies, or take extracts from it.
11
Division 3--Offences and enforcement
New section 60H provides that a person must not fail to comply
with a notice to produce documents or provide information
under section 60E or a requirement to produce documents under
section 60F(1)(d) without reasonable excuse. Failure to comply
is an offence with a maximum penalty of 100 penalty units in the
case of a body corporate and 60 penalty units in any other case.
The onus in new section 60H(1) requires only that an accused
point to evidence of a reasonable excuse, upon which the onus
falls on the prosecution to prove the absence of such an excuse
beyond a reasonable doubt.
Subsection (2) provides that a person must not provide an
authorised officer with a document under section 60E
or 60F(1)(d) that the person knows to be false or misleading,
without identifying the aspect that is false or misleading, and
if practicable providing correct information. Contravention is
an offence with a maximum penalty of 100 penalty units in the
case of a body corporate and 60 penalty units in any other case.
New section 60I provides protection against self-incrimination.
It provides that a natural person may refuse or fail to give
information, or produce a document or otherwise comply with a
requirement of the Act, if doing so would tend to incriminate
them.
New section 60J imposes confidentiality obligations on
authorised officers.
Subsection (1) provides that an authorised officer must not give
to any other person any information acquired by the authorised
officer in the carrying out of the authorised officer's functions
under this Part unless the giving of information is authorised
under this Part. Contravention is an offence with a maximum
penalty of 60 penalty units.
Subsection (2) provides that subsection (1) does not apply to
the giving of information acquired by an authorised officer in
carrying out a function under this Part. One example of such a
circumstance is if the giving of the information is necessary for
the authorised officer to perform functions or exercise powers
under this Part.
12
New section 60K sets out who can prosecute under the Act.
Subsection (1) provides that a prosecution for an offence
against the Act can only be brought by the Secretary or a person
employed under Part 3 of the Public Administration Act 2004
who is authorised by the Secretary to bring a prosecution.
Subsection (2) provides that such an authorisation must be
in writing, and may be given generally or only in relation to
a particular case or cases. The Secretary may revoke it at
any time.
Subsection (3) provides that if an authorisation to prosecute
is revoked, it does not affect a proceeding that has already
commenced, unless the notice of revocation specifically states so.
Subsection (4) provides that in a prosecution for an offence
under this Act, the court must presume that the prosecution
has been authorised, unless there is evidence to the contrary.
Subsection (5) provides that a prosecution may only be
conducted by the Secretary or the person authorised under
subsection (1)(b) to bring it, or an Australian lawyer briefed
by the Secretary or the authorised person.
New section 60L relates to judicial notice of signatures.
All courts must take judicial notice of the signature of a person
who was at the time the signature was made the Secretary,
or an authorised officer referred to in section 60K(1)(b).
New section 60M provides that proceedings for offences may
be brought in the Industrial Division of the Magistrates' Court.
If a person is charged with an offence against the Act, the charge
may be heard, and all penalties recovered, in the Industrial
Division of the Magistrates' Court.
New section 60N sets out matters relating to infringements.
Subsection (1) states that an authorised officer may serve an
infringement notice on a person in respect of a prescribed offence
if the authorised officer has reason to believe that the person
committed the offence.
Subsection (2) provides that an offence prescribed under
subsection (1) is an infringement offence within the meaning
of the Fines Reform Act 2014.
13
Subsection (3) provides that the infringement penalty for an
offence referred to in subsection (1) is the prescribed penalty
for the offence.
New section 60O sets out matters relating to imputing conduct
to bodies corporate. Broadly speaking, such matters include the
establishment of the state of mind of the body corporate and the
circumstances in which conduct engaged in on behalf of a body
corporate by parties including an employee, agent or officer of
the body corporate can be taken to be conduct engaged in by the
body corporate.
New section 60P relates to the criminal liability of officers
of bodies corporate. Subsection (1) provides that if a body
corporate commits an offence specified in subsection (2), then
an officer of the body corporate also commits that offence if
the officer--
authorised or permitted the commission that offence; or
was knowingly concerned (whether by act or omission)
in the commission of the offence.
Subsection (2) sets out the offences that apply to subsection (1).
Subsection (3) provides that without limiting any other defence
available to an officer, the officer may rely on a defence that
would be available to the body corporate if it were charged with
the offence that the officer has been charged with. In doing so,
the officer bears the same burden of proof as the body corporate
in establishing the defence.
Subsection (4) provides that an officer of a body corporate may
commit an offence against a provision specified in subsection (2)
regardless of whether the body corporate has been prosecuted for,
or found guilty of, the offence.
Subsection (5) defines body corporate as having the meaning
given to it in section 57A of the Corporations Act 2001 of the
Commonwealth. Officer is defined as a person who is an
officer as defined in section 9 of the Corporations Act 2001
of the Commonwealth, or a person who is concerned in or takes
part in the management of a body corporate, regardless of their
title.
14
Subsection (6) states that this section does not affect the
operation of Subdivision (1) of Division 1 of Part II of the
Crimes Act 1958, which set out when a person is involved in the
commission of an offence, they will be taken to have committed
the offence.
New section 60Q sets out matters relating to imputing conduct to
partners. Subsection (1) provides that subject to subsection (2),
any conduct engaged in by a partnership, or any partner on behalf
of the partnership is conduct that is taken to have been engaged
in by each partner.
Subsection (2) provides that if a partnership commits an offence,
then subsection (1) applies to a partner only if the partner--
authorised or permitted the conduct; or
was knowingly concerned (whether by act or omission)
in the conduct.
Clause 29 repeals sections 62 and 63 of the Principal Act, which contain
provisions relating to the conduct of partnerships and agents
imputed to corporations.
Sections 62 and 63 are unnecessary as these provisions have
been incorporated into the new Part 7A.
Clause 30 provides for the automatic repeal of the amending Act on 1 May
2021. The repeal does not affect the continuing operation of the
amendments made by it (see section 15(1) of the Interpretation
of Legislation Act 1984).
15