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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Owner-Drivers (Contracts and Disputes)
Bill 2006
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
4. Meaning of "owner-driver" 3
5. Meaning of "owner-driver contract" 4
6. Application of Act 5
7. Act prevails over owner-driver contracts 5
8. Act binds Crown 6
Part 2 -- Content of owner-driver
contracts
Division 1 -- Prohibited provisions
9. Prohibited: pay if paid/when paid provisions 7
10. Prohibited: provisions requiring payment to be
made after 30 days 7
11. Prohibited: prescribed provisions 7
12. Other provisions of contract not affected 7
Division 2 -- Implied provisions
13. Time for payment 8
14. Interest on overdue payments 8
15. Making payment claims 8
16. Interpretation of implied provisions 8
176--3 page i
Owner-Drivers (Contracts and Disputes) Bill 2006
Contents
Part 3 -- Road Freight Transport
Industry Council
17. Road Freight Transport Industry Council
established 9
18. Membership of Council 9
19. Functions 10
20. Powers 10
21. Minister may give directions 10
22. Minister to have access to information 11
23. Constitution and proceedings of Council 11
24. Remuneration and allowances 11
25. Department to provide support services to Council 12
Part 4 -- Code of conduct
26. Regulations may prescribe code of conduct 13
27. Content of code of conduct 13
Part 5 -- Negotiations for
owner-driver contracts
28. Negotiating agents for owner-drivers 16
29. Negotiating agents for hirers 16
Part 6 -- Unconscionable conduct
30. Unconscionable conduct by hirers 18
31. Unconscionable conduct by owner-drivers 19
Part 7 -- Inspectors
32. Functions of inspectors 22
33. Obstructing or hindering inspector 22
Part 8 -- Rights of entry, inspection
and access to records
34. Access to records 23
35. Right of entry by representative to investigate
breaches 24
36. Enforcement of section 35 26
page ii
Owner-Drivers (Contracts and Disputes) Bill 2006
Contents
Part 9 -- Road Freight Transport
Industry Tribunal
37. Terms used in this Part 27
38. Industrial Relations Commission sitting as the
Road Freight Transport Industry Tribunal 27
39. Jurisdiction to be exercised by Commissioner with
necessary qualifications 28
40. Persons who may refer disputes and matters to the
Tribunal 28
41. Intervention in proceeding 29
42. Representation 29
43. Applied provisions: practice, procedure and
appeals 30
44. Conciliation 31
45. Compulsory attendance at conciliation 32
46. Enforcement for the purposes of sections 44 and 45 32
47. Determination of dispute where no resolution by
conciliation 33
48. Order to prevent entering into of owner-driver
contracts 35
49. Other jurisdictions 35
50. Enforcement of monetary order 36
51. Enforcement of order other than conciliation or
monetary order 37
Part 10 -- Miscellaneous
52. Trade Practices Act and Competition Code 38
53. Confidentiality 39
54. Laying documents before Parliament 39
55. Protection from liability 40
56. Protection for compliance with this Act 40
57. Regulations 40
58. Consequential amendments 41
59. Review of Act 41
Schedule 1 -- Implied provisions
Division 1 -- Responding to claims for payment
1. Responding to a payment claim 42
page iii
Owner-Drivers (Contracts and Disputes) Bill 2006
Contents
Division 2 -- Interest on overdue amounts
2. Interest payable on overdue amounts 42
Division 3 -- Making claims for payment
3. Content of claim for payment 42
Schedule 2 -- Constitution and
proceedings of Council
Division 1 -- General provisions
1. Term of office 44
2. Chairman and deputy chairman 44
3. Resignation, removal, etc. 44
4. Leave of absence 45
5. Council member unable to act 45
6. Savings 45
7. Calling of meetings 45
8. Presiding officer 45
9. Quorum 46
10. Voting 46
11. Minutes 46
12. Resolution without meeting 46
13. Holding meetings remotely 46
14. Committees 46
15. Council to determine own procedures 47
Division 2 -- Disclosure of interests etc.
16. Disclosure of interests 47
17. Voting by interested members 47
18. Clause 17 may be declared inapplicable 48
19. Quorum where clause 17 applies 48
20. Minister may declare clauses 17 and 19
inapplicable 48
Schedule 3 -- Consequential
amendments
1. Industrial Relations Act 1979 amended 49
2. Constitution Acts Amendment Act 1899 amended 49
Defined Terms
page iv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Owner-Drivers (Contracts and Disputes)
Bill 2006
A Bill for
An Act --
• to promote a safe and sustainable road freight transport
industry by regulating the relationship between persons who
enter into contracts to transport goods in heavy vehicles and
persons who hire them to do so; and
• to establish the Road Freight Transport Industry Tribunal and
the Road Freight Transport Industry Council,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Owner-Drivers (Contracts and Disputes) Act 2006.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
Note: Under section 22 of the Interpretation Act 1984, this section and
section 1 come into operation on the day on which this Act receives the
10 Royal Assent.
3. Terms used in this Act
In this Act, unless the contrary intention appears --
"code of conduct" means the code of conduct made under
Part 4;
15 "Council" means the Road Transport Freight Industry Council
established by section 17;
"Department" means the department of the Public Service
principally assisting in the administration of this Act;
"goods" includes freight and materials;
20 "gross vehicle mass" has the same meaning as it has in the
Road Traffic Act 1974 section 103B(4);
"guideline rates" means rates of payment published in
accordance with section 27(1)(f);
"heavy vehicle" means a vehicle, as defined in the Road Traffic
25 Act 1974, with a gross vehicle mass of more than
4.5 tonnes;
"hirer" means a person who engages an owner-driver under an
owner-driver contract;
page 2
Owner-Drivers (Contracts and Disputes) Bill 2006
Preliminary Part 1
s. 4
"inspector" means an Industrial Inspector as defined in the
IR Act section 7;
"IR Act" means the Industrial Relations Act 1979;
"owner-driver" has the meaning given to that term in
5 section 4;
"owner-driver contract" has the meaning given to that term in
section 5;
"party", in relation to an owner-driver contract, means a party
to the contract;
10 "payment claim" means a claim made under an owner-driver
contract --
(a) by the owner-driver to the hirer for payment of an
amount in relation to the performance by the
owner-driver of the owner-driver's obligations under
15 the contract; or
(b) by the hirer to the owner-driver in relation to the
performance or non-performance by the owner-driver
of the owner-driver's obligations under the contract;
"Registrar" has the meaning given to that term by the IR Act
20 section 7;
"Tribunal" has the meaning given to that term in section 38(2);
"workplace" means 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.
25 4. Meaning of "owner-driver"
(1) In this section --
"listed public company" has the same meaning as it has in the
Income Tax Assessment Act 1997 of the Commonwealth;
"officer", of a body corporate, has the same meaning as it has
30 in the Corporations Act 2001 of the Commonwealth.
page 3
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 1 Preliminary
s. 5
(2) For the purposes of this Act an "owner-driver" is --
(a) a natural person --
(i) who carries on the business of transporting goods
in one or more heavy vehicles supplied by that
5 person; and
(ii) whose principal occupation is the operation of
those vehicles (whether solely or with the use of
other operators); or
(b) a body corporate (other than a listed public company)
10 that carries on the business of transporting goods in one
or more heavy vehicles that are --
(i) supplied by the body corporate or an officer of
the body corporate; and
(ii) operated by an officer of the body corporate
15 (whether solely or with the use of other
operators) whose principal occupation is the
operation of those vehicles; or
(c) a partnership of persons, at least one of whom is a
person referred to in paragraph (a).
20 5. Meaning of "owner-driver contract"
(1) For the purposes of this Act, an "owner-driver contract" is a
contract (whether written or oral or partly written and partly
oral) entered into in the course of business by an owner-driver
with another person for the transport of goods in a heavy vehicle
25 by the owner-driver.
(2) It does not matter that an owner-driver contract provides for an
owner-driver to perform services other than transporting goods,
as long as the services to be performed under the contract
predominantly relate to the transport of goods.
30 (3) To avoid doubt, an owner-driver contract does not include a
contract that is a contract of employment.
page 4
Owner-Drivers (Contracts and Disputes) Bill 2006
Preliminary Part 1
s. 6
6. Application of Act
(1) This Act applies to and in relation to owner-drivers who are
engaged --
(a) under an owner-driver contract that is entered into in
5 Western Australia or that is subject to the law of
Western Australia; or
(b) to transport goods wholly within Western Australia; or
(c) to transport goods from Western Australia to another
place, or from another place to Western Australia, if a
10 substantial part of the services under the owner-driver
contract are performed in Western Australia.
(2) However, this Act does not apply in relation to an owner-driver
contract if the owner-driver who is a party to the contract has
the benefit of, or is otherwise covered by --
15 (a) a contract determination made under Chapter 6 of the
Industrial Relations Act 1996 of New South Wales; or
(b) an order made under the Owner Drivers and Forestry
Contractors Act 2005 of Victoria,
in relation to the contract.
20 7. Act prevails over owner-driver contracts
(1) A provision in an agreement or arrangement in force on, or
entered into after, the coming into operation of this section,
whether an owner-driver contract or not and whether in writing
or not, that --
25 (a) purports to exclude, modify or restrict the operation of
this Act or the code of conduct; or
(b) is contrary to or inconsistent with anything in this Act,
the code of conduct or an order of the Tribunal,
has no effect.
page 5
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 1 Preliminary
s. 8
(2) A provision in an agreement or arrangement that has no effect
because of subsection (1) does not prejudice or affect the
operation of other provisions of the agreement or arrangement.
(3) Any purported waiver, whether in an owner-driver contract and
5 whether in writing or not, of an entitlement under this Act has
no effect.
(4) Despite subsection (1), during the 6 months beginning on and
including the day on which this section comes into operation, a
provision of an owner-driver contract that is contrary to or
10 inconsistent with a provision of this Act or the code of conduct
prevails to the extent of the inconsistency.
8. Act binds Crown
This Act binds the Crown in right of the State and, so far as the
legislative power of Parliament permits, in all its other
15 capacities.
page 6
Owner-Drivers (Contracts and Disputes) Bill 2006
Content of owner-driver contracts Part 2
Prohibited provisions Division 1
s. 9
Part 2 -- Content of owner-driver contracts
Division 1 -- Prohibited provisions
9. Prohibited: pay if paid/when paid provisions
A provision in an owner-driver contract has no effect if it
5 purports to make the liability of a party ("A") to pay money
under the contract to another party contingent, whether directly
or indirectly, on A being paid money by another person
(whether or not a party).
10. Prohibited: provisions requiring payment to be made after
10 30 days
A provision in an owner-driver contract that purports to require
a payment to be made more than 30 days after a payment claim
for the payment is made is to be read as being amended to
require the payment to be made within 30 days after the claim is
15 made.
11. Prohibited: prescribed provisions
A provision in an owner-driver contract has no effect if it is a
provision that is prescribed by the regulations to be a prohibited
provision.
20 12. Other provisions of contract not affected
A provision in an owner-driver contract that has no effect
because of section 9 or 11 or that is amended under section 10
does not prejudice or affect the operation of other provisions of
the contract.
page 7
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 2 Content of owner-driver contracts
Division 2 Implied provisions
s. 13
Division 2 -- Implied provisions
13. Time for payment
The provisions in Schedule 1 Division 1 are implied in an
owner-driver contract that does not have a written provision
5 about the time by when a payment must be made.
14. Interest on overdue payments
The provisions in Schedule 1 Division 2 are implied in an
owner-driver contract that does not have a written provision
about interest to be paid on any payment that is not made within
10 the time required by the contract.
15. Making payment claims
The provisions in Schedule 1 Division 3 are implied in an
owner-driver contract that does not have a written provision
about how a party is to make a payment claim against another
15 party.
16. Interpretation of implied provisions
Despite any provision in an owner-driver contract to the
contrary, the Interpretation Act 1984 and sections 3 to 5 of this
Act apply to the interpretation of a provision that is implied in
20 an owner-driver contract under this Part.
page 8
Owner-Drivers (Contracts and Disputes) Bill 2006
Road Freight Transport Industry Council Part 3
s. 17
Part 3 -- Road Freight Transport Industry Council
17. Road Freight Transport Industry Council established
A body called the Road Freight Transport Industry Council is
established.
5 18. Membership of Council
(1) The Council is to consist of not more than 8 persons appointed
by the Minister, having regard to the experience, skills and
qualifications that the Minister considers appropriate to enable
Council members to make a contribution to the work of the
10 Council.
(2) A Council member may be appointed on a full-time or part-time
basis.
(3) The Minister shall seek nominations for appointments to the
Council from --
15 (a) the chief executive officer of the Department; and
(b) the Transport Forum WA Inc.; and
(c) the Transport Workers Union of Australia, Industrial
Union of Workers Western Australian Branch; and
(d) any other person or body from which the Minister
20 considers it appropriate to seek nominations and will
specifically seek nominations from persons able to
represent the interests of regional Western Australia.
(4) The Minister must consider nominations lodged under
subsection (3) but may appoint a person as a Council member
25 whether or not the person has been nominated under that
subsection.
page 9
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 3 Road Freight Transport Industry Council
s. 19
19. Functions
(1) The functions of the Council are --
(a) to provide advice and recommendations to the Minister
in relation to the development and review of the code of
5 conduct; and
(b) to prepare and review on a regular basis the guideline
rates; and
(c) to promote, and to encourage compliance with, the code
of conduct and the guideline rates; and
10 (d) to develop, publish and promote model owner-driver
contracts; and
(e) to provide advice and recommendations to the Minister
in relation to any other matters relevant to --
(i) owner-driver contracts; or
15 (ii) the commercial practices generally engaged in by
owner-drivers and hirers in relation to each other.
(2) The Council has any other function given to it under this Act or
another written law.
20. Powers
20 The Council has all the powers it needs to perform its functions.
21. Minister may give directions
(1) The Minister may give written directions to the Council with
respect to the performance of its functions, either generally or in
relation to a particular matter, and the Council must give effect
25 to any such direction.
(2) The Minister must cause the text of any direction given under
subsection (1) to be laid before each House of Parliament, or
dealt with under section 54, within 14 days after the direction is
given.
page 10
Owner-Drivers (Contracts and Disputes) Bill 2006
Road Freight Transport Industry Council Part 3
s. 22
(3) The text of a direction given under subsection (1) must be
included in the annual report submitted by the accountable
officer of the Department under the Financial Administration
and Audit Act 1985 section 66.
5 22. Minister to have access to information
(1) In this section --
"document" includes any tape, disk or other device or medium
on which information is recorded or stored;
"information" means information specified, or of a description
10 specified, by the Minister that relates to the functions of the
Council.
(2) The Minister is entitled --
(a) to have information in the possession of the Council;
and
15 (b) if the information is in or on a document, to have, and
make and retain copies of, that document.
(3) For the purposes of subsection (2), the Minister may --
(a) request the Council to furnish information to the
Minister; and
20 (b) request the Council to give the Minister access to
information.
(4) The Council must comply with a request under subsection (3).
23. Constitution and proceedings of Council
Schedule 2 sets out provisions as to the constitution and
25 proceedings of the Council.
24. Remuneration and allowances
Each Council member is to be paid the remuneration and
allowances that the Minister, on the recommendation of the
Minister for Public Sector Management, determines in the case
30 of that member.
page 11
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 3 Road Freight Transport Industry Council
s. 25
25. Department to provide support services to Council
The Department must provide the Council with any support
services that the Council reasonably requires.
page 12
Owner-Drivers (Contracts and Disputes) Bill 2006
Code of conduct Part 4
s. 26
Part 4 -- Code of conduct
26. Regulations may prescribe code of conduct
(1) The Governor, on the recommendation of the Minister, may
make regulations prescribing a code of conduct in relation to the
5 engagement of owner-drivers under owner-driver contracts and
conduct and practice under owner-driver contracts.
(2) Before making a recommendation under subsection (1), the
Minister must consult with the Council.
27. Content of code of conduct
10 (1) The code of conduct may --
(a) provide for the conduct of negotiations for owner-driver
contracts, whether on an individual or joint basis; and
(b) require a hirer to pay an owner-driver for services
provided under an owner-driver contract at a safe and
15 sustainable rate of payment and describe how a safe and
sustainable rate of payment is to be determined; and
(c) require a hirer to adopt the standards of conduct and
practice set out in the code with respect to
owner-drivers; and
20 (d) require a hirer to make and keep records in relation to
owner-drivers, owner-driver contracts, and services
provided under owner-driver contracts, in the manner
and form set out in the code of conduct; and
(e) require a hirer, at such times as are specified in the code
25 of conduct, to provide the owner-driver with written
information that is to include the current guideline rates
and any other information specified in the code of
conduct; and
(f) confer power on the Council to determine, amend or
30 revoke, by notice published in the Gazette, guideline
page 13
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 4 Code of conduct
s. 27
rates for the purpose of providing guidance as to rates
and costs to --
(i) owner-drivers and hirers when negotiating
owner-driver contracts; and
5 (ii) the Tribunal when determining whether
payments have been made at a safe and
sustainable rate;
and
(g) provide for any other matter relevant to the engagement
10 of owner-drivers under owner-driver contracts.
(2) The Council must obtain the approval of the chairman of the
Council before determining, amending or revoking any
guideline rates.
(3) The guideline rates are to --
15 (a) specify the class of owner-driver, vehicle and equipment
to which they apply; and
(b) contain the following information --
(i) typical fixed and variable overhead costs for that
class of owner-driver, vehicle and equipment;
20 (ii) the base hourly rate or casual hourly rate that
would typically apply to that class of
owner-driver if an owner-driver of that class
were, as an employee, performing substantially
the same work.
25 (4) For the purposes of subsection (3)(b)(i), "fixed and variable
overhead costs" include, but are not limited to --
(a) vehicle or equipment registration, maintenance and
running costs; and
(b) business administration and insurance costs (including
30 any premiums payable under the Workers'
Compensation and Injury Management Act 1981); and
(c) self-funding of superannuation; and
page 14
Owner-Drivers (Contracts and Disputes) Bill 2006
Code of conduct Part 4
s. 27
(d) finance costs; and
(e) costs of complying with any applicable laws; and
(f) costs of engaging additional or relief labour; and
(g) depreciation of vehicles and equipment.
page 15
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 5 Negotiations for owner-driver contracts
s. 28
Part 5 -- Negotiations for owner-driver contracts
28. Negotiating agents for owner-drivers
(1) An owner-driver or group of owner-drivers may, by instrument,
appoint a person or group of persons to be the negotiating agent
5 for the owner-driver or owner-drivers in relation to the
engagement of the owner-driver or owner-drivers, including the
making, variation or termination of owner-driver contracts.
(2) Subject to subsection (3), a hirer must not refuse to recognise a
negotiating agent duly appointed by an owner-driver or group of
10 owner-drivers for the purposes of subsection (1).
(3) Subsection (2) does not apply if the hirer has not been given a
copy of the agent's instrument of appointment before the
refusal.
(4) If requested to do so by the negotiating agent, a hirer must deal
15 exclusively with the agent within the scope of the agent's
authority.
(5) A person must not coerce, or attempt to coerce, an owner-driver
or group of owner-drivers --
(a) to appoint, or not to appoint, a particular person or group
20 of persons as a negotiating agent; or
(b) to terminate the appointment of a negotiating agent.
29. Negotiating agents for hirers
(1) A hirer may, by instrument, appoint a person or group of
persons to be the negotiating agent for the hirer in relation to the
25 engagement of an owner-driver or owner-drivers, including the
making, variation or termination of owner-driver contracts.
(2) Subject to subsection (3), an owner-driver or group of
owner-drivers must not refuse to recognise a negotiating agent
duly appointed by a hirer for the purposes of subsection (1).
page 16
Owner-Drivers (Contracts and Disputes) Bill 2006
Negotiations for owner-driver contracts Part 5
s. 29
(3) Subsection (2) does not apply if the owner-driver, or a
representative of the group, refusing has not been given a copy
of the agent's instrument of appointment before the refusal.
(4) If requested to do so by the negotiating agent, an owner-driver
5 or group of owner-drivers must deal exclusively with the agent
within the scope of the agent's authority.
(5) A person must not coerce, or attempt to coerce, a hirer --
(a) to appoint, or not to appoint, a particular person or group
of persons as a negotiating agent; or
10 (b) to terminate the appointment of a negotiating agent.
page 17
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 6 Unconscionable conduct
s. 30
Part 6 -- Unconscionable conduct
30. Unconscionable conduct by hirers
(1) A hirer must not engage in conduct that is, in all the
circumstances, unconscionable with respect to an owner-driver
5 in relation to the acquisition or possible acquisition by the hirer
of services from the owner-driver under an owner-driver
contract.
(2) Without in any way limiting the matters to which the Tribunal
may have regard for the purpose of determining whether a hirer
10 has contravened subsection (1), the Tribunal may have regard to
the following --
(a) the relative strengths of the negotiating positions of the
hirer and owner-driver;
(b) whether, as a result of conduct engaged in by the hirer,
15 the owner-driver was required to comply with
conditions that were not reasonably necessary for the
protection of the legitimate interests of the hirer;
(c) whether the owner-driver was able to understand any
documents relating to the acquisition or possible
20 acquisition by the hirer of services from the
owner-driver under an owner-driver contract;
(d) whether any undue influence or pressure was exerted on,
or any unfair tactics were used against, the owner-driver
(or a person acting on behalf of the owner-driver) by the
25 hirer or a person acting on behalf of the hirer in relation
to the acquisition or possible acquisition by the hirer of
services from the owner-driver under an owner-driver
contract;
(e) the amount for which, and the circumstances under
30 which, the owner-driver could have provided identical
or equivalent services to a person other than the hirer,
including as an employee;
page 18
Owner-Drivers (Contracts and Disputes) Bill 2006
Unconscionable conduct Part 6
s. 31
(f) the extent to which the hirer's conduct towards the
owner-driver was consistent with the hirer's conduct in
similar transactions between the hirer and other similar
owner-drivers;
5 (g) the requirements of the code of conduct;
(h) the extent to which the hirer unreasonably failed to
disclose to the owner-driver --
(i) any intended conduct of the hirer that might
affect the interests of the owner-driver; and
10 (ii) any risks to the owner-driver arising from the
hirer's intended conduct that are risks that the
hirer should have foreseen would not be apparent
to the owner-driver;
(i) the extent to which the hirer was willing to negotiate the
15 terms and conditions of the acquisition or possible
acquisition by the hirer of services from the
owner-driver under an owner-driver contract;
(j) the extent to which the hirer acted in good faith;
(k) whether or not the owner-driver contract provides for
20 the payment of any increases in the owner-driver's fixed
and variable overhead costs (as defined in
section 27(4)).
31. Unconscionable conduct by owner-drivers
(1) An owner-driver must not engage in conduct that is, in all the
25 circumstances, unconscionable 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.
(2) Without in any way limiting the matters to which the Tribunal
may have regard for the purpose of determining whether an
30 owner-driver has contravened subsection (1), the Tribunal may
have regard to the following --
(a) the relative strengths of the negotiating positions of the
owner-driver and hirer;
page 19
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 6 Unconscionable conduct
s. 31
(b) whether, as a result of conduct engaged in by the
owner-driver, the hirer was required to comply with
conditions that were not reasonably necessary for the
protection of the legitimate interests of the owner-driver;
5 (c) whether the hirer was able to understand any documents
relating to the provision or possible provision by the
owner-driver of services to the hirer under an
owner-driver contract;
(d) whether any undue influence or pressure was exerted on,
10 or any unfair tactics were used against, the hirer (or a
person acting on behalf of the hirer) by the owner-driver
or a person acting on behalf of the owner-driver in
relation to the provision or possible provision by the
owner-driver of services to the hirer under an
15 owner-driver contract;
(e) the amount for which, and the circumstances under
which, the hirer could have acquired identical or
equivalent services from a person other than the
owner-driver, including from an employee;
20 (f) the extent to which the owner-driver's conduct towards
the hirer was consistent with the owner-driver's conduct
in similar transactions between the owner-driver and
other similar hirers;
(g) the requirements of the code of conduct;
25 (h) the extent to which the owner-driver unreasonably failed
to disclose to the hirer --
(i) any intended conduct of the owner-driver that
might affect the interests of the hirer; and
(ii) any risks to the hirer arising from the
30 owner-driver's intended conduct that are risks
that the owner-driver should have foreseen
would not be apparent to the hirer;
(i) the extent to which the owner-driver was willing to
negotiate the terms and conditions of the provision or
page 20
Owner-Drivers (Contracts and Disputes) Bill 2006
Unconscionable conduct Part 6
s. 31
possible provision by the owner-driver of services to the
hirer under an owner-driver contract;
(j) the extent to which the owner-driver acted in good faith.
page 21
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 7 Inspectors
s. 32
Part 7 -- Inspectors
32. Functions of inspectors
(1) An inspector may, for the purposes of investigating whether or
not this Act, the code of conduct or an owner-driver contract is
5 being complied with, exercise any of the powers that an
Industrial Inspector has under the IR Act section 98(3) and, for
that purpose, a reference in that provision to --
(a) that Act is to be read as a reference to this Act or the
code of conduct; and
10 (b) an instrument is to be read as a reference to an
owner-driver contract; and
(c) industrial location is to be read as a reference to
workplace.
(2) The IR Act section 98(4) and (5) apply in relation to the
15 exercise of powers under this section as if the powers were
exercised under that Act.
33. Obstructing or hindering inspector
(1) A person must not obstruct or hinder an inspector in the exercise
of an inspector's powers under section 32.
20 (2) A person must not fail to --
(a) comply with a lawful requirement of an inspector; or
(b) refuse or fail to answer a question lawfully put to the
person by an inspector.
(3) A person must not give an inspector information that is false or
25 misleading in a material particular.
(4) A contravention of subsection (1), (2) or (3) is not an offence
but those subsections are civil penalty provisions for the
purposes of the IR Act section 83E.
page 22
Owner-Drivers (Contracts and Disputes) Bill 2006
Rights of entry, inspection and access to records Part 8
s. 34
Part 8 -- Rights of entry, inspection and access
to records
34. Access to records
(1) In this section --
5 "relevant person" means --
(a) the owner-driver concerned; or
(b) a person authorised in writing by the owner-driver to
act on behalf of the owner-driver for the purposes of
this section.
10 (2) A hirer, on written request by a relevant person, must --
(a) produce to the relevant person the records relating to the
owner-driver concerned that are required to be kept by
the hirer under the code of conduct; and
(b) let the relevant person inspect the records.
15 (3) The duty placed on a hirer under subsection (2) --
(a) continues for so long as the records are required to be
kept under the code of conduct; and
(b) is not affected by the fact that an owner-driver contract
is no longer in force; and
20 (c) includes the further duties --
(i) to let the relevant person enter premises of the
hirer for the purpose of inspecting the records;
and
(ii) to let the relevant person take copies of or
25 extracts from the records;
and
(d) must be complied with not later than the seventh day
after the day on which the request was made to the hirer.
(4) Nothing in this section limits or otherwise affects the powers of
30 an inspector under this Act.
page 23
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 8 Rights of entry, inspection and access to records
s. 35
(5) A contravention of subsection (2) is not an offence but that
subsection is a civil penalty provision for the purposes of the
IR Act section 83E.
35. Right of entry by representative to investigate breaches
5 (1) In this section --
"occupier", of a workplace, includes a person in charge of the
workplace;
"records" means records required to be kept under a code of
conduct;
10 "representative", in relation to an owner-driver, means a
person authorised in writing by the owner-driver to act on
behalf of the owner-driver for the purposes of this section.
(2) A representative of an owner-driver may enter, during working
hours, any workplace where the owner-driver works, for the
15 purpose of investigating any suspected breach of this Act, the
code of conduct or an owner-driver contract to which the
owner-driver is a party.
(3) If --
(a) a representative proposes to enter, or is in, a workplace
20 in accordance with subsection (2); and
(b) the occupier requests the representative to show the
representative's written authorisation to act on behalf of
the owner-driver,
the representative is not entitled under subsection (2) to enter or
25 remain in the workplace unless the representative shows the
occupier the written authorisation.
(4) For the purpose of investigating a suspected breach referred to
in subsection (2), the representative may --
(a) subject to subsection (5), require the hirer to produce for
30 the representative's inspection, during working hours at
the workplace or at any mutually convenient time and
page 24
Owner-Drivers (Contracts and Disputes) Bill 2006
Rights of entry, inspection and access to records Part 8
s. 35
place, any records or other documents kept by the hirer
that are related to the suspected breach; and
(b) make copies of the entries in the records or documents
related to the suspected breach; and
5 (c) during working hours, inspect or view any work,
material, machinery or appliance, that is relevant to the
suspected breach.
(5) A representative is not entitled to require the production of
records or other documents unless, before exercising the power,
10 the representative has given the hirer concerned --
(a) if the records or other documents are kept at the
workplace concerned, at least 24 hours' written notice of
the requirement; or
(b) if the records or other documents are kept elsewhere, at
15 least 48 hours' written notice of the requirement.
(6) The Tribunal may, on the ex parte application of the
representative, waive the requirement under subsection (5) to
give the hirer concerned notice of an intended exercise of a
power if the Tribunal is satisfied that to give such notice would
20 defeat the purpose for which the power is intended to be
exercised.
(7) If the requirement for notice is waived under subsection (6) --
(a) the Tribunal must give the representative a certificate
authorising the exercise of the power without notice; and
25 (b) the representative must, after entering the workplace and
before requiring the production of the records or
documents, give the person who is apparently in charge
of the workplace the certificate or a copy of the
certificate.
30 (8) Nothing in this section limits or otherwise affects the powers of
an inspector under this Act.
page 25
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 8 Rights of entry, inspection and access to records
s. 36
36. Enforcement of section 35
(1) An occupier of a workplace must not refuse, or intentionally and
unduly delay, entry to a workplace by a person entitled to enter
the workplace under section 35(2).
5 (2) A person must not intentionally and unduly hinder or obstruct a
representative in the exercise of the powers conferred by
section 35.
(3) A contravention of subsection (1) or (2) is not an offence but
those subsections are civil penalty provisions for the purposes of
10 the IR Act section 83E.
page 26
Owner-Drivers (Contracts and Disputes) Bill 2006
Road Freight Transport Industry Tribunal Part 9
s. 37
Part 9 -- Road Freight Transport Industry Tribunal
37. Terms used in this Part
(1) In this Part --
"Chief Commissioner" has the meaning given to that term in
5 the IR Act section 7(1);
"Commission" has the meaning given to that term in the IR Act
section 7(1);
"Commissioner" has the meaning given to that term in the IR
Act section 7(1);
10 "dispute" means a dispute between one or more owner-drivers
and one or more hirers arising under or in relation to this
Act, the code of conduct or an owner-driver contract
(including a payment dispute) and includes an allegation
that a person has contravened this Act, the code of conduct
15 or an owner-driver contract;
"transport association" means --
(a) the Transport Forum WA Inc.; or
(b) the Transport Workers Union of Australia, Industrial
Union of Workers Western Australian Branch.
20 (2) For the purposes of this Act, a "payment dispute" arises if, by
the time the amount claimed in a payment claim is due to be
paid under an owner-driver contract, the amount has not been
paid in full, or the claim has been rejected or wholly or partly
disputed.
25 38. Industrial Relations Commission sitting as the Road Freight
Transport Industry Tribunal
(1) By this section the Commission has jurisdiction to --
(a) hear and determine disputes that may be referred to the
Commission under this Part; and
page 27
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 9 Road Freight Transport Industry Tribunal
s. 39
(b) enquire into and deal with any other matter in relation to
the negotiation of owner-driver contracts that may be
referred to the Commission under this Part.
(2) When sitting in exercise of the jurisdiction conferred by
5 subsection (1) or under section 46, the Commission is to be
known as the Road Freight Transport Industry Tribunal (the
"Tribunal").
(3) A determination of the Tribunal on a dispute or matter
mentioned in subsection (1) has effect according to its
10 substance.
39. Jurisdiction to be exercised by Commissioner with necessary
qualifications
(1) The jurisdiction conferred by section 38 in respect of any
dispute or matter is to be exercised by the Commission
15 constituted by a Commissioner.
(2) In allocating a dispute or matter for the purposes of
subsection (1), the Chief Commissioner must have regard to the
desirability of the Commissioner concerned having relevant
knowledge of this Act and in the field of road freight transport.
20 40. Persons who may refer disputes and matters to the Tribunal
A dispute or matter may be referred to the Tribunal --
(a) in the case of a dispute arising under or in relation to an
owner-driver contract, by --
(i) a person who is a party to the owner-driver
25 contract; or
(ii) a transport association in which a party to the
owner-driver contract is eligible to be enrolled as
a member; or
(iii) an inspector; or
30 (iv) the Minister;
and
page 28
Owner-Drivers (Contracts and Disputes) Bill 2006
Road Freight Transport Industry Tribunal Part 9
s. 41
(b) in the case of a dispute arising under or in relation to this
Act or the code of conduct, or involving an allegation
that a person has contravened this Act or the code of
conduct, by --
5 (i) an owner-driver or hirer with a sufficient interest
in the dispute; or
(ii) a transport association; or
(iii) except in a case involving an allegation that a
person has contravened Part 6 -- an inspector; or
10 (iv) the Minister;
and
(c) in the case of a matter arising in relation to the conduct
of joint negotiations for an owner-driver contract by --
(i) an owner-driver or hirer with a sufficient interest
15 in the matter; or
(ii) a transport association; or
(iii) the Minister.
41. Intervention in proceeding
The Minister may, on behalf of the State and by leave of the
20 Tribunal, intervene in a proceeding of the Tribunal in which the
State has an interest.
42. Representation
Any party to proceedings before the Tribunal, and any other
person or body permitted by or under this Act to intervene or be
25 heard in proceedings before the Tribunal, may appear --
(a) in person; or
(b) with the leave of the Tribunal, or in accordance with the
regulations, by a legal practitioner or agent.
page 29
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 9 Road Freight Transport Industry Tribunal
s. 43
43. Applied provisions: practice, procedure and appeals
(1) The following provisions (the "applied provisions") of the
IR Act that apply to and in relation to the exercise of the
jurisdiction of the Commission constituted by a Commissioner
5 apply to the exercise of the jurisdiction conferred by
section 38(1) --
(a) section 22B;
(b) section 26(1)(a) and (b), (2) and (3);
(c) section 27;
10 (d) section 28;
(e) section 29B;
(f) section 32A;
(g) section 33;
(h) section 34(1), (3) and (4);
15 (i) section 36;
(j) section 49;
(k) section 90;
(l) section 91;
(m) section 92.
20 (2) The applied provisions have effect --
(a) with such modifications as may be prescribed under the
IR Act section 113; and
(b) with such other modifications as the Tribunal
determines may be necessary or appropriate.
25 (3) For the purposes of subsection (1), the IR Act section 90(1)
applies as if paragraph (a) were deleted and the following
paragraph were inserted instead --
"
(a) on the ground that the decision is in excess of
30 jurisdiction;
".
page 30
Owner-Drivers (Contracts and Disputes) Bill 2006
Road Freight Transport Industry Tribunal Part 9
s. 44
44. Conciliation
(1) This section applies where a dispute or matter has been referred
to the Tribunal under this Part.
(2) If the Tribunal considers that the issues involved may be
5 resolved by conciliation --
(a) the Tribunal may endeavour to assist the parties to reach
an agreement on those issues; and
(b) for that purpose the Tribunal may --
(i) arrange conferences of the parties or their
10 representatives presided over by the Tribunal;
and
(ii) arrange for the parties or their representatives to
confer among themselves at a conference at
which the Tribunal is not present; and
15 (iii) otherwise encourage the parties to exchange or
divulge attitudes or information that in the
opinion of the Tribunal would assist in the
resolution of the issues.
(3) The Tribunal may give any direction or make any order or
20 declaration that the Tribunal thinks expedient for the purposes
of this section.
(4) If the Tribunal gives or makes a direction, order or declaration
under subsection (3) the Tribunal must --
(a) if it is given or made orally, reduce the direction, order
25 or declaration to writing as soon as is practicable; and
(b) make the text of the direction, order or declaration
available to the parties as soon as is practicable after it is
given or made.
(5) If the Tribunal --
30 (a) takes action under subsection (2)(a); and
page 31
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 9 Road Freight Transport Industry Tribunal
s. 45
(b) is satisfied that the parties have reached agreement on
all of the issues involved,
the Tribunal may, with the consent of the parties, make a
determination by order for the purposes of section 38 in terms of
5 that agreement.
45. Compulsory attendance at conciliation
(1) Subject to this section, the Tribunal may summon any person to
attend, at a time and place specified in the summons, at
conciliation proceedings under section 44.
10 (2) A summons under this section --
(a) may be given in the manner prescribed by the
regulations; and
(b) when so given, is to be taken, in any proceedings
relating to the summons, to have been served on the
15 person to whom it is directed unless that person, in those
proceedings, satisfies the Tribunal or the Full Bench, as
the case may be, that he or she did not receive the
summons.
(3) Any person so summoned must, except for good cause, proof of
20 which is on that person, attend the conciliation proceedings at
the time and place specified in the summons and continue to
attend at that place as directed by the Tribunal.
46. Enforcement for the purposes of sections 44 and 45
(1) If a person contravenes section 45(3), or a direction, order or
25 declaration given or made under section 44(3) or section 45, the
Tribunal --
(a) on its own initiative; or
(b) on the application of --
(i) a person who is a party to the proceeding in
30 relation to which the contravention arises; or
page 32
Owner-Drivers (Contracts and Disputes) Bill 2006
Road Freight Transport Industry Tribunal Part 9
s. 47
(ii) a transport association in which a party to the
proceeding in relation to which the contravention
arises is eligible to be enrolled as a member; or
(iii) the Minister,
5 may enforce that provision, direction, order or declaration as
specified in subsection (4).
(2) An application for the enforcement of section 45(3), or a
direction, order or declaration given or made under
section 44(3) or section 45, must not be made otherwise than to
10 the Tribunal.
(3) The jurisdiction conferred by this section is to be exercised by
the Commission constituted by a Commissioner.
(4) For the purposes of subsection (1) the Tribunal has all of the
powers and duties of the Full Bench under the IR Act
15 section 84A(4) to (8), and those provisions apply accordingly.
(5) For the purposes of this section, the IR Act sections 82A and
103 apply as if references in those sections to section 84A were
references to this section.
47. Determination of dispute where no resolution by conciliation
20 (1) If --
(a) a dispute is referred to the Tribunal; and
(b) the Tribunal takes action under section 44(2)(a); and
(c) section 44(5)(b) does not apply,
the Tribunal may hear and determine the dispute for the
25 purposes of section 38(1)(a).
(2) The Tribunal does not have jurisdiction to make a determination
under this section in respect of a matter arising in relation to the
conduct of joint negotiations for an owner-driver contract.
page 33
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 9 Road Freight Transport Industry Tribunal
s. 47
(3) In making a determination mentioned in subsection (1), the
Tribunal must endeavour to ensure that the matter is resolved --
(a) taking into account any agreement reached by the parties
on any particular issue; and
5 (b) subject to paragraph (a), on terms that could reasonably
have been agreed between the parties in the first instance
or by conciliation.
(4) In making a determination mentioned in subsection (1), the
Tribunal may do one or more of the following --
10 (a) order the payment of a sum of money --
(i) found by the Tribunal to be owing by one party
to another party; or
(ii) by way of damages (including exemplary
damages and damages in the nature of interest);
15 or
(iii) by way of restitution;
(b) order the refund of any money paid under an
owner-driver contract;
(c) make an order in the nature of an order for specific
20 performance of an owner-driver contract;
(d) declare that a debt is, or is not, owing;
(e) order a party to do, or to refrain from doing, something;
(f) make any other order it considers fair, including
declaring void any unjust term of an owner-driver
25 contract.
(5) In making an order under subsection (4), the Tribunal cannot --
(a) insert a term into; or
(b) subject to subsection (4)(f), otherwise vary,
an owner-driver contract.
page 34
Owner-Drivers (Contracts and Disputes) Bill 2006
Road Freight Transport Industry Tribunal Part 9
s. 48
48. Order to prevent entering into of owner-driver contracts
(1) The Tribunal, when making an order under section 47 or at a
later time, may make any further order the Tribunal considers
appropriate for the purpose of prohibiting (either absolutely or
5 otherwise than in accordance with specified conditions) a
relevant person from --
(a) entering into any specified kind of owner-driver
contract; or
(b) doing any act (whether by advertising or otherwise) that
10 may reasonably be construed as being intended to
induce other persons to enter into any such contract.
(2) An order under this section must identify the person or persons
bound by the order and takes effect in respect of each of those
persons on service of a copy of the order on the person.
15 (3) In this section --
"relevant person" means --
(a) a party to the proceedings; or
(b) any other person who is, in any way considered
relevant by the Tribunal, associated with a party to
20 the proceedings.
49. Other jurisdictions
(1) Where --
(a) a dispute has been referred to the Tribunal; and
(b) at the time the dispute was referred no issue arising
25 under the referral was the subject of civil proceedings
before a court,
a court has no jurisdiction to hear or determine such an issue in
civil proceedings unless subsection (2) applies.
(2) This subsection applies if the dispute, or the part of the dispute
30 to which the issue referred to in subsection (1) relates, is
withdrawn or is dismissed for want of jurisdiction.
page 35
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 9 Road Freight Transport Industry Tribunal
s. 50
(3) Where --
(a) a dispute has been referred to the Tribunal; and
(b) at the time the dispute was referred an issue arising
under the referral was the subject of civil proceedings
5 before a court,
the Tribunal, on becoming aware of those proceedings, ceases to
have jurisdiction to hear or determine the issue unless
subsection (4) applies.
(4) This subsection applies if --
10 (a) the proceedings referred to in subsection (3) are, or the
part of the proceedings relating to the issue referred to in
that subsection is, transferred to the Tribunal by the
court concerned; or
(b) those proceedings are, or that part of those proceedings
15 is, withdrawn or dismissed by the court or by another
court on appeal in those proceedings, for want of
jurisdiction or without deciding the issue on its merits;
or
(c) as a result of judicial review, a court quashes or declares
20 invalid those proceedings or that part of those
proceedings or any order, judgment or decision made in
those proceedings in relation to the issue, on the ground
that the court concerned had no jurisdiction to hear and
determine the issue.
25 50. Enforcement of monetary order
(1) In this section --
"monetary order" means an order of the Tribunal requiring the
payment or refund of money (including an order as to
costs).
page 36
Owner-Drivers (Contracts and Disputes) Bill 2006
Road Freight Transport Industry Tribunal Part 9
s. 51
(2) A person to whom a payment or refund is to be made under a
monetary order may enforce the order by filing in a court of
competent jurisdiction --
(a) a copy of the order that the Registrar has certified to be a
5 true copy; and
(b) the person's affidavit as to the amount not paid under
the order and, if the order is to take effect upon any
default, as to the making of that default.
(3) No charge is to be made for filing a copy of an order or an
10 affidavit under this section.
(4) On filing, the order is taken to be an order of the court, and may
be enforced accordingly.
51. Enforcement of order other than conciliation or monetary
order
15 (1) This section applies to an order of the Tribunal to the extent that
the decision is not --
(a) an order referred to in section 44(3); or
(b) a monetary order (as defined in section 50(1)).
(2) A person who fails to comply with an order to which this
20 section applies is to be taken to commit a contempt of the
Industrial Appeal Court and is punishable by that court under
the IR Act section 92.
page 37
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 10 Miscellaneous
s. 52
Part 10 -- Miscellaneous
52. Trade Practices Act and Competition Code
(1) For the purposes of the Trade Practices Act 1974 of the
Commonwealth and the Competition Code the following things
5 are authorised by this Act --
(a) the making of a code of conduct; and
(b) anything done by a person in order to comply with this
Act or a code of conduct; and
(c) anything done by an owner-driver or group of
10 owner-drivers preparatory to entering into, or in
anticipation of, joint negotiations with a single business,
including the appointment of a negotiating agent to
conduct those joint negotiations; and
(d) anything done by a negotiating agent, as authorised by
15 this Act and in accordance with the agent's terms of
appointment, in conducting joint negotiations with a
single business; and
(e) any dealings by an owner-driver or group of
owner-drivers with their negotiating agent for the
20 purposes of conducting joint negotiations with a single
business.
(2) For the purposes of this section --
(a) a "single business" is a business, project or undertaking
that is carried on by one hirer; and
25 (b) if 2 or more hirers carry on a business, project or
undertaking as a joint venture or common enterprise, the
hirers are taken to be one hirer; and
(c) if 2 or more corporations that are related to each other
for the purposes of the Corporations Act 2001 of the
30 Commonwealth each carry on a single business --
(i) the corporations are to be treated as one hirer;
and
page 38
Owner-Drivers (Contracts and Disputes) Bill 2006
Miscellaneous Part 10
s. 53
(ii) the single businesses are to be treated as one
single business.
53. Confidentiality
A person who performs any function under this Act must not,
5 directly or indirectly, disclose or make use of any information
obtained in the course of duty except --
(a) in the performance of functions under this Act; or
(b) as required or allowed by any other law; or
(c) for the purpose of any legal proceedings arising out of
10 the administration of this Act; or
(d) with the written consent of the Minister or the person to
whom the information relates; or
(e) in other circumstances prescribed by the regulations.
Penalty: a fine of $12 000 and imprisonment for 12 months.
15 54. Laying documents before Parliament
(1) If --
(a) at the commencement of the period referred to in
section 21(2) or Schedule 2 clause 20(2) in respect of a
document a House of Parliament is not sitting; and
20 (b) the Minister is of the opinion that that House will not sit
during that period,
the Minister must transmit a copy of the document to the Clerk
of that House.
(2) A copy of a document transmitted to the Clerk of a House is to
25 be taken to have been laid before that House.
(3) The laying of a copy of a document that is taken to have
occurred under subsection (2) must be recorded in the Minutes,
or Votes and Proceedings, of the House on the first sitting day
of the House after the Clerk received the copy.
page 39
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 10 Miscellaneous
s. 55
55. Protection from liability
(1) An action in tort does not lie against a person for anything that
the person has done, in good faith, in the performance or
purported performance of a function under this Act.
5 (2) The State is also relieved of any liability that it might otherwise
have had for another person having done anything as described
in subsection (1).
(3) The protection given by this section applies even though the
thing done as described in subsection (1) may have been
10 capable of being done whether or not this Act had been enacted.
(4) In this section, a reference to the doing of anything includes a
reference to the omission to do anything.
56. Protection for compliance with this Act
(1) No civil or criminal liability attaches to a person for
15 compliance, or purported compliance, in good faith, with a
requirement of this Act.
(2) In particular, if a person produced a document or other material
as required under this Act, no civil liability attaches to the
person for producing the document or material, whether the
20 liability would arise under a contract or otherwise.
57. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed for giving effect to the
25 purposes of this Act.
(2) Without limiting the application of the Interpretation Act 1984
section 43, regulations made under this Act may adopt wholly
or partly any standards, rules, code or other provisions
published by some other body and may adopt them --
30 (a) with or without amendment or modification; and
page 40
Owner-Drivers (Contracts and Disputes) Bill 2006
Miscellaneous Part 10
s. 58
(b) as in force at the time of adoption or as amended from
time to time.
58. Consequential amendments
The Acts mentioned in Schedule 3 are amended as set out in
5 that Schedule.
59. Review of Act
(1) The Minister must carry out a review of the operation and
effectiveness of this Act as soon as is practicable after the
expiry of 5 years from the commencement of this section and, in
10 the course of that review, the Minister must consider and have
regard to --
(a) the effectiveness of the operations of the Council and
the Tribunal; and
(b) the need for the continuation of the functions of the
15 Council and the Tribunal; and
(c) any other matters that appear to the Minister to be
relevant to the operation and effectiveness of this Act.
(2) The Minister must prepare a report based on the review and, as
soon as is practicable after the report is prepared, and in any
20 event not more than 12 months after the expiry of the 5 year
period referred to in subsection (1), must cause it to be laid
before each House of Parliament.
page 41
Owner-Drivers (Contracts and Disputes) Bill 2006
Schedule 1 Implied provisions
Division 1 Responding to claims for payment
cl. 1
Schedule 1 -- Implied provisions
[s. 13, 14, 15, 16]
Division 1 -- Responding to claims for payment
1. Responding to a payment claim
5 Within 14 days after a party receives a payment claim, the party must
do one of the following --
(a) pay the part of the amount of the claim that is not disputed;
(b) pay the whole of the amount of the claim.
Division 2 -- Interest on overdue amounts
10 2. Interest payable on overdue amounts
(1) Interest is payable on so much of an amount that --
(a) is payable under this contract by a party to another party on
or before a certain date; and
(b) is unpaid after that date.
15 (2) The interest must be paid for the period beginning on the day after the
date on which the amount is due and ending on and including the date
on which the amount payable is paid.
(3) The rate of interest at any time is equal to that prescribed for that time
under the Civil Judgments Enforcement Act 2004 section 8(1)(a).
20 Division 3 -- Making claims for payment
3. Content of claim for payment
A payment claim must --
(a) state the name of the claimant; and
(b) state the date of the claim; and
25 (c) in the case of a claim by the owner-driver -- itemise and
describe the obligations under this contract that the
owner-driver has performed and to which the claim relates in
sufficient detail for the hirer to assess the claim; and
page 42
Owner-Drivers (Contracts and Disputes) Bill 2006
Implied provisions Schedule 1
Making claims for payment Division 3
cl. 3
(d) in the case of a claim by the hirer -- describe the basis for the
claim in sufficient detail for the owner-driver to assess the
claim; and
(e) be given to the party against which the claim is made.
page 43
Owner-Drivers (Contracts and Disputes) Bill 2006
Schedule 2 Constitution and proceedings of Council
Division 1 General provisions
cl. 1
Schedule 2 -- Constitution and proceedings of Council
[s. 23]
Division 1 -- General provisions
1. Term of office
5 A Council member holds office for the term, not exceeding 3 years,
that is specified in the instrument of his or her appointment, but may
from time to time be re-appointed.
2. Chairman and deputy chairman
(1) The Minister is to appoint one Council member to be the chairman.
10 (2) The Council is to elect one Council member to be the deputy
chairman.
(3) If the chairman is unable to act by reason of sickness, absence or other
cause, or during any vacancy in that office, the deputy chairman is to
perform the functions of the chairman.
15 3. Resignation, removal, etc.
(1) The office of a Council member becomes vacant if he or she --
(a) resigns the office by written notice addressed to the Minister;
or
(b) is an insolvent under administration as defined in the
20 Corporations Act 2001 of the Commonwealth; or
(c) is removed from office by the Minister under subclause (2).
(2) The Minister may remove a Council member from office if the
Minister is satisfied that the member --
(a) has neglected his or her duty; or
25 (b) has misbehaved; or
(c) is incompetent; or
(d) is suffering from mental or physical incapacity impairing the
performance of his or her functions; or
page 44
Owner-Drivers (Contracts and Disputes) Bill 2006
Constitution and proceedings of Council Schedule 2
General provisions Division 1
cl. 4
(e) has been absent, without leave and reasonable excuse, from
3 consecutive meetings of the Council of which the member
has had notice.
4. Leave of absence
5 The Council may grant leave of absence to a Council member on the
terms and conditions that it thinks fit.
5. Council member unable to act
(1) If a Council member, other than the chairman, is unable to act by
reason of sickness, absence or other cause, the Minister may appoint
10 another person to act temporarily in his or her place and, while acting
in accordance with the appointment, that other person is taken to be a
Council member.
(2) If the Council member who is deputy chairman is performing the
functions of the chairman, the Minister may, under subclause (1),
15 appoint another person to act in his or her place as a Council member.
(3) The appointment of a person under subclause (1) may be terminated
at any time by the Minister.
6. Savings
No act or omission of a person acting in place of another person under
20 clause 5 is to be questioned on the ground that the occasion for his or
her appointment or acting had not arisen or had ceased.
7. Calling of meetings
(1) Subject to subclause (2), meetings are to be held at the times and
places that the Council determines.
25 (2) A special meeting of the Council may at any time be convened by the
chairman.
(3) The first meeting of the Council is to be convened by the chairman.
8. Presiding officer
(1) The chairman is to preside at all meetings of the Council at which he
30 or she is present.
page 45
Owner-Drivers (Contracts and Disputes) Bill 2006
Schedule 2 Constitution and proceedings of Council
Division 1 General provisions
cl. 9
(2) If both the chairman and the deputy chairman are absent from a
meeting, the Council members present are to appoint one of their
number to preside.
9. Quorum
5 A quorum for a meeting of the Council is at least one half of the
number of Council members.
10. Voting
(1) At any meeting of the Council each Council member present has a
deliberative vote.
10 (2) If the votes cast on a question are equally divided, the person
presiding has a casting vote on the question.
11. Minutes
The Council is to cause accurate minutes to be kept of the proceedings
at its meetings.
15 12. Resolution without meeting
(1) A resolution of the Council in writing signed by each Council
member, or assented to by each Council member by letter, telegram,
telex, facsimile transmission, email or other similar means, has the
same effect as if it had been passed at a meeting.
20 (2) The Council must cause a record to be kept of each resolution under
subclause (1).
13. Holding meetings remotely
The presence of a Council member at a meeting of the Council need
not be by attendance in person but may be by that member and each
25 other Council member at the meeting being simultaneously in contact
by telephone or other means of instantaneous communication.
14. Committees
(1) The Council may appoint committees to assist it in the performance of
its functions, and may discharge or alter any committee so appointed.
page 46
Owner-Drivers (Contracts and Disputes) Bill 2006
Constitution and proceedings of Council Schedule 2
Disclosure of interests etc. Division 2
cl. 15
(2) A committee may include persons who are not members of the
Council.
(3) Subject to the directions of the Council, a committee may determine
its own procedures.
5 15. Council to determine own procedures
Subject to this Act, the Council is to determine its own procedures.
Division 2 -- Disclosure of interests etc.
16. Disclosure of interests
(1) A Council member who has a material personal interest in a matter
10 being considered or about to be considered by the Council must, as
soon as possible after the relevant facts have come to the member's
knowledge, disclose the nature of the interest at a meeting of the
Council.
Penalty: A fine of $10 000.
15 (2) A disclosure under subclause (1) is to be recorded in the minutes of
the meeting.
17. Voting by interested members
(1) A Council member who has a material personal interest in a matter
that is being considered by the Council --
20 (a) must not vote whether at a meeting or otherwise --
(i) on the matter; or
(ii) on a proposed resolution under clause 18 in respect of
the matter, whether relating to that member or a
different Council member;
25 and
(b) must not be present while --
(i) the matter; or
(ii) a proposed resolution of the kind referred to in
paragraph (a)(ii),
30 is being considered at a meeting.
page 47
Owner-Drivers (Contracts and Disputes) Bill 2006
Schedule 2 Constitution and proceedings of Council
Division 2 Disclosure of interests etc.
cl. 18
18. Clause 17 may be declared inapplicable
Clause 17 does not apply if the Council has at any time passed a
resolution that --
(a) specifies the Council member, the interest and the matter; and
5 (b) states that the Council members voting for the resolution are
satisfied that the interest should not disqualify the Council
member from considering or voting on the matter.
19. Quorum where clause 17 applies
(1) Despite clause 9, if a Council member is disqualified under clause 17
10 in relation to a matter, a quorum is present during the consideration of
the matter if at least 3 Council members are present who are entitled
to vote on any motion that may be moved at the meeting in relation to
the matter.
(2) The Minister may deal with a matter insofar as the Council cannot
15 deal with it because of subclause (1).
20. Minister may declare clauses 17 and 19 inapplicable
(1) The Minister may by writing declare that clause 17 or 19 does not
apply, or both of them do not apply, in relation to a specified matter
either generally or in voting on particular resolutions.
20 (2) The Minister must cause a copy of a declaration under subclause (1)
to be laid before each House of Parliament, or dealt with under
section 54, within 14 days after the declaration is made.
page 48
Owner-Drivers (Contracts and Disputes) Bill 2006
Consequential amendments Schedule 3
cl. 1
Schedule 3 -- Consequential amendments
[s. 58]
1. Industrial Relations Act 1979 amended
(1) The amendments in this clause are to the Industrial Relations
5 Act 1979*.
[* Reprint 10 as at 8 July 2005 .
For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1 and Acts
Nos. 34 of 2004 and 36 of 2006 .]
10 (2) Section 113(1)(d)(ii) is amended after item (II) by inserting --
"
and
(III) the Owner-Drivers (Contracts
and Disputes) Act 2006;
15 ".
2. Constitution Acts Amendment Act 1899 amended
(1) The amendment in this clause is to the Constitution Acts Amendment
Act 1899*.
[* Reprint 14 as at 21 April 2006.
20 For subsequent amendments see Western Australian
Legislation Information Tables for 2005, Table 1 and Acts
Nos. 5, 28 and 43 of 2006.]
(2) Schedule V Part 3 is amended by inserting after the item relating to
the Road Safety Council the following item --
25 "
The Road Freight Transport Industry Council established
under the Owner-Drivers (Contracts and
Disputes) Act 2006.
".
page 49
Owner-Drivers (Contracts and Disputes) Bill 2006
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
A...................................................................................................................... 9
applied provisions ......................................................................................43(1)
Chief Commissioner...................................................................................37(1)
code of conduct ................................................................................................ 3
Commission ...............................................................................................37(1)
Commissioner ............................................................................................37(1)
Council ............................................................................................................ 3
Department ...................................................................................................... 3
dispute .......................................................................................................37(1)
document ...................................................................................................22(1)
fixed and variable overhead costs................................................................27(4)
goods ............................................................................................................... 3
gross vehicle mass............................................................................................ 3
guideline rates .................................................................................................. 3
heavy vehicle ................................................................................................... 3
hirer ................................................................................................................. 3
information ................................................................................................22(1)
inspector .......................................................................................................... 3
IR Act .............................................................................................................. 3
listed public company.................................................................................. 4(1)
monetary order ...........................................................................................50(1)
occupier .....................................................................................................35(1)
officer ......................................................................................................... 4(1)
owner-driver.............................................................................................3, 4(2)
owner-driver contract ...............................................................................3, 5(1)
party ................................................................................................................ 3
payment claim.................................................................................................. 3
payment dispute .........................................................................................37(2)
records .......................................................................................................35(1)
Registrar .......................................................................................................... 3
relevant person ................................................................................ 34(1), 48(3)
representative .............................................................................................35(1)
single business ...........................................................................................52(2)
transport association ...................................................................................37(1)
Tribunal .................................................................................................3, 38(2)
workplace......................................................................................................... 3
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