Details of the Road Safety Remuneration Amendment Regulation 2013 No. 1)

Section 1 - Name of the Regulation

1.                  The name of the Regulation is the Road Safety Remuneration Amendment Regulation 2013 (No. 1).

Section 2 - Commencement

2.                  The Regulation commences on 1 August 2013.

Section 3 - Authority

3.                  The Regulation is made under the Road Safety Remuneration Act 2012.

Section 4 - Schedule(s)

4.                  This section provides this Regulation amends, and where applicable, repeals sections of the Principal Regulation.

Schedule 1 - Amendments

Road Safety Remuneration Regulation 2012

Item [1] - At the end of section 1.4

5.                  In accordance with subsection 10(2) of the Act, item 1 amends section 1.4 of the Principal Regulation to prescribe the following additional national heavy vehicle laws as capable of acting concurrently with the Act:

                               (i)              Heavy Vehicle National Law Act 2012 (Qld)

                             (ii)              Heavy Vehicle National Law Application Act 2013 (Vic)

                           (iii)              Heavy Vehicle (Adoption of National Law) Act 2013 (NSW)

6.                  Section 10 of the Act provides that it is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory that is capable of acting concurrently with the Act. For clarity, subsection 10(2) provides a list of legislation that is not intended to be excluded or limited by the Act. Paragraph 10(2)(f) permits further legislation to be prescribed by regulation.

7.                  It was noted in the Explanatory Statement to the Principal Regulation that, once implemented, the national heavy vehicle laws would be prescribed for the purposes of subsection 10(2) of the Act.

8.                  The national heavy vehicle laws establish a single consolidated national scheme to regulate the use of heavy vehicles, and a single national regulator, the National Heavy Vehicle Regulator (NHVR), to administer the scheme.

9.                  The national heavy vehicle laws are hosted by Queensland and set out in the Heavy Vehicle National Law Act 2012 (Qld) (the HVNL Act). In order for the national heavy vehicle law to apply nationally, participating jurisdictions are required to pass legislation enabling the HVNL Act as a law in their jurisdiction.

Item [2] - After Part 2

10.              Item 2 inserts a new Part 3 into the Principal Regulation. The new Part 3 concerns  the approval of road transport collective agreements involving contractor drivers.

11.              New section 3.1 of Part 3 prescribes that the code of conduct set out in Schedule 1 is the code of conduct for the purposes of subsection 33(3) of the Act.

12.              Part 3 of the Act provides for collective bargaining between contractor drivers and a hirer in pursuit of a road transport collective agreement. Collective bargaining is not mandatory, and can only occur where agreed by the contractor drivers and hirer, who are to be covered by the proposed road transport collective agreement.

13.              Despite the agreement of the parties, Part 3 of the Act provides that a road transport collective agreement has no effect unless formally approved by the Tribunal. Part 3 further provides that in making a decision to approve a road transport agreement, the Tribunal must be satisfied that certain requirements set out at section 34 of the Act have been met. However, the Tribunal has discretion in the ways it may satisfy itself that parties have complied with the relevant requirements, including the code of conduct.

14.              Subsection 34(ca) of the Act provides that the Tribunal must be satisfied the participating hirer and participating drivers have conducted themselves in accordance with any code of conduct prescribed under subsection 33(3) during negotiations for the road transport collective agreement.

15.              Subsection 33(3) provides that regulations may prescribe a code of conduct in relation to collective bargaining for road transport collective agreements.

16.              The effect of subsection 34(ca) is that the code of conduct prescribed by this regulation will be mandatory for the participating hirer and participating drivers.

17.              Item 5 of this Schedule inserts new Schedule 1 (and subsequently the code of conduct) referred to above. Further discussion of the code of conduct contained within the Schedule can be found below.

Item [3] - Part 6 (after the heading)

18.              Item 3 inserts a new section 6.1 in the Principal Regulation. The new section 6.1 prescribes additional functions of the Tribunal being to deal with certain disputes as well as setting out how the Tribunal may deal with these disputes.

Dealing with disputes between parties negotiating a road transport collective agreement

19.              Subsection 80(e) of the Act allows additional functions of the Tribunal to be prescribed by regulation.

20.              Section 42 the Act provides that the Tribunal may deal with disputes between a contractor driver and their hirer regarding remuneration or related conditions in a 'road transport contract', which could affect whether the contractor driver works in an unsafe manner. However, the Tribunal's role in dealing with disputes during negotiations for road transport collective agreements is not currently specifically prescribed. 

21.              New paragraph 6.1(1)(a) aims to clarify this by giving the Tribunal the function of dealing with a dispute between parties negotiating a road transport collective agreement if:

                             (i)            the dispute relates to a remuneration or related condition that is proposed to be included in the agreement;

                           (ii)            the remuneration or related condition could affect whether a driver works in an unsafe manner; and

                         (iii)            a party to the negotiations has requested the Tribunal to deal with the dispute.

22.              The ways in which the Tribunal may deal with a dispute under paragraph 6.1(1)(a) are outlined at new paragraph 6.1(2)(a).

Dealing with disputes about compliance with the code of conduct during negotiations for a road transport collective agreement

23.              New paragraph 6.1(1)(b) gives the Tribunal the function of dealing with a dispute about whether a party negotiating a road transport collective agreement has conducted itself in accordance with a code of conduct prescribed under subsection 33(3) of the Act.

24.              The ways in which the Tribunal may deal with a dispute under paragraph 6.1(1)(b) are outlined at new paragraph 6.1(2)(a).

Assisting parties to a road transport collective agreement

25.              New paragraph 6.1(1)(c) gives the Tribunal the function to provide assistance to parties negotiating a road transport collective agreement if:

                             (i)            a party to the negotiations has made a request to the Tribunal for assistance; and

                           (ii)            the request does not relate to a dispute mentioned in paragraph 6.1(1)(a) or (b); and

                         (iii)            by assisting the parties the Tribunal would facilitate bargaining between the parties.

26.              The types of assistance the Tribunal can provide under paragraph 6.1(1)(c) are outlined at new paragraph 6.1(2)(b).

Disputes between contractor drivers and participating hirers about an approved road transport collective agreement

27.              New paragraph 6.1(1)(d) gives the Tribunal the function of dealing with a dispute between a contractor driver and a participating hirer, about an approved road transport collective agreement if:

                             (i)            the contractor driver provides applicable services to the participating hirer; and

                           (ii)            the dispute relates to a remuneration or related condition in the agreement; and

                         (iii)            the remuneration or related condition could affect whether a driver works in an unsafe way; and

                         (iv)            a party to the dispute has requested the Tribunal to deal with the dispute.

28.              'Applicable services' is defined in subsection 33(1) of the Act.

29.              New paragraph 6.1(3) provides that paragraph 6.1(1)(d) applies whether or not the contractor driver was a participating driver during negotiations for the approved road transport collective agreement.

30.              The ways in which the Tribunal may deal with a dispute under paragraph 6.1(1)(d) are outlined at new paragraph 6.1(2)(a).

How the Tribunal may deal with disputes

31.              New paragraph 6.1(2)(a) provides that the Tribunal may deal with a dispute mentioned in paragraphs 6.1(1)(a), (b) and (d) in the following ways:

                             (i)            by mediation or conciliation of the dispute; or

                           (ii)            by making a recommendation, or expressing an opinion about:

                                                              i.      whether the proposed remuneration or related condition could contribute to unsafe work practices (if the dispute is of the kind mentioned in paragraph 6.1(1)(a) or (d)); or

                                                            ii.      whether the code of conduct has been complied with (if the dispute is of the kind mentioned in paragraph 6.1(1)(b)

                         (iii)            if each party to the dispute agrees - by arbitrating (however described) the dispute.

32.              New paragraph 6.1(2)(b) provides that the Tribunal may provide assistance under paragraph in 6.1(1)(c):

                             (i)            by making a recommendation or expressing an opinion about the proposed road transport collective agreement; or

                           (ii)            by mediating between the parties; or

                         (iii)            by providing conciliation to the parties; or

                         (iv)            if each party to the negotiations agree - by arbitrating (however described) a dispute between the parties.

33.              These actions are consistent with those already available to the Tribunal under section 44(1) of the Act, which specifies how the Tribunal may deal with disputes.

34.              New subsection 6.1(4) provides that the function of dealing with a dispute or providing assistance under this section is to be performed by a dual FWC member. This is consistent with section 45 of the Act which confers the function of dealing with disputes on dual FWC members only.

Item [4] - Section 6.1

35.              Item 4 would make a technical amendment by renumbering the current section 6.1 of the Principal Regulation to be section 6.2.

Item [5] - At the end of the regulation

36.              Item 5 inserts a new Schedule 1 to the Principal Regulation.

37.              The new Schedule 1 contains the code of conduct for collective bargaining for road transport collective agreements. The code of conduct is prescribed for the purposes of subsection 33(3) of the Act.

38.              Subsection 33(4) of the Act requires that, before a code of conduct is prescribed, industry and the Tribunal must be consulted with. Consultation on this Regulation was undertaken with the Tribunal and the Safe Rates Advisory Group, which includes representatives of employer and employee organisations, individual businesses and industry. The Transport Workers Union, Linfox, Victorian Transport Association, Queensland Trucking Association, Australian Livestock and Rural Transporters Association were among those consulted.

39.              The code of conduct is intended to provide guidance to parties on fair conduct during collective bargaining for a road transport collective agreement and assist the Tribunal to satisfy itself that the collective bargaining process was fairly conducted prior to considering any resulting road transport collective agreement under Part 3 of the Act. The Tribunal must be satisfied that all elements of the code of conduct have been complied with before it can approve a road transport collective agreement.

40.              The code of conduct applies to contractor drivers (either individually or as part of a 'negotiating group'), hirers and bargaining representatives participating in negotiations for a road transport collective agreement.

41.              Subparagraphs 4(1)(a) to (h) and subitems 4(2) and 4(3) of the code of conduct set out the conduct that must be adhered to by parties and bargaining agents  to ensure fair conduct during collective bargaining.

42.              For clarity, a note identifies that there are additional matters beyond compliance with the code of conduct which the Tribunal must also consider before approving a road transport collective agreement.

Object

43.              Item 1 of the new Schedule 1 sets out the object of the code of conduct.

44.              In accordance with section 33(5) of the Act, the code of conduct has as its objective the facilitation of effective and efficient collective bargaining for road transport collective agreements.

Definitions

45.              Item 2 of the new Schedule 1 sets out definitions for terms used in the code of conduct.

46.              A 'negotiating group' is defined as the group of contractor drivers involved in the process of negotiating a 'road transport collective agreement'. This is a new definition introduced to simplify interpretation of the new code of conduct in recognition that negotiations will not always proceed with contractor drivers that will ultimately be deemed 'participating drivers'.

Bargaining representatives

47.              Item 3 of the new Schedule 1 deals with bargaining representatives.

48.              Subitem 3(1) allows for a hirer (or potential hirer) and contractor drivers participating in negotiations for a road transport collective agreement to appoint bargaining representatives to represent or assist them during the collective bargaining process.

49.              Subitem 3(1) also provides that a bargaining representative or representatives may be appointed by a group of contractor drivers, described as a 'negotiating group', to represent or assist that group during the collective bargaining process. 'Negotiating group' is defined at item 2 of the new Schedule 1.

50.              The appointment of a bargaining representative is not a mandatory requirement.

51.              To ensure flexibility in negotiations, the Regulation does not specify the manner in which an appointment may be made (e.g. orally or in writing) and is not intended to restrict who may be appointed as a bargaining representative. For example, hirers and contractor drivers may elect to appoint an industrial association (as defined under the Fair Work Act 2009), accountant, lawyer or consultant as a bargaining representative if preferred. In the case of a 'negotiating group', a contractor driver from that group could be nominated as a bargaining representative for the group. The exception to this is the appointment of an industrial association as a bargaining representative.

52.              Where an industrial association is to be appointed as a bargaining representative, subitem 3(2) requires that the industrial association must be entitled to represent the interests of the appointing party. For example, in the case of a union, the union must be entitled under workplace relations laws to represent the industrial interests of the contractor drivers participating in the collective bargaining process.

53.              Subitem 3(3) provides that, for the purpose of the code of conduct, actions of a bargaining representative are taken to be the actions of the appointing party. The intent here is to ensure bargaining representatives act in accordance with the code of conduct.

54.              Subitem 3(4) also requires that where a bargaining representative is appointed by a party to the negotiations, the appointing party must provide notice of the appointment to other parties to the negotiations, or their appointed bargaining representative. This notice does not need to be provided in writing but should be provided as soon as practicable after the appointment.

55.              Subitem 3(5) clarifies that the appointment of a bargaining representative may be revoked by the appointing party at any time.

56.              Subitem 3(6) requires that the appointment of a bargaining representative is revoked, the non-appointing parties must be notified of the revocation as soon as practicable.

Conduct of parties and bargaining representatives

57.              Item 4 of the new Schedule 1 deals with the conduct of parties and bargaining representatives.

58.              Some obligations under the code of conduct are generally  phrased in the negative so parties can easily identify what behaviour should be avoided, rather than set standards or procedural hurdles that must be complied with in every instance. The intent of this is to provide the Tribunal with flexibility in applying the code of conduct, having regard to the context in which collective bargaining occurs.

59.              Subparagraph 4(1)(a) requires that the manner in which participating drivers are selected to be covered by a road transport collective agreement must not be unfair.

60.              Subparagraph 4(1)(b) requires all parties participating in negotiations for a road transport collective agreement to bargain directly with either a party's bargaining representative (where one has been appointed) or, where parties have not appointed a bargaining representative, with the other parties.

61.              To promote efficient collective bargaining and ongoing dialogue, subparagraph 4(1)(c) requires parties to participate in meetings that have already been organised and agreed with other parties, unless it would be impracticable or unreasonable to do so.

62.              Subparagraph 4(1)(d) requires parties to not unreasonably withhold relevant information, other than confidential or commercially sensitive information, from other parties.

63.              The parties are required under subparagraph 4(1)(e) to provide genuine consideration to proposals put forward by other parties during negotiations, and to respond to such proposals in a timely manner, unless it would be impractical or unreasonable to do so.

64.              Subparagraph 4(1)(f) requires the parties to provide reasonable opportunity for other parties to seek legal, financial or other advice or assistance to understand documents.

65.              Subparagraph 4(1)(g) places a general obligation on all parties participating in negotiations for a road transport collective agreement to refrain from conduct that undermines freedom of association or the collective bargaining process.

66.              Subparagraph 4(1)(h) prohibits all parties from engaging in conduct to control or improperly influence the bargaining representative of another party during negotiations for a road transport collective agreement. The intent of this subparagraph is to prevent parties from coercing, intimidating or providing an incentive for another party's bargaining representative to act contrary to the instructions of their appointer, or from seeking to influence the process by which another party's bargaining representative is chosen.

67.              During negotiations for a road transport collective agreement, a negotiating group or bargaining representative will be required by subitem 4(2) to obtain the permission of the participating hirer to use the participating hirer's premises to conduct discussions about the proposed agreement with its bargaining representative.

68.              Subitem 4(3) allows a participating hirer to refuse to give permission for discussions to occur at its premises if permitting the discussions would adversely affect the hirer's operations.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Road Safety Remuneration Amendment Regulation 2013 (No. 1)

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

This Regulation amends the Road Safety Remuneration Regulation 2012 to prescribe the national heavy vehicle laws (however named) as capable of acting concurrently with the Road Safety Remuneration Act 2012 (RSR Act), in accordance subsection 10(2) of the Act.

The Regulation also prescribes the Code of Conduct for Negotiation of a Road Transport Collective Agreement (code of conduct), the detail of which is provided in Schedule 1, for the purpose of subsection 33(3) of the RSR Act. The objective of the code of conduct is to facilitate effective and efficient collective bargaining for road transport collective agreements by providing guidance to parties on fair conduct during negotiations, and assist the Road Safety Remuneration Tribunal (the Tribunal) to satisfy itself that the collective bargaining process was fairly conducted.

Additional functions are also prescribed on the Tribunal to clarify the role of the Tribunal in dealing with certain disputes regarding road transport collective agreements.

Human rights implications

The right to work and rights at work

This Regulation engages the right to just and favourable conditions of work in article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Article 7 of the ICESCR requires that State Parties recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, remuneration that provides all workers with fair wages and a decent standard of living, and safe and healthy working conditions.

This Regulation promotes the right to just and favourable working conditions by ensuring collective bargaining occurs in a fair, effective and efficient manner, to support contractor drivers in negotiating fair wages to achieve a decent standard of living for themselves and their families,.

This Regulation also promotes safe and healthy working conditions by clarifying the rights of workers to seek assistance in resolving disputes regarding the actual or proposed inclusion of pay or conditions in a road transport collective agreement, which may promote work in an unsafe manner.

Conclusion

The Legislative Instrument is compatible with human rights because it promotes the right to just and favourable conditions of work.

 

William Richard Shorten, Minister for Workplace Relations