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Further to our Blog post of June 18, the Road Safety Remuneration Tribunal (RSR Tribunal) has now published a Draft Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 (Draft Minimum Payments RSRO) and an accompanying Statement on minimum payments for contractor drivers.

All road transport companies and businesses that use road transport should consider the terms of the draft order – and as Ai Group is required to file its submissions and evidence in response to the draft order by 23 September 2015, we’d love to hear from you regarding any adverse impacts to your business.

The Draft Minimum Payments RSRO would apply to contractor road transport drivers in relation to items destined for sale or hire by a supermarket chain and to long distance operations. Obligations would be imposed on hirers of contractor drivers as well as other businesses in the supply chain.

The following important points should be noted:

  • The order is a draft which has been published for the consideration of interested parties, with an opportunity to make submissions and provide evidence; and
  • The order would impose requirements on a hirer of a contractor road transport driver to whom the order applies, as well as participants in the supply chain in relation to such a driver.

The coverage of the Draft Minimum Payments RSRO is the same as the coverage of the Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014 which the RSR Tribunal made in December 2013.

The Draft Minimum Payments RSRO contains separate schedules with minimum payments for contractor drivers engaged in: (1) distribution operations (not including long distance operations); and (2) long distance operations.

The order would effectively require the payment of an hourly rate as well as a ‘per kilometre’ rate, which would be determined by various factors including the employee’s classification, the type of trailer, the class of vehicle and whether such equipment is supplied by the driver.

An online draft payments calculator reflecting the minimum payments in the Draft Minimum Payments RSRO has been published on the RSR Tribunal’s website for comment and feedback.

It also provides that a hirer who regularly engages a contractor driver in a year must permit the contractor driver to take up to four weeks’ unpaid leave in the following year, and must not unreasonably refuse to agree to the dates on which the contractor driver requests to take the unpaid leave.

The Draft Minimum Payments RSRO requires that a supply chain participant take all reasonable measures to ensure that any contract it has with a second party in the supply chain contains provisions which:

  • are relevantly consistent with the requirements of the order;
  • are sufficient for the second party to comply with the order;
  • require the second party to comply with the order;
  • permit the supply chain participant to conduct an annual audit of the compliance by the second party with the order; and
  • require the second party to co-operate in the annual audit referred to above.

The above requirements on supply chain participants only apply where the contract with the second party is of no fixed duration or the contract or contracts are, singly or collectively, for a period of at least 30 days in a year.

The Draft Minimum Payments RSRO provides that where a supply chain participant becomes aware, or has a reasonable belief, that the second party is not complying with the order, the participant must:

  • provide the second party with written notice of the non-compliance, the nature of the non-compliance and the steps required to rectify the non-compliance;
  • notify relevant regulatory bodies of the alleged non-compliance by the second party with the requirements of the order; and
  • may terminate the contract with the second party if the non-compliance is not rectified by the second party within a reasonable period of the second party receiving the written notice.

The Draft Minimum Payments RSRO provides for a commencement date of 1 January 2016.

Ai Group Members are urged to carefully consider the terms of the Draft Minimum Payments RSRO and identify any adverse impacts. For example, would the order have any of the following impacts on your business?:

  • Increased costs;
  • An increased regulatory burden;
  • Contractual difficulties; and/or
  • Operational difficulties.

Members can advise Ai Group of any such relevant impacts of the draft order by contacting Brent Ferguson, National Manager – Workplace Relations Advocacy and Policy as soon as possible and by 18 September 2015.

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Brent Ferguson
As National Advocate for Ai Group, Brent regularly represents the interests of industry in major cases before the Fair Work Commission and Road Safety Remuneration Tribunal. Also acting as Special Counsel of Ai Group Workplace Lawyers (Sydney), Brent is a key industrial relations strategist in the transport and manufacturing sectors. He advises and represents some of Australia’s largest transport and manufacturing employers in relation to a broad range of workplace relations issues, including industrial disputes and enterprise bargaining.

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