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This is a Bill, not an Act. For current law, see the Acts databases.
ROAD SAFETY REMUNERATION BILL 2012
2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Road Safety Remuneration Bill 2011
No. , 2011
(Education, Employment and Workplace Relations)
A Bill for an Act to make provision in relation to
remuneration-related matters to improve safety in
the road transport industry, and for related
purposes
i Road Safety Remuneration Bill 2011 No. , 2011
Contents
Part 1--Preliminary
1
Division 1--General
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3 Object
.................................................................................................
2
Division 2--Definitions
3
4 Definitions
.........................................................................................
3
5 Meaning
of
road transport driver--general ...................................... 6
6 Meaning
of
road transport driver--individual .................................. 7
7 Meaning
of
road transport driver--corporation................................ 7
8 Meaning
of
hirer of road transport driver and road transport
contract .............................................................................................. 9
9 Meaning
of
participant in the supply chain ....................................... 9
Division 3--Application of this Act
12
Subdivision A--Interaction with other laws
12
10 Concurrent
operation
generally intended ......................................... 12
11
Interaction of enforceable instruments with State and
Territory laws ................................................................................... 12
12
Interaction of enforceable instruments with other
Commonwealth instruments (employees) ........................................ 13
13
Interaction of enforceable instruments with road transport
contracts (independent contractors) ................................................. 13
14 Interaction
with
the
Independent Contractors Act 2006 .................. 13
Subdivision B--Miscellaneous
14
15 Act
binds
Crown
..............................................................................
14
16
Act not to apply so as to exceed Commonwealth power ................. 14
17 Acquisition
of
property
....................................................................
15
Part 2--Road safety remuneration orders
16
Division 1--Preparation of annual work program
16
18
Tribunal must prepare and publish a work program each year ........ 16
Division 2--Power to make a road safety remuneration order
17
19
Power to make a road safety remuneration order ............................. 17
20
Matters the Tribunal must have regard to ........................................ 18
21
Publication of research ..................................................................... 19
Road Safety Remuneration Bill 2011 No. , 2011 ii
Division 3--Preparing and consulting on draft road safety
remuneration order
20
22
Tribunal to prepare and consult on draft order ................................. 20
23 Publication
of
draft order ................................................................. 20
24
Affected persons and bodies to have a reasonable
opportunity to make and comment on submissions for draft
order ................................................................................................. 20
25
Hearings in relation to draft order .................................................... 21
26
Finalising draft order ....................................................................... 21
Division 4--Making road safety remuneration order
22
27 Making
road
safety
remuneration order ........................................... 22
28
Persons on whom requirements are imposed must not
contravene order .............................................................................. 23
29 Expiry
of
order
.................................................................................
23
30
Road safety remuneration orders to be made by Full Bench ........... 23
Division 5--Variation and review of road safety remuneration
order
24
31
Review of road safety remuneration order ....................................... 24
32
Variation of road safety remuneration order .................................... 24
Part 3--Safe remuneration approvals in relation to certain
collective agreements involving independent
contractors
26
33
Power to grant a safe remuneration approval ................................... 26
34
Matters about which the Tribunal must be satisfied ........................ 26
35
Grant of safe remuneration approval ............................................... 27
36
Effect of safe remuneration approval ............................................... 28
37
Relationship with road safety remuneration orders ......................... 28
38
Expiry of safe remuneration approval .............................................. 28
39 Safe
remuneration
approvals to be granted by dual FWA
member or Full Bench ..................................................................... 28
Part 4--Disputes about remuneration and related conditions
29
40
Tribunal may deal with disputes about remuneration and
related conditions ............................................................................. 29
41
Disputes involving employee road transport drivers ....................... 29
42
Disputes involving independent contractor road transport
drivers .............................................................................................. 30
43
Disputes involving participants in the supply chain ........................ 31
44
How Tribunal may deal with disputes ............................................. 31
45
Disputes about safe remuneration to be dealt with by dual
FWA member .................................................................................. 32
iii Road Safety Remuneration Bill 2011 No. , 2011
Part 5--Compliance
33
Division 1--Civil remedy provisions and orders
33
Subdivision A--Applications for orders
33
46 Civil
remedy
provisions ................................................................... 33
47
Limitations on who may apply for orders etc. ................................. 34
48
Time limit on applications ............................................................... 35
Subdivision B--Orders
36
49 Orders
that
can be made ................................................................... 36
50
Pecuniary penalty orders .................................................................. 37
51
Interest up to judgement .................................................................. 38
Subdivision C--General provisions about civil remedies
38
52
Contravening a civil remedy provision is not an offence ................. 38
53
Involvement in contravention treated in same way as actual
contravention ................................................................................... 38
54
Proceedings may be heard together ................................................. 39
55
Civil evidence and procedure rules for proceedings relating
to civil remedy provisions ................................................................ 39
56
Civil proceedings after criminal proceedings .................................. 39
57 Criminal
proceedings
during civil proceedings ............................... 39
58 Criminal
proceedings
after civil proceedings .................................. 39
59
Evidence given in proceedings for penalty not admissible in
criminal proceedings ........................................................................ 40
60 Civil
double
jeopardy ....................................................................... 40
61 Course
of
conduct
............................................................................
40
Division 2--Jurisdiction and powers of courts
42
Subdivision A--Jurisdiction and powers of the Federal Court
42
62
Conferring jurisdiction on the Federal Court ................................... 42
63
Exercising jurisdiction in the Fair Work Division of the
Federal Court ................................................................................... 42
64
No limitation on Federal Court's powers ......................................... 43
65
Appeals from eligible State or Territory courts ............................... 43
Subdivision B--Jurisdiction and powers of the Federal
Magistrates Court
44
66
Conferring jurisdiction on the Federal Magistrates Court ............... 44
67
Exercising jurisdiction in the Fair Work Division of the
Federal Magistrates Court ................................................................ 44
68
No limitation on Federal Magistrates Court's powers ..................... 44
Subdivision C--Small claims procedure
45
69
Applicants may choose small claims procedure .............................. 45
Road Safety Remuneration Bill 2011 No. , 2011 iv
Subdivision D--Miscellaneous
46
70
Costs only if proceedings instituted vexatiously etc. ....................... 46
71
No imprisonment for failure to pay pecuniary penalty .................... 46
72
Regulations dealing with matters relating to court
proceedings ...................................................................................... 47
Division 3--Fair Work Ombudsman
48
Subdivision A--Role of Fair Work Ombudsman
48
73
Functions of the Fair Work Ombudsman ......................................... 48
74
Exercise of compliance powers ....................................................... 48
75
Referring matters to the Fair Work Ombudsman ............................. 49
Subdivision B--Compliance notices
49
76 Compliance
notices
..........................................................................
49
77
Review of compliance notices ......................................................... 51
Division 4--Right of entry
52
78
Right of entry for suspected contravention of this Act or
enforceable instrument ..................................................................... 52
Part 6--Road Safety Remuneration Tribunal
53
Division 1--Establishment and functions of Tribunal
53
79 Establishment
of Tribunal ................................................................ 53
80
Functions of Tribunal ....................................................................... 53
81
Tribunal has privileges and immunities of the Crown ..................... 53
82
Protection of Tribunal members ...................................................... 54
Division 2--Performance of functions of Tribunal
55
Subdivision A--Role of the President
55
83
Role of President in performance of functions ................................ 55
Subdivision B--Applications to Tribunal
55
84 Dismissing
applications ................................................................... 55
Subdivision C--Performance of functions
55
85 Performance
of
functions generally ................................................. 55
86
Powers of Tribunal to perform functions ......................................... 56
87 Conferences
.....................................................................................
56
88 Hearings
...........................................................................................
57
89
Offences in relation to attendance before Tribunal .......................... 57
90 Confidential
evidence
......................................................................
58
Subdivision D--Representation by lawyers and paid agents
59
91 Representation
by
lawyers and paid agents ..................................... 59
Subdivision E--Appeals
59
v Road Safety Remuneration Bill 2011 No. , 2011
92 Appeal
of
decisions
..........................................................................
59
93
Staying decisions that are appealed ................................................. 60
94
Process for appealing decisions ....................................................... 60
95
Referring questions of law to the Federal Court .............................. 61
Subdivision F--Organisation of Tribunal
62
96 Constitution
of
Full Bench ............................................................... 62
Division 3--Members of Tribunal
63
Subdivision A--Appointment of members of Tribunal
63
97 Appointment
....................................................................................
63
98
Basis of appointment of industry members ...................................... 63
Subdivision B--Terms and conditions of members of Tribunal
63
99 Outside
employment
of industry members ...................................... 63
100 Remuneration
...................................................................................
63
101
Leave of absence .............................................................................. 64
102 Disclosure
of
interests ...................................................................... 64
103
Termination of appointment on grounds of misbehaviour or
incapacity ......................................................................................... 65
104
Suspension on grounds of misbehaviour or incapacity .................... 65
105
Termination of appointment for bankruptcy, etc. ............................ 66
106
Termination of appointment for outside employment ..................... 66
107
Automatic cessation of appointment for loss of qualification .......... 67
108 Resignation
......................................................................................
67
109
Other terms and conditions of members .......................................... 67
110 Acting
appointments
........................................................................
67
Subdivision C--Miscellaneous matters relating to members of
Tribunal
68
111
Disclosure of information by Tribunal ............................................. 68
Division 4--General Manager and consultants
69
112
Role of General Manager of Fair Work Australia ........................... 69
Division 5--Miscellaneous matters relating to Tribunal
70
113 Procedural
rules
...............................................................................
70
114
Regulations dealing with Tribunal matters ...................................... 70
115 Costs
................................................................................................
71
116 Annual
report
...................................................................................
71
117
President must provide certain information etc. to the
Minister and Fair Work Ombudsman .............................................. 71
Part 7--Miscellaneous
73
118
This Act is a workplace law ............................................................. 73
119
Employer and hirer obligations in relation to records ...................... 73
Road Safety Remuneration Bill 2011 No. , 2011 vi
120
Review of this Act ........................................................................... 73
121 Regulations
......................................................................................
74
Road Safety Remuneration Bill 2011 No. , 2011 1
A Bill for an Act to make provision in relation to
1
remuneration-related matters to improve safety in
2
the road transport industry, and for related
3
purposes
4
The Parliament of Australia enacts:
5
Part 1--Preliminary
6
Division 1--General
7
1 Short title
8
This Act may be cited as the Road Safety Remuneration Act 2011.
9
Part 1 Preliminary
Division 1 General
Section 2
2 Road Safety Remuneration Bill 2011 No. , 2011
2 Commencement
1
This Act commences on 1 July 2012.
2
3 Object
3
The object of this Act is to promote safety and fairness in the road
4
transport industry by doing the following:
5
(a) ensuring that road transport drivers do not have
6
remuneration-related incentives to work in an unsafe manner;
7
(b) removing remuneration-related incentives, pressures and
8
practices that contribute to unsafe work practices;
9
(c) ensuring that road transport drivers are paid for their work,
10
including loading or unloading their vehicles or waiting for
11
someone else to load or unload their vehicles;
12
(d) developing and applying reasonable and enforceable
13
standards throughout the road transport industry supply chain
14
to ensure the safety of road transport drivers;
15
(e) ensuring that hirers of road transport drivers and participants
16
in the supply chain take responsibility for implementing and
17
maintaining those standards;
18
(f) facilitating access to dispute resolution procedures relating to
19
remuneration and related conditions for road transport
20
drivers.
21
22
Preliminary Part 1
Definitions Division 2
Section 4
Road Safety Remuneration Bill 2011 No. , 2011 3
Division 2--Definitions
1
4 Definitions
2
In this Act:
3
applicable services: see subsection 33(2).
4
arbitration order: see subsection 44(2).
5
civil remedy provision: see section 46.
6
Commonwealth authority means:
7
(a) a body corporate established for a public purpose by or under
8
a law of the Commonwealth; or
9
(b) a body corporate:
10
(i) incorporated under a law of the Commonwealth or a
11
State or Territory; and
12
(ii) in which the Commonwealth has a controlling interest.
13
compellable person means any of the following:
14
(a) a road transport driver;
15
(b) the employer or hirer of a road transport driver;
16
(c) a participant in the supply chain in relation to a road transport
17
driver, if the driver is involved in a matter the Tribunal is
18
dealing with.
19
compliance notice: see subsection 76(2).
20
constitutional corporation means a corporation to which
21
paragraph 51(xx) of the Constitution applies.
22
constitutional trade or commerce means trade or commerce:
23
(a) between Australia and a place outside Australia; or
24
(b) among the States; or
25
(c) between a State and a Territory; or
26
(d) between 2 Territories; or
27
(e) within a Territory.
28
controlling interest: see subsection 7(4).
29
Part 1 Preliminary
Division 2 Definitions
Section 4
4 Road Safety Remuneration Bill 2011 No. , 2011
dual FWA member means a member of the Tribunal appointed
1
under paragraph 79(2)(a) or (b).
2
Note:
See subsections 97(2) and (3), which require that members appointed
3
under paragraphs 79(2)(a) or (b) must also be members of Fair Work
4
Australia.
5
eligible State or Territory court means an eligible State or
6
Territory court within the meaning of the Fair Work Act 2009.
7
enforceable instrument means any of the following:
8
(a) a road safety remuneration order;
9
(b) a safe remuneration approval;
10
(c) an arbitration order.
11
enterprise agreement: see subsection 12(2).
12
Fair Work Australia means the body established by section 575 of
13
the Fair Work Act 2009.
14
Fair Work Ombudsman means the Fair Work Ombudsman under
15
the Fair Work Act 2009.
16
Federal Court means the Federal Court of Australia.
17
Full Bench means a Full Bench of the Tribunal constituted under
18
section 96.
19
FWA order: see subsection 12(2).
20
General Manager means the General Manager referred to in
21
section 112.
22
hirer: see section 8.
23
immediate family: see subsection 7(4).
24
industrial association means an industrial association within the
25
meaning of the Fair Work Act 2009.
26
industry member means a member of the Tribunal appointed under
27
paragraph 79(2)(c).
28
inspector means a Fair Work Inspector under the Fair Work Act
29
2009.
30
Preliminary Part 1
Definitions Division 2
Section 4
Road Safety Remuneration Bill 2011 No. , 2011 5
member of the Tribunal means a member of the Tribunal
1
appointed under section 79, and includes the President.
2
modern award means a modern award under the Fair Work Act
3
2009.
4
organisation means an organisation within the meaning of the Fair
5
Work Act 2009.
6
participant in the supply chain: see section 9.
7
participating driver: see subsection 33(3).
8
participating hirer: see subsection 33(2).
9
pecuniary penalty order means an order made under subsection
10
50(1).
11
President means the President of the Tribunal.
12
procedural rules means the procedural rules of the Tribunal made
13
under section 113.
14
registered employee association means a registered employee
15
association under the Fair Work Act 2009.
16
related conditions include matters of a kind referred to in
17
subsection 27(2).
18
related individual: see subsection 7(3).
19
remuneration includes a method for determining remuneration.
20
road safety remuneration order means a road safety remuneration
21
order made under Part 2.
22
road transport collective agreement: see subsection 33(2).
23
road transport contract: see section 8.
24
road transport driver: see section 5.
25
road transport industry means any of the following:
26
Part 1 Preliminary
Division 2 Definitions
Section 5
6 Road Safety Remuneration Bill 2011 No. , 2011
(a) the road transport and distribution industry within the
1
meaning of the Road Transport and Distribution Award 2010
2
as in force on 1 July 2012;
3
(b) long distance operations in the private transport industry
4
within the meaning of the Road Transport (Long Distance
5
Operations) Award 2010 as in force on 1 July 2012;
6
(c) the cash in transit industry within the meaning of the
7
Transport (Cash in Transit) Award 2010 as in force on 1 July
8
2012;
9
(d) the waste management industry within the meaning of the
10
Waste Management Award 2010 as in force on 1 July 2012;
11
(e) the meaning prescribed by the regulations by reference to a
12
modern award specified in the regulations.
13
road transport service means a service provided in the road
14
transport industry.
15
safe remuneration approval means a safe remuneration approval
16
granted under Part 3.
17
Territory authority means:
18
(a) a body corporate established for a public purpose by or under
19
a law of a Territory; or
20
(b) a body corporate:
21
(i) incorporated under a law of the Commonwealth or a
22
State or Territory; and
23
(ii) in which a Territory has a controlling interest.
24
transitional instrument: see subsection 12(2).
25
Tribunal means the Road Safety Remuneration Tribunal
26
established by section 79.
27
5 Meaning of road transport driver--general
28
A person is a road transport driver if:
29
(a) the person is an individual to whom section 6 applies (but see
30
subsection 7(2)); or
31
(b) the person is a corporation to which section 7 applies.
32
Preliminary Part 1
Definitions Division 2
Section 6
Road Safety Remuneration Bill 2011 No. , 2011 7
6 Meaning of road transport driver--individual
1
(1) This section applies to an individual (for the purposes of paragraph
2
5(a)) if:
3
(a) the individual engages in the road transport industry by
4
driving a vehicle to transport things by road; and
5
(b) the individual does so:
6
(i) as an employee of a constitutional corporation, the
7
Commonwealth, a Commonwealth authority, a Territory
8
or a Territory authority; or
9
(ii) under a road transport contract the other party to which
10
is a constitutional corporation, the Commonwealth, a
11
Commonwealth authority, a Territory or a Territory
12
authority; or
13
(iii) under a contract entered into in a Territory; or
14
(iv) under a contract at least one of the parties to which is an
15
individual who is resident in, or a body corporate that
16
has its principal place of business in, a Territory; or
17
(v) for the purposes of a business undertaking of a
18
constitutional corporation; or
19
(vi) for the purposes of the Commonwealth, a
20
Commonwealth authority, a Territory or a Territory
21
authority; or
22
(vii) in the course of or in relation to constitutional trade or
23
commerce.
24
(2) Without limiting its effect apart from this subsection,
25
subparagraph (1)(b)(ii) also has the effect it would have if the
26
reference to a constitutional corporation were, by express
27
provision, confined to a corporation that has entered into the
28
contract for the purposes of the business of that corporation.
29
7 Meaning of road transport driver--corporation
30
Road transport driver--corporation
31
(1) This section applies to a corporation (for the purposes of paragraph
32
5(b)) if:
33
Part 1 Preliminary
Division 2 Definitions
Section 7
8 Road Safety Remuneration Bill 2011 No. , 2011
(a) the corporation engages in the road transport industry by
1
transporting things by road using one or more vehicles
2
supplied by the corporation or a related individual; and
3
(b) the vehicle or each vehicle is mainly driven by a related
4
individual; and
5
(c) the related individual's principal occupation is driving the
6
vehicle or vehicles; and
7
(d) the corporation is a constitutional corporation.
8
Corporation, not individual, is road transport driver if both could
9
apply
10
(2) If a corporation is a road transport driver, then despite paragraph
11
5(1)(a), any individual referred to in subsection (1) of this section
12
as a related individual who drives one or more of the corporation's
13
vehicles is taken not to be a road transport driver.
14
Related individual
15
(3) Each of the following individuals is a related individual of a
16
corporation:
17
(a) a director of the corporation;
18
(b) a member of the immediate family of a director of the
19
corporation;
20
(c) an individual who, together with members of the individual's
21
immediate family, has a controlling interest in the
22
corporation;
23
(d) a member of the immediate family of an individual who,
24
together with members of the individual's immediate family,
25
has a controlling interest in the corporation.
26
Controlling interest and immediate family
27
(4) In this Act:
28
controlling interest in a corporation means an interest in the
29
corporation that enables the person holding the interest to:
30
(a) control the composition of the board of directors of the
31
corporation; or
32
Preliminary Part 1
Definitions Division 2
Section 8
Road Safety Remuneration Bill 2011 No. , 2011 9
(b) cast or control the casting of more than one-half of the
1
maximum number of votes that might be cast at a general
2
meeting of the corporation; or
3
(c) control more than one-half of the issued share capital of the
4
corporation (excluding any part of that issued share capital
5
that carries no right to participate beyond a specified amount
6
in a distribution of either profits or capital).
7
immediate family of an individual has the same meaning as
8
immediate family has for a national system employee under the
9
Fair Work Act 2009.
10
8 Meaning of hirer of road transport driver and road transport
11
contract
12
(1)
A
road transport contract is a contract for services under which a
13
road transport driver who is an independent contractor is to provide
14
road transport services to the other party to the contract (the hirer).
15
(2) A reference to a road transport contract includes a reference to a
16
condition or collateral arrangement that relates to the contract.
17
(3) A road transport contract may be in writing, oral, or partly in
18
writing and partly oral.
19
9 Meaning of participant in the supply chain
20
Meaning of participant in the supply chain--general
21
(1) A person is a participant in the supply chain in relation to a road
22
transport driver if subsection (2), (4) or (6) applies to the person.
23
Consignor or consignee
24
(2) This subsection applies to a person if:
25
(a) the person is the consignor or consignee of a thing in respect
26
of which a road transport driver is providing road transport
27
services; and
28
(b) any of the following apply:
29
Part 1 Preliminary
Division 2 Definitions
Section 9
10 Road Safety Remuneration Bill 2011 No. , 2011
(i) the person is a constitutional corporation, the
1
Commonwealth, a Commonwealth authority, a Territory
2
or a Territory authority;
3
(ii) the person is an individual who is resident in, or a body
4
corporate that has its principal place of business in, a
5
Territory;
6
(iii) the person is the consignor or consignee for the
7
purposes of a business undertaking of a constitutional
8
corporation;
9
(iv) the person is the consignor or consignee for the
10
purposes of the Commonwealth, a Commonwealth
11
authority, a Territory or a Territory authority;
12
(v) the person is the consignor or consignee in the course of
13
or in relation to constitutional trade or commerce.
14
(3) Without limiting its effect apart from this subsection,
15
subparagraph (2)(b)(i) also has the effect it would have if the
16
reference to a constitutional corporation were, by express
17
provision, confined to a corporation that was the consignor or
18
consignee of a thing for the purposes of the business of that
19
corporation.
20
Intermediary
21
(4) This subsection applies to a person if:
22
(a) the person is party to a contract for the carriage of goods, and
23
that contract concerns the transport of a thing in respect of
24
which a road transport driver is providing road transport
25
services; and
26
(b) any of the following apply:
27
(i) the person is a constitutional corporation, the
28
Commonwealth, a Commonwealth authority, a Territory
29
or a Territory authority;
30
(ii) the contract was entered into in a Territory;
31
(iii) at least one of the parties to the contract is an individual
32
who is resident in, or a body corporate that has its
33
principal place of business in, a Territory;
34
(iv) the contract is for the purposes of a business
35
undertaking of a constitutional corporation;
36
Preliminary Part 1
Definitions Division 2
Section 9
Road Safety Remuneration Bill 2011 No. , 2011 11
(v) the contract is for the purposes of the Commonwealth, a
1
Commonwealth authority, a Territory or a Territory
2
authority;
3
(vi) the contract was made in the course of or in relation to
4
constitutional trade or commerce.
5
(5) Without limiting its effect apart from this subsection,
6
subparagraph (4)(b)(i) also has the effect it would have if the
7
reference to a constitutional corporation were, by express
8
provision, confined to a corporation that has entered into the
9
contract for the purposes of the business of that corporation.
10
Operator of premises for loading and unloading
11
(6) This subsection applies to a person if the person is a constitutional
12
corporation that operates premises:
13
(a) that are used by a road transport driver to load or unload a
14
vehicle; and
15
(b) at which an average of at least 5 vehicles are loaded or
16
unloaded on each day (an active day) the premises are used to
17
load or unload vehicles.
18
(7) In determining whether an average of at least 5 vehicles are loaded
19
or unloaded on each active day for the purposes of
20
paragraph (6)(b):
21
(a) have regard to each active day in the previous 12 months; or
22
(b) if the corporation first used the premises to load or unload
23
vehicles less than 12 months ago--have regard to each active
24
day in the period since the premises were first used to load or
25
unload vehicles.
26
(8) In subsection (6), a reference to premises includes a reference to a
27
part of premises.
28
29
Part 1 Preliminary
Division 3 Application of this Act
Section 10
12 Road Safety Remuneration Bill 2011 No. , 2011
Division 3--Application of this Act
1
Subdivision A--Interaction with other laws
2
10 Concurrent operation generally intended
3
(1) This Act is not intended to exclude or limit the operation of any
4
other law of the Commonwealth or any law of a State or Territory
5
that is capable of operating concurrently with this Act.
6
(2) In particular, this Act is not intended to exclude or limit the
7
operation of:
8
(a)
the
Fair Work Act 2009; or
9
(b)
the
Independent Contractors Act 2006 (but see section 14); or
10
(c) Chapter 6 of the Industrial Relations Act 1996 of New South
11
Wales (and any other provision of that Act to the extent that
12
it relates to, or has effect for the purposes of, a provision of
13
Chapter 6); or
14
(d)
the
Owner Drivers and Forestry Contractors Act 2005 of
15
Victoria; or
16
(e)
the
Owner-Drivers (Contracts and Disputes) Act 2007 of
17
Western Australia; or
18
(f) a law of a State or Territory that is specified in regulations
19
made for the purposes of this paragraph, to the extent that the
20
law is so specified.
21
(3) However, this section is subject to the other provisions of this
22
Subdivision.
23
11 Interaction of enforceable instruments with State and Territory
24
laws
25
An enforceable instrument prevails over a law of a State or
26
Territory, to the extent of any inconsistency.
27
Preliminary Part 1
Application of this Act Division 3
Section 12
Road Safety Remuneration Bill 2011 No. , 2011 13
12 Interaction of enforceable instruments with other
1
Commonwealth instruments (employees)
2
(1) A term of a modern award, an enterprise agreement, an FWA order
3
or a transitional instrument has no effect in relation to a road
4
transport driver to whom an enforceable instrument applies to the
5
extent that the award, agreement, order or instrument is less
6
beneficial to the driver than a term of the enforceable instrument.
7
(2) In this Act:
8
enterprise agreement means an enterprise agreement made under
9
the Fair Work Act 2009.
10
FWA order means an order of Fair Work Australia made under the
11
Fair Work Act 2009.
12
transitional instrument means a transitional instrument within the
13
meaning of the Fair Work (Transitional Provisions and
14
Consequential Amendments) Act 2009.
15
13 Interaction of enforceable instruments with road transport
16
contracts (independent contractors)
17
A road transport driver who is an independent contractor is entitled
18
to be provided, by the required provider under an enforceable
19
instrument that applies to the driver, with at least the remuneration
20
and related conditions in the enforceable instrument, regardless of
21
the terms of any road transport contract to which the driver is
22
party.
23
14 Interaction with the Independent Contractors Act 2006
24
For the purposes of paragraph 15(1)(d) of the Independent
25
Contractors Act 2006, an enforceable instrument that applies to a
26
road transport driver whose services contract is being reviewed
27
under that Act is a matter the Court under that Act might (but is not
28
required to) think relevant.
29
Part 1 Preliminary
Division 3 Application of this Act
Section 15
14 Road Safety Remuneration Bill 2011 No. , 2011
Subdivision B--Miscellaneous
1
15 Act binds Crown
2
(1) This Act binds the Crown in each of its capacities.
3
(2) However, this Act does not make the Crown liable to be prosecuted
4
for an offence.
5
(3) To avoid doubt, subsection (2) does not prevent the Crown from
6
being liable to pay a pecuniary penalty under section 50.
7
16 Act not to apply so as to exceed Commonwealth power
8
(1) Unless the contrary intention appears, if a provision of this Act:
9
(a) would, apart from this section, have an application (an
10
invalid application) in relation to:
11
(i) one or more particular persons, things, matters, places,
12
circumstances or cases; or
13
(ii) one or more classes (however defined or determined) of
14
persons, things, matters, places, circumstances or cases;
15
because of which the provision exceeds the Commonwealth's
16
legislative power; and
17
(b) also has at least one application (a valid application) in
18
relation to:
19
(i) one or more particular persons, things, matters, places,
20
circumstances or cases; or
21
(ii) one or more classes (however defined or determined) of
22
persons, things, matters, places, circumstances or cases;
23
that, if it were the provision's only application, would be
24
within the Commonwealth's legislative power;
25
it is the Parliament's intention that the provision is not to have the
26
invalid application, but is to have every valid application.
27
(2) Despite subsection (1), the provision is not to have a particular
28
valid application if:
29
(a) apart from this section, it is clear, taking into account the
30
provision's context and the purpose or object underlying this
31
Act, that the provision was intended to have that valid
32
Preliminary Part 1
Application of this Act Division 3
Section 17
Road Safety Remuneration Bill 2011 No. , 2011 15
application only if every invalid application, or a particular
1
invalid application, of the provision had also been within the
2
Commonwealth's legislative power; or
3
(b) the provision's operation in relation to that valid application
4
would be different in a substantial respect from what would
5
have been its operation in relation to that valid application if
6
every invalid application of the provision had been within the
7
Commonwealth's legislative power.
8
(3) Subsection (2) does not limit the cases where a contrary intention
9
may be taken to appear for the purposes of subsection (1).
10
(4) This section applies to a provision of this Act, whether enacted
11
before, at or after the commencement of this section.
12
17 Acquisition of property
13
This Act, or any instrument made under this Act, does not apply to
14
the extent that the operation of this Act or the instrument would
15
result in an acquisition of property (within the meaning of
16
paragraph 51(xxxi) of the Constitution) from a person otherwise
17
than on just terms (within the meaning of that paragraph).
18
19
Part 2 Road safety remuneration orders
Division 1 Preparation of annual work program
Section 18
16 Road Safety Remuneration Bill 2011 No. , 2011
Part 2--Road safety remuneration orders
1
Division 1--Preparation of annual work program
2
18 Tribunal must prepare and publish a work program each year
3
(1) Before the end of each year of its operation, the Tribunal must
4
prepare a work program for the next year.
5
(2) The work program must identify the matters the Tribunal proposes
6
to inquire into in the next year of its operation, with a view to
7
making a road safety remuneration order in relation to any or all of
8
those matters. The matters identified may be any or all of the
9
following:
10
(a) a sector or sectors of the road transport industry;
11
(b) issues for the road transport industry or a sector of the
12
industry;
13
(c) practices affecting the road transport industry or a sector of
14
the industry.
15
(3) In preparing its work program for a year, the Tribunal must consult
16
with industry.
17
(4) The Tribunal must publish its work program on the Tribunal's
18
website and by any other means the Tribunal considers appropriate.
19
(5) A work program prepared under subsection (1) is not a legislative
20
instrument.
21
22
Road safety remuneration orders Part 2
Power to make a road safety remuneration order Division 2
Section 19
Road Safety Remuneration Bill 2011 No. , 2011 17
Division 2--Power to make a road safety remuneration
1
order
2
19 Power to make a road safety remuneration order
3
(1) The Tribunal may make a road safety remuneration order under
4
this Part consistent with the object of this Act.
5
Note:
See section 27 for what the order may deal with.
6
Tribunal may make order on its own initiative
7
(2) The Tribunal may make the order on its own initiative if the order
8
is in relation to a matter identified in its work program.
9
Tribunal may make order on application
10
(3) The Tribunal may make the order on application by any of the
11
following whether or not the order is in relation to a matter
12
identified in its work program:
13
(a) a road transport driver;
14
(b) an employer or hirer of a road transport driver;
15
(c) a participant in the supply chain in relation to a road transport
16
driver;
17
(d) a registered employee association that is entitled to represent
18
the interests of a road transport driver to whom the order will
19
apply;
20
(e) an industrial association that is entitled to represent the
21
interests of a road transport driver, employer or hirer of a
22
road transport driver or participant in the supply chain in
23
relation to a road transport driver, if:
24
(i) the person or each person whose interests the industrial
25
association claims to be representing by making the
26
application has consented to the making of the
27
application; and
28
(ii) the Tribunal has permitted the application to be made.
29
(4) An application that relates to a matter not identified in the
30
Tribunal's work program must relate to a matter that is capable of
31
Part 2 Road safety remuneration orders
Division 2 Power to make a road safety remuneration order
Section 20
18 Road Safety Remuneration Bill 2011 No. , 2011
being included in the Tribunal's work program under subsection
1
18(2).
2
Tribunal may refuse to consider application
3
(5) The Tribunal may refuse to consider an application under
4
subsection (3):
5
(a) if the application relates to a matter not identified in the
6
Tribunal's work program--because the Tribunal considers
7
that it is not appropriate to deal with the matter at the time; or
8
(b) for any other reason.
9
(6) The Tribunal must notify the applicant of any refusal by the
10
Tribunal to consider an application.
11
20 Matters the Tribunal must have regard to
12
(1) In deciding whether to make a road safety remuneration order, the
13
Tribunal must have regard to the following matters:
14
(a) the need to apply fair, reasonable and enforceable standards
15
in the road transport industry to ensure the safety and fair
16
treatment of road transport drivers;
17
(b) the likely impact of any order on the viability of businesses in
18
the road transport industry;
19
(c) the special circumstances of areas that are particularly reliant
20
on the road transport industry, such as rural, regional and
21
other isolated areas;
22
(d) the likely impact of any order on the national economy and
23
on the movement of freight across the nation;
24
(e) orders and determinations made by the Minimum Wage
25
Panel of Fair Work Australia in annual wage reviews and the
26
reasons for those orders and determinations;
27
(f) any modern awards relevant to the road transport industry
28
(see subsection (2)) and the reasons for those awards;
29
(g) the need to avoid unnecessary overlap with the Fair Work
30
Act 2009 and any other laws prescribed for the purposes of
31
this paragraph;
32
(h) the need to reduce complexity and for any order to be simple
33
and easy to understand;
34
Road safety remuneration orders Part 2
Power to make a road safety remuneration order Division 2
Section 21
Road Safety Remuneration Bill 2011 No. , 2011 19
(i) the need to minimise the compliance burden on the road
1
transport industry;
2
(j) any other matter prescribed by the regulations for the
3
purposes of this paragraph.
4
(2) For the purposes of paragraph (1)(f), each of the awards referred to
5
in the definition of road transport industry (including an award
6
referred to in regulations made for the purposes of paragraph (e) of
7
the definition) is taken to be relevant to the road transport industry.
8
21 Publication of research
9
(1) The Tribunal must publish any research undertaken or
10
commissioned by the Tribunal for the purposes of determining
11
whether to make a road safety remuneration order or the terms in
12
which any order should be made, so that submissions can be made
13
under section 24 addressing issues covered by the research.
14
(2) The publication must be on the Tribunal's website and by any
15
other means the Tribunal considers appropriate.
16
17
Part 2 Road safety remuneration orders
Division 3 Preparing and consulting on draft road safety remuneration order
Section 22
20 Road Safety Remuneration Bill 2011 No. , 2011
Division 3--Preparing and consulting on draft road safety
1
remuneration order
2
22 Tribunal to prepare and consult on draft order
3
Before making a road safety remuneration order, the Tribunal must
4
prepare and consult on a draft of the order in accordance with this
5
Division.
6
23 Publication of draft order
7
The Tribunal must publish the draft of the order on the Tribunal's
8
website and by any other means the Tribunal considers appropriate.
9
24 Affected persons and bodies to have a reasonable opportunity to
10
make and comment on submissions for draft order
11
(1) The Tribunal must ensure that the following persons have a
12
reasonable opportunity to make written submissions to the Tribunal
13
for its consideration in relation to the draft of the order:
14
(a) all persons and bodies likely to be affected if a road safety
15
remuneration order based on the draft were to be made;
16
(b) any person or body prescribed by the regulations for the
17
purposes of this paragraph.
18
(2) The Tribunal must publish all submissions made to the Tribunal.
19
(3) However, if a submission made by a person or body includes
20
information that is claimed by the person or body to be confidential
21
or commercially sensitive, and the Tribunal is satisfied that the
22
information is confidential or commercially sensitive, the Tribunal:
23
(a) may decide not to publish the information; and
24
(b) may instead publish:
25
(i) a summary of the information which contains sufficient
26
detail to allow a reasonable understanding of the
27
substance of the information (without disclosing
28
anything that is confidential or commercially sensitive);
29
or
30
Road safety remuneration orders Part 2
Preparing and consulting on draft road safety remuneration order Division 3
Section 25
Road Safety Remuneration Bill 2011 No. , 2011 21
(ii) if the Tribunal considers that it is not practicable to
1
prepare a summary that would comply with
2
subparagraph (i)--a statement that confidential or
3
commercially sensitive information in the submission
4
has not been published.
5
(4) The Tribunal must ensure that all persons and bodies likely to be
6
affected if a road safety remuneration order based on the draft were
7
to be made have a reasonable opportunity to make comments to the
8
Tribunal on the material published under subsections (2) and (3),
9
for its consideration.
10
(5) The publishing of material under subsections (2) and (3) must be
11
on the Tribunal's website and by any other means the Tribunal
12
considers appropriate.
13
(6) A reference in this Act (other than in this section) to a submission
14
under this section includes a reference to a summary or statement
15
referred to in paragraph (3)(b).
16
25 Hearings in relation to draft order
17
The Tribunal may, but is not required to, hold a hearing in relation
18
to the draft of the order.
19
Note: See
section
88.
20
26 Finalising draft order
21
(1) The Tribunal may make any changes it thinks appropriate to the
22
draft of the order, before making a road safety remuneration order
23
based on the draft.
24
(2) The Tribunal may decide that no road safety remuneration order is
25
to be made based on the draft. If the Tribunal does so, the Tribunal
26
must publish notice of the decision on its website and by any other
27
means the Tribunal considers appropriate.
28
29
Part 2 Road safety remuneration orders
Division 4 Making road safety remuneration order
Section 27
22 Road Safety Remuneration Bill 2011 No. , 2011
Division 4--Making road safety remuneration order
1
27 Making road safety remuneration order
2
What the order may deal with
3
(1) If the Tribunal decides to make a road safety remuneration order,
4
the Tribunal may make any provision in the order that the Tribunal
5
considers appropriate in relation to remuneration and related
6
conditions for road transport drivers to whom the order applies.
7
(2) Without limiting subsection (1), the Tribunal may make provision
8
in the order in relation to any of the following:
9
(a) conditions about minimum remuneration and other
10
entitlements for road transport drivers who are employees,
11
additional to those set out in any modern award relevant to
12
the road transport industry (see subsection 20(2));
13
(b) conditions about minimum rates of remuneration and
14
conditions of engagement for road transport drivers who are
15
independent contractors;
16
(c) conditions for loading and unloading vehicles, waiting times,
17
working hours, load limits, payment methods and payment
18
periods;
19
(d) ways of reducing or removing remuneration-related
20
incentives, pressures and practices that contribute to unsafe
21
work practices.
22
(3) The order may impose requirements, in relation to a matter for
23
which provision is made, on any or all of the following:
24
(a) an employer or hirer of a road transport driver to whom the
25
order applies;
26
(b) a participant in the supply chain in relation to a road transport
27
driver to whom the order applies.
28
Content of the order
29
(4) The order must specify:
30
(a) the road transport drivers to whom the order applies; and
31
Road safety remuneration orders Part 2
Making road safety remuneration order Division 4
Section 28
Road Safety Remuneration Bill 2011 No. , 2011 23
(b) the persons on whom any requirements in the order are
1
imposed; and
2
(c) a commencement date for the order or a series of
3
commencement dates (see subsection (5)); and
4
(d) an expiry date for the order (which must not be later than 4
5
years after the commencement date).
6
(5) The order may take effect in stages (as provided in the order) if the
7
Tribunal considers that it is not feasible for the order to take effect
8
on a single date.
9
Publication of order
10
(6) The Tribunal must publish the order on the Tribunal's website and
11
by any other means the Tribunal considers appropriate.
12
28 Persons on whom requirements are imposed must not contravene
13
order
14
A person on whom a road safety remuneration order imposes a
15
requirement must not contravene the requirement.
16
Note:
This section is a civil remedy provision (see Division 1 of Part 5).
17
29 Expiry of order
18
A road safety remuneration order ceases to have effect at the end of
19
the expiry date specified in the order.
20
30 Road safety remuneration orders to be made by Full Bench
21
The function of making road safety remuneration orders under this
22
Part is to be performed by a Full Bench of the Tribunal.
23
24
Part 2 Road safety remuneration orders
Division 5 Variation and review of road safety remuneration order
Section 31
24 Road Safety Remuneration Bill 2011 No. , 2011
Division 5--Variation and review of road safety
1
remuneration order
2
31 Review of road safety remuneration order
3
(1) The Tribunal must review a road safety remuneration order at some
4
time in the period of 12 months ending on the expiry date specified
5
in the order.
6
(2) After reviewing the order and before the expiry date, the Tribunal
7
must revoke the order and do one of the following:
8
(a) replace it with a road safety remuneration order in the same
9
terms except for a new expiry date (which must be no more
10
than 4 years after the date the replacement order is made);
11
(b) replace it with a road safety remuneration order in different
12
terms;
13
(c) not replace it.
14
(3) The Tribunal must ensure that the following persons have a
15
reasonable opportunity to make written submissions to the Tribunal
16
for its consideration in relation to action the Tribunal proposes to
17
take under subsection (2):
18
(a) all persons and bodies likely to be affected by the proposed
19
action;
20
(b) any person or body prescribed by the regulations for the
21
purposes of this paragraph.
22
(4) Section 21 applies in relation to research undertaken or
23
commissioned for the purposes of deciding on a proposed action
24
under subsection (2).
25
(5) Subsections 24(2) to (6) apply in relation to submissions made in
26
relation to the proposed action, as if they were submissions made
27
under subsection 24(1).
28
32 Variation of road safety remuneration order
29
(1) At any time before the expiry date specified in a road safety
30
remuneration order, the Tribunal may vary the order:
31
(a) on its own initiative; or
32
Road safety remuneration orders Part 2
Variation and review of road safety remuneration order Division 5
Section 32
Road Safety Remuneration Bill 2011 No. , 2011 25
(b) on application by a person referred to in subsection (2).
1
(2) The Tribunal may vary the order on application by any of the
2
following:
3
(a) an employer or hirer of a road transport driver to whom the
4
order applies;
5
(b) a participant in the supply chain in relation to a driver to
6
whom the order applies;
7
(c) a registered employee association that is entitled to represent
8
the interests of a road transport driver to whom the order
9
applies;
10
(d) an industrial association that is entitled to represent the
11
interests of a road transport driver, employer or hirer of a
12
road transport driver or participant in the supply chain in
13
relation to a road transport driver, if:
14
(i) the person or each person whose interests the industrial
15
association claims to be representing by making the
16
application has consented to the making of the
17
application; and
18
(ii) the Tribunal has permitted the application to be made.
19
(3) In deciding whether to vary the order, the Tribunal must have
20
regard to the matters in section 20.
21
(4) Before varying the order, the Tribunal must prepare and consult on
22
a draft of the variation in accordance with Division 3, as if
23
references in that Division to making an order were references to
24
varying an order.
25
(5) Subsection (4) does not apply if the Tribunal considers that the
26
variation is minor or technical.
27
28
Part 3 Safe remuneration approvals in relation to certain collective agreements
involving independent contractors
Section 33
26 Road Safety Remuneration Bill 2011 No. , 2011
Part 3--Safe remuneration approvals in relation to
1
certain collective agreements involving
2
independent contractors
3
4
33 Power to grant a safe remuneration approval
5
(1) The Tribunal may grant a safe remuneration approval for a road
6
transport collective agreement if the Tribunal is satisfied of the
7
matters in section 34.
8
(2)
A
road transport collective agreement is an agreement under
9
which:
10
(a) road transport drivers who are independent contractors and
11
with whom a hirer or potential hirer of the drivers proposes to
12
contract for the provision of road transport services (the
13
applicable services); and
14
(b) the hirer or potential hirer of the drivers (the participating
15
hirer);
16
agree about remuneration and related conditions for applicable
17
services provided to the participating hirer.
18
(3) The agreement must specify the road transport drivers with whom
19
the participating hirer proposes to contract and the basis on which
20
they became part of that group. The drivers specified are the
21
participating drivers.
22
Note:
The effect of a road transport collective agreement is not limited to
23
participating drivers if a safe remuneration approval is granted for it:
24
see section 36.
25
34 Matters about which the Tribunal must be satisfied
26
The Tribunal must not grant a safe remuneration approval for a
27
road transport collective agreement unless the Tribunal is satisfied
28
that:
29
(a) a road safety remuneration order that applies to the
30
participating drivers is in effect; and
31
Safe remuneration approvals in relation to certain collective agreements involving
independent contractors Part 3
Section 35
Road Safety Remuneration Bill 2011 No. , 2011 27
(b) a majority of the participating drivers would be better off
1
overall when providing applicable services if the agreement
2
applied than if the order applied; and
3
(c) a majority of the participating drivers have approved the
4
agreement; and
5
(d) if the agreement is to last for more than one year--the
6
agreement contains an appropriate method for adjusting
7
remuneration during the period of the agreement.
8
35 Grant of safe remuneration approval
9
(1) If the Tribunal decides to grant a safe remuneration approval for a
10
road transport collective agreement, the Tribunal must state in
11
writing that the Tribunal is satisfied that the remuneration and any
12
related conditions in the agreement are adequate to ensure that road
13
transport drivers do not have remuneration-related incentives to
14
work in an unsafe manner.
15
(2) In addition to the statement in subsection (1), the approval must:
16
(a) specify the participating hirer; and
17
(b) specify the remuneration (including any method for adjusting
18
remuneration during the period of the agreement) and any
19
related conditions in the agreement; and
20
(c) specify the applicable services; and
21
(d) state that the participating hirer is required to provide at least
22
the specified remuneration and related conditions to any road
23
transport driver providing applicable services to the hirer;
24
and
25
(e) specify an expiry date for the approval (which must not be
26
more than 4 years from the date of the statement).
27
(3) The Tribunal must:
28
(a) give a copy of the approval to the participating hirer and each
29
of the participating drivers; and
30
(b) publish the approval on the Tribunal's website and by any
31
other means the Tribunal considers appropriate.
32
Part 3 Safe remuneration approvals in relation to certain collective agreements
involving independent contractors
Section 36
28 Road Safety Remuneration Bill 2011 No. , 2011
36 Effect of safe remuneration approval
1
(1) The participating hirer specified in a safe remuneration approval
2
must not provide remuneration or related conditions to a road
3
transport driver providing applicable services to the hirer that are
4
less beneficial than the remuneration or related conditions specified
5
in the approval.
6
Note:
This subsection is a civil remedy provision (see Division 1 of Part 5).
7
(2) Subsection (1) applies in relation to a road transport driver
8
regardless of whether the driver was a participating driver in
9
relation to the agreement to which the approval relates.
10
37 Relationship with road safety remuneration orders
11
(1) A road safety remuneration order that is in effect at the time the
12
Tribunal grants a safe remuneration approval has no effect in
13
relation to a road transport driver who provides applicable services
14
to the participating hirer.
15
(2) If a road safety remuneration order takes effect after a safe
16
remuneration approval is granted, the approval ceases to have
17
effect in relation to a road transport driver who provides applicable
18
services to the participating hirer, to the extent that the
19
remuneration or related conditions specified in the approval are
20
less beneficial to the driver than a term of the order that applies to
21
the driver.
22
38 Expiry of safe remuneration approval
23
A safe remuneration approval ceases to have effect at the end of
24
the expiry date specified in the approval.
25
39 Safe remuneration approvals to be granted by dual FWA
26
member or Full Bench
27
The function of granting safe remuneration approvals under this
28
Part is to be performed by, at the President's discretion:
29
(a) a dual FWA member; or
30
(b) a Full Bench of the Tribunal.
31
Disputes about remuneration and related conditions Part 4
Section 40
Road Safety Remuneration Bill 2011 No. , 2011 29
Part 4--Disputes about remuneration and related
1
conditions
2
3
40 Tribunal may deal with disputes about remuneration and related
4
conditions
5
(1) The Tribunal may deal with a dispute if:
6
(a) section 41, 42 or 43 applies to the dispute; and
7
(b) an application is made by:
8
(i) a party to the dispute; or
9
(ii) an industrial association that is entitled to represent the
10
interests of a party to the dispute, if the party has
11
consented to the making of an application by the
12
association.
13
(2) The Tribunal may choose to deal with 2 or more disputes together
14
(regardless of which of sections 41, 42 and 43 applies to each
15
dispute).
16
41 Disputes involving employee road transport drivers
17
Dispute between employee and employer
18
(1) The Tribunal may deal with a dispute between a road transport
19
driver who is an employee and the employer of the driver if the
20
dispute is about remuneration or related conditions provided by the
21
employer that could affect whether the driver works in an unsafe
22
manner. The parties to the dispute are the driver and the employer.
23
Note:
Disputes involving drivers who are employees may also be dealt with
24
under the Fair Work Act 2009 (see section 595 of that Act).
25
Dispute between employee and former employer
26
(2) The Tribunal may deal with a dispute between a road transport
27
driver and a former employer of the driver if:
28
(a) the dispute is about the former employer dismissing the
29
driver; and
30
Part 4 Disputes about remuneration and related conditions
Section 42
30 Road Safety Remuneration Bill 2011 No. , 2011
(b) the driver contends that the dismissal was mainly because the
1
driver refused to work in an unsafe manner.
2
The parties to the dispute are the driver and the former employer.
3
Interaction with Fair Work procedures
4
(3) A road transport driver who has applied to the Tribunal under
5
section 40 in relation to a matter must not make an application or
6
complaint under the Fair Work Act 2009 in relation to the same
7
matter, unless the application to the Tribunal has been withdrawn
8
or has failed for want of jurisdiction.
9
(4) A road transport driver who has made an application or complaint
10
in relation to a matter under the Fair Work Act 2009 must not
11
apply to the Tribunal under section 40 in relation to the same
12
matter, unless the application or complaint under the Fair Work
13
Act 2009 has been withdrawn or has failed for want of jurisdiction.
14
42 Disputes involving independent contractor road transport drivers
15
Dispute between independent contractor and hirer
16
(1) The Tribunal may deal with a dispute between a road transport
17
driver who is an independent contractor and the hirer of the driver
18
if the dispute is about remuneration or related conditions in a road
19
transport contract between the driver and hirer that could affect
20
whether the driver works in an unsafe manner. The parties to the
21
dispute are the driver and the hirer.
22
Dispute between independent contractor and former hirer
23
(2) The Tribunal may deal with a dispute between a road transport
24
driver who is an independent contractor and a former hirer of the
25
driver if:
26
(a) the dispute is about the former hirer terminating the road
27
transport contract; and
28
(b) the driver contends that the termination was mainly because
29
the driver refused to work in an unsafe manner.
30
The parties to the dispute are the driver and the former hirer.
31
Disputes about remuneration and related conditions Part 4
Section 43
Road Safety Remuneration Bill 2011 No. , 2011 31
43 Disputes involving participants in the supply chain
1
The Tribunal may deal with a dispute that is about practices of one
2
or more participants in the supply chain in relation to a road
3
transport driver if:
4
(a) the employer or hirer of the driver contends that the practices
5
affect the employer's or hirer's ability to provide
6
remuneration or related conditions to the driver that do not
7
provide incentives to work in an unsafe manner; and
8
(b) the driver and employer or hirer have applied to the Tribunal
9
under section 40.
10
The parties to the dispute are the driver, the employer or hirer and
11
the participant or participants in the supply chain whose practices
12
the dispute relates to.
13
44 How Tribunal may deal with disputes
14
(1) If the Tribunal decides to deal with the dispute, it may deal with it
15
as the Tribunal considers appropriate, including in the following
16
ways:
17
(a) by mediation or conciliation;
18
(b) by making a recommendation or expressing an opinion;
19
(c) if the parties to the dispute agree--by arbitrating (however
20
described) the dispute.
21
(2) If the Tribunal arbitrates the dispute, the Tribunal may make any
22
order (an arbitration order) that the Tribunal considers appropriate
23
to ensure that the driver does not have remuneration-related
24
incentives to work in an unsafe manner.
25
(3) An arbitration order may impose the requirements specified in the
26
order on any or all of the following:
27
(a) a party to the dispute;
28
(b) if there is a participant in the supply chain in relation to the
29
road transport driver who is not a party to the dispute but
30
who has agreed to be bound by the outcome of the
31
arbitration--that participant.
32
(4) A person on whom an arbitration order imposes a requirement
33
must not contravene the requirement.
34
Part 4 Disputes about remuneration and related conditions
Section 45
32 Road Safety Remuneration Bill 2011 No. , 2011
Note:
This subsection is a civil remedy provision (see Division 1 of Part 5).
1
45 Disputes about safe remuneration to be dealt with by dual FWA
2
member
3
The function of dealing with disputes under this Part is to be
4
performed by a dual FWA member.
5
6
Compliance Part 5
Civil remedy provisions and orders Division 1
Section 46
Road Safety Remuneration Bill 2011 No. , 2011 33
Part 5--Compliance
1
Division 1--Civil remedy provisions and orders
2
Subdivision A--Applications for orders
3
46 Civil remedy provisions
4
(1) A provision referred to in column 1 of an item in the table in
5
subsection (2) is a civil remedy provision.
6
(2) For each civil remedy provision, the persons referred to in column
7
2 of the item may, subject to sections 47 and 48 and Subdivision B
8
of this Division, apply to:
9
(a) the Federal Court; or
10
(b) the Federal Magistrates Court; or
11
(c) an eligible State or Territory court;
12
for orders in relation to a contravention or proposed contravention
13
of the provision, including the maximum penalty referred to in
14
column 3 of the item.
15
Note:
See also subsection 47(4).
16
17
Civil remedy provisions
Item Column
1
Civil remedy
provision
Column 2
Persons
Column 3
Maximum
penalty
1 Section
28 (a) a driver to whom the order
applies;
(b) a person on whom the order
imposes a requirement, if the
person is affected by the
contravention or will be affected
by the proposed contravention;
(c) a registered employee association;
(d) an industrial association;
(e) an inspector
60 penalty units
Part 5 Compliance
Division 1 Civil remedy provisions and orders
Section 47
34 Road Safety Remuneration Bill 2011 No. , 2011
Civil remedy provisions
Item Column
1
Civil remedy
provision
Column 2
Persons
Column 3
Maximum
penalty
2 Subsection
36(1)
(a) a road transport driver who is
providing applicable services to
the participating hirer;
(b) the participating hirer;
(c) a registered employee association;
(d) an industrial association;
(e) an inspector
60 penalty units
3 Subsection
44(4)
(a) a party to the dispute to which the
arbitration order relates, if the
person is affected by the
contravention or will be affected
by the proposed contravention;
(b) a registered employee association;
(c) an industrial association;
(d) an inspector
60 penalty units
4 Subsection
76(6)
an inspector
30 penalty units
5 Subsection
115(3)
(a) the person to whom the costs are
payable;
(b) a registered employee association;
(c) an industrial association
60 penalty units
6 Subsection
119(1)
(a) a road transport driver;
(b) an inspector
30 penalty units
7 Subsection
119(2)
(a) a road transport driver;
(b) an inspector
30 penalty units
1
47 Limitations on who may apply for orders etc.
2
(1) The following persons may apply for an order under this Division,
3
in relation to a contravention or a proposed contravention of a civil
4
remedy provision, only if the person is affected by the
5
contravention, or will be affected by the proposed contravention:
6
Compliance Part 5
Civil remedy provisions and orders Division 1
Section 48
Road Safety Remuneration Bill 2011 No. , 2011 35
(a) a road transport driver;
1
(b) an employer of a road transport driver;
2
(c) a hirer of a road transport driver;
3
(d) a participant in the supply chain in relation to a road transport
4
driver.
5
(2) A registered employee association may apply for an order under
6
this Division, in relation to a contravention or a proposed
7
contravention of a civil remedy provision, only if:
8
(a) the contravention affects a person or the proposed
9
contravention will affect a person; and
10
(b) the association is entitled to represent the interests of the
11
person.
12
(3) An industrial association may apply for an order under this
13
Division, in relation to a contravention or proposed contravention
14
of a civil remedy provision, only if:
15
(a) the contravention affects a person or the proposed
16
contravention will affect a person; and
17
(b) the association is entitled to represent the interests of the
18
person; and
19
(c) the person has consented to the association making the
20
application.
21
(4) The regulations may prescribe a person for the purposes of an item
22
in column 2 of the table in subsection 46(2). The regulations may
23
provide that the person is prescribed only in relation to
24
circumstances specified in the regulations.
25
48 Time limit on applications
26
A person may apply for an order under this Division in relation to a
27
contravention of a civil remedy provision only if the application is
28
made within 6 years after the day on which the contravention
29
occurred.
30
Note:
For time limits on orders relating to underpayments, see subsection
31
49(4).
32
Part 5 Compliance
Division 1 Civil remedy provisions and orders
Section 49
36 Road Safety Remuneration Bill 2011 No. , 2011
Subdivision B--Orders
1
49 Orders that can be made
2
Federal Court and Federal Magistrates Court
3
(1) The Federal Court or the Federal Magistrates Court may make any
4
of the following orders if the court is satisfied that a person has
5
contravened, or proposes to contravene, a civil remedy provision:
6
(a) an order granting an injunction, or interim injunction, to
7
prevent, stop or remedy the effects of a contravention;
8
(b) an order awarding compensation for loss that a person has
9
suffered because of the contravention;
10
(c) any other order the court considers appropriate.
11
Note:
For the court's power to make pecuniary penalty orders, see
12
section 50.
13
Eligible State or Territory courts
14
(2) An eligible State or Territory court may order a person to pay an
15
amount to or on behalf of another person if the court is satisfied
16
that:
17
(a) the person was required to pay the amount to or on behalf of
18
the other person under this Act or an enforceable instrument;
19
and
20
(b) the person has contravened a civil remedy provision by
21
failing to pay the amount.
22
Note:
For the court's power to make pecuniary penalty orders, see
23
section 50.
24
When orders may be made
25
(3) A court may make an order under this section:
26
(a) on its own initiative during proceedings before the court; or
27
(b)
on
application.
28
Compliance Part 5
Civil remedy provisions and orders Division 1
Section 50
Road Safety Remuneration Bill 2011 No. , 2011 37
Time limit for orders in relation to underpayments
1
(4) A court must not make an order under this section in relation to an
2
underpayment that relates to a period that is more than 6 years
3
before the proceedings concerned commenced.
4
50 Pecuniary penalty orders
5
(1) The Federal Court, the Federal Magistrates Court or an eligible
6
State or Territory court may, on application, order a person to pay
7
to the Commonwealth a pecuniary penalty that the court considers
8
is appropriate if the court is satisfied that the person has
9
contravened a civil remedy provision.
10
Note:
Column 3 of the table in subsection 46(2) sets out the maximum
11
penalty that the court may order the person to pay.
12
Determining amount of pecuniary penalty
13
(2) The pecuniary penalty must not be more than:
14
(a) if the person is an individual--the maximum number of
15
penalty units referred to in the relevant item in column 3 of
16
the table in subsection 46(2); or
17
(b) if the person is a body corporate--5 times the maximum
18
number of penalty units referred to in the relevant item in
19
column 3 of the table in subsection 46(2).
20
Recovery of penalty
21
(3) The pecuniary penalty is a civil debt payable to the
22
Commonwealth.
23
(4) The Commonwealth may enforce a pecuniary penalty order as if it
24
were an order made in civil proceedings against the person to
25
recover a debt due by the person. The debt arising from the order is
26
taken to be a judgement debt.
27
No limitation on orders
28
(5) To avoid doubt, a court may make a pecuniary penalty order in
29
addition to one or more orders under section 49.
30
Part 5 Compliance
Division 1 Civil remedy provisions and orders
Section 51
38 Road Safety Remuneration Bill 2011 No. , 2011
51 Interest up to judgement
1
(1) This section applies to an order (other than a pecuniary penalty
2
order) under this Division in relation to an amount that a person
3
was required to pay to or on behalf of another person under this
4
Act or an enforceable instrument.
5
(2) In making the order the court must, on application, include an
6
amount of interest in the sum ordered, unless good cause is shown
7
to the contrary.
8
(3) Without limiting subsection (2), in determining the amount of
9
interest, the court must take into account the period between the
10
day the relevant cause of action arose and the day the order is
11
made.
12
Subdivision C--General provisions about civil remedies
13
52 Contravening a civil remedy provision is not an offence
14
A contravention of a civil remedy provision is not an offence.
15
53 Involvement in contravention treated in same way as actual
16
contravention
17
(1) A person who is involved in a contravention of a civil remedy
18
provision is taken to have contravened that provision.
19
(2) A person is involved in a contravention of a civil remedy provision
20
if, and only if, the person:
21
(a) has aided, abetted, counselled or procured the contravention;
22
or
23
(b) has induced the contravention, whether by threats or
24
promises or otherwise; or
25
(c) has been in any way, by act or omission, directly or
26
indirectly, knowingly concerned in or party to the
27
contravention; or
28
(d) has conspired with others to effect the contravention.
29
Compliance Part 5
Civil remedy provisions and orders Division 1
Section 54
Road Safety Remuneration Bill 2011 No. , 2011 39
54 Proceedings may be heard together
1
A court may direct that 2 or more proceedings for civil remedy
2
orders are to be heard together.
3
55 Civil evidence and procedure rules for proceedings relating to
4
civil remedy provisions
5
A court must apply the rules of evidence and procedure for civil
6
matters when hearing proceedings relating to a contravention, or
7
proposed contravention, of a civil remedy provision.
8
56 Civil proceedings after criminal proceedings
9
None of the Federal Court, the Federal Magistrates Court or an
10
eligible State or Territory court may make a pecuniary penalty
11
order against a person for a contravention of a civil remedy
12
provision if the person has been convicted of an offence constituted
13
by conduct that is substantially the same as the conduct
14
constituting the contravention.
15
57 Criminal proceedings during civil proceedings
16
(1) Proceedings for a pecuniary penalty order against a person for a
17
contravention of a civil remedy provision are stayed if:
18
(a) criminal proceedings are commenced or have already been
19
commenced against the person for an offence; and
20
(b) the offence is constituted by conduct that is the same, or
21
substantially the same, as the conduct alleged to constitute
22
the contravention.
23
(2) The proceedings for the order (the civil proceedings) may be
24
resumed if the person is not convicted of the offence. Otherwise:
25
(a) the civil proceedings are dismissed; and
26
(b) costs must not be awarded in relation to the civil proceedings.
27
58 Criminal proceedings after civil proceedings
28
Criminal proceedings may be commenced against a person for
29
conduct that is substantially the same as conduct constituting a
30
Part 5 Compliance
Division 1 Civil remedy provisions and orders
Section 59
40 Road Safety Remuneration Bill 2011 No. , 2011
contravention of a civil remedy provision regardless of whether a
1
pecuniary penalty order has been made against the person.
2
59 Evidence given in proceedings for penalty not admissible in
3
criminal proceedings
4
(1) Evidence of information given or evidence of production of
5
documents by a natural person is not admissible in criminal
6
proceedings against the person if:
7
(a) the person previously gave the evidence or produced the
8
documents in proceedings for a pecuniary penalty order
9
against the person for a contravention of a civil remedy
10
provision (whether or not the order was made); and
11
(b) the conduct alleged to constitute the offence is the same, or
12
substantially the same, as the conduct alleged to constitute
13
the contravention.
14
(2) However, subsection (1) does not apply to criminal proceedings in
15
relation to the falsity of the evidence given by the person in the
16
proceedings for the pecuniary penalty order.
17
60 Civil double jeopardy
18
If a person is ordered to pay a pecuniary penalty under a civil
19
remedy provision in relation to particular conduct, the person is not
20
liable to be ordered to pay a pecuniary penalty under some other
21
provision of a law of the Commonwealth in relation to that
22
conduct.
23
Note:
A court may make other orders, such as an order for compensation, in
24
relation to particular conduct even if the court has made a pecuniary
25
penalty order in relation to that conduct (see subsection 50(5)).
26
61 Course of conduct
27
(1) For the purposes of this Part, 2 or more contraventions of a civil
28
remedy provision referred to in subsection (2) are, subject to
29
subsection (3), taken to constitute a single contravention if:
30
(a) the contraventions are committed by the same person; and
31
(b) the contraventions arose out of a course of conduct by the
32
person.
33
Compliance Part 5
Civil remedy provisions and orders Division 1
Section 61
Road Safety Remuneration Bill 2011 No. , 2011 41
(2) The civil remedy provisions are the following:
1
(a) section 28 (which deals with contraventions of road safety
2
remuneration orders);
3
(b) subsection 36(1) (which deals with contraventions in relation
4
to safe remuneration approvals);
5
(c) subsection 44(4) (which deals with contraventions of
6
arbitration orders).
7
(3) Subsection (1) does not apply to a contravention of a civil remedy
8
provision that is committed by a person after a court has imposed a
9
pecuniary penalty on the person for an earlier contravention of the
10
provision.
11
12
Part 5 Compliance
Division 2 Jurisdiction and powers of courts
Section 62
42 Road Safety Remuneration Bill 2011 No. , 2011
Division 2--Jurisdiction and powers of courts
1
Subdivision A--Jurisdiction and powers of the Federal Court
2
62 Conferring jurisdiction on the Federal Court
3
Jurisdiction is conferred on the Federal Court in relation to any
4
civil matter arising under this Act.
5
63 Exercising jurisdiction in the Fair Work Division of the Federal
6
Court
7
The jurisdiction conferred on the Federal Court under section 62 is
8
to be exercised in the Fair Work Division of the Federal Court if:
9
(a) an application is made to the Federal Court under this Act; or
10
(b) a writ of mandamus or prohibition or an injunction is sought
11
in the Federal Court against a person holding office under
12
this Act; or
13
(c) a declaration is sought under section 21 of the Federal Court
14
of Australia Act 1976 in relation to a matter arising under this
15
Act; or
16
(d) an injunction is sought under section 23 of the Federal Court
17
of Australia Act 1976 in relation to a matter arising under this
18
Act; or
19
(e) an appeal is instituted in the Federal Court from a judgement
20
of the Federal Magistrates Court or a court of a State or
21
Territory in a matter arising under this Act; or
22
(f) proceedings in relation to a matter arising under this Act are
23
transferred to the Federal Court from the Federal Magistrates
24
Court; or
25
(g) the Federal Magistrates Court or a court of a State or
26
Territory states a case or reserves a question for the
27
consideration of the Federal Court in a matter arising under
28
this Act; or
29
(h) the President refers, under section 95 of this Act, a question
30
of law to the Federal Court; or
31
(i) the High Court remits a matter arising under this Act to the
32
Federal Court.
33
Compliance Part 5
Jurisdiction and powers of courts Division 2
Section 64
Road Safety Remuneration Bill 2011 No. , 2011 43
64 No limitation on Federal Court's powers
1
To avoid doubt, nothing in this Act limits the Federal Court's
2
powers under section 21, 22 or 23 of the Federal Court of
3
Australia Act 1976.
4
65 Appeals from eligible State or Territory courts
5
Appeals from original decisions of eligible State or Territory
6
courts
7
(1) An appeal lies to the Federal Court from a decision of an eligible
8
State or Territory court exercising jurisdiction under this Act.
9
(2) No appeal lies from a decision of an eligible State or Territory
10
court exercising jurisdiction under this Act, except:
11
(a) if the court was exercising summary jurisdiction--an appeal,
12
to that court or another eligible State or Territory court of the
13
same State or Territory, as provided for by a law of that State
14
or Territory; or
15
(b) in any case--an appeal as provided for by subsection (1).
16
Appeals from appellate decisions of eligible State or Territory
17
courts
18
(3) An appeal lies to the Federal Court from a decision of an eligible
19
State or Territory court made on appeal from a decision that:
20
(a) was a decision of that court or another eligible State or
21
Territory court of the same State or Territory; and
22
(b) was made in the exercise of jurisdiction under this Act.
23
(4) No appeal lies from a decision to which subsection (3) applies,
24
except an appeal as provided for by that subsection.
25
Leave to appeal not required
26
(5) It is not necessary to obtain the leave of the Federal Court, or the
27
court appealed from, in relation to an appeal under subsection (1)
28
or (3).
29
Part 5 Compliance
Division 2 Jurisdiction and powers of courts
Section 66
44 Road Safety Remuneration Bill 2011 No. , 2011
Subdivision B--Jurisdiction and powers of the Federal
1
Magistrates Court
2
66 Conferring jurisdiction on the Federal Magistrates Court
3
Jurisdiction is conferred on the Federal Magistrates Court in
4
relation to any civil matter arising under this Act.
5
67 Exercising jurisdiction in the Fair Work Division of the Federal
6
Magistrates Court
7
Jurisdiction conferred on the Federal Magistrates Court under
8
section 66 is to be exercised in the Fair Work Division of the
9
Federal Magistrates Court if:
10
(a) an application is made to the Federal Magistrates Court under
11
this Act; or
12
(b) an injunction is sought under section 15 of the Federal
13
Magistrates Act 1999 in relation to a matter arising under this
14
Act; or
15
(c) a declaration is sought under section 16 of the Federal
16
Magistrates Act 1999 in relation to a matter arising under this
17
Act; or
18
(d) proceedings in relation to a matter arising under this Act are
19
transferred to the Federal Magistrates Court from the Federal
20
Court; or
21
(e) the High Court remits a matter arising under this Act to the
22
Federal Magistrates Court.
23
68 No limitation on Federal Magistrates Court's powers
24
To avoid doubt, nothing in this Act limits the Federal Magistrates
25
Court's powers under section 14, 15 or 16 of the Federal
26
Magistrates Act 1999.
27
Compliance Part 5
Jurisdiction and powers of courts Division 2
Section 69
Road Safety Remuneration Bill 2011 No. , 2011 45
Subdivision C--Small claims procedure
1
69 Applicants may choose small claims procedure
2
(1) Proceedings are to be dealt with as small claims proceedings under
3
this section if:
4
(a) a person applies for an order (other than a pecuniary penalty
5
order) under Division 1 from a magistrates court or the
6
Federal Magistrates Court; and
7
(b) the order relates to an amount that another person is required
8
to pay under this Act or an enforceable instrument; and
9
(c) the person indicates, in the manner prescribed by the
10
regulations or by the rules of the court, that he or she wants
11
the small claims procedure to apply to the proceedings.
12
Limits on award
13
(2) In small claims proceedings, the court may not award more than
14
$20,000.
15
Procedure
16
(3) In small claims proceedings, the court is not bound by any rules of
17
evidence and procedure and may act:
18
(a) in an informal manner; and
19
(b) without regard to legal forms and technicalities.
20
(4) At any stage of the small claims proceedings, the court may amend
21
the papers commencing the proceedings if sufficient notice is given
22
to any party adversely affected by the amendment.
23
Legal representation
24
(5) A party to small claims proceedings may be represented in the
25
proceedings by a lawyer only with the leave of the court.
26
(6) If the court grants leave for a party to the proceedings to be
27
represented by a lawyer, the court may, if it considers appropriate,
28
do so subject to conditions designed to ensure that no other party is
29
unfairly disadvantaged.
30
Part 5 Compliance
Division 2 Jurisdiction and powers of courts
Section 70
46 Road Safety Remuneration Bill 2011 No. , 2011
(7) For the purposes of this section, a person is taken not to be
1
represented by a lawyer if the lawyer is an employee or officer of
2
the person.
3
Representation by an industrial association
4
(8) The regulations may provide for a party to small claims
5
proceedings to be represented in the proceedings, in specified
6
circumstances, by an official of an industrial association.
7
(9) However, if small claims proceedings are heard in a court of a
8
State, the regulations may so provide only if the law of the State
9
allows a party to be represented in that court in those
10
circumstances by officials of bodies representing interests related
11
to the matters in dispute.
12
Subdivision D--Miscellaneous
13
70 Costs only if proceedings instituted vexatiously etc.
14
(1) A party to proceedings (including an appeal) in a court (including a
15
court of a State or Territory) exercising jurisdiction under this Act
16
may be ordered by the court to pay costs incurred by another party
17
to the proceedings only in accordance with subsection (2).
18
(2) The party may be ordered to pay the costs only if:
19
(a) the court is satisfied that the party instituted the proceedings
20
vexatiously or without reasonable cause; or
21
(b) the court is satisfied that the party's unreasonable act or
22
omission caused the other party to incur the costs; or
23
(c) the court is satisfied of both of the following:
24
(i) the party unreasonably refused to participate in a matter
25
before the Tribunal;
26
(ii) the matter arose from the same facts as the proceedings.
27
71 No imprisonment for failure to pay pecuniary penalty
28
(1) A court (including a court of a State or Territory) may not order a
29
person to serve a sentence of imprisonment if the person fails to
30
pay a pecuniary penalty imposed under this Act.
31
Compliance Part 5
Jurisdiction and powers of courts Division 2
Section 72
Road Safety Remuneration Bill 2011 No. , 2011 47
(2) This section applies despite any other law of the Commonwealth, a
1
State or a Territory.
2
72 Regulations dealing with matters relating to court proceedings
3
The regulations may provide for the fees to be charged in relation
4
to proceedings in a court (including a court of a State or Territory)
5
under this Act.
6
7
Part 5 Compliance
Division 3 Fair Work Ombudsman
Section 73
48 Road Safety Remuneration Bill 2011 No. , 2011
Division 3--Fair Work Ombudsman
1
Subdivision A--Role of Fair Work Ombudsman
2
73 Functions of the Fair Work Ombudsman
3
The Fair Work Ombudsman has the following functions:
4
(a) to monitor compliance with this Act and enforceable
5
instruments, including by providing education, assistance and
6
advice to road transport drivers, their employers or hirers and
7
participants in the supply chain in relation to road transport
8
drivers;
9
(b) to inquire into, and investigate, any act or practice that may
10
be contrary to this Act or an enforceable instrument;
11
(c) to commence proceedings in a court to enforce this Act and
12
any enforceable instrument;
13
(d) to refer matters to relevant authorities;
14
(e) to represent road transport drivers who are, or may become, a
15
party to proceedings in a court under this Act, if the Fair
16
Work Ombudsman considers that representing the drivers
17
will promote compliance with this Act or an enforceable
18
instrument.
19
74 Exercise of compliance powers
20
(1) An inspector may exercise compliance powers within the meaning
21
of the Fair Work Act 2009 (other than a power under section 715
22
or 716 of that Act) for the purpose of determining whether this Act
23
or an enforceable instrument is being or has been complied with.
24
(2) For the purposes of the Fair Work Act 2009:
25
(a) a purpose referred to in subsection (1) is taken to be a
26
compliance purpose; and
27
(b) a civil remedy provision under section 28 or subsection
28
36(1), 44(4), 76(6) or 119(1) or (2) is taken to be a civil
29
remedy provision.
30
Compliance Part 5
Fair Work Ombudsman Division 3
Section 75
Road Safety Remuneration Bill 2011 No. , 2011 49
75 Referring matters to the Fair Work Ombudsman
1
(1) The General Manager may refer a matter to the Fair Work
2
Ombudsman for investigation if:
3
(a) the General Manager has reason to believe that a person has
4
not complied with an enforceable instrument in relation to
5
another person; and
6
(b) the General Manager does not believe that the persons are
7
able to resolve the matter themselves.
8
(2) The General Manager must inform the persons, in writing, if the
9
General Manager refers the matter to the Fair Work Ombudsman.
10
(3) The General Manager must inform the Fair Work Ombudsman
11
about any action taken or information obtained by the General
12
Manager in relation to the matter.
13
Subdivision B--Compliance notices
14
76 Compliance notices
15
Application of this section
16
(1) This section applies if an inspector reasonably believes that a
17
person has contravened a term of an enforceable instrument.
18
Giving a compliance notice
19
(2) The inspector may give the person a notice (a compliance notice)
20
requiring the person to do the following within such reasonable
21
time as is specified in the notice:
22
(a) take specified action to remedy the direct effects of the
23
contravention referred to in subsection (1);
24
(b) produce reasonable evidence of the person's compliance with
25
the notice.
26
Content of compliance notice
27
(3) A compliance notice must also:
28
(a) set out the name of the person to whom the notice is given;
29
and
30
Part 5 Compliance
Division 3 Fair Work Ombudsman
Section 76
50 Road Safety Remuneration Bill 2011 No. , 2011
(b) set out the name of the inspector who gave the notice; and
1
(c) set out brief details of the contravention; and
2
(d) explain that a failure to comply with the notice may
3
contravene a civil remedy provision; and
4
(e) explain that the person may apply to the Federal Court, the
5
Federal Magistrates Court or an eligible State or Territory
6
Court for review of the notice on either or both of the
7
following grounds:
8
(i) the person has not committed a contravention set out in
9
the notice;
10
(ii) the notice does not comply with subsection (2) or this
11
subsection; and
12
(f) set out any other matters prescribed by the regulations.
13
Relationship with civil remedy provisions
14
(4)
An
inspector must not apply for an order under Division 1 of this
15
Part in relation to a contravention of a civil remedy provision by a
16
person if:
17
(a) the inspector has given the person a compliance notice in
18
relation to the contravention; and
19
(b) either of the following subparagraphs apply:
20
(i) the notice has not been withdrawn, and the person has
21
complied with the notice;
22
(ii) the person has made an application under section 77 in
23
relation to the notice that has not been completely dealt
24
with.
25
Note:
A person other than an inspector who is otherwise entitled to apply for
26
an order in relation to the contravention may do so.
27
(5) A person who complies with a notice in relation to a contravention
28
of a civil remedy provision is not taken:
29
(a) to have admitted to contravening the provision; or
30
(b) to have been found to have contravened the provision.
31
Person must not fail to comply with notice
32
(6) A person must not fail to comply with a compliance notice given
33
under this section.
34
Compliance Part 5
Fair Work Ombudsman Division 3
Section 77
Road Safety Remuneration Bill 2011 No. , 2011 51
Note:
This subsection is a civil remedy provision (see Division 1 of this
1
Part).
2
(7) Subsection (6) does not apply if the person has a reasonable
3
excuse.
4
77 Review of compliance notices
5
(1) A person who has been given a compliance notice under section 76
6
may apply to the Federal Court, the Federal Magistrates Court or
7
an eligible State or Territory court for review of the notice on
8
either or both of the following grounds:
9
(a) the person has not committed a contravention set out in the
10
notice;
11
(b) the notice does not comply with subsection 76(2) or (3).
12
(2) At any time after the application has been made, the court may stay
13
the operation of the notice on the terms and conditions that the
14
court considers appropriate.
15
(3) The court may make any order it considers appropriate in relation
16
to the notice.
17
18
Part 5 Compliance
Division 4 Right of entry
Section 78
52 Road Safety Remuneration Bill 2011 No. , 2011
Division 4--Right of entry
1
78 Right of entry for suspected contravention of this Act or
2
enforceable instrument
3
The reference in subsection 481(1) of the Fair Work Act 2009 to a
4
suspected contravention of that Act or a term of a fair work
5
instrument is taken to include a reference to a suspected
6
contravention of this Act or an enforceable instrument.
7
8
Road Safety Remuneration Tribunal Part 6
Establishment and functions of Tribunal Division 1
Section 79
Road Safety Remuneration Bill 2011 No. , 2011 53
Part 6--Road Safety Remuneration Tribunal
1
Division 1--Establishment and functions of Tribunal
2
79 Establishment of Tribunal
3
(1) The Road Safety Remuneration Tribunal is established by this
4
section.
5
(2) The Tribunal consists of:
6
(a) the President; and
7
(b) at least 2 and no more than 4 persons who are experienced in
8
workplace relations matters; and
9
(c) at least 2 and no more than 4 persons who have knowledge
10
of, or experience in, one or more of the following fields:
11
(i) transport and logistics;
12
(ii) driving in the road transport industry;
13
(iii) business, industry or commerce;
14
(iv) work health and safety in the road transport industry.
15
80 Functions of Tribunal
16
The Tribunal has the following functions:
17
(a) to make road safety remuneration orders under Part 2;
18
(b) to grant safe remuneration approvals in relation to road
19
transport collective agreements under Part 3;
20
(c) to deal with certain disputes relating to road transport drivers,
21
their employers or hirers and participants in the supply chain
22
under Part 4;
23
(d) to conduct research into remuneration-related matters that
24
may affect safety in the road transport industry;
25
(e) any other function prescribed by the regulations or another
26
law of the Commonwealth.
27
81 Tribunal has privileges and immunities of the Crown
28
The Tribunal has the privileges and immunities of the Crown.
29
Part 6 Road Safety Remuneration Tribunal
Division 1 Establishment and functions of Tribunal
Section 82
54 Road Safety Remuneration Bill 2011 No. , 2011
82 Protection of Tribunal members
1
A member of the Tribunal has, in performing his or her functions
2
or exercising his or her powers as a member of the Tribunal, the
3
same protection and immunity as a Justice of the High Court.
4
5
Road Safety Remuneration Tribunal Part 6
Performance of functions of Tribunal Division 2
Section 83
Road Safety Remuneration Bill 2011 No. , 2011 55
Division 2--Performance of functions of Tribunal
1
Subdivision A--Role of the President
2
83 Role of President in performance of functions
3
The President is responsible for ensuring that the Tribunal
4
performs its functions efficiently and effectively.
5
Subdivision B--Applications to Tribunal
6
84 Dismissing applications
7
(1) Without limiting when the Tribunal may dismiss an application,
8
the Tribunal may dismiss an application if:
9
(a) the application is not made in accordance with this Act; or
10
(b) the application is frivolous or vexatious; or
11
(c) the application has no reasonable prospects of success.
12
(2) The Tribunal may dismiss an application:
13
(a) on its own initiative; or
14
(b)
on
application.
15
Subdivision C--Performance of functions
16
85 Performance of functions generally
17
(1) In performing its functions, the Tribunal:
18
(a) may regulate the conduct of its proceedings as it sees fit and
19
is not bound to act in a formal manner; and
20
(b) is not bound by the rules of evidence and procedure in
21
relation to any matter it is dealing with (even if it conducts a
22
hearing in relation to the matter).
23
(2) The performance of the functions of the Tribunal is not affected by
24
reason only of there being a vacancy in the membership of the
25
Tribunal, unless the vacancy is in the office of the President.
26
Part 6 Road Safety Remuneration Tribunal
Division 2 Performance of functions of Tribunal
Section 86
56 Road Safety Remuneration Bill 2011 No. , 2011
86 Powers of Tribunal to perform functions
1
(1) The Tribunal may, except as provided by this Act, inform itself in
2
relation to matters it is dealing with in any manner it considers
3
appropriate.
4
(2) Without limiting subsection (1), the Tribunal may inform itself in
5
the following ways:
6
(a) by requiring a compellable person to attend before the
7
Tribunal;
8
(b) by inviting, subject to any terms and conditions determined
9
by the Tribunal, oral or written submissions (see for example
10
subsection 24(1));
11
(c) by requiring a compellable person to provide copies of
12
documents or records, or to provide any other information to
13
the Tribunal;
14
(d) by taking evidence under oath or affirmation in accordance
15
with the regulations (if any);
16
(e) by conducting inquiries;
17
(f) by undertaking or commissioning research;
18
(g) by conducting a conference (see section 87);
19
(h) by holding a hearing (see section 88).
20
87 Conferences
21
(1) For the purposes of performing a function of the Tribunal, the
22
Tribunal may direct a compellable person to attend a conference at
23
a specified time and place.
24
(2) If a Full Bench is performing the function, the President is
25
responsible for conducting the conference. Otherwise, the dual
26
FWA member performing the function is responsible.
27
(3) The conference must be conducted in private, unless the person
28
conducting the conference directs that it be conducted in public.
29
(4) If the conference is to arbitrate a dispute under Part 4, then despite
30
subsections (1) and (3):
31
(a) the Tribunal must not direct a person to attend the conference
32
unless the person is a party to the dispute; and
33
Road Safety Remuneration Tribunal Part 6
Performance of functions of Tribunal Division 2
Section 88
Road Safety Remuneration Bill 2011 No. , 2011 57
(b) the person conducting the conference must not direct that it
1
be conducted in public.
2
88 Hearings
3
(1) The Tribunal is not required to hold a hearing in performing
4
functions under this Act.
5
(2) If the Tribunal holds a hearing in relation to a matter, the hearing
6
must be held in public, except as provided by subsection (3).
7
(3) The Tribunal may make the following orders in relation to a
8
hearing that the Tribunal holds if the Tribunal is satisfied that it is
9
desirable to do so because of the confidential nature of any
10
evidence, or for any other reason:
11
(a) orders that all or part of the hearing is to be held in private;
12
(b) orders about who may be present at the hearing;
13
(c) orders prohibiting or restricting the publication of the names
14
and addresses of persons appearing at the hearing;
15
(d) orders prohibiting or restricting the publication of, or the
16
disclosure to some or all of the persons present at the hearing
17
of, the following:
18
(i) evidence given in the hearing;
19
(ii) matters contained in documents before the Tribunal in
20
relation to the hearing.
21
(4) Subsection (3) does not apply to the publication of a submission
22
made to the Tribunal for consideration in determining whether to
23
make a road safety remuneration order or take a proposed action
24
under subsection 31(2) (see subsections 24(3) and 31(4)).
25
89 Offences in relation to attendance before Tribunal
26
Required to attend
27
(1) A person commits an offence if:
28
(a) the person has been required to attend before the Tribunal;
29
and
30
(b) the person fails to attend as required.
31
Part 6 Road Safety Remuneration Tribunal
Division 2 Performance of functions of Tribunal
Section 90
58 Road Safety Remuneration Bill 2011 No. , 2011
Penalty: Imprisonment for 6 months.
1
Oath or affirmation
2
(2) A person commits an offence if:
3
(a) the person attends before the Tribunal; and
4
(b) the Tribunal requires the person to take an oath or make an
5
affirmation; and
6
(c) the person refuses or fails to be sworn or to make an
7
affirmation as required.
8
Penalty: Imprisonment for 6 months.
9
Questions or documents
10
(3) A person commits an offence if:
11
(a) the person attends before the Tribunal; and
12
(b) the Tribunal requires the person to answer a question or
13
produce a document; and
14
(c) the person refuses or fails to answer the question or produce
15
the document.
16
Penalty: Imprisonment for 6 months.
17
Defence of reasonable excuse
18
(4) Subsection (1), (2) or (3) does not apply if the person has a
19
reasonable excuse.
20
Note:
A defendant bears an evidential burden in relation to the matter in
21
subsection (4): see subsection 13.3(3) of the Criminal Code.
22
90 Confidential evidence
23
(1) The Tribunal may make an order prohibiting or restricting the
24
publication of the following in relation to a matter before the
25
Tribunal (whether or not the Tribunal holds a hearing in relation to
26
the matter) if the Tribunal is satisfied that it is desirable to do so
27
because of the confidential nature of the evidence, or for any other
28
reason:
29
(a) evidence given to the Tribunal in relation to the matter;
30
Road Safety Remuneration Tribunal Part 6
Performance of functions of Tribunal Division 2
Section 91
Road Safety Remuneration Bill 2011 No. , 2011 59
(b) the names and addresses of persons making submissions to
1
the Tribunal in relation to the matter;
2
(c) matters contained in documents lodged with the Tribunal or
3
received in evidence by the Tribunal in relation to the matter;
4
(d) the whole or any part of its decisions or reasons in relation to
5
the matter.
6
(2) Subsection (1) does not apply to the publication of a submission
7
made to the Tribunal for consideration in determining whether to
8
make a road safety remuneration order or take a proposed action
9
under subsection 31(2) (see subsections 24(3) and 31(4)).
10
Subdivision D--Representation by lawyers and paid agents
11
91 Representation by lawyers and paid agents
12
(1) Except as provided by subsection (2) or the procedural rules, a
13
person may be represented in a matter before the Tribunal
14
(including by making an application or submission to the Tribunal
15
on behalf of the person) by a lawyer or paid agent only with the
16
permission of the Tribunal.
17
(2) The Tribunal's permission is not required for a person to be
18
represented by a lawyer or paid agent in making a written
19
submission under section 24 or 31.
20
(3) For the purposes of this section, a person is taken not to be
21
represented by a lawyer or paid agent if the lawyer or paid agent:
22
(a) is an employee or officer of the person; or
23
(b) is an employee or officer of an industrial association that is
24
representing the person.
25
Subdivision E--Appeals
26
92 Appeal of decisions
27
(1) A person who is aggrieved by:
28
(a) a decision of a dual FWA member to grant, or refuse to grant,
29
a safe remuneration approval in relation to a road transport
30
collective agreement under Part 3; or
31
Part 6 Road Safety Remuneration Tribunal
Division 2 Performance of functions of Tribunal
Section 93
60 Road Safety Remuneration Bill 2011 No. , 2011
(b) a decision of a dual FWA member in relation to a dispute
1
being dealt with under Part 4;
2
may appeal the decision with the permission of the Tribunal.
3
(2) The person may appeal the decision by applying to the Tribunal.
4
(3) A Full Bench must:
5
(a) decide whether to grant permission to appeal the decision;
6
and
7
(b) if the Full Bench decides to grant permission--hear the
8
appeal in accordance with section 94.
9
(4) Without limiting when permission to appeal may be granted, a Full
10
Bench must grant permission if the Full Bench is satisfied that it is
11
in the public interest to do so.
12
93 Staying decisions that are appealed
13
(1) The Full Bench may order that the operation of the whole or part of
14
the decision be stayed, on any terms and conditions that the Full
15
Bench considers appropriate, until a decision in relation to the
16
appeal is made or the Full Bench makes a further order.
17
(2) An order under subsection (1) in relation to the appeal may be
18
made by:
19
(a) the Full Bench; or
20
(b)
the
President.
21
94 Process for appealing decisions
22
(1) The Full Bench may deal with an appeal in any manner it considers
23
appropriate, including by holding a hearing or conducting a
24
conference.
25
Note:
See sections 87 and 88.
26
(2) The Full Bench may:
27
(a) admit further evidence; and
28
(b) take into account any other information or evidence.
29
Road Safety Remuneration Tribunal Part 6
Performance of functions of Tribunal Division 2
Section 95
Road Safety Remuneration Bill 2011 No. , 2011 61
(3) The Full Bench may do any of the following in relation to the
1
appeal:
2
(a) confirm, quash or vary the decision;
3
(b) make a further decision in relation to the matter that is the
4
subject of the appeal;
5
(c) refer the matter that is the subject of the appeal to a dual
6
FWA member and:
7
(i) require the member to deal with the subject matter of
8
the decision; or
9
(ii) require the member to act in accordance with the
10
directions of the Full Bench.
11
95 Referring questions of law to the Federal Court
12
(1) The President may refer a question of law arising in a matter being
13
appealed to the Full Bench for the opinion of the Federal Court.
14
(2) A question of law referred under subsection (1) must be
15
determined by the Full Court of the Federal Court.
16
(3) The Full Bench may make a decision in relation to the matter even
17
if the Federal Court is determining the question of law, except if
18
the question is whether the Tribunal may exercise powers in
19
relation to the matter.
20
(4) Once the Federal Court has determined the question, the Full
21
Bench may only make a decision in relation to the matter that is
22
not inconsistent with the opinion of the Federal Court (if the Full
23
Bench has not already done so).
24
(5) However, if the Full Bench has made a decision in relation to the
25
matter that is inconsistent with the opinion of the Federal Court,
26
the Full Bench must vary the decision in such a way as to make it
27
consistent with the opinion of the Federal Court.
28
Part 6 Road Safety Remuneration Tribunal
Division 2 Performance of functions of Tribunal
Section 96
62 Road Safety Remuneration Bill 2011 No. , 2011
Subdivision F--Organisation of Tribunal
1
96 Constitution of Full Bench
2
(1) If a function of the Tribunal may or must be performed by a Full
3
Bench of the Tribunal, the Full Bench is to consist of either:
4
(a) 3 members of the Tribunal, being the President, one dual
5
FWA member and one industry member; or
6
(b) 5 members of the Tribunal, being the President, 2 dual FWA
7
members and 2 industry members.
8
(2) The President is to determine how many and which members of the
9
Tribunal form part of a Full Bench.
10
(3) A decision of a majority of the members on the Full Bench
11
prevails.
12
13
Road Safety Remuneration Tribunal Part 6
Members of Tribunal Division 3
Section 97
Road Safety Remuneration Bill 2011 No. , 2011 63
Division 3--Members of Tribunal
1
Subdivision A--Appointment of members of Tribunal
2
97 Appointment
3
(1) The members of the Tribunal are to be appointed by the
4
Governor-General by written instrument for a period not exceeding
5
5 years.
6
(2) The person appointed as the President must also be a Deputy
7
President of Fair Work Australia.
8
(3) The persons appointed for the purposes of paragraph 79(2)(b) must
9
also be Deputy Presidents or Commissioners of Fair Work
10
Australia.
11
98 Basis of appointment of industry members
12
An industry member of the Tribunal holds office on a part-time
13
basis.
14
Note:
Members of the Tribunal who are dual FWA members are permitted
15
to hold dual appointments under section 632 of the Fair Work Act
16
2009.
17
Subdivision B--Terms and conditions of members of Tribunal
18
99 Outside employment of industry members
19
An industry member must not engage in any paid employment that,
20
in the President's opinion, conflicts or may conflict with the proper
21
performance of his or her duties.
22
100 Remuneration
23
(1) A dual FWA member is not to be paid any remuneration or
24
allowances in relation to the member's office as a member of the
25
Tribunal.
26
(2) An industry member is to be paid the remuneration that is
27
determined by the Remuneration Tribunal. If no determination of
28
Part 6 Road Safety Remuneration Tribunal
Division 3 Members of Tribunal
Section 101
64 Road Safety Remuneration Bill 2011 No. , 2011
that remuneration by that Tribunal is in operation, the member is to
1
be paid the remuneration that is prescribed by the regulations.
2
(3) An industry member is to be paid the allowances prescribed by the
3
regulations.
4
(4) This section has effect subject to the Remuneration Tribunal Act
5
1973.
6
101 Leave of absence
7
A dual FWA member is allowed to be absent from the Tribunal
8
during any period of recreation leave or any other leave of absence
9
to which the member is entitled under section 639 of the Fair Work
10
Act 2009.
11
102 Disclosure of interests
12
(1) This section applies if:
13
(a) a member of the Tribunal (other than the President) is dealing
14
with, or will deal with, a matter; and
15
(b) the member has or acquires any interest (the potential
16
conflict), pecuniary or otherwise, that conflicts or could
17
conflict with the proper performance of the member's
18
functions in relation to the matter.
19
(2) The member must disclose the potential conflict to the President.
20
(3) If the member does so, the member may only deal, or continue to
21
deal, with the matter with the President's approval.
22
(4) The President must direct a member of the Tribunal not to deal, or
23
to no longer deal, with a matter if:
24
(a) the President becomes aware that the member has a potential
25
conflict in relation to the matter (whether or not because of a
26
disclosure referred to in subsection (2)); and
27
(b) the President considers that the member should not deal, or
28
should no longer deal, with the matter.
29
Road Safety Remuneration Tribunal Part 6
Members of Tribunal Division 3
Section 103
Road Safety Remuneration Bill 2011 No. , 2011 65
(5) To avoid doubt, subsection (4) applies to a member even if the
1
President has previously given approval to the member under
2
subsection (3).
3
103 Termination of appointment on grounds of misbehaviour or
4
incapacity
5
The Governor-General may terminate the appointment of a
6
member of the Tribunal if an address praying for the termination,
7
on one of the following grounds, is presented to the
8
Governor-General by each House of the Parliament in the same
9
session:
10
(a)
proved
misbehaviour;
11
(b) the member is unable to perform the duties of his or her
12
office because of physical or mental incapacity.
13
104 Suspension on grounds of misbehaviour or incapacity
14
Governor-General may suspend member
15
(1) The Governor-General may suspend a member of the Tribunal
16
from office:
17
(a) for misbehaviour; or
18
(b) if the member is unable to perform the duties of his or her
19
office because of physical or mental incapacity.
20
Statement of grounds
21
(2) The Minister must cause to be tabled in each House of Parliament,
22
within 7 sitting days of that House after the suspension, a statement
23
identifying the member and setting out the ground of the
24
suspension.
25
Resolution by a House of Parliament
26
(3) A House of the Parliament may, within 15 sitting days of that
27
House after the day the statement has been tabled in it, declare by
28
resolution that the appointment of the member should be
29
terminated.
30
Part 6 Road Safety Remuneration Tribunal
Division 3 Members of Tribunal
Section 105
66 Road Safety Remuneration Bill 2011 No. , 2011
Suspension terminates
1
(4) If a House does not pass a resolution in that way, the suspension
2
terminates.
3
Appointment to be terminated
4
(5) If each House of the Parliament passes a resolution in that way, the
5
Governor-General must terminate the appointment of the member.
6
Suspension not to affect entitlements
7
(6) The suspension of a member under this section does not affect any
8
entitlement of the member to be paid remuneration and allowances
9
in accordance with this Act.
10
105 Termination of appointment for bankruptcy, etc.
11
The Governor-General must terminate the appointment of a
12
member if:
13
(a) the member becomes bankrupt, applies to take the benefit of
14
any law for the relief of bankrupt or insolvent debtors,
15
compounds with his or her creditors, or makes an assignment
16
of his or her remuneration for the benefit of his or her
17
creditors; or
18
(b) the member is absent, except on leave of absence, for 14
19
consecutive days or for 28 days in any 12 months; or
20
(c) the member fails, without reasonable excuse, to comply with
21
section 102 (disclosure of interests).
22
106 Termination of appointment for outside employment
23
The Governor-General must terminate the appointment of an
24
industry member if the member engages in paid employment that,
25
in the President's opinion, conflicts or may conflict with the proper
26
performance of the member's duties (see section 99).
27
Road Safety Remuneration Tribunal Part 6
Members of Tribunal Division 3
Section 107
Road Safety Remuneration Bill 2011 No. , 2011 67
107 Automatic cessation of appointment for loss of qualification
1
(1) If the President ceases to be a Deputy President of Fair Work
2
Australia, the President's appointment to the Tribunal ceases on the
3
same day.
4
(2) If a person appointed for the purposes of paragraph 79(2)(b) ceases
5
to be a Deputy President or Commissioner of Fair Work Australia,
6
the person's appointment to the Tribunal ceases on the same day.
7
108 Resignation
8
(1) A member of the Tribunal may resign his or her appointment by
9
giving the Governor-General a written resignation.
10
(2) The resignation takes effect on the day it is received by the
11
Governor-General or, if a later day is specified in the resignation,
12
on that later day.
13
109 Other terms and conditions of members
14
A member of the Tribunal holds office on the terms and conditions
15
(if any) in relation to matters not covered by this Act that are
16
determined by the Governor-General.
17
110 Acting appointments
18
(1) The Minister may, by written instrument, appoint a person who is
19
qualified for appointment as a particular kind of member of the
20
Tribunal to act as a member of that kind:
21
(a) during a vacancy in the office of a member of that kind
22
(whether or not an appointment has previously been made to
23
the office); or
24
(b) during any period, or during all periods, when a member of
25
that kind:
26
(i) is absent from duty or from Australia; or
27
(ii) is, for any reason, unable to perform the duties of the
28
office.
29
(2) The appointment must be for a specified period of not more than
30
12 months.
31
Part 6 Road Safety Remuneration Tribunal
Division 3 Members of Tribunal
Section 111
68 Road Safety Remuneration Bill 2011 No. , 2011
Note:
For rules that apply to acting appointments, see section 33A of the
1
Acts Interpretation Act 1901.
2
Subdivision C--Miscellaneous matters relating to members of
3
Tribunal
4
111 Disclosure of information by Tribunal
5
The Tribunal may disclose information acquired by the Tribunal in
6
the course of performing its functions or exercising its powers if
7
the President reasonably believes:
8
(a) that it is necessary or appropriate to do so in the course of
9
performing the Tribunal's functions or exercising the
10
Tribunal's powers; or
11
(b) that the disclosure is likely to assist in the administration or
12
enforcement of a law of the Commonwealth, a State or a
13
Territory.
14
15
Road Safety Remuneration Tribunal Part 6
General Manager and consultants Division 4
Section 112
Road Safety Remuneration Bill 2011 No. , 2011 69
Division 4--General Manager and consultants
1
112 Role of General Manager of Fair Work Australia
2
(1) The General Manager of Fair Work Australia has the function of
3
assisting the President in ensuring that the Tribunal performs its
4
functions efficiently and effectively.
5
(2) The General Manager has power to do all things necessary or
6
convenient to be done for the purpose of performing his or her
7
function.
8
(3) In particular, the General Manager is to assist the President in
9
ensuring that the Tribunal performs its function under paragraph
10
80(d) and may engage persons having suitable qualifications and
11
experience as consultants for this purpose.
12
(4) The President may direct the General Manager as to the manner in
13
which the General Manager is to perform his or her functions or
14
exercise his or her powers.
15
(5) The direction may be of a general nature or may relate to a
16
particular matter.
17
(6) The General Manager must comply with the direction except to the
18
extent that compliance with the direction would be inconsistent
19
with the General Manager's:
20
(a) performance of functions or exercise of powers in relation to
21
Fair Work Australia; or
22
(b) performance of functions or exercise of powers under the
23
Financial Management and Accountability Act 1997 in
24
relation to Fair Work Australia; or
25
(c) performance of functions or exercise of powers under the
26
Public Service Act 1999 in relation to Fair Work Australia.
27
(7) If a direction is in writing, the direction is not a legislative
28
instrument.
29
30
Part 6 Road Safety Remuneration Tribunal
Division 5 Miscellaneous matters relating to Tribunal
Section 113
70 Road Safety Remuneration Bill 2011 No. , 2011
Division 5--Miscellaneous matters relating to Tribunal
1
113 Procedural rules
2
(1) After consulting the other members of the Tribunal, the President
3
may, by legislative instrument, make procedural rules in relation
4
to:
5
(a) the practice and procedure to be followed by the Tribunal; or
6
(b) the conduct of business in relation to matters the Tribunal is
7
authorised to deal with.
8
(2) Without limiting subsection (1), the procedural rules may provide
9
for the following:
10
(a) the requirements for making an application to the Tribunal;
11
(b) the circumstances in which a lawyer or paid agent may make
12
an application or submission to the Tribunal on behalf of a
13
person who is entitled to make the application or submission;
14
(c) the form and manner in which, and the time within which,
15
submissions may or must be made to the Tribunal;
16
(d) the procedural requirements for making decisions of the
17
Tribunal;
18
(e) the form and manner in which the Tribunal gives directions
19
and notifies persons of things;
20
(f) who is notified by the Tribunal of things;
21
(g) the manner in which conferences are to be conducted.
22
(3) To avoid doubt, subsection (1) includes the power to make
23
procedural rules in relation to any functions conferred on the
24
Tribunal by any other law of the Commonwealth.
25
114 Regulations dealing with Tribunal matters
26
The regulations may provide for any matter that the procedural
27
rules may provide for.
28
Note:
Regulations prevail over procedural rules if inconsistent (see
29
subsection 121(2)).
30
Road Safety Remuneration Tribunal Part 6
Miscellaneous matters relating to Tribunal Division 5
Section 115
Road Safety Remuneration Bill 2011 No. , 2011 71
115 Costs
1
(1) A person must bear the person's own costs in relation to a matter
2
before the Tribunal.
3
(2) However, the Tribunal may order a person to bear some or all of
4
the costs of another person in relation to an application to the
5
Tribunal if:
6
(a) the Tribunal is satisfied that the person made or responded to
7
the application vexatiously or without reasonable cause; or
8
(b) the Tribunal is satisfied that it should have been reasonably
9
apparent to the person that the person's application or
10
response had no reasonable prospect of success.
11
(3) A person on whom an order imposes a requirement to pay costs
12
must not contravene the requirement.
13
Note:
This subsection is a civil remedy provision (see Division 1 of Part 5).
14
116 Annual report
15
(1) The President must, as soon as practicable after the end of each
16
financial year, prepare and give to the Minister, for presentation to
17
the Parliament, a report on the operations of the Tribunal during
18
that year.
19
Note:
See also section 34C of the Acts Interpretation Act 1901, which
20
contains extra rules about annual reports.
21
(2) To avoid doubt, subsection (1) does not require or authorise the
22
disclosure of information for the purposes of the Privacy Act 1988.
23
117 President must provide certain information etc. to the Minister
24
and Fair Work Ombudsman
25
(1) The President must provide the Minister and the Fair Work
26
Ombudsman with:
27
(a) copies of any enforceable instrument made or granted by the
28
Tribunal; and
29
(b) the information and copies of documents prescribed by the
30
regulations;
31
by the time, and in the form, prescribed.
32
Part 6 Road Safety Remuneration Tribunal
Division 5 Miscellaneous matters relating to Tribunal
Section 117
72 Road Safety Remuneration Bill 2011 No. , 2011
(2) The regulations may prescribe information and documents relating
1
to or derived from information that:
2
(a) is publicly available; and
3
(b) relates to matters the Tribunal is authorised to deal with.
4
5
Miscellaneous Part 7
Section 118
Road Safety Remuneration Bill 2011 No. , 2011 73
Part 7--Miscellaneous
1
2
118 This Act is a workplace law
3
This Act is a workplace law for the purposes of the Fair Work Act
4
2009.
5
Note:
See section 341 of the Fair Work Act 2009.
6
119 Employer and hirer obligations in relation to records
7
(1) A person who is the employer or hirer of a road transport driver
8
must make, and keep for 7 years, records of the kind prescribed by
9
the regulations in relation to each road transport driver the person
10
employs or engages.
11
Note:
This subsection is a civil remedy provision (see Division 1 of Part 5).
12
(2)
The
records
must:
13
(a) if a form is prescribed by the regulations--be in that form;
14
and
15
(b) include any information prescribed by the regulations.
16
Note:
This subsection is a civil remedy provision (see Division 1 of Part 5).
17
(3) The regulations may provide for the inspection of those records.
18
120 Review of this Act
19
(1) The Minister must cause a review of the operation of this Act to be
20
started by 1 July 2015.
21
(2) The review must be completed by 31 December 2015.
22
(3) The persons who undertake the review must give the Minister a
23
written report of the review.
24
(4) The report must be published on the website of the Department and
25
by any other means the Minister considers appropriate.
26
Part 7 Miscellaneous
Section 121
74 Road Safety Remuneration Bill 2011 No. , 2011
121 Regulations
1
(1) The Governor-General may make regulations prescribing matters:
2
(a) required or permitted by this Act to be prescribed; or
3
(b) necessary or convenient to be prescribed for carrying out or
4
giving effect to this Act.
5
(2) Regulations made under this Act prevail over procedural rules
6
made under this Act, to the extent of any inconsistency.
7