This article summarises new laws which came into effect from 26 August 2024 following amendments to the Fair Work Act 2009 (Cth) as a consequence of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth).
Regulated road transport contractors
From 26 August 2024, new laws were introduced that may impact businesses operating in the “Road Transport Industry”, an umbrella term which is defined to include the following industries:
- road transport and distribution industry
- long distance operations in the private road transport industry
- waste management industry
- cash in transit industry
- passenger vehicle transportation industry
If you operate in one of these industries and you engage contractor drivers under a services contract, these drivers may fall into the newly defined category of workers called “regulated road transport contractors”.
Regulated road transport contractors (or their representatives) can apply to the Fair Work Commission to make a “road transport minimum standard order”. The Fair Work Commission could make a road transport minimum standard order or guideline after receiving an application or on its own initiative.
What will road transport minimum standard orders contain?
A road transport minimum standard order must set out its coverage, including:
- the work in the road transport industry covered (which can be expressed by reference to particular kinds of work)
- the regulated road transport contractors covered (which can be expressed by reference to a particular industry or sector, or part of an industry or sector)
- the road transport businesses covered (which can be expressed by reference to a particular industry or sector, or part of an industry or sector)
A road transport minimum standard order may otherwise contain terms about any of the following non-exhaustive matters:
- payment terms
- deductions
- recordkeeping in relation to matters concerning regulated workers or regulated businesses as required by the Fair Work Act;
- insurance
- consultation
- representation
- delegates’ rights
- cost recovery
A road transport minimum standard order cannot include any terms about:
- overtime rates
- rostering arrangements
- matters of a commercial nature not affecting the terms and conditions regulated workers
- the way workers are engaged e.g. a term that deems them to be an employee
- work health and safety maters covered by Federal or State and Territory laws
- a matter relating to road transport that is otherwise comprehensively dealt with the Heavy Vehicle National Law or by another Federal/State/Territory law
- matters prescribed by the regulations
What is the process behind making a Road Transport Minimum Standards Orders?
The Fair Work Commission cannot make or vary a road transport minimum standards order unless:
- there has been genuine engagement with the parties to be covered
- the Road Transport Advisory Group has been consulted
- the Fair Work Commission has published on its website:
- a notice that it intends to make a minimum standards order; and
- a draft of the proposed minimum standards order
- affected persons are invited to make submissions to the Fair Work Commission, which will be published (unless it is found to be confidential)
- the Fair Work Commission has had regard to the commercial realities of the road transport industry; and
- the Fair Work Commission is satisfied that making or varying the road transport minimum standards order will not unduly affect the viability and competitiveness of owner drivers or other similar persons.
The Fair Work Commission may:
- hold a hearing;
- publish a revised minimum standards order for further consultation; or
- not make the draft order
Concluding Comments
As at the time of this article, there has not been any road transport minimum standards order made under these new provisions.
Road transport businesses should keep a watch out for these new laws might be applied, as well as get ready for further possible changes that next year’s Federal election might bring.
If you have any questions or need guidance on this new law, don’t hesitate to reach out to the MST Lawyers’ Employment Law team on +61 3 8540 0200 or email workplace@mst.com.au.
