Greater workplace protections proposed for road transport contractors

Several of the proposed amendments to the Fair Work Act 2009 (Cth) (FW Act) in the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill) are targeted at the road transport industry.

The key amendments are designed to ensure that certain independent contractors in the road transport sector are offered greater workplace protections. The Bill proposes a new road transport objective to be inserted in the FW Act that includes setting standards to ensure the road transport industry is safe, sustainable and viable.

Some of the amendments proposed for the road transport industry are the same or similar to what is proposed for "employee-like workers". The Bill defines a "regulated worker" to include an "employee-like worker" and a "regulated road transport worker".

The changes for the road transport industry include:

1. The Fair Work Commission (FWC) being able to make binding road transport minimum standards orders and non-binding road transport minimum standards guidelines for the road transport industry. Orders must be expressed to cover specified road transport businesses and contractors. A person covered by an order is obliged to comply with it. The proposed scope of matters that may be covered in an order or guideline is broad and includes terms dealing with payment terms, deductions, working time, record-keeping, insurance, consultation, representation, delegates' rights and/or cost recovery. Matters that cannot be included in an order or guidelines include terms about overtime rates, rostering arrangements, matters primarily of a commercial nature that do not affect the terms and conditions of engagement of employee-like workers, and terms that would change the form of the engagement or status of employee-like workers. Before a road transport minimum standards order is made, the FWC must ensure there has been genuine engagement and consultation and that any order takes into account the commercial realities of the industry and the viability and competitiveness of owner drivers.
2. An ability for road transport businesses to make a consent-based road transport collective agreement with an organisation that represents the industrial interests of regulated road transport contractors;
3. The FWC having the ability to deal with unfair terminations of a road transport contractor's services contract by a road transport business;
4. An ability to dispute unfair contract terms in the FWC. This mechanism is not available for anyone earning above a prescribed contractor high income threshold.
5. The changes to the rights and protections for workplace delegates extending to workplace delegates representing the interests of regulated road transport workers.

Under the proposed changes, the FWC is to establish an Expert Panel for the road transport industry. This is designed to ensure the FWC will have the expertise to assess minimum standards and conditions for the sector. The functions of the Expert Panel will extend to matters relating to modern awards for the industry, road transport minimum standards orders and guidelines and other matters that may be prescribed by the president.

A Road Transport Advisory Group will also be established to advise the FWC on matters that relate to the industry, including in relation to making and varying modern awards, minimum standards orders and road transport guidelines, and the FWC's prioritisation of industry matters.

The Minister will appoint the members of the Advisory Group and is to include members from organisations representing the industrial interests of regulated road transport contractors and those representing road transport businesses.

For more information about the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 and how the changes might apply to your organisation, please contact Lander & Rogers' workplace relations and safety legal experts.

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