In September 2023, the federal government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 into parliament.
One the most relevant and important changes to the transport industry is the introduction of a road transport “expert panel” within the Fair Work Commission (FWC), which is Australia’s national workplace relations tribunal.
The panel will have the power to set minimum standards for owner-drivers, including both “fair payment times” and also rates that they can charge, and hear cases of unfair terminations of contracts.
Sound familiar?
For those who remember, it sounds eerily like the old Road Safety Remuneration Tribunal (RSRT) that was abolished in 2016.
For those who aren’t aware, let’s start with a bit of a history lesson.
What was the RSRT?
The RSRT was an Australian government agency that existed from 2012 to 2016.
Its primary purpose was to oversee and regulate pay and working conditions for truck drivers in the road transport industry. It was created in an effort to address concerns about the safety of road transport in Australia, particularly in the heavy vehicle industry.
In theory, it was probably a good idea.
However, it was massively controversial and was seen by many as unfairly penalising owner-drivers.
In 2016, the RSRT passed a pay order establishing national minimum rates and unpaid leave for contractor drivers. Many of these drivers were reportedly forced out of business as their rates were too expensive for their clients to pay.
Many saw the 2016 pay order as discriminatory against owner-drivers and small family businesses, with the process overly legalistic.
After much political controversy, the government abolished the RSRT.
What is the Fair Work Commission?
Some argue that the federal government’s new proposed changes in the closing loopholes bill is an attempt to bring the RSRT back through the Fair Work Commission (FWC).
The FWC is an Australian government agency responsible for regulating workplace relations and labour matters in Australia.
The FWC is responsible for establishing and modifying modern awards, facilitates and regulates the process of collective bargaining and plays a crucial role in resolving workplace disputes through conciliation and arbitration.
What is the new change applicable to truck drivers proposed by the Labor Government?
The new change will give the FWC the power to make binding road transport minimum standards orders and non-binding road transport minimum standards guidelines for the road transport industry.
These orders must specify the road transport businesses and contractors they apply to. Parties covered by the orders must comply.
Orders or guidelines can deal with things like payment terms, deductions, working time, record-keeping, insurance, cost recovery and more.
There are, however, certain things that can’t be included in an order or a guideline.
These include terms relating to overtime rates, rostering or matters mainly of a commercial nature that don’t not affect the terms and conditions of “regulated workers”.
The Commission also has to take into account the commercial realities of the industry when making these orders.
Is this an attempt to bring back the failed RSRT?
The government’s rhetoric suggests no.
Workplace Relations Minister Tony Burke stressed that the expert panel would be guided by an industry advisory group of making minimum standards (the Road Transport Advisory Group).
He says he’s brought owner-driver groups and unions together, saying that there is a “broad consensus” that we need minimum standards to “protect lives and ensure a sustainable and viable trucking industry”.
Big Rigs reported in June that board members of the National Road Freighters Association said it was “ground breaking for the industry to be so united”.
Burke also told parliament that the new laws create a “failsafe process”, which allows the minister to apply to suspend an order’s operation.
But others take a more negative view.
ACCI chief executive Andrew McKellar said the new closing loophole bill “[hands] over” control of our supply chains to the FWC, and said the government was “effectively reviving the failed RSRT”.
Before Labor won the election, Labor Senator Glenn Sterle stressed the need for a new kind of RSRT.
He said, “We got it wrong the first time, we’re not going to get it wrong the second time because the industry will be at the table”.
There will inevitably be differences between the RSRT and the FWC’s expert panel.
It would be foolish for the government to replicate the same mistakes made in the past.
So, will “Labor’s second time” strike the right balance?
Only time will tell.
- Ryan Howison is the managing director of DSE Transport.