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This is a Bill, not an Act. For current law, see the Acts databases.


OWNER DRIVERS (CONTRACTS AND DISPUTES) BILL 2006

                    Western Australia


Owner-Drivers (Contracts and Disputes)
              Bill 2006

                      CONTENTS


      Part 1 -- Preliminary
1.    Short title                                       2
2.    Commencement                                      2
3.    Terms used in this Act                            2
4.    Meaning of "owner-driver"                         3
5.    Meaning of "owner-driver contract"                4
6.    Application of Act                                5
7.    Act prevails over owner-driver contracts          5
8.    Act binds Crown                                   6
      Part 2 -- Content of owner-driver
           contracts
      Division 1 -- Prohibited provisions
9.    Prohibited: pay if paid/when paid provisions      7
10.   Prohibited: provisions requiring payment to be
      made after 30 days                                7
11.   Prohibited: prescribed provisions                 7
12.   Other provisions of contract not affected         7
      Division 2 -- Implied provisions
13.   Time for payment                                  8
14.   Interest on overdue payments                      8
15.   Making payment claims                             8
16.   Interpretation of implied provisions              8




                         176--3                         page i
Owner-Drivers (Contracts and Disputes) Bill 2006



Contents



              Part 3 -- Road Freight Transport
                   Industry Council
      17.     Road Freight Transport Industry Council
              established                                          9
      18.     Membership of Council                                9
      19.     Functions                                           10
      20.     Powers                                              10
      21.     Minister may give directions                        10
      22.     Minister to have access to information              11
      23.     Constitution and proceedings of Council             11
      24.     Remuneration and allowances                         11
      25.     Department to provide support services to Council   12
              Part 4 -- Code of conduct
      26.     Regulations may prescribe code of conduct           13
      27.     Content of code of conduct                          13
              Part 5 -- Negotiations for
                   owner-driver contracts
      28.     Negotiating agents for owner-drivers                16
      29.     Negotiating agents for hirers                       16
              Part 6 -- Unconscionable conduct
      30.     Unconscionable conduct by hirers                    18
      31.     Unconscionable conduct by owner-drivers             19
              Part 7 -- Inspectors
      32.     Functions of inspectors                             22
      33.     Obstructing or hindering inspector                  22
              Part 8 -- Rights of entry, inspection
                   and access to records
      34.     Access to records                                   23
      35.     Right of entry by representative to investigate
              breaches                                            24
      36.     Enforcement of section 35                           26




page ii
                Owner-Drivers (Contracts and Disputes) Bill 2006



                                                           Contents



      Part 9 -- Road Freight Transport
           Industry Tribunal
37.   Terms used in this Part                                27
38.   Industrial Relations Commission sitting as the
      Road Freight Transport Industry Tribunal               27
39.   Jurisdiction to be exercised by Commissioner with
      necessary qualifications                               28
40.   Persons who may refer disputes and matters to the
      Tribunal                                               28
41.   Intervention in proceeding                             29
42.   Representation                                         29
43.   Applied provisions: practice, procedure and
      appeals                                                30
44.   Conciliation                                           31
45.   Compulsory attendance at conciliation                  32
46.   Enforcement for the purposes of sections 44 and 45     32
47.   Determination of dispute where no resolution by
      conciliation                                           33
48.   Order to prevent entering into of owner-driver
      contracts                                              35
49.   Other jurisdictions                                    35
50.   Enforcement of monetary order                          36
51.   Enforcement of order other than conciliation or
      monetary order                                         37
      Part 10 -- Miscellaneous
52.   Trade Practices Act and Competition Code               38
53.   Confidentiality                                        39
54.   Laying documents before Parliament                     39
55.   Protection from liability                              40
56.   Protection for compliance with this Act                40
57.   Regulations                                            40
58.   Consequential amendments                               41
59.   Review of Act                                          41
      Schedule 1 -- Implied provisions
      Division 1 -- Responding to claims for payment
1.    Responding to a payment claim                          42



                                                            page iii
Owner-Drivers (Contracts and Disputes) Bill 2006



Contents



              Division 2 -- Interest on overdue amounts
      2.      Interest payable on overdue amounts            42
              Division 3 -- Making claims for payment
      3.      Content of claim for payment                   42
              Schedule 2 -- Constitution and
                  proceedings of Council
              Division 1 -- General provisions
      1.      Term of office                                 44
      2.      Chairman and deputy chairman                   44
      3.      Resignation, removal, etc.                     44
      4.      Leave of absence                               45
      5.      Council member unable to act                   45
      6.      Savings                                        45
      7.      Calling of meetings                            45
      8.      Presiding officer                              45
      9.      Quorum                                         46
      10.     Voting                                         46
      11.     Minutes                                        46
      12.     Resolution without meeting                     46
      13.     Holding meetings remotely                      46
      14.     Committees                                     46
      15.     Council to determine own procedures            47
              Division 2 -- Disclosure of interests etc.
      16.     Disclosure of interests                        47
      17.     Voting by interested members                   47
      18.     Clause 17 may be declared inapplicable         48
      19.     Quorum where clause 17 applies                 48
      20.     Minister may declare clauses 17 and 19
              inapplicable                                   48
              Schedule 3 -- Consequential
                  amendments
      1.      Industrial Relations Act 1979 amended          49
      2.      Constitution Acts Amendment Act 1899 amended   49
              Defined Terms



page iv
                           Western Australia


                     LEGISLATIVE ASSEMBLY

              (As amended during consideration in detail)


     Owner-Drivers (Contracts and Disputes)
                   Bill 2006


                               A Bill for


An Act --
•  to promote a safe and sustainable road freight transport
    industry by regulating the relationship between persons who
    enter into contracts to transport goods in heavy vehicles and
    persons who hire them to do so; and
•  to establish the Road Freight Transport Industry Tribunal and
    the Road Freight Transport Industry Council,
and for related purposes.



The Parliament of Western Australia enacts as follows:




                                                             page 1
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 1         Preliminary

     s. 1



                               Part 1 -- Preliminary
     1.         Short title
                This is the Owner-Drivers (Contracts and Disputes) Act 2006.

     2.         Commencement
 5        (1)   This Act comes into operation on a day fixed by proclamation.
          (2)   Different days may be fixed under subsection (1) for different
                provisions.
                Note: Under section 22 of the Interpretation Act 1984, this section and
                      section 1 come into operation on the day on which this Act receives the
10                    Royal Assent.

     3.         Terms used in this Act
                In this Act, unless the contrary intention appears --
                "code of conduct" means the code of conduct made under
                     Part 4;
15              "Council" means the Road Transport Freight Industry Council
                     established by section 17;
                "Department" means the department of the Public Service
                     principally assisting in the administration of this Act;
                "goods" includes freight and materials;
20              "gross vehicle mass" has the same meaning as it has in the
                     Road Traffic Act 1974 section 103B(4);
                "guideline rates" means rates of payment published in
                     accordance with section 27(1)(f);
                "heavy vehicle" means a vehicle, as defined in the Road Traffic
25                   Act 1974, with a gross vehicle mass of more than
                     4.5 tonnes;
                "hirer" means a person who engages an owner-driver under an
                     owner-driver contract;




     page 2
                               Owner-Drivers (Contracts and Disputes) Bill 2006
                                                    Preliminary          Part 1

                                                                            s. 4



                "inspector" means an Industrial Inspector as defined in the
                    IR Act section 7;
                "IR Act" means the Industrial Relations Act 1979;
                "owner-driver" has the meaning given to that term in
 5                  section 4;
                "owner-driver contract" has the meaning given to that term in
                    section 5;
                "party", in relation to an owner-driver contract, means a party
                    to the contract;
10              "payment claim" means a claim made under an owner-driver
                    contract --
                    (a) by the owner-driver to the hirer for payment of an
                          amount in relation to the performance by the
                          owner-driver of the owner-driver's obligations under
15                        the contract; or
                    (b) by the hirer to the owner-driver in relation to the
                          performance or non-performance by the owner-driver
                          of the owner-driver's obligations under the contract;
                "Registrar" has the meaning given to that term by the IR Act
20                  section 7;
                "Tribunal" has the meaning given to that term in section 38(2);
                "workplace" means a place, whether or not in a vehicle,
                    building or other structure, where owner-drivers or hirers
                    work or are likely to be in the course of their work.

25   4.         Meaning of "owner-driver"
          (1)   In this section --
                "listed public company" has the same meaning as it has in the
                     Income Tax Assessment Act 1997 of the Commonwealth;
                "officer", of a body corporate, has the same meaning as it has
30                   in the Corporations Act 2001 of the Commonwealth.




                                                                         page 3
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 1         Preliminary

     s. 5



          (2)   For the purposes of this Act an "owner-driver" is --
                 (a) a natural person --
                           (i) who carries on the business of transporting goods
                                in one or more heavy vehicles supplied by that
 5                              person; and
                          (ii) whose principal occupation is the operation of
                                those vehicles (whether solely or with the use of
                                other operators); or
                 (b) a body corporate (other than a listed public company)
10                      that carries on the business of transporting goods in one
                        or more heavy vehicles that are --
                           (i) supplied by the body corporate or an officer of
                                the body corporate; and
                          (ii) operated by an officer of the body corporate
15                              (whether solely or with the use of other
                                operators) whose principal occupation is the
                                operation of those vehicles; or
                 (c) a partnership of persons, at least one of whom is a
                        person referred to in paragraph (a).

20   5.         Meaning of "owner-driver contract"
          (1)   For the purposes of this Act, an "owner-driver contract" is a
                contract (whether written or oral or partly written and partly
                oral) entered into in the course of business by an owner-driver
                with another person for the transport of goods in a heavy vehicle
25              by the owner-driver.
          (2)   It does not matter that an owner-driver contract provides for an
                owner-driver to perform services other than transporting goods,
                as long as the services to be performed under the contract
                predominantly relate to the transport of goods.
30        (3)   To avoid doubt, an owner-driver contract does not include a
                contract that is a contract of employment.



     page 4
                                 Owner-Drivers (Contracts and Disputes) Bill 2006
                                                      Preliminary          Part 1

                                                                             s. 6



     6.         Application of Act
          (1)   This Act applies to and in relation to owner-drivers who are
                engaged --
                  (a) under an owner-driver contract that is entered into in
 5                     Western Australia or that is subject to the law of
                       Western Australia; or
                  (b) to transport goods wholly within Western Australia; or
                  (c) to transport goods from Western Australia to another
                       place, or from another place to Western Australia, if a
10                     substantial part of the services under the owner-driver
                       contract are performed in Western Australia.
          (2)   However, this Act does not apply in relation to an owner-driver
                contract if the owner-driver who is a party to the contract has
                the benefit of, or is otherwise covered by --
15                (a) a contract determination made under Chapter 6 of the
                        Industrial Relations Act 1996 of New South Wales; or
                  (b) an order made under the Owner Drivers and Forestry
                        Contractors Act 2005 of Victoria,
                in relation to the contract.

20   7.         Act prevails over owner-driver contracts
          (1)   A provision in an agreement or arrangement in force on, or
                entered into after, the coming into operation of this section,
                whether an owner-driver contract or not and whether in writing
                or not, that --
25                (a) purports to exclude, modify or restrict the operation of
                         this Act or the code of conduct; or
                  (b) is contrary to or inconsistent with anything in this Act,
                         the code of conduct or an order of the Tribunal,
                has no effect.




                                                                          page 5
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 1         Preliminary

     s. 8



          (2)   A provision in an agreement or arrangement that has no effect
                because of subsection (1) does not prejudice or affect the
                operation of other provisions of the agreement or arrangement.
          (3)   Any purported waiver, whether in an owner-driver contract and
 5              whether in writing or not, of an entitlement under this Act has
                no effect.
          (4)   Despite subsection (1), during the 6 months beginning on and
                including the day on which this section comes into operation, a
                provision of an owner-driver contract that is contrary to or
10              inconsistent with a provision of this Act or the code of conduct
                prevails to the extent of the inconsistency.

     8.         Act binds Crown
                This Act binds the Crown in right of the State and, so far as the
                legislative power of Parliament permits, in all its other
15              capacities.




     page 6
                            Owner-Drivers (Contracts and Disputes) Bill 2006
                             Content of owner-driver contracts        Part 2
                                         Prohibited provisions   Division 1
                                                                         s. 9



           Part 2 -- Content of owner-driver contracts
                   Division 1 -- Prohibited provisions
     9.     Prohibited: pay if paid/when paid provisions
            A provision in an owner-driver contract has no effect if it
 5          purports to make the liability of a party ("A") to pay money
            under the contract to another party contingent, whether directly
            or indirectly, on A being paid money by another person
            (whether or not a party).

     10.    Prohibited: provisions requiring payment to be made after
10          30 days
            A provision in an owner-driver contract that purports to require
            a payment to be made more than 30 days after a payment claim
            for the payment is made is to be read as being amended to
            require the payment to be made within 30 days after the claim is
15          made.

     11.    Prohibited: prescribed provisions
            A provision in an owner-driver contract has no effect if it is a
            provision that is prescribed by the regulations to be a prohibited
            provision.

20   12.    Other provisions of contract not affected
            A provision in an owner-driver contract that has no effect
            because of section 9 or 11 or that is amended under section 10
            does not prejudice or affect the operation of other provisions of
            the contract.




                                                                        page 7
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 2         Content of owner-driver contracts
     Division 2     Implied provisions
     s. 13



                       Division 2 -- Implied provisions
     13.      Time for payment
              The provisions in Schedule 1 Division 1 are implied in an
              owner-driver contract that does not have a written provision
 5            about the time by when a payment must be made.

     14.      Interest on overdue payments
              The provisions in Schedule 1 Division 2 are implied in an
              owner-driver contract that does not have a written provision
              about interest to be paid on any payment that is not made within
10            the time required by the contract.

     15.      Making payment claims
              The provisions in Schedule 1 Division 3 are implied in an
              owner-driver contract that does not have a written provision
              about how a party is to make a payment claim against another
15            party.

     16.      Interpretation of implied provisions
              Despite any provision in an owner-driver contract to the
              contrary, the Interpretation Act 1984 and sections 3 to 5 of this
              Act apply to the interpretation of a provision that is implied in
20            an owner-driver contract under this Part.




     page 8
                                Owner-Drivers (Contracts and Disputes) Bill 2006
                             Road Freight Transport Industry Council      Part 3

                                                                              s. 17



       Part 3 -- Road Freight Transport Industry Council
     17.         Road Freight Transport Industry Council established
                 A body called the Road Freight Transport Industry Council is
                 established.

 5   18.         Membership of Council
           (1)   The Council is to consist of not more than 8 persons appointed
                 by the Minister, having regard to the experience, skills and
                 qualifications that the Minister considers appropriate to enable
                 Council members to make a contribution to the work of the
10               Council.
           (2)   A Council member may be appointed on a full-time or part-time
                 basis.
           (3)   The Minister shall seek nominations for appointments to the
                 Council from --
15                (a) the chief executive officer of the Department; and
                  (b)   the Transport Forum WA Inc.; and
                  (c)   the Transport Workers Union of Australia, Industrial
                        Union of Workers Western Australian Branch; and
                  (d)   any other person or body from which the Minister
20                      considers it appropriate to seek nominations and will
                        specifically seek nominations from persons able to
                        represent the interests of regional Western Australia.
           (4)   The Minister must consider nominations lodged under
                 subsection (3) but may appoint a person as a Council member
25               whether or not the person has been nominated under that
                 subsection.




                                                                            page 9
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 3         Road Freight Transport Industry Council

     s. 19



     19.         Functions
           (1)   The functions of the Council are --
                  (a) to provide advice and recommendations to the Minister
                        in relation to the development and review of the code of
 5                      conduct; and
                  (b)    to prepare and review on a regular basis the guideline
                         rates; and
                   (c)   to promote, and to encourage compliance with, the code
                         of conduct and the guideline rates; and
10                (d)    to develop, publish and promote model owner-driver
                         contracts; and
                   (e)   to provide advice and recommendations to the Minister
                         in relation to any other matters relevant to --
                            (i) owner-driver contracts; or
15                         (ii) the commercial practices generally engaged in by
                                  owner-drivers and hirers in relation to each other.
           (2)   The Council has any other function given to it under this Act or
                 another written law.

     20.         Powers
20               The Council has all the powers it needs to perform its functions.

     21.         Minister may give directions
           (1)   The Minister may give written directions to the Council with
                 respect to the performance of its functions, either generally or in
                 relation to a particular matter, and the Council must give effect
25               to any such direction.
           (2)   The Minister must cause the text of any direction given under
                 subsection (1) to be laid before each House of Parliament, or
                 dealt with under section 54, within 14 days after the direction is
                 given.



     page 10
                                Owner-Drivers (Contracts and Disputes) Bill 2006
                             Road Freight Transport Industry Council      Part 3

                                                                                s. 22



           (3)   The text of a direction given under subsection (1) must be
                 included in the annual report submitted by the accountable
                 officer of the Department under the Financial Administration
                 and Audit Act 1985 section 66.

 5   22.         Minister to have access to information
           (1)   In this section --
                 "document" includes any tape, disk or other device or medium
                      on which information is recorded or stored;
                 "information" means information specified, or of a description
10                    specified, by the Minister that relates to the functions of the
                      Council.
           (2)   The Minister is entitled --
                  (a) to have information in the possession of the Council;
                       and
15                (b) if the information is in or on a document, to have, and
                       make and retain copies of, that document.
           (3)   For the purposes of subsection (2), the Minister may --
                  (a) request the Council to furnish information to the
                         Minister; and
20                (b)    request the Council to give the Minister access to
                         information.
           (4)   The Council must comply with a request under subsection (3).

     23.         Constitution and proceedings of Council
                 Schedule 2 sets out provisions as to the constitution and
25               proceedings of the Council.

     24.         Remuneration and allowances
                 Each Council member is to be paid the remuneration and
                 allowances that the Minister, on the recommendation of the
                 Minister for Public Sector Management, determines in the case
30               of that member.

                                                                              page 11
Owner-Drivers (Contracts and Disputes) Bill 2006
Part 3         Road Freight Transport Industry Council

s. 25



25.       Department to provide support services to Council
          The Department must provide the Council with any support
          services that the Council reasonably requires.




page 12
                                 Owner-Drivers (Contracts and Disputes) Bill 2006
                                                 Code of conduct           Part 4

                                                                                s. 26



                           Part 4 -- Code of conduct
     26.         Regulations may prescribe code of conduct
           (1)   The Governor, on the recommendation of the Minister, may
                 make regulations prescribing a code of conduct in relation to the
 5               engagement of owner-drivers under owner-driver contracts and
                 conduct and practice under owner-driver contracts.
           (2)   Before making a recommendation under subsection (1), the
                 Minister must consult with the Council.

     27.         Content of code of conduct
10         (1)   The code of conduct may --
                  (a)    provide for the conduct of negotiations for owner-driver
                         contracts, whether on an individual or joint basis; and
                  (b)    require a hirer to pay an owner-driver for services
                         provided under an owner-driver contract at a safe and
15                       sustainable rate of payment and describe how a safe and
                         sustainable rate of payment is to be determined; and
                  (c)    require a hirer to adopt the standards of conduct and
                         practice set out in the code with respect to
                         owner-drivers; and
20                (d)    require a hirer to make and keep records in relation to
                         owner-drivers, owner-driver contracts, and services
                         provided under owner-driver contracts, in the manner
                         and form set out in the code of conduct; and
                  (e)    require a hirer, at such times as are specified in the code
25                       of conduct, to provide the owner-driver with written
                         information that is to include the current guideline rates
                         and any other information specified in the code of
                         conduct; and
                   (f)   confer power on the Council to determine, amend or
30                       revoke, by notice published in the Gazette, guideline



                                                                            page 13
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 4         Code of conduct

     s. 27



                      rates for the purpose of providing guidance as to rates
                      and costs to --
                         (i) owner-drivers and hirers when negotiating
                              owner-driver contracts; and
 5                      (ii) the Tribunal when determining whether
                              payments have been made at a safe and
                              sustainable rate;
                      and
                (g)   provide for any other matter relevant to the engagement
10                    of owner-drivers under owner-driver contracts.
        (2)    The Council must obtain the approval of the chairman of the
               Council before determining, amending or revoking any
               guideline rates.
        (3)    The guideline rates are to --
15              (a) specify the class of owner-driver, vehicle and equipment
                      to which they apply; and
                (b) contain the following information --
                         (i) typical fixed and variable overhead costs for that
                              class of owner-driver, vehicle and equipment;
20                      (ii) the base hourly rate or casual hourly rate that
                              would typically apply to that class of
                              owner-driver if an owner-driver of that class
                              were, as an employee, performing substantially
                              the same work.
25      (4)    For the purposes of subsection (3)(b)(i), "fixed and variable
               overhead costs" include, but are not limited to --
                 (a) vehicle or equipment registration, maintenance and
                       running costs; and
                (b) business administration and insurance costs (including
30                     any premiums payable under the Workers'
                       Compensation and Injury Management Act 1981); and
                 (c) self-funding of superannuation; and


     page 14
               Owner-Drivers (Contracts and Disputes) Bill 2006
                               Code of conduct           Part 4

                                                              s. 27



(d)    finance costs; and
(e)    costs of complying with any applicable laws; and
 (f)   costs of engaging additional or relief labour; and
(g)    depreciation of vehicles and equipment.




                                                            page 15
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 5         Negotiations for owner-driver contracts

     s. 28



           Part 5 -- Negotiations for owner-driver contracts
     28.         Negotiating agents for owner-drivers
           (1)   An owner-driver or group of owner-drivers may, by instrument,
                 appoint a person or group of persons to be the negotiating agent
 5               for the owner-driver or owner-drivers in relation to the
                 engagement of the owner-driver or owner-drivers, including the
                 making, variation or termination of owner-driver contracts.
           (2)   Subject to subsection (3), a hirer must not refuse to recognise a
                 negotiating agent duly appointed by an owner-driver or group of
10               owner-drivers for the purposes of subsection (1).
           (3)   Subsection (2) does not apply if the hirer has not been given a
                 copy of the agent's instrument of appointment before the
                 refusal.
           (4)   If requested to do so by the negotiating agent, a hirer must deal
15               exclusively with the agent within the scope of the agent's
                 authority.
           (5)   A person must not coerce, or attempt to coerce, an owner-driver
                 or group of owner-drivers --
                   (a) to appoint, or not to appoint, a particular person or group
20                      of persons as a negotiating agent; or
                   (b) to terminate the appointment of a negotiating agent.

     29.         Negotiating agents for hirers
           (1)   A hirer may, by instrument, appoint a person or group of
                 persons to be the negotiating agent for the hirer in relation to the
25               engagement of an owner-driver or owner-drivers, including the
                 making, variation or termination of owner-driver contracts.
           (2)   Subject to subsection (3), an owner-driver or group of
                 owner-drivers must not refuse to recognise a negotiating agent
                 duly appointed by a hirer for the purposes of subsection (1).



     page 16
                          Owner-Drivers (Contracts and Disputes) Bill 2006
                        Negotiations for owner-driver contracts     Part 5

                                                                       s. 29



     (3)   Subsection (2) does not apply if the owner-driver, or a
           representative of the group, refusing has not been given a copy
           of the agent's instrument of appointment before the refusal.
     (4)   If requested to do so by the negotiating agent, an owner-driver
 5         or group of owner-drivers must deal exclusively with the agent
           within the scope of the agent's authority.
     (5)   A person must not coerce, or attempt to coerce, a hirer --
            (a) to appoint, or not to appoint, a particular person or group
                  of persons as a negotiating agent; or
10          (b) to terminate the appointment of a negotiating agent.




                                                                    page 17
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 6         Unconscionable conduct

     s. 30



                      Part 6 -- Unconscionable conduct
     30.         Unconscionable conduct by hirers
           (1)   A hirer must not engage in conduct that is, in all the
                 circumstances, unconscionable with respect to an owner-driver
 5               in relation to the acquisition or possible acquisition by the hirer
                 of services from the owner-driver under an owner-driver
                 contract.
           (2)   Without in any way limiting the matters to which the Tribunal
                 may have regard for the purpose of determining whether a hirer
10               has contravened subsection (1), the Tribunal may have regard to
                 the following --
                   (a) the relative strengths of the negotiating positions of the
                         hirer and owner-driver;
                   (b) whether, as a result of conduct engaged in by the hirer,
15                       the owner-driver was required to comply with
                         conditions that were not reasonably necessary for the
                         protection of the legitimate interests of the hirer;
                   (c) whether the owner-driver was able to understand any
                         documents relating to the acquisition or possible
20                       acquisition by the hirer of services from the
                         owner-driver under an owner-driver contract;
                   (d) whether any undue influence or pressure was exerted on,
                         or any unfair tactics were used against, the owner-driver
                         (or a person acting on behalf of the owner-driver) by the
25                       hirer or a person acting on behalf of the hirer in relation
                         to the acquisition or possible acquisition by the hirer of
                         services from the owner-driver under an owner-driver
                         contract;
                   (e) the amount for which, and the circumstances under
30                       which, the owner-driver could have provided identical
                         or equivalent services to a person other than the hirer,
                         including as an employee;



     page 18
                                 Owner-Drivers (Contracts and Disputes) Bill 2006
                                          Unconscionable conduct           Part 6

                                                                              s. 31



                   (f)   the extent to which the hirer's conduct towards the
                         owner-driver was consistent with the hirer's conduct in
                         similar transactions between the hirer and other similar
                         owner-drivers;
 5                (g)    the requirements of the code of conduct;
                  (h)    the extent to which the hirer unreasonably failed to
                         disclose to the owner-driver --
                            (i) any intended conduct of the hirer that might
                                 affect the interests of the owner-driver; and
10                         (ii) any risks to the owner-driver arising from the
                                 hirer's intended conduct that are risks that the
                                 hirer should have foreseen would not be apparent
                                 to the owner-driver;
                   (i)   the extent to which the hirer was willing to negotiate the
15                       terms and conditions of the acquisition or possible
                         acquisition by the hirer of services from the
                         owner-driver under an owner-driver contract;
                   (j)   the extent to which the hirer acted in good faith;
                  (k)    whether or not the owner-driver contract provides for
20                       the payment of any increases in the owner-driver's fixed
                         and variable overhead costs (as defined in
                         section 27(4)).

     31.         Unconscionable conduct by owner-drivers
           (1)   An owner-driver must not engage in conduct that is, in all the
25               circumstances, unconscionable with respect to a hirer in relation
                 to the provision or possible provision by the owner-driver of
                 services to the hirer under an owner-driver contract.
           (2)   Without in any way limiting the matters to which the Tribunal
                 may have regard for the purpose of determining whether an
30               owner-driver has contravened subsection (1), the Tribunal may
                 have regard to the following --
                   (a) the relative strengths of the negotiating positions of the
                        owner-driver and hirer;

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     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 6         Unconscionable conduct

     s. 31



               (b)    whether, as a result of conduct engaged in by the
                      owner-driver, the hirer was required to comply with
                      conditions that were not reasonably necessary for the
                      protection of the legitimate interests of the owner-driver;
 5             (c)    whether the hirer was able to understand any documents
                      relating to the provision or possible provision by the
                      owner-driver of services to the hirer under an
                      owner-driver contract;
               (d)    whether any undue influence or pressure was exerted on,
10                    or any unfair tactics were used against, the hirer (or a
                      person acting on behalf of the hirer) by the owner-driver
                      or a person acting on behalf of the owner-driver in
                      relation to the provision or possible provision by the
                      owner-driver of services to the hirer under an
15                    owner-driver contract;
               (e)    the amount for which, and the circumstances under
                      which, the hirer could have acquired identical or
                      equivalent services from a person other than the
                      owner-driver, including from an employee;
20              (f)   the extent to which the owner-driver's conduct towards
                      the hirer was consistent with the owner-driver's conduct
                      in similar transactions between the owner-driver and
                      other similar hirers;
               (g)    the requirements of the code of conduct;
25             (h)    the extent to which the owner-driver unreasonably failed
                      to disclose to the hirer --
                         (i) any intended conduct of the owner-driver that
                              might affect the interests of the hirer; and
                        (ii) any risks to the hirer arising from the
30                            owner-driver's intended conduct that are risks
                              that the owner-driver should have foreseen
                              would not be apparent to the hirer;
                (i)   the extent to which the owner-driver was willing to
                      negotiate the terms and conditions of the provision or


     page 20
              Owner-Drivers (Contracts and Disputes) Bill 2006
                       Unconscionable conduct           Part 6

                                                           s. 31



      possible provision by the owner-driver of services to the
      hirer under an owner-driver contract;
(j)   the extent to which the owner-driver acted in good faith.




                                                        page 21
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 7         Inspectors

     s. 32



                               Part 7 -- Inspectors
     32.         Functions of inspectors
           (1)   An inspector may, for the purposes of investigating whether or
                 not this Act, the code of conduct or an owner-driver contract is
 5               being complied with, exercise any of the powers that an
                 Industrial Inspector has under the IR Act section 98(3) and, for
                 that purpose, a reference in that provision to --
                   (a) that Act is to be read as a reference to this Act or the
                         code of conduct; and
10                 (b) an instrument is to be read as a reference to an
                         owner-driver contract; and
                   (c) industrial location is to be read as a reference to
                         workplace.
           (2)   The IR Act section 98(4) and (5) apply in relation to the
15               exercise of powers under this section as if the powers were
                 exercised under that Act.

     33.         Obstructing or hindering inspector
           (1)   A person must not obstruct or hinder an inspector in the exercise
                 of an inspector's powers under section 32.
20         (2)   A person must not fail to --
                  (a) comply with a lawful requirement of an inspector; or
                  (b) refuse or fail to answer a question lawfully put to the
                        person by an inspector.
           (3)   A person must not give an inspector information that is false or
25               misleading in a material particular.
           (4)   A contravention of subsection (1), (2) or (3) is not an offence
                 but those subsections are civil penalty provisions for the
                 purposes of the IR Act section 83E.




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                                  Owner-Drivers (Contracts and Disputes) Bill 2006
                     Rights of entry, inspection and access to records      Part 8

                                                                              s. 34



             Part 8 -- Rights of entry, inspection and access
                               to records
     34.         Access to records
           (1)   In this section --
 5               "relevant person" means --
                      (a) the owner-driver concerned; or
                      (b) a person authorised in writing by the owner-driver to
                             act on behalf of the owner-driver for the purposes of
                             this section.
10         (2)   A hirer, on written request by a relevant person, must --
                  (a) produce to the relevant person the records relating to the
                         owner-driver concerned that are required to be kept by
                         the hirer under the code of conduct; and
                  (b) let the relevant person inspect the records.
15         (3)   The duty placed on a hirer under subsection (2) --
                  (a) continues for so long as the records are required to be
                        kept under the code of conduct; and
                  (b) is not affected by the fact that an owner-driver contract
                        is no longer in force; and
20                (c) includes the further duties --
                           (i) to let the relevant person enter premises of the
                                hirer for the purpose of inspecting the records;
                                and
                          (ii) to let the relevant person take copies of or
25                              extracts from the records;
                        and
                  (d) must be complied with not later than the seventh day
                        after the day on which the request was made to the hirer.
           (4)   Nothing in this section limits or otherwise affects the powers of
30               an inspector under this Act.

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     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 8         Rights of entry, inspection and access to records

     s. 35



           (5)   A contravention of subsection (2) is not an offence but that
                 subsection is a civil penalty provision for the purposes of the
                 IR Act section 83E.

     35.         Right of entry by representative to investigate breaches
 5         (1)   In this section --
                 "occupier", of a workplace, includes a person in charge of the
                     workplace;
                 "records" means records required to be kept under a code of
                     conduct;
10               "representative", in relation to an owner-driver, means a
                     person authorised in writing by the owner-driver to act on
                     behalf of the owner-driver for the purposes of this section.
           (2)   A representative of an owner-driver may enter, during working
                 hours, any workplace where the owner-driver works, for the
15               purpose of investigating any suspected breach of this Act, the
                 code of conduct or an owner-driver contract to which the
                 owner-driver is a party.
           (3)   If --
                   (a)   a representative proposes to enter, or is in, a workplace
20                       in accordance with subsection (2); and
                  (b)    the occupier requests the representative to show the
                         representative's written authorisation to act on behalf of
                         the owner-driver,
                 the representative is not entitled under subsection (2) to enter or
25               remain in the workplace unless the representative shows the
                 occupier the written authorisation.
           (4)   For the purpose of investigating a suspected breach referred to
                 in subsection (2), the representative may --
                   (a) subject to subsection (5), require the hirer to produce for
30                       the representative's inspection, during working hours at
                         the workplace or at any mutually convenient time and


     page 24
                            Owner-Drivers (Contracts and Disputes) Bill 2006
               Rights of entry, inspection and access to records      Part 8

                                                                         s. 35



                   place, any records or other documents kept by the hirer
                   that are related to the suspected breach; and
            (b)    make copies of the entries in the records or documents
                   related to the suspected breach; and
 5           (c)   during working hours, inspect or view any work,
                   material, machinery or appliance, that is relevant to the
                   suspected breach.
     (5)   A representative is not entitled to require the production of
           records or other documents unless, before exercising the power,
10         the representative has given the hirer concerned --
             (a) if the records or other documents are kept at the
                   workplace concerned, at least 24 hours' written notice of
                   the requirement; or
             (b) if the records or other documents are kept elsewhere, at
15                 least 48 hours' written notice of the requirement.
     (6)   The Tribunal may, on the ex parte application of the
           representative, waive the requirement under subsection (5) to
           give the hirer concerned notice of an intended exercise of a
           power if the Tribunal is satisfied that to give such notice would
20         defeat the purpose for which the power is intended to be
           exercised.
     (7)   If the requirement for notice is waived under subsection (6) --
             (a)   the Tribunal must give the representative a certificate
                   authorising the exercise of the power without notice; and
25          (b)    the representative must, after entering the workplace and
                   before requiring the production of the records or
                   documents, give the person who is apparently in charge
                   of the workplace the certificate or a copy of the
                   certificate.
30   (8)   Nothing in this section limits or otherwise affects the powers of
           an inspector under this Act.




                                                                      page 25
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 8         Rights of entry, inspection and access to records

     s. 36



     36.         Enforcement of section 35
           (1)   An occupier of a workplace must not refuse, or intentionally and
                 unduly delay, entry to a workplace by a person entitled to enter
                 the workplace under section 35(2).
 5         (2)   A person must not intentionally and unduly hinder or obstruct a
                 representative in the exercise of the powers conferred by
                 section 35.
           (3)   A contravention of subsection (1) or (2) is not an offence but
                 those subsections are civil penalty provisions for the purposes of
10               the IR Act section 83E.




     page 26
                                Owner-Drivers (Contracts and Disputes) Bill 2006
                            Road Freight Transport Industry Tribunal      Part 9

                                                                             s. 37



      Part 9 -- Road Freight Transport Industry Tribunal
     37.         Terms used in this Part
           (1)   In this Part --
                 "Chief Commissioner" has the meaning given to that term in
 5                    the IR Act section 7(1);
                 "Commission" has the meaning given to that term in the IR Act
                      section 7(1);
                 "Commissioner" has the meaning given to that term in the IR
                      Act section 7(1);
10               "dispute" means a dispute between one or more owner-drivers
                      and one or more hirers arising under or in relation to this
                      Act, the code of conduct or an owner-driver contract
                      (including a payment dispute) and includes an allegation
                      that a person has contravened this Act, the code of conduct
15                    or an owner-driver contract;
                 "transport association" means --
                      (a) the Transport Forum WA Inc.; or
                      (b) the Transport Workers Union of Australia, Industrial
                             Union of Workers Western Australian Branch.
20         (2)   For the purposes of this Act, a "payment dispute" arises if, by
                 the time the amount claimed in a payment claim is due to be
                 paid under an owner-driver contract, the amount has not been
                 paid in full, or the claim has been rejected or wholly or partly
                 disputed.

25   38.         Industrial Relations Commission sitting as the Road Freight
                 Transport Industry Tribunal
           (1)   By this section the Commission has jurisdiction to --
                  (a) hear and determine disputes that may be referred to the
                         Commission under this Part; and




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     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 9         Road Freight Transport Industry Tribunal

     s. 39



                  (b)   enquire into and deal with any other matter in relation to
                        the negotiation of owner-driver contracts that may be
                        referred to the Commission under this Part.
           (2)   When sitting in exercise of the jurisdiction conferred by
 5               subsection (1) or under section 46, the Commission is to be
                 known as the Road Freight Transport Industry Tribunal (the
                 "Tribunal").
           (3)   A determination of the Tribunal on a dispute or matter
                 mentioned in subsection (1) has effect according to its
10               substance.

     39.         Jurisdiction to be exercised by Commissioner with necessary
                 qualifications
           (1)   The jurisdiction conferred by section 38 in respect of any
                 dispute or matter is to be exercised by the Commission
15               constituted by a Commissioner.
           (2)   In allocating a dispute or matter for the purposes of
                 subsection (1), the Chief Commissioner must have regard to the
                 desirability of the Commissioner concerned having relevant
                 knowledge of this Act and in the field of road freight transport.

20   40.         Persons who may refer disputes and matters to the Tribunal
                 A dispute or matter may be referred to the Tribunal --
                  (a) in the case of a dispute arising under or in relation to an
                        owner-driver contract, by --
                           (i) a person who is a party to the owner-driver
25                             contract; or
                          (ii) a transport association in which a party to the
                               owner-driver contract is eligible to be enrolled as
                               a member; or
                         (iii) an inspector; or
30                       (iv) the Minister;
                        and

     page 28
                          Owner-Drivers (Contracts and Disputes) Bill 2006
                      Road Freight Transport Industry Tribunal      Part 9

                                                                          s. 41



            (b)   in the case of a dispute arising under or in relation to this
                  Act or the code of conduct, or involving an allegation
                  that a person has contravened this Act or the code of
                  conduct, by --
 5                   (i) an owner-driver or hirer with a sufficient interest
                          in the dispute; or
                    (ii) a transport association; or
                   (iii) except in a case involving an allegation that a
                          person has contravened Part 6 -- an inspector; or
10                 (iv) the Minister;
                  and
            (c)   in the case of a matter arising in relation to the conduct
                  of joint negotiations for an owner-driver contract by --
                     (i) an owner-driver or hirer with a sufficient interest
15                        in the matter; or
                    (ii) a transport association; or
                   (iii) the Minister.

     41.   Intervention in proceeding
           The Minister may, on behalf of the State and by leave of the
20         Tribunal, intervene in a proceeding of the Tribunal in which the
           State has an interest.

     42.   Representation
           Any party to proceedings before the Tribunal, and any other
           person or body permitted by or under this Act to intervene or be
25         heard in proceedings before the Tribunal, may appear --
             (a) in person; or
             (b) with the leave of the Tribunal, or in accordance with the
                   regulations, by a legal practitioner or agent.




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     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 9         Road Freight Transport Industry Tribunal

     s. 43



     43.         Applied provisions: practice, procedure and appeals
           (1)   The following provisions (the "applied provisions") of the
                 IR Act that apply to and in relation to the exercise of the
                 jurisdiction of the Commission constituted by a Commissioner
 5               apply to the exercise of the jurisdiction conferred by
                 section 38(1) --
                   (a) section 22B;
                   (b) section 26(1)(a) and (b), (2) and (3);
                   (c) section 27;
10                 (d) section 28;
                   (e) section 29B;
                    (f) section 32A;
                   (g) section 33;
                   (h) section 34(1), (3) and (4);
15                  (i) section 36;
                    (j) section 49;
                   (k) section 90;
                    (l) section 91;
                  (m) section 92.
20         (2)   The applied provisions have effect --
                  (a)       with such modifications as may be prescribed under the
                            IR Act section 113; and
                  (b)       with such other modifications as the Tribunal
                            determines may be necessary or appropriate.
25         (3)   For the purposes of subsection (1), the IR Act section 90(1)
                 applies as if paragraph (a) were deleted and the following
                 paragraph were inserted instead --
                        "
                            (a)   on the ground that the decision is in excess of
30                                jurisdiction;
                                                                                    ".

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                                 Owner-Drivers (Contracts and Disputes) Bill 2006
                             Road Freight Transport Industry Tribunal      Part 9

                                                                                  s. 44



     44.         Conciliation
           (1)   This section applies where a dispute or matter has been referred
                 to the Tribunal under this Part.
           (2)   If the Tribunal considers that the issues involved may be
 5               resolved by conciliation --
                   (a) the Tribunal may endeavour to assist the parties to reach
                         an agreement on those issues; and
                   (b) for that purpose the Tribunal may --
                            (i) arrange conferences of the parties or their
10                               representatives presided over by the Tribunal;
                                 and
                           (ii) arrange for the parties or their representatives to
                                 confer among themselves at a conference at
                                 which the Tribunal is not present; and
15                        (iii) otherwise encourage the parties to exchange or
                                 divulge attitudes or information that in the
                                 opinion of the Tribunal would assist in the
                                 resolution of the issues.
           (3)   The Tribunal may give any direction or make any order or
20               declaration that the Tribunal thinks expedient for the purposes
                 of this section.
           (4)   If the Tribunal gives or makes a direction, order or declaration
                 under subsection (3) the Tribunal must --
                   (a) if it is given or made orally, reduce the direction, order
25                       or declaration to writing as soon as is practicable; and
                   (b) make the text of the direction, order or declaration
                         available to the parties as soon as is practicable after it is
                         given or made.
           (5)   If the Tribunal --
30                 (a) takes action under subsection (2)(a); and




                                                                               page 31
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 9         Road Freight Transport Industry Tribunal

     s. 45



                  (b)   is satisfied that the parties have reached agreement on
                        all of the issues involved,
                 the Tribunal may, with the consent of the parties, make a
                 determination by order for the purposes of section 38 in terms of
 5               that agreement.

     45.         Compulsory attendance at conciliation
           (1)   Subject to this section, the Tribunal may summon any person to
                 attend, at a time and place specified in the summons, at
                 conciliation proceedings under section 44.
10         (2)   A summons under this section --
                  (a)   may be given in the manner prescribed by the
                        regulations; and
                  (b)   when so given, is to be taken, in any proceedings
                        relating to the summons, to have been served on the
15                      person to whom it is directed unless that person, in those
                        proceedings, satisfies the Tribunal or the Full Bench, as
                        the case may be, that he or she did not receive the
                        summons.
           (3)   Any person so summoned must, except for good cause, proof of
20               which is on that person, attend the conciliation proceedings at
                 the time and place specified in the summons and continue to
                 attend at that place as directed by the Tribunal.

     46.         Enforcement for the purposes of sections 44 and 45
           (1)   If a person contravenes section 45(3), or a direction, order or
25               declaration given or made under section 44(3) or section 45, the
                 Tribunal --
                   (a) on its own initiative; or
                   (b) on the application of --
                           (i) a person who is a party to the proceeding in
30                              relation to which the contravention arises; or



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                                 Owner-Drivers (Contracts and Disputes) Bill 2006
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                                                                                s. 47



                          (ii)    a transport association in which a party to the
                                  proceeding in relation to which the contravention
                                  arises is eligible to be enrolled as a member; or
                          (iii)   the Minister,
 5               may enforce that provision, direction, order or declaration as
                 specified in subsection (4).
           (2)   An application for the enforcement of section 45(3), or a
                 direction, order or declaration given or made under
                 section 44(3) or section 45, must not be made otherwise than to
10               the Tribunal.
           (3)   The jurisdiction conferred by this section is to be exercised by
                 the Commission constituted by a Commissioner.
           (4)   For the purposes of subsection (1) the Tribunal has all of the
                 powers and duties of the Full Bench under the IR Act
15               section 84A(4) to (8), and those provisions apply accordingly.
           (5)   For the purposes of this section, the IR Act sections 82A and
                 103 apply as if references in those sections to section 84A were
                 references to this section.

     47.         Determination of dispute where no resolution by conciliation
20         (1)   If --
                   (a)   a dispute is referred to the Tribunal; and
                   (b)   the Tribunal takes action under section 44(2)(a); and
                   (c)   section 44(5)(b) does not apply,
                 the Tribunal may hear and determine the dispute for the
25               purposes of section 38(1)(a).
           (2)   The Tribunal does not have jurisdiction to make a determination
                 under this section in respect of a matter arising in relation to the
                 conduct of joint negotiations for an owner-driver contract.




                                                                             page 33
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 9         Road Freight Transport Industry Tribunal

     s. 47



        (3)    In making a determination mentioned in subsection (1), the
               Tribunal must endeavour to ensure that the matter is resolved --
                 (a) taking into account any agreement reached by the parties
                      on any particular issue; and
 5               (b) subject to paragraph (a), on terms that could reasonably
                      have been agreed between the parties in the first instance
                      or by conciliation.
        (4)    In making a determination mentioned in subsection (1), the
               Tribunal may do one or more of the following --
10               (a) order the payment of a sum of money --
                         (i) found by the Tribunal to be owing by one party
                             to another party; or
                        (ii) by way of damages (including exemplary
                             damages and damages in the nature of interest);
15                           or
                       (iii) by way of restitution;
                 (b) order the refund of any money paid under an
                      owner-driver contract;
                 (c) make an order in the nature of an order for specific
20                    performance of an owner-driver contract;
                 (d) declare that a debt is, or is not, owing;
                 (e) order a party to do, or to refrain from doing, something;
                  (f) make any other order it considers fair, including
                      declaring void any unjust term of an owner-driver
25                    contract.
        (5)    In making an order under subsection (4), the Tribunal cannot --
                 (a) insert a term into; or
                 (b) subject to subsection (4)(f), otherwise vary,
               an owner-driver contract.




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                                Owner-Drivers (Contracts and Disputes) Bill 2006
                            Road Freight Transport Industry Tribunal      Part 9

                                                                                s. 48



     48.         Order to prevent entering into of owner-driver contracts
           (1)   The Tribunal, when making an order under section 47 or at a
                 later time, may make any further order the Tribunal considers
                 appropriate for the purpose of prohibiting (either absolutely or
 5               otherwise than in accordance with specified conditions) a
                 relevant person from --
                   (a) entering into any specified kind of owner-driver
                          contract; or
                   (b) doing any act (whether by advertising or otherwise) that
10                        may reasonably be construed as being intended to
                          induce other persons to enter into any such contract.
           (2)   An order under this section must identify the person or persons
                 bound by the order and takes effect in respect of each of those
                 persons on service of a copy of the order on the person.
15         (3)   In this section --
                 "relevant person" means --
                      (a) a party to the proceedings; or
                      (b) any other person who is, in any way considered
                             relevant by the Tribunal, associated with a party to
20                           the proceedings.

     49.         Other jurisdictions
           (1)   Where --
                  (a) a dispute has been referred to the Tribunal; and
                  (b) at the time the dispute was referred no issue arising
25                     under the referral was the subject of civil proceedings
                       before a court,
                 a court has no jurisdiction to hear or determine such an issue in
                 civil proceedings unless subsection (2) applies.
           (2)   This subsection applies if the dispute, or the part of the dispute
30               to which the issue referred to in subsection (1) relates, is
                 withdrawn or is dismissed for want of jurisdiction.

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     Owner-Drivers (Contracts and Disputes) Bill 2006
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     s. 50



           (3)   Where --
                  (a) a dispute has been referred to the Tribunal; and
                  (b) at the time the dispute was referred an issue arising
                       under the referral was the subject of civil proceedings
 5                     before a court,
                 the Tribunal, on becoming aware of those proceedings, ceases to
                 have jurisdiction to hear or determine the issue unless
                 subsection (4) applies.
           (4)   This subsection applies if --
10                (a) the proceedings referred to in subsection (3) are, or the
                        part of the proceedings relating to the issue referred to in
                        that subsection is, transferred to the Tribunal by the
                        court concerned; or
                  (b) those proceedings are, or that part of those proceedings
15                      is, withdrawn or dismissed by the court or by another
                        court on appeal in those proceedings, for want of
                        jurisdiction or without deciding the issue on its merits;
                        or
                  (c) as a result of judicial review, a court quashes or declares
20                      invalid those proceedings or that part of those
                        proceedings or any order, judgment or decision made in
                        those proceedings in relation to the issue, on the ground
                        that the court concerned had no jurisdiction to hear and
                        determine the issue.

25   50.         Enforcement of monetary order
           (1)   In this section --
                 "monetary order" means an order of the Tribunal requiring the
                      payment or refund of money (including an order as to
                      costs).




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                                Owner-Drivers (Contracts and Disputes) Bill 2006
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                                                                               s. 51



           (2)   A person to whom a payment or refund is to be made under a
                 monetary order may enforce the order by filing in a court of
                 competent jurisdiction --
                   (a) a copy of the order that the Registrar has certified to be a
 5                      true copy; and
                   (b) the person's affidavit as to the amount not paid under
                        the order and, if the order is to take effect upon any
                        default, as to the making of that default.
           (3)   No charge is to be made for filing a copy of an order or an
10               affidavit under this section.
           (4)   On filing, the order is taken to be an order of the court, and may
                 be enforced accordingly.

     51.         Enforcement of order other than conciliation or monetary
                 order
15         (1)   This section applies to an order of the Tribunal to the extent that
                 the decision is not --
                   (a) an order referred to in section 44(3); or
                   (b) a monetary order (as defined in section 50(1)).
           (2)   A person who fails to comply with an order to which this
20               section applies is to be taken to commit a contempt of the
                 Industrial Appeal Court and is punishable by that court under
                 the IR Act section 92.




                                                                            page 37
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 10        Miscellaneous

     s. 52



                            Part 10 -- Miscellaneous
     52.         Trade Practices Act and Competition Code
           (1)   For the purposes of the Trade Practices Act 1974 of the
                 Commonwealth and the Competition Code the following things
 5               are authorised by this Act --
                   (a) the making of a code of conduct; and
                   (b) anything done by a person in order to comply with this
                         Act or a code of conduct; and
                   (c) anything done by an owner-driver or group of
10                       owner-drivers preparatory to entering into, or in
                         anticipation of, joint negotiations with a single business,
                         including the appointment of a negotiating agent to
                         conduct those joint negotiations; and
                   (d) anything done by a negotiating agent, as authorised by
15                       this Act and in accordance with the agent's terms of
                         appointment, in conducting joint negotiations with a
                         single business; and
                   (e) any dealings by an owner-driver or group of
                         owner-drivers with their negotiating agent for the
20                       purposes of conducting joint negotiations with a single
                         business.
           (2)   For the purposes of this section --
                  (a) a "single business" is a business, project or undertaking
                         that is carried on by one hirer; and
25                (b) if 2 or more hirers carry on a business, project or
                         undertaking as a joint venture or common enterprise, the
                         hirers are taken to be one hirer; and
                  (c) if 2 or more corporations that are related to each other
                         for the purposes of the Corporations Act 2001 of the
30                       Commonwealth each carry on a single business --
                           (i) the corporations are to be treated as one hirer;
                                  and


     page 38
                                   Owner-Drivers (Contracts and Disputes) Bill 2006
                                                     Miscellaneous         Part 10

                                                                                  s. 53



                          (ii)   the single businesses are to be treated as one
                                 single business.

     53.         Confidentiality
                 A person who performs any function under this Act must not,
 5               directly or indirectly, disclose or make use of any information
                 obtained in the course of duty except --
                   (a) in the performance of functions under this Act; or
                   (b) as required or allowed by any other law; or
                   (c) for the purpose of any legal proceedings arising out of
10                       the administration of this Act; or
                   (d) with the written consent of the Minister or the person to
                         whom the information relates; or
                   (e) in other circumstances prescribed by the regulations.
                 Penalty: a fine of $12 000 and imprisonment for 12 months.

15   54.         Laying documents before Parliament
           (1)   If --
                   (a)   at the commencement of the period referred to in
                         section 21(2) or Schedule 2 clause 20(2) in respect of a
                         document a House of Parliament is not sitting; and
20                (b)    the Minister is of the opinion that that House will not sit
                         during that period,
                 the Minister must transmit a copy of the document to the Clerk
                 of that House.
           (2)   A copy of a document transmitted to the Clerk of a House is to
25               be taken to have been laid before that House.
           (3)   The laying of a copy of a document that is taken to have
                 occurred under subsection (2) must be recorded in the Minutes,
                 or Votes and Proceedings, of the House on the first sitting day
                 of the House after the Clerk received the copy.



                                                                            page 39
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Part 10        Miscellaneous

     s. 55



     55.         Protection from liability
           (1)   An action in tort does not lie against a person for anything that
                 the person has done, in good faith, in the performance or
                 purported performance of a function under this Act.
 5         (2)   The State is also relieved of any liability that it might otherwise
                 have had for another person having done anything as described
                 in subsection (1).
           (3)   The protection given by this section applies even though the
                 thing done as described in subsection (1) may have been
10               capable of being done whether or not this Act had been enacted.
           (4)   In this section, a reference to the doing of anything includes a
                 reference to the omission to do anything.

     56.         Protection for compliance with this Act
           (1)   No civil or criminal liability attaches to a person for
15               compliance, or purported compliance, in good faith, with a
                 requirement of this Act.
           (2)   In particular, if a person produced a document or other material
                 as required under this Act, no civil liability attaches to the
                 person for producing the document or material, whether the
20               liability would arise under a contract or otherwise.

     57.         Regulations
           (1)   The Governor may make regulations prescribing all matters that
                 are required or permitted by this Act to be prescribed, or are
                 necessary or convenient to be prescribed for giving effect to the
25               purposes of this Act.
           (2)   Without limiting the application of the Interpretation Act 1984
                 section 43, regulations made under this Act may adopt wholly
                 or partly any standards, rules, code or other provisions
                 published by some other body and may adopt them --
30                 (a) with or without amendment or modification; and


     page 40
                                 Owner-Drivers (Contracts and Disputes) Bill 2006
                                                   Miscellaneous         Part 10

                                                                             s. 58



                  (b)   as in force at the time of adoption or as amended from
                        time to time.

     58.         Consequential amendments
                 The Acts mentioned in Schedule 3 are amended as set out in
 5               that Schedule.

     59.         Review of Act
           (1)   The Minister must carry out a review of the operation and
                 effectiveness of this Act as soon as is practicable after the
                 expiry of 5 years from the commencement of this section and, in
10               the course of that review, the Minister must consider and have
                 regard to --
                   (a) the effectiveness of the operations of the Council and
                         the Tribunal; and
                   (b) the need for the continuation of the functions of the
15                       Council and the Tribunal; and
                   (c) any other matters that appear to the Minister to be
                         relevant to the operation and effectiveness of this Act.
           (2)   The Minister must prepare a report based on the review and, as
                 soon as is practicable after the report is prepared, and in any
20               event not more than 12 months after the expiry of the 5 year
                 period referred to in subsection (1), must cause it to be laid
                 before each House of Parliament.




                                                                          page 41
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Schedule 1     Implied provisions
     Division 1     Responding to claims for payment
     cl. 1



                         Schedule 1 -- Implied provisions
                                                                       [s. 13, 14, 15, 16]

                  Division 1 -- Responding to claims for payment
     1.         Responding to a payment claim
 5              Within 14 days after a party receives a payment claim, the party must
                do one of the following --
                  (a)     pay the part of the amount of the claim that is not disputed;
                  (b)     pay the whole of the amount of the claim.

                        Division 2 -- Interest on overdue amounts

10   2.         Interest payable on overdue amounts
          (1)   Interest is payable on so much of an amount that --
                  (a) is payable under this contract by a party to another party on
                         or before a certain date; and
                  (b) is unpaid after that date.
15        (2)   The interest must be paid for the period beginning on the day after the
                date on which the amount is due and ending on and including the date
                on which the amount payable is paid.
          (3)   The rate of interest at any time is equal to that prescribed for that time
                under the Civil Judgments Enforcement Act 2004 section 8(1)(a).

20                      Division 3 -- Making claims for payment

     3.         Content of claim for payment
                A payment claim must --
                  (a)     state the name of the claimant; and
                  (b)     state the date of the claim; and
25                (c)     in the case of a claim by the owner-driver -- itemise and
                          describe the obligations under this contract that the
                          owner-driver has performed and to which the claim relates in
                          sufficient detail for the hirer to assess the claim; and


     page 42
               Owner-Drivers (Contracts and Disputes) Bill 2006
                               Implied provisions  Schedule 1
                      Making claims for payment     Division 3
                                                           cl. 3



(d)   in the case of a claim by the hirer -- describe the basis for the
      claim in sufficient detail for the owner-driver to assess the
      claim; and
(e)   be given to the party against which the claim is made.




                                                               page 43
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Schedule 2     Constitution and proceedings of Council
     Division 1     General provisions
     cl. 1



          Schedule 2 -- Constitution and proceedings of Council
                                                                                 [s. 23]

                           Division 1 -- General provisions
     1.         Term of office
 5              A Council member holds office for the term, not exceeding 3 years,
                that is specified in the instrument of his or her appointment, but may
                from time to time be re-appointed.

     2.         Chairman and deputy chairman
          (1)   The Minister is to appoint one Council member to be the chairman.
10        (2)   The Council is to elect one Council member to be the deputy
                chairman.
          (3)   If the chairman is unable to act by reason of sickness, absence or other
                cause, or during any vacancy in that office, the deputy chairman is to
                perform the functions of the chairman.

15   3.         Resignation, removal, etc.
          (1)   The office of a Council member becomes vacant if he or she --
                  (a) resigns the office by written notice addressed to the Minister;
                        or
                  (b)   is an insolvent under administration as defined in the
20                      Corporations Act 2001 of the Commonwealth; or
                  (c)   is removed from office by the Minister under subclause (2).
          (2)   The Minister may remove a Council member from office if the
                Minister is satisfied that the member --
                  (a)   has neglected his or her duty; or
25                (b)   has misbehaved; or
                  (c)   is incompetent; or
                  (d)   is suffering from mental or physical incapacity impairing the
                        performance of his or her functions; or




     page 44
                                 Owner-Drivers (Contracts and Disputes) Bill 2006
                               Constitution and proceedings of Council Schedule 2
                                                    General provisions  Division 1
                                                                              cl. 4



                  (e)     has been absent, without leave and reasonable excuse, from
                          3 consecutive meetings of the Council of which the member
                          has had notice.

     4.         Leave of absence
 5              The Council may grant leave of absence to a Council member on the
                terms and conditions that it thinks fit.

     5.         Council member unable to act
          (1)   If a Council member, other than the chairman, is unable to act by
                reason of sickness, absence or other cause, the Minister may appoint
10              another person to act temporarily in his or her place and, while acting
                in accordance with the appointment, that other person is taken to be a
                Council member.
          (2)   If the Council member who is deputy chairman is performing the
                functions of the chairman, the Minister may, under subclause (1),
15              appoint another person to act in his or her place as a Council member.
          (3)   The appointment of a person under subclause (1) may be terminated
                at any time by the Minister.

     6.         Savings
                No act or omission of a person acting in place of another person under
20              clause 5 is to be questioned on the ground that the occasion for his or
                her appointment or acting had not arisen or had ceased.

     7.         Calling of meetings
          (1)   Subject to subclause (2), meetings are to be held at the times and
                places that the Council determines.
25        (2)   A special meeting of the Council may at any time be convened by the
                chairman.
          (3)   The first meeting of the Council is to be convened by the chairman.

     8.         Presiding officer
          (1)   The chairman is to preside at all meetings of the Council at which he
30              or she is present.


                                                                               page 45
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Schedule 2     Constitution and proceedings of Council
     Division 1     General provisions
     cl. 9



           (2)   If both the chairman and the deputy chairman are absent from a
                 meeting, the Council members present are to appoint one of their
                 number to preside.

     9.          Quorum
 5               A quorum for a meeting of the Council is at least one half of the
                 number of Council members.

     10.         Voting
           (1)   At any meeting of the Council each Council member present has a
                 deliberative vote.
10         (2)   If the votes cast on a question are equally divided, the person
                 presiding has a casting vote on the question.

     11.         Minutes
                 The Council is to cause accurate minutes to be kept of the proceedings
                 at its meetings.

15   12.         Resolution without meeting
           (1)   A resolution of the Council in writing signed by each Council
                 member, or assented to by each Council member by letter, telegram,
                 telex, facsimile transmission, email or other similar means, has the
                 same effect as if it had been passed at a meeting.
20         (2)   The Council must cause a record to be kept of each resolution under
                 subclause (1).

     13.         Holding meetings remotely
                 The presence of a Council member at a meeting of the Council need
                 not be by attendance in person but may be by that member and each
25               other Council member at the meeting being simultaneously in contact
                 by telephone or other means of instantaneous communication.

     14.         Committees
           (1)   The Council may appoint committees to assist it in the performance of
                 its functions, and may discharge or alter any committee so appointed.



     page 46
                                    Owner-Drivers (Contracts and Disputes) Bill 2006
                                  Constitution and proceedings of Council    Schedule 2
                                                Disclosure of interests etc.  Division 2
                                                                                   cl. 15



           (2)   A committee may include persons who are not members of the
                 Council.
           (3)   Subject to the directions of the Council, a committee may determine
                 its own procedures.

 5   15.         Council to determine own procedures
                 Subject to this Act, the Council is to determine its own procedures.

                         Division 2 -- Disclosure of interests etc.
     16.         Disclosure of interests
           (1)   A Council member who has a material personal interest in a matter
10               being considered or about to be considered by the Council must, as
                 soon as possible after the relevant facts have come to the member's
                 knowledge, disclose the nature of the interest at a meeting of the
                 Council.
                 Penalty: A fine of $10 000.
15         (2)   A disclosure under subclause (1) is to be recorded in the minutes of
                 the meeting.

     17.         Voting by interested members
           (1)   A Council member who has a material personal interest in a matter
                 that is being considered by the Council --
20                 (a)    must not vote whether at a meeting or otherwise --
                            (i)     on the matter; or
                           (ii)     on a proposed resolution under clause 18 in respect of
                                    the matter, whether relating to that member or a
                                    different Council member;
25                        and
                   (b)    must not be present while --
                           (i) the matter; or
                           (ii)     a proposed resolution of the kind referred to in
                                    paragraph (a)(ii),
30                        is being considered at a meeting.



                                                                                   page 47
     Owner-Drivers (Contracts and Disputes) Bill 2006
     Schedule 2     Constitution and proceedings of Council
     Division 2     Disclosure of interests etc.
     cl. 18



     18.         Clause 17 may be declared inapplicable
                 Clause 17 does not apply if the Council has at any time passed a
                 resolution that --
                    (a) specifies the Council member, the interest and the matter; and
 5                 (b)   states that the Council members voting for the resolution are
                         satisfied that the interest should not disqualify the Council
                         member from considering or voting on the matter.

     19.         Quorum where clause 17 applies
           (1)   Despite clause 9, if a Council member is disqualified under clause 17
10               in relation to a matter, a quorum is present during the consideration of
                 the matter if at least 3 Council members are present who are entitled
                 to vote on any motion that may be moved at the meeting in relation to
                 the matter.
           (2)   The Minister may deal with a matter insofar as the Council cannot
15               deal with it because of subclause (1).

     20.         Minister may declare clauses 17 and 19 inapplicable
           (1)   The Minister may by writing declare that clause 17 or 19 does not
                 apply, or both of them do not apply, in relation to a specified matter
                 either generally or in voting on particular resolutions.
20         (2)   The Minister must cause a copy of a declaration under subclause (1)
                 to be laid before each House of Parliament, or dealt with under
                 section 54, within 14 days after the declaration is made.




     page 48
                                 Owner-Drivers (Contracts and Disputes) Bill 2006
                                       Consequential amendments      Schedule 3

                                                                                    cl. 1



                    Schedule 3 -- Consequential amendments
                                                                                  [s. 58]
     1.         Industrial Relations Act 1979 amended
          (1)   The amendments in this clause are to the Industrial Relations
 5              Act 1979*.
                [* Reprint 10 as at 8 July 2005 .
                   For subsequent amendments see Western Australian
                   Legislation Information Tables for 2005, Table 1 and Acts
                   Nos. 34 of 2004 and 36 of 2006 .]
10        (2)   Section 113(1)(d)(ii) is amended after item (II) by inserting --
                                          "
                                                 and
                                         (III)   the Owner-Drivers (Contracts
                                                 and Disputes) Act 2006;
15                                                                                     ".
     2.         Constitution Acts Amendment Act 1899 amended
          (1)   The amendment in this clause is to the Constitution Acts Amendment
                Act 1899*.
                [* Reprint 14 as at 21 April 2006.
20                 For subsequent amendments see Western Australian
                   Legislation Information Tables for 2005, Table 1 and Acts
                   Nos. 5, 28 and 43 of 2006.]
          (2)   Schedule V Part 3 is amended by inserting after the item relating to
                the Road Safety Council the following item --
25              "
                      The Road Freight Transport Industry Council established
                               under the Owner-Drivers (Contracts and
                               Disputes) Act 2006.
                                                                                       ".




                                                                                page 49
Owner-Drivers (Contracts and Disputes) Bill 2006



Defined Terms



                                           Defined Terms
           [This is a list of terms defined and the provisions where they are defined.
                                  The list is not part of the law.]
     Defined Term                                                                                          Provision(s)
     A...................................................................................................................... 9
     applied provisions ......................................................................................43(1)
     Chief Commissioner...................................................................................37(1)
     code of conduct ................................................................................................ 3
     Commission ...............................................................................................37(1)
     Commissioner ............................................................................................37(1)
     Council ............................................................................................................ 3
     Department ...................................................................................................... 3
     dispute .......................................................................................................37(1)
     document ...................................................................................................22(1)
     fixed and variable overhead costs................................................................27(4)
     goods ............................................................................................................... 3
     gross vehicle mass............................................................................................ 3
     guideline rates .................................................................................................. 3
     heavy vehicle ................................................................................................... 3
     hirer ................................................................................................................. 3
     information ................................................................................................22(1)
     inspector .......................................................................................................... 3
     IR Act .............................................................................................................. 3
     listed public company.................................................................................. 4(1)
     monetary order ...........................................................................................50(1)
     occupier .....................................................................................................35(1)
     officer ......................................................................................................... 4(1)
     owner-driver.............................................................................................3, 4(2)
     owner-driver contract ...............................................................................3, 5(1)
     party ................................................................................................................ 3
     payment claim.................................................................................................. 3
     payment dispute .........................................................................................37(2)
     records .......................................................................................................35(1)
     Registrar .......................................................................................................... 3
     relevant person ................................................................................ 34(1), 48(3)
     representative .............................................................................................35(1)
     single business ...........................................................................................52(2)
     transport association ...................................................................................37(1)
     Tribunal .................................................................................................3, 38(2)
     workplace......................................................................................................... 3




 


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