Further to our article in December 'First road safety remuneration order issued', the Road Safety Remuneration Tribunal has released its first road safety remuneration order (Order).
In this article, we provide further detail about the obligations imposed under the Order.
Application of the Order
The Order applies to a road transport driver employed or engaged in:
- the provision of road transport services wholly or substantially in relation to products destined for sale or hire by a supermarket chain of five or more stores); or
- long distance operations (being interstate operations exceeding 200 km, or a return journey where the distance travelled exceeds 500 km) in the industry of the transportation by road of all materials whether in a raw or manufactured state, or of livestock, throughout Australia.
The Order also imposes requirements on participants in the supply chain in relation to a road transport driver to whom the Order applies.
Adverse conduct protections
Much like the general protection provisions under the Fair Work Act 2009 (Cth) (Act), the Order prohibits a participant in the supply chain from taking adverse action against a road transport driver because they have a workplace entitlement or in connection with the exercise, or failure to exercise, a workplace entitlement.
In practice, given the existing protections under the Act, this should not impose any significant burden on a participant in the supply chain.
Requirement to have a written contract
Before a road transport driver’s employment or engagement starts, their employer or hirer must have provided the road transport driver with a written contract. That written contract has to deal with a number of specified matters, including:
- the nature of the service to be provided
- the nature of the legal relationship (eg employer/employee, principal/contractor)
- what industrial instruments cover or apply to the road transport driver
- any guaranteed minimum income or hours
- a mechanism for at least an annual review of rates
- the annual provision of driver histories
- a requirement for the employer or hirer not to direct the road transport driver to commit any act that will, or is likely to, result in a breach of any law.
Finally, employers and hirers will be required to keep a copy of all employment contracts or road transport contracts made with a road transport driver for a period of seven years from the end of the contract.
Taking the time to get the appropriate contracts drafted is likely to be a large task for employers and hirers, especially in circumstances where there is a need to negotiate the terms of a contract with multiple road transport drivers.
A participant in the supply chain is also required to ensure any other contract it has with a participant in the supply chain is relevantly consistent with the terms of the Order.
Particularly for participants in the supply chain with long term engagements, there will be a need to review various contracts impacting on the supply chain to ensure they are consistent with the Order.
Despite the terms of any contract, a hirer will be required to pay a contract driver any undisputed amounts within 30 days of the receipt of an invoice.
In addition, restrictions will be imposed on the ability for deductions to be made from payments to be made to a contract driver, regardless of the terms of their engagement contract.
Safe driving plans
If a road transport driver is driving a vehicle with a gross vehicle mass of more than 4.5 tonnes, the hirer or employer of the road transport driver must prepare a written safe driving plan. The safe driving plan must be prepared and implemented, and reviewed and updated, in consultation with the road transport driver.
There are a number of specified matters the safe driving plan must deal with, including:
- its period of operation
- all pickup and delivery locations
- a travel plan including anticipated time frames and when breaks are to be taken
- instructions for the road transport driver to manage their fatigue, including authorising the road transport driver to have additional rest breaks
- the recording of the actual starting and finishing times of a run.
Employers and hirers are required to take all reasonable measures to ensure that road transport drivers are trained in work health and safety systems relevant to the services, and must reimburse road transport drivers for relevant expenses they have incurred.
Drug and alcohol policies
Employers and hirers are required to develop and implement a drug and alcohol policy. In doing so, they must, so far as is reasonably practicable, consult with relevant road transport drivers.
There are a number of matters that the policy must deal with, including:
- the conduct of mandatory drug and blood alcohol testing
- what drug and blood alcohol content levels constitute a breach of the policy
- the consequences of a breach of the policy
- procedures for self-reporting.
Employers and hirers will be required to train road transport drivers on the policy, and provide payment for expenses reasonably incurred by the road transport driver.
Unfortunately, the Order does not give guidance as to the appropriate method of testing to be adopted by an employer or hirer which is likely to result in many disputes as employers and hirers take steps to comply with the Order.
When will the Order start operation?
The Order is scheduled to commence on 1 May 2014.
What should drivers, hirers, employers and supply chain participants affected by the Order do?
As was detailed in or previous article, drivers, hirers, employers and supply chain participants affected by the Order still have some time to prepare for the start of the Order. However, a number of the requirements imposed by the Order will require a large investment of time and resources to ensure compliance.
People affected by the Order should take some time to review the terms of the Order and their current arrangements to identify the necessary steps to be prepared to comply with the Order by 1 May 2014. Gadens’ employment and safety team can assist with audits to assist to do so.