In its submission to the federal government on its consultation paper, the ATA has made it clear that it believes the FWC should not be allowed to set freight rates for owner-drivers.
Australian Trucking Association (ATA) chair David Smith met last week with employment and workplace relations minister Tony Burke to discuss industry concerns.
The ATA has made a submission to the federal government’s Consultation Paper on ‘employee-like’ forms of work and stronger protections for independent contractors.
Smith says the meeting with Bourke was positive.
‘The minister was engaged, interested and constructive. We did not agree on everything, but the opportunity to discuss the proposals from an operator’s point of view was worthwhile,” Smith says.
‘The ATA has insisted that the legislation has input from all parties, including trucking businesses,.’
In its submissions to the government, the ATA has outlined many concerns for the consultation paper and the potential implications for the industry.
The paper was issued in April 2023 by the Department of Employment and Workplace Relations (DEWR). Apart from focusing on employee-like forms of work, the paper also mentioned stronger protections for independent contractors.
Most contentiously however, the paper considers allowing the Fair Work Commission (FWC) to set minimum standards to ensure the road transport industry is safe, sustainable and viable — a point that many transport bodies have taken issue with.
Although the ATA initially welcomed the opportunity to respond to the consultation paper, it says it is extremely concerned about the government’s lack of consultation with both the industry and its key safety regulators and advisers.
The ATA argues that the government’s paper did not consult an adequate amount of industry representative, neither the ATA, as the industry’s peak body, nor weremany of its member associations, who collectively represent thousands of trucking businesses, included.
The ATA questions the paper’s assertion that minimum standards set by the FWC would ensure the industry is safe given that the government did not consult the National Transport Commission, which is the government agency responsible for developing truck safety legislation, or the National Heavy Vehicle Regulator, which is responsible for enforcing it in the eastern states and South Australia.
Furthermore, the ATA says there is no evidence of consultation with the areas of government responsible for road safety.
The ATA generally believes the role of the FWC should be limited only to regulating industrial relations within specific circumstances. It argues it should not have a role in enforcing safety standard cross the country as this would be confusing and disrupt the system that already exists involving the NHVR and other state regulators.
The ATA argues that if the government empowers the FWC to set minimum standards, its powers should only apply to:
• workers who drive trucks owned by a contracting corporation but who are required to hold ABNs and who are paid as independent contractors
• owner drivers who work exclusively through freight brokers, whether those brokers provide work through a digital platform or not
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Importantly, the ATA also believes strongly that the FWC should not be able to set rates for the transport industry, outlining its arguments below.
The FWC should not be able to set freight rates across the supply chain, the ATA says, because:
• the FWC’s expertise is in industrial relations, not economic regulation
• as an economic principle, outside parties such as commissioners, consultants and industry or union representatives, no matter how diligent, cannot know more about setting prices for companies than the people who run them
• companies that innovate and can reduce their costs while still complying with their safety and other legal duties – maybe through expert asset utilisation or IT project management – should be able to make the business decision to pass some of those savings on to their customers and build market share.
In arguing for the FWC to not be able to regulate safety, the ATA points to the 2023-25 National Road Safety Action Plan, released in February and endorsed by the federal government and every state and territory government.
It says the federal government commitments in the plan do not include a safety role for the FWC. The ATA argues that itself and its member associations should be invited to comment on exposure drafts of the drafting instructions for the legislation and the legislation itself going forward.
In its 2022 election policy charter, the ATA also called for a dramatic improvement in road safety driven by the safe systems approach: safe roads, safe vehicles, safe speeds and safe people.
Additionally, the ATA has proposed a national Road Transport Act to deal with truck safety issues on a nationally uniform basis for participating states and territories.
The ATA says amendments to the Fair Work Act should be drafted so the FWC does not have a role in safety regulation. Finally, it adds that work and rest hours need to be regulated in conjunction with emerging safety technology such as telematics and electronic work diaries which are now common.