Owner-drivers Act and Code of Conduct
Review of the Owner-Drivers (Contracts and Disputes) Act 2007
The Department of Transport has now completed its review of the operation and effectiveness of the Owner-Drivers (Contracts and Disputes) Act 2007 (the Act).
In general terms, the review found that the regime established by the Act represents a relatively effective and low-cost mechanism to help establish fair and equitable payment rates for owner-drivers and to assist in the resolution of disputes that arise between owner-drivers and hirers. Conversely, there is little evidence to demonstrate at this point in time a need for any change to the existing provisions of the Act.
For further details on the review's findings and recommendations, a copy of either a full version of the review report or the report's executive summary can be viewed below.
In accordance with the Act this report was approved by the Minister for Transport to be tabled in the WA Parliament in June 2014.
|Review of the Owner-Driver (Contracts and Disputes) Act 2007: Report (Summary)||Kb|
|Review of the Owner-Driver (Contracts and Disputes) Act 2007: Report||Kb|
Overview and background of the Act
The Owner-Drivers (Contracts and Disputes) Act 2007 came into effect on 1 August 2008.
From that date:
- All owner-driver contracts and agreements should fully comply with the Act.
- The 'unconscionable conduct' rule applies.
- Owner-drivers can collectively bargain with a hirer.
- An owner-driver or group of owner-drivers can appoint a person or group to be their negotiating agent.
- A hirer can appoint a person or group to be their negotiating agent.
- The Road Freight Transport Industry Tribunal commenced operation, giving owner-drivers and hirers access to a low-cost dispute resolution process.
- The Road Freight Transport Industry Council commenced operation.
- An owner-driver contract or agreement should not include an 'if paid/when paid' provision. If that provision is included, it will have no effect.
- If an owner-driver contract does not have a written provision for one or more of the following, the Act will imply standard provisions for them:
- A time limit for when payment must be made
- Within 14 days of receiving a claim for payment (if there is nothing written in the owner-driver contract about payment time limits); or
- Within 30 days of receiving a claim for payment (in any other case).
- Interest is payable on overdue amounts.
- The Act provides information on how to make a claim for payment.
Background to the Act
The Owner-Drivers (Contracts and Disputes) Act 2007 (The Act) came into effect from Friday 1 August 2008. It was developed in response to a number of concerns expressed by Western Australian owner-drivers.
The major concerns were that a limited ability to effectively negotiate with principal contractors (hirers) often resulted in payment rates that were insufficient to maintain a viable business, and/or conditions of payment that saw some owner-drivers having to wait for several months before receiving payment.
The Act seeks to ensure that owner-drivers are paid a safe and sustainable rate and are paid within a reasonable time. It provides guidelines to help owner-drivers and hirers to work out suitable rates of payment.
The Act has introduced a number of changes that affect the rights and responsibilities of owner-drivers and hirers. The Department recommends that you seek independent advice on how those changes affect you - do not act solely on the basis of the information provided here.
|Owner-Drivers (Contracts and Disputes) Act 2007 (Brochure)||Kb|
|Owner-Drivers (Contracts and Disputes) Act 2007 (Booklet)||Kb|
|Western Australian Industrial Relations Commission|
Does the Act apply to you?
If the Act applies to you, then the Regulations and Code of Conduct also apply to you.
The Act applies to:
- Some, but not all, owner-drivers (see the definition below).
- People and companies who hire those owner-drivers.
- Owner-driver contracts between those owner-drivers and hirers.
The Act applies whenever all of the following four points apply:
- The owner-driver fits the definition given below.
- The owner-driver contract fits the definition given below.
- The owner-driver contract is for the transport of goods entirely (or substantially) within Western Australia.
- The owner-driver contract is not affected by an order or determination made under either: the Owner Drivers and Forestry Contractors Act 2005 of Victoria or, chapter 6 of the Industrial Relations Act 1996 of New South Wales.
Definition of owner-driver for the Act to apply
You are an owner-driver if all of the following applies to you:
- You are not an employee.
- You are a person, partnership or body corporate (but not a listed public company). Note: for a partnership, at least one of the partners must be a person who meets all of the definition of 'owner-driver'.
- Your business is transporting goods in one or more vehicles (of more than 4,500 kg gross vehicle mass).
- You, the partnership or body corporate supply the vehicle/s (whether or not you own the vehicle/s).
- Your sole or main business is operation of one or more of those vehicles (whether by yourself or with one or more people).
Definition of owner-driver contract for the Act to apply
An owner-driver contract is not a contract of employment.
- An owner-driver contract is a contract between an owner-driver and another person or company (the hirer).
- The contract is to transport goods in a vehicle of more than 4,500 kg gross vehicle mass.
- The contract can be written, oral or a mix of both.
- The contract can include other services for the owner-driver to perform, so long as most of the services relate to the transport of goods.
Note: An owner-driver contract does not include a contract that is a contract of employment.
Definition of hirer
A hirer is a person or company who engages an owner-driver under an owner-driver contract.
|Owner-Driver's Act (Frequently Asked Questions)||Kb|
The Regulations and Code of Conduct
The Owner-Drivers (Contracts and Disputes) (Code of Conduct) Regulations 2010 came into effect from Thursday 1 July 2010. The Regulations contain a Code of Conduct that came into effect on the same day.
From that date:
- All owner-driver contracts and agreements should fully comply with the Act and the Code of Conduct.
- The 'negotiation in good faith' rule applies.
- A hirer is required to provide specified information to an owner-driver before entering into a contract with that owner-driver.
- Penalty clauses are banned.
- Conditions apply for a hirer to make deductions from money payable to an owner-driver.
- Hirers are required to make and keep records regarding each owner-driver contract.
- The 'fair and reasonable' rule applies to payments such as fuel levies and waiting fees.
The Code of Conduct deals primarily with standards of conduct during negotiations, penalty clauses, rates of interest, deductions from payments and record keeping requirements. The Code also empowers the Road Freight Transport Industry Council to develop and publish Guideline Rates for use by the industry. The Council will regularly review and update the Guideline Rates.
The Guideline Rates provide pre-calculated rates in both per kilometre and per hour dollar amounts. They do not set a minimum or maximum rate, but the Tribunal can refer to them to determine whether payments have been made at a safe and sustainable rate.
|Guideline Rates: Provisional October (2016)||Kb|
Application of the Act and Code of Conduct
- If the Act applies to you, then the Code of Conduct also applies to you.
- If the Act and Code of Conduct apply to you, then:
- You cannot claim that part or all of them do not apply, or that they apply in a different way.
- You cannot give away or bargain away any of the rights or obligations that the Act or Code of Conduct give you.
- Owner-drivers and hirers should ensure that owner-driver contracts fully comply with the Act and Code of Conduct - terms and conditions that do not comply will have no effect.
- Owner-driver contracts and other agreements cannot:
- Exclude, modify or restrict operation of the Act or the Code of Conduct.
- Claim that all or parts of the Act or Code of Conduct do not apply, or apply in a different way.
- Contain anything that is contrary to or inconsistent with the Act, Code of Conduct or an order made by the Road Freight Transport Industry Tribunal.
|Owner-Driver's Act (Frequently Asked Questions)||Kb|
Owner-Drivers Act: Further information
Information about the Act and Code of Conduct is available in a short pamphlet and a more detailed booklet. Both are available to download.