Australia: Parliament considers amendment bill to enhance owner driver protections in Victoria

On 24 July 2018, the Owner Driver and Forestry Contractors Amendment Bill 2018 was introduced in the Victorian Parliament in response to a government review of the Owner Drivers and Forestry Contractors Act 2005 (Vic). The review found widespread non-compliance with the Act by hirers and freight brokers. The Bill introduces penalties and inspection and enforcement powers to promote compliance with the mandatory requirements in the Act. The Bill also introduces 30-day payment terms for invoices issued by owner drivers.

WHO IS AN 'OWNER DRIVER' UNDER THE ACT?

For the purposes of the Act, an 'owner driver' is:

  • a natural person (whether as an individual or in a partnership) who carries on a business of transporting goods, provided less than four vehicles are owned by the business and operated by the person (whether solely or with the use of additional or relief operators); and
  • a corporation (other than a listed public company) that carries on a business of transporting goods, provided less than four vehicles are owned by the corporation or an officer of the corporation, and the vehicles are operated by an officer of the corporation (whether solely or with the use of additional or relief operators).

WHAT DOES THE ACT CURRENTLY DO?

The Act set out what must and what must not be in any contract with an owner driver. The Act also requires a hirer to provide an owner driver with a published information booklet and rates and costs schedule (both of which can be found on the Victoria Government website). The Act prescribes minimum notice periods for termination of engagement and how payment in lieu of notice must be calculated.

WHAT WILL BE CHANGED?

The Bill proposes a significant number of changes to promote compliance with the Act. Some of the more significant changes are summarised in the table below.

Issue What will be changed?
Definition of 'freight broker' The Bill amends the definition of 'freight broker' to include a person who provides an online platform that facilitates the engagement of owner drivers by hirers. This is to ensure that digital freight brokers such as Uber Freight, Uber Eats and Deliveroo are caught by the Act.
Information booklet The Bill makes it an offence for a hirer not to provide the published information booklet to an owner driver. The maximum penalty for the offence will be 25 penalty units for a corporation ($4,029 for the 2018/19 financial year).
Rate and costs schedule The Bill makes it an offence for a hirer not to provide the published rates and costs schedule to an owner driver before their engagement. The maximum penalty for the offence will be 25 penalty units for a corporation ($4,029 for the 2018/19 financial year).
Contractual requirements The Bill makes it an offence for a hirer to enter into a contract with an owner driver that does not comply with all the requirements of section 20 of the Act, including the requirements to set out:
  • the rates that will be paid
  • the guaranteed minimum number of hours of work or income level that the owner driver will receive
  • minimum period of notice of termination or payment in lieu of notice. The maximum penalty for the offence will be 25 penalty units for a corporation ($4,029 for the 2018/19 financial year).
Minimum period of notice of termination The Bill makes it an offence for a hirer not to provide the minimum period of notice of termination required by the Act. The minimum period is three months for owner drivers of heavy vehicles and one month for other owner drivers. The maximum penalty for the offence will be 25 penalty units for a corporation ($4,029 for the 2018/19 financial year).
30-day payment terms The Bill introduces a new provision that requires a hirer to pay an owner driver within 30 days after receipt of an invoice (unless the hirer and owner driver agree to a different payment period that is not unfair). This amendment is intended to reduce the financial pressure on owner drivers.
Authorised officers and enforcement powers The Bill provides for the appointment of authorised officers to:
  • provide information to hirers and owner drivers
  • monitor compliance with the Actinvestigate possible contraventions
  • exercise enforcement powers
Among other things, authorised officers will have the power to:
  • require information or the production of documents
  • enter and inspect premises (with the consent of the occupier) and require the production of documents at the premises
Notices to produce The Bill makes it an offence to fail to comply with a notice to produce or to knowingly provide false or misleading documents. The maximum penalty for the offence will be 100 penalty units for a corporation ($16,119 for the 2018/19 financial year).
Liability of officers Under the Bill, an officer of a corporation commits an offence if the officer authorised or permitted the corporation to commit the offence or was knowingly concerned (whether by act or omission) in the commission of the offence.

© Cooper Grace Ward Lawyers

Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.

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