Steve Hutchins (NSW, Australian Labor Party) Share this | Hansard source

I rise this afternoon to speak about independent contractors in the road transport industry, usually known as owner-drivers. Many senators may be aware that over the last few weeks the Independent Contractors Bill 2006 has been listed for debate in the Senate, only to be withdrawn. That bill was passed in the House of Representatives. You would also be aware, Mr Acting Deputy President Murray, that the bill includes an exemption for owner-divers from New South Wales and Victoria. That exemption allows owner-drivers in those states to continue to have access to the protections that have been put in place under the respective state jurisdictions.

Owner-drivers, through their exemption from the effects of the Independent Contractors Bill 2006, have been recognised as a group with particular vulnerabilities. The ability of existing arrangements to protect the financial viability of owner-driver small business people and their families has been placed on the record on a number of occasions. Instead of reiterating that, I want to focus upon the dispute procedures in place under New South Wales law in particular, which provide both owner-drivers and the companies for which they work with accessible and inexpensive resolution of industrial disputes. Any removal of access to that process would only see further financial burdens placed upon a group of small business people who already face tight profit margins in a very competitive industry

Let me use the example of owner-drivers at Boral. In 2001, a number of owner-drivers in New South Wales who had paid goodwill to enter into an arrangement with Boral had their regular work terminated suddenly and without financial compensation for the significant amount of money they had paid in goodwill to gain access to regular work for the company. In that instance, a number of owner-drivers each had hundreds of thousands of dollars on the line in the form of goodwill. Had access to the independent umpire of the New South Wales Industrial Relations Commission not been available, the resolution of the dispute would have been drawn out in expensive court proceedings. Instead, a speedy outcome was arrived at which both improved productivity for the company and allowed the owner-drivers in question to continue performing regular work for the company.

In the ACT, however, where protections for owner-drivers do not exist, the circumstances were very different indeed. When the same company, Boral, made a similar decision to terminate the contracts of owner-drivers in Canberra, there was no availability of a speedy resolution to the decision of the company. Instead of being heard in an industrial relations commission within days of the emergence of the dispute, the matter continued unresolved for over three years. In fact, the matter went before the Federal Court on a number of occasions and it went before mediation. On all these occasions, it proved very costly for the lorry owner-drivers and no doubt for the company involved. One of the affected owner-drivers said at the time:

When the contracts were terminated by Boral, the stress at home has been unbelievable for most of us, the emotional stress plus the financial stress ... Because we had lost our jobs and our goodwill money we had to go out and had to get whatever jobs we could get, for some this meant a 40% drop in wages—we’ve had to reorganise our lives, and for those with kids, our kids’ lives. We had to renegotiate our loans to make ends meet. In my case I had to sell the house because I couldn’t make the payments with the new job that I have. For others, their wives had to go out and get a job.

In fact, one of those ex-Boral lorry owner-drivers works as a security guard in this place at the moment.

Let me highlight another example of an owner-driver who had had the protection of the New South Wales Industrial Relations Commission. Carl Calabro is an owner-driver with Patrick Autocare in New South Wales and has invested $206,000 in his business. In addition to truck repayments, Carl and his wife, Julie, are paying off a mortgage. Not so long ago Carl had his contract arbitrarily terminated. Under the New South Wales protections, Carl was able to work through the issues with his company and has been able to keep working and providing for his family. In his own words, Carl describes the effect that the removal of those protections would have had on him and his family. He says:

It will certainly cause added stress on top of those stresses we already face in running a truck and a business. It will mean our earning capacity will become quite a huge concern for us ... Also, our plan to hopefully have another child in the near future would have to be put on hold or forgotten.

We would definitely have to weigh up whether it would be worthwhile keeping the truck and trying to stay afloat, or just cut our losses and get out of the business altogether.

In spite of the clearly exceptional circumstances faced by owner-drivers such as Carl, where debt is an occupational hazard, I have been disturbed to hear rumours that the government is considering removing the exemption for owner-drivers when the Independent Contractors Bill is introduced into the Senate. But what makes this rumoured backflip so exceptional is that the government is denying a group it claims to represent—small business—the opportunity to thrive.

Owner-drivers are independent people. They are not only independent because of their jobs as owner-drivers; they are independent thinkers. Owner-drivers see themselves as small business people, and a significant group of them have voted for the government in the belief that the government purports to represent the best interests of the small business community. If the government backs down on its commitment to exempt owner-drivers from the Independent Contractors Bill, the government will prove once and for all that it does not understand small business people, particularly owner-drivers.

Over 100 lorry owner-drivers have spoken directly to government members and senators over the past year. In fact, a number of those people are active members of the Liberal Party. They have put their position and informed their representatives of the simple truth that, without the protections they enjoy at the moment, many of them would face the choice between going under and running their vehicle in an unsafe manner, putting the safety of all road users at risk. Does the government really want a situation where these owner-drivers are subjected to the same types of pressures that exist in the unregulated long-distance sector where drivers are forced by client pressure into unconscionable work patterns, with frightening effects? Take the following account given by an owner-driver in the long-distance sector in a recent court case. The owner-driver said:

On occasion my eyeballs would physically turn back in my head. I would notice that my vision narrowed down. When I was tired, I would find that I would wander across the lanes and my judgment of distance was completely off. I would be nodding off behind the wheel and suddenly find myself on the tail of the truck in front of me. I would slap and pinch myself, open the window and sing along to the radio ... I will not let my dad drive up from Melbourne at night when he comes to visit me.

When I was required to perform excessive hours I would sometimes experience a state of mind that I can only describe as hallucinations, which I considered to be due to sleep deprivation. I would ‘see’ trees turning into machinery, which would lift my truck off the road. I ‘saw’ myself run over motorcycles, cars and people.

On one occasion I held up the highway in Grafton while waiting for a truck which was not there to do a three point turn (I was radioed by drivers behind me asking why I had stopped). I estimate that I had experiences like these roughly every second day. They were not an uncommon thing for me.

What government would want to preside over an increase in this type of horror story? What government would want to be cast as responsible for an increase in the already horrendous heavy-vehicle death and injury statistics? Because that is what will happen if the government does not honour its commitment and ensure that these owner-drivers are able to achieve cost recovery for their small businesses.

When the minister for workplace relations announced that the government had recognised the particular vulnerabilities of owner-drivers, owner-drivers did not rejoice. They took a collective sigh of relief that they would be able to continue running their businesses in the way they have for many years, with bipartisan support in New South Wales in particular. They also took the minister for workplace relations at his word. If the government does not keep its word and forces owner-drivers into a race to the bottom on rates of pay and safety, I think I know how they will respond. I have spent a fair share of my time with them, and I know how they will react to being misled.

I have been made aware of some interesting statistics in two electorates in New South Wales. I am aware that in the electorate of Dobell, held by the government, 0.23 per cent of the electorate are lorry owner-drivers and their partners. Fellow transport workers and partners comprise an extra 1.8 per cent of the electorate. In the electorate of Lindsay, 0.63 per cent of the electorate are owner-drivers and their partners, and fellow transport workers and their partners make up another 3.4 per cent of the electorate.

Throughout New South Wales and Victoria, owner-drivers, small business people and their families will react if they are deceived. I just hope that on this particular occasion the government can hold its nerve and do what it promised to do for those tens of thousands of small business people and their families—that is, maintain basic cost-recovery mechanisms for their businesses.