Andrew Murray (WA, Australian Democrats) Share this | Hansard source

by leave—I move Democrat amendments R(3), (4) and (5) on sheet 5062 revised:

R(3) Clause 7, page 7 (lines 15 to 26), omit paragraphs (2)(b) and (c), substitute:

             (b)    a law of a state or Territory, to the extent that the law:

                   (i)    applies to a services contract that relates to the performance of road transport work by the independent contractor, other than a services contract to which an independent contractor that is a body corporate is a party, unless the road transport work to which the contract relates is wholly or mainly performed by a director of the body corporate or a member of the family of a director of the body corporate; and

                  (ii)    makes provision in relation to such a contract, including but not limited to provision about any one or more of the matters specified in paragraphs (1)(a), (b) and (c); or

             (c)    without limiting paragraph (b), any of the following laws:

                   (i)    Chapter 6 of the Industrial Relations Act 1996 of New South Wales (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);

                  (ii)    the Owner Drivers and Forestry Contractors Act 2005 of Victoria;

                 (iii)    any instrument made under a provision of a law referred to in subparagraph (i) or (ii); or

             (d)    a law of a State or Territory that is specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified.

(4)   Clause 10, page 9 (lines 29 to 33), omit subclause (2), substitute:

        (2)    To avoid doubt, subsection (1) has effect even if a law specified in regulations made under that subsection deals with matters that, because of subsection 8(2), are not workplace relations matters.

(5)   Clause 10, page 9 (after line 33), at the end of the clause, add:

        (3)    Subsection (1) does not have effect in relation to a law referred to in paragraph 7(2)(a), (b) or (c).

                   (i)    applies to a services contract that relates to the performance of road transport work by the independent contractor, other than a services contract to which an independent contractor that is a body corporate is a party, unless the road transport work to which the contract relates is wholly or mainly performed by a director of the body corporate or a member of the family of a director of the body corporate; and

                  (ii)    makes provision in relation to such a contract, including but not limited to provision about any one or more of the matters specified in paragraphs (1)(a), (b) and (c); or

                   (i)    Chapter 6 of the Industrial Relations Act 1996 of New South Wales (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);

                  (ii)    the Owner Drivers and Forestry Contractors Act 2005 of Victoria;

                 (iii)    any instrument made under a provision of a law referred to in subparagraph (i) or (ii); or

Amendment R(3) allows future owner-driver legislation to have effect despite the provisions of section 7(1). In particular there is pending legislation in Western Australia and tabled legislation in the ACT. Amendments (4) and (5) aim to remove the owner-driver exemptions from the ambit of the regulation-making power in section 10. It is our view, and the view of owner-drivers and the Transport Workers Union, that the power as currently drafted is inconsistent with the government’s commitment not to override these laws. In making that remark, I would appreciate it if the minister would deal with that particular perception from the Transport Workers Union.

I am not going to speak at length on this because I think this is apparent on its face, but I think it is very important to highlight the inconsistency apparent in the government’s legislation, and we did bring this out in the committee hearing and in our minority report—and that is that if you recognise, as the government does, that owner-drivers have a particular circumstance which justifies exemption from many of the provisions of this legislation in New South Wales and Victoria then it does not make sense for owner-drivers in other states not to be included in that exemption, because they operate in the same industry and under the same conditions. In Western Australia, of course, they drive much further. I enjoy reminding visitors from overseas that Western Australia is the size of western Europe. It is a pretty big place to drive around.

The government then respond: ‘That may be so, but there is no legislation in those other states’—and that is a legitimate response. They also respond that they recognise this problem and are going to review the matter in 2007. That is fine, except that a review takes time, a government takes time to respond to a review and it takes time to initiate legislation. Let us assume, for argument’s sake, that the Western Australians get on with it and introduce and pass their legislation and it is operative in the first quarter of next year—and I do not know if that will be the case; it might be a year and a half before the federal government of the day gets around to having a look at that matter. Even then we do not have any certainty that they would respond favourably to that. So what this amendment tries to do is to anticipate future legislation and to allow for the same exceptions that apply to New South Wales and Victoria to apply to those states and territories that introduce legislation which is consistent with New South Wales and Victoria.