According to the Australian Livestock and Rural Transporters Association, there is a leaked document which has confirmed that the Albanese Labor Government is actively preparing to revive something along the lines of the Road Safety Remuneration Tribunal (RSRT), reckoning it will be minimum rates, same dog different leg. With a consultation process about to kick off and legislation possible by the end of 2023, it is timely to reflect on past mistakes in the hope they are not repeated.
The former RSRT was established by the Gillard Labor Government in 2012 and abolished by the Turnbull Coalition Government in 2016. The RSRT had extremely broad powers to set minimum rates and conditions for owner-drivers. It made two binding Orders.
The 2014 Order related primarily to conditions mandating payment timeframes, safe driving plans, drug and alcohol policies, training ,whistle-blower protections and dispute resolution. Apart from concerns about red tape the Order was either well received or ignored by industry.
The 2016 Order established national minimum rates and unpaid leave provisions. Shortly before the 2016 Order came into effect, owner-drivers began receiving letters from head contractors advising that their services would no longer be required. Almost immediately, people lost their work. Families lost their businesses. And sadly, some took their own lives.
There were flow-on effects along the entire supply chain. Truck and trailer orders were cancelled en masse. Small regional economies servicing owner-drivers with fuel, tyres, servicing, food and clothing were left reeling.
ALRTA applied to the RSRT for relief from the 2016 Order, and when that was refused, we demanded that Parliament abolish the tribunal. The fact that an abolition bill successfully passed the House of Representatives and the Senate in a single day, speaks volumes about just how bad the RSRT was. To put that in context, the Turnbull Government called a double dissolution election to ‘unblock’ the Parliament later that same year.
The primary problem was that the Order created a two-tiered freight market. It did not apply to transport businesses using employee drivers, which enabled them to undercut owner-drivers. The Order also did not recognise the prevalence of backloading, part-loading, multi-owner loading or empty running which are an important part of efficient freight movements in the rural sector.
The Order did not apply to employee drivers because the Australian Government does not have sufficient constitutional powers to legislate in respect of all freight operators, instead relying on limited corporations and interstate trade powers. So, in effect, the only entities covered by the RSRT were transport businesses operating as corporations or engaging in interstate trade. It did not cover employees, or those operating within a state as a partnership, sole trader or trust.
It was an unfair leaky system that couldn’t be fixed. It had to go.
But here we are again looking down the barrel of RSRT 2.0.
Federal Labor has made no secret of its intention to re-establish an authority to set minimum rates and conditions for owner-drivers. In 2021, it became formal policy at the Australian Labor Party National Conference. That same year, the Labor-Chaired Senate Rural and Regional Affairs and Transport References Committee Report ‘Without Trucks Australia Stops: the development of a viable, safe, sustainable and efficient road transport industry’ made the same recommendation. Ultimately, Federal Labor took the policy to the 2022 Federal Election and won.
To be clear, ALRTA generally does not support the application of industrial laws to rural owner-drivers who have invested in their own business to give themselves the freedom to innovate, adapt and accept their own work on their own terms. Rather than being continuously located at ‘the end’ of a sub-contracting chain, small rural operators often share work amongst each other and constantly change positions in the contracting chain. It is this short-notice, low red-tape, flexibility that enables the rural road transport sector to move seasonally unpredictable farm produce over vast geographic areas to domestic and international markets as efficiently as possible.
As we discovered last time, any minimum rate will also become the maximum rate. Unless it can be applied to the carriage of all goods, in all circumstances, it is doomed to fail.
Instead, ALRTA would prefer greater focus on practical safety measures, financial education, elimination of sham contracting, maximum payment timeframes and accessible dispute resolution.
Perhaps unsurprisingly, the leaked document indicates that Federal Labor intends to confer additional powers on the Fair Work Commission (FWC) rather than establishing a separate tribunal. Given that many states have already referred industrial relations papers to the Australian Government, this may actually help to plug some of the gaps in the previous system.
However, at the fundamental level, the FWC is a part of the ‘industrial relations club’ run by unions, big business and registered industrial organisations. It is not answerable to a Minister and certainly not designed to cater for unrepresented independent contractors. Like the RSRT, we may once again find that it is the ‘industrial club’ deciding what is best for owner-drivers. If owner-drivers disagree, they can be summonsed, cross-examined, held in contempt and threatened with jail time.
Does that sound like an environment conducive to fair outcomes for unrepresented little guys?
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