The Owner Drivers and Forestry Contractors Act 2005 David - - PowerPoint PPT Presentation

The Owner Drivers and Forestry Contractors Act 2005

David Hildebrand Victorian Small Business Commission

Wednesday, 30 August 2017

ODFC Act 2005

• Legislation commenced on 1 December 2006
• Based on Retail Leases Act 2003
• Purpose of Act:
• “to provide some basic protections and a framework for effective

resolution of disputes to improve the position of vulnerable small businesses..” (2nd Reading Speech)

• Namely, owner drivers in transport industry (and forestry contractors)
• That is, independent contractors, not employees

Owner drivers & hirers

• Definition of owner driver:
• A natural person (or corporation or partnership) who carries on a business of transporting

goods in 1 or more vehicles supplied by him and operated by him (s 4)

• Must have 3 or less vehicles (Regulation 4)
• Definition of hirer:
• A person who engages a contractor i.e. owner driver (s 3)
• Definition of freight broker:
• A broker or agent in the business of procuring or arranging the engagement of contractors

by hirers (s 3)

Code of Practice

• Owner Drivers and Forestry Contractors Regulations 2006
• Owner Drivers and Forestry Contractors Code of

Practice

• Mandatory requirements concerning the

engagement of owner drivers

• Describes industry best practice
• Guidance about:
• Unconscionable conduct
• Unjust terms

Information Booklet

• A practical resource to assist owner drivers to

successfully operate a business.

• It covers rights and obligations under the Act

and Code

• Mandatory for hirer to give Information

Booklet to owner driver at least 3 days before engagement (s 10)

Rates & costs schedules

• Different Schedules for different vehicles
• Schedules give owner drivers information about

the typical running costs of a business and rates typically paid to employee drivers for similar work

• They do not set minimum rates of pay – advisory
• nly
• Mandatory for hirer to give most applicable

Schedule to owner driver at least 3 days before engagement (s 16)

Who does what?

• Legislation administered by Minister for Industrial

Relations

• Secretariat support provided by Industrial Relations

Victoria in DEDJTR

• Transport Industry Council
• Forestry Industry Council
• VSBC – Alternative dispute resolution, including

mediation of disputes

• VCAT – Determination of disputes

Contracts – minimum requirements

• 4 Requirements
• Contracts MUST:
• Be in writing (TIC has developed a Model Contract – but not

mandatory)

• State guaranteed minimum number of hours of work or income

level the owner driver will receive

• Set out rates to be paid to the owner driver
• Set out minimum period of notice of termination of engagement

(1 or 3 months, if heavy vehicle)

VSBC ADR role

Preliminary Assistance

• No cost
• Information and assistance
• Preliminary assistance

Mediation

• Low cost - $95 per party
• Commercial outcomes

Types of disputes

Contractual disputes

• Written or oral contracts, over terms of contract or engagement

T ermination disputes

• Hirers providing no or insufficient notice of termination
• “serious and wilful misconduct”
• Not defined

VCAT Case – ADA Cartage and Holcim Australia [2010] VCAT 1771

• Whether a false claim in a delivery docket was “serious and wilful misconduct”
• VCAT held the false claim was wilful and amounted to misconduct, but not “serious”

misconduct.

• Serious misconduct “is conduct so seriously in breach of the contract that by standards of fairness and

justice the hirer should not be bound to continue the engagement of the owner driver.”

• VCAT awarded the owner driver damages of 3 months payment

in lieu of notice of termination

Case study

• An owner driver was terminated by its hirer on grounds of “serious and

wilful misconduct” for breach of the hirer’s OH&S policies.

• The driver lodged a dispute with the

VSBC under the ODFC Act.

• At mediation, the owner driver was represented by his union. The

mediation was successful.

• Under Terms agreed between the parties, the hirer re-engaged the driver on

certain conditions, including that a satisfactory driver safety assessment was completed and strict adherence with the hirer’s OH&S policies.

• The hirer confirmed its intent to give notice to all drivers of the

importance of its OH&S policy as an essential element of all contracts.

• Importantly, the parties agreed to disclose the above terms for

educational and training purposes.

VSBC statistics

• Since 2006, the VSBC has received 400 owner driver disputes
• In 2016-17, owner driver disputes increased by almost 16% to 44

disputes (38 disputes in 2015-16)

• In 2016-17, 24 mediations were held
• Mediation success rate = over 86%

Review of ODFC Act

In November 2016, the Minister for Industrial Relations announced a review of the ODFC Act 2005 and Regulations.

• Purpose of Review:
• Consider changes that have occurred within the Victorian transport and forestry industries and at the

national level.

• Explore whether any changes could be made to improve the position of owner drivers and forestry

contractors while ensuring a competitive and fair operating environment for small businesses in Victoria.

• T

erms of Reference:

• Objectives of Act and Regulations
• Coverage of Act
• Contracting requirements
• Disputes resolution mechanism
• Governance, membership and functions of TIC and FIC
• Mandatory requirements, guidance material and best practice information in the Code
• Systematic avoidance of responsibilities and rights and ways to address these matters
• Compliance and enforcement arrangements
• Regulatory burden of Act and Regulations
• National legislative and regulatory developments
• Changes within industries
• Consider recommendations of the Victorian Inquiry into the

Labour Hire Industry and Insecure Work

Contact VSBC

Contact the VSBC for:

• Information
• Assistance
• Guidance
• Dispute resolution
• Sign up to our e-newsletter

www.vsbc.vic.gov.au 13 VSBC (13 8722) enquiries@vsbc.vic.gov.au