Chapter 6 Public vehicles and carriers
Part 1 Application and definitions
306 Contracts to which Chapter applies
The contracts to which this Chapter applies are contracts of bailment and contracts of carriage.
307 Contract of bailment—meaning
(1) For the purposes of this Chapter, a contract of bailment is a contract under which:(a) a public vehicle that is a taxi-cab is bailed to a person to enable the person to ply for hire, or(b) a public vehicle that is a private hire vehicle is bailed to a person to transport passengers.(2) If a person:(a) is in possession of a private hire vehicle otherwise than as a bailee or employee, and(b) is engaged in transporting passengers in the private hire vehicle pursuant to a licence under the Passenger Transport Act 1990 of which the person is not the holder,this Chapter applies to and in respect of that person in the same way as it would apply if the person were in possession of the private hire car under a contract of bailment made with the holder of the licence.
For the purposes of this Chapter, a bailor is the bailor under a contract of bailment to which this Chapter applies.
309 Contract of carriage—meaning
(1) For the purposes of this Chapter, a contract of carriage is a contract (whether written or oral or partly written and partly oral) for the transportation of goods by means of a motor vehicle or bicycle in the course of a business of transporting goods of that kind by motor vehicle or bicycle, but only:(a) where the carrier is not a partnership or body corporate—if no person except the carrier is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the carrier or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business, or(b) where the carrier is a partnership—if no person other than a partner is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the partnership or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business, or(c) where the carrier is a body corporate—if no person is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the body corporate or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business unless the person is:(i) a director of the body corporate or a member of the family of a director of the body corporate, or(ii) a person who, together with the members of his or her family, has a controlling interest in the body corporate, or(iii) a member of the family of a person who, together with the members of his or her family, has a controlling interest in the body corporate.(2) For the purposes of subsection (1), a reference to a carrier includes a carrier carrying on business under a franchise or other arrangement.(3) A contract of carriage includes any contract that the Commission declares, after inquiry, to be such a contract. The Commission may make such a declaration if, in its opinion:(a) the contract was entered into for the purpose of defeating, evading or avoiding the provisions of this Act relating to contracts of carriage, and(b) but for being entered into for that purpose, the contract would have been a contract of carriage.(4) A contract of carriage does not include a contract:(a) that is, if the carrier is a common carrier, made in the ordinary course of the business of the carrier as a common carrier, or(b) that is made in the ordinary course of business for the carriage of packaged goods for different principal contractors by the use of the same motor vehicle or bicycle, or(c) for the carriage of mail by or on behalf of Australia Post, or(d) for the carriage of bread, milk or cream for sale or delivery for sale, or(e) for the carriage of goods that are to be sold pursuant to orders solicited during the carriage of the goods, or(f) for the carriage of livestock, or(g) if the principal contractor is a primary producer or a member of the family of a primary producer and the contract is for the transportation of primary produce (other than timber), or(h) for the transportation of primary produce (other than timber) from or to land used for primary production, or(i) for the delivery of meals by couriers to homes or other premises for consumption.
310 Principal contractor—meaning
(1) For the purposes of this Chapter, a principal contractor is, subject to this section, the person for whom the carrier under a contract of carriage agrees to transport goods to which the contract relates.(2) If:(a) a contract of carriage is made by the acceptance by an agent of the carrier of an offer to enter into the contract not directed specifically to that carrier, and(b) the agent accepted the offer in the course of a business of acting as agent for the receipt and acceptance, on behalf of 2 or more prospective carriers, of offers to enter into contracts of carriage, and(c) the agent has a discretion in the selection of the prospective carrier on whose behalf an offer received in the course of that business will be accepted by the agent,the agent is, for the purposes of this Chapter, to be regarded as the principal contractor under the contract to the exclusion of the offerer.(3) For the purposes of section 309 (4) (a) and (b), the carrier under a contract of carriage made as referred to in subsection (2) is to be regarded as having held himself or herself out as ready to transport the goods to which the contract relates for the person required by subsection (2) to be regarded as the principal contractor and not to have held himself or herself out as ready to transport the goods for the offerer so referred to.
310A Authorisations for purposes of Trade Practices Act 1974 of the Commonwealth
(1) The following things are specifically authorised by this Act for the purposes of section 51 of the Trade Practices Act 1974 of the Commonwealth and the Competition Code of New South Wales:(a) anything done by the Commission in exercising its functions under this Chapter,(b) anything done by a person in order to comply with a contract determination of the Commission under this Chapter,(c) the entering into of an agreement approved by the Commission under this Chapter,(d) the doing of anything preparatory or incidental to the entering into of any such agreement,(e) anything done under any such agreement,(f) anything done by the Contracts of Carriage Tribunal in exercising its functions under this Chapter.(2) Things authorised to be done by subsection (1) are authorised only to the extent (if any) that they would otherwise contravene Part IV of the Trade Practices Act 1974 of the Commonwealth or the Competition Code of New South Wales.(3) This section extends to any contract determination made or agreement entered into before the commencement of this section.(4) (Repealed)
Part 2 Contract determinations
311 Applications to exercise functions
(1) An application for the exercise of a function of the Commission under this Part may be made by:(a) a bailor under a contract of bailment, if the average number of different bailees with whom the bailor entered into contracts of bailment on each working day during the period of one month that last preceded the making of the application was not less than 10, or(b) a principal contractor under a contract of carriage, if the average number of different carriers with whom the principal contractor entered into contracts of carriage on each working day during the period of one month that last preceded the making of the application was not less than 10, or(c) an association of employing contractors, or any other association, which represents bailors or principal contractors who are, or some of whom are, parties to contracts of the class concerned, or(d) an association of contract drivers or an association of contract carriers that represents bailees or carriers who are, or some of whom are, parties to contracts of the class concerned.(2) An application must be in such form, and contain such particulars, as are required by the rules of the Commission.
312 Jurisdiction of Commission with respect to contracts of bailment
(1) The Commission may inquire into any matter arising under contracts of bailment and may make a contract determination with respect to any of the following matters under those contracts:(a) the remuneration of bailees under those contracts (including by way of a minimum rate of commission expressed as a percentage of the chargeable fares earned),(b) the amounts (if any) to be paid by the bailor to the bailee as attendance money when the bailee is required to attend at a place where the public vehicle concerned is to be bailed to the bailee but no such bailment takes place and for special duties such as preparing and driving a public vehicle to a registering or licensing authority for inspection,(c) annual or other holidays, sick leave and long service leave for the bailee or payments to the bailee instead of any such leave,(d) the minimum number of hours per day, per week or for any longer period during which the bailor is to bail the vehicle, if drivable, to the bailee,(e) if satisfied that it is imperative to do so in the interest of bailors, bailees and the public—the maximum number of hours per day, per week or for any longer period that a bailee may drive a public vehicle,(f) other conditions.(2) Subsection (1) (a) does not authorise the Commission to fix penalty rates of commission in relation to excess hours of work or work on specified days but, in fixing a rate of commission under subsection (1) (a), the Commission may take into account all the circumstances in which a public vehicle is driven for reward.(3) The Commission may, after inquiry, make a contract determination with respect to the records to be kept by bailors in respect of contracts of bailment. Any such determination is subject to any regulations with respect to the matter.
313 Jurisdiction of Commission with respect to contracts of carriage
(1) The Commission may inquire into any matter arising under contracts of carriage and may make a contract determination with respect to remuneration of the carrier, and any condition, under such a contract.(2) In exercising its jurisdiction under this section, the Commission may:(a) include in the remuneration of persons affected by its determination such allowance instead of annual or other holidays, sick leave or long service leave as it thinks fit, or(b) otherwise make provision for all or any of those matters.(3) The Commission may, after inquiry, make a contract determination with respect to the records to be kept by principal contractors in respect of contracts of carriage.
314 Jurisdiction with respect to reinstatement of contracts
(1) The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated.(2) Reinstatement of a contract includes re-engagement under a similar contract.(3) A contract determination under this section may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts.(4) If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under relevant contracts during the period of 6 months immediately before the termination of the contract.(5) When assessing any compensation payable, the Commission is to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements.(6) A contract determination under this section takes effect when it is made, and is not required to have a specified term or to be published on the NSW industrial relations website.
315 Conference to precede contract determination
(1) When application is made to the Commission to exercise its jurisdiction under this Part, the Commission must, before it considers the application, summon to attend and confer with the Commission the applicant and such other persons served with the application as the Commission may direct.(2) At the conference, the Commission is to:(a) ascertain which of the matters with which the application is concerned are in dispute and which are not, and(b) ascertain whether there are any special circumstances or problems existing with respect to contracts of the class with which the application is concerned, and(c) take all reasonable steps to effect an amicable settlement of any matters in dispute.(3) After conferring on an application, the Commission may:(a) dismiss the application, or(b) proceed to hear the application or specify a time and place at which it will be heard, or(c) adjourn the application for such period or periods as it thinks fit.(4) Before hearing an application, the Commission may require service of the application on such persons as it may direct.
316 Making of contract determinations
(1) After hearing an application for it to exercise its jurisdiction under this Part, the Commission may:(a) dismiss the application, or(b) make a contract determination with respect to the application.(2) When the Commission makes a contract determination:(a) it may defer the operation of the determination wholly or in part for such period or periods as it thinks fit, and(b) it must specify the class or classes of contracts in respect of which the determination is to operate (including classes defined by reference to a named bailor or principal contractor).
317 Binding force of determination
(1) Subject to such exemptions and conditions as the Commission may direct, a contract determination is binding on all bailors and bailees or all principal contractors and carriers who are parties to contracts of the class to which the determination relates as the Commission may direct.(2) A contract determination that is binding on a carrier which is a corporation is, except to the extent that the determination otherwise provides, also binding on:(a) any director of the corporation, or any member of the family of any such director, who personally does work under a contract to which the determination relates and to which the corporation is a party, and(b) any holder of shares in the corporation who personally does work under any such contract if that holder, together with the members of his or her family, has a controlling interest in the corporation, and(c) any member of the family of the holder of shares in the corporation who personally does work under any such contract if that holder, together with the members of his or her family, has a controlling interest in the corporation.
318 Commencement of determination
(1) A contract determination comes into force on the date specified by the Commission.(2) However, legal proceedings relating to the enforcement of the determination cannot be commenced until the expiration of 7 days after the day on which it is published on the NSW industrial relations website.(3) A contract determination may be expressed to apply retrospectively, but not earlier than the date on which:(a) application for the determination was lodged with the Industrial Registrar or the Commission initiated proceedings for the determination, or(b) the Commission initiated proceedings for the determination, or(c) the dispute giving rise to the determination was notified to the Commission,as the case requires.Note. Section 190 enables the Full Bench or a Presidential Member, on such terms as it thinks fit, to stay the operation of the whole or any part of a contract determination for the purposes of appeal pending determination of the appeal or further order of the Commission.
(1) A contract determination applies for the period specified in it as its nominal term and, after that period, until rescinded by the Commission. However, the Commission may specify that the determination ceases to apply at the end of its nominal term.(2) The nominal term of a determination must not be more than 3 years.
320 Variation or rescission of determinations
The Commission may vary or rescind a contract determination and, when it rescinds a determination, it may replace that determination with a new determination.
321 Exemptions from determinations
(1) The Commission may, on application, grant an exemption from the whole or any part of a contract determination if satisfied it is not contrary to the public interest.(2) An exemption may be granted for a period not exceeding 3 years at any one time.(3) The Commission may, on application or on its own initiative, review any exemption, and may confirm, vary or revoke the exemption.
322 Agreements concerning contract conditions
(1) An association of contract drivers may enter into an agreement with a bailor of a public vehicle, or with an association of employing contractors representing bailors of public vehicles, with respect to the conditions of contracts of bailment made with that bailor or with bailors represented by the association.(2) An association of contract carriers may enter into an agreement with a principal contractor, or with an association of employing contractors, with respect to the conditions of contracts of a specified class made with carriers by that principal contractor or with principal contractors represented by the association.(3) A group of carriers may enter into an agreement with a principal contractor, or with an association of employing contractors, with respect to the conditions of contracts of a specified class made with those carriers by that principal contractor or with principal contractors represented by that association. Those carriers are taken to be one of the parties to the agreement for the purposes of this Part.(4) An agreement under this section is required to be in writing and signed by or on behalf of the parties to it.(4A) An agreement under this section must identify the parties to the agreement and describe the class of contracts to which it relates. In particular, an agreement under subsection (3) must identify each member of the group of carriers that enters into the agreement.(5) An agreement under this section is called a contract agreement.
323 Contract agreement required to be approved
(1) A contract agreement does not have effect unless it is approved by the Commission under this Part.(2) This section extends to a contract agreement that varies an earlier agreement.
324 Application for approval of contract agreement
(1) Application for approval of a contract agreement may be made by lodging the agreement with the Industrial Registrar in accordance with this Part and the rules of the Commission.(2) At proceedings of the Commission relating to any such application for approval, the following may appear or be represented:(a) any party to the agreement,(b) any association registered under this Chapter if its members or persons eligible to become members are affected by the agreement (but only with leave of the Commission),(c) a State peak council (but only with leave of the Commission),(d) the President of the Anti-Discrimination Board (but only with leave of the Commission).
325 Approval of contract agreement by Commission
(1) The Commission is to approve each contract agreement lodged for approval, but only if the Commission is satisfied that:(a) the agreement complies with all relevant statutory requirements (including the requirements of this Part and of the Anti-Discrimination Act 1977), and(b) the agreement does not, on balance, provide a net detriment to the drivers or carriers who are to be covered by the agreement when compared with the aggregate package of conditions of engagement under relevant contract determinations that would otherwise apply to the drivers or carriers, and(c) the parties understand the effect of the agreement, and(d) the parties did not enter the agreement under duress.(2) This subsection applies to a contract agreement that applies to contracts of carriage entered into by some but not all of the carriers engaged by the principal contractor or contractors bound by the agreement, unless those carriers comprise a distinct geographical, operational or organisational unit. The Commission is not to approve such a contract agreement if it is satisfied that:(a) the contract agreement fails to cover other carriers engaged by the principal contractor or contractors who would reasonably be expected to be covered, given the nature of the work performed under the contracts to which the agreement applies and the organisational and operational relationships between the carriers bound by the agreement and those other carriers, and(b) it is unfair not to cover the carriers excluded from the contract agreement.(3) The Commission is to follow the principles for approval set under section 33 (Principles for approval of enterprise agreements), with any necessary modifications, when deciding whether to approve a contract agreement, unless satisfied that any departure from those principles would not prejudice the interests of any of the parties to the agreement.
325A Special requirements relating to contract agreements to which groups of carriers are parties
(1) A contract agreement to which a group of carriers is a party is not to be approved unless the requirements of this section have been complied with.(2) Before or at the time the principal contractor, or association of principal contractors, first undertakes formal negotiations with a group of carriers for the purposes of a contract agreement, the principal contractor or association is to advise the Industrial Registrar in writing of the following:(a) that a contract agreement is proposed or under negotiation,(b) the contract determinations or contract agreements that then apply to the carriers.(3) The Industrial Registrar is to advise such persons or bodies as are prescribed by the regulations of the proposed contract agreement.(4) The contract agreement must be approved in a secret ballot by not less than 65% of the carriers who enter into the agreement.(5) The Industrial Registrar must, after the contract agreement is lodged for approval, prepare a report for the Commission comparing the conditions of engagement under the agreement and the conditions of engagement that would otherwise apply to the carriers under relevant contract determinations.(6) Section 37 applies to secret ballots under this Part in the same way as it applies to secret ballots under Part 2 of Chapter 2. Section 344 extends to that application of section 37.
326 Persons bound by contract agreement
(1) A contract agreement is binding on:(a) the parties to the agreement, and(b) in the case of a party that is an association of employing contractors—all members of the association or a specified member or class of members, as provided by the agreement, and(c) in the case of a party that is an association of contract drivers or contract carriers—all bailees or carriers who are members of the association, or who are eligible to be members of the association and who enter into contracts of the class to which the contract agreement relates.(2) A contract agreement that, by the operation of this Part, is binding on a corporation as a member of an association of contract carriers is, except to the extent that the agreement otherwise provides, also binding on:(a) any director of the corporation, or any member of the family of any such director, who personally does work under a contract to which the agreement relates and to which the corporation is a party, and(b) any holder of shares in the corporation who personally does work under any such contract if that holder, together with the members of his or her family, has a controlling interest in the corporation, and(c) any member of the family of the holder of shares in the corporation who personally does work under any such contract if that holder, together with the members of his or her family, has a controlling interest in the corporation.
327 Contract agreements prevail over contract determinations
The provisions of a contract agreement prevail over the provisions of any contract determination of the Commission that deal with the same matters in so far as the provisions of the determination apply to a person bound by the agreement.
328 Term of contract agreement
(1) A contract agreement applies for the period specified in it as its nominal term and, after that period, until terminated in accordance with this Part.(2) The nominal term of a contract agreement must not be less than 12 months nor more than 3 years.(3) However, a contract agreement made for a project may have a specified nominal term not exceeding the expected duration of the project.(4) A contract agreement varying an earlier agreement applies for the residue of the term of the agreement it varies.
329 Variation of a contract agreement
(1) A contract agreement may be varied at any time by a further contract agreement made and approved in accordance with this Part.(2) It does not matter that the parties to the further agreement are not the same as the parties to the earlier agreement.
330 Termination of contract agreement
(1) A contract agreement can be terminated only in accordance with this section.(2) A contract agreement can be terminated at any time with the approval of all the parties to it, whether during or after its nominal term.(3) A contract agreement can also be terminated at or after the end of its nominal term by any one of the parties giving at least 3 months’ notice of intention to terminate to each other party. The notice may be served before the end of the nominal term.(3A) In the case of a contract agreement to which a group of carriers is a party, the proposed termination of the agreement by the carriers must be approved in a secret ballot by not less than 65% of the carriers covered by the agreement at the time the ballot is conducted.(4) Termination of the contract agreement is not effective until the Industrial Registrar has been given written notice of the approval to terminate or of service of the notice of intention to terminate.
331 Register and publication of contract agreements
(1) The Industrial Registrar is to keep a register of all contract agreements that have been approved by the Commission, approvals or notices to terminate contract agreements and such other particulars as the Industrial Registrar considers appropriate.(2) The Industrial Registrar is to publish the following details on the NSW industrial relations website of each contract agreement as soon as practicable after the agreement is approved:(a) the identity of the parties to the agreement and the description of the drivers or carriers for whom it is made,(b) the commencement and the nominal term of the agreement,(c) a statement of whether the agreement is a new agreement or the variation of an earlier agreement.(3) The register of contract agreements is to be open for public inspection during ordinary office hours.(4) A person may make copies of any document kept in the register of contract agreements on payment of such fee, if any, as is prescribed by the regulations.
332 Compulsory conference with respect to disputes
(1) If subsection (2) or (3) applies or the Commission has reasonable cause to believe that it applies, the Commission may summon a person to a compulsory conference:(a) to confer, or(b) to give evidence, or(c) to produce documents or exhibits,in an endeavour to bring the interested parties to a settlement which will determine the matter in relation to which the subsection applies.(2) This subsection applies if an association registered under this Chapter or a bailor or a principal contractor becomes aware of an industrial dispute that might lead, or has led:(a) to owners of public vehicles being in breach of contracts of bailment of those vehicles or refusing to enter into contracts of bailment of those vehicles, or(b) to principal contractors under contracts of carriage being in breach of those contracts or persons refusing to enter into contracts of carriage as principal contractors, or(c) to bailees of public vehicles or carriers under contracts of carriage being in breach of those contracts, or(d) to persons refusing to enter into contracts as bailees of public vehicles or as carriers under contracts of carriage.(3) This subsection applies if an industrial dispute arising from the reorganisation of the business of a principal contractor affects, or is likely to affect, the number of carriers used by the principal contractor or their remuneration.(4) At a compulsory conference, the Commission is to investigate the merits of the matter concerned, irrespective of whether or not industrial action is taking place.(5) If the Commission considers that:(a) the public interest is, or could be, affected by a question, dispute or difficulty referred to in subsection (2) or (3), and(b) all reasonable steps have been taken to resolve the industrial dispute by conciliation,it may make a contract determination expressed to be an interim determination made under this subsection.(6) An interim determination made under subsection (5):(a) is, as far as practicable, to restore or maintain the conditions existing between the parties immediately before the occurrence of the events giving rise to the industrial dispute, and(b) is to remain in force for such period, not exceeding one month after its making, as is specified in it.
Part 5 Associations of employing contractors, drivers and carriers
333 Associations of employing contractors
(1) The Industrial Registrar may, on application, register any group or organisation as an association of employing contractors so long as, throughout the period of 6 months immediately before the making of the application, the members of the group or organisation have been:(a) bailors under contracts of bailment made with not fewer than 25 different bailees, or(b) principal contractors under contracts of carriage with not fewer than 25 different carriers.(2) An application for registration:(a) is to be made in the form approved by the Industrial Registrar, and(b) must be signed by a majority of the members of the governing body of the applicant group or organisation or, if there is no such governing body, by a majority of the members of the group or organisation.(3) A group or organisation is registered when the Industrial Registrar enters in the register of associations of employing contractors the name of the association, particulars of the class of contracts in relation to which it is registered and such other particulars as may be prescribed by the regulations.
334 Cancellation of registration
(1) The Commission in Court Session may order cancellation of the registration of an association of employing contractors:(a) if the Commission is satisfied that, throughout the period of 6 months immediately before the day of the making of the order, the members of the association had not been parties to contracts, of the class in relation to which the association is registered, with at least 25 different carriers, or(b) if the Commission is satisfied that the group or organisation comprising the association has ceased to exist, or(c) for any other reason that to the Commission seems appropriate.(2) If the Commission makes such an order, the Industrial Registrar is to cancel the registration of the association by removing from the register of associations of employing contractors the name of the association.
335 Associations of contract drivers and contract carriers
(1) The Industrial Registrar may, on application:(a) register as an association of contract drivers any group or organisation (including an industrial organisation of employees) claiming to represent not fewer than 50 bailees of public vehicles, or(b) register as an association of contract carriers any group or organisation (including an industrial organisation of employees) claiming to represent not fewer than 50 carriers each of whom is engaged in the transportation of any goods, other than passengers, under contracts of carriage.(2) An application for registration:(a) is to be made in the form approved by the Industrial Registrar, and(b) must be signed by a majority of the members of the governing body of the applicant group or organisation or, if there is no such governing body, by a majority of the members of the group or organisation.(3) The Industrial Registrar is to cause notice of an application under this section to be published as prescribed by the regulations.
336 Objections to registration of drivers’ and carriers’ associations
(1) Any person may, by notice in writing served on the Industrial Registrar within the period prescribed by the regulations, object to the granting of an application under section 335 on the ground:(a) that the applicant does not genuinely represent the interests under this Act of the bailees or carriers that it claims to represent, or(b) that the interests under this Act of bailees or carriers whom the applicant claims to represent are already represented by an association of contract drivers or an association of contract carriers or that there is such an association to which the members of the applicant might conveniently belong.(2) The Industrial Registrar is to fix a time and place for the hearing by the Industrial Registrar of objections under this section and is to notify the applicant and all objectors of that time and place.(3) At the hearing of the objection, the objectors and the applicant are entitled to be heard and, after considering the evidence given and the submissions made at the hearing, the Industrial Registrar must, if the Industrial Registrar sustains the objection, refuse the application to which the objection relates.(4) The Industrial Registrar must notify in writing all objectors to the granting of the application, and the applicant, of the Industrial Registrar’s decision on the objections and of the reasons for that decision.
337 Grant or refusal of applications
(1) Whether or not an objection is made, the Industrial Registrar can refuse to register the applicant group or organisation as an association on the basis of an application under section 335 on any ground on which an objection could be made to the application and must notify the applicant in writing of the refusal and of the reasons for the refusal.(2) A group or organisation that has made an application under section 335 is registered when the Industrial Registrar enters in the register of associations of contract drivers or the register of associations of contract carriers the name of the association, particulars of the class of contracts in relation to which it is registered and such other particulars as may be prescribed by the regulations.(3) A branch of a group or organisation is not to be registered separately as an association under this section unless, in the opinion of the Industrial Registrar, it is of sufficient importance to be separately registered.
338 Withdrawal or cancellation of registration
(1) The Industrial Registrar may issue a certificate of withdrawal of registration with respect to an association of contract drivers or an association of contract carriers if satisfied that:(a) an application for such a certificate has been made in the manner prescribed by the regulations, and(b) written notice of the intention to apply for such a certificate has been given within the period and in the manner prescribed by the regulations, and(c) such other conditions as may be prescribed by the regulations have been complied with.(2) The Commission in Court Session may order cancellation of the registration of an association of contract drivers or an association of contract carriers:(a) if the Commission is satisfied that the group or organisation comprising the association has ceased to exist, or(b) for any other reason that seems appropriate to the Commission.(3) If, in relation to an association of contract drivers or an association of contract carriers:(a) a certificate of withdrawal of registration has been issued under subsection (1) and the period of 28 days immediately following the issue of the certificate has expired, or(b) an order has been made under subsection (2),the Industrial Registrar is to cancel the registration of the association by removing from the relevant register the name of the association.(4) If the registration of an association is cancelled, the Commission may cancel:(a) any contract determination in force with respect to members of the association, or(b) any contract agreement so in force.(5) The cancellation under this section of the registration of an association or of a determination or agreement does not operate to relieve the association or any of its members from any obligations incurred, before the cancellation, under the contract determination or contract agreement or under an order of the Commission.
339 Demarcation questions relating to associations
(1) The Commission may, by its order, determine any question as to the demarcation of the interests of associations in the regulation of the conditions of contracts to which this Chapter applies.(2) Application for an order under this section may be made by a bailor, a principal contractor or an association registered under this Part.
340 Change of name or amalgamation of associations
(1) If an association (whether of employing contractors, contract drivers or contract carriers) has changed its name or 2 or more associations have amalgamated, the Industrial Registrar may, on application, record any such change of name or amalgamation in the appropriate register or registers.(2) The application is to be made in the manner and form approved by the Industrial Registrar and is to be signed by a majority of the members of the governing body or bodies or committee or committees of management of the association or associations concerned.(3) A recording made under this section is to be considered to be a re-registration of the applicant association or associations under the name specified in the application, but the change of name or amalgamation does not affect any rights, liabilities or obligations of the applicant association or associations that existed immediately before the recording was made.(4) The Industrial Registrar may, in respect of an application made under this section by an association or associations of contract drivers or contract carriers, or both, refuse the application and require the association or associations to make an application for registration under this Chapter under the changed or amalgamated name.
341 Certificates of registration etc
(1) On the registration of an association of employing contractors, contract drivers or contract carriers, the Industrial Registrar is to issue to the association a certificate of registration in the form approved by the Industrial Registrar.(2) Such a certificate is conclusive evidence that the requirements of this Act as to registration have been satisfied.(3) On application made to the Industrial Registrar by a person claiming to be the secretary of an association of employing contractors, contract drivers or contract carriers, the Industrial Registrar may, if satisfied that the person has been duly elected or appointed as the secretary of the association and that the requirements of the constitution of the association relating to that election or appointment have been complied with, issue a certificate in the form approved by the Industrial Registrar that the person is the secretary of the association.(4) A document purporting to be a certificate under subsection (3) is admissible in evidence in any proceedings under this Act and, in the absence of proof to the contrary, is evidence that the person specified is the secretary of the association specified in the certificate.(5) A person to whom a certificate has been issued under subsection (3) must, on ceasing to hold office as secretary of the association specified in the certificate, or on being requested by the Industrial Registrar to do so, forthwith return the certificate to the Industrial Registrar for cancellation.Maximum penalty: 5 penalty units.
(1) The Industrial Registrar is to keep a register of associations of employing contractors, a register of associations of contract drivers and a register of associations of contract carriers that are to be open to inspection by any person at the office of the Industrial Registrar at all times when that office is open for business.(2) A certificate purporting to be signed by the Industrial Registrar and purporting to contain a copy of a recording made in a register kept under this section:(a) is admissible in evidence in any proceedings under this Act, and(b) is evidence of the matters specified in the certificate, and(c) until the contrary is proved, is to be considered to be a true and correct copy of the recording.
343 Application of certain provisions for the purposes of this Chapter
(1) The following provisions of this Act apply to and for the purposes of this Chapter (the applied provisions):(a) Section 27 (Prohibition on cashing-in of accumulated sick leave),(b) Part 3 of Chapter 2 (National and State decisions),(c) Part 10 of Chapter 2 (Payment of remuneration),(d) Part 3 of Chapter 3 (Common law actions during conciliation of industrial disputes),(e) Section 143 (Strike pay prohibited),(f) Section 172 (Power to order secret ballot),(g) Part 8 of Chapter 4 (Industrial Committees),(h) Part 1 of Chapter 5 (Principles of association),(i) Part 7 of Chapter 5 (Entry and inspection by officers of industrial organisations),(j) Chapter 7 (Enforcement).(2) The applied provisions have effect subject to such modifications as are prescribed by this Part or the regulations.
344 Interpretation of applied provisions
For the purposes of the application of the applied provisions:(a) a reference to employment is to be read as a reference to engagement under a contract of bailment or carriage, and(b) a reference to an employer is to be read as a reference to a bailor of public vehicles or principal contractor, and(c) a reference to employees is to be read as a reference to bailees of public vehicles or carriers, and(d) a reference to remuneration of an employee (however expressed) is to be read as a reference to amounts payable to a bailee under the contract of bailment or amounts payable to a carrier under the contract of carriage, and(e) a reference to an award is to be read as a reference to a contract determination, and(f) a reference to an enterprise agreement is to be read as a reference to a contract agreement, and(g) a reference to an industrial organisation is to be read as a reference to an association of employing contractors, an association of contract drivers or an association of contract carriers, and(h) a reference to an industrial organisation of employers is to be read as a reference to an association of employing contractors, and(i) a reference to an industrial organisation of employees is to be read as a reference to an association of contract drivers or an association of contract carriers, and(j) a reference (in Part 7 of Chapter 5) to relevant employees in relation to an organisation is to be read as a reference to persons who are or are eligible to be members of an association.
Part 7 Compensation for termination of certain contracts of carriage
In this Part:carrier means an individual, partnership or body corporate who or which supplies services under contracts of carriage.
head contract of carriage means an agreement, arrangement or practice under which a principal contractor and carrier agree that the carrier is to provide services exclusively and on an agreed regular basis for the principal contractor.
previous carrier means a previous carrier as referred to in section 346 (1) (a).
previous principal contractor, in relation to a previous carrier, means the principal contractor immediately preceding the principal contractor referred to in section 346 (1) (a) to whom the previous carrier provided services under the relevant head contract of carriage.
termination has its ordinary common law meaning, and includes conduct by a principal contractor, being conduct resulting from factors within the control of the principal contractor, the effect of which is to alter the head contract of carriage in a manner which imposes serious financial disadvantage on the carrier.
Tribunal means the Contract of Carriage Tribunal established by this Part.
(1) A carrier whose head contract of carriage is terminated by a principal contractor may claim compensation from the principal contractor if:(a) the carrier entered into the head contract of carriage by arrangement with a previous carrier whose provision of services to the principal contractor under contracts of carriage was replaced by the carrier, and(b) under the terms of the arrangement between the previous carrier and the carrier, a sum of money was paid by the carrier to the previous carrier as a premium or fee in connection with the entry into the head contract of carriage by the carrier, and(c) it is a custom and practice in the relevant section of the industry or business of the principal contractor that such a premium or fee be paid, and(d) the principal contractor knew or ought reasonably to have known that such a premium or fee had been paid to the previous carrier, and(e) the principal contractor failed to take reasonable steps to advise the carrier that it was not a requirement of the principal contractor that such a payment be made or requested.(2) A carrier is not prohibited from making a claim under this section because the carrier performs minor or incidental work for a person other than the principal contractor under the head contract of carriage.
347 Contract of Carriage Tribunal
(1) There is established by this Part a Contract of Carriage Tribunal.(2) Except as provided by subsection (3), the Tribunal is constituted by a Presidential Member sitting alone.(3) In the case of arbitration proceedings under this Part, the Tribunal is, for the purposes of the proceedings, constituted by a Presidential Member and 2 part-time members nominated by the Presidential Member, one from each of the arbitration panels.(4) There are to be 2 arbitration panels, one consisting of persons appointed by the Minister to represent principal contractors and the other appointed by the Minister to represent carriers.(5) The members of the panels are to be persons who, in the opinion of the Minister, are qualified to represent the interests of principal contractors and carriers, respectively.(6) The Minister may invite any person or body to nominate persons for appointment to an arbitration panel.(7) The Minister may specify the period within which, and the manner in which, such a nomination may be made.(8) A person is not to be nominated to the Tribunal until:(a) each party to the arbitration proceedings concerned has been notified of the proposed nomination and of the period in which the party may veto the nomination, and(b) either the period has ended without the nomination being vetoed or each party has notified the Presidential Member that the party has decided not to veto the proposed nomination.(9) A part-time member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine with respect to the part-time member.
348 Compulsory conference with respect to claims
(1) When a head contract of carriage is terminated, the carrier may notify the Industrial Registrar of any claim for compensation in respect of the termination.(2) Notification may be given instead by an association of contract carriers of which the carrier is a member.(3) Notification must be made within 3 months after the termination of the contract.(4) On notification, the Industrial Registrar must notify the President of the Commission.(5) The President of the Commission is to deal with the matter personally or allocate the matter to another Presidential Member.(6) A claim for compensation is to proceed by conciliation in the first instance.(7) The Tribunal, when attempting conciliation, is to do everything that to it seems proper to assist the parties to settle the claim. If a settlement is not achieved but further discussions are, in the opinion of the Tribunal, likely to produce a settlement, the Tribunal may arrange conferences of the parties or their representatives (whether or not presided over by the Tribunal).(8) If the parties reach an agreement, the Tribunal may make a determination in accordance with the agreement, which is to be in full settlement of the claim.(9) The Tribunal may summon a person to a compulsory conference:(a) to confer, or(b) to produce documents,in an endeavour to bring the parties to a settlement which will determine the matter concerned.(10) The Tribunal may direct that any person (including, but not limited to, a previous principal contractor) who or which is not a party to the notification referred to in subsection (3) is to be a party to a compulsory conference held under this section.(11) If conciliation does not settle the claim, the Tribunal is to deal with it by arbitration in accordance with section 349.
(1) The Tribunal may determine that compensation is payable in relation to a claim only if it is satisfied that the termination of the head contract of carriage concerned was unfair, harsh or unconscionable.(2) The Tribunal may direct that any person (including, but not limited to, a previous principal contractor) who or which is not a party to a claim notified to the Industrial Registrar under section 348 (1), is to be a party to the arbitration proceedings.(3) Subject to subsection (4), the Tribunal may order that a carrier, previous carrier, principal contractor or previous principal contractor joined as such a party is liable to pay solely, or jointly with another party or parties, compensation under this Part.(4) In determining whether or not compensation is payable and, if so, the amount of compensation, the Tribunal is to have regard to the following matters:(a) the amount of the premium or fee paid by the carrier as referred to in section 346,(b) any amount paid to the carrier by the principal contractor (including but not limited to redundancy payments) in respect of the termination of the head contract of carriage, whether or not such payment was made expressly on account of the payment of that premium or fee,(c) the duration of the head contract of carriage,(d) the likelihood of the carrier being able to use the motor vehicle required by the head contract of carriage for other types of work, and the availability of any such work,(e) the re-sale value of the motor vehicle,(f) the preparedness of the principal contractor to guarantee a flow of work to the carrier for a specified period in the future.(5) If the Tribunal determines that compensation is payable by more than one party, the Tribunal is to determine the respective proportions of the total sum to be paid by each.(6) Quantification of any compensation is to be approached as though in a claim for damages for breach of contract and compensation is payable only in respect of pecuniary loss resulting from termination of the head contract of carriage. Without limiting the amount of compensation that may be determined to be payable, compensation may include the whole or a part of the amount of premium or fee paid by the carrier.(7) A claim for compensation may not be dealt with by the Tribunal if the claim (however described) is the subject of an application before, or has been determined by, any court or other tribunal.(8) The Tribunal must not make a determination under this Part if the determination has the effect of altering or varying a contract agreement or a contract determination.
350 Appeal from Tribunal to Full Bench of Commission
Part 7 of Chapter 4 (Appeals and references to Commission) applies to a decision, order or direction of a Tribunal under this Part in the same way as it applies to a decision, order or direction of the Commission constituted by a single member.
351 General procedure and powers of Tribunal
(1) Part 5 of Chapter 4 (Procedure and powers of Commission) applies to proceedings before the Tribunal in the same way as it applies to proceedings before the Commission other than in Court Session, subject to this Part and to such exceptions and modifications as are prescribed by the regulations.(2) In particular, sections 179 (Finality of decisions) and 182 (Recovery of amounts ordered to be paid other than penalties) apply to decisions of the Tribunal.(3) Rules of the Commission may be made relating to the practice and procedure of (and other matters relating to) the Tribunal.
352 Voting by members of Tribunal
(1) Each part-time member of a Tribunal has one vote.(2) If the part-time members both vote for or against a motion, the decision is the decision of the Tribunal.(3) If the part-time members do not both vote for or against a motion, the Presidential Member is to decide the question and the decision of the Presidential Member is the decision of the Tribunal.
(1) The Tribunal may make an order for the payment of costs only if the Tribunal dismisses a claim on the ground that it is frivolous or vexatious, or was commenced without reasonable cause, or the Tribunal considers a party to have unreasonably refused to accept an offer of settlement of the claim.(2) An order of the Tribunal for the payment of costs may only be made with the approval of the Presidential Member.
(1) A party to proceedings before the Tribunal may appear personally or be represented by an Australian legal practitioner or by an agent who is not an Australian legal practitioner, by an employee or officer of an association of employing contractors, or by an employee or officer of an association of contract carriers.(2) However, a party is not entitled to be represented in conciliation proceedings by a person who is an Australian legal practitioner without the leave of the Tribunal.(3) The leave of the Tribunal is not required if the Australian legal practitioner represents a member of an association of employing contractors or an association of contract carriers and is an officer or employee of such an association.(4) The Tribunal may allow any party appearing before it the services of an interpreter.
355 Contracting out prohibited in certain circumstances
(1) The provisions of this Part have effect despite any stipulation to the contrary.(2) No contract or agreement made or entered into before or after the commencement of this Part operates to annul, vary or exclude any of the provisions of this Part.