Part 7Part 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.