Industrial Relations (Public Vehicles and Carriers) Amendment Act 1993 (NSW)

INDUSTRIAL RELATIONS (PUBLIC VEHICLES AND

CARRIERS) AMENDMENT ACT 1993 No. 82

NEW SOUTH WALES

TABLE OF PROVISIONS

1.      Short title

2. Commencement

3. Amendment of Industrial Relations Act 1991 No. 34

SCHEDULE 1-AMENDMENTS

INDUSTRIAL RELATIONS (PUBLIC VEHICLES AND

CARRIERS) AMENDMENT ACT 1993 No. 82

NEW SOUTH WALES

Act No. 82, 1993

An Act to amend the Industrial Relations Act 1991 to make further provision with respect to public vehicles and carriers; and for other purposes. [Assented to 24 November 1 9 9 3 ]

Industrial Relations (Public Vehicles and Carriers) Amendment Act 1993 No. 82

The Legislature of New South Wales enacts:

Short title

1. This Act may be cited as the Industrial Relations (Public Vehicles

and Carriers) Amendment Act 1993.

Commencement

2. This Act commences on a day or days to be appointed by

proclamation.

Amendment of Industrial Relations Act 1991 No. 34

3. The Industrial Relations Act 1991 is amended as set out in

Schedule l .

SCHEDULE 1-AMENDMENTS

(Sec. 3)

(1) Section 660 (Definitions):

Insert in alphabetical order:

“motor vehicle” has the same meaning as in the Traffic

Act 1909;

(2) Section 663 (Contract of carriage—meaning):

(a) Omit “motor lorry” wherever occurring, insert instead “motor vehicle”.

(b) At the end of section 663 (2) (h), insert:

; or

(i)  for the delivery of meals by couriers to homes or other premises for consumption.

(c) After section 663 (4), insert:

(5) Registered agreements and contract determinations made before the commencement of this subsection (as inserted by the Industrial Relations (Public Vehicles and Carriers) Amendment Act 1993) apply, until such time as they are varied, only to motor lorries.

Industrial Relations (Public Vehicles and Carriers) Amendment Act 1993 No. 82

SCHEDULE 1-AMENDMENTS-continued

(3) Part 2A:

After Part 2, insert:

PART 2A—VOLUNTARY MEMBERSHIP OF
ASSOCIATIONS OF CONTRACT DRIVERS AND
CONTRACT CARRIERS

Definitions

674A. In this Part:

“association” means an association registered under

Part 2;

“engagement” means the engagement of a bailee by a bailor under a contract of bailment or the engagement of a carrier by a principal contractor under a contract of carriage;
“industrial action” has the same meaning as in the definition of that term in section 4 (l), except that a reference in that definition:

(a)	to an agreement is to be read as a reference to a registered agreement; and
(b)	to employment is to be read as a reference to engagement; and
(c)	to an employer is to be read as a reference to a bailor of public ,vehicles or principal contractor; and
(d)	to employees is to be read as a reference to bailees of public vehicles or carriers.

No preference for association members in registered
agreements or contract determinations
674B. (1) A registered agreement or contract determination
cannot confer a right of preference of engagement in favour
of a member of an association of contract drivers or contract
carriers over a person who is not a member of such an
association.

(2) This section applies to registered agreements or contract determinations whether made before or after the commencement of this section and so applies despite any provision made before the commencement of this section in a registered agreement or contract determination.

Industrial Relations (Public Vehicles and Carriers) Amendment Act 1993 No. 82

SCHEDULE 1-AMENDMENTS-continued

(3) Nothing in this section limits or in any way affects any law relating to preference of engagement to persons who have served as members of the Naval, Military or Air Forces of the Commonwealth.

Victimisation: offence

674C. (1) A bailor of public vehicles, a principal contractor or an association must not victimise a person because:

the person does not belong to an association of contract
drivers or contract carriers; or
the person has refused to engage in industrial action; or
the person is a member of an association of contract
drivers or contract carriers or is an officer or delegate
of an association of contract drivers or contract carriers
or is otherwise an elected representative of bailees of
public vehicles or carriers; or
the person is a member of a Contract Regulation
Committee; or
the person claims the benefit of a registered agreement
or contract determination to which the person is
entitled; or
the person has informed any person that a breach or a
suspected breach of a registered agreement or contract
determination has been committed by the bailor or
principal contractor; or
the person has appeared as a witness, or has given

evidence, in any matter in which the Commission has

jurisdiction to make a contract determination under	Part 4 or in any industrial matter; or
the person has engaged in, or contemplates engaging in, any public or political activity (not being an activity that interferes with the performance by the person of the contract of bailment or carriage to which the person is a party); or
the person has engaged in, or contemplates engaging in, the performance of duties as a member of an association of contract drivers or contract carriers in

Industrial Relations (Public Vehicles and Carriers) Amendment Act 1993 No. 82

SCHEDULE 1-AMENDMENTS-continued

respect of a matter affecting the industry in which the person is engaged or in other duties as a member of a Contract Regulation Committee (not being duties that interfere with the performance by the person of the contract of bailment or carriage to which the person is a party).

Maximum penalty: 100 penalty units.

(2) A bailor of public vehicles or principal contractor

victimises a person if the bailor or principal contractor:

terminates or threatens to terminate the engagement of
the person by the bailor or principal contractor; or
alters or threatens to alter the circumstances of the
person’s engagement by the bailor or principal
contractor to the person’s prejudice; or
otherwise injures or threatens to injure the person in
his or her engagement by the bailor or principal
contractor; or
refuses to engage the person.
An association victimises a person if the association:
advises, encourages or incites a bailor of public
vehicles or principal contractor to victimise the person;
or
takes, or threatens to take, industrial action or any
other action against a bailor of public vehicles or
principal contractor with the intent to coerce the bailor

or principal contractor to victimise the person; or

takes, or threatens to take, action having the effect,

directly or indirectly, of injuring the person in his or

her engagement.
For the purposes of this section, anything done:
by the committee of management of an association; or
by an officer, employee or agent of an association
acting in that capacity; or
by a member or a group of members of an association
acting under the rules of the association; or

Industrial Relations (Public Vehicles and Carriers) Amendment Act 1993 No. 82

SCHEDULE 1-AMENDMENTS-continued

(d) by a member of an association, who performs the function of dealing with a bailor of public vehicles or principal contractor on behalf of the member and other members of the association of contract drivers or contract carriers, acting in that capacity,

is taken to have been done by the association concerned.
(5) In any proceedings for an offence under this section or
for an order under section 674D in which. it is necessary to
prove that this section has been contravened, the defendant
has the onus of proving that the defendant was not motivated
by the reason alleged if all matters necessary to prove the

contravention alleged (other than the reason for the

defendant’s action) are proved.

(6) Proceedings for an offence under this section must be

taken before the Industrial Court and may be taken only:

(a)	if the person alleged to have been victimised is a bailee of a public vehicle-by the secretary of any association of contract drivers; or
(b)	if the person alleged to have been victimised is a carrier-by the secretary of any association of contract carriers; or
(c)	if the person is alleged to have been victimised because the person was an elected representative of bailees of public vehicles or carriers-by the elected representative,

or, in any case, by a person authorised by the Minister.

(7) If the Industrial Court convicts a person of an offence under this section, the Industrial Court may also make any order that it could have made if the person who was victimised had applied for an order under section 674D.

Victimisation: damages and other remedies

674D. (1) For the purposes of this section, a person is victimised if the person is the subject of a contravention of section 674C by a bailor of public vehicles, principal contractor or association, whether or not proceedings have been brought for an offence under that section in respect of the contravention.

Industrial Relations (Public Vehicles and Carriers) Amendment Act 1993 No. 82

SCHEDULE 1-AMENDMENTS-continued

(2) A person who alleges that he or she has been victimised may apply to the Industrial Court for an order under this section.

(3) If the Industrial Court decides, on the balance of probabilities, that a person who makes such an application has been victimised, the Industrial Court may make an order in terms of such one or more of the following as the Industrial Court considers appropriate with respect to the kind of victimisation concerned:

(a)	declaring void, in whole or in part, a contract of bailment or carriage;
(b)	varying, in whole or in part, any provision of a contract of bailment or carriage;
(c)	directing the bailor or principal contractor concerned not to alter the circumstances of the person’s engagement or to otherwise injure the person in his or her engagement or to cease making such threats, or both;
(d)	directing payment to the person, within a specified time, by the bailor, principal contractor or association concerned, of an amount that does not exceed the amount that the person would otherwise have received under the contract of bailment or carriage;
(e)	directing payment to the person, within a specified time, by the bailor, principal contractor or association concerned, of other damages in such sum as appears to the Industrial Court to be appropriate to compensate the person for other loss suffered by the person.

(4) In any proceedings under this section, the Industrial Court may make such order for the payment of costs as appears to it to be just and may assess the amount of the costs.

Part not to apply to conduct occurring before its commencement

674E. This Part (except section 674B) does not apply to
conduct that occurred before the commencement of this Part.

Industrial Relations (Public Vehicles and Carriers) Amendment Act 1993 No. 82

SCHEDULE 1-AMENDMENTS-continued

(4) Section 700 (Evasion of Chapter):

From section 700 ( l ) , omit “motor lorry”, insert instead

“motor vehicle”.

[Minister’s second reading speech made in-

Legislative Assembly on 27 October 1993
Legislative Council on IO November 1993]