Owner Drivers and Forestry Contractors Amendment Act 2019 (Vic)
Owner Drivers and Forestry Contractors Amendment Act 2019
No. 33 of 2019
table of provisions
Section Page
1Purpose
2Commencement
3Principal Act
4Purpose of Principal Act
5Definitions
6Information booklet
7Information booklet not required for short term engagements
8New section 11A inserted
9Information booklet to be given to tenderers
10Contents and availability of information booklet
11Publication of schedules
12Provision of applicable schedule to contractor before engagement
13New section 16A inserted
14Provision of applicable schedule to tenderers
15Provision of revised schedule to contractor during engagement
16Requirements for regulated contracts
17New section 22A inserted
18New section 24A inserted
19Negotiating agents for contractors
20New Division 6 inserted in Part 2
21What alternative dispute resolution includes
22Referral of disputes for alternative dispute resolution
23Functions of the Small Business Commission under this Act
24Establishment and functions of Transport Industry Council
25Membership of Transport Industry Council
26Establishment and functions of Forestry Industry Council
27Membership of Forestry Industry Council
28New Part 7A inserted
29Consequential repeal of sections 62 and 63
30Repeal of this Act
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Endnotes
1 General information
Owner Drivers and Forestry Contractors Amendment Act 2019
No. 33 of 2019
[Assented to 17 September 2019]
The Parliament of Victoria enacts:
1Purpose
The purpose of this Act is to make miscellaneous amendments to the Owner Drivers and Forestry Contractors Act 2005.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 May 2020, it comes into operation on that day.
3Principal Act
In this Act, the Owner Drivers and Forestry Contractors Act 2005 is called the Principal Act.
4Purpose of Principal Act
(1)In section 1 of the Principal Act, for "The purpose" substitute "The main
purpose".
(2)At the end of section 1 of the Principal Act insert—
"(2)A further purpose of this Act is to promote—
(a)best practice in the transport industry and forestry industry in relation to the engagement of owner drivers and forestry contractors; and
(b)education and training for owner drivers and forestry contractors.".
5Definitions
(1)Insert the following definitions in section 3 of the Principal Act—
"authorised officer means a person appointed under section 60A;
Secretary means Secretary to the Department of Premier and Cabinet;".
(2)Insert the following definitions in section 3 of the Principal Act—
"applicable rates and costs schedule in relation to a contractor, means the most recently published rates and costs schedule applicable to the contractor and the relevant class of vehicle or motorised equipment;
excavation work means work that involves the removal of soil or rock from a site to form an open face, hole or cavity;
tip truck driver means a contractor who drives a tip truck in connection with excavation work in the building and construction industry;".
(3)In section 3 of the Principal Act—
(a)the definition of freight broker is repealed;
(b)insert the following definition—
"freight broker means a broker or agent in the business of procuring or arranging the engagement of contractors by hirers, including a person who provides an online platform that facilitates the engagement of contractors by hirers;".
6Information booklet
(1)At the foot of section 10(1) and (2) of the Principal Act insert—
"Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.".
(2)After section 10(2) of the Principal Act insert—
"(3)This section does not apply in relation to the engagement of a tip truck driver.".
(3)For the note at the foot of section 10 of the Principal Act substitute—
"Notes
1 See section 26A for the manner of giving an information booklet to a contractor.
2 Section 60P applies to an offence against
subsection (1) or (2).
3 A failure to comply with this section may also result in the Tribunal making an order under
section 45 regarding payment to the contractor.".
7Information booklet not required for short term engagements
(1)In section 11(3) of the Principal Act, after "subsection (2)" insert ", unless the information booklet is revised".
(2)After section 11(3) of the Principal Act insert—
"(4)This section does not apply in relation to the engagement of a tip truck driver.".
8New section 11A inserted
After section 11 of the Principal Act insert—
"11A Information booklet for tip truck drivers
(1)A hirer who intends to engage a tip truck driver (otherwise than through a freight broker) must give the tip truck driver an information booklet that complies with section 13(1) at least 3 business days before the hirer engages the tip truck driver.
Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.
(2)A freight broker who procures or arranges the engagement of a tip truck driver by a hirer must give the tip truck driver an information booklet that complies with section 13(1) at least 3 business days before the tip truck driver is engaged.
Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.
(3)An information booklet is not required to be given more than once under subsection (1) or (2) unless the information booklet has been revised after it was last given to the tip truck driver.
Notes
1 See section 26A for the manner of giving an information booklet to a tip truck driver.
2 Section 60P applies to an offence against
subsection (1) or (2).
3 A failure to comply with this section may also result in the Tribunal making an order under section 45 regarding payment to the tip truck driver.".
9Information booklet to be given to tenderers
(1)At the foot of section 12(2) of the Principal Act insert—
"Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.".
(2)For the note at the foot of section 12 of the Principal Act substitute—
"Notes
1 See section 26A for the manner of giving an information booklet to a contractor.
2 Section 60P applies to an offence against subsection (2).
3 A failure to comply with this section may also result in the Tribunal making an order under section 45 regarding payment to the contractor.".
10Contents and availability of information booklet
In section 13(2) of the Principal Act omit "to the Department administered by the Minister".
11Publication of schedules
In section 15(2) of the Principal Act omit "to the Department administered by the Minister".
12Provision of applicable schedule to contractor before engagement
(1)In section 16(1) of the Principal Act, for "most recently published rates and costs schedule applicable to that contractor and the relevant class of vehicle or motorised equipment" substitute "applicable rates and costs schedule".
(2)At the foot of section 16(1) of the Principal Act insert—
"Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.".
(3)In section 16(2) of the Principal Act, for "most recently published rates and costs schedule applicable to the contractor and the relevant class of vehicle or motorised equipment" substitute "applicable rates and costs schedule".
(4)At the foot of section 16(2) of the Principal Act insert—
"Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.".
(5)For section 16(3) of the Principal Act substitute—
"(3)Subsection (1) or (2) does not apply—
(a)to the second or subsequent engagement of a contractor by the same hirer or through the same freight broker if the interval between engagements does not exceed 12 months; or
(b)if the contractor is engaged for a period of less than 30 days.".
(6)After section 16(4) of the Principal Act insert—
"(5)This section does not apply in relation to the engagement of a tip truck driver.".
(7)For the note at the foot of section 16 of the Principal Act substitute—
"Notes
1 See section 26A for the manner of giving a rates and costs schedule to a contractor.
2 Section 60P applies to an offence against subsection (1) or (2).
3 A failure to comply with this section may also result in the Tribunal making an order under section 45 regarding payment to the contractor.".
13New section 16A inserted
After section 16 of the Principal Act insert—
"16A Provision of applicable schedule to tip truck driver
(1)A hirer who engages or intends to engage a tip truck driver (other than through a freight broker) must give the tip truck driver a copy of the applicable rates and costs schedule at least 3 business days before the tip truck driver is engaged.
Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.
(2)A freight broker who procures or arranges the engagement of a tip truck driver by a hirer must give the tip truck driver a copy of the applicable rates and costs schedule at least 3 business days before the tip truck driver is engaged.
Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.
(3)Subsection (1) or (2) does not apply to the second or subsequent engagement of a tip truck driver by the same hirer or through the same freight broker if the interval between engagements does not exceed 12 months.
Notes
1 See section 26A for the manner of giving a rates and costs schedule to a tip truck driver.
2 Section 60P applies to an offence against subsection (1) or (2).
3 A failure to comply with this section may also result in the Tribunal making an order under section 45 regarding payment to the tip truck driver.".
14Provision of applicable schedule to tenderers
(1)At the foot of section 17(2) of the Principal Act insert—
"Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.".
(2)For the note at the foot of section 17 of the Principal Act substitute—
"Notes
1 See section 26A for the manner of giving a rates and costs schedule to a contractor.
2 Section 60P applies to an offence against subsection (2).
3 A failure to comply with this section may also result in the Tribunal making an order under section 45 regarding payment to the contractor.".
15Provision of revised schedule to contractor during engagement
(1)For section 18(5) of the Principal Act substitute—
"(5)Subsections (3) and (4) do not apply in relation to a tip truck driver.".
(2)For the note at the foot of section 18 of the Principal Act substitute—
"Notes
1 See section 26A for the manner of giving a rates and costs schedule to a contractor.
2 A failure to comply with this section may result in the Tribunal making an order under section 45 regarding payment to the contractor.".
16Requirements for regulated contracts
At the end of section 20 of the Principal Act insert—
"(2)A hirer must not enter into a regulated contract that does not comply with subsection (1).
Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.
Note
Section 60P applies to an offence against this subsection.".
17New section 22A inserted
After section 22 of the Principal Act insert—
"22A Offence not to give minimum period of notice or payment in lieu
A hirer must not terminate the engagement of a contractor without giving the contractor the minimum period of notice of termination required by section 21 or paying the contractor in lieu of notice under section 22.
Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.
Note
Section 60P applies to an offence against this section.".
18New section 24A inserted
After section 24 of the Principal Act insert—
"24A Payment of invoices
(1)Subject to subsection (2), a hirer must pay an amount payable to a contractor under a regulated contract within 30 days after receipt of an invoice from the contractor in relation to the amount.
(2)Subsection (1) does not apply if—
(a)there is a dispute over the amount payable; or
(b)the hirer and the contractor agree to a different period for payment and that period is not unfair to one of the parties.".
19Negotiating agents for contractors
After section 25(5) of the Principal Act insert—
"(6)To avoid doubt, a contractor may be offered a regulated contract on terms and conditions negotiated under this section whether or not the contractor appointed, or was a member of the group that appointed, the negotiating agent who negotiated those terms and conditions.".
20New Division 6 inserted in Part 2
After Division 5 of Part 2 of the Principal Act insert—
"Division 6—General
26AManner of giving information
(1)If a hirer or freight broker is required under this Part to give an information booklet or rates and costs schedule to a contractor, the hirer or freight broker may do so by sending the contractor a link to an Internet site on which the information booklet or rates and costs schedule is available.
(2)Subsection (1) does not limit the manner in which a hirer or freight broker may give an information booklet or rates and costs schedule to a contractor under this Part.
Example
The hirer or freight broker might give the contractor an information booklet or rates and costs schedule in person or by mail, or by electronic communication under the Electronic Transactions (Victoria) Act 2000.".
21What alternative dispute resolution includes
(1)In section 34(2) of the Principal Act—
(a)in paragraph (a), after "mediation" insert "and arbitration";
(b)for paragraph (b) substitute—
"(b)a reference to a person conducting alternative dispute resolution includes a reference to—
(i)a mediator conducting mediation; and
(ii)an arbitrator conducting arbitration.".
(2)After section 34(2) of the Principal Act insert—
"(3)The Commercial Arbitration Act 2011 does not apply to an arbitration conducted under this Division.".
22Referral of disputes for alternative dispute resolution
(1)After section 35(3)(a) of the Principal Act insert—
"(ab)arbitration by an arbitrator; or".
(2)After section 35(3) of the Principal Act insert—
"(4)If the parties to alternative dispute resolution agree, the Commission may arrange for the dispute to be the subject of a different form of alternative dispute resolution.
Example
The parties to a dispute that is the subject of mediation may agree to the dispute being arbitrated, in which case the Commission may make the necessary arrangements accordingly.".
23Functions of the Small Business Commission under this Act
In section 54 of the Principal Act—
(a)in subsection (1)(a), for "or by" substitute "arbitration or";
(b)in subsection (2), after "mediation" insert ", arbitration";
(c)in subsection (3), for "or other" substitute ", an arbitration or another".
24Establishment and functions of Transport Industry Council
In section 55(3) of the Principal Act—
(a)in paragraph (d)(ii), for "other." substitute "other;";
(b)after paragraph (d) insert—
"(e)to advise and make recommendations to the Minister on promoting—
(i)best practice in the transport industry in relation to the engagement of owner drivers;
and
(ii)education and training for owner drivers.".
25Membership of Transport Industry Council
In section 56(1)(c)(i) of the Principal Act omit "Employers'".
26Establishment and functions of Forestry Industry Council
In section 58(3) of the Principal Act—
(a)in paragraph (d)(ii), for "other." substitute "other;";
(b)after paragraph (d) insert—
"(e)to advise and make recommendations to the Minister on promoting—
(i)best practice in the forestry industry in relation to the engagement of forestry contractors; and
(ii)education and training for forestry contractors.".
27Membership of Forestry Industry Council
In section 59(1)(b) of the Principal Act omit "to the Department of Economic Development, Jobs, Transport and Resources".
28New Part 7A inserted
After Part 7 of the Principal Act insert—
"Part 7A—Compliance and enforcement
Division 1—Authorised officers
60AAppointment of authorised officers
The Secretary may, by instrument, appoint a person employed under Part 3 of the Public Administration Act 2004 to be an authorised officer for the purposes of this Act.
60BIdentity cards
(1)The Secretary must issue an identity card to each authorised officer containing a photograph of the authorised officer and the authorised officer's signature.
(2)An authorised officer must produce their identity card for inspection—
(a)before exercising a power under this Part, other than a power exercised by way of post, e-mail or other electronic communication; and
(b)at any time during the exercise of a power under this Part, if asked to do
so.
Penalty:10 penalty units.
(3)If a person to whom an identity card has been issued ceases to be an authorised officer, the person must return the identity card to the Secretary within 14 days of ceasing to be an authorised officer unless the person unintentionally lost or destroyed the identity card or the identity card was destroyed by another person.
Penalty:10 penalty units.
60CAuthorised officers subject to Secretary's directions
(1)An authorised officer is subject to the Secretary's directions in the performance of the authorised officer's functions or exercise of the authorised officer's powers under this Act or the regulations.
(2)A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.
Division 2—Powers of authorised officers
60DWhen may powers be exercised?
An authorised officer may exercise powers under this Part only to the extent that it is reasonably necessary to do so for the purpose of—
(a)providing information to contractors and hirers about the operation of this Act and the regulations; or
(b)monitoring compliance with this Act or the regulations; or
(c)investigating possible contraventions of this Act or the regulations; or
(d)performing any other function or exercising any other power of the authorised officer under this Act or the regulations.
60EPower to require information or documents
(1)For a purpose referred to in section 60D, an authorised officer may by written notice require a person, within a reasonable period specified in the notice—
(a)to give the authorised officer any information that the authorised officer requires; or
(b)to produce to the authorised officer a document in the custody or control of the person.
(2)A notice under subsection (1) must—
(a)warn the person that a refusal or failure to comply with the notice, without reasonable excuse, is an offence; and
(b)if directed to a natural person, inform the person that the person may refuse or fail to produce documents or give information if producing the document or giving the information would tend to incriminate the person.
(3)An authorised officer may inspect, and make copies of or take extracts from, a document produced to the authorised officer under subsection (1).
60FEntry and inspection of premises
(1)For a purpose referred to in section 60D, an authorised officer may—
(a)enter premises with the consent of the occupier of the premises; and
(b)inspect anything on the premises; and
(c)interview any person on the premises; and
(d)require a person on the premises who has the custody of, or access to, a document to produce the document to the authorised officer within a reasonable period specified by the officer; and
(e)inspect, and make copies of or take extracts from, a document produced to the authorised officer.
(2)An authorised officer must not enter premises under this section unless, before the occupier consents to that entry, the authorised officer—
(a)has produced the authorised officer's identity card for inspection; and
(b)has informed the occupier of the purpose of the entry and that the occupier may refuse to give consent to the entry.
(3)If an occupier consents to an entry, the authorised officer who requested consent must, before entering the premises, ask the occupier to sign an acknowledgement stating that the authorised officer has complied with the requirements of subsection (2).
(4)An occupier who signs an acknowledgement under subsection (3) must be given a copy of the signed acknowledgement before the authorised officer leaves the premises.
(5)An authorised officer who enters premises under this section must not remain on the premises any longer than is reasonably necessary to perform functions or exercise powers under this Part.
60GRetention of documents
(1)An authorised officer may retain a document produced to the authorised officer for the period necessary for the purpose of performing functions or exercising powers under this Part.
(2)During the period that the authorised officer retains a document, the authorised officer must permit the person otherwise entitled to its possession to inspect it and make copies of or take extracts from it.
Division 3—Offences and enforcement
60HFailing to produce documents or giving false or misleading documents
(1)A person must not, without reasonable excuse, fail to comply with—
(a)a notice to produce documents or give information under section 60E; or
(b)a requirement to produce documents under section 60F(1)(d).
Penalty:100 penalty units in the case of a body corporate;
60 penalty units in any other case.
Note
Section 60P applies to an offence against this subsection.
(2)A person must not produce a document to an authorised officer under section 60E or 60F(1)(d) that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing the correct information.
Penalty:100 penalty units in the case of a body corporate;
60 penalty units in any other case.
Note
Section 60P applies to an offence against this subsection.
60IProtection against self-incrimination
It is a reasonable excuse for a natural person to refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under this Act, if the giving of the information, production of the document or doing of the thing would tend to incriminate the person.
60JConfidentiality
(1)An authorised officer must not give to any other person any information acquired by the authorised officer in performing a function or exercising a power under this Part.
Penalty:60 penalty units.
(2)Subsection (1) does not apply to the giving of information—
(a)to the extent necessary for the authorised officer to perform functions or exercise powers under this Part; or
(b)to a court or the Tribunal in the course of legal proceedings; or
(c)under an order of a court or the Tribunal; or
(d)to the extent reasonably required to enable the investigation or enforcement of a law of Victoria or of any other State, a Territory or the Commonwealth; or
(e)with the written consent of the person to whom the information relates.
60KWho can prosecute under this Act?
(1)A prosecution for an offence against this Act may only be brought by—
(a)the Secretary; or
(b)a person employed under Part 3 of the Public Administration Act 2004 who is authorised by the Secretary to bring a prosecution.
(2)An authorisation under subsection (1)(b)—
(a)must be in writing; and
(b)may be given generally, or only in relation to a particular case or cases, or a particular class of case or cases; and
(c)may be revoked by the Secretary at any time by written notice.
(3)The revocation of an authorisation does not affect a proceeding commenced by a person before that person's authorisation was revoked unless the notice of revocation states otherwise.
(4)In a prosecution for an offence under this Act, the court must presume, in the absence of evidence to the contrary, that the prosecutor is authorised to bring the prosecution.
(5)A prosecution may only be conducted by—
(a)the Secretary; or
(b)the person authorised under subsection (1)(b) to bring the prosecution; or
(c)an Australian lawyer briefed by the Secretary or the person authorised to bring the prosecution.
60LJudicial notice of signatures
All courts must take judicial notice of—
(a)the signature of a person who is, or was at the time the signature purports to have been made, the Secretary or a person referred to in section 60K(1)(b); and
(b)the fact that a person referred to in paragraph (a) held the position the person purported to hold at the time the signature purports to have been made.
60MProceedings for offences may be brought in Industrial Division of the Magistrates' Court
If a person is charged with an offence against this Act, the charge may be heard, and all penalties recovered, before the Industrial Division of the Magistrates' Court.
60NInfringements
(1)An authorised officer may serve an infringement notice on a person in respect of a prescribed offence if the authorised officer has reason to believe that the person committed the offence.
(2)An offence prescribed under subsection (1) is an infringement offence within the meaning of the Fines Reform Act 2014.
(3)The infringement penalty for an offence referred to in subsection (1) is the prescribed penalty for the offence.
60OImputing conduct to bodies corporate
(1)For the purposes of this Act, any conduct engaged in or on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of employment or apparent authority of the employee, agent or officer, is taken to be conduct also engaged in by the body corporate.
(2)If, in any proceedings under this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show—
(a)that the conduct was engaged in by an officer or employee of the body corporate within the scope of the officer's or employee's actual or apparent authority and the officer or employee had that state of mind; or
(b)that the conduct was engaged in by an agent of the body corporate and—
(i)the agent acted at the specific direction or with the specific consent or agreement of the body corporate; or
(ii)the agent had that state of mind; or
(iii)the body corporate was aware of the agent's state of mind when the conduct was engaged in.
(3)A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.
(4)In this section, officer has the same meaning given by section 9 of the Corporations Act.
60PCriminal liability of officers of bodies corporate—accessorial liability
(1)If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—
(a)authorised or permitted the commission of the offence by the body corporate; or
(b)was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.
(2)For the purposes of subsection (1), the following provisions are specified—
(a)section 10(1);
(b)section 10(2);
(c)section 11A(1);
(d)section 11A(2);
(e)section 12(2);
(f)section 16(1);
(g)section 16(2);
(h)section 16A(1);
(i)section 16A(2);
(j)section 17(2);
(k)section 20(2);
(l)section 22A;
(m)section 60H(1);
(n)section 60H(2).
(3)Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.
(4)An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.
(5)In this section—
body corporate has the same meaning as corporation has in section 57A of the Corporations Act;
officer, in relation to a body corporate, means—
(a)a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or
(b)a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.
(6)This section does not affect the operation of Subdivision (1) of Division 1 of Part II of the Crimes Act 1958.
60QImputing conduct to partners
(1)Subject to subsection (2), if a partnership, or any partner on behalf of a partnership, engages in any conduct, that conduct is, for the purposes of this Act, taken to have been engaged in by each partner.
(2)If conduct referred to in subsection (1) constitutes an offence, subsection (1) applies to a partner only if the partner—
(a)authorised or permitted the conduct; or
(b)was knowingly concerned in any way (whether by act or omission) in the conduct.".
29Consequential repeal of sections 62 and 63
Sections 62 and 63 of the Principal Act are repealed.
30Repeal of this Act
This Act is repealed on 1 May 2021.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 1 May 2019
Legislative Council: 20 June 2019
The long title for the Bill for this Act was "A Bill for an Act to amend the Owner Drivers and Forestry Contractors Act 2005 and for other purposes."
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