Owner Drivers and Forestry Contractors Amendment Regulations 2021 (Vic)
Owner Drivers and Forestry Contractors Amendment Regulations 2021
S.R. No. 4/2021
TABLE OF PROVISIONS
Regulation Page
1Objective
2Authorising provisions
3Commencement
4Principal Regulations
5Regulation 1 substituted
6New regulation 8 inserted
7References to the Small Business Commissioner
8Interpretation
9Best practice in negotiations
10Disclosure of information
11Dispute resolution
12New vehicles or motorised equipment
13Payment of invoices
14Record keeping requirements
15New Schedule 2 inserted
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Endnotes
STATUTORY RULES 2021
S.R. No. 4/2021
Owner Drivers and Forestry Contractors Act 2005
Owner Drivers and Forestry Contractors Amendment Regulations 2021
The Governor in Council, on the recommendation of the Minister, makes the following Regulations:
Dated: 2 February 2021
Responsible Minister:
TIM PALLAS
Minister for Industrial RelationsCLAIRE CHISHOLM
Clerk of the Executive Council
1Objective
The objective of these Regulations is to amend the Owner Drivers and Forestry Contractors Regulations 2017 to—
(a)clarify the dispute resolution process for contractual disputes under the code of practice; and
(b)prescribe infringement offences under the Act and penalties for those offences; and
(c)make other amendments following the enactment of the Owner Drivers and Forestry Contractors Amendment Act 2019; and
(d)make other minor and technical amendments.
2Authorising provisions
These Regulations are made under sections 27 and 66 of the Owner Drivers and Forestry Contractors Act 2005.
3Commencement
These Regulations come into operation on 1 March 2021.
4Principal Regulations
In these Regulations, the Owner Drivers and Forestry Contractors Regulations 2017[1] are called the Principal Regulations.
5Regulation 1 substituted
For regulation 1 of the Principal Regulations substitute—
"1 Objectives
The objectives of these Regulations are—
(a)to prescribe persons of a specified class not to be contractors for the purposes of the OwnerDrivers and Forestry Contractors Act 2005 and these Regulations; and
(b)to prescribe a code of practice in relation to the engagement of contractors who are owner drivers or forestry contractors; and
(c)to prescribe infringement offences under the Act and penalties for those offences; and
(d)to prescribe other matters authorised under the Owner Drivers and Forestry Contractors Act 2005.".
6New regulation 8 inserted
After regulation 7 of the Principal Regulations insert—
"8 Infringement offences and infringement penalties
(1)For the purposes of section 60N(1) of the Act, an offence specified in Column 2 of Schedule 2 is prescribed as an infringement offence.
(2)For the purposes of section 60N(3) of the Act, the prescribed infringement penalty for an infringement offence is the penalty set out in the corresponding entry in Column 3 of Schedule 2 in respect of that infringement offence.".
7References to the Small Business Commissioner
In Schedule 1 to the Principal Regulations—
(a)in examples 4.1, 4.2, 4.3 and 4.4, for "Commissioner" substitute "Commission";
(b)in example 6, for "Commissioner" substitute "Commission";
(c)in examples 7.1 and 7.2, for "Commissioner" substitute "Commission";
(d)in clause 8(1), for "Commissioner" substitute "Commission";
(e)in examples 9.1 and 9.2, for "Commissioner" substitute "Commission";
(f)in examples 12.1 and 12.3, for "Commissioner" substitute "Commission";
(g)in example 15, for "Commissioner" substitute "Commission";
(h)in example 17, for "Commissioner" substitute "Commission";
(i)in example 4.6, for "Commissioner" substitute "Commission".
8Interpretation
In the note at the foot of clause 2(2) of Schedule 1 to the Principal Regulations, for "contractor to businesses" substitute "contractor, in relation to owner drivers carrying on a business of transporting goods other than forest products, to contractors".
9Best practice in negotiations
(1)In clause 5(c) of Schedule 1 to the Principal Regulations, for "those agents." substitute "those agents; and".
(2)After clause 5(c) of Schedule 1 to the Principal Regulations insert—
"(d)do not prevent contractors who were not represented by a negotiating agent from being offered a contract on the same terms and conditions negotiated by the negotiating agent.".
(3)At the foot of clause 5 of Schedule 1 to the Principal Regulations insert—
"Example 5
A large construction project involving significant excavation is proposed. This will require Mohammed, the hirer, to engage a number of owner operated trucks. Sarah, who has many years' experience in the procurement of trucks for infrastructure projects, has established a business negotiating agreements between owner operators of trucks and those that engage them.
Paul, Marcelle, Sharon and Cathryn are owner drivers who are keen to be engaged on the project and they engage Sarah as their negotiating agent under the Act.
Sarah successfully negotiates terms that suit Mohammed and the owner drivers. All parties are extremely happy.
Word soon spreads about the agreement amongst other owner drivers looking to obtain work on the same construction project. They wish to be engaged on the same terms and conditions. Mohammed also wishes to use the terms and conditions of the agreement that was negotiated with Paul, Marcelle, Sharon and Cathryn.
The Act makes it clear that the terms and conditions negotiated by a negotiating agent under the Act may be offered to owner drivers who did not appoint the negotiating agent.".
10Disclosure of information
In example 7.1 at the foot of clause 7 of Schedule 1 to the Principal Regulations, for "more than 30 days work." substitute "more than 20 days' work.".
11Dispute resolution
(1)In clause 8(2) of Schedule 1 to the Principal Regulations, after "themselves" insert "informally".
(2)After clause 8(2) of Schedule 1 to the Principal Regulations insert—
"Mandatory Requirement
A party to a dispute must not insist that the other party exhaust any process agreed between the parties for the resolution of disputes before referring the dispute to the Small Business Commission.".
(3)For clause 8(2)(h) of Schedule 1 to the Principal Regulations substitute—
"(h)attempt to use any process agreed between the parties for the resolution of disputes.".
12New vehicles or motorised equipment
After clause 10(4) of Schedule 1 to the Principal Regulations insert—
"Best Practice
Prior to entering into negotiations to vary an existing contract, the hirer should provide the contractor with a copy of the applicable rates and costs schedule.".
13Payment of invoices
(1)In clause 14 of Schedule 1 to the Principal Regulations, after "cash-flow to operate their business." insert—
"Under section 24A of the Act, hirers must pay contractors within 30 days after receiving an invoice, unless there is a dispute over the amount payable or a different payment period has been agreed that is not unfair to one of the parties.".
(2)In clause 14 of Schedule 1 to the Principal Regulations, under the heading "Guidance", omit all words and expressions beginning "In the absence of" and ending "section 44(1)(g) of the Act." and substitute—
"Unless a hirer and contractor agree to a different payment period that is not unfair to one of the parties, a contract term that allows the hirer to pay the contractor more than 30 days after receiving an invoice is likely to constitute an unjust term for the purposes of section 44(1)(g) of the Act.".
(3)For example 14 at the foot of clause 14 of Schedule 1 to the Principal Regulations substitute—
"Example 14
Bob works as a long-distance driver. Section 24A of the Act requires the hirer to pay him within 30 days, unless a different payment period has been agreed that is not unfair or there is a dispute over the amount payable. Bob's contract is silent on when he should be paid, but his hirer regularly pays Bob after 90 days, and sometimes even later than that. Bob complained but the hirer told him "you'll get paid if and when we get paid". In these circumstances, payment more than 30 days after receipt of an invoice is likely to breach section 24A of the Act. Furthermore, this is likely to constitute unconscionable conduct within the meaning of section 31 of the Act.".
14Record keeping requirements
After Part 5 of Schedule 1 to the Principal Regulations insert—
"Part 6—Record keeping requirements
28Record keeping requirements
Part 7A of the Act provides for the appointment of authorised officers. Authorised officers have certain powers under the Act, including the power to enter premises with the consent of the occupier and to require information or documents.
It is an offence under the Act to fail to comply with a notice or requirement to produce documents or give information, without reasonable excuse. It is also an offence to knowingly produce false or misleading documents without indicating the respect in which they are false or misleading.
The keeping of records in accordance with this Part will help demonstrate compliance with the Act if there is an allegation of non-compliance.
Mandatory Requirements
(1)A hirer is required to keep the following records in relation to each engagement of a contractor and, subject to section 60I of the Act, to provide them to an authorised officer if requested—
(a)copies of any regulated contracts;
(b)the name and contact details of the contractor;
(c)the date on which the contractor was engaged by the hirer;
(d)if the hirer undertook a tender process for the purpose of engaging a contractor, the date on which the tender was lodged and the date the hirer accepted the tender from the contractor;
(e)the period of the engagement of the contractor;
(f)if the hirer gave an information booklet or the applicable rates and costs schedule to the contractor, the date or dates on which they were given and any records of them being given;
(g)if an information booklet or the applicable rates and costs schedule was given by hand, a signed acknowledgement of receipt by the contractor;
(h)if the hirer terminated the engagement of the contractor, the date on which the hirer terminated the engagement;
(i)if the hirer provided payment in lieu of notice to the contractor, the date it was provided to the contractor and the amount paid.
(2)A freight broker is required to keep the following records in relation to each engagement of a contractor by a hirer that the freight broker procured or arranged and, subject to section 60I of the Act, to provide the records to an authorised officer if requested—
(a)the name and contact details of the contractor;
(b)the date on which the contractor was engaged;
(c)the period of the engagement of the contractor;
(d)if the freight broker gave an information booklet or the applicable rates and costs schedule to the contractor, the date or dates on which they were given and any records of them being given;
(e)if the freight broker gave an information booklet or the applicable rates and costs schedule by hand, a signed acknowledgement of receipt by the contractor.".
15New Schedule 2 inserted
After Schedule 1 to the Principal Regulations insert—
"Schedule 2—Infringement offences and infringement penalties
Regulation 8
| Column 1 Item | Column 2 Infringement offence | Column 3 Infringement penalty |
| 1 | An offence against section 10(1) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 2 | An offence against section 10(2) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 3 | An offence against section 11A(1) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 4 | An offence against section 11A(2) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 5 | An offence against section 12(2) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 6 | An offence against section 16(1) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 7 | An offence against section 16(2) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 8 | An offence against section 16A(1) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 9 | An offence against section 16A(2) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 10 | An offence against section 17(2) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 11 | An offence against section 20(2) of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
| 12 | An offence against section 22A of the Act | 5 penalty units in the case of a body corporate 1 penalty unit in any other case |
".
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Endnotes
[1] Reg. 3: S.R. No. 101/2017.
——
Penalty Units
These Regulations provide for penalties by reference to penalty units within the meaning of section 110 of the Sentencing Act 1991. The amount of the penalty is to be calculated, in accordance with section 7 of the Monetary Units Act 2004, by multiplying the number of penalty units applicable by the value of a penalty unit.
The value of a penalty unit for the financial year commencing 1 July 2020 is $165.22.
The amount of the calculated penalty may be rounded to the nearest dollar.
The value of a penalty unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a penalty unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year.
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