Owner Drivers and Forestry Contractors Regulations 2017 (Victoria)

The Owner Drivers and Forestry Contractors Regulations 2017 (S.R. No. 101/2017), as amended to 1 March 2021, does four primary legal things.

First, it narrows who is a "contractor" for the purposes of the Owner Drivers and Forestry Contractors Act 2005 by prescribing classes of persons who are not contractors (regulation 6). Specifically, a natural person or a body corporate carrying on a goods-transport business (not forest products) using four or more vehicles supplied and operated by the business is prescribed not to be a contractor. The Regulations therefore operate as a definitional filter: businesses with four or more supplied vehicles fall outside the Act’s contractor protections; those with up to three vehicles remain within the statutory definition of contractor (see Sch. 1, note to cl. 2(2)).

Second, the Regulations prescribe a Code of Practice (Schedule 1) for engagements between hirers and owner drivers, haulage contractors and harvesting contractors (regulation 7). The Code contains both guidance and express "Mandatory Requirement" provisions. The Code is prescribed for the purposes of Part 3 of the Act (reg 7), and Schedule 1 sets out the objectives, interpretative notes, mandatory duties, guidance on unconscionable conduct, examples, and industry-specific provisions for forestry contractors (Parts 1-6 of Sch. 1). The Code also identifies which clauses are mandatory and therefore binding on persons to whom the Code applies (Sch. 1 Pt 1 cl. 3(2) note and multiple "Mandatory Requirement" headings in the Schedule).

Third, the Regulations implement a set of infringement offences and prescribed infringement penalties by identifying specific offences under the Act as infringement offences and fixing the penalty for each (regulation 8 and Schedule 2). Regulation 8 expressly prescribes particular Act offences in Column 2 of Schedule 2 as infringement offences for the purposes of s 60N(1) of the Act and fixes the infringement penalty in Column 3. Schedule 2 lists twelve items (for example, offences against s 10(1), s 11A(1), s 16(1), s 24(2), s 22A, etc.), and generally prescribes 5 penalty units for a body corporate and 1 penalty unit for any other person.

Version No. 002

Owner Drivers and Forestry Contractors Regulations 2017

S.R. No. 101/2017

Version incorporating amendments as at
1 March 2021

TABLE OF PROVISIONS

Regulation Page

1 Objectives 1

2 Authorising provisions 1

3 Commencement 1

4 Revocation 1

5 Definition 2

6 Persons of a specified class prescribed not to be contractors 2

7 Prescribed code of practice 2

8 Infringement offences and infringement penalties 2

Schedule 1—Code of practice for owner drivers and forestry contractors 3

Schedule 2—Infringement offences and infringement penalties 42

═════════════

Endnotes 44

1 General information 44

2 Table of Amendments 46

3 Amendments Not in Operation 47

4 Explanatory details 48

Version No. 002

Owner Drivers and Forestry Contractors Regulations 2017

S.R. No. 101/2017

Version incorporating amendments as at
1 March 2021

Reg. 1 substituted by S.R. No. 4/2021 reg. 5.

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 Owner Drivers 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

(d) to prescribe other matters authorised under the Owner Drivers and Forestry Contractors Act 2005.

2 Authorising provisions

These Regulations are made under sections 27 and 66 of the Owner Drivers and Forestry Contractors Act 2005.

3 Commencement

These Regulations come into operation on 21 October 2017.

4 Revocation

The Owner Drivers and Forestry Contractors Regulations 2006[1] are revoked.

5 Definition

In these Regulations—

the Act means the Owner Drivers and Forestry Contractors Act 2005.

6 Persons of a specified class prescribed not to be contractors

The following specified classes of person are prescribed not to be contractors—

(a) a natural person carrying on a business (whether solely, in partnership or otherwise) of transporting goods, other than forest products, in 4 or more vehicles supplied by the business and operated by the person (whether solely or with the use of additional or relief operators);

(b) a body corporate carrying on a business of transporting goods, other than forest products, in 4 or more vehicles supplied by the body corporate or an officer of the body corporate and operated by an officer of the body corporate (whether solely or with the use of additional or relief operators).

7 Prescribed code of practice

For the purposes of Part 3 of the Act, Schedule 1 is prescribed as the code of practice.

Reg. 8 inserted by S.R. No. 4/2021 reg. 6.

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.

Schedule 1—Code of practice for owner drivers and forestry contractors

Part 1—Introductory

1 Objectives

The objectives of this Code are—

(a) to provide for certain mandatory requirements concerning the engagement of contractors; and

(b) to provide guidance to hirers and contractors on—

(i) conduct which is likely or unlikely to be unconscionable conduct within the meaning of sections 31 and 32 of the Act, including by providing examples of conduct that in the absence of any special circumstances is likely to be, or not to be, unconscionable conduct within the relevant industry context; and

(ii) contract terms which are likely or unlikely to constitute unjust contract terms within the meaning of section 44(2) of the Act, including by providing examples of contract terms that in the absence of any special circumstances, are likely to be, or not to be, unjust contract terms within the relevant industry context; and

(c) to ensure a competitive and fair operating environment by promoting the following principles to guide business relations between hirers and contractors—

(i) parties to a contract should be able to operate their respective businesses without unfair business practices being used against them;

(ii) contractors are entitled to be paid the agreed rate for their services;

(iii) hirers are entitled to have work performed to a satisfactory standard;

(iv) parties to a contract should clearly communicate their expectations and requirements and any plans that may affect the other party's interests;

(v) hirers should offer and pay contractors remuneration that, considering the contract as a whole, the services to be performed and the general market for those services, enables the contractor to meet efficient operating expenses, receive a fair return for the contractor's own labour and a return on an investment.

2 Interpretation

(1) In this Code—

contract means a regulated contract within the meaning of section 3 of the Act;

the Act means the Owner Drivers and Forestry Contractors Act 2005.

(2) If the term contractor is used in this Code in a context that applies only to a natural person, the term refers—

(a) in the case of a contractor who is a natural person—to that person; and

(b) in the case of a contractor who is a partnership—to any of the partners; and

Note to Sch. 1 Pt 1 cl. 2(2) amended by S.R. No. 4/2021 reg. 8.

Note

All terms used in this Code have the same meaning as provided by the Act unless the context requires otherwise.

Contractor is defined in section 3 of the Act to mean an owner driver, a haulage contractor or a harvesting contractor.

See in particular the following definitions in the Act—the definition of hirer in section 3, the definition of owner driver in section 4, the definition of haulage contractor in section 5 and the definition of harvesting contractor in section 6.

The definition of contractor is affected by the Owner Drivers and Forestry Contractors Regulations 2017. Those Regulations limit the definition of contractor, in relation to owner drivers carrying on a business of transporting goods other than forest products, to contractors that supply up to a maximum of 3 vehicles.

3 Application

(1) This Code applies to hirers and owner drivers, harvesting contractors and haulage contractors.

(2) If a provision of this Code is preceded by the following heading—

Mandatory Requirement

the provision must be complied with by the person to which it applies.

Note

Section 30 of the Act provides that a person to whom a code of practice applies must comply with the code of practice to the extent that it imposes duties or obligations on the person or prohibits the person from engaging in certain conduct.

(3) Part 5 contains provisions which include examples that relate to forestry contractors. Examples set out in any Part of this Code may be used as guidance in respect of the Act for hirers and all kinds of contractors, be they owner drivers, harvesting contractors or haulage contractors.

Part 2—Conduct during negotiations

4 Unconscionable conduct during negotiations

This Code does not prevent hirers or contractors from acting vigorously in their own commercial interests. However, each party should deal with the other party or parties fairly and in good faith when negotiating a new contract or a variation to a contract.

Guidance

In the absence of any special circumstances, if a hirer or a contractor engages in the conduct described below, that conduct is likely to be unconscionable conduct within the meaning of sections 31 and 32 of the Act.

(1) A party, by themselves or through an agent—

(a) does not provide a reasonable opportunity to discuss an offer, or makes offers on a "take it or leave it" basis suggesting a party must accept an offer and refuses to consider any alternative offer; or

Note

A party may use a template contract in a manner that provides reasonable opportunity for discussion of the contract and consideration of alterations to it.

(b) does not genuinely consider offers made to them; or

(c) does not provide a reasonable opportunity for another party to properly examine and consider offers, or to obtain legal, financial or other advice, including in the party's preferred language; or

(d) disguises the terms of a contract using fine print, unnecessarily difficult language or deceptive
lay-out or headings; or

(e) summarises the meaning of a document to another party but omits to mention important terms
in a way that is misleading; or

(f) fails to correct another party's misunderstanding, where the hirer or contractor knew or reasonably ought to have known that the other party was under a serious misapprehension about the terms of the agreement or any other relevant matter.

(2) A party builds up reasonable commercial expectations in another party for the renewal of an agreement and then exploits those expectations to extract a harsh or one-sided deal from the other party.

(3) A party attempts to pressure another party into accepting an offer by acting in breach of contract, or otherwise acting unlawfully, or by threatening to do so.

Example 4.1 to Sch. 1 Pt 2 cl. 4 amended by S.R. No. 4/2021 reg. 7(a).

Example 4.1

Wal was given a contract to look over. The clause about goods in transit insurance was complex and hard to read. Wal asked the company's manager whether it meant he had to take out a new policy. The manager said he was pretty sure the insurance arrangements hadn't changed but he wasn't really certain. Wal signed the contract and sent it with a letter saying he was told the insurance was the same as before, but asking that the company tell him if this wasn't right. The company didn't reply. A dispute arose later about some expensive goods damaged in an accident, and the company argued that Wal was obliged under the contract to take out the insurance. The company's failure to correct Wal's misunderstanding in circumstances where it was brought to its attention and not corrected is likely to constitute unconscionable conduct under section 31 of the Act, and Wal could notify a dispute to the Small Business Commission.

Example 4.2 to Sch. 1 Pt 2 cl. 4 amended by S.R. No. 4/2021 reg. 7(a).

Example 4.2

Ajani was looking for work. He responded to an advertisement seeking couriers. He was given a long and complicated contract. Ajani has trouble with English and said he needed to have a friend with good English read the documents. The manager said if Ajani wanted the job he would have to sign on the spot and pay $1000 to cover the "set up costs". Ajani was anxious to find work and the manager was persuasive, so he signed and paid. He later realised the contract paid well below the going rate and it was impossible to make a living from the rates paid. The company refused to refund the $1000. The company's conduct is likely to constitute unconscionable conduct under section 31 of the Act, and Ajani could notify a dispute to the Small Business Commission.

Example 4.3 to Sch. 1 Pt 2 cl. 4 amended by S.R. No. 4/2021 reg. 7(a).

Example 4.3

Bill works for a company that provides waterfront services using both contractors and its own employee drivers. Bill is planning to retire and is negotiating to sell his truck to the company. Bill persuades the other contractors to refuse to work unless Bill's demands are met. Bill and the other contractors' conduct may be in breach of their contracts and is also likely to be unconscionable conduct within the meaning of section 32 of the Act. The company could notify a dispute to the Small Business Commission and could also seek an urgent injunction in the Tribunal.

Additional guidance

Set out below are circumstances where parties need to take special care that they do not act unconscionably.

(1) If a hirer is aware that a contractor lacks business experience or has difficulty with business language—

it is likely to result in unconscionable conduct within the meaning of section 31 of the Act in the circumstances that the hirer refuses to allow the contractor a reasonable opportunity to obtain an understanding of the contract so as to be able to protect the contractor's interests appropriately.

Example 4.4 to Sch. 1 Pt 2 cl. 4(1) amended by S.R. No. 4/2021 reg. 7(a).

Example 4.4

A company is seeking new contracts with its drivers. Even though the company knows Darren has problems with reading complex documents, the company insists the offer is only open for 24 hours. Darren feels pressured to sign even though he doesn't understand the contract and hasn't had a chance to get his accountant to read it for him. This conduct is likely to constitute unconscionable conduct under section 31 of the Act, and Darren could notify a dispute to the Small Business Commission.

(2) If a party is in an unusually strong negotiating position in relation to another party because of a monopoly or otherwise limited market for the supply of the services—

the imposition of unduly harsh or one-sided contracts in these circumstances is likely to be unconscionable conduct within the meaning of either section 31 or 32 of the Act.

Example 4.5

Uri and Jack have an expensive specialised vehicle that can carry oversized farm machinery from sea ports to dealers. A machinery importer is the only business in Victoria with a need for this kind of vehicle. There are 2 possible scenarios in this situation of a limited market that may result in unconscionable conduct—

(a) knowing that Uri and Jack have no other potential customers for their vehicle, the company tries to force a significant rate reduction that makes the business unprofitable; or

(b) knowing that the company is reliant on their vehicle to perform its contracts with customers, Uri and Jack threaten to refuse to accept work over the busiest period of the year unless the company pays a significant rate increase.

The conduct described above is not an exhaustive description of conduct during negotiations that may be unconscionable conduct within the meaning of either section 31 or 32 of the Act.

5 Best practice in negotiations

Best practice

To ensure that contract negotiations are conducted fairly and that both parties fully understand their agreement, the parties should—

(a) provide each other with the following—

(i) a reasonable opportunity to meet and discuss the terms and conditions;

(ii) a reasonable opportunity to put alternative offers that suit their own business needs;

(iii) sufficient time to properly examine and consider offers and to consult with business partners or fellow directors;

(iv) a reasonable opportunity to seek legal, financial or other advice and appropriate assistance to understand documents; and

(b) properly consider any offers made by the other party.

If a hirer has any concerns about a contractor's understanding of a contract, the hirer may request the contractor to provide written confirmation that the contractor has received advice from an appropriately qualified person.

Parties should be clear, open and certain about the circumstances in which their contract will be renewed or not renewed.

Contractors and hirers are also entitled under sections 25 and 26 of the Act to appoint agents to conduct contract negotiations on their behalf. In summary, sections 25 and 26 of the Act—

(a) entitle contractors and hirers to appoint negotiating agents to negotiate contracts on their behalf; and

(b) require other parties to recognise negotiating agents where properly appointed; and

Sch. 1 Pt 2 cl. 5(c) amended by S.R. No. 4/2021 reg. 9(1).

Sch. 1 Pt 2 cl. 5(d) inserted by S.R. No. 4/2021 reg. 9(2).

(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.

Example 5 to Sch. 1 Pt 2 cl. 5 inserted by S.R. No. 4/2021 reg. 9(3).

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.

6 Parties must not claim to exclude the Act or other laws or the Code

(1) Section 65(1) of the Act provides that a provision of a contract is void to the extent that it is contrary to the Act or this Code.

Mandatory Requirement

(2) A party to a contract must not make any claim to another party that the other party's rights or entitlements under the Act or any other law or this Code are excluded, unless the Act or other law or this Code permits that exclusion.

Example 6 to Sch. 1 Pt 2 cl. 6(2) amended by S.R. No. 4/2021 reg. 7(b).

Example 6

A freight forwarder has included a clause in its contract stating that the contractor waives the requirement under section 23 of the Act that a hirer cannot deduct money for insurance unless a copy of the relevant policy has been given to the contractor. The contract also provides the contractor is not permitted to notify a dispute to the Small Business Commission. These clauses are invalid and unenforceable.

7 Disclosure of information

Fair business dealing requires parties to exchange information about their changed plans and dealings that may have an impact on the other party's business. This exchange of information should be ongoing throughout the relationship, and not just at the time a contract is entered into or renewed. Sections 31(2)(h) and 32(2)(h) of the Act provide that a factor to be considered in determining whether a hirer or a contractor has acted unconscionably is if that party unreasonably fails to disclose to another party proposed conduct that might affect the other party's interests, or does not disclose any risks that that party should have foreseen would not be apparent to the other.

Guidance

If a hirer or contractor is planning or has experienced changes to the way they conduct their business that may significantly affect the business of another party, they should inform the other party of those planned changes or changes as soon as reasonably practicable. A failure to do so is likely to constitute unconscionable conduct for the purposes of sections 31 and 32 of the Act.

However, a party is not obliged to disclose any incomplete proposal or negotiation, or any trade secret or commercial-in-confidence matter.

Example 7.1 to Sch. 1 Pt 2 cl. 7 amended by S.R. No. 4/2021 regs 7(c), 10.

Example 7.1

Alf's hirer is a small freight forwarder who has 2 major clients. One of those clients has just appointed a receiver, and it appears likely that the hirer might only get paid 20 cents in the dollar on debts it is owed. The hirer already owes Alf for more than 20 days' work. The hirer should inform Alf immediately of the development and discuss how they will deal with the situation. Either party could seek the assistance of the Small Business Commission.

Example 7.2 to Sch. 1 Pt 2 cl. 7 amended by S.R. No. 4/2021 reg. 7(c).

Example 7.2

Kolya worked for a freight company that did most of its work for a chain of homeware stores. After discussing his plans with his hirer, Kolya invested in a new B Double and entered a 5-year finance contract. Kolya wasn't told that the contract between the hirer and the chain of homeware stores was up for renewal. The contract wasn't renewed, Kolya lost the work and was stuck with the new vehicle and payments*.* The company should have told Kolya that the contract with the customer was not yet secured, particularly knowing that he was buying a new vehicle in reliance on secure work. Kolya could notify a dispute to the Small Business Commission.

8 Dispute resolution[[2]](#endnote-3)

Sch. 1 Pt 2 cl. 8(1) amended by S.R. No. 4/2021 reg. 7(d).

(1) Part 5 of the Act provides a process for the resolution of disputes between hirers and contractors, including mediation by the Small Business Commission. If this does not successfully resolve the dispute, the party who notified the dispute may refer the matter to the Tribunal for determination.

Sch. 1 Pt 2 cl. 8(2) amended by S.R. No. 4/2021 reg. 11(1)(2).

(2) However, except in urgent circumstances, parties should first seek to resolve any dispute between themselves informally before using the disputes process provided under the Act. Work should continue as normal while the parties attempt to resolve the dispute.

Best Practice

If a dispute arises, the aggrieved party should do the following—

(a) notify the other party of their concerns when the issue arises;

(b) advise the other party what they would like to happen to resolve the dispute;

(d) accept any invitation to meet with the other party to attempt to resolve the dispute;

(e) act professionally and courteously at all times;

(f) continue to perform or offer services as normal while the dispute is being dealt with;

(g) ensure services are being performed in a safe manner;

Sch. 1 Pt 2 cl. 8(2)(h) substituted by S.R. No. 4/2021 reg. 11(3).

(h) attempt to use any process agreed between the parties for the resolution of disputes.

If an unforeseen event occurs beyond the parties' control (such as a road closure) the parties should work together to find a way of dealing with the situation that is fair and equitable.

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.

9 Misleading advertising

Mandatory Requirement

(1) A hirer seeking to engage a contractor must not make any representation to the contractor, including through advertisements or in interviews—

(a) that the hirer knows to be false, or which the hirer is reckless as to whether it is correct; or

(b) that is misleading or deceptive or likely to mislead or deceive.

(2) For the purposes of this clause, representations that are likely to mislead or deceive include the following—

(a) a representation that a contractor can earn a certain amount if it is not reasonably possible for a diligent contractor to earn that amount;

Example 9.1 to Sch. 1 Pt 2 cl. 9(2)(a) amended by S.R. No. 4/2021 reg. 7(e).

Example 9.1

John sees an advertisement in the local paper that says drivers will "earn in excess of $1500 per week". John starts work, but then finds out from the other drivers that their average gross income for the last year has been less than $900, and that no-one has ever managed to earn more than $1200 a week. John could notify a dispute to the Small Business Commission over this breach of the Code.

(b) a hirer guarantees a contractor an enforceable minimum level of income or number of hours of work for a certain period of time, but—

(i) does not make it clear that the minimum is only for that period; or

(ii) in circumstances that the engagement is to continue beyond that period, does not provide any information to the prospective contractor about expected earnings after the period expires;

Example 9.2 to Sch. 1 Pt 2 cl. 9(2)(b) amended by S.R. No. 4/2021 reg. 7(e).

Example 9.2

A courier company recruits new drivers with advertisements stating "guaranteed minimum
38 hours a week". However, after Herman started with the company, and after he painted his vehicle in the hirer's livery, he was given a contract that said the minimum hours only applied for 3 months then it was "up to the driver to bring in the work". After the 3 months, Herman's hours drop back to less than 20 a week. Herman could notify a dispute to the Small Business Commission over the hirer's breach of the Code.

(c) a hirer provides estimates of earnings to a contractor but fails to indicate whether the figure is a gross figure (that is, that the contractor will incur overhead costs in earning that amount) or a net figure (the figure after expenses are taken out).

Example 9.3

A pizza restaurant advertised for a delivery driver. The advertisement states "guaranteed $100 per night". The pizza restaurant should make it clear whether this is a gross (before expenses) figure, for example, by saying "$100 per night (less expenses)" or a guarantee of earnings after expenses are taken out.

10 New vehicles or motorised equipment

(1) Hirers occasionally require existing contractors to upgrade their vehicles or motorised equipment. This can involve substantially higher overhead costs and a much greater level of capital investment. Unfairness is likely to result in these circumstances if the terms of the contract are not reviewed to make sure they remain reasonable and appropriate.

Mandatory Requirement

(2) If a hirer requests or requires a contractor to supply a vehicle or motorised equipment that is different to the vehicle or motorised equipment supplied by the contractor under a contract with the hirer, or if the contractor identifies a legitimate need to upgrade the vehicle or motorised equipment, the hirer must enter into negotiations with the contractor for variations to the contract for that purpose, and in doing so have regard to the following—

(a) any increase or decrease in the contractor's costs associated with the purchase and operation of the requested vehicle or motorised equipment;

(b) the appropriate level of commercial security, having regard to the nature of the vehicle or motorised equipment provided and the amount of the investment;

(c) the need for the contractor to have reasonable security over the contractor's business assets (for example, a contract of appropriate duration, a minimum number of hours or income, or both);

(d) the impact upon efficiency and productivity as a result of the upgraded vehicle or motorised equipment.

(3) If, after these negotiations, the hirer agrees that a different vehicle or motorised equipment may be supplied by the contractor, the hirer must set out in writing the terms and conditions being offered for the services using the different vehicle or motorised equipment, and must do so before the contractor purchases or otherwise commits to supplying the vehicle or motorised equipment.

Sch. 1 Pt 2 cl. 10(4) amended by S.R. No. 4/2021 reg. 12.

(4) If the hirer requires particular specifications for the different vehicle or motorised equipment, the specifications must be provided in writing to the contractor.

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.

11 General principles for setting and reviewing rates

A hirer should offer and pay to a contractor a rate of remuneration that is commensurate with the rates typically paid within the industry for similar services, and which meets an efficient contractor's business costs and provides a return to the contractor that recognises the contractor's capital investment.

Guidance

Hirers should offer and pay contractors remuneration that, considering the contract as a whole, the services to be performed, and the general market for the services, provides for each of the elements of remuneration described below.

Considering the contract as a whole, contractors should receive at least an amount which, after accounting for operating costs, is an amount that is not likely to be less than the amount that the contractor would typically receive for performing those services as an employee.

A significant departure from these principles means that the relevant contract term is likely to constitute an unfair contract term for the purposes of section 44(1)(g) of the Act.

The elements of remuneration are comprised of the following—

(1) An amount that represents the recovery of the fixed and variable costs incurred in performing the services required.

A hirer is not required to calculate the actual individual overhead costs of a particular contractor, but must consider the typical and efficient overhead costs of a contractor with the required type of vehicle or equipment.[3]

Example 11

A freight forwarder has a fleet of 20 contractors with B Doubles, and all contracts are up for review. In deciding what rate to offer, the hirer uses a cost model that is based on the typical or average operating costs of a B Double based on a 3-year old vehicle under finance, that requires 8 mechanical services a year. Some of the contractors have individual finance payments that are higher or lower than the benchmark used to prepare the rate model, depending on the amount that they have each borrowed. Some will have older vehicles (that require more services) or newer vehicles (that require fewer services). The use by the hirer of this benchmark model meets the requirements of this clause.

(2) An amount that represents a fair return for the contractor's labour.

For an owner driver, this is a fair amount for the owner driver's labour in driving, loading and unloading the vehicle and associated activities such as administration. A fair return for the owner driver's own labour should be reflected in the contract between the parties.

(3) An amount that represents a return on the contractor's investment.

Contractors are businesses and therefore aim to make a return on their business investment, that is, a profit. Contractors may supply significant assets and carry significant commercial risk, and can reasonably expect to receive an amount over and above their efficient operating costs and their own labour as a reward for that risk and investment. The amount that is a reasonable return on investment will vary widely in all the circumstances, and may vary over time as market conditions change.

Factors that influence what is a reasonable return on investment can include the following—

(a) the amount of the capital investment in the vehicle or equipment;

(b) the level of commercial risk assumed by the contractor;

(d) whether the vehicle or equipment provided by the contractor can readily be used to provide services to other persons;

(e) whether the vehicle or equipment is also used for personal use;

(f) the efficiency and productivity of the contractor;

(g) the market for the services.

12 Additional matters to be considered in setting rates

In addition to the matters set out in clause 11, hirers should also take the following matters into consideration when negotiating rates of remuneration with contractors.

(1) The whole of the activities to be performed by the contractor for the purposes of the contract.

Guidance

Contracts, considered as a whole, should take into account the cost to the contractor of engaging in all the activities which are reasonably necessary to perform the services.

A failure to take reasonable account in a contract of all the work that is necessarily performed in providing the services means that the relevant term or terms of the contract are likely to constitute unjust contract terms for the purposes of section 44(1)(g) of the Act.

Example 12.1 to Sch. 1 Pt 2 cl. 12 amended by S.R. No. 4/2021 reg. 7(f).

Example 12.1

Mark delivers cars for a chain of car dealerships, exchanging new and traded-in vehicles between the dealerships all over the State. Most journeys he makes involve transferring just one car at a time. He is paid a rate based on the number of cars carried and the number of kilometres, but only for the kilometres he travels when his vehicle is loaded. The rates paid do not make any allowance for the unloaded journey to collect the vehicle from the dealership, or for returning to his base. This means that after taking account of the running cost of the vehicle, Mark is earning less than $10 an hour for all the work required to perform the requested services. The relevant terms of the contract are likely to constitute unjust contract terms within the meaning of section 44(1)(g) of the Act, and Mark could notify a dispute to the Small Business Commission.

Example 12.2

A courier company has calculated that on average, it takes a certain number of minutes for its couriers to collect or deliver goods. The company pays on a fixed run rate based on the suburbs between deliveries, and builds into that rate an amount for the contractor's labour for that average time spent in collecting or delivering the goods. Sometimes an individual courier may have to wait for a longer or a shorter period, but on average, over time, they receive compensation for the time worked. The relevant terms of the contract are unlikely to constitute unjust contract terms within the meaning of section 44(1)(g) of the Act.

(2) Where the customer pays additional rates or levies.

It is common for arrangements between hirers and their customers to provide that the hirer receives additional payments or higher rates in certain circumstances. With the rising cost of fuel, customer fuel levies are common. Some hirers have acted unscrupulously by not giving the contractor any benefit of such a loading or increase, even though it is the contractor and not the hirer who has actually had to bear the increased cost caused by a rise in fuel prices.

Guidance

If the hirer has the benefit of arrangements with customers providing additional payments or higher rates from the customers in the case that—

(a) the cost of fuel rises or falls (a fuel levy); or

(b) the contractor spends excess time—

(i) loading and unloading, or waiting to be loaded or unloaded; or

(ii) waiting for customers to make goods available for collection—

and the contract between the hirer and the contractor does not provide proportional payments or benefits to the contractor in the same circumstances, then the relevant contract term is likely to constitute an unjust contract term for the purposes of section 44(1)(g) of the Act.

Example 12.3 to Sch. 1 Pt 2 cl. 12(2) amended by S.R. No. 4/2021 reg. 7(f).

Example 12.3

Nina runs a 2-tonne van. In 5 years, her hirer has only increased the rates paid to its contractors by $1 an hour. At the beginning, Nina earned $900 a week on average, of which about $270 was spent on fuel. Because of the significant increase in the cost of fuel over the last 5 years, Nina is now spending over $450 a week on fuel, and the total return for her labour and investment is now well below $10 an hour. The company refuses to negotiate a new rate, saying the market is too competitive. However, the company's contracts with its customers allow it to charge an increased price whenever the cost of fuel increases by more than 5 cents a litre. The company simply pockets this customer price increase as it is the contractors who pay for the fuel. This conduct is likely to be unconscionable conduct within the meaning of section 31 of the Act, and Nina could notify a dispute to the Small Business Commission.

(3) Where the contractor provides services to the hirer on an exclusive basis.

Contractors are businesses, not employees. They are not obliged to work solely for one hirer unless this is agreed between them. However, hirers often require contractors to make themselves available to accept work on a full-time basis, and not to work for anyone else. Often the contractor is required to paint their vehicle in the hirer's or customer's livery, meaning that regardless of the terms of the contract, the vehicle is not able to be used to perform work for other customers.

Guidance

Where the contractor—

(a) is not permitted to perform services for any other person using the vehicle supplied under the contract; or

(b) has their vehicle painted in the hirer's or the hirer's customer's livery—

then, unless there is evidence to the contrary, the hirer should pay the contractor remuneration on the basis that the contractor will receive no other income towards the fixed overhead costs of the contractor's business.

A failure to do so means the relevant contract term is likely to constitute an unjust contract term for the purposes of section 44(1)(g) of the Act.

(4) The need for a regular and systematic review of fixed and variable overhead costs.

Section 31(2)(k) of the Act provides that a matter to be considered in determining whether a hirer's conduct is unconscionable is whether or not the contract allows for the payment of any increases in fixed and variable overhead costs on a regular and systematic basis. This means that a contract which locks up a contractor's rates for long periods of time without regard to increases in overheads (particularly fuel prices) will be susceptible to a claim of unconscionable conduct.

Guidance

Set out below is one practice that, while not being mandatory, constitutes a review of rates for increases in overhead costs in respect of owner drivers on a "regular and systematic basis", and is therefore unlikely to constitute unconscionable conduct within the meaning of section 31(2)(k) of the Act—

(a) the component of a contractor's remuneration that relates to the cost of fuel is determined by direct reference to the actual cost of the fuel required to perform the services and is adjusted on at least a monthly basis; and

(b) the determination of any increases or decreases in the cost of fuel is by reference to a legitimate and accurate fuel price monitoring source; and

(c) the rates paid to the contractor are reviewed regularly and systematically in respect of operating costs other than fuel.

While this clause sets out an arrangement that is unlikely to be unconscionable, other arrangements may be commercially appropriate and legitimate in all the circumstances and comply with the requirements of section 31(2)(k) of the Act.

Example 12.4

Mick carries road base to road construction sites. His hirer is tendering for a new road building project and asks the contractors to agree to a fixed rate per load for the 3 months of the project. The price that is negotiated takes into account the fact that the cost of fuel may increase during that time. This conduct is unlikely to be unconscionable conduct within the meaning of section 31(2)(k) of the Act.

Note

Part 5 of this Code sets out certain practices that constitute a review of rates for increases in overhead costs in respect of forestry contractors
on a "regular and systematic basis".

13 Reduction in remuneration for carrying smaller loads

(1) Contracts generally provide for rates which are based upon the running costs of the type of vehicle provided, for example, a 2-tonne van. Where the contract between the parties permits, the contractor may agree to accept offers from the hirer for loads that could be carried in a smaller vehicle for a reduced rate of remuneration. Contractors may consider such occasional loads to be in their own interests, for example where the alternative is running the vehicle unloaded.

(2) However, where the hirer regularly directs the contractor to undertake work for such reduced rates, the end result may be that the contractor is unable to cover the higher operating costs of the larger vehicle.

Guidance

In general, hirers should pay contractors at the rate agreed between them for the particular vehicle supplied by the contractor, regardless of whether the goods being transported could have been transported in a vehicle with a lesser carrying capacity.

Hirers should not—

(a) direct contractors to undertake deliveries with a smaller load to be paid at a reduced rate; or

(b) make special arrangements with customers for reduced rates (for example, supplying a 2-tonne van at the lower 1-tonne van rate), and direct the contractor to perform deliveries for that customer at the reduced rate.

Any regular direction that the contractor accept a reduced rate that results in the contractor being unable to meet the operating costs of the larger vehicle is likely to constitute unconscionable conduct within the meaning of section 31 of the Act.

Sch. 1 Pt 2 cl. 14 amended by S.R. No. 4/2021 reg. 13(1)(2).

14 Payment of invoices

Contractors frequently have limited working capital. This means it is not reasonable to expect them to carry operating costs for excessive periods. The period allowed for payment of invoices should provide for regular payments sufficient in the circumstances for the contractor to maintain a reasonable cash-flow to operate their business. 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.

Guidance

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.

Further, it is likely to constitute unconscionable conduct within the meaning of section 31 of the Act if the hirer has engaged in a pattern of conduct of regularly being late in paying the contractor's invoices, paying only part of the amount owed or failing to pay at all.

Example 14 to Sch. 1 Pt 2 cl. 14 substituted by S.R. No. 4/2021 reg. 13(3).

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.

Part 3—Deductions and statements

15 Deductions from remuneration

(1) Section 24 of the Act places certain restrictions on hirers requiring contractors to pay any amount, or from making deductions from money payable to contractors, in respect of services or equipment provided to contractors by hirers or any other person. Under section 24, any amount deducted must be—

(a) specified in the contract; and

(b) a direct and proper reflection of the actual cost of the services or equipment in respect of which the costs are charged.

(2) Section 24 of the Act also requires the hirer to give the contractor an opportunity to obtain the services or equipment from another supplier.

(3) Section 23 of the Act also requires a hirer seeking to make deductions for insurance to have an insurance policy in force and to have provided a copy of the policy to the contractor.

(4) Under section 65 of the Act, any term of a contract that is contrary to, or inconsistent with, anything in the Act, the regulations or this Code is void to the extent that it is contrary or inconsistent. There are also strict requirements under the Corporations Act concerning who is allowed to offer insurance policies.

Mandatory requirement

(5) If a hirer makes deductions from a contractor's invoiced fees for services, or the use of equipment, provided by the hirer or any other person, the hirer must provide a written statement to the contractor setting out the nature of the equipment used or services provided and the amount deducted for the equipment or service.

Example 15 to Sch. 1 Pt 3 cl. 15 amended by S.R. No. 4/2021 reg. 7(g).

Example 15

Russell works for a taxi truck company. The company starts to deduct an "insurance fee" of 5% of turnover from all its contractors. Russell already has his own insurance coverage that is much cheaper, but the company says he must also participate in its "self-insured" scheme. The hirer is in breach of sections 23 and 24 of the Act. Russell and his colleagues could notify a dispute to the Small Business Commission.

16 Deductions for the use of the hirer's equipment and technology

A range of new technology, such as vehicle monitoring technology, GPS devices and electronic invoicing equipment or other communications and monitoring equipment is now available. This technology may provide a benefit to the contractor or the hirer, or to both parties, in terms of improved efficiency, safety, client loyalty or productivity.

Guidance

If the hirer charges the contractor for the use of equipment supplied by the hirer in circumstances where the contractor does not obtain any benefit or advantage to their own business from the use of the equipment, then the relevant contract term is likely to constitute an unjust contract term for the purposes of section 44(1)(g) of the Act.

However, it would not constitute an unjust contract term if the rates paid to the contractor made provision for the cost of any such charge made by the hirer.

Example 16

A construction company negotiates with its owner drivers to install new vehicle monitoring technology to obtain government permission to operate more heavily loaded vehicles on certain roads. The equipment costs $1500 to install with a weekly monitoring fee of $30. The company has calculated that the additional load capacity would allow the contractors to earn an extra $200 a week. As the contractor obtains a significant financial benefit from using the equipment, it is unlikely to be an unjust contract term if the contract allows the hirer to deduct the costs from the contractor's payments, provided the contractor agrees and the deduction is no more than the actual cost of the service and equipment provided.

17 Penalties

Mandatory Requirement

A hirer must not require a contractor, or include a term in a contract requiring a contractor, to make any payment which is in the nature of a penalty. A penalty is a payment that must be made by a party for an amount in excess of the amount necessary to remedy the actual loss or damage suffered as a result of the conduct.

Example 17 to Sch. 1 Pt 3 cl. 17 amended by S.R. No. 4/2021 reg. 7(h).

Example 17

Fang Shan's contract states that she must pay $100 to the company if she is more than 10 minutes late in a delivery. The inclusion of this contract term is in breach of this Code, and Fang Shan could notify a dispute to the Small Business Commission.

Part 4—Allocation of work, working arrangements and absences

18 Allocation of work

Some arrangements in the transport industry pay remuneration to contractors for deliveries actually performed, rather than for the hours where the contractor is available to work. This means that the fair allocation of work by the hirer is important for all parties.

Guidance

If a hirer offers work to contractors in an unjust manner, this is likely to constitute unconscionable conduct within the meaning of section 31 of the Act. Such conduct may also be in breach of section 61 of the Act if carried out for a reason prohibited by that section.[4]

Best Practice

Having regard to their legitimate business needs, hirers should use their best endeavours to—

(a) plan their fleet to match their workloads; and

(b) allocate work fairly between their contractors.

Contractors should operate in an efficient and productive manner, and use their best endeavours to assist hirers to meet customer requirements.

Parties should work together to pursue improved management practices that avoid as far as possible unproductive time and unloaded travel, and which provide for the most efficient and productive utilisation of the contractor's and the hirer's vehicles, plant and equipment.

19 Working arrangements

Some contractors work very long hours, do not have adequate rest and recovery between shifts, and do not have adequate family and recreation time. While many contractors seek or accept long hours for financial or other reasons, there is significant evidence to show that working patterns with excessive hours are unsafe, have long-term health implications for contractors and have a negative effect on family life.

Best Practice

When parties are negotiating a contract, they should give proper consideration to achieving safe work practices and a reasonable work and life balance. Particular attention should be given to—

(a) ensuring their contracts comply with all applicable laws and regulations on driving hours and fatigue management; and

(b) the maximum number of hours a day in which services are to be provided; and

(d) structuring the hours in which services are to be provided to allow time for physical recovery, rest and recreation, community participation and family time; and

(e) what flexible arrangements can be put in place that may assist contractors to have a better work and life balance. Such arrangements might include allowing for consultation over preferred rosters, arrangements to make it easier to find and use replacement drivers or flexible start and finishing times and locations.

20 Absences due to illness or family responsibility

(1) Contractors are businesses, not employees. As such, provided the standards of the contract are met, it is a matter for the contractor to choose the person who actually performs the services. This could be the owner of the contractor's business or an employee or subcontractor.

(2) A hirer may impose reasonable requirements on the use of alternative drivers based on the qualifications, training or character of a proposed driver.

Mandatory Requirement

(3) A hirer must not terminate a contract only because of the absence of the contractor due to temporary illness or incapacity, family responsibilities or a similar reason, without first allowing a reasonable period of time for the contractor to provide a suitable replacement driver.

(4) In considering what period of time is reasonable for the contractor to provide a replacement driver, regard must be had to the nature of the work and the relevant terms of any contract between the parties.

Part 5—Additional provisions for forestry contractors and hirers

21 Unconscionable conduct during negotiations

In its application to forestry contractors, subclause (2) of the additional guidance notes in clause 4 is to be read as including the following example—

Example 4.6 to Sch. 1 Pt 5 cl. 21 amended by S.R. No. 4/2021 reg. 7(i).

Example 4.6

There is only one forestry manager engaging harvesting contractors in a particular region of Victoria, and it is not practicable for the contractors to travel to other regions or to work for anyone else. If the forest management company was to use its strong market position to extract an unduly harsh and one-sided deal from harvesting contractors (having regard to all relevant factors including international market conditions) this is likely to constitute unconscionable conduct under section 31 of the Act. Conversely, if the harvesting contractors were to join together and threaten to boycott the hirer unless the hirer agreed to a harsh or one-sided deal in the harvesting contractors' favour, this is likely to constitute unconscionable conduct by the contractors under section 32 of the Act. The affected party could notify a dispute to the Small Business Commission.

22 Best practice in negotiations

(1) This clause applies in relation to contract negotiations between a hirer and a forestry contractor.

(2) In addition to the matters set out in clause 5, the parties to the proposed contract should, prior to finalising the terms of the contract, jointly view—

(a) the locations or indicative locations for the performance of the contract; and

(b) relevant harvesting and haulage management plans.

23 Disclosure of information

In its application to forestry contractors, the guidance notes in clause 7 are to be read as including the following example—

Example 7.3

Nathan is negotiating with a forest management company to perform harvesting work and rates to be paid. His hirer is aware that the coupe being considered has some terrain outside that defined in the agreement that could make the harvesting more complex and possibly damage equipment, with extra costs and risks and delays. There is no way for Nathan to do his own checks unless the company facilitates this. The hirer should tell Nathan about the unusual terrain and invite him to inspect the site to allow for further negotiations.

24 Best practice in dispute resolution

In relation to the matters set out in clause 8 as best practice in dispute resolution, an example of an unforseen event beyond the parties' control in the context of the forestry industry is an environmental protest or blockade.

25 Misleading advertising

For the purposes of clause 9, an example of a representation by a hirer that is likely to mislead or deceive a forestry contractor is an inaccurate guarantee or representation regarding the volume of forest products available to the forestry contractor.

26 General principles for setting and reviewing rates

(1) In its application to forestry contractors, subclause (1) of the guidance notes in clause 11 is to be read as including the following example—

Example 11.2

Based on a forest manager's experience, the forest manager has calculated benchmark cost rates per hour for a bulldozer and a skidder. These benchmarks are based on the cost to an experienced and efficient harvesting contractor who is using reasonably modern and well-maintained equipment. The forest manager can use this benchmark, and need not calculate the particular individual costs of a contractor who is using older, less efficient equipment.

(2) In its application to forestry contractors, subclause (2) of the guidance notes in clause 11 is to be read as including the following—

For a haulage contractor, this is a fair amount for the haulage contractor's labour in driving, loading and unloading the vehicle and associated activities such as administration.

For a harvesting contractor, this is a fair amount for the harvesting contractor's labour in managing their harvesting business.

27 Review of rates on a regular and systematic basis

Section 31(2)(k) of the Act provides that a matter to be considered in determining whether a hirer's conduct is unconscionable is whether or not the contract allows for the payment of any increases in fixed and variable overhead costs on a regular and systematic basis. This means that a contract which locks up a forestry contractor's rates for long periods of time without regard to increases in overheads (particularly fuel prices) will be susceptible to a claim of unconscionable conduct.

Guidance

Set out below are certain practices that, while not being mandatory, constitute a review of rates for increases in overhead costs in respect of forestry contractors on a "regular and systematic basis", and which are therefore unlikely to constitute unconscionable conduct within the meaning of section 31(2)(k) of the Act.

The component of a forestry contractor's remuneration that relates to the cost of fuel is determined by direct reference to the actual cost of the fuel required to perform the services and is adjusted—

(a) at least every 6 months; or

(b) if there is an increase in the price of fuel of 10% (or a lesser percentage amount) since the last rate adjustment; or

(c) if there is an increase in the cost of fuel of such an amount that it causes an increase of more than 1% (or a lesser percentage amount) of the forestry contractor's operating costs since the last rate adjustment.

In addition—

(a) the determination of any increases or decreases in the cost of fuel is by reference to a legitimate and accurate fuel price monitoring source; and

(b) the rates paid to the forestry contractor are reviewed regularly and systematically in respect of operating costs other than fuel.

While this clause sets out practices that are unlikely to be unconscionable, other arrangements may be commercially appropriate and legitimate in all the circumstances and comply with the requirements of section 31(2)(k) of the Act.

Example 27

Ron is a harvesting contractor and has the benefit of a
5-year contract with a guaranteed volume and a turnover of $350 000 a year. His hirer is in turn subject to a 5-year contract with a timber processor, and has the benefit of a 6‑monthly fuel review clause. Ron's rates are similarly reviewed for fuel increases under his contract every 6 months, and an additional lump sum is paid as compensation for the average increases over the previous 6‑month period. Given Ron's level of contract security and turnover, and the commercial arrangements between the hirer and the processor, a 6-month review is unlikely to be unconscionable conduct within the meaning of section 31(2)(k) of the Act.

Sch. 1 Pt 6 (Heading and cl. 28) inserted by S.R. No. 4/2021 reg. 14.

Part 6—Record keeping requirements

Sch. 1 Pt 6 cl. 28 inserted by S.R. No. 4/2021 reg. 14.

28 Record 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;

(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;

(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.

Sch. 2 inserted by S.R. No. 4/2021 reg. 15.

Schedule 2—Infringement offences and infringement penalties

Regulation 8

Column 1<br>Item	Column 2<br>Infringement offence	Column 3<br>Infringement penalty
1	An offence against section 10(1) of the Act	5 penalty units in the case of a body corporate<br>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<br>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<br>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<br>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<br>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<br>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<br>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<br>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<br>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<br>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<br>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<br>1 penalty unit in any other case

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Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Owner Drivers and Forestry Contractors Regulations 2017, S.R. No. 101/2017 were made on 10 October 2017 by the Governor in Council under sections 27 and 66 of the Owner Drivers and Forestry Contractors Act 2005, No. 49/2005 and came into operation on 21 October 2017: regulation 3.

The Owner Drivers and Forestry Contractors Regulations 2017 will sunset 10 years after the day of making on 10 October 2027 (see section 5 of the Subordinate Legislation Act 1994).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).

• Examples, diagrams or notes

All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).

• Punctuation

All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).

• Provision numbers

All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Owner Drivers and Forestry Contractors Regulations 2017 by statutory rules, subordinate instruments and Acts.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Owner Drivers and Forestry Contractors Amendment Regulations 2021, S.R. No. 4/2021

Date of Making:	2.2.21
Date of Commencement:	1.3.21: reg. 3

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Amendments Not in Operation

This version does not contain amendments that are not yet in operation.

4 Explanatory details

Reg. 4: S.R. No. 153/2006 as extended in operation by S.R. No. 124/2016. ↑
Sch. 1 cl. 8: Guidance on dispute resolution for owner drivers or contractors can be obtained at www.vsbc.vic.gov.au. ↑
Sch. 1 cl. 11: Guidance on the typical overhead costs for contractors can be obtained from the Rates and Costs Schedules published under section 15 of the Act, which are available at www.business.vic.gov.au. ↑
Sch. 1 cl. 18: Reasons set out in section 61 of the Act include: if the contractor has exercised a power or right under the Act, informed a person of a breach of the Act or Code, participated in joint negotiations, raised an issue concerning health and safety or sought to renegotiate a contract. ↑

1 Owner Drivers and Forestry Contractors Regulations 2017

Version No. 002

Owner Drivers and Forestry Contractors Regulations 2017

S.R. No. 101/2017

Version incorporating amendments as at
1 March 2021

TABLE OF PROVISIONS

Regulation Page

1 Objectives 1

2 Authorising provisions 1

3 Commencement 1

4 Revocation 1

5 Definition 2

6 Persons of a specified class prescribed not to be contractors 2

7 Prescribed code of practice 2

8 Infringement offences and infringement penalties 2

Schedule 1—Code of practice for owner drivers and forestry contractors 3

Schedule 2—Infringement offences and infringement penalties 42

═════════════

Endnotes 44

1 General information 44

2 Table of Amendments 46

3 Amendments Not in Operation 47

4 Explanatory details 48

Version No. 002

Owner Drivers and Forestry Contractors Regulations 2017

S.R. No. 101/2017

Version incorporating amendments as at
1 March 2021

Reg. 1 substituted by S.R. No. 4/2021 reg. 5.

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 Owner Drivers 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

(d) to prescribe other matters authorised under the Owner Drivers and Forestry Contractors Act 2005.

2 Authorising provisions

These Regulations are made under sections 27 and 66 of the Owner Drivers and Forestry Contractors Act 2005.

3 Commencement

The Regulations operate through three core legal instruments: definitional prescription, a statutory code of practice (Schedule 1), and an infringement-offence schedule (Schedule 2). Each instrument deploys three legal modes: mandatory norms, guidance (illustrative/examples), and administrative enforcement.

Definitional prescription (regulation 6)

The Regulations exclude certain classes from the Act’s contractor definition: natural persons or bodies corporate whose business transports goods (other than forest products) with four or more vehicles supplied by the business and operated by the business (reg 6(a), (b)). The code’s interpretative note (Sch.1 Pt 1 cl. 2 and the note to that clause) explicitly records that the Regulations limit the contractor definition to suppliers of a maximum of three vehicles in the non-forest-products transport context. This is a jurisdictional gate: it narrows the statutory protection set out in the Act to smaller operators.

Code of Practice as prescriptive instrument (Schedule 1)

Schedule 1 is prescribed as the code for Part 3 of the Act (reg 7). The Code mixes:
- Mandatory Requirements: clauses with that heading must be complied with by the person to whom they apply (Sch.1 Pt 1 cl. 3(2) note; examples include Sch.1 Pt 2 cl. 6(2) (prohibiting contract clauses excluding rights under the Act or Code), cl. 8 (not insisting on exhaustion of internal dispute processes before referring to the Small Business Commission), cl. 10(2)(hirer must negotiate variations for new vehicle requirements), cl. 15(5) (written statements for deductions), cl. 17 (no penalty payments), cl. 20(3) (must not terminate only because of temporary illness without allowing reasonable time for replacement) and Sch.1 Pt 6 cl. 28 (mandatory record keeping)).
- Guidance and Examples: extensive examples and "Guidance" sections identify conduct likely to be unconscionable under sections 31-32 of the Act and contract terms likely to be unjust per s 44(2) of the Act. The endnotes and Sch.1 note confirm that examples and notes are part of the statutory instrument and are therefore authoritative interpretative aids.
- Industry-specific rules: Part 5 provides supplementary guidance and rules for forestry contractors (cl. 21-27), including a distinct rate-review cadence (cl. 27) for fuel adjustments (six-month minimum or trigger thresholds).

Enforcement mechanics (regulation 8 and Schedule 2)

Regulation 8 prescribes which Act offences are infringement offences and fixes the infringement penalties (s 60N(1) and s 60N(3) of the Act are cited by reg 8). Schedule 2 lists the Act sections that attract infringement notice liability and prescribes the standard penalty amounts: 5 penalty units when the offender is a body corporate and 1 penalty unit otherwise (Schedule 2 Column 3 for each listed item). The instrument therefore provides a civil enforcement tool in addition to the Act’s dispute resolution and Tribunal processes.

Administrative and compliance structures

The Code references Part 5 of the Act for disputes and Part 7A for authorised officers (Sch.1 Pt 2 cl. 8 and Sch.1 Pt 6 cl. 28). Sch.1 Pt 6 cl. 28 makes it a mandatory requirement for hirers and freight brokers to keep specified records and supply them to authorised officers on request (subject to s 60I of the Act). The statutory interplay thus links private contractual duties with administrative oversight powers.

Payment and deduction architecture

The Code operationalises core Act protections on deductions, insurance and payment timing. Clause 15 restates the Act’s restriction on deductions (must be specified in the contract and reflect the actual cost) and requires written statements when hirers make deductions. Clause 14 restates s 24A, setting 30 days as the default payment period for invoices unless a different, non-unfair period is agreed or the payment is disputed.

Norms on negotiation and unfair conduct

The Code details conduct that is likely to be unconscionable when negotiating contracts (Sch.1 Pt 2 cl. 4) and provides "best practice" negotiation behaviours (cl. 5). The Code identifies market power concerns and situations where a party’s superior bargaining position requires special care (examples cl. 4 and 5). The Code also describes principles for setting remuneration (cl. 11 and cl. 12) and specific rules for forestry contractors about rate reviews (cl. 27).

Record keeping and inspection

The 2021 amendment added mandatory record-keeping duties (Sch.1 Pt 6 cl. 28). These list discrete items that a hirer must keep (copies of regulated contracts, contractor details, engagement dates, tender records, receipt acknowledgements for information booklets or rate schedules, termination dates, payment-in-lieu details) and analogous items for freight brokers.

Overall conceptually, the Regulations are a hybrid statutory implementation instrument: a definitional carve-out that narrows coverage, a prescriptive code that sets minimum negotiation, payment and deduction standards, and an enforcement schedule that enables infringement notices alongside the Act’s dispute pathways. The Code’s mix of mandatory and guidance provisions creates a legal regime where many day-to-day commercial behaviours (advertising, negotiations, deductions, vehicle upgrades, rate reviews, record-keeping) carry express legal norms or illustrative standards that feed into the Act’s unconscionability and unjust terms tests (see Sch.1 cl. 1 and the notes referencing ss 31, 32 and 44 of the Act).

The Regulations operate through the triad of hirers, contractors and authorised officers. The principal legal burdens fall on hirers and, to a lesser extent, freight brokers; contractors receive entitlements and protected dispute pathways. The definitional change also affects businesses that fall outside the contractor definition.

Hirers
- Primary duty-bearers. The Code imposes obligations on hirers: to negotiate in good faith (Sch.1 Pt 2 cl. 4-5), to disclose material changes (cl. 7), to advertise truthfully (cl. 9), to pay invoices within 30 days unless a fair period is agreed (cl. 14), to comply with restrictions on deductions and to provide written statements when making deductions (cl. 15(5)), to negotiate contract changes before requiring new vehicles or equipment (cl. 10(2)-(4)), to avoid imposing penalty payments (cl. 17), to allow reasonable time for contractor replacement drivers before terminating for temporary illness or family responsibility (cl. 20(3)), and to keep specified records for each engagement (Sch.1 Pt 6 cl. 28). Hirers also face exposure to infringement notices where the listed Act offences in Schedule 2 are contravened (reg 8).
Contractors (owner drivers, haulage contractors, harvesting contractors)
- Recipients of protections and processes. The Code applies to owner drivers, harvesting contractors and haulage contractors (Sch.1 Pt 1 cl. 3(1)). Contractors are entitled to be paid rates that reflect operating costs, labour and a return on capital (cl. 11). The Code describes conduct likely to be unconscionable by hirers and sets out examples of unjust contract terms (cl. 4, cl. 11-12). Contractors have access to dispute resolution under Part 5 of the Act (Sch.1 Pt 2 cl. 8(1) refers parties to mediation via the Small Business Commission and, if unresolved, to the Tribunal).
Freight brokers
- Record-keeping duties. The 2021 amendment added record-keeping duties for freight brokers in respect of engagements they procure or arrange (Sch.1 Pt 6 cl. 28(2)). Brokers must keep contractor identity, engagement dates, engagement periods and records if informational materials or rate schedules were provided.
Persons excluded from "contractor" status
- Businesses with larger fleets. Regulation 6 prescribes that natural persons or bodies corporate transporting goods (other than forest products) with four or more vehicles supplied by the business and operated by the business are not contractors under the Act. This affects larger owner-operators and corporate transport fleets, removing them from statutory coverage and the Code’s protections. The Schedule 1 note explicitly recognises that the Regulations limit the definition such that for non-forest-product transport the contractor definition is limited to suppliers of up to three vehicles.
Authorised officers and regulators
- Enforcement roles. Sch.1 Pt 6 cl. 28 references Part 7A of the Act which provides for appointment of authorised officers with inspection and compulsory information powers. Authorised officers can require production of documents or information; failing to comply without reasonable excuse is an offence under the Act (Sch.1 Pt 6 cl. 28 preamble and text). The Regulations therefore allocate monitoring functions to authorised officers appointed under the Act.

Who pays and who decides

Who pays: Financial burdens are borne chiefly by hirers for payment timing, by contractors for operational costs, and by hirers if deductions (for equipment, technology or insurance) are levied improperly. The Code constrains hirers’ ability to shift costs onto contractors through deductions that are unspecified or exceed actual cost (Sch.1 Pt 3 cl. 15).
Who decides: Parties retain freedom to negotiate terms subject to mandatory requirements. The Small Business Commission and the Tribunal decide disputes escalated under Part 5 of the Act (Sch.1 Pt 2 cl. 8(1)). Authorised officers decide what records to request under Part 7A and may inspect premises with consent or as authorised.

Behavioural effects and likely compliance populations

Smaller owner-drivers and harvesters (up to three vehicles) will operate within the protective regime of the Act and the Code; larger fleet operators will not. Hirers operating with mixed contractor sizes must apply different legal standards depending on the contractor’s fleet size and corporate form. Freight brokers must add record-keeping routines where engagements are arranged. The Code’s detailed guidance on rate-setting, deductions and vehicle upgrades creates predictable processes hirers must follow when asking contractors to upgrade or when committing to new equipment specifications.

Finally, the Regulations’ sunset provision (Endnote 1) notes the Subordinate Legislation Act 1994 standard ten-year sunset for statutory rules: the Regulations will sunset on 10 October 2027 unless remade. That affects medium-term regulatory planning for affected businesses.

This section summarises the operative duties and rights imposed or recognised by the Regulations and the prescribed Code, with clause citations and the statutory cross-references the instrument invokes.

Duty not to contract out of the Act or Code (Sch.1 Pt 2 cl. 6)

Mandatory Requirement: A party to a contract must not claim that another party’s rights under the Act, any other law or the Code are excluded unless such exclusion is permitted. The Note points to s 65(1) of the Act which renders a provision void to the extent it is contrary to the Act or the Code (Sch.1 Pt 2 cl. 6(1) and (2)). Practically, contract clauses purporting to waive statutory protections are ineffective to the extent of inconsistency.

Negotiation duties and unconscionability guidance (Sch.1 Pt 2 cl. 4-5)

Parties should negotiate fairly and in good faith; aggressive "take it or leave it" conduct, failing to provide reasonable time for consideration or advice, disguising terms in fine print, or exploiting renewal expectations are identified as conduct likely to be unconscionable under ss 31-32 of the Act (Sch.1 Pt 2 cl. 4 guidance and examples). Best practice includes providing reasonable opportunity to meet, time to obtain advice, and proper consideration of counter-offers (cl. 5). The Code also recognises negotiating agents and requires recognition of properly appointed agents (cl. 5 note on ss 25-26 of the Act) and that negotiated terms may be offered to others.

Advertising and representations (Sch.1 Pt 2 cl. 9)

Mandatory Requirement: Hirers must not make representations they know are false or that are misleading or deceptive. Examples show that false earning pledges and ambiguous guaranteed hours are prohibited. Practically, hirers must state whether advertised amounts are gross or net and avoid earnigs representations that a diligent contractor could not reasonably achieve.

Vehicle upgrades and requirements before procurement (Sch.1 Pt 2 cl. 10)

Mandatory Requirement: If a hirer requests or requires a contractor to supply a different vehicle or motorised equipment, the hirer must enter negotiations for contract variation and consider increased costs, security, reasonable business asset security, and productivity impacts (cl. 10(2)(a)-(d)). The hirer must provide written terms before the contractor purchases or commits (cl. 10(3)). If specifications are required, they must be provided in writing (cl. 10(4)). This creates pre-commitment disclosure and negotiation obligations.

Principles for setting and reviewing rates (Sch.1 Pt 2 cl. 11-12; Part 5 cl. 26-27 for forestry)

Guidance: Rates should allow recovery of fixed and variable costs, a fair return for contractor’s labour and a return on investment. Hirers should consider the whole of contractor activities (cl. 12(1)), any customer-derived levies (cl. 12(2)), exclusivity arrangements (cl. 12(3)), and systematically review overhead cost components such as fuel (cl. 12(4)). In the forestry context, fuel component adjustments must be at least every six months or triggered by a 10% fuel increase or a 1% operating-cost increase since the last adjustment (cl. 27).

Payment terms and timeframes (Sch.1 Pt 2 cl. 14)

Guidance and restatement of s 24A: Hirers must pay contractors within 30 days of receiving an invoice unless a different payment period has been agreed that is not unfair or there is a genuine dispute over the amount payable (cl. 14). Repeated delayed payments, partial payments, or non-payment may also amount to unconscionable conduct.

Deductions, insurance and required statements (Sch.1 Pt 3 cl. 15-16)

Mandatory Requirement: If a hirer makes deductions from invoiced fees for services or equipment provided by the hirer or another person, the hirer must provide a written statement detailing the nature of the equipment or service and the amount deducted (cl. 15(5)). Deductions must be specified in the contract and reflect the actual cost (cl. 15(1)). Where insurance deductions are proposed, the hirer must have an insurance policy in force and provide a copy to the contractor (cl. 15(3) referencing s 23 of the Act). Clause 16 gives guidance on technology/equipment deductions: if a hirer charges for equipment that confers no benefit to the contractor, the term is likely unjust under s 44(1)(g).

Prohibition on penalty payments (Sch.1 Pt 3 cl. 17)

Mandatory Requirement: Hirers must not require contractors to make payments that are a penalty, i.e. payments in excess of amounts necessary to remedy actual loss or damage. Example 17 illustrates an excessive late-delivery charge.

Allocation of work and working arrangements (Sch.1 Pt 4 cl. 18-19)

Guidance and Best Practice: Hirers should plan fleets to match workloads and allocate work fairly. Contracts should take account of safe hours and reasonable rest; parties should structure hours to allow recovery and community participation (cl. 19). Unjust allocation practices may amount to unconscionable conduct or breach s 61 of the Act.

Absences and replacement drivers (Sch.1 Pt 4 cl. 20)

Mandatory Requirement: Hirers must not terminate a contract only because of temporary absence for illness or family responsibility without first allowing a reasonable period for the contractor to provide a suitable replacement driver (cl. 20(3)-(4)). Hirers may impose reasonable requirements about qualifications of replacement drivers.

Forestry-specific duties (Sch.1 Pt 5 cl. 21-27)

Forestry contractors and hirers receive sector-specific guidance: disclosure of coupe conditions and harvest plans (cl. 23-24), examples of misleading volume representations (cl. 25), benchmark rate-setting guidance (cl. 26) and a specific rate-review cadence for fuel (cl. 27).

Record-keeping obligations (Sch.1 Pt 6 cl. 28, as inserted by S.R. No. 4/2021)

Mandatory Requirements: Hirers and freight brokers must keep specified records relating to each engagement and provide them to authorised officers on request, subject to s 60I of the Act. The listed items include copies of regulated contracts, contractor contact details, engagement dates, tender records, periods of engagement, dates when information booklets or rate schedules were given (and signed acknowledgements where handed over), termination dates and payment-in-lieu details (cl. 28(1)-(2)).

Enforcement rights and remedies

Contractors can notify a dispute to the Small Business Commission under Part 5 of the Act and, if mediation fails, can refer matters to the Tribunal (Sch.1 Pt 2 cl. 8(1)). The Code notes that terms contrary to the Act or Code are void to the extent of inconsistency (s 65 reference at Sch.1 Pt 2 cl. 6(1)). Regulation 8 and Schedule 2 enable infringement notices for specific breaches of the Act (reg 8; Sch. 2).

Together, these duties and rights create a regulatory baseline: parties can contract freely subject to mandatory ceilings on unfair deductions, opportunistic exclusions, penalties and misleading conduct; hirers must also maintain documentary evidence sufficient to demonstrate compliance on request by authorised officers.

The Regulations create and link multiple enforcement channels: infringement notices under the Act, remedies via the Small Business Commission and Tribunal under Part 5, and criminal or administrative offences connected to Part 7A inspection powers and production requirements. The Code and the Regulations set out both administrative (document and record production) and civil penalty mechanisms (infringement notices).

Infringement offences and penalties (regulation 8 and Schedule 2)

Regulation 8(1) prescribes specific offences under the Act as infringement offences for the purposes of s 60N(1) of the Act. Regulation 8(2) sets the prescribed infringement penalty for each infringement offence in Column 3 of Schedule 2.
Schedule 2 lists twelve items, each an offence under a particular section of the Act (Column 2). Examples include offences against s 10(1), s 10(2), s 11A(1), s 11A(2), s 12(2), s 16(1), s 16(2), s 16A(1), s 16A(2), s 17(2), s 20(2), and s 22A of the Act. For each listed offence Polygon, the infringement penalty is 5 penalty units if the offender is a body corporate and 1 penalty unit otherwise (Schedule 2 Column 3 for each item).
The Regulations thus provide an administrative enforcement tool for particular Act offences, enabling authorised officers or regulators to issue infringement notices rather than pursuing prosecutions or Tribunal proceedings for some breaches. Regulation 8 was inserted by the 2021 amendment (S.R. No. 4/2021 reg. 6).

Tribunal and Small Business Commission dispute resolution (Sch.1 Pt 2 cl. 8)

Schedule 1 recalls Part 5 of the Act which supplies a process for dispute resolution between hirers and contractors, including mediation by the Small Business Commission and referral to the Tribunal for determination if mediation does not resolve the dispute (Sch.1 Pt 2 cl. 8(1)). The Code also contains a Mandatory Requirement that a party must not insist on exhaustion of any agreed process before notifying a dispute to the Small Business Commission (Sch.1 Pt 2 cl. 8(2) Mandatory Requirement). The small business dispute pathway is therefore an express statutory remedy for statutory breaches or conduct captured by the Act and the Code.

Void terms and contractual invalidity (s 65 of the Act as noted in the Code)

The Code notes (Sch.1 Pt 2 cl. 6(1)) that a contractual provision is void to the extent it is contrary to the Act or the Code. This creates a private-law remedial effect: offending contract terms will not be enforceable to the extent inconsistent with the Act or Code.

Offences connected to inspection and false information (Sch.1 Pt 6 cl. 28)

Sch.1 Pt 6 cl. 28 describes Part 7A of the Act which authorises appointment of authorised officers with powers to enter premises (with consent), require information or documents, and to investigate compliance. It states that 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, and it is an offence to knowingly produce false or misleading documents without indicating the respects in which they are false or misleading. These are enforcement tools that support both administrative investigations and the integrity of evidence provided to authorised officers.

Interaction of civil and administrative channels

The Regulations operate alongside the Act’s dispute resolution and Tribunal enforcement; an infringement notice does not preclude Tribunal actions where appropriate. The Code’s mandatory and guidance provisions feed into unconscionability and unjust terms analyses under ss 31-32 and s 44 of the Act; these statutory causes of action are primarily adjudicated in the Tribunal following a dispute notification (Sch.1 Pt 2 cl. 8(1)). The Regulations therefore create low-cost administrative penalties for specific breaches (Schedule 2) while preserving dispute and adjudicative routes for remedying contractual and conduct disputes.

Scope and proportionality of penalties

The prescribed infringement penalties are expressed in penalty units rather than fixed dollar amounts in the Regulations. Schedule 2 consistently prescribes 5 penalty units for corporate offenders and 1 penalty unit for individuals. The Regulations do not state the monetary value of a penalty unit; that is established by broader statutory instruments and not in the text provided. The small quantum in unit terms (1 or 5 units) indicates the Legislature’s intention to provide relatively modest infringement options for certain breaches rather than large pecuniary sanctions in the Regulations themselves.

Enforcement discretion and implementation risk

The Code anticipates administrative enforcement (authorised officers) and private dispute resolution (Small Business Commission and Tribunal). Enforcement discretion will therefore fall to authorised officers (in investigations and issuing infringement notices), to the Small Business Commission in mediation, and to the Tribunal in adjudicative determinations. The Code and Regulations do not set out detailed procedural rules for authorised officer investigations (those are in Part 7A of the Act), but they do make compliance with record requests a mandatory prerequisite to cooperative enforcement.

In summary, enforcement under the Regulations combines administrative infringement notices for a fixed list of Act offences, contractual invalidity for clauses inconsistent with the Act or Code, Part 5 dispute resolution and Tribunal remedying of unconscionable conduct or unjust contract terms, and crimes or offences for failure to comply with authorised officer information notices.

The Regulations are made under sections 27 and 66 of the Owner Drivers and Forestry Contractors Act 2005 (regulation 2). They operate as subordinate legislation to that Act and interact with other statutory instruments and general legal principles in several concrete ways.

Relationship with the Owner Drivers and Forestry Contractors Act 2005

Enabling and integration. Regulation 7 prescribes Schedule 1 as the code for the purposes of Part 3 of the Act. The Code repeatedly cites statutory tests from the Act: unconscionable conduct under sections 31 and 32, unjust contract terms under section 44(1)(g) and s 44(2), the Small Business Commission dispute pathway under Part 5 (Sch.1 Pt 2 cl. 8), appointment and powers of authorised officers under Part 7A (Sch.1 Pt 6 cl. 28). The Regulations therefore operationalise duties and processes contained in the Act; they do not create independent causes of action but rather clarify and provide guidance on the Act’s statutory standards. The Schedule also explicitly notes that terms contrary to the Act or the Code are void to the extent of inconsistency (Sch.1 Pt 2 cl. 6(1) referencing s 65 of the Act).

Interaction with Corporations law and insurance regulation

Insurance deductions. The Code warns that strict requirements under the Corporations Act govern who may offer insurance policies and that a hirer must hold a policy and provide a copy to the contractor before making deductions for insurance (Sch.1 Pt 3 cl. 15(3) and (4)). This means that if a hirer purports to provide an insurance product to contractors (for example as a self-insured pooled scheme), the hirer’s ability to do so will be subject to Corporations Act restrictions on the conduct of insurance and representation, and those rules must be observed before a deduction is lawful under the Act and Code.

Interaction with general consumer and small-business law

Misleading and deceptive conduct. The Code requires hirers to avoid misleading and deceptive representations in recruitment advertising and during negotiations (Sch.1 Pt 2 cl. 9). That requirement operates alongside general prohibitions on misleading conduct under consumer protection statutes and general law. While the Code targets hirer-contractor relations specifically, misleading representations could also attract remedies under other statutes or common law.

Administrative law and authorised officer functions

The record-keeping and production obligations (Sch.1 Pt 6 cl. 28) are linked to Part 7A of the Act, which supplies powers for authorised officers to inspect, require documents and enter premises. Those powers will interact with administrative law constraints - for example, lawful exercise of powers, notice and procedural fairness in investigations - though procedural detail resides in the Act itself.

Contract law , void and severable provisions

Section 65 of the Act (not reproduced here but referenced at Sch.1 Pt 2 cl. 6) declares that contract provisions contrary to the Act or the Code are void to the extent of inconsistency. This interacts with general contract law principles on severability and enforceability: when a term is void under s 65 it remains unenforceable, but the remainder of the contract may stand unless the void term renders the contractual whole unworkable. The Code repeatedly warns that terms inconsistent with the Act are likely to be void; examples and guidance provide practical indicators for contract drafters and courts/Tribunal.

Transport, workplace health and safety and driving-hours regulation

The Code directs parties to ensure contracts comply with applicable laws on driving hours and fatigue management (Sch.1 Pt 4 cl. 19(a)). That ties contractor working arrangements to occupational health and safety legislation, transport regulations and chain-of-responsibility rules that are external to the Act. The Code’s emphasis on safe hours therefore requires hirers and contractors to structure contracts consistent with other statutory regimes.

Subordinate legislation interface and sunset

The Regulations revoke the 2006 Regulations (regulation 4) and, per the Endnotes, will sunset 10 years after making under the Subordinate Legislation Act 1994 (Endnote 1). This means that the Regulations operate in a dynamic statutory environment and should be read with an eye to future legislative review or remaking.

Interpretation and evidential status of examples and notes

The Endnotes and the Interpretation of Legislation Act 1984 references in the instrument explain that headings, examples and notes form part of the Statutory Rule and therefore assist in statutory interpretation (Endnotes 1 and relevant interpretation commentary). Practitioners should therefore treat examples in Schedule 1 as part of the instrument and not merely extraneous commentary.

In short, the Regulations are designed to be read and enforced in conjunction with the Owner Drivers and Forestry Contractors Act 2005 and other applicable statutory regimes (insurance and Corporations law, transport safety law and administrative law). The Code provides normative clarity on how the Act’s unconscionability and unjust terms provisions are to be applied in the owner-driver and forestry contracting context, while record-keeping, inspection and infringement provisions invoke administrative enforcement.

The text provided incorporates amendments through to 1 March 2021. The Regulations were made on 10 October 2017 and commenced on 21 October 2017 (regulation 3; Endnote 1). The instrument replaced the Owner Drivers and Forestry Contractors Regulations 2006 by way of regulation 4 (revocation).

Material amendments to note:

Owner Drivers and Forestry Contractors Amendment Regulations 2021 (S.R. No. 4/2021)

Made 2 February 2021 and commenced 1 March 2021 (Endnotes: Table of Amendments). The 2021 amendment package effected a number of substantive and drafting changes across the Regulations and the Code. Key changes effected by S.R. No. 4/2021 include:
- Substitution or amendment of Reg. 1 (Objectives) by S.R. No. 4/2021 reg. 5.
- Insertion of regulation 8 prescribing infringement offences and penalties (S.R. No. 4/2021 reg. 6).
- Alteration and expansion of examples and certain guidance passages in the Code (multiple clauses bear notes “amended by S.R. No. 4/2021 reg. 7(...)” in the Schedule), updating the fact scenarios and illustrative guidance.
- Amendments to clauses addressing negotiating agents and negotiation recognition (Sch.1 Pt 2 cl. 5 updated by S.R. No. 4/2021 reg. 9(1)(2)).
- Substitution of cl. 8(2)(h) to expand best practice dispute-resolution guidance (S.R. No. 4/2021 reg. 11(3)).
- Insertion of Part 6 , Record keeping requirements (Sch.1 Pt 6 cl. 28) and corresponding obligations on hirers and freight brokers (S.R. No. 4/2021 reg. 14).
- Insertion of Schedule 2 (Infringement offences and infringement penalties) (S.R. No. 4/2021 reg. 15).
- Miscellaneous editorial and cross-referencing amendments, including changing examples to reflect contemporary concerns and clarifying records and evidence expectations.

Original instrument and earlier revocation

The Regulations revoke the 2006 Regulations (reg. 4). The Endnotes indicate S.R. No. 153/2006 as extended by S.R. No. 124/2016 and now revoked and replaced by the 2017 Regulations. The 2017 instrument therefore establishes the present Code and regulatory machinery.

Sunset and further review

Endnote 1 notes that the Regulations will sunset 10 years after making on 10 October 2027 under the Subordinate Legislation Act 1994. Remaking or review prior to that date is possible.

Incorporated notes and interpretative rules

The Endnotes and interpretative provisions note that headings, examples, diagrams and notes are part of the Statutory Rule (Interpretation of Legislation Act 1984 references included in the Endnotes). That affects the legal weight of Schedule 1 examples and notes post-amendment.

Practical import of amendments

The 2021 amendments added explicit infringement penalty machinery (reg 8 and Sch. 2), strengthened record-keeping and disclosure obligations (Sch.1 Pt 6 cl. 28), clarified negotiating agent matters, and updated many of the Code’s examples and guidance points to reflect more contemporary market arrangements. For compliance officers and counsel, the 2021 changes increase the administrative compliance burden (document retention and readiness to produce records), establish a predictable infringement penalty schedule for certain contraventions, and realign negotiation and disclosure expectations. Practitioners must incorporate the new record-keeping list into internal compliance checklists and adjust contract templates (for deductions, insurance, vehicle upgrades, and dispute clauses) to reflect the Code’s mandatory and guidance provisions as amended.

This is the amendment history as recorded in the instrument itself; the Regulations do not recount any earlier repeals or supervening Acts beyond the 2006 revocation and the 2021 amendments set out in the Endnotes table.

The Regulations themselves do not contain any judicial decisions or recorded litigation history. The instrument cites statutory dispute pathways and enforcement mechanisms; actual litigation or Tribunal determinations are not included in the text. Where practitioners seek precedential decisions or examples of adjudication under the Act, those will need to be sourced from Tribunal and court records rather than from the Regulations.

What the instrument does show about dispute and enforcement pathways

Dispute route: Schedule 1 expressly points parties to Part 5 of the Act for dispute resolution, including mediation via the Small Business Commission and referral to the Tribunal for determination where mediation does not resolve issues (Sch.1 Pt 2 cl. 8(1)). The Code contains multiple examples that suggest parties may notify disputes to the Small Business Commission where conduct is likely unconscionable or where contract terms are likely unjust (examples throughout Sch.1).
Tribunal jurisdiction: The instrument authorises parties to proceed to the Tribunal if mediation fails. It also notes that in urgent circumstances a party could seek an urgent injunction in the Tribunal (Example 4.3).
Contractual invalidity: The Code references s 65 of the Act, which declares contract provisions void to the extent they are contrary to the Act or the Code. This is an internal statutory remedy and a likely basis for litigation or Tribunal claims where parties allege contract terms are inconsistent with the Act.

Absence of litigation history in the Regulations

The Regulations do not list any Tribunal decisions, court judgments or enforcement outcomes. They provide the legal framework for enforcement and dispute resolution but are silent on post-enforcement outcomes or judicial interpretations. Practitioners should therefore look to Small Business Commission and Victorian Civil and Administrative Tribunal (or equivalent tribunal) records and decisions for litigation history and precedents on the application of ss 31-32 (unconscionability) and s 44 (unjust contract terms) in the owner-driver and forestry context.

Practical implications for litigators and compliance teams

Because the Code contains detailed examples and "Guidance" that form part of the statutory instrument, litigants and adjudicators may rely on those examples when arguing whether conduct was unconscionable or a contract term unjust. The Code’s specific mandatory duties (for instance, the obligation not to insist on exhausting internal agreed processes before referring to the Small Business Commission, Sch.1 Pt 2 cl. 8(2) Mandatory Requirement) produce clear causes of action or enforcement triggers that will likely be decisive in many disputes.

In sum, there is no litigation history contained in the Regulations text; the Act’s Part 5 and the Code provide the procedural routes for disputes to be resolved and any litigation history arising from those routes will be recorded outside this instrument.

This section pulls together asymmetries, practical traps and operational pitfalls a practitioner or compliance officer should be alert to. Each item is grounded in the Regulations or Schedule 1 clauses as cited.

Contractor-definition cliff edge (regulation 6; Sch.1 Pt 1 cl. 2 note)

The Regulations exclude businesses transporting goods (other than forest products) using four or more supplied vehicles from the contractor category. That creates a bright numerical threshold: up to three vehicles = contractor (within Act protections); four+ vehicles = not a contractor (outside Act protections). Practical pitfall: hiring arrangements that mix vehicles or use leased vehicles may change a party’s status. Parties that fall near the threshold should document fleet composition and consider how vehicle supply arrangements (who supplies, who operates) affect contractor status. The Regulations do not address corporate structuring; splitting fleets across legal entities may change coverage but could raise other legal or fiscal issues.

Mandatory vs guidance language , do not assume all guidance is discretionary

The Code contains both "Mandatory Requirement" headings and extensive "Guidance" and "Best Practice" language. Examples and guidance are part of the statutory Rule and inform the Act’s statutory tests, but only clauses headed "Mandatory Requirement" are express obligations in the Code. Practitioners must map obligations to those headings and to the Act’s provisions (e.g. s 24A on payment timing, s 24 on deductions). Treat guidance as authoritative interpretative material, not optional mere commentary.

Record-keeping obligations and authorised officer production (Sch.1 Pt 6 cl. 28)

The 2021 amendment imposes a specific, enumerated record-keeping duty on hirers and freight brokers and requires production to authorised officers on request, subject to s 60I. Failure to keep or produce the specified records is an evidential and potentially criminal risk if investigated under Part 7A. Practical trap: many small hirers may not have systems to produce signed acknowledgements for information booklets or rate schedules; absence of such proofs may make it harder to demonstrate compliance during an authorised officer inspection or mediation/Tribunal proceedings.

Deductions and insurance rules (Sch.1 Pt 3 cl. 15)

Deductions must be specified in the contract and reflect actual costs. Insurance deductions require an insurance policy in force and a copy provided to the contractor (cl. 15(3)). A hirer that simply deducts an "insurance fee" without a policy and without providing a copy risks breaching s 23 and cl. 15. Example 15 demonstrates this problem. Practical trap: treating bundled or pooled insurance schemes as docketed deductions without adhering to Corporations Act requirements is a risky practice.

Payment terms default and invoice timing (Sch.1 Pt 2 cl. 14)

Default 30-day payment period under s 24A as explained in the Code. Contracts that are silent or that unreasonably extend payment terms beyond 30 days are likely unenforceable or construed as unjust under s 44(1)(g). Frequent late payments risk claims of unconscionable conduct. Businesses that regularly pay at 60 or 90 days should amend processes or ensure express, fair contractual agreement.

Insistence on exhausting internal dispute resolution (Sch.1 Pt 2 cl. 8 Mandatory Requirement)

A party must not require another to exhaust any agreed dispute resolution process before notifying the Small Business Commission. Employers or hirers should not insert a clause that forces exhaustion prior to SBC notification. This is a discrete mandatory prohibition that can be an easy drafting error.

Misleading earnings claims and advertising (Sch.1 Pt 2 cl. 9)

Advertisements promising specific earnings without plausible basis are a breach. The Code expects hirers to indicate whether figures are gross or net. Misstatements about minimum hours or earnings can be a source of disputes and SBC complaints.

Vehicle upgrade commitments and pre-purchase documentation (Sch.1 Pt 2 cl. 10)

If a hirer requires a contractor to buy or upgrade equipment, the hirer must negotiate variations and provide written terms before the contractor buys. Requiring investment first and promising later terms is a risky practice that the Code treats as likely to be unfair.

Exclusivity and livery issues (Sch.1 Pt 2 cl. 12(3))

Where contractors are effectively exclusive (e.g., vehicle painted in hirer livery or forbidden from working for others), hirers should compensate on the basis that contractor receives no other income to cover fixed overheads. Failure to do so is likely to result in unfair terms claims.

Fuel and rate-review mechanics (Sch.1 Pt 2 cl. 12(4), Pt 5 cl. 27)

The Code expects either systematic reviews or an express fuel component tied to a legitimate fuel price monitoring source, and forestry clauses specify six-month or triggered review mechanisms. Pitfalls include locking contractors into long fixed-rates without review mechanisms and not passing customer levies (e.g. fuel surcharge) through to contractors in proportionate manner.

Penalty clauses and late-payment surcharges (Sch.1 Pt 3 cl. 17)

Clauses described as penalties (for example, fixed late fees that exceed actual loss) are expressly prohibited. Drafting a punitive flat charge for late delivery may be unenforceable and provide grounds for dispute.

Infringement penalty list (reg 8 & Sch. 2) , small unit quantum but reputational cost

Schedule 2 prescribes 1 penalty unit for individuals and 5 for bodies corporate across a number of Act sections. While monetary quantum appears modest in unit terms, infringement notices create administrative action, possible escalation to Tribunal matters, and regulatory scrutiny. Ensure that processes are in place to avoid conduct listed in Schedule 2.

Examples form part of the rule

The Endnotes and Interpretative notes confirm that examples and notes form part of the Statutory Rule. Practitioners should therefore treat the illustrative examples in Schedule 1 as having interpretative significance when advising on likely outcomes in disputes.

Overall, the principal gotchas are numerical thresholds (4+ vehicles), mandatory written processes prior to equipment upgrades or deductions, strict record-keeping and production obligations following the 2021 amendment, and the interplay between guidance examples and enforceable statutory tests.

This checklist is a practical, clause-referenced compliance roadmap for hirers, freight brokers, and advisers. It sets out discrete actions tied to the relevant Regulations and Code clauses.

Confirm contractor status and document fleet composition (regulation 6; Sch.1 Pt 1 cl. 2 note)

Action: Maintain a current register of each contractor’s fleet , number of vehicles supplied by the contractor and the arrangement under which vehicles are supplied and operated. If a contractor supplies four or more vehicles for transport of goods other than forest products, the contractor falls outside the Act’s contractor definition (reg 6). Document any leasing, loan or service arrangements that would affect this count. Where status is borderline, keep contemporaneous records of supply and operation to demonstrate the correct status.

Update contract templates to remove unlawful exclusions and penalty clauses (Sch.1 Pt 2 cl. 6; Sch.1 Pt 3 cl. 17)

Action: Do not include clauses that purport to exclude rights under the Act or the Code. Remove or redraft any clause that requires contractors to waive statutory rights. Remove or replace any flat "penalty" clause (e.g. fixed late fees) with liquidated damages calibrated to actual expected loss or, preferably, a contractual obligation to remedy actual loss consistent with cl. 17.

Deductions, service charges and insurance (Sch.1 Pt 3 cl. 15-16)

Action: Ensure all deductions are explicitly listed in the contract and are a direct and proper reflection of the actual cost of services/equipment. Before deducting for insurance, ensure a policy is in force and provide a copy to the contractor as required by s 23 (cited in cl. 15(3)). Where technology or equipment is charged for, ensure the contractor receives a real commercial benefit or the rates are adjusted to accommodate any charge.

Payment timing and invoice processing (Sch.1 Pt 2 cl. 14; s 24A of the Act)

Action: Default to paying contractors within 30 days of receipt of an invoice unless a different period is agreed that is not unfair or a bona fide dispute exists. Update accounts-payable systems to track invoice receipt dates and to produce proof of on-time payments. For long-term service arrangements, consider including periodic review clauses and finance modelling to avoid systemic late payments.

Negotiation and disclosure processes (Sch.1 Pt 2 cl. 4-7; cl. 5 best practice)

Action: Adopt standard negotiation protocols ensuring reasonable opportunity to consider contract terms and seek advice. If appointing negotiating agents (s 25-26), document agency appointments and ensure that negotiated terms offered by the agent can be made available to contractors who did not appoint an agent (cl. 5(d) inserted by SR No. 4/2021). Where contractors are known to have language or literacy limitations, provide translations or extended time as a matter of best practice.

Vehicle upgrades and pre-commitment written offers (Sch.1 Pt 2 cl. 10)

Action: Before requiring or requesting a contractor to acquire a new vehicle or equipment, enter written negotiations and set out in writing the terms (including any cost-sharing, minimum engagement term, security arrangements, and expected rates) that will apply if the contractor proceeds (cl. 10(2)-(4)). Provide specifications in writing and do not pressure contractors to purchase before written terms are finalized.

Rate-setting and periodic reviews (Sch.1 Pt 2 cl. 11-12; Pt 5 cl. 27 for forestry)

Action: Prepare rate schedules that explicitly account for (i) efficient fixed and variable operating costs, (ii) a fair return for labour, and (iii) a return on capital. For fuel, consider a transparent fuel component tied to a legitimate monitoring source and a systematic review timetable , monthly adjustment for fuel is suggested as a practice unlikely to be unconscionable for owner drivers (cl. 12(4) guidance) and a minimum six-month or trigger-based review is recommended for forestry contractors (cl. 27). Keep documentary evidence of how rates were calculated (benchmark models, efficiency assumptions) to justify rates if challenged.

Allocation of work and rostering (Sch.1 Pt 4 cl. 18-19)

Action: Design fair allocation procedures and fleet planning protocols. Document allocation criteria and rosters to show equitable planning and that the hirer has considered contractors’ availability, safe hours, and welfare. Maintain evidence of attempts to match workloads to fleet capacity.

Absences and replacement drivers (Sch.1 Pt 4 cl. 20)

Action: Do not terminate a contract solely because the contractor is temporarily absent for illness or family responsibility without first allowing a reasonable time for the contractor to provide a suitably qualified replacement driver. Define what constitutes reasonable time in the context of the contract and the nature of the services; document communications regarding replacements.

Advertising and recruitment statements (Sch.1 Pt 2 cl. 9)

Action: Ensure recruitment advertisements accurately state likely earnings, whether figures are gross or net, and the duration and conditions of any guaranteed minimums. Keep records supporting any earnings claims and clear statements about average earnings if made.

Records and authorised officer requests (Sch.1 Pt 6 cl. 28)

Action: Establish a record-keeping system that retains for each engagement:
- copies of any regulated contracts;
- contractor name and contact details;
- engagement start date and period;
- tender submission and acceptance dates (if tendered);
- dates when information booklets or rates and costs schedules were given and any signed receipts for hand delivery;
- dates and amounts of payment in lieu of notice if provided;
- termination dates. Freight brokers must keep analogous records for engagements they procure (Sch.1 Pt 6 cl. 28(2)). Ensure readiness to produce these records to authorised officers subject to section 60I of the Act.

Response to authorised officers and investigations (Sch.1 Pt 6 cl. 28)

Action: Adopt protocols for responding to authorised officer requests, including a designated point of contact, an evidence bundle for each inquiry, and a legal review before production of any sensitive material. Remember that failing to comply with a production notice or providing false/misleading documents can be an offence under the Act.

Contract drafting , avoid inconsistent clauses (Sch.1 Pt 2 cl. 6; note s 65)

Action: Remove or revise contract terms inconsistent with Act protections: deduction clauses must be specific and tied to cost; dispute clause must not require exhaustion of internal steps before SBC notification; payment terms must not be unfairly long.

Training and internal policies

Action: Train commercial teams, procurement officers, HR and finance staff on the Code’s mandatory and guidance provisions. Update procurement checklists to include requirements for pre-purchase written terms for vehicle upgrades, evidence standards for advertising claims, and record-keeping items.

Monitor legislative change

Action: The Regulations will sunset under the Subordinate Legislation Act 1994 ten years after making. Maintain legislative-watch routines for any further amendments or remaking (Endnote 1). Also track Tribunal and SBC decisions applying the Code, as examples in the Schedule are part of the statutory text and likely to be influential in disputes.

This compliance checklist ties directly to the Regulations and Schedule 1 clauses. Practical compliance requires both process and documentary evidence: negotiation records, written offers for equipment upgrades, signed acknowledgements of information booklets, and electronic accounting trails showing invoice receipt and payment within 30 days (or a recorded, fair alternative period).

Owner Drivers and Forestry Contractors Regulations 2017

Plain English Summary

Deep Dive

What it does

Current sections

Owner Drivers and Forestry Contractors Regulations 2017

Source text: opening excerpt

1 Owner Drivers and Forestry Contractors Regulations 2017

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply