Owner-Drivers (Contracts and Disputes) Act 2007 (Western Australia)

Mechanically, the Owner-Drivers (Contracts and Disputes) Act 2007 (WA) sets a statutory framework that (a) invalidates or modifies certain contract terms between hirers and owner‑drivers, (b) implies minimum procedural and payment terms into owner‑driver contracts where those matters are absent or contrary to the Act, (c) creates two institutional bodies , the Road Freight Transport Industry Council (the Council) and the Industrial Relations Commission sitting as the Road Freight Transport Industry Tribunal (the Tribunal) , and (d) establishes inspection, entry and enforcement powers (including civil penalties and Tribunal remedies) to regulate the commercial relationship in the road freight transport sector. See s 7 (parsing of inconsistent contract terms), Part 2 (prohibited provisions, implied provisions and Schedule 1), Part 3 (Council, ss 17-25), Part 9 (Tribunal, ss 37-51) and Parts 7-8 (inspectors, authorised representatives, rights of entry and access to records).

The Act directly alters contracting mechanics between hirers and owner‑drivers in several specified ways. It voids contingency terms that make payment to an owner‑driver conditional on payment being received by the hirer (so‑called pay‑if‑paid or when‑paid clauses) , s 9. It caps required payment timing so that a payment provision that would require payment more than 30 days after a payment claim is read down to require payment within 30 days , s 10. It imposes minimum notice periods for termination (a statutory default minimum notice period defined in s 3 and applied by Schedule 1 Division 4, and s 10A which voids contract terms that allow less than the minimum notice period). It implies a set of payment‑claim and interest rules where contracts are silent (Schedule 1 Divisions 1-3; applied via ss 13-15). It also supplies statutory protection against contract terms that purport to exclude the Act (s 7).

CrestWestern Australia

Owner-Drivers (Contracts and Disputes) Act 2007

Western Australia

Owner-Drivers (Contracts and Disputes) Act 2007

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Term used: owner-driver 4
Term used: owner‑driver contract 5
Application of Act 5
Act prevails over owner‑driver contracts 6
Act binds Crown 7

Part 2 — Content of owner‑driver contracts

Division 1 — Prohibited provisions

Prohibited: pay if paid/when paid provisions 8
Prohibited: provisions requiring payment to be made after 30 days 8

10A. Prohibited: provisions allowing less than minimum notice period 8

Prohibited: prescribed provisions 8
Other provisions of contract not affected 8

Division 2 — Implied provisions

Time for payment 9
Interest on overdue payments 9
Making payment claims 9

15A. Minimum period of notice for terminating contract 9

Interpretation of implied provisions 9

Part 3 — Road Freight Transport Industry Council

Road Freight Transport Industry Council established 10
Membership of Council 10
Functions 11
Powers 11
Minister may give directions 11
Minister to have access to information 12
Constitution and proceedings of Council 12
Remuneration and allowances 12
Department to provide support services to Council 13

Part 4 — Code of conduct

Regulations may prescribe code of conduct 14
Content of code of conduct 14

Part 5 — Negotiations for owner‑driver contracts

Negotiating agents for owner‑drivers 17
Negotiating agents for hirers 17

Part 6 — Unconscionable conduct

Unconscionable conduct by hirers 19
Unconscionable conduct by owner‑drivers 20

31A. Unfair terms 22

Part 6A — Misleading or deceptive conduct

31B. Misleading or deceptive conduct by hirer 24

31C. Misleading or deceptive conduct by owner‑driver 24

Part 6B — Discrimination

31D. Discrimination against owner‑driver 25

Part 7 — Inspectors

Functions of inspectors 27
Obstructing or hindering inspector 27

Part 8 — Rights of entry, inspection and access to records

Division 1 — Preliminary

33A. Term used: record 28

Division 2 — Access to records

Access to and inspection of records 28

Division 3 — Authorised representative’s right of entry to conduct investigation

34A. Terms used 29

34B. Authorised representative 30

34C. Authorised representative who ceases to hold authority or entry permit 31

34D. Revocation or suspension of authority 31

34E. Written authority of owner‑driver required 32

Authorised representative’s right of entry 33

35A. Authority must be shown on request 33

35B. Conduct in workplace 33

35C. Authorised representative’s powers relating to production and inspection of records or other documents 34

Prohibiting obstruction or delay of exercise of power 35

Part 9 — Road Freight Transport Industry Tribunal

Terms used 36
Industrial Relations Commission sitting as the Road Freight Transport Industry Tribunal 36

38A. Tribunal’s power to make summary determination 37

38B. Tribunal’s power to make default determination 38

Jurisdiction to be exercised by Commissioner with necessary qualifications 39
Persons who may refer disputes and matters to the Tribunal 39
Intervention in proceeding 40

41A. When referral not required 40

Representation 41
Applied provisions: practice, procedure and appeals 41
Conciliation 42
Compulsory attendance at conciliation 43
Enforcement for the purposes of sections 44 and 45 44
Determination of dispute where no resolution by conciliation 45

47A. Remedies that may be given 45

Order to prevent entering into of owner‑driver contracts 46
Other jurisdictions 47
Enforcement of monetary order 48
Enforcement of order other than conciliation or monetary order 49

Part 10 — Miscellaneous

Trade Practices Act and Competition Code 50
Confidentiality 51
Laying documents before Parliament 51
Protection from liability 52
Protection for compliance with this Act 52
Regulations 52
Review of Act 53

Part 11 — Transitional provisions

Notice of termination before commencement day 54

Schedule 1 — Implied provisions

Division 1 — Responding to claims for payment

Responding to a payment claim 55

Division 2 — Interest on overdue amounts

Interest payable on overdue amounts 55

Division 3 — Making claims for payment

Content of claim for payment 55

Division 4 — Termination of contract

Notice of termination 56
Payment in lieu of notice 56

Schedule 2 — Constitution and proceedings of Council

Division 1 — General provisions

Term of office 58
Chairman and deputy chairman 58
Resignation, removal, etc. 58
Leave of absence 59
Council member unable to act 59
Savings 59
Calling of meetings 60
Presiding officer 60
Quorum 60
Voting 60
Minutes 60
Resolution without meeting 60
Holding meetings remotely 61
Committees 61
Council to determine own procedures 61

Division 2 — Disclosure of interests etc.

Disclosure of interests 61
Voting by interested members 62
Clause 17 may be declared inapplicable 62
Quorum where clause 17 applies 62
Minister may declare clauses 17 and 19 inapplicable 63

Notes

Compilation table 64

Other notes 65

Defined terms

Western Australia

Owner-Drivers (Contracts and Disputes) Act 2007

An Act —

to promote a safe and sustainable road freight transport industry by regulating the relationship between persons who enter into contracts to transport goods in heavy vehicles and persons who hire them to do so; and
to establish the Road Freight Transport Industry Tribunal and the Road Freight Transport Industry Council,

and for related purposes.

Part 1 — Preliminary

1. Short title

This is the Owner-Drivers (Contracts and Disputes) Act 2007.

2. Commencement

(1) This Act comes into operation on a day fixed by proclamation.

(2) Different days may be fixed under subsection (1) for different provisions.

Note for this section:

Under section 22 of the Interpretation Act 1984, this section and section 1 come into operation on the day on which this Act receives the Royal Assent.

3. Terms used

In this Act, unless the contrary intention appears —

code of conduct means the code of conduct made under Part 4;

Council means the Road Freight Transport Industry Council established by section 17;

Department means the department of the Public Service principally assisting in the administration of this Act;

goods includes freight and materials;

guideline rates means rates of payment published in accordance with section 27(1)(f);

heavy vehicle has the meaning given in the Road Traffic (Vehicles) Act 2012 section 3(1);

hirer means a person who engages an owner‑driver under an owner‑driver contract;

inspector means an Industrial Inspector as defined in the IR Act section 7;

IR Act means the Industrial Relations Act 1979;

minimum notice period, in relation to the termination of an owner‑driver contract, is —

(a) 90 days; or

(b) if the aggregate term of the original contract and any consecutive series of successive contracts between the same parties that contain substantially similar terms and conditions is less than 90 days — 7 days;

notice period, in relation to the termination of an owner‑driver contract, is the period —

(a) beginning on the day on which one party gives the other party written notice of termination of the contract; and

(b) ending on the day on which the termination of the contract is to take effect;

owner‑driver has the meaning given to that term in section 4;

owner‑driver contract has the meaning given to that term in section 5;

party, in relation to an owner‑driver contract, means a party to the contract;

payment claim means a claim made under an owner‑driver contract —

(a) by the owner‑driver to the hirer for payment of an amount in relation to the performance by the owner‑driver of the owner‑driver’s obligations under the contract; or

(b) by the hirer to the owner‑driver in relation to the performance or non‑performance by the owner‑driver of the owner‑driver’s obligations under the contract;

prescribed representative body means a body that —

(a) represents the interests of owner‑drivers or hirers; and

(b) is prescribed by the regulations for the purposes of this definition;

Registrar has the meaning given to that term by the IR Act section 7;

transport association means —

(a) a representative body prescribed by the regulations for the purpose of this definition; or

(b) the Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch;

Tribunal has the meaning given to that term in section 38(2);

workplace means a place, whether or not in a vehicle, building or other structure, where owner‑drivers or hirers work or are likely to be in the course of their work.

[Section 3 amended: No. 47 of 2011 s. 27; No. 8 of 2012 s. 151; No. 17 of 2014 s. 30; No. 36 of 2022 s. 4.]

4. Term used: owner-driver

(1) In this section —

listed public company has the same meaning as it has in the Income Tax Assessment Act 1997 of the Commonwealth;

officer, of a body corporate, has the same meaning as it has in the Corporations Act 2001 of the Commonwealth.

(2) For the purposes of this Act an owner‑driver is —

(a) a natural person —

(i) who carries on the business of transporting goods in one or more heavy vehicles supplied by that person; and

(ii) whose principal occupation is the operation of those vehicles (whether solely or with the use of other operators); or

(b) a body corporate (other than a listed public company) that carries on the business of transporting goods in one or more heavy vehicles that are —

(i) supplied by the body corporate or an officer of the body corporate; and

(ii) operated by an officer of the body corporate (whether solely or with the use of other operators) whose principal occupation is the operation of those vehicles; or

5. Term used: owner‑driver contract

(1) For the purposes of this Act, an owner‑driver contract is a contract (whether written or oral or partly written and partly oral) entered into in the course of business by an owner‑driver with another person for the transport of goods in a heavy vehicle by the owner‑driver.

(2) It does not matter that an owner‑driver contract provides for an owner‑driver to perform services other than transporting goods, as long as the services to be performed under the contract predominantly relate to the transport of goods.

(3) To avoid doubt, an owner‑driver contract does not include a contract that is a contract of employment.

6. Application of Act

(1) This Act applies to and in relation to owner‑drivers who are engaged —

(a) under an owner‑driver contract that is entered into in Western Australia or that is subject to the law of Western Australia; or

(b) to transport goods wholly within Western Australia; or

(c) to transport goods from Western Australia to another place, or from another place to Western Australia, if a substantial part of the services under the owner‑driver contract are performed in Western Australia.

(2) However, this Act does not apply in relation to an owner‑driver contract if the owner‑driver who is a party to the contract has the benefit of, or is otherwise covered by —

(a) a contract determination made under Chapter 6 of the Industrial Relations Act 1996 of New South Wales; or

(b) an order made under the Owner Drivers and Forestry Contractors Act 2005 of Victoria,

in relation to the contract.

7. Act prevails over owner‑driver contracts

(1) A provision in an agreement or arrangement in force on, or entered into after, the coming into operation of this section, whether an owner‑driver contract or not and whether in writing or not, that —

(a) purports to exclude, modify or restrict the operation of this Act or the code of conduct; or

(b) is contrary to or inconsistent with anything in this Act, the code of conduct or an order of the Tribunal,

has no effect.

(2) A provision in an agreement or arrangement that has no effect because of subsection (1) does not prejudice or affect the operation of other provisions of the agreement or arrangement.

(3) Any purported waiver, whether in an owner‑driver contract and whether in writing or not, of an entitlement under this Act has no effect.

(4) Despite subsection (1), during the 6 months beginning on and including the day on which this section comes into operation, a provision of an owner‑driver contract that is contrary to or inconsistent with a provision of this Act or the code of conduct prevails to the extent of the inconsistency.

8. Act binds Crown

This Act binds the Crown in right of the State and, so far as the legislative power of Parliament permits, in all its other capacities.

Part 2 — Content of owner‑driver contracts

Division 1 — Prohibited provisions

9. Prohibited: pay if paid/when paid provisions

A provision in an owner‑driver contract has no effect if it purports to make the liability of a party (A) to pay money under the contract to another party contingent, whether directly or indirectly, on A being paid money by another person (whether or not a party).

10. Prohibited: provisions requiring payment to be made after 30 days

A provision in an owner‑driver contract that purports to require a payment to be made more than 30 days after a payment claim for the payment is made is to be read as being amended to require the payment to be made within 30 days after the claim is made.

10A. Prohibited: provisions allowing less than minimum notice period

A provision in an owner‑driver contract has no effect if it purports to allow a party to terminate the contract by giving notice of less than the minimum notice period.

[Section 10A inserted: No. 36 of 2022 s. 5.]

11. Prohibited: prescribed provisions

A provision in an owner‑driver contract has no effect if it is a provision that is prescribed by the regulations to be a prohibited provision.

12. Other provisions of contract not affected

A provision in an owner‑driver contract that has no effect because of section 9 or 11 or that is amended under section 10 does not prejudice or affect the operation of other provisions of the contract.

Division 2 — Implied provisions

13. Time for payment

The provisions in Schedule 1 Division 1 are implied in an owner‑driver contract that does not have a written provision about the time by when a payment must be made.

14. Interest on overdue payments

The provisions in Schedule 1 Division 2 are implied in an owner‑driver contract that does not have a written provision about interest to be paid on any payment that is not made within the time required by the contract.

15. Making payment claims

The provisions in Schedule 1 Division 3 are implied in an owner‑driver contract that does not have a written provision about how a party is to make a payment claim against another party.

15A. Minimum period of notice for terminating contract

The provisions in Schedule 1 Division 4 are implied in an owner‑driver contract that does not have a valid provision about the notice period required to be given to terminate the contract.

[Section 15A inserted: No. 36 of 2022 s. 6.]

16. Interpretation of implied provisions

Despite any provision in an owner‑driver contract to the contrary, the Interpretation Act 1984 and sections 3 to 5 of this Act apply to the interpretation of a provision that is implied in an owner‑driver contract under this Part.

Part 3 — Road Freight Transport Industry Council

17. Road Freight Transport Industry Council established

A body called the Road Freight Transport Industry Council is established.

18. Membership of Council

(1) The Council is to consist of not more than 8 persons appointed by the Minister, having regard to the experience, skills and qualifications that the Minister considers appropriate to enable Council members to make a contribution to the work of the Council.

(2) A Council member may be appointed on a full‑time or part‑time basis.

(3) The Minister shall seek nominations for appointments to the Council from —

(a) the chief executive officer of the Department; and

(b) a representative body prescribed by the regulations for the purposes of this subsection; and

(d) any other person or body from which the Minister considers it appropriate to seek nominations and will specifically seek nominations from persons able to represent the interests of regional Western Australia.

(4) The Minister must consider nominations lodged under subsection (3) but may appoint a person as a Council member whether or not the person has been nominated under that subsection.

[Section 18 amended: No. 36 of 2022 s. 7.]

19. Functions

(1) The functions of the Council are —

(a) to provide advice and recommendations to the Minister in relation to the development and review of the code of conduct; and

(b) to prepare and review on a regular basis the guideline rates; and

(d) to develop, publish and promote model owner‑driver contracts; and

(e) to provide advice and recommendations to the Minister in relation to any other matters relevant to —

(i) owner‑driver contracts; or

(ii) the commercial practices generally engaged in by owner‑drivers and hirers in relation to each other.

(2) The Council has any other function given to it under this Act or another written law.

20. Powers

The Council has all the powers it needs to perform its functions.

21. Minister may give directions

(1) The Minister may give written directions to the Council with respect to the performance of its functions, either generally or in relation to a particular matter, and the Council must give effect to any such direction.

(2) The Minister must cause the text of any direction given under subsection (1) to be laid before each House of Parliament, or dealt with under section 54, within 14 days after the direction is given.

(3) The text of a direction given under subsection (1) must be included in the annual report submitted by the accountable authority of the Department under the Financial Management Act 2006 Part 5.

[Section 21 amended: No. 47 of 2011 s. 13.]

22. Minister to have access to information

(1) In this section —

document includes any tape, disk or other device or medium on which information is recorded or stored;

information means information specified, or of a description specified, by the Minister that relates to the functions of the Council.

(2) The Minister is entitled —

(a) to have information in the possession of the Council; and

(b) if the information is in or on a document, to have, and make and retain copies of, that document.

(3) For the purposes of subsection (2), the Minister may —

(a) request the Council to furnish information to the Minister; and

(b) request the Council to give the Minister access to information.

(4) The Council must comply with a request under subsection (3).

23. Constitution and proceedings of Council

Schedule 2 sets out provisions as to the constitution and proceedings of the Council.

24. Remuneration and allowances

Each Council member is to be paid the remuneration and allowances that the Minister, on the recommendation of the Public Sector Commissioner, determines in the case of that member.

[Section 24 amended: No. 39 of 2010 s. 89.]

25. Department to provide support services to Council

The Department must provide the Council with any support services that the Council reasonably requires.

Part 4 — Code of conduct

26. Regulations may prescribe code of conduct

(1) The Governor, on the recommendation of the Minister, may make regulations prescribing a code of conduct in relation to the engagement of owner‑drivers under owner‑driver contracts and conduct and practice under owner‑driver contracts.

(2) Before making a recommendation under subsection (1), the Minister must consult with the Council.

27. Content of code of conduct

(1) The code of conduct may —

(a) provide for the conduct of negotiations for owner‑driver contracts, whether on an individual or joint basis; and

(b) require a hirer to pay an owner‑driver for services provided under an owner‑driver contract at a safe and sustainable rate of payment and describe how a safe and sustainable rate of payment is to be determined; and

(c) require a hirer to adopt the standards of conduct and practice set out in the code with respect to owner‑drivers; and

(d) require a hirer to make and keep records in relation to owner‑drivers, owner‑driver contracts, and services provided under owner‑driver contracts, in the manner and form set out in the code of conduct; and

(e) require a hirer, at such times as are specified in the code of conduct, to provide the owner‑driver with written information that is to include the current guideline rates and any other information specified in the code of conduct; and

(f) confer power on the Council to determine, amend or revoke, by notice published in the Gazette, guideline rates for the purpose of providing guidance as to rates and costs to —

(i) owner‑drivers and hirers when negotiating owner‑driver contracts; and

(ii) the Tribunal when determining whether payments have been made at a safe and sustainable rate;

and

(g) provide for any other matter relevant to the engagement of owner‑drivers under owner‑driver contracts.

(2) The Council must obtain the approval of the chairman of the Council before determining, amending or revoking any guideline rates.

(3) The guideline rates are to —

(a) specify the class of owner‑driver, vehicle and equipment to which they apply; and

(b) contain the following information —

(i) typical fixed and variable overhead costs for that class of owner‑driver, vehicle and equipment;

(ii) the base hourly rate or casual hourly rate that would typically apply to that class of owner‑driver if an owner‑driver of that class were, as an employee, performing substantially the same work.

(4) For the purposes of subsection (3)(b)(i), fixed and variable overhead costs include, but are not limited to —

(a) vehicle or equipment registration, maintenance and running costs; and

(b) business administration and insurance costs (including any premiums payable under the Workers Compensation and Injury Management Act 2023); and

(d) finance costs; and

(e) costs of complying with any applicable laws; and

(f) costs of engaging additional or relief labour; and

(g) depreciation of vehicles and equipment.

[Section 27 amended: No. 21 of 2023 s. 709(2).]

Part 5 — Negotiations for owner‑driver contracts

28. Negotiating agents for owner‑drivers

(1) An owner‑driver or group of owner‑drivers may, by instrument, appoint a person or group of persons to be the negotiating agent for the owner‑driver or owner‑drivers in relation to the engagement of the owner‑driver or owner‑drivers, including the making, variation or termination of owner‑driver contracts.

(2) Subject to subsection (3), a hirer must not refuse to recognise a negotiating agent duly appointed by an owner‑driver or group of owner‑drivers for the purposes of subsection (1).

(3) Subsection (2) does not apply if the hirer has not been given a copy of the agent’s instrument of appointment before the refusal.

(4) If requested to do so by the negotiating agent, a hirer must deal exclusively with the agent within the scope of the agent’s authority.

(5) A person must not coerce, or attempt to coerce, an owner‑driver or group of owner‑drivers —

(a) to appoint, or not to appoint, a particular person or group of persons as a negotiating agent; or

(b) to terminate the appointment of a negotiating agent.

29. Negotiating agents for hirers

(1) A hirer may, by instrument, appoint a person or group of persons to be the negotiating agent for the hirer in relation to the engagement of an owner‑driver or owner‑drivers, including the making, variation or termination of owner‑driver contracts.

(2) Subject to subsection (3), an owner‑driver or group of owner‑drivers must not refuse to recognise a negotiating agent duly appointed by a hirer for the purposes of subsection (1).

(3) Subsection (2) does not apply if the owner‑driver, or a representative of the group, refusing has not been given a copy of the agent’s instrument of appointment before the refusal.

(4) If requested to do so by the negotiating agent, an owner‑driver or group of owner‑drivers must deal exclusively with the agent within the scope of the agent’s authority.

(5) A person must not coerce, or attempt to coerce, a hirer —

(a) to appoint, or not to appoint, a particular person or group of persons as a negotiating agent; or

(b) to terminate the appointment of a negotiating agent.

Part 6 — Unconscionable conduct

30. Unconscionable conduct by hirers

(1) A hirer must not engage in conduct that is, in all the circumstances, unconscionable with respect to an owner‑driver in relation to the acquisition or possible acquisition by the hirer of services from the owner‑driver under an owner‑driver contract.

(2) Without limiting the matters to which the Tribunal may have regard for the purpose of determining whether a hirer has engaged in conduct that is unconscionable in contravention of subsection (1), the Tribunal may have regard to the following —

(a) the relative strengths of the negotiating positions of the hirer and owner‑driver;

(b) whether, as a result of conduct engaged in by the hirer, the owner‑driver was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the hirer;

(c) whether the owner‑driver was able to understand any documents relating to the acquisition or possible acquisition by the hirer of services from the owner‑driver under an owner‑driver contract;

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the owner‑driver (or a person acting on behalf of the owner‑driver) by the hirer or a person acting on behalf of the hirer in relation to the acquisition or possible acquisition by the hirer of services from the owner‑driver under an owner‑driver contract;

(e) the amount for which, and the circumstances under which, the owner‑driver could have provided identical or equivalent services to a person other than the hirer, including as an employee;

(f) the extent to which the hirer’s conduct towards the owner‑driver was consistent with the hirer’s conduct in similar transactions between the hirer and other similar owner‑drivers;

(g) the requirements of the code of conduct;

(h) the extent to which the hirer unreasonably failed to disclose to the owner‑driver —

(i) any intended conduct of the hirer that might affect the interests of the owner‑driver; and

(ii) any risks to the owner‑driver arising from the hirer’s intended conduct that are risks that the hirer should have foreseen would not be apparent to the owner‑driver;

(i) the extent to which the hirer was willing to negotiate the terms and conditions of the acquisition or possible acquisition by the hirer of services from the owner‑driver under an owner‑driver contract;

(j) the extent to which the hirer acted in good faith;

(k) whether or not the owner‑driver contract provides for the payment of any increases in the owner‑driver’s fixed and variable overhead costs (as defined in section 27(4));

(l) the terms of an owner‑driver contract, including whether any term of the contract is an unfair term.

[Section 30 amended: No. 36 of 2022 s. 8.]

31. Unconscionable conduct by owner‑drivers

(1) An owner‑driver must not engage in conduct that is, in all the circumstances, unconscionable with respect to a hirer in relation to the provision or possible provision by the owner‑driver of services to the hirer under an owner‑driver contract.

(2) Without limiting the matters to which the Tribunal may have regard for the purpose of determining whether an owner‑driver has engaged in conduct that is unconscionable in contravention of subsection (1), the Tribunal may have regard to the following —

(a) the relative strengths of the negotiating positions of the owner‑driver and hirer;

(b) whether, as a result of conduct engaged in by the owner‑driver, the hirer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the owner‑driver;

(c) whether the hirer was able to understand any documents relating to the provision or possible provision by the owner‑driver of services to the hirer under an owner‑driver contract;

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the hirer (or a person acting on behalf of the hirer) by the owner‑driver or a person acting on behalf of the owner‑driver in relation to the provision or possible provision by the owner‑driver of services to the hirer under an owner‑driver contract;

(e) the amount for which, and the circumstances under which, the hirer could have acquired identical or equivalent services from a person other than the owner‑driver, including from an employee;

(f) the extent to which the owner‑driver’s conduct towards the hirer was consistent with the owner‑driver’s conduct in similar transactions between the owner‑driver and other similar hirers;

(g) the requirements of the code of conduct;

(h) the extent to which the owner‑driver unreasonably failed to disclose to the hirer —

(i) any intended conduct of the owner‑driver that might affect the interests of the hirer; and

(ii) any risks to the hirer arising from the owner‑driver’s intended conduct that are risks that the owner‑driver should have foreseen would not be apparent to the hirer;

(i) the extent to which the owner‑driver was willing to negotiate the terms and conditions of the provision or possible provision by the owner‑driver of services to the hirer under an owner‑driver contract;

(j) the extent to which the owner‑driver acted in good faith;

(k) the terms of an owner‑driver contract, including whether any term of the contract is an unfair term.

[Section 31 amended: No. 36 of 2022 s. 9.]

31A. Unfair terms

(1) In considering for the purposes of sections 30(2)(l) and 31(2)(k) whether a term of an owner‑driver contract is an unfair term, the Tribunal may have regard to the following —

(a) whether the term causes a significant imbalance in the parties’ rights and obligations arising under the contract;

(b) whether the term is reasonably necessary in order to protect the legitimate interests of a party;

(c) whether the term would cause significant detriment (financial or otherwise) to a party if it were to be applied or relied on;

(d) whether the term provides for the payment by the hirer to the owner‑driver of the guideline rate;

(e) the intelligibility of the contract generally, and of the term in particular;

(f) the extent to which the term, and its legal and practical effect, was accurately explained to a party;

(g) the extent to which a party understood the term and its effect before the term was agreed to;

(h) whether or not it was reasonably practicable for a party to reject, or negotiate for a change to, the term before it was agreed to;

(i) the relationship of the term to other terms of the contract;

(j) whether a party obtained independent legal or other expert advice before agreeing to the term;

(k) whether, at the time the term was agreed, a party knew, or could have found out by asking, that the term would cause the other party hardship;

(l) whether the term is usually found in owner‑driver contracts of that kind;

(m) the justification for the term;

(n) whether the term is harsh or oppressive;

(o) whether the term is inconsistent with any part of the code of conduct, whether or not that part of the code imposes duties or obligations on a person or prohibits a person from engaging in certain conduct.

(2) For the purposes of subsection (1)(d), a term of an owner‑driver contract that provides for the payment by the hirer to the owner‑driver of less than the guideline rate is presumed to be unfair, unless the hirer proves otherwise.

(3) In considering for the purposes of sections 30(2)(l) and 31(2)(k) whether a term of an owner‑driver contract is an unfair term, the Tribunal must not have regard to any unfairness arising out of circumstances that were not reasonably foreseeable when the parties agreed to the term.

[Section 31A inserted: No. 36 of 2022 s. 10.]

Part 6A — Misleading or deceptive conduct

[Heading inserted: No. 36 of 2022 s. 11.]

31B. Misleading or deceptive conduct by hirer

A hirer must not engage in conduct that is misleading or deceptive, or is likely to mislead or deceive, with respect to an owner‑driver in relation to the acquisition or possible acquisition by the hirer of services from the owner‑driver under an owner‑driver contract.

[Section 31B inserted: No. 36 of 2022 s. 11.]

31C. Misleading or deceptive conduct by owner‑driver

An owner‑driver must not engage in conduct that is misleading or deceptive, or is likely to mislead or deceive, with respect to a hirer in relation to the provision or possible provision by the owner‑driver of services to the hirer under an owner‑driver contract.

[Section 31C inserted: No. 36 of 2022 s. 11.]

Part 6B — Discrimination

[Heading inserted: No. 36 of 2022 s. 11.]

31D. Discrimination against owner‑driver

(1) A hirer must not subject or threaten to subject an owner‑driver to any detriment for the reason, or for reasons including the reason, that the owner‑driver, or a person associated with the owner‑driver —

(a) has claimed, or proposes to claim, a benefit or exercised, or proposes to exercise, a power or right that the owner‑driver or associate is entitled to claim or exercise under this Act or the code of conduct; or

(b) has brought, or proposes to bring, or has otherwise participated in, a proceeding under this Act; or

(c) has informed, or proposes to inform, any person of an alleged contravention of this Act, the code of conduct or an order of the Tribunal under this Act; or

(d) has participated, or proposes to participate, in joint negotiations relating to owner‑driver contracts or the engagement of an owner‑driver.

(2) A hirer must not subject or threaten to subject an owner‑driver to any detriment because the owner‑driver, or a person associated with the owner‑driver —

(a) has raised, or proposes to raise, issues of health and safety in relation to the performance of services under an owner‑driver contract; or

(b) has sought, or proposes to seek, to —

(i) negotiate a proposed owner‑driver contract; or

(ii) renegotiate an existing owner‑driver contract.

(3) For the purposes of this section, subjecting an owner‑driver to detriment includes doing one or more of the following —

(a) terminating the owner‑driver’s owner‑driver contract;

(b) injuring the owner‑driver in relation to the terms and conditions of an owner‑driver contract to which the owner‑driver is a party;

(d) refusing to engage a person as an owner‑driver;

(e) discriminating against an owner‑driver in the terms or conditions on which the owner‑driver is to be engaged as an owner‑driver.

[Section 31D inserted: No. 36 of 2022 s. 11.]

Part 7 — Inspectors

32. Functions of inspectors

(1) An inspector may, for the purposes of investigating whether or not this Act, the code of conduct or an owner‑driver contract is being complied with, exercise any of the powers that an Industrial Inspector has under the IR Act section 98(3) and, for that purpose, a reference in that provision to —

(a) that Act is to be read as a reference to this Act or the code of conduct; and

[(b) deleted]

(2) The IR Act section 98(4) and (5) apply in relation to the exercise of powers under this section as if the powers were exercised under that Act.

[Section 32 amended: No. 36 of 2022 s. 12.]

33. Obstructing or hindering inspector

(1) A person must not obstruct or hinder an inspector in the exercise of an inspector’s powers under section 32.

(2) A person must not —

(a) fail to comply with a lawful requirement of an inspector; or

(b) refuse or fail to answer a question lawfully put to the person by an inspector.

(3) A person must not give an inspector information that is false or misleading in a material particular.

(4) A contravention of subsection (1), (2) or (3) is not an offence but those subsections are civil penalty provisions for the purposes of the IR Act section 83E.

Part 8 — Rights of entry, inspection and access to records

Division 1 — Preliminary

[Heading inserted: No. 36 of 2022 s. 13.]

33A. Term used: record

In this Part —

record means a record required to be kept under the code of conduct.

[Section 33A inserted: No. 36 of 2022 s. 13.]

Division 2 — Access to records

[Heading inserted: No. 36 of 2022 s. 14.]

34. Access to and inspection of records

(1) In this section —

relevant person means —

(a) the owner‑driver concerned; or

(b) a person authorised in writing by the owner‑driver to act on behalf of the owner‑driver for the purposes of this section.

(2) A hirer, on written request by a relevant person, must —

(a) produce to the relevant person the hirer’s records relating to the owner‑driver concerned; and

(b) let the relevant person inspect the records.

(3) The duty placed on a hirer under subsection (2) —

(a) continues for so long as the records are required to be kept under the code of conduct; and

(b) is not affected by the fact that an owner‑driver contract is no longer in force; and

(i) to let the relevant person enter premises of the hirer for the purpose of inspecting the records; and

(ii) to let the relevant person take copies of the records;

and

(d) must be complied with not later than the 7th day after the day on which the request was made to the hirer.

(4) Nothing in this section limits or otherwise affects the powers of an inspector under this Act.

(5) A contravention of subsection (2) is not an offence but that subsection is a civil penalty provision for the purposes of the IR Act section 83E.

[Section 34 amended: No. 36 of 2022 s. 15.]

Division 3 — Authorised representative’s right of entry to conduct investigation

[Heading inserted: No. 36 of 2022 s. 16.]

34A. Terms used

In this Division —

authorised representative means a person to whom an authority is issued under section 34B(2);

occupier, of a workplace, includes a person in charge of the workplace;

officer has the meaning given in the IR Act section 7;

organisation has the meaning given in the IR Act section 7.

[Section 34A inserted: No. 36 of 2022 s. 16.]

34B. Authorised representative

(1) The secretary of an organisation that is a transport association may apply to the Registrar for a person nominated in the application to be issued with an authority for the purposes of this Division.

(2) Subject to subsection (3), the Registrar to whom an application is made under subsection (1) must issue a written authority for the purposes of this Division to the person nominated in the application.

(3) The Registrar must not issue an authority unless the person nominated in the application —

(a) is an officer or employee of the organisation that makes the application under subsection (1); and

(b) is the holder of —

(i) a right of entry permit as defined in the IR Act section 49G(1) that was applied for by the secretary of the organisation that makes the application under subsection (1); or

(ii) an entry permit issued under the Fair Work Act 2009 (Commonwealth) section 512 that was applied for by the organisation that makes the application under subsection (1);

and

(c) has not previously been issued with an authority that was revoked by the Tribunal under section 34D(3) unless the Tribunal, on application by any person, has ordered that a new authority may be issued.

(4) Despite section 43, the IR Act section 49 does not apply to a decision of the Tribunal under subsection (3)(c) that a new authority may be issued.

(5) An authority issued under subsection (2) remains in force until it is revoked or suspended.

[Section 34B inserted: No. 36 of 2022 s. 16; amended: No. 43 of 2024 s. 158(2).]

34C. Authorised representative who ceases to hold authority or entry permit

(1) An authorised representative must, within 28 days after ceasing to hold a permit referred to in section 34B(3)(b), inform the Registrar that they no longer hold the permit.

(2) A contravention of subsection (1) is not an offence but that subsection is a civil penalty provision for the purposes of the IR Act section 83E.

[Section 34C inserted: No. 36 of 2022 s. 16; amended: No. 43 of 2024 s. 158(3).]

34D. Revocation or suspension of authority

(1) Subject to subsection (2), the Registrar must revoke an authorised representative’s authority —

(a) on application by the secretary of the organisation that made the application under section 34B(1); or

(b) if the Registrar becomes aware that the authorised representative no longer holds —

(i) a right of entry permit as defined in the IR Act section 49G(1); or

(ii) an entry permit issued under the Fair Work Act 2009 (Commonwealth) section 512.

(2) The Registrar must not revoke an authority under subsection (1) if proceedings pursuant to an application made under subsection (3) in relation to the authority are pending or in progress.

(3) The Tribunal may, on application by any person, revoke, or suspend for a period determined by the Tribunal, an authority issued under section 34B(2) if satisfied that the authorised representative —

(a) has acted in an improper manner in the exercise of any power conferred by this Division; or

(b) has intentionally and unduly hindered a hirer or owner‑driver during their work time; or

(i) a right of entry permit as defined in the IR Act section 49G(1); or

(ii) an entry permit issued under the Fair Work Act 2009 (Commonwealth) section 512.

(4) An application under subsection (3) for the revocation or suspension of an authority must set out the grounds on which the application is made.

(5) An authorised representative whose authority is revoked must, within 14 days after being informed in writing by the Registrar that their authority is revoked, return their written authority to the Registrar.

(6) A contravention of subsection (5) is not an offence but that subsection is a civil penalty provision for the purposes of the IR Act section 83E.

[Section 34D inserted: No. 36 of 2022 s. 16; amended: No. 43 of 2024 s. 158(4).]

34E. Written authority of owner‑driver required

An authorised representative is not entitled to exercise a power conferred by this Division for the purpose of conducting an investigation into a suspected breach of an owner‑driver contract to which the owner‑driver is a party unless the representative is authorised in writing by the owner‑driver who is a party to the contract to carry out the investigation.

[Section 34E inserted: No. 36 of 2022 s. 16.]

35. Authorised representative’s right of entry

An authorised representative may enter any workplace where an owner‑driver works, during working hours at the workplace, for the purpose of investigating any suspected breach of —

(a) this Act; or

(b) the code of conduct; or

[Section 35 inserted: No. 36 of 2022 s. 17.]

35A. Authority must be shown on request

An authorised representative must not enter or remain in a workplace if they fail or refuse to show, on request by the occupier, their written authority issued under section 34B(2) to enter the workplace.

[Section 35A inserted: No. 36 of 2022 s. 17.]

35B. Conduct in workplace

(1) An authorised representative does not have the right under section 35 to enter into any part of a workplace that is principally used for habitation by an occupier or a member of the occupier’s household.

(2) An authorised representative must comply with any reasonable request by an occupier to take a particular route to reach a room or area in the workplace.

(3) A request under subsection (2) is not unreasonable only because the route is not that which the authorised representative would have chosen.

[Section 35B inserted: No. 36 of 2022 s. 17.]

35C. Authorised representative’s powers relating to production and inspection of records or other documents

(1) For the purpose of investigating a suspected breach referred to in section 35, an authorised representative may —

(a) subject to subsection (2), require the hirer to produce for the authorised representative’s inspection, during working hours at the workplace or at any mutually convenient time and place, a record or other document kept by the hirer that is related to the suspected breach; and

(b) make copies of the record or other document related to the suspected breach; and

(c) during working hours at the workplace, inspect, and take photographs, film and audio, video or other recordings of, any work, material, machinery or appliance that is relevant to the suspected breach.

(2) An authorised representative must not require the hirer to produce a record or other document unless, before exercising the power, the representative has given the hirer —

(a) if the record or other document is kept at the workplace where the owner‑driver works — at least 24 hours’ written notice of the requirement; or

(b) if the record or other document is kept elsewhere — at least 48 hours’ written notice of the requirement.

(3) The Tribunal may, on the ex parte application of the authorised representative, waive the requirement under subsection (2) to give the hirer notice of an intended exercise of a power if the Tribunal is satisfied that to give such notice would defeat the purpose for which the power is intended to be exercised.

(4) If the requirement for notice is waived under subsection (3) —

(a) the Tribunal must give the authorised representative a certificate authorising the exercise of the power without notice; and

(b) the authorised representative must, after entering the workplace and before requiring the production of the record or other document, give the person who is the occupier of the workplace the certificate or a copy of the certificate.

(5) Nothing in this section limits or otherwise affects the powers of an inspector under this Act.

[Section 35C inserted: No. 36 of 2022 s. 17.]

36. Prohibiting obstruction or delay of exercise of power

(1) An occupier of a workplace must not refuse, or intentionally and unduly delay, an authorised representative’s entry to the workplace under section 35.

(2) A person must not intentionally and unduly hinder an authorised representative exercising a power under this Division.

(3) A contravention of subsection (1) or (2) is not an offence but those subsections are civil penalty provisions for the purposes of the IR Act section 83E.

[Section 36 amended: No. 36 of 2022 s. 18.]

Part 9 — Road Freight Transport Industry Tribunal

37. Terms used

(1) In this Part —

Chief Commissioner has the meaning given to that term in the IR Act section 7(1);

Commission has the meaning given to that term in the IR Act section 7(1);

Commissioner has the meaning given to that term in the IR Act section 7(1);

dispute means a dispute between one or more owner‑drivers and one or more hirers arising under or in relation to this Act, the code of conduct or an owner‑driver contract (including a payment dispute) and includes an allegation that a person has contravened this Act, the code of conduct or an owner‑driver contract.

(2) For the purposes of this Act, a payment dispute arises if, by the time the amount claimed in a payment claim is due to be paid under an owner‑driver contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed.

[Section 37 amended: No. 36 of 2022 s. 19.]

38. Industrial Relations Commission sitting as the Road Freight Transport Industry Tribunal

(1) By this section the Commission has jurisdiction to —

(a) hear and determine disputes that may be referred to the Commission under this Part; and

(b) enquire into and deal with any other matter in relation to the negotiation of owner‑driver contracts that may be referred to the Commission under this Part; and

(c) enquire into, deal with, hear and determine any matter referred to in Part 8 in relation to an authorised representative; and

(d) make a summary determination in accordance with section 38A; and

(e) make a default determination in accordance with section 38B.

(2) When sitting in exercise of the jurisdiction conferred by subsection (1) or under section 46, the Commission is to be known as the Road Freight Transport Industry Tribunal (the Tribunal).

(3) A determination of the Tribunal on a dispute or matter mentioned in subsection (1) has effect according to its substance.

[Section 38 amended: No. 36 of 2022 s. 20.]

38A. Tribunal’s power to make summary determination

(1) The Tribunal may determine (a summary determination) a dispute or matter referred under this Part without a hearing if —

(a) each party to the proceedings has had a reasonable opportunity to be heard; and

(b) the Tribunal is satisfied that —

(i) a person has frivolously or vexatiously referred or defended a dispute or matter; or

(ii) a party’s case has no merit.

(2) The Tribunal may, upon making a summary determination, make 1 or more of the orders or declarations set out in section 47A.

(3) The power in subsection (1) may be exercised —

(a) in relation to all or part of a dispute or matter; and

(b) either —

(i) on the Tribunal’s own initiative; or

(ii) on the application of a party to the proceedings.

(4) The Tribunal may set aside a summary determination and may do so on conditions as to the payment of costs or as to other matters.

(5) Despite section 43, the IR Act section 49 does not apply to a decision of the Tribunal —

(a) to refuse to make a summary determination; or

(b) to set aside a summary determination.

[Section 38A inserted: No. 36 of 2022 s. 21.]

38B. Tribunal’s power to make default determination

(1) This section does not apply to —

(a) a failure to comply with the determination of a dispute or matter by the Tribunal; or

(b) an order made in, or as a consequence of, the determination of a dispute or matter by the Tribunal.

(2) The Tribunal may make a determination (a default determination) against a party to the proceedings without a hearing if the party —

(a) does not comply with a direction, order or declaration made by the Tribunal during the course of the proceedings; or

(b) fails to file a response within the prescribed period.

(3) The Tribunal may, upon making a default determination, make 1 or more of the orders or declarations set out in section 47A.

(4) The Tribunal may set aside a default determination and may do so on conditions as to the payment of costs or as to other matters.

(5) Despite section 43, the IR Act section 49 does not apply to a decision of the Tribunal —

(a) to refuse to make a default determination; or

(b) to set aside a default determination.

[Section 38B inserted: No. 36 of 2022 s. 21.]

39. Jurisdiction to be exercised by Commissioner with necessary qualifications

(1) The jurisdiction conferred by section 38 in respect of any dispute or matter is to be exercised by the Commission constituted by a Commissioner.

(2) In allocating a dispute or matter for the purposes of subsection (1), the Chief Commissioner must have regard to the desirability of the Commissioner concerned having relevant knowledge of this Act and in the field of road freight transport.

40. Persons who may refer disputes and matters to the Tribunal

(1) A dispute or matter may be referred to the Tribunal —

(a) in the case of a dispute arising under or in relation to an owner‑driver contract, by —

(i) a person who is a party to the owner‑driver contract; or

(ii) a transport association in which a party to the owner‑driver contract is eligible to be enrolled as a member; or

(iii) an inspector; or

(iv) the Minister;

and

(b) in the case of a dispute arising under or in relation to this Act or the code of conduct, or involving an allegation that a person has contravened this Act or the code of conduct, by —

(i) an owner‑driver or hirer with a sufficient interest in the dispute; or

(ii) a transport association; or

(iii) except in a case involving an allegation that a person has contravened Part 6 — an inspector; or

(iv) the Minister;

and

(i) an owner‑driver or hirer with a sufficient interest in the matter; or

(ii) a transport association; or

(iii) the Minister.

(2) Despite subsection (1), a dispute or matter under or in relation to an owner‑driver contract cannot be referred to the Tribunal under subsection (1)(a) or (c) more than 12 months after the contract expires.

[Section 40 amended: No. 36 of 2022 s. 22.]

41. Intervention in proceeding

The Minister may, on behalf of the State and by leave of the Tribunal, intervene in a proceeding of the Tribunal in which the State has an interest.

41A. When referral not required

(1) This section applies if a payment dispute (the first payment dispute) arising under, or in relation to, an owner‑driver contract is referred to the Tribunal under this Part.

(2) When determining the first payment dispute, the Tribunal may determine a subsequent payment dispute if the subsequent payment dispute —

(a) arises under the same owner‑driver contract; and

(b) is substantially similar to the first payment dispute.

(3) Subsection (2) applies whether or not the subsequent payment dispute is referred to the Tribunal under this Part.

[Section 41A inserted: No. 36 of 2022 s. 23.]

42. Representation

Any party to proceedings before the Tribunal, and any other person or body permitted by or under this Act to intervene or be heard in proceedings before the Tribunal, may appear —

(a) in person; or

(b) with the leave of the Tribunal, or in accordance with the regulations, by a legal practitioner or agent.

43. Applied provisions: practice, procedure and appeals

(1) Except as otherwise provided, the following provisions (the applied provisions) of the IR Act that apply to and in relation to the exercise of the jurisdiction of the Commission constituted by a Commissioner apply to the exercise of the jurisdiction conferred by section 38(1) —

(a) section 22B;

(b) section 26(1)(a) and (b), (2) and (3);

(d) section 28;

(e) section 29B;

(f) section 32A;

(g) section 33;

(h) section 34(1), (3) and (4);

(i) section 36;

(j) section 49;

(k) section 90;

(l) section 91;

(m) section 92.

(2) The applied provisions have effect —

(a) with such modifications as may be prescribed under the IR Act section 113; and

(b) with such other modifications as the Tribunal determines may be necessary or appropriate.

(3) For the purposes of subsection (1), the IR Act section 90(1) applies as if paragraph (a) were deleted and the following paragraph were inserted instead —

“

(a) on the ground that the decision is in excess of jurisdiction;

”.

[Section 43 amended: No. 36 of 2022 s. 24.]

44. Conciliation

(1) This section applies where a dispute or matter has been referred to the Tribunal under this Part.

(2) If the Tribunal considers that the issues involved may be resolved by conciliation —

(a) the Tribunal may endeavour to assist the parties to reach an agreement on those issues; and

(b) for that purpose the Tribunal may —

(i) arrange conferences of the parties or their representatives presided over by the Tribunal; and

(ii) arrange for the parties or their representatives to confer among themselves at a conference at which the Tribunal is not present; and

(iii) otherwise encourage the parties to exchange or divulge attitudes or information that in the opinion of the Tribunal would assist in the resolution of the issues.

(3) The Tribunal may give any direction or make any order or declaration that the Tribunal thinks expedient for the purposes of this section.

(4) If the Tribunal gives or makes a direction, order or declaration under subsection (3) the Tribunal must —

(a) if it is given or made orally, reduce the direction, order or declaration to writing as soon as is practicable; and

(b) make the text of the direction, order or declaration available to the parties as soon as is practicable after it is given or made.

(5) If the Tribunal —

(a) takes action under subsection (2)(a); and

(b) is satisfied that the parties have reached agreement on all of the issues involved,

the Tribunal may, with the consent of the parties, make a determination by order for the purposes of section 38 in terms of that agreement.

45. Compulsory attendance at conciliation

(1) Subject to this section, the Tribunal may summon any person to attend, at a time and place specified in the summons, at conciliation proceedings under section 44.

(2) A summons under this section —

(a) may be given in the manner prescribed by the regulations; and

(b) when so given, is to be taken, in any proceedings relating to the summons, to have been served on the person to whom it is directed unless that person, in those proceedings, satisfies the Tribunal or the Full Bench, as the case may be, that he or she did not receive the summons.

(3) Any person so summoned must, except for good cause, proof of which is on that person, attend the conciliation proceedings at the time and place specified in the summons and continue to attend at that place as directed by the Tribunal.

46. Enforcement for the purposes of sections 44 and 45

(1) If a person contravenes section 45(3), or a direction, order or declaration given or made under section 44(3) or section 45, the Tribunal —

(a) on its own initiative; or

(b) on the application of —

(i) a person who is a party to the proceeding in relation to which the contravention arises; or

(ii) a transport association in which a party to the proceeding in relation to which the contravention arises is eligible to be enrolled as a member; or

(iii) the Minister,

may enforce that provision, direction, order or declaration as specified in subsection (4).

(2) An application for the enforcement of section 45(3), or a direction, order or declaration given or made under section 44(3) or section 45, must not be made otherwise than to the Tribunal.

(3) The jurisdiction conferred by this section is to be exercised by the Commission constituted by a Commissioner.

(4) For the purposes of subsection (1) the Tribunal has all of the powers and duties of the Full Bench under the IR Act section 84A(4) to (8), and those provisions apply accordingly.

(5) For the purposes of this section, the IR Act sections 82A and 103 apply as if references in those sections to section 84A were references to this section.

47. Determination of dispute where no resolution by conciliation

(1) The Tribunal may hear and determine a dispute for the purposes of section 38(1)(a) and enquire into and deal with a matter for the purposes of section 38(1)(b) if the dispute or matter is not —

(a) resolved by conciliation under section 44; or

(b) disposed of by the Tribunal making a summary determination under section 38A; or

[(2) deleted]

(3) In making a determination mentioned in subsection (1), the Tribunal must endeavour to ensure that the dispute or matter is resolved —

(a) taking into account any agreement reached by the parties on any particular issue; and

(b) subject to paragraph (a), on terms that could reasonably have been agreed between the parties in the first instance or by conciliation.

[(4), (5) deleted]

[Section 47 amended: No. 36 of 2022 s. 25.]

47A. Remedies that may be given

(1) In making a determination under section 38A(1), 38B(2) or 47(1), the Tribunal may do one or more of the following —

(a) order the payment of a sum of money —

(i) found by the Tribunal to be owing by one party to another party; or

(ii) by way of damages (including exemplary damages and damages in the nature of interest); or

(iii) by way of restitution;

(b) order the refund of any money paid under an owner‑driver contract;

(d) declare that a debt is, or is not, owing;

(e) order a party to do, or to refrain from doing, something;

(f) make any other order the Tribunal considers fair.

(2) Without limiting subsection (1), if the Tribunal determines that a hirer or owner‑driver has engaged in conduct that is unconscionable having regard to an unfair term of the owner‑driver contract, the Tribunal may do one or more of the following —

(a) declare a term of the contract void;

(b) insert a new term into the contract;

[Section 47A inserted: No. 36 of 2022 s. 26.]

48. Order to prevent entering into of owner‑driver contracts

(1) The Tribunal, when making an order under section 47A or at a later time, may make any further order the Tribunal considers appropriate for the purpose of prohibiting (either absolutely or otherwise than in accordance with specified conditions) a relevant person from —

(a) entering into any specified kind of owner‑driver contract; or

(b) doing any act (whether by advertising or otherwise) that may reasonably be construed as being intended to induce other persons to enter into any such contract.

(2) An order under this section must identify the person or persons bound by the order and takes effect in respect of each of those persons on service of a copy of the order on the person.

(3) In this section —

relevant person means —

(a) a party to the proceedings; or

(b) any other person who is, in any way considered relevant by the Tribunal, associated with a party to the proceedings.

[Section 48 amended: No. 36 of 2022 s. 27.]

49. Other jurisdictions

(1) Where —

(a) a dispute has been referred to the Tribunal; and

(b) at the time the dispute was referred no issue arising under the referral was the subject of civil proceedings before a court,

a court has no jurisdiction to hear or determine such an issue in civil proceedings unless subsection (2) applies.

(2) This subsection applies if the dispute, or the part of the dispute to which the issue referred to in subsection (1) relates, is withdrawn or is dismissed for want of jurisdiction.

(3) Where —

(a) a dispute has been referred to the Tribunal; and

(b) at the time the dispute was referred an issue arising under the referral was the subject of civil proceedings before a court,

the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue unless subsection (4) applies.

(4) This subsection applies if —

(a) the proceedings referred to in subsection (3) are, or the part of the proceedings relating to the issue referred to in that subsection is, transferred to the Tribunal by the court concerned; or

(b) those proceedings are, or that part of those proceedings is, withdrawn or dismissed by the court or by another court on appeal in those proceedings, for want of jurisdiction or without deciding the issue on its merits; or

(c) as a result of judicial review, a court quashes or declares invalid those proceedings or that part of those proceedings or any order, judgment or decision made in those proceedings in relation to the issue, on the ground that the court concerned had no jurisdiction to hear and determine the issue.

50. Enforcement of monetary order

(1) In this section —

monetary order means an order of the Tribunal requiring the payment or refund of money (including an order as to costs).

(2) A person to whom a payment or refund is to be made under a monetary order may enforce the order by filing in a court of competent jurisdiction —

(a) a copy of the order that the Registrar has certified to be a true copy; and

(b) the person’s affidavit as to the amount not paid under the order and, if the order is to take effect upon any default, as to the making of that default.

(3) No charge is to be made for filing a copy of an order or an affidavit under this section.

(4) On filing, the order is taken to be an order of the court, and may be enforced accordingly.

51. Enforcement of order other than conciliation or monetary order

(1) This section applies to an order of the Tribunal to the extent that the decision is not —

(a) an order referred to in section 44(3); or

(b) a monetary order (as defined in section 50(1)).

(2) A person who fails to comply with an order to which this section applies is to be taken to commit a contempt of the Industrial Appeal Court and is punishable by that court under the IR Act section 92.

Part 10 — Miscellaneous

52. Trade Practices Act 1 and Competition Code

(1) For the purposes of the Trade Practices Act 1974 1 of the Commonwealth and the Competition Code the following things are authorised by this Act —

(a) the making of a code of conduct; and

(b) anything done by a person in order to comply with this Act or a code of conduct; and

(c) anything done by an owner‑driver or group of owner‑drivers preparatory to entering into, or in anticipation of, joint negotiations with a single business, including the appointment of a negotiating agent to conduct those joint negotiations; and

(d) anything done by a negotiating agent, as authorised by this Act and in accordance with the agent’s terms of appointment, in conducting joint negotiations with a single business; and

(e) any dealings by an owner‑driver or group of owner‑drivers with their negotiating agent for the purposes of conducting joint negotiations with a single business.

(2) For the purposes of this section —

(a) a single business is a business, project or undertaking that is carried on by one hirer; and

(b) if 2 or more hirers carry on a business, project or undertaking as a joint venture or common enterprise, the hirers are taken to be one hirer; and

(c) if 2 or more corporations that are related to each other for the purposes of the Corporations Act 2001 of the Commonwealth each carry on a single business —

(i) the corporations are to be treated as one hirer; and

(ii) the single businesses are to be treated as one single business.

53. Confidentiality

A person who performs a function under this Act must not, directly or indirectly, disclose or make use of any information obtained in the course of performing their function except —

(a) in the performance of functions under this Act; or

(b) as required or allowed by any other law; or

(d) with the written consent of the Minister or the person to whom the information relates; or

(e) in other circumstances prescribed by the regulations.

Penalty: a fine of $12 000 and imprisonment for 12 months.

[Section 53 amended: No. 36 of 2022 s. 28.]

54. Laying documents before Parliament

(1) If —

(a) at the commencement of the period referred to in section 21(2) or Schedule 2 clause 20(2) in respect of a document a House of Parliament is not sitting; and

(b) the Minister is of the opinion that that House will not sit during that period,

the Minister must transmit a copy of the document to the Clerk of that House.

(2) A copy of a document transmitted to the Clerk of a House is to be taken to have been laid before that House.

(3) The laying of a copy of a document that is taken to have occurred under subsection (2) must be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy.

55. Protection from liability

(1) An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.

(2) The State is also relieved of any liability that it might otherwise have had for another person having done anything as described in subsection (1).

(3) The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted.

(4) In this section, a reference to the doing of anything includes a reference to the omission to do anything.

56. Protection for compliance with this Act

(1) No civil or criminal liability attaches to a person for compliance, or purported compliance, in good faith, with a requirement of this Act.

(2) In particular, if a person produced a document or other material as required under this Act, no civil liability attaches to the person for producing the document or material, whether the liability would arise under a contract or otherwise.

57. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2) Without limiting the application of the Interpretation Act 1984 section 43, regulations made under this Act may adopt wholly or partly any standards, rules, code or other provisions published by some other body and may adopt them —

(a) with or without amendment or modification; and

(b) as in force at the time of adoption or as amended from time to time.

[58. Omitted under the Reprints Act 1984 s. 7(4)(e).]

59. Review of Act

(1) The Minister must carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiry of 5 years from the commencement of this section and, in the course of that review, the Minister must consider and have regard to —

(a) the effectiveness of the operations of the Council and the Tribunal; and

(b) the need for the continuation of the functions of the Council and the Tribunal; and

(2) The Minister must prepare a report based on the review and, as soon as is practicable after the report is prepared, and in any event not more than 12 months after the expiry of the 5 year period referred to in subsection (1), must cause it to be laid before each House of Parliament.

Part 11 — Transitional provisions

[Heading inserted: No. 36 of 2022 s. 29.]

60. Notice of termination before commencement day

(1) In this section —

commencement day means the day on which the Owner‑Drivers (Contracts and Disputes) Amendment Act 2022 sections 5 and 31 come into operation.

(2) Section 10A and Schedule 1 Division 4 do not apply in relation to a notice of termination of an owner‑driver contract given before commencement day.

[Section 60 inserted: No. 36 of 2022 s. 29.]

Schedule 1 — Implied provisions

[s. 13, 14, 15, 15A and 16]

[Heading amended: No. 36 of 2022 s. 30.]

Division 1 — Responding to claims for payment

Responding to a payment claim

Within 14 days after a party receives a payment claim, the party must do one of the following —

(a) pay the part of the amount of the claim that is not disputed;

(b) pay the whole of the amount of the claim.

Division 2 — Interest on overdue amounts

Interest payable on overdue amounts

(1) Interest is payable on so much of an amount that —

(a) is payable under this contract by a party to another party on or before a certain date; and

(b) is unpaid after that date.

(2) The interest must be paid for the period beginning on the day after the date on which the amount is due and ending on and including the date on which the amount payable is paid.

(3) The rate of interest at any time is equal to that prescribed for that time under the Civil Judgments Enforcement Act 2004 section 8(1)(a).

Division 3 — Making claims for payment

Content of claim for payment

A payment claim must —

(a) state the name of the claimant; and

(b) state the date of the claim; and

(c) in the case of a claim by the owner‑driver — itemise and describe the obligations under this contract that the owner‑driver has performed and to which the claim relates in sufficient detail for the hirer to assess the claim; and

(d) in the case of a claim by the hirer — describe the basis for the claim in sufficient detail for the owner‑driver to assess the claim; and

(e) be given to the party against which the claim is made.

Division 4 — Termination of contract

[Heading inserted: No. 36 of 2022 s. 31.]

Notice of termination

(1) A party may terminate this contract by giving the other party written notice of termination.

(2) A written notice of termination must state —

(a) the day on which the notice is given; and

(b) the day on which the termination of this contract is to take effect.

(3) A notice of termination given under subclause (1) has no effect if the notice period is less than the minimum notice period.

(4) Subclause (3) does not apply if this contract is terminated due to —

(a) a material breach of the contract; or

(b) the serious and wilful misconduct of the owner‑driver; or

(c) exceptional circumstances beyond the control of the terminating party that were not reasonably foreseeable at the time of entering into this contract.

[Clause 4 inserted: No. 36 of 2022 s. 31.]

Payment in lieu of notice

Despite clause 4(3), the hirer may terminate this contract by paying the owner‑driver —

(a) if the termination is to take effect immediately — the total amount that would be payable under this contract in respect of the minimum notice period, less 25%; or

(b) if a notice period is given but it is less than the minimum notice period —

(i) the amount payable for work performed by the owner‑driver during the notice period; and

(ii) the amount that would be payable under this contract in respect of the balance of the minimum notice period, less 25%.

[Clause 5 inserted: No. 36 of 2022 s. 31.]

Schedule 2 — Constitution and proceedings of Council

[s. 23]

Division 1 — General provisions

Term of office

(1) A Council member holds office for the term, not exceeding 3 years, that is specified in the instrument of their appointment, but may from time to time be re‑appointed.

(2) Despite subclause (1), if the term of office of a member of the Council expires by effluxion of time without a person having been appointed to fill the vacancy, the member continues in office until the earlier of the following —

(a) the vacancy is filled (whether by the re‑appointment of the member or the appointment of a new member);

(b) the member resigns under clause 3(1)(a);

(d) the member dies.

[Clause 1 amended: No. 36 of 2022 s. 32.]

Chairman and deputy chairman

(1) The Minister is to appoint one Council member to be the chairman.

(2) The Council is to elect one Council member to be the deputy chairman.

(3) If the chairman is unable to act by reason of sickness, absence or other cause, or during any vacancy in that office, the deputy chairman is to perform the functions of the chairman.

Resignation, removal, etc.

(1) The office of a Council member becomes vacant if he or she —

(a) resigns the office by written notice addressed to the Minister; or

(b) is an insolvent under administration as defined in the Corporations Act 2001 of the Commonwealth; or

(2) The Minister may remove a Council member from office if the Minister is satisfied that the member —

(a) has neglected his or her duty; or

(b) has misbehaved; or

(d) is suffering from mental or physical incapacity impairing the performance of his or her functions; or

(e) has been absent, without leave and reasonable excuse, from 3 consecutive meetings of the Council of which the member has had notice.

Leave of absence

The Council may grant leave of absence to a Council member on the terms and conditions that it thinks fit.

Council member unable to act

(1) If a Council member, other than the chairman, is unable to act by reason of sickness, absence or other cause, the Minister may appoint another person to act temporarily in his or her place and, while acting in accordance with the appointment, that other person is taken to be a Council member.

(2) If the Council member who is deputy chairman is performing the functions of the chairman, the Minister may, under subclause (1), appoint another person to act in his or her place as a Council member.

(3) The appointment of a person under subclause (1) may be terminated at any time by the Minister.

Savings

No act or omission of a person acting in place of another person under clause 5 is to be questioned on the ground that the occasion for his or her appointment or acting had not arisen or had ceased.

Calling of meetings

(1) Subject to subclause (2), meetings are to be held at the times and places that the Council determines.

(2) A special meeting of the Council may at any time be convened by the chairman.

(3) The first meeting of the Council is to be convened by the chairman.

Presiding officer

(1) The chairman is to preside at all meetings of the Council at which he or she is present.

(2) If both the chairman and the deputy chairman are absent from a meeting, the Council members present are to appoint one of their number to preside.

Quorum

A quorum for a meeting of the Council is at least one half of the number of Council members.

Voting

(1) At any meeting of the Council each Council member present has a deliberative vote.

(2) If the votes cast on a question are equally divided, the person presiding has a casting vote on the question.

Minutes

The Council is to cause accurate minutes to be kept of the proceedings at its meetings.

Resolution without meeting

(1) A resolution of the Council in writing signed by each Council member, or assented to by each Council member by letter, telegram, telex, facsimile transmission, email or other similar means, has the same effect as if it had been passed at a meeting.

(2) The Council must cause a record to be kept of each resolution under subclause (1).

Holding meetings remotely

The presence of a Council member at a meeting of the Council need not be by attendance in person but may be by that member and each other Council member at the meeting being simultaneously in contact by telephone or other means of instantaneous communication.

Committees

(1) The Council may appoint committees to assist it in the performance of its functions, and may discharge or alter any committee so appointed.

(2) A committee may include persons who are not members of the Council.

(3) Subject to the directions of the Council, a committee may determine its own procedures.

Council to determine own procedures

Subject to this Act, the Council is to determine its own procedures.

Division 2 — Disclosure of interests etc.

Disclosure of interests

(1) A Council member who has a material personal interest in a matter being considered or about to be considered by the Council must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Council.

Penalty: A fine of $10 000.

(2) A disclosure under subclause (1) is to be recorded in the minutes of the meeting.

Voting by interested members

(1) A Council member who has a material personal interest in a matter that is being considered by the Council —

(a) must not vote whether at a meeting or otherwise —

(i) on the matter; or

(ii) on a proposed resolution under clause 18 in respect of the matter, whether relating to that member or a different Council member;

and

(b) must not be present while —

(i) the matter; or

(ii) a proposed resolution of the kind referred to in paragraph (a)(ii),

is being considered at a meeting.

Clause 17 may be declared inapplicable

Clause 17 does not apply if the Council has at any time passed a resolution that —

(a) specifies the Council member, the interest and the matter; and

(b) states that the Council members voting for the resolution are satisfied that the interest should not disqualify the Council member from considering or voting on the matter.

Quorum where clause 17 applies

(1) Despite clause 9, if a Council member is disqualified under clause 17 in relation to a matter, a quorum is present during the consideration of the matter if at least 3 Council members are present who are entitled to vote on any motion that may be moved at the meeting in relation to the matter.

(2) The Minister may deal with a matter insofar as the Council cannot deal with it because of subclause (1).

Minister may declare clauses 17 and 19 inapplicable

(1) The Minister may by writing declare that clause 17 or 19 does not apply, or both of them do not apply, in relation to a specified matter either generally or in voting on particular resolutions.

(2) The Minister must cause a copy of a declaration under subclause (1) to be laid before each House of Parliament, or dealt with under section 54, within 14 days after the declaration is made.

[Schedule 3 omitted under the Reprints Act 1984 s. 7(4)(e).]

dline

Notes

This is a compilation of the Owner-Drivers (Contracts and Disputes) Act 2007 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.

Compilation table

Short title		Number and year		Assent		Commencement
Owner-Drivers (Contracts and Disputes) Act 2007		7 of 2007		6 Jun 2007		s. 1 and 2: 6 Jun 2007; Act other than s. 1, 2, 35 and 36: 1 Aug 2008 (see s. 2 and Gazette 18 Jul 2008 p. 3329); s. 35 and 36: 1 Jun 2023 (see s. 2 and SL 2023/27 cl. 2)
Public Sector Reform Act 2010 s. 89		39 of 2010		1 Oct 2010		1 Dec 2010 (see s. 2(b) and Gazette 5 Nov 2010 p. 5563)
Statutes (Repeals and Minor Amendments) Act 2011 s. 13 and 27		47 of 2011		25 Oct 2011		26 Oct 2011 (see s. 2(b))
Road Traffic Legislation Amendment Act 2012 Pt. 4 Div. 37		8 of 2012		21 May 2012		27 Apr 2015 (see s. 2(d) and Gazette 17 Apr 2015 p. 1371)
Statutes (Repeals and Minor Amendments) Act 2014 s. 30		17 of 2014		2 Jul 2014		6 Sep 2014 (see s. 2(b) and Gazette 5 Sep 2014 p. 3213)
*Reprint 1: The Owner-Drivers (Contracts and Disputes) Act 2007* as at 4 Aug 2017** (includes amendments listed above)
Owner-Drivers (Contracts and Disputes) Amendment Act 2022	36 of 2022		28 Oct 2022		s. 1 and 2: 28 Oct 2022 (see s. 2(a)); s. 12: 29 Oct 2022 (see s. 2(b)); s. 17 and 18: 1 Jun 2023 (see s. 2(c) and SL 2023/27 cl. 2); Act other than s. 1, 2, 12, 17 and 18: 1 June 2023 (see s. 2(d) and SL 2023/28 cl. 2)
Workers Compensation and Injury Management Act 2023 s. 709	21 of 2023		24 Oct 2023		1 Jul 2024 (see s. 2(d) and SL 2024/34 cl. 2)
Industrial Relations Legislation Amendment Act 2024 s. 158	43 of 2024		13 Nov 2024		31 Jan 2025 (see s. 2(c))

Other notes

1 Now known as the Competition and Consumer Act 2010 (Cwlth). The short title was changed by the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) (2010) (Cwlth) Sch. 5 cl. 2.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

A 9

applied provisions 43(1)

authorised representative 34A

Chief Commissioner 37(1)

code of conduct 3

commencement day 60(1)

Commission 37(1)

Commissioner 37(1)

Council 3

default determination 38B(2)

Department 3

dispute 37(1)

document 22(1)

first payment dispute 41A(1)

fixed and variable overhead costs 27(4)

goods 3

guideline rates 3

heavy vehicle 3

hirer 3

information 22(1)

inspector 3

IR Act 3

listed public company 4(1)

minimum notice period 3

monetary order 50(1)

notice period 3

occupier 34A

officer 4(1), 34A

organisation 34A

owner-driver 3, 4(2)

owner-driver contract 3, 5(1)

party 3

payment claim 3

payment dispute 37(2)

prescribed representative body 3

record 33A

Registrar 3

relevant person 34(1), 48(3)

single business 52(2)

summary determination 38A(1)

transport association 3

Tribunal 3, 38(2)

workplace 3

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Owner-Drivers (Contracts and Disputes) Act 2007

Western Australia

Owner-Drivers (Contracts and Disputes) Act 2007

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2
Term used: owner-driver 4
Term used: owner‑driver contract 5
Application of Act 5
Act prevails over owner‑driver contracts 6
Act binds Crown 7

Part 2 — Content of owner‑driver contracts

Division 1 — Prohibited provisions

Prohibited: pay if paid/when paid provisions 8
Prohibited: provisions requiring payment to be made after 30 days 8

10A. Prohibited: provisions allowing less than minimum notice period 8

Prohibited: prescribed provisions 8
Other provisions of contract not affected 8

Division 2 — Implied provisions

Time for payment 9
Interest on overdue payments 9
Making payment claims 9

15A. Minimum period of notice for terminating contract 9

Interpretation of implied provisions 9

Part 3 — Road Freight Transport Industry Council

Road Freight Transport Industry Council established 10
Membership of Council 10
Functions 11
Powers 11
Minister may give directions 11
Minister to have access to information 12
Constitution and proceedings of Council 12
Remuneration and allowances 12
Department to provide support services to Council 13

Part 4 — Code of conduct

The Act organises regulation around a small set of core concepts. Those concepts determine who is covered, what contractual terms are permitted, which commercial practices attract statutory scrutiny and which institutions administer the regime.

Owner‑driver and owner‑driver contract. “Owner‑driver” is defined in s 4(2) with distinct categories: a natural person carrying on the business of transporting goods in heavy vehicles whose principal occupation is operating those vehicles; a body corporate that is not a listed public company meeting a parallel test; and partnerships where at least one partner is a qualifying natural person (s 4(2)(a)-(c)). An “owner‑driver contract” is any contract (written or oral) entered into in the course of business by an owner‑driver to transport goods in a heavy vehicle, and the Act excludes contracts of employment (s 5(1)-(3)). The Act’s application clauses (s 6) set geographical boundaries (contracts entered into in WA, services wholly within WA, or where a substantial part of services are performed in WA), and an express exclusion where the owner‑driver is covered by specified interstate statutory instruments (s 6(2)).

Prohibited provisions and implied terms. The Act treats some clauses as of no legal effect (s 9 prohibits pay‑if‑paid/when‑paid contingent liability clauses; s 11 allows regulations to prescribe further prohibited provisions). Section 10 reads down payment timing clauses so that payments must be made within 30 days of a payment claim. The Act provides a set of implied contract provisions where contracts are silent: time for payment, interest on overdue amounts, making payment claims and minimum notice periods for termination (ss 13-15A and Schedule 1 Divisions 1-4). Section 16 makes clear that the Interpretation Act and ss 3-5 apply to the implied provisions even if the contract says otherwise.

Code of conduct, guideline rates and Council. The Governor may, on ministerial recommendation following consultation with the Council, prescribe a code of conduct under s 26. The code can require hirers to pay at safe and sustainable rates and to keep records and provide information to owner‑drivers (s 27(1)(b)-(e)). The Council (established by s 17, membership s 18) is tasked with preparing guideline rates, model contracts and promoting compliance (s 19). Guideline rates must specify classes of owner‑driver/vehicle and set out typical fixed and variable overheads and base hourly rates for comparable employee work (s 27(3)-(4)). The Council may publish guideline rates by Gazette notice and the chairman must approve guideline rates before publication (s 27(2) and (3)).

Unconscionable and misleading conduct; unfair terms. Parts 6, 6A and 6B cover conduct rules. Hirers and owner‑drivers alike are prohibited from engaging in unconscionable conduct in specified contexts (ss 30-31). Section 31A provides a non‑exhaustive list of factors the Tribunal may consider when assessing whether a contract term is unfair; s 31A(2) creates a presumption that terms paying less than the guideline rate are unfair unless the hirer proves otherwise. The Act also proscribes misleading or deceptive conduct by hirers and owner‑drivers (ss 31B-31C) and protects owner‑drivers from adverse treatment for exercising rights under the Act or participating in protected activities (s 31D).

Tribunal and dispute resolution. The Commission (Industrial Relations Commission) sits as the Road Freight Transport Industry Tribunal to hear disputes and matters under the Act (s 38). The Tribunal has powers to conciliate (s 44), to make summary or default determinations (ss 38A, 38B) and to award remedies including monetary compensation, restitution, specific performance and orders altering or voiding contract terms (s 47A). The Tribunal also has enforcement mechanisms, including certifying monetary orders for filing in a court (s 50) and treating non‑compliance with non‑monetary orders as contempt of the Industrial Appeal Court (s 51).

Inspectors and authorised representatives. Inspectors (Industrial Inspectors as defined in the IR Act) have investigatory powers adjusted to this Act (s 32). The Act provides a statutory pathway for transport associations to have authorised representatives issued written authority by the Registrar to investigate suspected breaches (s 34B), subject to requirements based on right‑of‑entry permits under industrial laws. Authorised representatives have prescribed rights of entry to workplaces for investigation (ss 35, 35C) but must comply with notice rules (e.g. 24/48 hours for document production in s 35C(2)) and written authorisation from the owner‑driver for investigations (s 34E). Several contraventions in Part 8 are framed as civil penalty provisions under the IR Act (see ss 33, 34, 34C and 36).

Interplay with competition and other laws. The Act authorises certain conduct that might otherwise attract scrutiny under competition law: making a code, compliance with rules, joint negotiation activities by owner‑drivers and negotiating agents are authorised for Trade Practices/Competition Code purposes (s 52). The Act also cross‑references other statutes: the meaning of heavy vehicle is taken from the Road Traffic (Vehicles) Act 2012 (s 3); notions of officers and listed companies rely on the Corporations Act 2001 and Income Tax Assessment Act 1997 definitions (s 4(1)); interest on overdue amounts uses the Civil Judgments Enforcement Act 2004 rate (Schedule 1 Div 2); and the Workers Compensation and Injury Management Act 2023 is referenced in the list of overheads for guideline rates (s 27(4)(b)).

Administrative and ministerial controls. The Minister retains oversight and can direct the Council in writing (s 21), must lay directions before Parliament, and may intervene in Tribunal proceedings (s 41). The Minister and Council sit at the centre of delegated rule‑making and guidance (ss 21, 22, 26-27). Regulations support much of the scheme, including identification of prescribed representative bodies and prescribed prohibited provisions (s 3 definitions; s 11), and the code of conduct itself is by regulation (s 26).

Those concepts combine to create a statutory default architecture for owner‑driver engagements, a code/regulatory layer for industry standards, and adjudicative capacity in the Tribunal for dispute resolution and remedial orders.

The Act’s coverage is defined by the statutory definitions and application clauses, and affects several distinct groups differently: owner‑drivers and their employees, hirers (businesses that engage owner‑drivers), transport associations and negotiating agents, the State and public servants (via Council appointments and Ministerial directions), and persons acting as inspectors or authorised representatives.

Owner‑drivers. The Act’s primary cohort is owner‑drivers as defined in s 4(2). The definition distinguishes among natural persons, bodies corporate that are not listed public companies and partnerships where at least one partner meets the natural person test. The definition includes the requirement that the business is carried on in heavy vehicles supplied by the owner‑driver and that the operator’s principal occupation is operating those vehicles. Note that listed public companies are excluded from the body corporate category by s 4(1). Also, the Act excludes contracts of employment from the meaning of owner‑driver contract (s 5(3)), so persons engaged as employees are outside the owner‑driver protections although parallels can exist for contractors and corporate entities that meet the 4(2) test.

Hirers. “Hirer” is defined in s 3 as a person who engages an owner‑driver under an owner‑driver contract, so any business or individual that hires an owner‑driver is subject to the Act’s prohibitions, implied terms and potential Tribunal jurisdiction. Hirers face duties to comply with the Act, the code of conduct if prescribed, and to produce records upon written request by relevant persons (s 34). Regulations may prescribe representative bodies and transport associations which affect the rights and roles of hirers and owner‑drivers (s 3).

Transport associations, negotiating agents and authorised representatives. The Act explicitly recognises group negotiation structures: owner‑drivers may appoint negotiating agents (s 28) and hirers may appoint negotiating agents (s 29), with mutual duties not to refuse recognition subject to limited notice requirements. Transport associations (defined in s 3) play a role in nominations to the Council (s 18(3)(b)-(c)) and, where authorised and issued a written authority by the Registrar, can have authorised representatives enter workplaces to investigate suspected breaches (s 34B(1)-(3), s 35). The authorised representative scheme links to federated industrial right‑of‑entry permits (s 34B(3)(b)). Transport associations are also persons who may refer disputes to the Tribunal (s 40(1)).

Inspectors, the Council, Tribunal and Minister. Inspectors as defined in the IR Act have adapted powers under s 32 to investigate compliance, including powers in s 98(3) of the IR Act applied to this Act. The Council (established under s 17) is an appointed body (s 18) with specific functions (s 19) and procedural provisions in Schedule 2. The Tribunal is the Commission constituted by a Commissioner (s 38) and is the primary enforcement forum for disputes. The Minister has supervisory authorities , giving directions to the Council (s 21), access to Council information (s 22), and the ability to intervene in Tribunal proceedings (s 41).

Third parties and the public. The Act also affects third parties via restricted contract terms and the authorisation in s 52 that preserves certain joint negotiation activities from contravening the Trade Practices Act and state Competition Code, meaning other participants in supply chains may be drawn into authorised joint bargaining. The economic effects extend beyond named parties because the regime changes default bargaining positions, disclosure requirements and dispute resolution avenues.

Geographic and cross‑jurisdictional limits. Section 6 determines geographic application: the Act applies where contracts are entered into in WA, services are performed wholly in WA, or a substantial part is performed in WA. Section 6(2) carves out contracts covered by specified interstate statutory instruments (NSW Contract Determinations or the Victorian Owner Drivers and Forestry Contractors Act). These provisions matter for carriers operating across state boundaries.

Excluded subjects and limitations. The Act does not cover employment contracts (s 5(3)) and does not allow parties to contract out of statutory protections (s 7(1) and (3)). There is a six‑month transitional period on the non‑application of s 7(1) for existing contracts when the section first came into operation (s 7(4)).

Who bears costs and compliance duties. Practically, hirers shoulder many of the compliance obligations: they must avoid prohibited clauses, make timely payments (s 10, Schedule 1), produce records when requested (s 34), and potentially face Tribunal orders or civil penalties for wrongdoing. Owner‑drivers gain statutory protections but also have duties to appoint negotiating agents properly and authorise authorised representatives in writing before they exercise powers (s 34E). Transport associations that seek authorised representative powers must ensure nominated persons hold the requisite industrial entry permits and secure Registrar authorities (s 34B).

Time limits on referrals. Parties should note jurisdictional time bars in s 40(2): disputes under an owner‑driver contract cannot be referred to the Tribunal more than 12 months after the contract expires where referrals are by parties under s 40(1)(a) or (c). That time limit shapes dispute strategy for owner‑drivers and hirers.

In summary, the Act targets a defined commercial relationship between owner‑drivers and hirers, brings industry structures (transport associations, Council) and adjudicative capacity (Tribunal) into play, and creates procedural duties and enforcement exposures that primarily affect hirers but also constrain owner‑drivers and their representative bodies.

The Act establishes a network of duties and rights for owner‑drivers, hirers, transport associations, the Council, the Tribunal and enforcement officers. Below are the principal legal obligations and entitlements with statutory references.

Duties on hirers

Avoid prohibited contract terms. Contract terms making liability to pay contingent on the hirer being paid by another person have no effect (s 9). Terms requiring payment more than 30 days after a payment claim are read down to 30 days (s 10). Any contract provision permitting termination on less than the statutory minimum notice period has no effect (s 10A). The regulations may prescribe other prohibited provisions (s 11).
Comply with code of conduct obligations. If the Governor prescribes a code (s 26), the code may require hirers to pay at safe and sustainable rates, keep specified records and provide written information to owner‑drivers including guideline rates (s 27(1)(b)-(f)).
Record production and inspection. On written request by a relevant person (the owner‑driver or a person authorised in writing by them), a hirer must produce and permit inspection of its records relating to the owner‑driver and must permit copying and entry for inspection, within 7 days (s 34(2)-(3)). That duty continues for as long as the records are required to be kept under the code (s 34(3)(a)). Failure to comply with s 34(2) is a civil penalty provision under the IR Act (s 34(5)).
Deal with negotiating agents. Recognise and deal exclusively with a negotiating agent once presented with the instrument of appointment, subject to notice requirements (s 28(2)-(4)). Do not coerce appointment decisions (s 28(5)).
Ensure payment and interest. Where contracts are silent, implied provisions set time for payment and interest on overdue amounts (ss 13-14; Schedule 1 Divisions 1-2). The default rules require responses to payment claims within 14 days (Schedule 1 Div 1 cl 1) and interest at the Civil Judgments Enforcement Act rate (Schedule 1 Div 2 cl 2).

Duties on owner‑drivers

Avoid unconscionable or misleading conduct. Owner‑drivers are prohibited from engaging in conduct that is unconscionable with respect to hirers (s 31) and from conduct that is misleading or deceptive with respect to a hirer (s 31C).
Observe negotiating agent rules. Owner‑drivers may appoint negotiating agents and, when presented with an agent’s instrument, must not refuse recognition (s 29). Do not coerce hirers regarding appointment decisions (s 29(5)).
Authorise investigations. An authorised representative may only exercise powers to investigate a suspected breach of a contract to which the owner‑driver is a party if the owner‑driver has authorised the representative in writing (s 34E).

Rights and entitlements for owner‑drivers

Statutory implied protections. Where contracts are silent, owner‑drivers benefit from implied provisions about payment timing, interest, payment claim content and minimum notice for termination (ss 13-15A and Schedule 1).
Access to records. Owner‑drivers (or their written agents) can obtain hirer records related to their contract (s 34).
Tribunal remedies. Owner‑drivers can refer disputes to the Tribunal (s 40) and may obtain remedies including orders for payment, restitution, specific performance, variation or voiding of unfair terms and other orders the Tribunal considers fair (s 47A(1) and (2)). A term paying less than guideline rates is presumed unfair unless the hirer proves otherwise (s 31A(2)).
Protection from detriment. Owner‑drivers are protected from discrimination or detriment for exercising entitlements under the Act, bringing proceedings, informing on contraventions or participating in joint negotiations (s 31D).

Council and Ministerial powers

Council functions. The Council must prepare guideline rates, promote and encourage compliance with the code, publish model contracts and advise the Minister on the code (s 19). The Council may determine guideline rates by Gazette notice (s 27(1)(f)) and must obtain the approval of the chairman before determining, amending or revoking guideline rates (s 27(2)).
Ministerial directions. The Minister can give written directions to the Council about the performance of its functions, and the Council must give effect to those directions; such directions must be laid before Parliament and included in the Departmental annual report (s 21). The Minister also has rights to access Council information (s 22) and may intervene in Tribunal proceedings (s 41).

Inspectors and authorised representatives

Inspectors. Industrial Inspectors have adapted powers to investigate compliance with the Act and the code (s 32). Obstructing or giving false information to an inspector attracts civil penalties under the IR Act (s 33).
Authorised representatives. The Registrar issues authority to authorised representatives nominated by an organisation that is a transport association (s 34B). The representative must be an officer or employee of the organisation and hold a right of entry permit under industrial law (s 34B(3)). Authorities can be revoked or suspended by the Registrar or the Tribunal on specified grounds (s 34D).

Tribunal processes and powers

Referral rights. Disputes may be referred by parties to contracts, transport associations, inspectors and the Minister in the circumstances listed in s 40. There are time limits: a dispute under an owner‑driver contract cannot be referred by these parties more than 12 months after the contract expires (s 40(2)).
Conciliation and compulsory attendance. The Tribunal may conciliate (s 44) and summon persons to conciliation (s 45). Failure to comply can be enforced by the Tribunal under s 46.
Determinations and remedies. The Tribunal may make summary (s 38A) or default (s 38B) determinations and grant remedies under s 47A, including powers to declare terms void, insert new terms or vary terms where unconscionable conduct is established (s 47A(2)). Monetary orders may be enforced by filing a certified copy in court (s 50).

Protections and liabilities

Protection for officials. The Act protects public servants and other persons acting in good faith in the performance of functions under the Act from tort and civil liability (s 55) and provides immunity for compliance in good faith (s 56).
Confidentiality. Persons performing functions under the Act must not disclose or use information obtained in the performance of their roles except in specified circumstances; breach attracts a fine and imprisonment (s 53).

Civil penalties and criminal exposure

Many contraventions are framed as civil penalty provisions under the IR Act (for example, ss 33, 34 and 36). The confidentiality provision (s 53) creates a criminal penalty (fine and imprisonment). Schedule 2 imposes a penalty for failure to disclose interests by Council members (Schedule 2 cl 16: $10 000). Tribunal remedies are broad and can directly alter contractual rights and obligations (s 47A).

These duties and rights create a regulatory architecture which shifts default contract outcomes, enables industry guidance through codes and guideline rates, gives statutory access to records and investigatory powers, and provides an adjudicative forum (Tribunal) with a wide remedial toolbox.

The Act establishes a mixed enforcement landscape that combines civil penalties, administrative remedies, Tribunal orders and a small set of criminal sanctions. Enforcement responsibilities are split across inspectors, the Tribunal, the Registrar and courts. The principal enforcement mechanisms and penalty structures are as follows.

Civil penalty regime (IR Act framework). Several contraventions are expressly framed as civil penalty provisions for the purposes of the Industrial Relations Act 1979 (the IR Act) s 83E. Examples include obstructing or hindering an inspector or failing to comply with an inspector’s lawful requirement (s 33(4)), failing to comply with the access/inspection duties under s 34(2) (s 34(5)), the obligation of authorised representatives to notify the Registrar if they cease to hold a required permit (s 34C(2)) and prohibitions on obstructing authorised representatives (s 36). The effect of framing these provisions as civil penalties is that the IR Act’s enforcement machinery, penalty levels and civil enforcement procedures are brought into play.

Tribunal remedies and enforcement. The Tribunal has broad remedial powers when determining disputes: ordering payment of sums found owing, awarding damages including exemplary damages and interest, ordering refunds, orders in the nature of specific performance, declarations regarding debt, orders to do or refrain from doing something and any other orders the Tribunal considers fair (s 47A(1)(a)-(f)). The Tribunal may also declare, insert or vary contract terms where unconscionable conduct involving unfair terms is found (s 47A(2)). The Tribunal may issue orders to prevent a person from entering into certain owner‑driver contracts (s 48). Monetary orders of the Tribunal can be enforced in a court by filing a certified copy and affidavit; on filing the Tribunal order becomes an order of the court and enforceable accordingly (s 50). Non‑compliance with non‑monetary orders may be treated as contempt of the Industrial Appeal Court and punished under the IR Act (s 51).

Summary and default determinations. To manage vexatious or meritless claims and to expedite defaults, ss 38A and 38B allow summary determinations (without a hearing in limited circumstances) and default determinations (where a party fails to comply with Tribunal directions or file a response within prescribed time), respectively. Either form of determination can attract the same remedial powers available under s 47A, subject to the Tribunal’s power to set aside determinations on conditions, including costs (ss 38A(2)-(4), 38B(3)-(4)).

Civil contempt and court enforcement. When a Tribunal order is not a mere monetary order, failure to comply is a matter for contempt in the Industrial Appeal Court under s 51. Monetary orders are enforced by filing in a court as noted. The Tribunal also has power to enforce directions and compulsory conciliation attendance with the same powers and duties of the Full Bench under the IR Act (s 46), which can include the use of court processes to secure compliance.

Criminal penalties. The Act contains at least one explicit criminal penalty: breach of confidentiality under s 53 carries a fine of $12 000 and imprisonment for 12 months. Schedule 2 also prescribes a penalty (a fine of $10 000) for failure by a Council member to disclose a material personal interest (Schedule 2 cl 16(1)). The majority of other contraventions are framed as civil penalties.

Administrative sanctions for authorised representatives. The Registrar must revoke an authorised representative’s authority where the representative no longer holds the required entry permit or on application by the secretary of the organisation that applied for the authority (s 34D(1)). The Tribunal may, on application, revoke or suspend an authority on grounds of improper exercise of power, intentional undue hindrance during work time, or loss of relevant permits (s 34D(3)). Failure to return a revoked authority within 14 days is a civil penalty provision (s 34D(5)-(6)).

Protections and defences. The Act provides protections from civil and criminal liability for persons acting in good faith in the performance of functions under the Act (s 55 provides protection from tort claims; s 56 protects compliance in good faith). These protections limit unsuccessful collateral liability against officials and persons complying with statutory duties in good faith.

Procedural and evidentiary tools. The Tribunal may rely on conciliation and compulsory attendance powers (ss 44-46) and may require the production of documents and records during investigations by inspectors and authorised representatives (ss 32, 35C). For authorised representatives, statutory notice requirements apply before a requirement to produce records (s 35C(2)) unless waived by Tribunal certificate (s 35C(3)-(4)).

Interim and injunctive relief. While the Act’s primary remedies are Tribunal orders, parties may seek injunctive relief or other interim measures through the Tribunal processes (see s 47(3) guidance requiring outcomes on terms that could reasonably have been agreed) and, where jurisdictional interaction with courts arises, courts retain powers unless the Tribunal has exclusive jurisdiction per s 49.

Practical enforcement consequences. In practice, hirers face exposure to civil penalties for failing to comply with inspection or entry requirements, to Tribunal orders for overdue payments (including interest), and to contract variation or termination of unfair terms. Owner‑drivers have the right to initiate Tribunal proceedings, obtain copies of certified orders for court enforcement and seek orders voiding or varying unfair contract terms. The criminal confidentiality penalty is notable for persons involved in administration who might disclose protected information outside permitted channels.

Overall, enforcement is calibrated towards administrative adjudication and civil remedies with limited criminal sanctions, and the Tribunal is central to dispute resolution and remedial action.

The Act is framed to operate alongside and in relation to several state and Commonwealth statutes. It incorporates, cross‑refers to and, in some instances, authorises conduct that interacts with other legal regimes. The key statutory interactions and their mechanical consequences are summarised below.

Industrial relations and applied provisions. The Industrial Relations Act 1979 (IR Act) is directly engaged in multiple ways. Inspectors exercise powers under s 98(3) of the IR Act as adapted by s 32 of this Act; several contraventions are designated civil penalty provisions for the purposes of the IR Act s 83E (e.g. ss 33, 34, 34C, 36). Part 9 explicitly applies a set of provisions from the IR Act to Tribunal practice and procedure (s 43(1) lists applied provisions such as ss 22B, 26, 27, 28, 29B, 32A, 33, 34(1), (3)-(4), 36, 49, 90, 91 and 92). The applied provisions operate with modifications set out under s 43(2) and as the Tribunal may determine necessary. Section 43(3) modifies IR Act s 90(1) appeals grounds to focus on excess of jurisdiction. The consequence is that Tribunal practice, procedural rules, appeals framework and enforcement are tied into the state industrial relations machinery.

Federal right‑of‑entry and Fair Work Act. The authorised representative scheme for transport associations requires the representative to hold a right of entry permit under the IR Act or an entry permit under the Fair Work Act 2009 (Commonwealth) s 512, and the Registrar must not issue authority unless the nominated person holds an applicable permit (s 34B(3)(b)). The Act therefore links its authorised representative powers to federal industrial entry permit regimes, and amendments in 2024 (No. 43 of 2024 s 158) adjusted provisions in ss 34B and 34C. This cross‑referral means authorised representative powers are contingent on compliance with federal right‑of‑entry processes.

Competition and trade practices law. Section 52 contains an express authorisation for particular conduct that otherwise could raise issues under the Trade Practices Act 1974 (now the Competition and Consumer Act 2010) and the state Competition Code. It authorises making a code of conduct, actions taken to comply with the Act or code, joint negotiation activity by owner‑drivers preparatory to bargaining with a single business, actions by negotiating agents in authorised joint negotiations and dealings between owner‑drivers and their negotiating agents. The statutory authorisation narrows the exposure of specified cooperative activity to competition law challenge. The scope definition of “single business” and treatment of related corporations as one entity (s 52(2)) further calibrates the competition‑law interface.

Corporations, taxation and employment law definitions. The owner‑driver definition refers to external statutory definitions: “listed public company” borrows the Income Tax Assessment Act 1997 meaning and “officer” borrows the Corporations Act 2001 meaning (s 4(1) and definition list). The Act excludes contracts of employment from the owner‑driver contract definition (s 5(3)). Consequently, the Act’s protections and duties apply to independent contractor relationships that meet the owner‑driver test, not to employment relationships , though determining employment status and whether a body corporate falls within s 4(2)(b) may require reference to corporate and taxation definitions.

Civil judgment enforcement and interest. Schedule 1 Division 2 fixes the rate of interest payable on overdue amounts to the rate prescribed under the Civil Judgments Enforcement Act 2004 s 8(1)(a). This cross‑reference means interest accrues at a statutorily set rate consistent with civil enforcement settings for court judgments.

Road traffic and heavy vehicle definitions. The Act adopts the meaning of “heavy vehicle” from the Road Traffic (Vehicles) Act 2012 s 3(1) (s 3 definition). That links application of the Act to the road‑traffic statutory architecture regarding vehicle classifications, which matters for determining whether a particular transport activity falls within the owner‑driver regime.

Workers compensation. The code’s requirements to capture typical fixed and variable overheads for guideline rates explicitly include premiums payable under the Workers Compensation and Injury Management Act 2023 (s 27(4)(b)). That inclusion mandates that guideline rates consider workers compensation costs, which ties the Act’s calculation of safe and sustainable rates into the state workers compensation regime.

Limits on contracting out and parliamentary oversight. The Act declares that provisions in agreements purporting to exclude, modify or restrict the operation of the Act or the code have no effect (s 7(1)). The Minister’s directions to the Council must be laid before Parliament (s 21(2)) and included in departmental annual reporting (s 21(3)). The Minister can also make declarations under Schedule 2 clause 20 to render clauses about voting by interested Council members inapplicable, but must lay those declarations before Parliament (Schedule 2 cl 20).

Jurisdictional exclusivity and concurrent court jurisdiction. Section 49 restricts court jurisdiction where disputes have been referred to the Tribunal and no issue was the subject of civil court proceedings at the time of referral. Courts may retain jurisdiction where proceedings pre‑existed or are transferred; the Tribunal ceases to have jurisdiction if it becomes aware of concurrent court proceedings except in specified circumstances (s 49(3)-(4)). Monetary orders are enforced by courts (s 50), and non‑monetary orders may attract contempt proceedings (s 51). That architecture recognises both Tribunal primacy for disputes and court enforcement power for orders.

Regulatory and subordinate law. The Act delegates significant detail to regulations (s 57) and the Governor may prescribe a code of conduct by regulation on the Minister’s recommendation (s 26). Regulations can adopt external standards, codes or rules as in force or as amended (s 57(2)), which permits the code or regulations to import technical standards and industry practice established outside the statute.

In practice, these interactions mean that counsel, compliance professionals and contracting parties must consider multiple statutes (IR Act, Fair Work Act, Competition and Consumer Act/Competition Code, Civil Judgments Enforcement Act, Road Traffic legislation, Corporations Act and Workers Compensation law) when interpreting obligations, defending or prosecuting disputes, and when preparing or revising contracts and procedures.

The Act’s compilation table and inline amendment notes record a moderate stream of legislative changes since assent in 2007. This section summarises the material amendments, commencement timing and the specific statutory insertions that change the Act’s scope or mechanics.

Original enactment and commencement. The Owner‑Drivers (Contracts and Disputes) Act 2007 received assent on 6 June 2007. Sections 1 and 2 came into operation on the day of assent under the Interpretation Act 1984; the remainder of the Act (other than specified sections) commenced on 1 August 2008 (Compilation table and s 2 notes).

Key subsequent amendments and their effects

Public Sector Reform Act 2010 (No. 39 of 2010). Amended ss 24 on remuneration and allowances; the compilation table records this amending Act commenced 1 December 2010 with effect for the relevant provision from that date. This was an administrative amendment affecting Council member remuneration (s 24).
Statutes (Repeals and Minor Amendments) Act 2011 (No. 47 of 2011). Amendments to the Act were effected on 26 October 2011; the in‑text note records changes to s 3. These are technical statutory updates.
Road Traffic Legislation Amendment Act 2012 (No. 8 of 2012). This Act amended definitions relating to heavy vehicles and related matters with later commencement (see compilation notes: certain amendments commenced 27 April 2015). Section 3’s definition of heavy vehicle was subsequently aligned to the Road Traffic (Vehicles) Act 2012.
Statutes (Repeals and Minor Amendments) Act 2014 (No. 17 of 2014). Minor amendments occurred and the compilation notes show commencement on 6 September 2014.
Reprint 1 (4 Aug 2017). The Act was reprinted to incorporate prior amendments as at that date.
Owner‑Drivers (Contracts and Disputes) Amendment Act 2022 (No. 36 of 2022). This is a substantive amending Act that introduced a suite of changes. The compilation table records assent on 28 October 2022 with staggered commencements: s 1 and 2 on 28 October 2022, specified sections (such as s 12) on 29 October 2022, and many of the Act’s amendments commencing 1 June 2023. Specific insertions and amendments attributed to this Act in the text include: s 10A (prohibited: provisions allowing less than minimum notice period) inserted by No. 36 of 2022 s 5; s 15A (minimum period of notice for terminating contract) inserted by No. 36 of 2022 s 6; substantial amendments to unconscionable conduct provisions (s 30 and 31 amended No. 36 of 2022 s 8-9); insertion of s 31A (unfair terms) by No. 36 of 2022 s 10; insertion of Part 6A (ss 31B-31C) and Part 6B (s 31D) by No. 36 of 2022 s 11; insertion of rights of entry Division in Part 8 (ss 33A, 34-36 etc.) and related changes (ss 13-18 amendments). The 2022 amending Act substantially expanded protections on termination notice, unfair terms, misleading conduct and entry/inspection regimes.
Workers Compensation and Injury Management Act 2023 (No. 21 of 2023, s 709). The 2023 Act amended s 27(4) to include premiums payable under the Workers Compensation and Injury Management Act 2023 in the list of overheads to be considered for guideline rates; the compilation table cites a commencement on 1 July 2024 for that insertion.
Industrial Relations Legislation Amendment Act 2024 (No. 43 of 2024, s 158). The compilation table notes assent on 13 November 2024 and commencement on 31 January 2025 for the relevant provisions. The in‑text notes indicate amendments to ss 34B, 34C and 34D in 2024 (notably to the authorised representative scheme). Specifically, s 34B was amended by No. 43 of 2024 s 158(2) and s 34C by s 158(3); s 34D was also amended by s 158(4). Those amendments recalibrate issuance and revocation mechanics for authorised representatives and reporting duties when an authorised representative loses a required entry permit.

Transitional provisions. Part 11 contains transitional rules tied to the 2022 amendments. Section 60 disapplies s 10A and Schedule 1 Division 4 in relation to notices of termination given before the commencement day of specified 2022 amendments. That preserves prior notice arrangements for pre‑existing termination notices.

Commencement staggering and practical effect. The compilation table shows that some provisions had different commencement dates; for example, ss 35 and 36 commenced 1 June 2023 (see compilation table), with earlier enactment or royal assent dates cited for other parts. Practitioners need to check the specific commencement for any provision under scrutiny as the 2022 amendments introduced new sections and altered others with staggered commencement days.

Implications for interpretation. The amendment history shows an incremental expansion of the Act’s protective and investigatory scope, particularly in 2022 when minimum notice provisions, unfair terms, misleading conduct and authorised representative powers were added or expanded. The amendments tether several substantive concepts to procedural devices (Tribunal, Council guideline rates, codes) which means litigation and regulatory practice will reflect the changes introduced in 2022 and subsequent amending Acts.

Always consult the compilation table and the commencement notes for the exact operative dates when advising on historical facts or disputes spanning the amendment periods.

The statutory text provided contains no reported case law or judicial decisions. The Act’s compilation and notes do not list decisions of the Tribunal or courts construing the Act. Therefore the Act’s litigation history , as recorded in the source material you provided , is blank. That said, the Act creates multiple potential litigation and adjudication pathways likely to generate disputes; below are concrete procedural avenues and the types of litigation issues that parties and advisers should expect, with references to the statutory provisions that create them.

Primary adjudicative forum: Road Freight Transport Industry Tribunal. The Commission sitting as the Road Freight Transport Industry Tribunal has primary jurisdiction to hear and determine disputes arising under the Act, the code or an owner‑driver contract (s 38). Parties may expect cases on payment disputes, unconscionable conduct claims, challenges to unfair terms, requests for variation or invalidation of contractual clauses, disputes over termination and notice and applications by transport associations and inspectors. The Tribunal’s statutory powers include summary and default determinations (ss 38A, 38B) and remedies under s 47A (monetary awards, restitution, orders to refrain from conduct, alteration or voiding of terms). The Tribunal’s procedures are linked to the IR Act (s 43) so practitioners should prepare for industrial‑style practice and procedure (filing, conciliation, compulsory attendance under ss 44-46).

Likely classes of disputes. The Act creates specific dispute categories that the Tribunal will likely address:

Payment disputes (defined in s 37(2)) where amounts claimed in payment claims are not paid in full or are disputed; s 41A allows the Tribunal resolving an initial payment dispute to determine subsequent similar disputes under the same contract.
Unconscionable conduct claims by owner‑drivers against hirers (s 30) and vice versa (s 31) where relative bargaining strength, disclosure, pressure or unfair terms are alleged. Section 31A sets out factors for assessing unfair terms and creates a statutory presumption that terms paying below guideline rates are unfair unless the hirer proves otherwise (s 31A(2)); that will be a fertile ground for litigation over guideline‑rate methodology and evidentiary showing.
Contract termination and minimum notice disputes where Schedule 1 Division 4 and s 10A affect the validity of termination notices, and s 5 payment‑in‑lieu provisions apply (Schedule 1 cl 5). Questions about exceptions (material breach, serious wilful misconduct, exceptional unforeseeable circumstances , Schedule 1 cl 4(4)) are likely to be litigated.
Access to records and authorised representative entry disputes under Part 8 (ss 34-36). Challenges may arise over whether an authorised representative holds a valid authority (s 34B), whether notice requirements for production of records were met (s 35C(2)-(4)), and whether an owner‑driver’s written authorisation for an authorised representative was obtained (s 34E).
Confidentiality breaches and the narrow criminal sanction in s 53 may spawn both administrative inquiries and potential criminal prosecutions in defined circumstances.

Interplay with courts and alternative forums. Section 49 restricts concurrent court jurisdiction in specified circumstances where a dispute has been referred to the Tribunal. But courts remain relevant for enforcement of monetary orders (s 50), contempt for non‑compliance with non‑monetary orders (s 51), and for judicial review of Tribunal decisions on traditional public law grounds. Section 43(3) modifies the IR Act’s appeal grounds by changing s 90(1), which practitioners must note when contemplating judicial review or appeal avenues. Where a dispute overlaps with federal industrial or competition law, concurrent proceedings in federal courts could arise; s 52’s authorisation for certain conduct may be a federal law defence in some competition contexts.

Practical litigation risks and evidentiary battlegrounds. The Act creates specific presumptions (for example s 31A(2) on guideline rates) that shift the evidential burden in some disputes. Issues likely to feature in litigation include: calculation and methodology for guideline rates (s 27(3)-(4)); whether specific contractual terms are “unfair” under s 31A criteria; whether pay‑if‑paid clauses were effectively excluded by s 9; whether payment claim formalities under Schedule 1 Div 3 were met; compliance or non‑compliance with notice periods or exemptions in Schedule 1 cl 4; and whether authorised representatives complied with the written authorisation requirements (s 34E) and entry notice rules (s 35C(2)-(4)).

No cases named in the Act. Since the Act text provided contains no case citations, there is no legislatively listed litigation history to summarise. Advisers must therefore construct precedent from Tribunal determinations and court judgments after the Act’s operation; these would be located in Tribunal decisions, decisions of the Industrial Appeal Court or judicial review and appeal jurisprudence applying or construing the Act and its interplay with the IR Act and other laws.

Practical note for litigators and compliance teams. Expect disputes to hinge on documentary proof of payment claims, timing, contract text (and whether clauses are void/read‑down under ss 7, 9, 10, 10A), the content and publication methodology for guideline rates (s 27), authorisations for authorised representatives (s 34E and s 34B), and reliance on the code if one is prescribed (s 26-27). Parties should also be mindful of procedural traps: summary/default determination rules (ss 38A/38B), Tribunal conciliation and compulsory attendance powers (ss 44-46), and the 12‑month limitation for party‑referred disputes after contract expiry (s 40(2)).

Because the statutory record provided contains no reported decisions, practitioners will need to source Tribunal determinations and relevant court judgments post‑enactment to map the evolving litigation landscape and to identify precedential positions on key interpretive issues such as the scope of “unfair term”, the evidential weight of guideline rates, and the limits of authorised representative powers.

The Act introduces a number of specific statutory mechanics and traps for unwary drafting, operational practice and dispute strategy. Below are concrete “gotchas” to watch for, each tied to the relevant statutory provision.

Owner‑driver definition excludes many presumed contractors. The definition in s 4(2) is precise: principal occupation must be operation of heavy vehicles supplied by the person, and bodies corporate that are listed public companies are excluded. Organisations and advisers must not assume a person is an owner‑driver simply because they use their own truck; the statutory test has corporate and occupational components. Contracts misclassifying employees may fall outside the Act (s 5(3) excludes employment contracts). Misclassification debates may therefore shift disputes into different legal regimes.
Contract clauses that “purport” to exclude the Act are ineffective. Section 7(1) nullifies any agreement term that purports to exclude or modify this Act or the code. Parties cannot contract out of the statutory regime, and purported waivers are ineffective (s 7(3)). However, s 7(4) created a limited six‑month transitional concession when section 7 came into operation, so the timing of contract formation relative to commencement matters in historical disputes.
Pay‑if‑paid clauses are automatically of no effect. Section 9 voids clauses that make payment contingent on the hirer being paid. Parties that rely on upstream retention arrangements for cashflow must structure risk allocation by other means; trying to preserve contingent payment obligations by re‑labelling them risks invalidity.
Payment timing is strictly capped at 30 days. Section 10 reads down any contractual requirement for payment after 30 days. Drafting longer payment cycles will not be enforced; obtain legal advice before relying on extended payment terms. Payment claims must comply with content requirements in Schedule 1 Div 3; failure to include the required level of detail may give the other party procedural defences.
Minimum notice period and payment‑in‑lieu with a 25% haircut. The statutory minimum notice period is defined in s 3: typically 90 days unless an aggregate original contract term and successive similar contracts are less than 90 days, in which case the minimum is 7 days. Section 10A voids contract terms allowing shorter notice. The Schedule 1 clauses permit a hirer to terminate immediately by paying the total amount that would be payable for the minimum notice period less 25% (Schedule 1 cl 5(a)). That 25% discount is a concrete economic consequence that may surprise hirers and owner‑drivers and prompts drafting caution around termination and substitution arrangements. Note exceptions for termination for material breach, serious wilful misconduct or unforeseeable exceptional circumstances (Schedule 1 cl 4(4)).
Guideline rates carry a rebuttable presumption of fairness. Section 31A(2) presumes that a contract term providing less than the guideline rate is unfair unless the hirer proves otherwise. That shifts evidential burdens; hirers who pay below guideline rates must be prepared to adduce detailed evidence that demonstrates why the guideline rate does not apply or why the term is justified. The mechanics of guideline rate calculation are governed by s 27(3)-(4), which require setting out fixed and variable overheads and typical base employee hourly rates.
Record production timing is tight. A hirer must produce records and allow inspection within seven days of a relevant person’s written request (s 34(3)(d)). The duty continues for as long as the code requires records to be kept (s 34(3)(a)). Failure to comply is a civil penalty provision (s 34(5)). Contracts that attempt to make record access discretionary will not avoid this duty.
Authorised representatives require multiple thresholds. The Registrar must not issue an authority unless the nominated person is an organisation officer or employee, holds a right‑of‑entry permit under the IR Act or a Fair Work Act entry permit, and has not had a previously revoked authority unless the Tribunal orders otherwise (s 34B(3)). Organisations seeking authorised representative powers must align internal recruitment and permit applications with these statutory conditions. Additionally, authorised representatives must secure written authorisation from the owner‑driver before exercising powers for investigating breaches of that owner‑driver’s contract (s 34E).
Notice requirements before production by authorised representatives. For producing records the authorised representative must give at least 24 hours’ written notice if the record is kept at the workplace, or at least 48 hours if kept elsewhere (s 35C(2)). The Tribunal can waive notice in urgent cases but must issue a certificate that the authorised representative must show at entry (s 35C(3)-(4)). Failure to comply with notice rules or to produce the certificate risks procedural challenge to the exercise of powers.
Many enforcement provisions are civil penalties, not criminal. Several prohibitions (e.g. obstructing inspectors, failing to produce records, obstructing authorised representatives) are civil penalty provisions under the IR Act (ss 33(4), 34(5), 36(3)). Parties should not assume criminal exposure unless the statutory language is explicit (as in s 53 for confidentiality). Civil penalties can still be substantial and enforced by industrial tribunals or courts.
Tribunal jurisdiction limits and time bars. A party must be mindful of the 12‑month limit on referring disputes under an owner‑driver contract after contract expiry in certain referral categories (s 40(2)). Also, where a dispute is already the subject of civil proceedings in a court, s 49 limits Tribunal jurisdiction. Strategic decisions about where and when to commence proceedings are therefore critical.
Confidentiality offence is harsh. Section 53 criminalises unauthorised disclosure of information obtained in the course of performing functions under the Act, with a penalty of a $12 000 fine and 12 months’ imprisonment. Persons performing administrative or advice roles must maintain strict records and legal authorisations for disclosure.
Ministerial control over Council. The Minister may give directions to the Council and the Council must comply (s 21). Those directions are tabled before Parliament and included in annual reporting. Parties relying on guideline rates or model contracts should monitor Ministerial directions which could influence Council determinations and industry guidance.
Beware of the interplay with federal law on right of entry. The authorised representative regime explicitly depends on right‑of‑entry permits which may be sourced under federal industrial law (s 34B(3)(b)). Parties must account for both state and federal entry permit mechanics; failure to do so can invalidate an authorised representative’s authority.
Remedies can change contractual arrangements. The Tribunal can declare terms void, insert or vary terms (s 47A(2)). That means a successful party can obtain substantive changes to extant contracts, not merely monetary relief.

To manage these gotchas, parties must evaluate contracts against the statutory defaults, maintain meticulous records, secure proper industry permits and authorisations for negotiation or investigation, and structure termination and payment processes with the Act’s timing and procedural requirements in mind.

Compliance under the Act requires changes to contract drafting, record‑keeping, negotiation procedures and internal processes for handling inspections, entry requests and Tribunal disputes. The following is a practical, statutory‑rooted compliance checklist for hirers, owner‑drivers and transport associations, with references to the relevant sections.

Contract drafting and review

Remove or avoid pay‑if‑paid/when‑paid clauses. Any contract clause that makes liability to pay contingent on the hirer being paid is of no effect per s 9. Replace with clear payment obligations and, if risk allocation is needed, specify security, invoicing and recourse mechanisms that do not make payment contingent on third‑party receipt.
Ensure payment timing is compliant. No clause can lawfully require payment more than 30 days after a payment claim; s 10 reads down such clauses to 30 days. Draft invoicing and payment schedules to ensure payment within 30 days and include processes to manage cashflow consistent with that rule.
Incorporate payment claim formalities. If parties wish to rely on contract‑specified payment claim procedures, ensure they meet or exceed the content requirements in Schedule 1 Division 3 (cl 3): name, date, itemised description of obligations or basis of claim and delivery to the party against whom the claim is made. If the contract is silent the implied provisions apply (ss 13-15).
Draft termination clauses in line with minimum notice rules. The statutory minimum notice period is defined in s 3 (90 days default or 7 days in specified short‑aggregate cases). Section 10A voids terms allowing less than the minimum notice period. If immediate termination is required for business reasons, include the payment‑in‑lieu mechanism that mirrors Schedule 1 cl 5 and be aware of the 25% reduction applicable to immediate termination payments. Include clear definitions of “material breach”, “serious wilful misconduct” and “exceptional circumstances” where those exceptions are to be relied upon, matching the Schedule 1 cl 4(4) list.
Avoid contracting out of statutory protections. Any attempt to exclude or modify the Act’s operation is ineffective (s 7(1)-(3)). Contracts should therefore be drafted to operate with the Act, not to circumvent it.

Record‑keeping and information provision

Prepare for code requirements. If a code of conduct is prescribed (s 26), it may require specific records and written information to be given to owner‑drivers (s 27(1)(d)-(e)). Establish record‑keeping protocols to meet anticipated code standards, including retention periods and the format for providing guideline rates and other information.
Be ready to produce records within seven days. A hirer must comply with a written request by a relevant person to produce and allow inspection of records within seven days (s 34(3)(d)). Implement a process to locate, copy and provide relevant records within that timeframe and ensure secure procedures for providing copies. Keep an index of records relating to each owner‑driver contract for rapid retrieval.
Include data governance protections. Given the confidentiality provision (s 53), internal processes must control access to information obtained under the Act, and any disclosure must be within the listed permitted circumstances. Train staff on confidentiality obligations and create secure channels for authorised disclosures required by law or Tribunal process.

Negotiation and bargaining practices

Recognise negotiating agents properly. When appointing or presented with a negotiating agent, ensure the instrument of appointment is provided and maintain a procedure for recognising and dealing exclusively with the agent within their authority where requested (ss 28-29). Do not coerce appointment or termination of agents (ss 28(5), 29(5)).
Use guideline rates as an evidence standard. If the Council publishes guideline rates (s 27), treat them as important evidential benchmarks. If paying below guideline rates, document why that is justified and gather evidence to rebut the s 31A(2) presumption that below‑guideline terms are unfair.

Authorised representative and inspector interactions

Verify authorised representative authority and permits. Before allowing entry or complying with an authorised representative’s request, confirm they hold a written authority issued under s 34B(2) and the required right‑of‑entry permit as specified in s 34B(3). For hirers, train staff to request to see the authority (s 35A).
Comply with required notice for document production. For authorised representative requests to produce records, ensure the required prior notice was given (24 hours for records at the workplace, 48 hours if kept elsewhere, per s 35C(2)). If served with a Tribunal certificate waiving notice (s 35C(3)), require the representative to show the certificate before producing material.
Cooperate with inspectors lawfully but protect privileged material. Inspectors have specified powers under s 32. Do not obstruct inspectors (s 33) and comply with lawful requirements, while ensuring legally privileged material is protected where applicable and disclosure is legally required.

Dispute management and Tribunal procedure

Use conciliation proactively. The Tribunal emphasises conciliation (s 44). Consider early engagement with conciliation processes to seek resolution before determination. Ensure authorised representatives or legal counsel are prepared for compulsory attendance orders (s 45) and Tribunal directions.
Be prepared for summary/default determinations. The Tribunal can make summary (s 38A) or default (s 38B) determinations where a case has no merit or parties default. Maintain timely and robust procedural filings and responses to avoid default exposure.
Preserve evidence on guideline rates and unfair terms. In disputes, the Tribunal will assess unfair terms per s 31A. Keep contemporaneous records demonstrating bargaining history, disclosures, independent advice obtained by parties, and the financial basis for rates to rebut presumption arguments.

Council and regulatory engagement

Monitor Council publications and Ministerial directions. The Council is empowered to publish guideline rates and model contracts (s 19 and s 27(1)(f)), and the Minister may direct the Council (s 21). Subscribe to Gazette notices and Council communications to act on guideline rate changes and model contract publications.
Engage in regulatory consultation. The Minister must consult the Council before recommending a code (s 26). Industry participants should use prescribed representative bodies and transport associations to participate in consultations.

Operational compliance and training

Update accounting and payroll systems. Ensure invoicing and payment systems can process payments within 30 days and calculate interest under Schedule 1 Div 2 where applicable.
Train commercial and operational staff. Provide training on the Act’s payment claim procedures, record production obligations, termination notice rules and authorised representative interactions. Keep a compliance manual referencing ss 9-11, s 10, s 34 and Schedule 1.
Implement internal compliance logs. Maintain a register of negotiating agents, authorised representative authorities, Tribunal filings, and requests for record production to demonstrate good faith compliance and to defend against allegations of obstructing inspectors or representatives.

Risk management and insurance

Review contractual risk allocation and insurance coverage. Consider insurance for disputes, and review contract indemnities in light of s 7’s prohibition on contracting out. Include legal costs provisions where permissible and ensure insurance policies cover potential Tribunal awards, restitution orders and legal defence costs.
Document independent advice given to parties. Section 31A(1)(j) factors in whether parties obtained independent legal or expert advice. Documenting such advice improves defensibility of contract terms.

Record retention and data controls

Retain records to meet code requirements. Since s 34(3)(a) links duties to the period that records are required under the code, ensure retention periods align with the code and with statutory limitations on disputes.
Protect confidential information. Given the criminal confidentiality provision (s 53), create restricted access protocols for information obtained while exercising statutory functions.

By following this checklist and referencing the statutory provisions cited, hirers, owner‑drivers and transport associations can operationalise compliance. The practical objective is to align contracts, operational processes and dispute readiness with the Act’s substantive defaults, evidentiary presumptions and procedural timelines.

Deep Dive

What it does

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