Unions put in driver’s seat: transport operators to pay

The Prime Minister could revive the controversial road safety renumeration tribunal powers to fight owner-driver truckies over ‘minimum standards’ for workers.

MELBOURNE, AUSTRALIA - NewsWire Photos, JULY 20, 2021. Tip truck drivers protest in Melbourne in pursuit of their claim for a fuel levy.. Picture: NCA NewsWire / David Crosling

Anthony Albanese is preparing to revive Labor’s controversial road safety remuneration tribunal powers and set up a fight with 35,000 owner-driver truckies under a new industrial relations crackdown enabling the Fair Work Commission to “set minimum standards” for road transport workers.

The Department of Employment and Workplace Relations has launched consultation with key stakeholders on the government’s plan to introduce a safety net of entitlements and protections for those in “employee-like forms of work” and independent contractors.

A leaked government document reveals Labor’s second phase of IR reforms will resurrect RSRT-like powers demanded by the Transport Workers Union and NSW Labor senator Tony ­Sheldon, a former TWU national secretary and right-faction powerbroker. Despite a fierce backlash from owner-driver truckies who led protest convoys to Canberra, the Gillard government established the RSRT in 2012 to set pay and conditions for drivers.

The tribunal, which Labor and the TWU claimed would improve driver conditions, lower injuries and combat drug use, was abolished by the Coalition in 2016 over concerns it was discriminating against non-unionised businesses and forcing out mum-and-dad operators.

The Australian can reveal the Albanese government is accelerating its Jobs and Skills Summit pledge to “consider allowing the Fair Work Commission to set fair minimum standards to ensure the road transport industry is safe, sustainable and viable”.

According to a department brief, the government’s objective is that “all workers, regardless of their working arrangement, have access to a safety net of fair minimum entitlements and protections, while all businesses have the opportunity to compete fairly”.

Flagged measures include allowing the Fair Work Commission to set “minimum standards for workers in the road transport industry”, reviewing the definition of ‘employee’ under the Fair Work Act and providing “protections for independent contractors, including the capacity to challenge unfair contract terms”.

The Australian can reveal the Albanese government is accelerating its Jobs and Skills Summit pledge to “consider allowing the Fair Work Commission to set fair minimum standards for road transport workers.

Workplace Relations Minister Tony Burke – who is leading a separate push to deliver Labor’s Same Job, Same Pay labour hire reforms – said there would be “extensive consultation on these measures before we introduce legislation later in the year”.

“We made commitments at both the election and at the Jobs and Skills Summit for workers who currently have no minimum standards,” Mr Burke told The Australian.

Speaking to union delegates in August, Mr Burke credited TWU national secretary Michael Kaine with helping develop the “idea of giving a flexible power to the Commission”.

On closing gaps in the IR system to create a fairer framework for gig economy and road transport workers, Mr Burke told the TWU conference if “you’re like an employee in the work that you do, the Fair Work Commission will be able to determine the appropriate minimum pay and conditions for work”.

A Small Business Ombudsman inquiry into the effects of the RSRT, ordered by the Turnbull government in 2016, found that payment orders made long-distance and supermarket distribution owner-drivers uncompetitive, contributed to some drivers taking their own lives and created a legal minefield for family-run businesses.

Opposition workplace relations spokeswoman Michaelia Cash, who led the abolishment of the RSRT in 2016, on Thursday accused the government of “putting the interests of its union paymasters above the interests of small and family businesses”.

“It is clear that the Albanese government is planning to effectively reintroduce the flawed Road Safety Remuneration Tribunal, putting the livelihoods of 35,000 small-business owner-truck drivers at risk,” she told The Australian. “This is all part of Labor’s attack on flexible employment arrangements which suit both businesses and employees. It is an attack on how thousands of businesses operate and will lead to job losses and business closures.

“It will be bad for the economy, just like the radical industrial relations laws Labor rushed through the parliament.”

The government, which last month passed its Secure Jobs, Better Pay multi-employer bargaining legislation despite warnings from business leaders it would damage productivity and investment, has told stakeholders the FWC should set minimum standards that are “fair, relevant, proportionate, sustainable and responsive”.

“(The standards should) reflect workers’ independence and flexible working arrangements; for example, choosing which tasks to accept and refuse, how to undertake their work, where and when they work, and which businesses to contract with,” the department consultation brief said.

Michaelia Cash says the plan could place the livelihoods of 35,000 small-business owners at risk and opposed the introduction of the program.

The standard-setting framework, which would “mitigate to the greatest extent possible unintended consequences for workers, businesses, consumers and other aspects of the labour market”, is intended to be “accessible, transparent, fair and offer a high degree of certainty to affected parties”.

The government’s guiding principles include a commitment to ensure the nation’s IR system reflects “modern working arrangements and be capable of evolving with emerging forms of work and business practices”.

“All workers should have access to minimum rights and protections regardless of whether they are characterised as an employee or an independent contractor, including access to freedom of association and dispute resolution,” the consultation briefing said. “Businesses should benefit from a level playing field among industry participants while promoting competition and innovation.”

Senator Sheldon, TWU national secretary from 2006 until his 2019 entry to parliament, used his maiden speech to declare “I will not rest until this parliament restores safe rates into this country”. A Senate committee, chaired by Senator Sheldon, released a report in late 2021 recommending the Morrison government work with the TWU, transport industry and stakeholders to establish an independent body, such as a National Transport Tribunal.

The select committee on job security said the tribunal would “review and set minimum standards for safety, pay and conditions for all operators and workers including contractors in the transport sector”.

The Small Business Ombudsman inquiry, released in 2017, found the effect of the RSRT payments order was “discriminatory in its application to owner-drivers and small family businesses”. It found the payments order “resulted in owner-drivers in the long-distance and supermarket distribution sectors being made uncompetitive (and) exacerbated the competitive pressures already faced by owner-drivers”.

“There was significant uncertainty and anxiety for owner-drivers (and others involved in the industry) about the application and impact of the payments order given its complexity and short implementation time,” the 2017 inquiry report said. “It was reported to the inquiry that some owner-drivers found they were unable to cope with further hardship caused by the payments order and took their own lives.”