There is a new high in the ridiculousness of the Fair Work Commission (FWC) and some of its tribunals. The Road Safety Remuneration Tribunal (RSRT) is a part of the FWC and they have proven to be out of touch with reality and a danger to our economy. Below is a response from a member organisation, the Australian Convenience and Petroleum Marketers Association (ACAPMA) to a recent decision that can force owner drivers off the road while letting big business keep going. This report is long but contains all the information and links needed to understand what is happening.
COSBOA has also been part of a campaign run with the Australian Livestock and Rural Transporters Association (ALRTA) and the National Farmers Federation to ensure that all the politicians are aware of this issue and the destructive nature of the response from the RSRT.
The RSRT is supposed to be making roads safer, it won’t achieve that aim with this legislation. Here is some media on the issue.
The past fortnight has seen a series of developments with respect to the operation of the Road Safety Remuneration Tribunal (RSRT) in the face of a new ‘pay rates’ order that many believe threatens the very livelihood of the people that the RSRT was charged to protect – that is, the large number of owner drivers who ply Australia’s major highways. While this issue does not directly affect the fuel distribution industry, these developments are extremely concerning in the face of the RSRT now turning its attention to the transport of fuels (including oil and gas) in Australia.
The Road Safety Remuneration Tribunal (RSRT) was established by the Gillard Government in 2012 amidst fierce lobbying by the Transport Workers Union. The TWU argued that the legislation was necessary to ensure that owner-drivers were not ‘encouraged’ to adopt unsafe driving practices as a result of being poorly remunerated by their freight customers (Opponents of the legislation have since argued that the RSRT is merely a ‘stalking horse’ mounted by the TWU in a vain attempt to increase union membership within the road transport industry).
The passing of the legislation went unnoticed by most in the industry, with few realising that the Road Safety Remuneration Act (2012) actually empowered the RSRT to make orders that took precedence over all other transport-related legislation and enterprise agreements in the country.
In effect, the legislation made the RSRT the supreme authority with respect to the setting of wages and conditions for the road transport industry in Australia.
In December 2013 the RSRT published its first Order. This order – known as the Retail Order – applied to the transport of any goods for sale in a supermarket or any long distance operation.
The implementation of this first Order took effect in May 2014 and caught many industry operators by surprise as a result of most having not fully understood the new and extensive powers of the RSRT.
Following the implementation of the Retail Order, the RSRT followed up with a series of stakeholder consultations canvassing opinion with respect to the setting of the ‘safe pay rates’ to be applied under the new Retail Order.
The accompanying Retail Rates Order was handed down by the Tribunal in December 2015 with the RSRT advising that the new rates would come into effect on 4 April 2016. This latter order sets out the minimum pay rates for contractor drivers providing transport services to supermarkets or performing long distance operations (The order specifically excluded the transport or oil and gas as a result of a specific order for this segment being scheduled for the near future).
The Retail Rates Order has been the subject of substantial criticism (and protest) by owner operators and a wide range of industry bodies, with many claiming that the proposed ‘safe rates’ would result in the rates of a large number owner operators (i.e. small freight businesses) being increased to the point that they were no longer competitive with the large employee-based transport operations.
Ironically, the RSRT Retail Rates Order effectively threatened the very livelihood of a large number of small owner-drivers when what was apparently intended was a desire to set a fair rate that would discourage alleged unsafe driving practices.
Faced with more than 800 applications for a stay in the commencement of the Retail Rates Order, the RSRT scheduled a series of hearings over the 2016 Easter weekend.
While the rest of us were enjoying time away with family and chomping down on chocolate, the RSRT and the transport industry locked horns on legal arguments about the merits of providing a delay to the commencement of the Order to allow time for a proper assessment of the economic consequences to industry and/or reasonable time for the industry to adjust to the new rates.
Meanwhile, and having received numerous representations for industry operators and their representatives, the Federal Government weighed into the debate with the release of a Discussion Paper seeking stakeholder input about the future of the RSRT.
The Discussion Paper (https://docs.employment.gov.au/system/files/doc/other/discussion_paper_rsrs_march_16.pdf) was accompanied by two supporting reports. Key amongst these reports was the 2014 Jaguar Report (https://docs.employment.gov.au/system/files/doc/other/2014_review_of_the_rsrs.pdf ) and a more recent report prepared by Price Waterhouse Coopers (https://docs.employment.gov.au/system/files/doc/other/2016_review_of_the_rsrs.pdf).
The 2014 Jaguar Report recommended repealing the powers of the RSRT to set mandatory ‘safe rates’ while the 2016 Price Waterhouse Coopers Report concluded that:
The abolition of the RSRT would result in significant net benefit to the economy and community at large.
The 2016 Price Waterhouse Coopers Report supported its’ conclusions by stating that:
When considering the 2014 Road Transport Order, we reach the conclusion that there is a high degree of overlap with other agencies who oversight road transport, safety and workplace matters such as the National Heavy Vehicle Regulator, state road authorities, and workplace safety agencies. The system has the flexibility to avoid such overlap yet consultations suggest the Tribunal has not adequately considered existing regulatory systems when making orders.
Soon after, and perhaps appropriately given the 1 April date, the whole debate descended into farce.
With most expecting that the RSRT would actually see the merit of a deferral in the start date of the Retail Rates Order, the Tribunal actually rejected all applications to postpone commencement outright – and advised that the Retail Rates Order would commence on 4th April 2016.
The announcement was immediately greeted by an application to the Federal Court by industry seeking an injunction preventing commencement of the Order pending a hearing in the Court. The injunction was granted during the early evening of the same day (i.e. 1 April 2016).
The 2016 April Fool’s Day ‘Tom Foolery’ was followed by an announcement on Monday 4 April 2016 by Senator the Hon. Michaelia Cash (Federal Minister for Employment) that the Federal Government would soon be introducing legislation into the Parliament that, with the support of the cross benches, would prevent the commencement of the Retail Rates Order until January 2017.
But the ‘fun’ didn’t stop there!
Late yesterday the Federal Court lifted the industry injunction against the RSRT Order, giving immediate effect to the Retail Rates Order and threatening the very viability of a large number of owner drivers and small trucking operations.
“Any reasonable person watching the events of the past 3 weeks would simply have to shake their heads in absolute disgust at the callous disregard paid by all most to the need to protect the livelihood of the large number of small businesses that have been placed in jeopardy by the this RSRT Order”, said ACAPMA CEO Mark McKenzie
“While no one in the transport industry is opposed to all reasonable measures being pursued to improve heavy vehicle safety, the current process effectively pits driver safety (and community safety) against employment and small business survival – this cannot and must not be the means by which road safety improvements are secured in the road transport industry”, said Mark
“With the RSRT now commencing deliberations on a new order for our industry, we have absolutely no confidence in the ability of the RSRT process to deliver safety improvements and guard against perverse employment effects”, Mark continued.
“It is time for all parties to take a ‘Bex’ and have a good lie down”, quipped Mark.
ACAPMA understands that Minister Cash will be introducing legislation into the Parliament seeking a ‘pause’ in the operation of the RSRT – and a deferral in the implementation of the Retail Rates Order – during parliamentary sittings in the week commencing 18 April 2016.
“It is our firm hope that the cross benches – and indeed all Federal Parliamentarians – can come to the aid of this process by supporting a simple pause in the operation of the RSRT so that its future role can be properly considered”, said Mark
Given the substantial threat now posed to the fuels industry, and indeed all motorists in the form of a risk of higher fuel prices for no substantial road safety gain, ACAPMA is lobbying hard for the RSRT Review process to be undertaken as quickly and as effectively as possible.
Members seeking more information about the progress of the Draft Order for Fuel Oil and Gas now before the RSRT should contact the ACAPMA Secretariat on 1300 160 270.