Owner Drivers and Forestry Contractors Act 2005 · Web viewOCPC Victoria, Word 2007, Template Release 12/02/2020 (PROD) Part 1—Preliminary Owner Drivers and Forestry Contractors

Version No. 019

Owner Drivers and Forestry Contractors Act 2005

No. 49 of 2005

Version incorporating amendments as at1 May 2020

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purpose 12 Commencement 23 Definitions 24 Owner drivers and owner driver contracts 65 Haulage contractors and haulage contracts 76 Harvesting contractors and harvesting contracts 87 Regulations regarding contractors and contracts 98 Application of Act 109 Act binds the Crown 11

Part 2—Contracting requirements 12

Division 1—Information booklet 12

10 Information booklet 1211 Information booklet not required for short term engagements 1311A Information booklet for tip truck drivers 1312 Information booklet to be given to tenderers 1413 Contents and availability of information booklet 15

Division 2—Rates and costs schedules 15

14 Rates and costs schedules 1515 Publication of schedules 1616 Provision of applicable schedule to contractor before

engagement 1716A Provision of applicable schedule to tip truck driver 1817 Provision of applicable schedule to tenderers 1918 Provision of revised schedule to contractor during

engagement 19

Division 3—Requirements for ongoing engagements 20

19 Application of Division 20

1

20 Requirements for regulated contracts 2121 Notice of termination 2222 Payment in lieu of notice 2322A Offence not to give minimum period of notice or payment in

lieu 24

Division 4—Further contractual requirements 25

23 Costs of insurance 2524 Amounts for provision of services or equipment by hirer or

other persons 2524A Payment of invoices 25

Division 5—Joint negotiations 26

25 Negotiating agents for contractors 2626 Negotiating agents for hirers 27

Division 6—General 28

26A Manner of giving information 28

Part 3—Codes of practice 29

27 Prescribing codes of practice 2928 Consultation 2929 Application of codes of practice 2930 Compliance with codes of practice 29

Part 4—Unconscionable conduct 30

31 Unconscionable conduct by hirers 3032 Unconscionable conduct by contractors 31

Part 5—Dispute resolution 34

Division 1—Introduction 34

33 Meaning of dispute 34

Division 2—Alternative dispute resolution 34

34 What alternative dispute resolution includes 3435 Referral of disputes for alternative dispute resolution 3536 Representation at alternative dispute resolution 3637 Costs of alternative dispute resolution 3638 Statements made during alternative dispute resolution not

admissible 3739 Immunity of person conducting alternative dispute resolution 37

Division 3—The Tribunal 37

40 Disputes must first be referred for alternative dispute resolution before proceeding to the Tribunal 37

41 Jurisdiction of the Tribunal 38

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42 Time limit for applications 3843 Parties 3844 Powers of the Tribunal 3845 Additional power of Tribunal where failure to give

information booklet or rates and costs schedule 4146 Orders to prevent the entering into of contracts 42

Division 4—Extension of contract variation orders 42

47 Application of Division 4248 What is the extension of a contract variation order? 4349 Application for extension of contract variation order 4450 Procedure on application 4451 Making and publicising order 4452 When does order take effect? 4553 Variation and revocation of order 45

Part 6—The Small Business Commission 46

54 Functions of the Small Business Commission under this Act 46

Part 7—Industry councils 47

Division 1—Transport Industry Council of Victoria 47

55 Establishment and functions 4756 Membership 4857 Constitution and procedure 50

Division 2—Forestry Industry Council of Victoria 50

58 Establishment and functions 5059 Membership 5260 Constitution and procedure 54

Part 7A—Compliance and enforcement 55

Division 1—Authorised officers 55

60A Appointment of authorised officers 5560B Identity cards 5560C Authorised officers subject to Secretary's directions 56

Division 2—Powers of authorised officers 56

60D When may powers be exercised? 5660E Power to require information or documents 5660F Entry and inspection of premises 5760G Retention of documents 58

Division 3—Offences and enforcement 59

60H Failing to produce documents or giving false or misleading documents 59

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60I Protection against self-incrimination 5960J Confidentiality 6060K Who can prosecute under this Act? 6060L Judicial notice of signatures 6160M Proceedings for offences may be brought in Industrial

Division of the Magistrates' Court 6260N Infringements 6260O Imputing conduct to bodies corporate 6260P Criminal liability of officers of bodies corporate—accessorial

liability 6360Q Imputing conduct to partners 65

Part 8—General 66

61 Subjecting contractors or others to detriment 6664 Competition and Consumer Act and Competition Code 6765 Act prevails over regulated contracts 6966 Regulations 69

Part 10—Transitional 71

68 Contracting requirements 7169 Transitional provisions for unconscionable conduct and

disputes 72

Schedule 1––Constitution and procedure of industry councils 73

═══════════════

Endnotes 79

1 General information 79

2 Table of Amendments 81

3 Amendments Not in Operation 83

4 Explanatory details 84

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Version No. 019

Owner Drivers and Forestry Contractors Act 2005

No. 49 of 2005

Version incorporating amendments as at1 May 2020

The Parliament of Victoria enacts as follows:

Part 1—Preliminary1 Purpose

(1) The main purpose of this Act is to regulate the relationship between persons who contract to transport goods in a vehicle, or harvest forest products using motorised equipment, supplied by them and persons who hire them, principally by—

(a) requiring information to be given to contractors;

(b) providing requirements for contracts;

(c) allowing negotiating agents to be appointed;

(d) providing a dispute-resolution mechanism;

(e) conferring functions on the Small Business Commission;

(f) establishing a Transport Industry Council and a Forestry Industry Council;

(g) providing for codes of practice to be made;

(h) prohibiting unconscionable conduct;

(i) providing certain authorisations for the purposes of competition laws;

(j) amending the Victorian Civil and Administrative Tribunal Act 1998.

1

S. 1 amended by No. 33/2019 s. 4(1) (ILA s. 39B(1)).

S. 1(e) amended by No. 16/2017 s. 46.

(2) A further purpose of this Act is to promote—

(a) best practice in the transport industry and forestry industry in relation to the engagement of owner drivers and forestry contractors; and

(b) education and training for owner drivers and forestry contractors.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 December 2006, it comes into operation on that day.

3 Definitions

In this Act—

applicable rates and costs schedule in relation to a contractor, means the most recently published rates and costs schedule applicable to the contractor and the relevant class of vehicle or motorised equipment;

authorised officer means a person appointed under section 60A;

business day means a day other than a Saturday, a Sunday or a public holiday within the meaning of the Public Holidays Act 1993;

code of practice means a code of practice made under Part 3;

contractor means—

(a) an owner driver; or

2

S. 1(2) inserted by No. 33/2019 s. 4(2).

S. 3 def. of applicable rates and costs schedule inserted by No. 33/2019 s. 5(2).

S. 3 def. of authorised officer inserted by No. 33/2019 s. 5(1).

(b) a haulage contractor; or

(c) a harvesting contractor;

corporation has the same meaning as in the Corporations Act;

dispute has the meaning given by section 33;

excavation work means work that involves the removal of soil or rock from a site to form an open face, hole or cavity;

* * * * *

forest products includes—

(a) saw logs, pulp wood, woodchips and fuel wood; and

(b) residual matter, such as waste bark or branches, that is processed on site for use as woodchips, boiler fuel, compost or mulch—

but does not include firewood collected for domestic use;

forestry contractor means a haulage contractor or a harvesting contractor;

Forestry Industry Council means Forestry Industry Council of Victoria established by section 58;

freight broker means a broker or agent in the business of procuring or arranging the engagement of contractors by hirers, including a person who provides an online platform that facilitates the engagement of contractors by hirers;

3

S. 3 def. of excavation work inserted by No. 33/2019 s. 5(2).

S. 3 def. of freight broker repealed by No. 33/2019 s. 5(3)(a).

S. 3 new def. of freight broker inserted by No. 33/2019 s. 5(3)(b).

goods includes freight and materials;

harvesting contract has the meaning given in section 6(2);

harvesting contractor has the meaning given in section 6(1);

haulage contract has the meaning given in section 5(2);

haulage contractor has the meaning given in section 5(1);

heavy vehicle has the same meaning as in the Road Safety Act 1986;

hirer means a person who engages a contractor under one or more regulated contracts;

industry council means Transport Industry Council or Forestry Industry Council;

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

motorised equipment means—

(a) a wheeled or tracked machine powered by a combustion engine, such as a bulldozer, grader, excavator or skidder; or

(b) other equipment powered by a combustion engine, such as a chainsaw, purpose-built forest harvesting machine, hydraulic loading equipment or cable logging system;

negotiating agent means a person or group of persons appointed under Division 5 of Part 2;

officer of a corporation has the same meaning as in the Corporations Act;

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owner driver has the meaning given in section 4(1);

owner driver contract has the meaning given in section 4(2);

person includes a partnership;

rates and costs schedule means a schedule published under section 15 as revised from time to time;

regulated contract means an owner driver contract, a haulage contract or a harvesting contract;

Secretary means Secretary to the Department of Premier and Cabinet;

Small Business Commission means the Small Business Commission established under section 4 of the Small Business Commission Act 2017;

* * * * *

tip truck driver means a contractor who drives a tip truck in connection with excavation work in the building and construction industry;

Transport Industry Council means Transport Industry Council of Victoria established by section 55;

5

S. 3 def. of Secretary inserted by No. 33/2019 s. 5(1).

S. 3 def. of Small Business Commission inserted by No. 16/2017 s. 47(b).

S. 3 def. of Small Business Commis-sioner repealed by No. 16/2017 s. 47(a).

S. 3 def. of tip truck driver inserted by No. 33/2019 s. 5(2).

Tribunal means Victorian Civil and Administrative Tribunal established by section 8 of the Victorian Civil and Administrative Tribunal Act 1998;

vehicle means—

(a) a vehicle that is used on a highway within the meaning of the Road Safety Act 1986 and that is built to be propelled by a motor that forms part of the vehicle; or

(b) a bicycle.

4 Owner drivers and owner driver contracts

(1) For the purposes of this Act, an owner driver is—

(a) a natural person who carries on a business of transporting goods in one or more vehicles supplied by him or her and operated by him or her (whether solely or with the use of additional or relief operators); or

(b) a corporation (other than a listed public company) that carries on a business of transporting goods in one or more vehicles supplied by the corporation or an officer of the corporation and operated by an officer of the corporation (whether solely or with the use of additional or relief operators); or

(c) a partnership of persons referred to in paragraph (a)—

but does not include a haulage contractor.

(2) For the purposes of this Act, an owner driver contract is a contract made in the course of business by an owner driver with another person for the transport of goods by the owner driver.

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(3) It is irrelevant whether 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.

(4) For the avoidance of doubt, an owner driver contract does not include a contract that is a contract of employment.

(5) Subsections (1) and (2) are subject to section 7.

5 Haulage contractors and haulage contracts

(1) For the purposes of this Act, a haulage contractor is—

(a) a natural person who carries on a business of transporting forest products in one or more vehicles supplied by him or her and operated by him or her (whether solely or with the use of additional or relief operators); or

(b) a corporation (other than a listed public company) that carries on a business of transporting forest products in one or more vehicles supplied by the corporation or an officer of the corporation and operated by an officer of the corporation (whether solely or with the use of additional or relief operators); or

(c) a partnership of persons referred to in paragraph (a).

(2) For the purposes of this Act, a haulage contract is a contract made in the course of business by a haulage contractor with another person for the transport of forest products by the haulage contractor.

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(3) It is irrelevant whether a haulage contract provides for a haulage contractor to perform services other than transporting forest products, as long as the services to be performed under the contract predominantly relate to the transport of forest products.

(4) For the avoidance of doubt, a haulage contract does not include a contract that is a contract of employment.


6 Harvesting contractors and harvesting contracts

(1) For the purposes of this Act, a harvesting contractor is—

(a) a natural person who carries on a business of harvesting forest products using motorised equipment supplied by him or her; or

(b) a corporation (other than a listed public company) that carries on a business of harvesting forest products using motorised equipment supplied by the corporation or an officer of the corporation; or

(c) a partnership of persons referred to in paragraph (a).

(2) For the purposes of this Act, a harvesting contract is a contract made in the course of business by a harvesting contractor with another person for the harvesting of forest products by the harvesting contractor.

(3) It is irrelevant whether a harvesting contract provides for a harvesting contractor to perform services other than harvesting forest products, as long as the services to be performed under the contract predominantly relate to the harvesting of forest products.

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(4) For the avoidance of doubt, a harvesting contract does not include a contract that is a contract of employment.


(6) In this section—

harvesting includes—

(a) felling or cutting trees or parts of trees;

(b) extracting, grading and loading forest products;

(c) undertaking any works, including road works, coupe rehabilitation and construction of boundary trails, ancillary to any of the activities referred to in paragraphs (a) and (b).

7 Regulations regarding contractors and contracts

The regulations may prescribe—

(a) persons of a specified class to be contractors for the purposes of this Act or the regulations or specified provisions of this Act or the regulations;

(b) persons of a specified class not to be contractors for the purposes of this Act or the regulations or specified provisions of this Act or the regulations;

(c) contracts of a specified class to be regulated contracts for the purposes of this Act or the regulations or specified provisions of this Act or the regulations;

(d) contracts of a specified class not to be regulated contracts for the purposes of this Act or the regulations or specified provisions of this Act or the regulations.

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8 Application of Act

(1) This Act applies to owner drivers who are engaged—

(a) under an owner driver contract that is made in Victoria or that is subject to the law of Victoria; or

(b) to transport goods wholly within Victoria; or

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

(2) This Act applies to haulage contractors who are engaged—

(a) under a haulage contract that is made in Victoria or that is subject to the law of Victoria; or

(b) to transport forest products wholly within Victoria; or

(c) to transport forest products from Victoria to another place or from another place to Victoria, if a substantial part of the services under the haulage contract are performed in Victoria.

(3) This Act applies to harvesting contractors who are engaged—

(a) under a harvesting contract that is made in Victoria or that is subject to the law of Victoria; or

(b) to harvest forest products within Victoria.

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(4) However, this Act does not apply to an owner driver or haulage contractor who has the benefit of, or is otherwise covered by, a contract determination made under Chapter 6 of the Industrial Relations Act 1996 of New South Wales.

9 Act binds the Crown

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

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Part 2—Contracting requirements

Division 1—Information booklet10 Information booklet

(1) A hirer who intends to engage a contractor (otherwise than through a freight broker) must give the contractor an information booklet that complies with section 13(1) at least 3 business days before the hirer engages the contractor.

Penalty: 25 penalty units in the case of a body corporate;

5 penalty units in any other case.

(2) A freight broker who procures or arranges the engagement of a contractor by a hirer must give the contractor an information booklet that complies with section 13(1) at least 3 business days before the contractor is engaged.



(3) This section does not apply in relation to the engagement of a tip truck driver.

Notes

1 See section 26A for the manner of giving an information booklet to a contractor.

2 Section 60P applies to an offence against subsection (1) or (2).

3 A failure to comply with this section may also result in the Tribunal making an order under section 45 regarding payment to the contractor.

S. 10(1) amended by No. 33/2019 s. 6(1).

S. 10(2) amended by No. 33/2019 s. 6(1).

S. 10(3) inserted by No. 33/2019 s. 6(2).

Note to s. 10 substituted as Notes by No. 33/2019 s. 6(3).

Part 1—Preliminary

Owner Drivers and Forestry Contractors Act 2005No. 49 of 2005

12

11 Information booklet not required for short term engagements

(1) Section 10 does not apply if the contractor is engaged for a period of less than 30 days.

(2) However, if a contractor is engaged by the same hirer or through the same freight broker for a total of at least 30 days in any 3 month period, the information booklet must be given to the contractor on the 30th day on which the contractor is engaged in that period.

(3) An information booklet is not required to be given more than once under subsection (2), unless the information booklet is revised.


11A Information booklet for tip truck drivers

(1) A hirer who intends to engage a tip truck driver (otherwise than through a freight broker) must give the tip truck driver an information booklet that complies with section 13(1) at least 3 business days before the hirer engages the tip truck driver.



S. 11(3) amended by No. 33/2019 s. 7(1).

S. 11(4) inserted by No. 33/2019 s. 7(2).

S. 11A inserted by No. 33/2019 s. 8.



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(2) A freight broker who procures or arranges the engagement of a tip truck driver by a hirer must give the tip truck driver an information booklet that complies with section 13(1) at least 3 business days before the tip truck driver is engaged.



(3) An information booklet is not required to be given more than once under subsection (1) or (2) unless the information booklet has been revised after it was last given to the tip truck driver.

Notes

1 See section 26A for the manner of giving an information booklet to a tip truck driver.


3 A failure to comply with this section may also result in the Tribunal making an order under section 45 regarding payment to the tip truck driver.

12 Information booklet to be given to tenderers

(1) This section applies to a hirer who undertakes a tender process for the purpose of engaging a contractor.

(2) The hirer must not accept a tender from a contractor unless the hirer has given the contractor an information booklet that complies with section 13(1) at least 3 business days before the tender is lodged.


5 penalty units in any other case.Notes

S. 12(2) amended by No. 33/2019 s. 9(1).




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1 See section 26A for the manner of giving an information booklet to a contractor.

2 Section 60P applies to an offence against subsection (2).


13 Contents and availability of information booklet

(1) An information booklet must contain the information, and be in the form, determined by the Minister.

(2) The Secretary must make information booklets available to hirers and freight brokers on request.

(3) The Secretary may make the booklets available, and publish them, on the Internet or in any other manner the Secretary considers appropriate.

Division 2—Rates and costs schedules14 Rates and costs schedules

(1) The Minister, in consultation with the industry councils, must—

(a) develop rates and costs schedules for contractors; and

(b) revise each schedule at periods not exceeding 12 months.

(2) Each schedule must—

(a) specify the class of contractor and vehicle or motorised equipment to which it applies; and

(b) contain the following information—

(i) typical fixed and variable overhead costs for that class of contractor and vehicle or equipment; and

S. 13(2) amended by No. 33/2019 s. 10.



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(ii) the base hourly rate and casual hourly rate that would typically apply to that class of contractor if a contractor of that class were performing substantially similar work as an employee.

(3) For the purposes of subsection (2)(b)(i), fixed and variable overhead costs include, but are not limited to—

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

(b) business administration and insurance costs (including any premiums payable under the Workplace Injury Rehabilitation and Compensation Act 2013);

(c) self-funding of superannuation;

(d) finance costs;

(e) costs of complying with any applicable laws;

(f) costs of engaging additional or relief labour;

(g) depreciation of vehicles or equipment.

15 Publication of schedules

(1) The Minister must publish each rates and costs schedule and each revision of those schedules in the Government Gazette.

(2) The Secretary must make the schedules and revised schedules available to hirers and freight brokers on request.

(3) The Secretary may make the schedules and revised schedules available, and publish them, on the Internet or in any other manner the Secretary considers appropriate.

S. 14(3)(b) amended by No. 67/2013 s. 649(Sch. 9 item 27).

S. 15(2) amended by No. 33/2019 s. 11.



16

16 Provision of applicable schedule to contractor before engagement

(1) A hirer who intends to engage a contractor (other than through a freight broker) must give the contractor a copy of the applicable rates and costs schedule at least 3 business days before the hirer engages the contractor.



(2) A freight broker who procures or arranges the engagement of a contractor by a hirer must give the contractor a copy of the applicable rates and costs schedule at least 3 business days before the contractor is engaged.



(3) Subsection (1) or (2) does not apply—

(a) to the second or subsequent engagement of a contractor by the same hirer or through the same freight broker if the interval between engagements does not exceed 12 months; or

(b) if the contractor is engaged for a period of less than 30 days.

(4) However, if a contractor is engaged by the same hirer or through the same freight broker for a total of at least 30 days in any 3 month period, the most recently published applicable schedule must be given to the contractor on the 30th day on which the contractor is engaged in that period.

S. 16(1) amended by No. 33/2019 s. 12(1)(2).

S. 16(2) amended by No. 33/2019 s. 12(3)(4).

S. 16(3) substituted by No. 33/2019 s. 12(5).



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Notes

1 See section 26A for the manner of giving a rates and costs schedule to a contractor.



16A Provision of applicable schedule to tip truck driver

(1) A hirer who engages or intends to engage a tip truck driver (other than through a freight broker) must give the tip truck driver a copy of the applicable rates and costs schedule at least 3 business days before the tip truck driver is engaged.



(2) A freight broker who procures or arranges the engagement of a tip truck driver by a hirer must give the tip truck driver a copy of the applicable rates and costs schedule at least 3 business days before the tip truck driver is engaged.



(3) Subsection (1) or (2) does not apply to the second or subsequent engagement of a tip truck driver by the same hirer or through the same freight broker if the interval between engagements does not exceed 12 months.

S. 16(5) inserted by No. 33/2019 s. 12(6).





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Notes

1 See section 26A for the manner of giving a rates and costs schedule to a tip truck driver.


3 A failure to comply with this section may also result in the Tribunal making an order under section 45 regarding payment to the tip truck driver.

17 Provision of applicable schedule to tenderers

(1) This section applies to a hirer who undertakes a tender process for the purpose of engaging a contractor.

(2) The hirer must not accept a tender from a contractor unless the hirer has given the contractor a copy of the most recently published rates and costs schedule applicable to that contractor and the relevant class of vehicle or motorised equipment at least 3 business days before the tender is lodged.


5 penalty units in any other case.Notes


2 Section 60P applies to an offence against subsection (2).


18 Provision of revised schedule to contractor during engagement

(1) A hirer who has engaged a contractor (other than through a freight broker) must, during the engagement, give the contractor a copy of each revision of the applicable rates and costs schedule

S. 17(2) amended by No. 33/2019 s. 14(1).




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as soon as practicable after the revision is published.

(2) A freight broker who has procured or arranged the engagement of a contractor by a hirer must, during the engagement, give the contractor a copy of each revision of the applicable rates and costs schedule as soon as practicable after the revision is published.

(3) Subsection (1) or (2) does not apply if the contractor is engaged for a period of less than 30 days.

(4) However, if a contractor is engaged by the same hirer or through the same freight broker for a total of at least 30 days in any 3 month period, the most recently published applicable schedule must be given to the contractor on the 30th day on which the contractor is engaged in that period.

(5) Subsections (3) and (4) do not apply in relation to a tip truck driver.

Notes


2 A failure to comply with this section may result in the Tribunal making an order under section 45 regarding payment to the contractor.

Division 3—Requirements for ongoing engagements19 Application of Division

(1) This Division applies to any ongoing engagement of a contractor that is—

(a) of no fixed duration; or

(b) for a period of at least 30 days.

S. 18(5) substituted by No. 33/2019 s. 15(1).




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(2) A contractor's engagement is to be regarded as ongoing—

(a) despite any interruption or ending of the engagement by the hirer if the interruption or ending is made or done with the intention of avoiding obligations under this Division; and

(b) irrespective of the number of regulated contracts under which the contractor is engaged during the engagement.

20 Requirements for regulated contracts

(1) A regulated contract under which a contractor is engaged must—

(a) be in writing; and

(b) state the guaranteed minimum number of hours of work or income level that the contractor will receive; and

(c) set out the rates to be paid to the contractor; and

(d) set out the minimum period of notice of termination of the engagement, or payment in lieu of notice, in accordance with sections 21 and 22.

Note

There is no minimum period of notice for ongoing engagements of less than 3 months—see section 21(4)(c).

(2) A hirer must not enter into a regulated contract that does not comply with subsection (1).


5 penalty units in any other case.Note

Section 60P applies to an offence against this subsection.

S. 20 amended by No. 33/2019 s. 16 (ILA s. 39B(1)).

S. 20(2) inserted by No. 33/2019 s. 16.



21

21 Notice of termination

(1) The minimum period of notice of termination of an engagement is as set out in the following table.

Category of contractor Minimum notice period

Forestry contractor 3 months

Owner driver of heavy vehicle

3 months

Other owner driver 1 month

(2) Subsection (1) does not apply to an engagement if—

(a) at the contractor's request, the Small Business Commission certifies in writing that it, or a person acting on its behalf, has explained to the contractor—

(i) the effect of subsection (1); and

(ii) that the giving of the certificate and the giving by the contractor of a notice under paragraph (b) will result in subsection (1) not applying to the engagement; and

(b) after having been given a certificate under paragraph (a), the contractor gives the hirer a written notice waiving the application of subsection (1) to the engagement.

(3) The Small Business Commission must issue a certificate under subsection (2)(a) within 21 days after being requested to do so by the contractor, but a certificate issued later than that is not invalid only because of that fact.

(4) Subsection (1) does not apply to—

(a) termination of the engagement by the hirer on the ground of serious and wilful misconduct; or

S. 21(2)(a) amended by No. 16/2017 s. 48(1).

S. 21(3) amended by No. 16/2017 s. 48(2).



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(b) termination of the engagement by the contractor on the ground of a material breach of contract by the hirer; or

(c) an ongoing engagement for a period of less than 3 months.

(5) Nothing in this section prevents persons entering a regulated contract under which notice of termination may not be given before a specified date.

22 Payment in lieu of notice

(1) A hirer may, in lieu of the notice period required by section 21, pay a contractor an amount calculated in accordance with this section.

(2) The amount is the gross amount less the deductible amount.

(3) The gross amount is the higher of—

(a) the amount that would be paid under the regulated contract for the minimum number of hours specified in the contract over the minimum required period of notice;

(b) the monthly average of the amount paid to the contractor by the hirer over the period of 6 months immediately before the termination multiplied by the number of months of the minimum required period of notice.

(4) The deductible amount is—

(a) if the relevant vehicle or motorised equipment is subject to finance arrangements at the time of termination, the amount of variable overhead costs as provided in the most recent applicable rates and costs schedule that would be payable over the minimum required period of notice; or

S. 22(4)(a) amended by No. 40/2007 s. 5(a).



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(b) if the relevant vehicle or motorised equipment is not subject to finance arrangements at the time of termination, the amount of—

(i) overhead costs for finance arrangements for a vehicle or motorised equipment; and

(ii) variable overhead costs—

as provided in the most recent applicable rates and costs schedule that would be payable over the minimum required period of notice.


finance arrangements includes any fees, interest, charges or expenses incurred by a contractor in respect of the purchase, hire purchase or lease of a vehicle or motorised equipment used to provide services under the regulated contract.

22A Offence not to give minimum period of notice or payment in lieu

A hirer must not terminate the engagement of a contractor without giving the contractor the minimum period of notice of termination required by section 21 or paying the contractor in lieu of notice under section 22.



Section 60P applies to an offence against this section.

S. 22(4)(b) substituted by No. 40/2007 s. 5(b).




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Division 4—Further contractual requirements23 Costs of insurance

A hirer must not require a contractor to pay any amount, or make any deductions from money payable to a contractor, in respect of insurance unless—

(a) an insurance policy is in force; and

(b) the hirer has provided a copy of the policy to the contractor.

24 Amounts for provision of services or equipment by hirer or other persons

A hirer must not require a contractor to pay any amount, or make any deductions from money payable to a contractor, in respect of the provision of any services or equipment by the hirer or any other person to the contractor unless—

(a) the amounts are specified in the regulated contract; and

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

(c) if practicable, the hirer has given the contractor an opportunity to obtain the services or equipment from another supplier.

24A Payment of invoices

(1) Subject to subsection (2), a hirer must pay an amount payable to a contractor under a regulated contract within 30 days after receipt of an invoice from the contractor in relation to the amount.




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(2) Subsection (1) does not apply if—

(a) there is a dispute over the amount payable; or

(b) the hirer and the contractor agree to a different period for payment and that period is not unfair to one of the parties.

Division 5—Joint negotiations25 Negotiating agents for contractors

(1) A contractor or a group of contractors may, by instrument, appoint a person or group of persons to be the negotiating agent for the contractor or contractors in relation to the engagement of the contractor or contractors, including the making, variation or termination of regulated contracts.

(2) Subject to subsection (3), a hirer must not refuse to recognise a negotiating agent duly appointed by a contractor or group of contractors 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, a contractor or group of contractors—

(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.

(6) To avoid doubt, a contractor may be offered a regulated contract on terms and conditions

S. 25(6) inserted by No. 33/2019 s. 19.



26

negotiated under this section whether or not the contractor appointed, or was a member of the group that appointed, the negotiating agent who negotiated those terms and conditions.

26 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 a contractor or contractors, including the making, variation or termination of regulated contracts.

(2) Subject to subsection (3), a contractor or group of contractors 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 person, 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, a contractor or group of contractors 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.

Division 6—General

Pt 2 Div. 6 (Heading and s. 26A) inserted by No. 33/2019 s. 20.



27

26A Manner of giving information

(1) If a hirer or freight broker is required under this Part to give an information booklet or rates and costs schedule to a contractor, the hirer or freight broker may do so by sending the contractor a link to an Internet site on which the information booklet or rates and costs schedule is available.

(2) Subsection (1) does not limit the manner in which a hirer or freight broker may give an information booklet or rates and costs schedule to a contractor under this Part.Example

The hirer or freight broker might give the contractor an information booklet or rates and costs schedule in person or by mail, or by electronic communication under the Electronic Transactions (Victoria) Act 2000.




28

Part 3—Codes of practice27 Prescribing codes of practice

(1) The Governor in Council, on the recommendation of the Minister, may make regulations prescribing codes of practice in relation to the engagement of contractors.

(2) A code of practice may require hirers to adopt the standards of conduct and practice set out in the code with respect to contractors or classes of contractors.

28 Consultation

(1) Before making a recommendation under section 27(1) for a code of practice in respect of owner drivers or a class of owner drivers, the Minister must consult with the Transport Industry Council.

(2) Before making a recommendation under section 27(1) for a code of practice in respect of forestry contractors or a class of forestry contractors, the Minister must consult with the Forestry Industry Council.

29 Application of codes of practice

A code of practice must specify the classes of hirers and contractors to which it applies.

30 Compliance with codes of practice

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



29

Part 4—Unconscionable conduct31 Unconscionable conduct by hirers

(1) A hirer must not engage in unconscionable conduct with respect to a contractor.

(2) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a hirer has contravened subsection (1), the Tribunal may have regard to any one or more of the following—

(a) the relative strengths of the bargaining positions of the hirer and the contractor;

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

(c) whether the contractor was able to understand any documents relating to the acquisition or possible acquisition by the hirer of services from the contractor;

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

(e) the amount for which, and the circumstances in which, the contractor could have supplied identical or equivalent services to a person other than the hirer, including as an employee;



30

(f) the extent to which the hirer's conduct towards the contractor was consistent with the hirer's conduct in similar transactions between the hirer and other like contractors;

(g) the requirements of any applicable code of practice;

(h) the extent to which the hirer unreasonably failed to disclose to the contractor—

(i) any intended conduct of the hirer that might affect the interests of the contractor;

(ii) any risks to the contractor arising from the hirer's intended conduct being risks that the hirer should have foreseen would not be apparent to the contractor;

(i) the extent to which the hirer was willing to negotiate the terms and conditions of any contract for the acquisition or possible acquisition of services from the contractor;

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

(k) whether or not the regulated contract allows for the payment of any increases in fixed and variable overhead costs on a regular and systematic basis.

32 Unconscionable conduct by contractors

(1) A contractor must not engage in unconscionable conduct with respect to a hirer.

(2) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a contractor has contravened subsection (1), the Tribunal may have regard to any one or more of the following—



31

(a) the relative strengths of the bargaining positions of the contractor and the hirer;

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

(c) whether the hirer was able to understand any documents relating to the provision or possible provision by the contractor of services to the hirer;

(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 contractor or a person acting on behalf of the contractor in relation to the provision or possible provision by the contractor of services to the hirer;

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

(f) the extent to which the contractor's conduct towards the hirer was consistent with the contractor's conduct in similar transactions between the contractor and other like hirers;

(g) the requirements of any applicable code of practice;

(h) the extent to which the contractor unreasonably failed to disclose to the hirer—

(i) any intended conduct of the contractor that might affect the interests of the hirer;



32

(ii) any risks to the hirer arising from the contractor's intended conduct, being risks that the contractor should have foreseen would not be apparent to the hirer;

(i) the extent to which the contractor was willing to negotiate the terms and conditions of any contract for the provision or possible provision of services by the contractor;

(j) the extent to which the contractor and the hirer acted in good faith.



33

Part 5—Dispute resolution

Division 1—Introduction33 Meaning of dispute

(1) In this Part, dispute means a dispute between one or more contractors and one or more hirers arising under or in relation to this Act, a code of practice or a regulated contract, and includes an allegation that a person has contravened this Act, the regulations, a code of practice or a regulated contract.

(2) In this Part—

contractor includes a former contractor;

hirer includes a former hirer.

Division 2—Alternative dispute resolution34 What alternative dispute resolution includes

(1) Alternative dispute resolution under this Part extends to preliminary assistance in dispute resolution, such as the giving of advice designed to ensure that—

(a) the parties are fully aware of their rights and obligations; and

(b) there is full and open communication between the parties concerning the dispute.

(2) In this Part—

(a) a reference to alternative dispute resolution includes a reference to mediation and arbitration; and

(b) a reference to a person conducting alternative dispute resolution includes a reference to—

S. 34(2)(a) amended by No. 33/2019 s. 21(1)(a).

S. 34(2)(b) substituted by No. 33/2019 s. 21(1)(b).



34

(i) a mediator conducting mediation; and

(ii) an arbitrator conducting arbitration.

(3) The Commercial Arbitration Act 2011 does not apply to an arbitration conducted under this Division.

35 Referral of disputes for alternative dispute resolution

(1) A contractor or a hirer (or both) may refer a dispute to the Small Business Commission for alternative dispute resolution.

(2) The referral must be accompanied by the application fee (if any) set by the Small Business Commission, which must not be more than the maximum fee (if any) prescribed by the regulations.Note

The parties may ask the Commission for preliminary assistance before referring the dispute (see section 34).

(3) The Commission must arrange for each dispute referred in accordance with this section to be the subject of—

(a) mediation by a mediator; or

(ab) arbitration by an arbitrator; or

(b) another appropriate form of alternative dispute resolution by a suitably qualified person.

(4) If the parties to alternative dispute resolution agree, the Commission may arrange for the

S. 34(3) inserted by No. 33/2019 s. 21(2).

S. 35(1) amended by No. 16/2017 s. 49(1).

S. 35(2) amended by No. 16/2017 s. 49(1).

Note to s. 35(2) substituted by No. 16/2017 s. 49(2).

S. 35(3) amended by No. 16/2017 s. 49(3).

S. 35(3)(ab) inserted by No. 33/2019 s. 22(1).

S. 35(4) inserted by No. 33/2019 s. 22(2).



35

dispute to be the subject of a different form of alternative dispute resolution.

Example

The parties to a dispute that is the subject of mediation may agree to the dispute being arbitrated, in which case the Commission may make the necessary arrangements accordingly.

36 Representation at alternative dispute resolution

(1) A party to alternative dispute resolution may be represented by—

(a) an Australian legal practitioner; or

(b) in the case of a party that is a contractor—an association, including a trade union, that represents contractors or a class of contractors; or

(c) in the case of a party that is a hirer—an association that represents hirers or a class of hirers; or

(d) any other person considered appropriate by the person conducting the alternative dispute resolution.

(2) Despite subsection (1), the person conducting the alternative dispute resolution may meet with the party (alone or together with any other party) without the party's representative being present.

37 Costs of alternative dispute resolution

(1) The costs of alternative dispute resolution are to be paid by the parties as follows—

(a) in the proportions that the parties agree among themselves; or

(b) if the parties cannot agree, in equal shares.


S. 36(1)(a) amended by No. 17/2014 s. 160(Sch. 2 item 68).



36

costs of alternative dispute resolution means the fees and expenses of the person conducting the alternative dispute resolution.

38 Statements made during alternative dispute resolution not admissible

A statement or admission made in the course of alternative dispute resolution under this Part is not admissible in any legal proceedings.

39 Immunity of person conducting alternative dispute resolution

(1) A person conducting alternative dispute resolution under this Part is not personally liable for anything done or omitted to be done in good faith—

(a) in the exercise of a power or performance of a function under this Act; or

(b) in the reasonable belief that the act or omission was in the exercise of a power or performance of a function under this Act.

(2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a person attaches instead to the State.

Division 3—The Tribunal40 Disputes must first be referred for alternative

dispute resolution before proceeding to the Tribunal

(1) A dispute may be the subject of proceedings before the Tribunal only if the Small Business Commission has certified in writing that alternative dispute resolution under this Part has failed, or is unlikely, to resolve it.

(2) This section does not apply to proceedings for an order in the nature of an injunction.

S. 40(1) amended by No. 16/2017 s. 50.



37

(3) This section does not affect the validity of any decision made by the Tribunal.

41 Jurisdiction of the Tribunal

(1) The Tribunal has jurisdiction to hear and determine an application by one or more contractors or hirers seeking resolution of a dispute.

(2) The Tribunal also has jurisdiction to hear and determine any other application that may be made to it under this Act.

42 Time limit for applications

(1) An application under section 41(1) involving an allegation of unlawful termination of the engagement of a contractor must be made within 12 months after the date on which the engagement is alleged to have been terminated.

(2) An application under section 41(1) in any other case must be made within 6 years after the date on which the dispute arose.

43 Parties

The parties to a proceeding before the Tribunal on an application under section 41(1) are—

(a) the applicant or applicants; and

(b) the other party or parties to the dispute; and

(c) any other person the Tribunal considers it appropriate to join as a party to the proceeding.

44 Powers of the Tribunal

(1) The Tribunal may do any one or more of the following in relation to a dispute—



38

(a) refer the dispute to a mediator appointed by the Tribunal;

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

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

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

(iii) by way of restitution;

(c) order the refund of any money paid under a regulated contract or under a void contract;

(d) make an order in the nature of an order for specific performance of a regulated contract;

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

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

(g) make any other order it considers fair, including declaring void any unjust term of a regulated contract, inserting a term into a regulated contract or otherwise varying a regulated contract to avoid injustice.

(2) In determining whether a term of a regulated contract is unjust, the Tribunal may have regard to—

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

(b) the extent to which the term, and its legal and practical effect, were accurately explained to the relevant party before the term was agreed to and the extent to which



39

the relevant party understood the term and its effect;

(c) the relative bargaining power of the parties to the contract;

(d) the consequences to the parties to the contract if the term is complied with or not complied with and the relative hardship of those consequences to each party;

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

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

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

(h) whether unfair pressure, undue influence or unfair tactics were used to obtain the relevant party's consent to the contract or the term;

(i) whether at the time the term was agreed to the relevant party knew, or could probably have found out by asking, that the term would cause any other relevant party hardship;

(j) the conduct of the parties to the contract after the term was agreed to;

(k) whether the term is usually found in regulated contracts of that kind;

(l) the justification for the term;

(m) whether the term is unconscionable, harsh or oppressive;

(n) whether the term is inconsistent with any part of a relevant code of practice, whether



40

or not that part of the code imposes duties or obligations on a person or prohibits a person from engaging in certain conduct;

(o) any other factor the Tribunal thinks is relevant.

(3) Despite anything to the contrary in this section, in determining whether a term of a regulated contract is unjust, the Tribunal must not have regard to any injustice arising from circumstances that were not reasonably foreseeable when the term was agreed to.

(4) In awarding damages in the nature of interest, the Tribunal may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.

45 Additional power of Tribunal where failure to give information booklet or rates and costs schedule

(1) This section applies to a dispute involving an allegation that a hirer or freight broker failed to give a contractor an information booklet or a copy of a rates and costs schedule in accordance with Division 1 or 2 of Part 2.

(2) Despite any provision in the relevant regulated contract, the Tribunal may make an order that the contractor is to be paid an amount specified by the Tribunal for the contractor's services under the contract.

(3) In deciding what amount to specify in the order, the Tribunal must have regard to the following—

(a) the terms of the relevant regulated contract;

(b) the amount to which the contractor would have been entitled if the contractor had provided the services as an employee;

(c) any applicable rates and costs schedule;



41

(d) what is a fair and reasonable amount in the circumstances.

46 Orders to prevent the entering into of contracts

(1) The Tribunal, when making an order in relation to a dispute 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 regulated contract; or

(b) doing any act (whether by way of 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.


relevant person means—

(a) a party to the proceeding; or

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

Division 4—Extension of contract variation orders47 Application of Division

(1) This Division applies if, in a proceeding in relation to a dispute, the Tribunal makes an order—

(a) declaring void a term of a regulated contract; or



42

(b) inserting a term into a regulated contract; or

(c) otherwise varying a regulated contract.

(2) In this Division, an order referred to in subsection (1) is called a contract variation order.

48 What is the extension of a contract variation order?

(1) The extension of a contract variation order is an order made by the Tribunal declaring that a contract variation order is, subject to any conditions, exceptions or limitations that are specified in the order, extended generally to regulated contracts of a specified class.

(2) An order extending a contract variation order has the effect of binding all hirers and contractors who enter, or have entered, into regulated contracts of the specified class.

(3) If an order extending a contract variation order is made, subject to any conditions, exceptions and limitations that are specified in the order—

(a) if the contract variation order declared a term of a regulated contract void—any equivalent term in a regulated contract in the specified class is void;

(b) if the contract variation order inserted a term into a regulated contract—that term is inserted into each regulated contract in the specified class that does not contain the term;

(c) if the contract variation order otherwise varied a regulated contract—each regulated contract in the specified class is taken to be varied accordingly.



43

49 Application for extension of contract variation order

An application for an order extending a contract variation order may be made by—

(a) an association, including a trade union, that represents contractors or a class of contractors; or

(b) an association that represents hirers or a class of hirers.

50 Procedure on application

(1) An applicant for an order extending a contract variation order must publish, as required by the rules, a notice—

(a) specifying the class of regulated contracts in relation to which the order is sought; and

(b) specifying the terms of the contract variation order; and

(c) inviting any association or person interested and wanting to be heard or make a written submission to appear before the Tribunal or make a written submission to the Tribunal as specified in the notice.

(2) Before making an order extending a contract variation order, the Tribunal must hear all associations and persons appearing.


rules mean rules made by the Rules Committee under section 157 of the Victorian Civil and Administrative Tribunal Act 1998.

51 Making and publicising order



44

(1) The Tribunal may make an order extending a contract variation order if satisfied that it is appropriate to do so.

(2) An applicant for the order must publish the order—

(a) in the Government Gazette and in a daily newspaper circulating generally throughout Victoria; and

(b) in any other manner directed by the Tribunal.

(3) Nothing in this section takes away from section 116 of the Victorian Civil and Administrative Tribunal Act 1998.

52 When does order take effect?

An order extending a contract variation order takes effect when it is published in the Government Gazette or at any later time specified in the order.

53 Variation and revocation of order

The Tribunal may vary or revoke an order extending a contract variation order at any time on its own initiative or on application by an association that represents contractors or hirers or by any person affected by the order.



45

Part 6—The Small Business Commission

54 Functions of the Small Business Commission under this Act

(1) The Small Business Commission has the following functions under this Act—

(a) to make arrangements to facilitate the resolution by mediation, arbitration or another appropriate form of alternative dispute resolution, of disputes (whether or not any particular dispute has been formally referred under this Act to the Commission);

(b) any other functions that are given to the Commission by or under this Act.

(2) In arranging for the resolution of disputes, the Commission must have regard to the need for the mediation, arbitration or other form of alternative dispute resolution to be conducted by persons who are experienced in the field of regulated contracts.

(3) The Commission may itself conduct a mediation, an arbitration or another form of alternative dispute resolution and is entitled to be paid its fees and expenses for doing so, which must not be more than the maximum amount (if any) prescribed by the regulations.

Pt 6 (Heading) amended by No. 16/2017 s. 51.

S. 54 (Heading) amended by No. 16/2017 s. 52(1).

S. 54(1) amended by No. 16/2017 s. 52(2)(a).

S. 54(1)(a) amended by Nos 16/2017 s. 52(2)(b), 33/2019 s. 23(a).

S. 54(1)(b) amended by No. 16/2017 s. 52(2)(c).

S. 54(2) amended by Nos 16/2017 s. 52(3), 33/2019 s. 23(b).

S. 54(3) amended by Nos 16/2017 s. 52(4), 33/2019 s. 23(c).



46

(4) The Commission is not subject to the Minister's control or direction in exercising its function under subsection (1)(a) or (3).

S. 54(4) amended by No. 16/2017 s. 52(5).



47

Part 7—Industry councils

Division 1—Transport Industry Council of Victoria55 Establishment and functions

(1) The Transport Industry Council of Victoria is established.

(2) The Transport Industry Council has the functions conferred on it by or under this Act or any other Act.

(3) Without limiting subsection (2), the Transport Industry Council has the following functions—

(a) to advise and make recommendations to the Minister on the content of—

(i) codes of practice in respect of owner drivers; and

(ii) the information booklet for owner drivers;

(b) to advise and make recommendations to the Minister on rates and costs schedules for owner drivers;

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

(d) to advise the Minister on any other matters relevant to—

(i) owner driver contracts; and

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

(e) to advise and make recommendations to the Minister on promoting—

S. 55(3)(d)(ii) amended by No. 33/2019 s. 24(a).

S. 55(3)(e) inserted by No. 33/2019 s. 24(b).



48

(i) best practice in the transport industry in relation to the engagement of owner drivers; and

(ii) education and training for owner drivers.

(4) The Transport Industry Council may provide advice, and make recommendations, to the Minister even if the Minister has not requested it to do so.

(5) In performing its functions, the Transport Industry Council is subject to the control and direction of the Minister.

(6) Without limiting the matters on which the Minister may direct the Transport Industry Council, the Minister may impose deadlines on the Council for the provision of advice and recommendations.

56 Membership

(1) The Transport Industry Council consists of the following 10 members appointed by the Minister—

(a) a chairperson;

(b) 1 part-time member nominated by the Secretary to the Department of Transport;

Note

The part-time member nominated by the Secretary to the Department of Transport does not have any voting rights on the Council: see clause 7(4) of Schedule 1.

(c) the following 8 part-time members—

(i) 1 person nominated by the Victorian Chamber of Commerce and Industry;

S. 56(1)(b) amended by No. 49/2019 s. 186(Sch. 4 item 32.1).

Note to s. 56(1)(b) amended by No. 49/2019 s. 186(Sch. 4 item 32.1).

S. 56(1)(c)(i) amended by No. 33/2019 s. 25.



49

(ii) 1 person nominated by the Australian Industry Group;

(iii) 2 persons nominated by the Victorian Transport Association Inc.;

(iv) 2 persons nominated by the Victorian Trades Hall Council;

(v) 2 persons nominated by the Transport Workers' Union of Australia.

(2) If, for the purposes of subsection (1)(b) or (c) or (2A)—

(a) a nomination is not submitted within the time or in the manner directed by the Minister; or

(b) a person nominated is considered by the Minister to be unsuitable or inappropriate for membership of the Transport Industry Council—

the Minister may instead—

(c) appoint a person who in the Minister's opinion is suitably representative of the persons represented by the body referred to in those paragraphs to be a member; or

(d) call for a further nomination from the relevant body.

(2A) If a nominating body referred to in subsection (1) ceases to exist, the Minister may—

(a) select an alternative body that, in the Minister's opinion, is suitably representative of the former nominating body; and

(b) call for a nomination from that alternative body; and

S. 56(2) amended by No. 46/2017 s. 4(1).

S. 56(2A) inserted by No. 46/2017 s. 4(2).



50

(c) appoint to the Transport Industry Council a person nominated by the alternative body in the place of a person nominated by the former body.

(2B) If the Minister appoints a person nominated by an alternative body under subsection (2A), the Minister, as soon as practicable after that appointment, must publish in the Government Gazette a notice setting out—

(a) the name of that alternative body; and

(b) the name of the former body that ceased to exist.

(2C) A notice published under subsection (2B) only needs to be published once in respect of a particular alternative body.

(2D) On the publication of a notice under subsection (2B), the alternative body specified in the notice is taken for the purposes of subsection (2A) to be a nominating body referred to in subsection (1).

* * * * *

57 Constitution and procedure

Schedule 1 has effect with respect to the Transport Industry Council.

Division 2—Forestry Industry Council of Victoria58 Establishment and functions

S. 56(2B) inserted by No. 46/2017 s. 4(2).

S. 56(2C) inserted by No. 46/2017 s. 4(2).

S. 56(2D) inserted by No. 46/2017 s. 4(2).

S. 56(3) amended by No. 6/2010 s. 203(1) (Sch. 6 item 33) (as amended by No. 45/2010 s. 22), repealed by No. 49/2019 s. 186(Sch. 4 item 32.2).



51

(1) The Forestry Industry Council of Victoria is established.

(2) The Forestry Industry Council has the functions conferred on it by or under this Act or any other Act.

(3) Without limiting subsection (2), the Forestry Industry Council has the following functions—

(a) to advise and make recommendations to the Minister on the content of—

(i) codes of practice in respect of forestry contractors; and

(ii) the information booklet for forestry contractors;

(b) to advise and make recommendations to the Minister on rates and costs schedules for forestry contractors;

(c) to develop, publish and promote model haulage contracts and model harvesting contracts;

(d) to advise the Minister on any other matters relevant to—

(i) haulage or harvesting contracts; and

(ii) the commercial practices generally engaged in by forestry contractors and hirers in relation to each other;

(e) to advise and make recommendations to the Minister on promoting—

(i) best practice in the forestry industry in relation to the engagement of forestry contractors; and

(ii) education and training for forestry contractors.

S. 58(3)(d)(ii) amended by No. 33/2019 s. 26(a).

S. 58(3)(e) inserted by No. 33/2019 s. 26(b).



52

(4) The Forestry Industry Council may provide advice, and make recommendations, to the Minister even if the Minister has not requested it to do so.

(5) In performing its functions, the Forestry Industry Council is subject to the control and direction of the Minister.

(6) Without limiting the matters on which the Minister may direct the Forestry Industry Council, the Minister may impose deadlines on the Council for the provision of advice and recommendations.

59 Membership

(1) The Forestry Industry Council consists of the following 10 members appointed by the Minister—

(a) a chairperson;

(b) 1 part-time member nominated by the Secretary to the Department of Transport1;Note

The part-time member nominated by the Secretary does not have any voting rights on the Council: see clause 7(4) of Schedule 1.

(c) the following 8 part-time members—

(i) 1 person nominated by the Victorian Association of Forest Industries;

(ii) 1 person nominated by the Australian Forest Products Association Limited (ACN 008 621 510);

(iii) 2 persons nominated by the Construction, Forestry, Mining and Energy Union;

(iv) 2 persons nominated by the Australian Forest Contractors Association Limited (ACN 102 865 430);

S. 59(1)(b) amended by Nos 46/2017 s. 5(1)(a), 49/2019 s. 186(Sch. 4 item 32.3).

S. 59(1)(c)(ii) amended by No. 46/2017 s. 5(1)(b)(i).

S. 59(1)(c)(iv) amended by No. 46/2017 s. 5(1)(c).



53

(v) 2 persons nominated by VicForests.

(2) If, for the purposes of subsection (1)(b) or (c) or (2A)—

(a) a nomination is not submitted within the time or in the manner directed by the Minister; or

(b) a person nominated is considered by the Minister to be unsuitable or inappropriate for membership of the Forestry Industry Council—

the Minister may instead—

(c) appoint a person who in the Minister's opinion is suitably representative of the persons represented by the body referred to in those paragraphs to be a member; or

(d) call for a further nomination from the relevant body.

(2A) If a nominating body referred to in subsection (1) ceases to exist, the Minister may—

(a) select an alternative body that, in the Minister's opinion, is suitably representative of the former nominating body; and

(b) call for a nomination from that alternative body; and

(c) appoint to the Forestry Industry Council a person nominated by the alternative body in the place of a person nominated by the former body.

(2B) If the Minister appoints a person nominated by an alternative body under subsection (2A), the Minister, as soon as practicable after that appointment, must publish in the Government Gazette a notice setting out—

S. 59(2) amended by No. 46/2017 s. 5(2).

S. 59(2A) inserted by No. 46/2017 s. 5(3).

S. 59(2B) inserted by No. 46/2017 s. 5(3).



54

(a) the name of that alternative body; and

(b) the name of the former body that ceased to exist.

(2C) A notice published under subsection (2B) only needs to be published once in respect of a particular alternative body.

(2D) On the publication of a notice under subsection (2B), the alternative body specified in the notice is taken for the purposes of subsection (2A) to be a nominating body referred to in subsection (1).


VicForests has the same meaning as in the Conservation, Forests and Lands Act 1987.

60 Constitution and procedure

Schedule 1 has effect with respect to the Forestry Industry Council.

S. 59(2C) inserted by No. 46/2017 s. 5(3).

S. 59(2D) inserted by No. 46/2017 s. 5(3).



55

Part 7A—Compliance and enforcement

Division 1—Authorised officers

60A Appointment of authorised officers

The Secretary may, by instrument, appoint a person employed under Part 3 of the Public Administration Act 2004 to be an authorised officer for the purposes of this Act.

60B Identity cards

(1) The Secretary must issue an identity card to each authorised officer containing a photograph of the authorised officer and the authorised officer's signature.

(2) An authorised officer must produce their identity card for inspection—

(a) before exercising a power under this Part, other than a power exercised by way of post, e-mail or other electronic communication; and

(b) at any time during the exercise of a power under this Part, if asked to do so.

Penalty: 10 penalty units.

(3) If a person to whom an identity card has been issued ceases to be an authorised officer, the person must return the identity card to the Secretary within 14 days of ceasing to be an authorised officer unless the person unintentionally lost or destroyed the identity card or the identity card was destroyed by another person.

Pt 7A (Headings and ss 60A–60Q) inserted by No. 33/2019 s. 28.


S. 60B inserted by No. 33/2019 s. 28.



56


60C Authorised officers subject to Secretary's directions

(1) An authorised officer is subject to the Secretary's directions in the performance of the authorised officer's functions or exercise of the authorised officer's powers under this Act or the regulations.

(2) A direction under subsection (1) may be of a general nature or may relate to a specified matter or specified class of matter.

Division 2—Powers of authorised officers60D When may powers be exercised?

An authorised officer may exercise powers under this Part only to the extent that it is reasonably necessary to do so for the purpose of—

(a) providing information to contractors and hirers about the operation of this Act and the regulations; or

(b) monitoring compliance with this Act or the regulations; or

(c) investigating possible contraventions of this Act or the regulations; or

(d) performing any other function or exercising any other power of the authorised officer under this Act or the regulations.

60E Power to require information or documents

(1) For a purpose referred to in section 60D, an authorised officer may by written notice require a person, within a reasonable period specified in the notice—

(a) to give the authorised officer any information that the authorised officer requires; or

S. 60C inserted by No. 33/2019 s. 28.

S. 60D inserted by No. 33/2019 s. 28.

S. 60E inserted by No. 33/2019 s. 28.



57

(b) to produce to the authorised officer a document in the custody or control of the person.

(2) A notice under subsection (1) must—

(a) warn the person that a refusal or failure to comply with the notice, without reasonable excuse, is an offence; and

(b) if directed to a natural person, inform the person that the person may refuse or fail to produce documents or give information if producing the document or giving the information would tend to incriminate the person.

(3) An authorised officer may inspect, and make copies of or take extracts from, a document produced to the authorised officer under subsection (1).

60F Entry and inspection of premises

(1) For a purpose referred to in section 60D, an authorised officer may—

(a) enter premises with the consent of the occupier of the premises; and

(b) inspect anything on the premises; and

(c) interview any person on the premises; and

(d) require a person on the premises who has the custody of, or access to, a document to produce the document to the authorised officer within a reasonable period specified by the officer; and

(e) inspect, and make copies of or take extracts from, a document produced to the authorised officer.

S. 60F inserted by No. 33/2019 s. 28.



58

(2) An authorised officer must not enter premises under this section unless, before the occupier consents to that entry, the authorised officer—

(a) has produced the authorised officer's identity card for inspection; and

(b) has informed the occupier of the purpose of the entry and that the occupier may refuse to give consent to the entry.

(3) If an occupier consents to an entry, the authorised officer who requested consent must, before entering the premises, ask the occupier to sign an acknowledgement stating that the authorised officer has complied with the requirements of subsection (2).

(4) An occupier who signs an acknowledgement under subsection (3) must be given a copy of the signed acknowledgement before the authorised officer leaves the premises.

(5) An authorised officer who enters premises under this section must not remain on the premises any longer than is reasonably necessary to perform functions or exercise powers under this Part.

60G Retention of documents

(1) An authorised officer may retain a document produced to the authorised officer for the period necessary for the purpose of performing functions or exercising powers under this Part.

(2) During the period that the authorised officer retains a document, the authorised officer must permit the person otherwise entitled to its possession to inspect it and make copies of or take extracts from it.

S. 60G inserted by No. 33/2019 s. 28.



59

Division 3—Offences and enforcement60H Failing to produce documents or giving false or

misleading documents

(1) A person must not, without reasonable excuse, fail to comply with—

(a) a notice to produce documents or give information under section 60E; or

(b) a requirement to produce documents under section 60F(1)(d).




(2) A person must not produce a document to an authorised officer under section 60E or 60F(1)(d) that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing the correct information.




60I Protection against self-incrimination

It is a reasonable excuse for a natural person to refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under this Act, if the giving of the information, production of the document or doing of the thing would tend to incriminate the person.

S. 60H inserted by No. 33/2019 s. 28.

S. 60I inserted by No. 33/2019 s. 28.



60

60J Confidentiality

(1) An authorised officer must not give to any other person any information acquired by the authorised officer in performing a function or exercising a power under this Part.


(2) Subsection (1) does not apply to the giving of information—

(a) to the extent necessary for the authorised officer to perform functions or exercise powers under this Part; or

(b) to a court or the Tribunal in the course of legal proceedings; or

(c) under an order of a court or the Tribunal; or

(d) to the extent reasonably required to enable the investigation or enforcement of a law of Victoria or of any other State, a Territory or the Commonwealth; or

(e) with the written consent of the person to whom the information relates.

60K Who can prosecute under this Act?

(1) A prosecution for an offence against this Act may only be brought by—

(a) the Secretary; or

(b) a person employed under Part 3 of the Public Administration Act 2004 who is authorised by the Secretary to bring a prosecution.

S. 60J inserted by No. 33/2019 s. 28.

S. 60K inserted by No. 33/2019 s. 28.



61

(2) An authorisation under subsection (1)(b)—

(a) must be in writing; and

(b) may be given generally, or only in relation to a particular case or cases, or a particular class of case or cases; and

(c) may be revoked by the Secretary at any time by written notice.

(3) The revocation of an authorisation does not affect a proceeding commenced by a person before that person's authorisation was revoked unless the notice of revocation states otherwise.

(4) In a prosecution for an offence under this Act, the court must presume, in the absence of evidence to the contrary, that the prosecutor is authorised to bring the prosecution.

(5) A prosecution may only be conducted by—

(a) the Secretary; or

(b) the person authorised under subsection (1)(b) to bring the prosecution; or

(c) an Australian lawyer briefed by the Secretary or the person authorised to bring the prosecution.

60L Judicial notice of signatures

All courts must take judicial notice of—

(a) the signature of a person who is, or was at the time the signature purports to have been made, the Secretary or a person referred to in section 60K(1)(b); and

(b) the fact that a person referred to in paragraph (a) held the position the person purported to hold at the time the signature purports to have been made.

S. 60L inserted by No. 33/2019 s. 28.



62

60M Proceedings for offences may be brought in Industrial Division of the Magistrates' Court

If a person is charged with an offence against this Act, the charge may be heard, and all penalties recovered, before the Industrial Division of the Magistrates' Court.

60N Infringements

(1) An authorised officer may serve an infringement notice on a person in respect of a prescribed offence if the authorised officer has reason to believe that the person committed the offence.

(2) An offence prescribed under subsection (1) is an infringement offence within the meaning of the Fines Reform Act 2014.

(3) The infringement penalty for an offence referred to in subsection (1) is the prescribed penalty for the offence.

60O Imputing conduct to bodies corporate

(1) For the purposes of this Act, any conduct engaged in or on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of employment or apparent authority of the employee, agent or officer, is taken to be conduct also engaged in by the body corporate.

(2) If, in any proceedings under this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show—

(a) that the conduct was engaged in by an officer or employee of the body corporate within the scope of the officer's or employee's actual or apparent authority and the officer or employee had that state of mind; or

S. 60M inserted by No. 33/2019 s. 28.

S. 60N inserted by No. 33/2019 s. 28.

S. 60O inserted by No. 33/2019 s. 28.



63

(b) that the conduct was engaged in by an agent of the body corporate and—

(i) the agent acted at the specific direction or with the specific consent or agreement of the body corporate; or

(ii) the agent had that state of mind; or

(iii) the body corporate was aware of the agent's state of mind when the conduct was engaged in.

(3) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.

(4) In this section, officer has the same meaning given by section 9 of the Corporations Act.

60P Criminal liability of officers of bodies corporate—accessorial liability

(1) If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer—

(a) authorised or permitted the commission of the offence by the body corporate; or

(b) was knowingly concerned in any way (whether by act or omission) in the commission of the offence by the body corporate.

(2) For the purposes of subsection (1), the following provisions are specified—

(a) section 10(1);

(b) section 10(2);

(c) section 11A(1);

S. 60P inserted by No. 33/2019 s. 28.



64

(d) section 11A(2);

(e) section 12(2);

(f) section 16(1);

(g) section 16(2);

(h) section 16A(1);

(i) section 16A(2);

(j) section 17(2);

(k) section 20(2);

(l) section 22A;

(m) section 60H(1);

(n) section 60H(2).

(3) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

(4) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.


body corporate has the same meaning as corporation has in section 57A of the Corporations Act;

officer, in relation to a body corporate, means—

(a) a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or



65

(b) a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.

(6) This section does not affect the operation of Subdivision (1) of Division 1 of Part II of the Crimes Act 1958.

60Q Imputing conduct to partners

(1) Subject to subsection (2), if a partnership, or any partner on behalf of a partnership, engages in any conduct, that conduct is, for the purposes of this Act, taken to have been engaged in by each partner.

(2) If conduct referred to in subsection (1) constitutes an offence, subsection (1) applies to a partner only if the partner—

(a) authorised or permitted the conduct; or

(b) was knowingly concerned in any way (whether by act or omission) in the conduct.

S. 60Q inserted by No. 33/2019 s. 28.



66

Part 8—General61 Subjecting contractors or others to detriment

(1) A person must not subject or threaten to subject another person to any detriment for the reason, or for reasons including the reason, that the other person, or a person associated with the other person, has—

(a) claimed, or proposes to claim, a benefit or exercised, or proposes to exercise, a power or right that the other person or associate is entitled to claim or exercise under this Act or a code of practice; or

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

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

(d) participated, or proposes to participate, in joint negotiations relating to regulated contracts or the engagement of contractors.

(2) A hirer must not subject or threaten to subject a contractor to any detriment because the contractor, or a person associated with the contractor, has—

(a) raised, or proposes to raise, issues of health and safety in relation to the performance of services under a regulated contract; or

(b) sought, or proposes to seek, to—

(i) negotiate a proposed engagement or regulated contract; or

(ii) renegotiate an existing engagement or regulated contract.



67

(3) For the purposes of this section, subjecting a contractor or other person to detriment includes doing any one or more of the following—

(a) terminating the contractor's or other person's engagement;

(b) injuring the contractor or other person in relation to the terms and conditions of a regulated contract to which the contractor or person is a party;

(c) altering the position of a contractor or other person so as to prejudice their interests under a regulated contract;

(d) refusing to engage a person as a contractor;

(e) discriminating against a person in the terms or conditions on which the person is to be engaged as a contractor.

* * * * *

64 Competition and Consumer Act and Competition Code

(1) For the purposes of the Competition and Consumer Act 2010 of the Commonwealth and the Competition Code, the following things are authorised by this Act—

(a) the making of a code of practice;

(b) anything done by a person in order to comply with this Act, the regulations or a code of practice;

Ss 62, 63 repealed by No. 33/2019 s. 29.

S. 64 (Heading) amended by No. 21/2012 s. 239(Sch. 6 item 32.1).

S. 64(1) amended by No. 21/2012 s. 239(Sch. 6 item 32.2).



68

(c) anything done by a contractor or group of contractors 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;

(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;

(e) any dealings by a contractor or group of contractors 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;

(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;

(c) if 2 or more corporations that are related to each other for the purposes of the Corporations Act 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.



69

65 Act prevails over regulated contracts

(1) A provision of a regulated contract or any other agreement is void to the extent that—

(a) it is contrary to or inconsistent with anything in this Act, the regulations, a code of practice or an order made by the Tribunal under Division 4 of Part 5; or

(b) it purports to exclude the application of provisions of this Act or the regulations.

(2) Despite subsection (1), during the period of 6 months beginning on and including the commencement day, a provision of a regulated contract that is contrary to or inconsistent with a provision of Division 3 or 4 of Part 2 prevails to the extent of the inconsistency.

(3) In subsection (2), commencement day means the day on which Division 3 of Part 2 comes into operation.

66 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) Regulations made under this Act—

(a) may be of general or limited application;

(b) may differ according to differences in time, place or circumstances;

(c) may apply, adopt or incorporate any matter contained in any document, whether—

(i) wholly or partially or as amended by the regulations;



70

(ii) as in force at a particular time or as in force from time to time.

* * * * *

Pt 9 (Heading and s. 67) repealed by No. 28/2007 s. 3(Sch. item 49).



71

Part 10—Transitional68 Contracting requirements

(1) Division 1 of Part 2 applies in relation to contractors who are engaged on or after the commencement of that Division.

(2) In addition, if a contractor who is engaged before that commencement continues to be engaged by the same hirer, or through the same freight broker, during the period of 45 days after that commencement, Division 1 of Part 2 applies in relation to the contractor as if the contractor had been engaged on the first day after the end of that period.

(3) Division 2 of Part 2 applies in relation to contractors who are engaged on or after the commencement of that Division.

(4) In addition, if a contractor who is engaged before that commencement continues to be engaged by the same hirer, or through the same freight broker, during the period of 45 days after that commencement, Division 2 of Part 2 applies in relation to the contractor as if the contractor had been engaged on the first day after the end of that period.

(5) Divisions 3 and 4 of Part 2 apply in relation to contractors who are engaged on or after the commencement of that Division.

(6) In addition, if a contractor who is engaged before that commencement continues to be engaged by the same hirer, or through the same freight broker, during the period of 6 months after that commencement, Divisions 3 and 4 of Part 2 apply in relation to the contractor as if the contractor had been engaged on the first day after the end of that period.



72

69 Transitional provisions for unconscionable conduct and disputes

(1) Part 4 applies to conduct whether occurring before or after the commencement of that Part.

(2) A dispute may be resolved under Part 5 whether the conduct giving rise to the dispute occurred before or after the commencement of section 33.



73

Schedule 1––Constitution and procedure of industry councils

Sections 57 and 60

Part 1—Constitution1 Definition

In this Schedule—

Council means the Transport Industry Council or the Forestry Industry Council.

2 Period of office of members

Subject to this Part, a member of a Council holds office for the period (not exceeding 3 years) specified in his or her instrument of appointment, and is eligible for re-appointment.

3 Payment of members

A member of a Council (other than a member who is an employee within the meaning of the Public Administration Act 2004) is entitled to be paid the fees and allowances (if any) that are fixed from time to time by the Minister.

4 Acting members

(1) The Minister may appoint an eligible person to act as member—

(a) during a vacancy in the office of a member; or

(b) during an absence (for any reason) from office of a member; or

(c) during a period in which a member is unable (for any reason) to perform the duties of office.



74

(2) In the case of an acting member appointed for a member who was appointed from an organisation mentioned in sections 56(1)(b) or (c) or 59(1)(b) or (c), the acting member must, if possible, be appointed from the same organisation or another organisation nominated by it.

(3) The Minister may—

(a) determine the terms and conditions of appointment of an acting member; and

(b) terminate the appointment at any time.

(4) While acting in a member's place, the acting member—

(a) has all the powers and must perform all the duties of the member; and

(b) is entitled to be paid the fees and allowances (if any) to which the member would have been entitled.

(5) An acting member is eligible for re-appointment.

5 Resignation and removal

(1) A member may resign from the office of member by writing signed by the member and delivered to the Minister.

(2) The Minister may remove a member from office at any time.

(3) The office of a member also becomes vacant if the member—

(a) becomes an insolvent under administration; or

Sch. 1 cl. 5(3)(a) amended by No. 4/2008 s. 32(Sch. item 23).



75

(b) is convicted in Victoria of an offence punishable by imprisonment for 12 months or more or elsewhere of an offence that, if committed in Victoria, would be punishable by imprisonment for 12 months or more; or

(c) becomes incapable of performing the duties of a member; or

(d) is absent, without leave first being granted by the relevant Council, for 4 consecutive meetings of that Council of which reasonable notice has been given to the member personally or by post, fax or e-mail.

6 Effect of other Acts

(1) The Public Administration Act 2004 does not apply to a member in respect of the office of member.

(2) If by or under any Act provision is made—

(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office; or

(b) prohibiting the person from engaging in employment outside the duties of that office—

the provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.

(3) For the avoidance of doubt, the office of member is not to be taken to be an office or place of profit under the Crown for the purposes of section 55(d), 80A(5A)(a) or 83(4) of the Constitution Act 1975 or section 13A(5A)(a) or (5C) of the County Court Act 1958.



76

Part 2—Procedure7 General procedure

(1) The chairperson, or in his or her absence, the acting chairperson, or in the absence of both of them, a member elected by the members present, must preside at a meeting of the relevant Council.

(2) The quorum of a Council is 5 members.

(3) Subject to subclause (4), a question arising at a meeting is determined by a majority of votes and the person presiding has a deliberative vote and, in the case of an equality of votes, a second or casting vote.

(4) The Council members appointed under sections 56(1)(b) and 59(1)(b) do not have voting rights.

(5) A Council must ensure that accurate minutes are kept of each meeting.

(6) A Council may transact any of its business at a meeting at which the members or any of them participate by telephone, closed-circuit television or in any similar way.

(7) Subject to this Act, a Council may regulate its own procedure.

8 Conflicts of interest

(1) If—

(a) a member of a Council has a direct or indirect pecuniary interest in a matter being considered, or about to be considered, by the Council; and



77

(b) the interest could conflict with the proper performance of the member's duties in relation to the consideration of the matter—

the member, as soon as practicable after becoming aware of the relevant facts, must disclose the nature of the interest at a meeting of the Council.

(2) A disclosure under subclause (1) must be recorded in the minutes of the meeting and, unless the Council otherwise determines, the member—

(a) must not be present during any deliberation of the Council in relation to the matter; and

(b) must not take part in any decision of the Council in relation to the matter.

(3) For the purpose of the making of a determination of the Council under subclause (2) in relation to a member who has made a disclosure under subclause (1), a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates—

(a) must not be present during any deliberation of the Council in relation to the matter; and

(b) must not take part in any decision of the Council in relation to the matter.

(4) Subclauses (1) and (2) do not apply in relation to a matter relating to the supply of goods or services to the member if the goods or services are, or are to be, available to members of the public on the same terms and conditions.

9 Resolutions without meetings

(1) If—

(a) a Council has taken reasonable steps to give notice to each member setting out the terms of a proposed resolution; and



78

(b) at least 5 of the members sign a document containing a statement that they are in favour of the resolution in the terms set out in the document—

a resolution in those terms is deemed to have been passed at a meeting of the Council held on the day on which the document is signed or, if the members referred to in paragraph (b) do not sign on the same day, on the day on which the last of those members signs the document.

(2) For the purposes of subclause (1), 2 or more separate documents containing a statement in identical terms, each of which is signed by one or more members, are deemed to constitute one document.

(3) If a resolution is deemed by this clause to have been passed at a meeting of the Council, each member must as soon as practicable be advised of the matter and given a copy of the resolution.

(4) The members referred to in subclause (1)(b) must not include a member who, because of clause 7(4) or 8, is not entitled to vote on the resolution.

10 Effect of a vacancy or defect

An act or decision of a Council is not invalid only because—

(a) of a vacancy in its membership; or

(b) of a defect or irregularity in the appointment of any of its members (acting or otherwise); or

(c) in the case of an acting member, the occasion for the member so acting had not arisen or had ceased.

═══════════════



79

Endnotes1 General information

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

Minister's second reading speech—

Legislative Assembly: 21 April 2005

Legislative Council: 9 August 2005

The long title for the Bill for this Act was "to regulate the relationship between persons who contract to transport goods in a vehicle, or harvest forest products using motorised equipment, supplied by them and persons who hire them, to amend the Victorian Civil and Administrative Tribunal Act 1998 and for other purposes."

The Owner Drivers and Forestry Contractors Act 2005 was assented to on 24 August 2005 and came into operation as follows:

Sections 1–9, 25–29, 55–64, 66 and Schedule 1 on 1 February 2006: Government Gazette 19 January 2006 page 70; rest of Act on 1 December 2006: section 2(2).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

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

References to ILA s. 39B

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

Interpretation

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

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in



80

http://www.legislation.vic.gov.au/

a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

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

• Punctuation

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

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

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

• Other material

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



81

2 Table of AmendmentsThis publication incorporates amendments made to the Owner Drivers and Forestry Contractors Act 2005 by Acts and subordinate instruments.

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

Statute Law Revision Act 2007, No. 28/2007Assent Date: 26.6.07Commencement Date: S. 3(Sch. item 49) on 27.6.07: s. 2(1)Current State: This information relates only to the provision/s

amending the Owner Drivers and Forestry Contractors Act 2005

Outworkers and Contractors Legislation Amendment Act 2007, No. 40/2007Assent Date: 28.8.07Commencement Date: S. 5 on 1.1.08: s. 2(4)Current State: This information relates only to the provision/s


Motor Car Traders Amendment Act 2008, No. 4/2008Assent Date: 4.3.08Commencement Date: S. 32(Sch. item 23) on 1.12.08: s. 2(2)Current State: This information relates only to the provision/s


Transport Integration Act 2010, No. 6/2010 (as amended by No. 45/2010)Assent Date: 2.3.10Commencement Date: S. 203(1)(Sch. 6 item 33) on 1.7.10: Special Gazette

(No. 256) 30.6.10 p. 1Current State: This information relates only to the provision/s


Australian Consumer Law and Fair Trading Act 2012, No. 21/2012Assent Date: 8.5.12Commencement Date: S. 239(Sch. 6 item 32) on 1.7.12: Special Gazette



Workplace Injury Rehabilitation and Compensation Act 2013, No. 67/2013Assent Date: 12.11.13Commencement Date: S. 649(Sch. 9 item 27) on 1.7.14: s. 2(1)Current State: This information relates only to the provision/s




82

Legal Profession Uniform Law Application Act 2014, No. 17/2014Assent Date: 25.3.14Commencement Date: S. 160(Sch. 2 item 68) on 1.7.15: Special Gazette



Small Business Commission Act 2017, No. 16/2017Assent Date: 10.5.17Commencement Date: Ss 46–52 on 1.7.17: Special Gazette (No. 216) 27.6.17

p. 1Current State: This information relates only to the provision/s


Owner Drivers and Forestry Contractors Amendment Act 2017, No. 46/2017Assent Date: 26.9.17Commencement Date: Ss 4, 5 on 1.11.17: Special Gazette (No. 359) 24.10.17

p. 1Current State: This information relates only to the provision/s


Owner Drivers and Forestry Contractors Amendment Act 2019, No. 33/2019Assent Date: 17.9.19Commencement Date: Ss 4–29 on 1.5.20: s. 2(2)Current State: This information relates only to the provision/s


Transport Legislation Amendment Act 2019, No. 49/2019Assent Date: 3.12.19Commencement Date: S. 186(Sch. 4 item 32) on 1.1.20: Special Gazette



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83

3 Amendments Not in OperationThis version does not contain amendments that are not yet in operation.



84

4 Explanatory details



85

1 S. 59(1)(b): The amendment proposed by section 27 of the Owner Drivers and Forestry Contractors Amendment Act 2019, No. 33/2019 is not included in this publication because the words "to the Department of Economic Development, Jobs, Transport and Resources" do not appear in section 59(1)(b).

Section 27 read as follows:

27Membership of Forestry Industry Council

In section 59(1)(b) of the Principal Act omit "to the Department of Economic Development, Jobs, Transport and Resources".

Documents

Owner Drivers and Forestry Contractors Act 2005 · Web viewOCPC Victoria, Word 2007, Template Release 12/02/2020 (PROD) Part 1—Preliminary Owner Drivers and Forestry Contractors