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Regulating Supply Chains to Protect Road Transport Workers: An Early Assessment of the Road Safety Remuneration Tribunal

Published online by Cambridge University Press:  01 January 2025

Richard Johnstone ,
Igor Nossar  and
Michael Rawling
Richard Johnstone
Affiliation:
Queensland University of Technology, Australia
Igor Nossar
Affiliation:
Queensland University of Technology, Australia
Michael Rawling
Affiliation:
University of Technology, Sydney, Australia
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Abstract

The Road Safety Remuneration Act 2012 (Cth) (the Act) explicitly enables the Road Safety Remuneration Tribunal to make orders that can impose binding requirements on all the participants in the road transport supply chain, including consignors and consignees at the apex of the chain, for the pay and safety of both employee and independent contractor drivers. The tribunal is also specifically empowered to make enforceable orders to reduce or remove remuneration related incentives and pressures that contribute to unsafe work practices in the road transport industry. Recently the tribunal handed down its first order. The article considers whether, and the degree to which, the tribunal has been willing to exercise its explicit power to impose enforceable obligations on consignors and consignees – such as large supermarket chains – at the apex of road transport supply chains. It examines the substance and extent of the obligations imposed by the tribunal, including whether the tribunal has exercised the full range of powers vested in it by the Act. We contend that the tribunal's first order primarily imposes obligations on direct work providers and drivers without making large, powerful consignors and consignees substantively responsible for driver pay and safety. We argue that the tribunal's first order could have more comprehensively fulfilled the objectives of the Act by more directly addressing the root causes of low pay and poor safety in the road transport industry.

Type
Article
Information
Federal Law Review , Volume 43 , Issue 3 , September 2015 , pp. 397 - 421
Copyright
Copyright © 2015 The Australian National University

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Footnotes

This paper reports on research undertaken for an Australian Research Council funded project, Australian Supply Chain Regulation: Practical Operation and Regulatory Effectiveness, DP120103162.

References

1 See Michael Quinlan, Report of Inquiry into Safety in the Long Haul Trucking Industry, Motor Accidents Authority of New South Wales, (2001), 152-153; Re Transport Industry – Mutual Responsibility for Road Safety (State) Award and Contract Determination (2006) 158 IR 17, 24; Igor Nossar, ‘Consequential Amendments to OHS Amendment (Long Distance Road Freight Transport) Regulation Draft, Textile Clothing and Footwear Union of Australia’ (Briefing Paper 2004) 1.

2 Wright, Lance and Quinlan, Michael, ‘Safe Payments: Addressing the Underlying Causes of Unsafe Practices in the Road Transport Industry’ (Final Report, National Transport Commission, October 2008) 24–5.Google Scholar

3 See Quinlan, Michael and Wright, Lance, ‘Remuneration and Safety in the Australian Heavy Vehicle Industry: A Review Undertaken for the National Transport Commission’ (National Transport Commission, October 2008)Google Scholar which found at p 49 ‘that the overwhelming weight of evidence indicates that commercial/industrial practices affecting road transport play a direct and significant role in causing hazardous practices.’

4 Mayhew, Claire and Quinlan, Michael, ‘Economic Pressure, Multi-tiered Subcontracting and Occupational Health and Safety in Australian Long Haul Trucking’ (2006) 28 Employee Relations 212CrossRefGoogle Scholar; Quinlan, Michael, ‘Supply Chains and Networks’, (Safe Work Australia, July 2011) 5-6.Google Scholar See also Premji, Stephanie, Lippel, Katherine and Messing, Karen, ‘“We work by the second!” Piecework remuneration and occupational health and safety from an ethnicity- and gender-sensitive perspective’ 2008 (10) Perspectives interdisciplinaires sur le travail et la santé, 2-27Google Scholar, which shows that a connection between pay and safety has been found in other industries.

5 Quinlan, Supply Chains and Networks, above n 4, 5.

6 The Heavy Vehicle National Law Act 2012 (Qld) was passed by the Queensland Parliament in 2012, and amended in 2013. Queensland also developed four Heavy Vehicle National Regulations. The amended Heavy Vehicle National Law, and the regulations were adopted by the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria, and came into operation in all six jurisdictions on 10 February 2014. The Northern Territory and Western Australia have yet to implement the Heavy Vehicle National Law and regulations.

7 National Heavy Vehicle Regulator, Safety, accreditation & compliance: Chain of responsibility <https://www.nhvr.gov.au/safety-accreditation-compliance/chain-of-responsibility>; see, eg, Heavy Vehicle National Law 2012 (Qld) ss 202-3.

8 See Industrial Relations Act 1996 (NSW), Chapter 6.

9 Rawling, Michael and Kaine, Sarah, ‘Regulating Supply Chains to Provide a Safe Rate for Road Transport Workers’ (2012) 25 Australian Journal of Labour Law 237, 249.Google Scholar

10 Road Safety Remuneration Act 2012 (Cth) s 18(3).

11 Ibid s 18.

12 See ibid s 40.

13 For detailed analyses of these provisions, see Nossar, Igor et al, ‘Protective Legal Regulation for Home Based Workers in the Australian Textile, Clothing and Footwear Industry’ (2015) 57(4) Journal of Industrial Relations 585CrossRefGoogle Scholar; Rawling, Michael, ‘Cross-Jurisdictional and Other Implications of Mandatory Clothing Retailer Obligations’ (2014) 27 Australian Journal of Labour Law 191.Google Scholar

14 See Nossar et al, above n 13; Nossar, Igor, Johnstone, Richard and Quinlan, Michael, ‘Regulating Supply Chains to Address the Occupational Health and Safety Problems Associated with Precarious Employment: The Case of Home-Based Clothing Workers in Australia’ (2004) 17 Australian Journal of Labour Law 137Google Scholar; Rawling, Michael, ‘A Generic Model of Regulating Supply Chain Outsourcing’ in Arup, Chris, Gahan, Peter, Howe, John, Johnstone, Richard, Mitchell, Richard and O’Donnell, Anthony (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (Federation Press, 2006) 520Google Scholar; Igor Nossar, ‘The Scope for Appropriate Cross-Jurisdictional Regulation of International Contract Networks (Such as Supply Chains): Recent Developments in Australia and Their Supra-National Implications’ (Working Paper No 1, Business Outsourcing and Restructuring Regulatory Research Network, 2007) <http://www.borrrn.org/attachments/003_Nossar%20ILO%20FINAL%20DRAFT%20.pdf>.

15 Interview with union official.

16 Witness statement of Michael Kaine, In the matter of Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1) 12 August 2013, 9.

17 On work fragmentation generally, see Marchington, Mick, et al (eds), Fragmenting Work: Blurring Organizational Boundaries and Disordering Heirarchies (Oxford University Press, Oxford, 2004)CrossRefGoogle Scholar; Johnstone, Richard, et al, Beyond Employment: the Legal Regulation of Work Relationships (Federation Press, Sydney, 2012)Google Scholar; Fudge, Judy, McCrystal, Shae and Sankaran, Kamala (eds), Challenging the Legal Boundaries of Work Regulation (Hart, Oxford, 2012)Google Scholar; Stone, Katherine V W, and Arthurs, Harry (eds), Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (Russell Sage, New York, 2013).Google Scholar

18 Rawling and Kaine, above n 9, 240–1.

19 Rawling, Michael and Howe, John, ‘The Regulation of Supply Chains: An Australian Contribution to Cross-National Legal Learning’ in Stone, Katherine V W, and Arthurs, Harry (eds) Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (Russell Sage, New York, 2013) 233, 234Google Scholar; Weil, David, ‘Enforcing Labour Standards in Fissured Workplaces: The US Experience’ (2011) 22(2) Economic and Labour Relations Review 33CrossRefGoogle Scholar; David Weil, see especially, The Fissured Workplace: Why Work Became So Bad for So Many and What Can be Done to Improve It, (Harvard University Press, Cambridge, 2014) ch 3.

20 See Bair, Jennifer, ‘Global Capitalism and Commodity Chains: Looking Back, Going Forward’ (2005) 9(2) Competition and Change 153.CrossRefGoogle Scholar

21 See Quinlan, above n 1, 180.

22 Ibid, 20; Quinlan and Wright, above n 3, 50.

23 Interview with union official.

24 Quinlan and Wright, above n 3, 19.

25 Ibid 50; Quinlan, above n 1, 21.

26 Quinlan above n 1, 180; Quinlan and Wright above n 3, 16, 19, 26, 40.

27 Ann Williamson et al, ‘Driver Fatigue: A Survey of Long Distance Heavy Vehicle Drivers in Australia’ (Information Paper No CR 209, National Road Transport Commission, September 2001; Hensher, David, and Battellino, Helen ‘Long Distance Trucking: Why do Truckies Speed?’ (1990) 15 Papers for Australasian Transport Research Forum 537, 553Google Scholar; Belzer, Michael The Economics of Safety: How Compensation Affects Commercial Motor Vehicle Driver Safety (Paper presented at Safe Rates Summit, Canberra, November 2011)Google Scholar; Rodriguez, Daniel A, Targa, Felipe and Belzer, Michael ‘Pay Incentives and Truck Driver Safety: A Case Study’ (2006) 59(2) Industrial and Labor Relations Review 205.CrossRefGoogle Scholar

28 Quinlan above n 1; Quinlan and Wright above n 3; Department of Education, Employment and Workplace Relations, Parliament of Australia, Safe Rates Safe Roads Direction Paper Commonwealth of Australia (2010) 15–16.

29 See, eg, Walters, David and James, Phil, ‘What Motivates Employers to Establish Preventive Management Arrangements within Supply Chains?’ (2011) 49(7) Safety Science 988, 989CrossRefGoogle Scholar; James, Phil et al ‘Regulating Supply Chains to Improve Health and Safety’ (2007) 36(2) Industrial Law Journal 163, 166–170CrossRefGoogle Scholar; Wright, Chris and Lund, John, ‘Supply Chain Rationalization: Retailer Dominance and Labour Flexibility in the Australian Food and Grocery Industry’ (2003) 17(1) Work, Employment and Society 137, 142–151.CrossRefGoogle Scholar

30 Quinlan and Wright, above n 3, 61–62; Quinlan, above n 1.

31 Road Safety Remuneration Act 2012 (Cth) ss 3, 79.

32 Ibid, ss 6–7; Rawling and Kaine, above n 9, 252.

33 Road Safety Remuneration Act 2012 (Cth) s 19(1).

34 Ibid s 3(b).

35 Ibid s 3(d).

36 Ibid s 3(e).

37 Revised Explanatory Memorandum, Road Safety Remuneration Bill 2012, 2 (emphasis added).

38 Road Safety Remuneration Act 2012 (Cth) ss 9(2)–(3).

39 Ibid s 9(4).

40 Ibid s 9(6).

41 See also Jennifer Acton, ‘Complementary Jurisdictions: the Road Safety Remuneration Tribunal and Occupational Health and Safety Laws’, (Paper presented at the ACTU OHS/Workers’ Compensation Conference, Sydney, 6 September 2012) 3.

42 Revised Explanatory Memorandum, Road Safety Remuneration Bill 2012 (Cth) 5.

43 Road Safety Remuneration Order [2013] RSRTFB 7 (17 December 2013), [13].

44 Road Safety Remuneration Tribunal Annual Work Program [2012] RSRTFB 3 (10 December 2012).

45 Road Safety Remuneration Act 2012 (Cth) s 22.

46 Road Safety Remuneration Tribunal Statement [2013] RSRTFB 3, (12 July 2013).

47 See Road Safety Remuneration Tribunal Decision [2013] RSRTFB 7 (17 December 2013), [27].

48 Transport Workers Union, ‘Draft Road Safety Remuneration (Retail Sector) Order’, Submission in Re Annual Work Program [2012] RSRTFB 3, 4 March 2013, cl 5.

49 Ibid cl 13.

50 Rawling and Kaine, above n 9, 249.

51 Australian National Retailers Association, ‘Response to TWU application for Road Safety Remuneration Orders’, Submission in Re Annual Work Program [2012] RSRTFB 3, April 2013, [3.12], [3.48].

52 Australian Industry Group ‘Submission Regarding the Potential Preparation of Draft Road Safety Remuneration Orders’ Submission in Re Annual Work Program [2012] RSRTFB 3, 8 July 2013, [20].

53 Australian Industry Group ‘Submission in Response to Road Safety Remuneration Orders Proposed by Various Parties’ Submission in Re Annual Work Program [2012] RSRTFB 3, 22 April 2013, 32, 48.

54 Coles Supermarkets Australia Pty Ltd ‘Submission to Road Safety Remuneration Tribunal’ submission in Re Annual Work Program [2012] RSRTFB 3, 22 April 2013, 3.

55 See Road Safety Remuneration Tribunal, Draft Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2013, (12 July 2013) cl 4.

56 Ibid cl 7.

57 Ibid cl 7(h).

58 See Road Safety Remuneration Tribunal, Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014, PR350280 (17 December 2013), cl 7.2(j).

59 Road Safety Remuneration Tribunal Draft Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2013, (12 July 2013) cl 11.1, cl 11.2.

60 Industrial Relations Commission of New South Wales, Transport Industry – Mutual Responsibility for Road Safety (State) Award (2006); Industrial Relations Commission of New South Wales, Mutual Responsibility for Road Safety (State) Contract Determination (2006). Under these mutual responsibility instruments the responsibility for the safe driving plans is or was imposed upon all parties in the road transport supply chain except, due to jurisdictional limitations, consignors and consignees who do not directly engage road transport workers: Rawling and Kaine, above n 9, 249.

61 Road Safety Remuneration Tribunal, Draft Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2013, (12 July 2013), cl 11.8.

62 See Industrial Relations Commission of New South Wales Transport Industry – Mutual Responsibility for Road Safety (State) Award (2006) cl 3.2; Industrial Relations Commission of New South Wales Mutual Responsibility for Road Safety (State) Contract Determination (2006) cl 3.2.

63 Ibid cls 3.2(vi).

64 Ibid cls 3.2(vii).

65 Road Safety Remuneration Tribunal, Draft Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2013, (12 July 2013), cl 11.8.

66 See ibid cl 6. This responsibility was maintained in the final order and is discussed below in this article.

67 Ibid cl 11.5.

68 Ibid cl 11.4.

69 Ibid cl 11.6, cl 11.8(k).

70 Road Safety Remuneration Act 2012 (Cth) s 24; Road Safety Remuneration Tribunal Decision [2013] RSRTFB 7 (17 December 2013), [30].

71 Quinlan, above n 1; Quinlan and Wright, above n 3.

72 Witness statement of Professor Michael Quinlan, in the matter of Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1), 30 July 2013 [26].

73 Ibid [31].

74 Ibid [48], [49].

75 See Transcript of Proceedings, Road Safety Remuneration Order – Application by Transport Workers Union of Australia, (Road Safety Remuneration Tribunal, RSRT 2013/1, Acton P, 13 August 2013) [1924]-[1930].

76 Witness statement of Professor Michael Quinlan, in the matter of Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1) (30 July 2013), [40].

77 Annual Work Program – Decision [2013] RSRTFB 11 (16 October 2013), [4].

78 Quinlan, above n 1.

79 Quinlan and Wright, above n 3.

80 Road Safety Remuneration Order [2013] RSRTFB 7 (17 December 2013), [64].

81 Quinlan and Wright, above n 3, cited in Road Safety Remuneration Order [2013] RSRTFB 7 (17 December 2013), [75].

82 Transport Workers Union of Australia, ‘Outline of Submissions for the TWU’ submission in Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1) (1 August 2013), [4].

83 Ibid [22].

84 Ibid [66], [73].

85 Ibid [75].

86 Ibid [11].

87 Ibid [5].

88 Ibid [3], [11].

89 In the clothing industry there is evidence of control wielded by major retailers over the conditions of clothing manufacture: see Nossar et al, above n 13.

90 Witness statement of Craig Wickham in the matter of Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1) 1 August 2013, 2.

91 Ibid 2.

92 Ibid 2.

93 Ibid 2-3.

94 Ibid 3.

95 Ibid 4.

96 Ibid 4.

97 Australian National Retailers Association, ‘Comments on Submissions to the Road Safety Remuneration Tribunal on its Draft Order of July 2013’, submission in Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1) (8 August 2013), 13.

98 Witness Statement of David Vaughan in the matter of Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1) 1 August 2013, [15].

99 Australian Research Council funded project, Australian Supply Chain Regulation: Practical Operation and Regulatory Effectiveness, [2012-2014], DP120103162.

100 Interview with union official.

101 Witness Statement of David Vaughan in the matter of Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1) 1 August 2013, [20].

102 Transport Workers Union of Australia, ‘Outline of Submissions for the TWU in Reply’ submission in Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1, 8 August 2013), 10.

103 Road Safety Remuneration Tribunal, ‘Draft Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2013’, (12 July 2013), cl 11.5.

104 Witness statement of Craig Wickham in the matter of Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1, 13 August 2013), [24]–[28].

105 Transport Workers Union of Australia, ‘Outline of Submissions for the TWU in Reply’ submission in Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1, 8 August 2013), 9.

106 Interview with union official.

107 Transport Workers Union of Australia, ‘Draft Road Safety Remuneration (Retail Sector) Order’, Submission in Re Annual Work Program [2012] (RSRTFB 3, 4 March 2013) cls 6–13.

108 Witness statement of Michael Rawling in the matter of Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1, 19 September 2013), 8–9.

109 Transport Workers Union of Australia, ‘Draft Road Safety Remuneration (Retail Sector) Order’, Submission in Re Annual Work Program [2012] (RSRTFB 3, 4 March 2013), cl 7.2.

110 Ibid cl 8.

111 Transport Workers Union of Australia, ‘Outline of Submissions for the TWU for Hearing on 8 July 2013’, Submission in Re Annual Work Program [2012] (RSRTFB 3, 8 July 2013), [52].

112 Witness statement of Michael Rawling in the matter of Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1, 19 September 2013), 9.

113 Road Safety Remuneration Act 2012 (Cth), ss 46, 78.

114 Road Safety Remuneration Act 2012 (Cth) ss 73–75.

115 Rawling and Kaine, above n 9, 255.

116 Interview with union official.

117 Interview with union official.

118 Quinlan, above n 1, 133; Witness statement of Professor Michael Quinlan, in the matter of Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1, 30 July 2013), [29]–[30].

119 Transport Workers Union of Australia, ‘Draft Road Safety Remuneration (Retail Sector) Order’, Submission in Re Annual Work Program [2012] (RSRTFB 3, 4 March 2013) cl 10.4.

120 Interview with union official.

121 Nossar et al, above n 13.

122 The livestock and bulk grain sectors were omitted from the final order.

123 Road Safety Remuneration Tribunal Decision [2013] RSRTFB 7, 17 December 2013 [153].

124 Ibid [189].

125 Road Safety Remuneration Tribunal, Draft Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2013, (12 July 2013) cl 7.4.

126 Road Safety Remuneration Tribunal Decision [2013] RSRTFB 7, 17 December 2013, cl 8.

127 Occupational Health and Safety Amendment (Long Distance Truck Driver Fatigue) Regulation 2005 (NSW) reg 81C. See Nossar, Igor, ‘Cross-Jurisdictional Regulation of Commercial Contracts for Work Beyond the Traditional Relationship’ in Arup, Chris, Gahan, Peter, Howe, John, Johnstone, Richard, Mitchell, Richard and O’Donnell, Anthony (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (Federation Press, 2006).Google Scholar This regulation did not, however, address issues of pay.

128 Road Safety Remuneration Tribunal Decision [2013] RSRTFB 7, 17 December 2013, [267].

129 Ibid cl 10.

130 Transport Workers Union of Australia ‘Outline of Submissions for the TWU’ submission in Road Safety Remuneration Order – Application by Transport Workers Union of Australia, Road Safety Remuneration Tribunal (RSRT 2013/1, 1 August 2013), [11].

131 Interview with union official.

132 Road Safety Remuneration Tribunal, Draft Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2013, (12 July 2013) cl 11.6.

133 Road Safety Remuneration Tribunal, Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014, (17 December 2013), cl 10.8.

134 Ibid cl 6.

135 Road Safety Remuneration Tribunal, Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014, (17 December 2013), cl 9.1.

136 Interview with union official.

137 Ibid.

138 Road Safety Remuneration Act 2012 (Cth) s 3(b).

139 Ibid s 3(d).

140 Ibid s 3(e).

141 Quinlan, above n 1, 20, 152–3, 162.

142 Fair Work Act 2009 (Cth), s 789CA(5)(b).

143 See, eg, Rawling and Kaine, above n 9, 241; Weil, David, ‘Enforcing Labour Standards in Fissured Workplaces: The US Experience’ (2011) 22 Economic and Labour Relations Review 33, 34.CrossRefGoogle Scholar

144 Note that the TCF industry retailer obligation to the extent of retailer control was in relation to a right of recovery only and there are other provisions in the Fair Work Act 2009 (Cth) for the making of a mandatory code for retailers in the TCF sector: see Division 4, Part 6-4A of the Fair Work Act 2009 (Cth). The existing TCF mandatory retailer codes in New South Wales and South Australia impose obligations upon retailers without any reference to the extent of retailer control: see Rawling, above n 14.

145 Road Safety Remuneration Act 2012 (Cth) s 3(b).

146 Ibid s 3(d).

147 See in particular Nossar, above n 14.