Frequently Asked Questions
A safe and sustainable rate is what is required for an efficient business to cover its costs and make a return on investment. Because every business will have a different cost structure, it is important that owner-drivers know their costs and the "sustainable" rate they need to maintain a viable business. The rate will vary for different freight tasks.
It is called a "safe and sustainable" rate because low rates of payment can cause financial pressures - which can tempt owner-drivers to compromise on safety. Safety compromises can include driving over the speed limit, overloading vehicles, driving too many hours each day, and/or cutting back on vehicle maintenance. A "safe and sustainable" rate means that owner-drivers do not have to bend or break the rules to avoid going broke.
To work out a suitable rate of payment, owner-drivers first need to have a good understanding of their business costs. The Department has developed a guide to help owner-drivers do this. The guide is available online and on compact disc. If you would like a copy of the compact disc, please contact us. A shorter version of the guide is also available in book form: Running a trucking business in Western Australia: A guide for owner-drivers (pdf 924kb).
No, you don't. Owner-drivers and hirers are encouraged to use written contracts though, because a written record provides a more secure business relationship and allows for more effective resolution of disputes. The Road Freight Transport Industry Tribunal can more easily deal with disputes where there is a written contract.
Yes, you do. To be classified as an owner-driver under the Act, your principal occupation must be operating one or more heavy vehicles, either as the sole operator or with additional drivers. A small fleet operator is not covered by the legislation where the owner manages the business, but does little or no driving. See the definitions for further details.
Yes, you are. Where a substantial part of a journey is conducted in WA, the Act applies. See the definitions for further details.
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Hirers and owner-drivers have the right to be tough negotiators, but they must also be fair, honest and reasonable. Unconscionable conduct can include the following:
- Using coercion or unfair tactics
- Not providing all relevant information
- Contract terms and conditions that are not reasonably necessary to protect the business interests of the hirer or owner-driver
- Not giving someone enough time to understand a contract
- Withdrawing work or services at short notice
- Contracts that do not allow payment increases when costs rise
Owner-drivers usually have less bargaining power and less business information than the hirers they deal with. If hirers were allowed to collectively bargain, they would have even more bargaining power than they already do. Besides, if hirers started offering the same rates and conditions, there wouldn't be much incentive for an owner-driver to stay with one hirer or to put in any extra effort.
Not necessarily. You do not have to collectively negotiate all of the terms and conditions. A group of owner-drivers could negotiate for some of the terms and conditions, then work out the rest one-on-one with the hirer.
An individual or group of owner-drivers does not have to negotiate directly with a hirer. They are free to choose any person or group (their "negotiating agent") to negotiate on their behalf. Examples include an accountant, the TWU or another owner-driver. The same applies to a hirer, who may appoint any person or group to be their negotiating agent.
A negotiating agent must be appointed in writing by the hirer, the owner-driver or the group of owner-drivers. A copy of the authority must be provided to the other party before negotiations start.
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No, you can't. An owner-driver with a new prime mover cannot demand a higher rate. It might be that a hirer is prepared to pay a higher rate, if they had requested a new vehicle to be provided, but that is an issue of negotiation between the parties.
Owner-drivers should be wary of over-specifying prime movers, trailers and other equipment. Guideline Rates will be based on standard trucks, so any additional feature that goes beyond what is required for the task does not have to be considered.
The maximum time for payment is 30 days from receipt of invoice. Any provisions for payment beyond 30 days are prohibited. If there is no agreed time for payment, the payment claim must be paid within 14 days of receipt.
"Pay when paid" provisions are prohibited. A hirer must make financial arrangements to pay an owner-driver according to the agreed payment provisions, which cannot exceed 30 days.
If there is an issue of unconscionable conduct with you being induced to cart below a "sustainable rate", you could take your concerns to the Tribunal. The Tribunal can determine a rate for your specific operation. If you have failed to be careful and agreed to a rate that you were okay with at the time, then you may not have a strong case.
The hirer should provide a copy of the WA Owner-Driver Information Book and a current copy of the relevant Guideline Rates. They should also give the sub-contractor time to read and understand the information before negotiations start. If the sub-contractor already has the book and Guideline Rates, the hirer does not have to provide another copy.
Note: This requirement will not come into effect until the Code of Conduct and Guideline Rates are in place.
The WA Owner-Driver Information Book has not yet been released. Please note that it is not the same as the information booklet currently available.
If your contract has a provision for an additional payment when you experience unreasonable delays in loading or unloading, you can claim and recover this additional cost. If you do not have a contract provision for this, it would not be something you can readily claim.
If a prime contractor has demurrage provisions with a customer, it is reasonable for the owner-driver to be similarly compensated. Failure to do so could be considered unconscionable conduct.
The owner-driver legislation requires a hirer to make and keep some records for a minimum of 6 years - because 6 years is the limit for the Tribunal. Those records are simply the details of owner-driver contracts, including names, dates, the service provided, payments and any deductions. The Code of Conduct will set out what records need to be kept.
Note: This requirement will not come into effect until the Code of Conduct is in place.
All businesses, including owner-driver businesses, are required to keep business records for a minimum of 5 years - this is a Taxation Office requirement.
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To refer a dispute with the Tribunal, you need to fill in a Form 7A then lodge it with the Tribunal. You can get the form by going to the website: www.wairc.wa.gov.au, or by going to the WA Industrial Relations Commission on 111 St Georges Terrace, Perth. You can lodge the form via the same website, by going to the Commission office, or you can post it in. There is no fee for doing this.
Once the form has been received and filed by the Tribunal, you need to serve a copy of it on the other party to the dispute. You will also need to fill out a statutory declaration that you have done this. The statutory declaration is done on a Form 4.
The other party then has 21 days to respond, which they do using a Form 5. They also need to send a copy of the Form 5 to you and fill out a Form 4 statutory declaration that they have done so.
The Tribunal will list the matter for hearing as soon as it reasonably can.
Interest can be claimed for the period from the day after a payment becomes due, up to and including the day when it is finally paid. If someone has paid you some of the amount by the due date, you can claim interest on the overdue balance.
You can claim interest by submitting an invoice or payment claim to the person or company that owes you the outstanding money. If your contract does not have a provision for the interest rate payable, the rate of interest can be found in the Civil Judgments Enforcement Act 2004, section 8(1)(a).
The rate in January 2009 was 6% per year. To find out what the current interest rate is, you will need to check section 8 (1) (a) of the Civil Judgments Enforcement Regulations 2005.
There is a two step process to recovering your money. You will need a certified copy of your order from the Tribunal and you will need to attend the Industrial Magistrate's Court as part of the claim process.
The first step is to make a claim in the Industrial Magistrate's Court. The Court is located at 111 St George's Terrace, Perth (the same building as the Tribunal and the Industrial Relations Commission).
The second step is to ask the Industrial Magistrate's Court to enforce the order from the Tribunal. To do this, you will need to file a certified copy of the Tribunal's order and an affidavit in the Industrial Magistrate's Court. Note that there is a fee for this, but the Court may order the other party to repay your portion of the fee.
It is very important that you use the proper legal name of the person or company that you are making the claim against. Do not use abbreviations or nicknames when filling out the forms. The forms that you need to complete are available from the Court registry, or you can telephone the Court on 9420 4415, or download them from the website: www.imc.wa.gov.au.
If you go to the Court registry, staff can help you to fill out the paperwork. Otherwise, you can ask them to post the forms to you, including samples that show how to complete the forms. However, you do not have to come to Perth to do this, because the Industrial Magistrate's Court has six metropolitan locations, in addition to regional court houses.
The Guideline Rates will be updated annually, at the direction of the Chairman of the Road Freight Transport Industry Council.
No, you aren't. The Guideline Rate is not a minimum or maximum rate that a hirer must pay. It is a model to guide you in working out what it costs you to run your vehicle and your business. Use the Guideline Rate as a starting point to work out your costs. Once you know your cost structure, you can negotiate your rates accordingly. The basis of the model will not change, but clearly some of the costs that go into it can change over time.
The Code of Conduct requires a hirer to pay an owner-driver for services provided at a safe and sustainable rate of payment. The Code also describes how that rate can be determined.
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All rates are subject to negotiation. If you believe that the rate being offered is insufficient and unsustainable, you should not carry the load. Operators need to assess the possibility of a return load when assessing their rate for the forward load.
The published Guideline Rates do not factor in rapidly changing fuel price increases. The Guideline Rates do incorporate a per litre fuel cost, but you need to update this figure regularly in your rate model, to ensure that you are recovering your costs. The FuelWatch website provides average fuel prices for both metro and country areas: www.fuelwatch.wa.gov.au.
It is not practical to develop a Guideline Rate for every type of heavy vehicle. Even within a type there will be variations, with different types of trailers and ancillary equipment like container hoists or refrigeration units. An owner-driver needs to find the Guideline that most closely matches their truck type and business, then adjust the cost data to work out the rate required for their operation.
The Code of Conduct deals with the business relationship between hirers and owner-drivers. It provides guidance on how that business relationship should function, to ensure a competitive but fair operating environment. Some of the requirements in the Code are mandatory, while others are for guidance. The Code of Conduct is planned to come into effect in March 2009.
The Act came into effect in two stages: 1 August 2008 and 1 February 2009. The six months between stage one and stage two allowed time for several things to happen:
- Contracts and agreements that did not comply with the Act could be renegotiated.
- Accounting and finance systems could be changed, so that payments would be made within the 14-day or 30-day payment time limits
- The Code of Conduct and Guideline Rates could be developed
- Hirers could modify their record-keeping practices, to be in line with the new six-year requirement (see the question about record-keeping)
The Act came into effect in two stages: 1 August 2008 and 1 February 2009.
From 1 August 2008, the following applies:
- The unconscionable conduct rule applies - hirers and owner-drivers have the right to be tough negotiators, but they must also be fair, honest and reasonable (see the question about unconscionable conduct).
- Owner-drivers have the right to collectively bargain.
- A hirer, an owner-driver or a group of owner-drivers can appoint a negotiating agent (see the question about negotiating agents).
- The Road Freight Transport Industry Tribunal commenced operation - providing a low-cost dispute resolution process.
- The Road Freight Transport Industry Council commenced operation.
- If an owner-driver contract does not have a written provision dealing with one or more of the following payment issues, the Act will imply standard provisions for them:
- A time limit for when payment must be made (see below)
- Interest payable on overdue amounts (see the question about interest payable)
- How to make a claim for payment.
From 1 February 2009, the following applies:
- Owner-driver contracts cannot include an "if paid/when paid" condition. If an owner-driver contract contains such a condition, that condition will have no effect.
- Payments must be made within the following periods of receiving a claim for payment:
- 14 days (if there is nothing written in the owner-driver contract about payment time limits); or
- Within 30 days (in any other case).
- Interest will be payable on overdue amounts (see the question about interest payable)
It was intended that Regulations containing the Code of Conduct would be in place from 1 February 2009. The Regulations and Code are currently being finalised. It is expected that the Regulations and Code will now come into effect in March 2009.
Once the Regulations and Code of Conduct are in place:
An owner-driver or their authorised representative will be able to access and inspect certain types of records that a hirer is keeping about that owner-driver;
Hirers will need to provide owner-drivers with current written information - a copy of the WA Owner-Driver Information Book and the Guideline Rates.
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