Owner Drivers and ForestryContractors Code of PracticeOperative from 1 December 2006

Industrial Relations Victoria Department of Innovation, Industry & Regional Development

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This Code is prescribed by the Owner Drivers and Forestry Contractors Regulations 2006 (S.R. 153 of 2006)and commenced on 1 December 2006.

OWNER DRIVERS AND FORESTRYCONTRACTORS CODE OF PRACTICETABLE OF CONTENTS

BACKGROUND TO THE CODE 01

THE CODE 05

PART 1 - INTRODUCTORY 05

OBJECTIVES 05

INTERPRETATION 06

APPLICATION 06

PART 2 - CONDUCT DURING 07NEGOTIATIONS

UNCONSCIONABLE CONDUCT 07DURING NEGOTIATIONS

BEST PRACTICE IN NEGOTIATIONS 10

PARTIES MUST NOT CLAIM TO 11EXCLUDE THE ACT OR OTHERLAWS OR THE CODE

DISCLOSURE OF INFORMATION 12

DISPUTE RESOLUTION 13

MISLEADING ADVERTISING 14

NEW VEHICLES OR MOTORISED 16EQUIPMENT

GENERAL PRINCIPLES FOR SETTING 17AND REVIEWING RATES

ADDITIONAL MATTERS TO BE 19CONSIDERED IN SETTING RATES

REDUCTION IN REMUNERATION 22FOR CARRYING SMALLER LOADS

PAYMENT OF INVOICES 23

DEDUCTIONS FROM REMUNERATION 24

PART 3 - DEDUCTIONS 25AND STATEMENTS

DEDUCTIONS FOR THE USE OF THE 25HIRER’S EQUIPMENT AND TECHNOLOGY

PENALTIES 26

PART 4 - ALLOCATION OF WORK, 27WORKING ARRANGEMENTS AND ABSENCES

ALLOCATION OF WORK 27

WORKING ARRANGEMENTS 28

ABSENCES DUE TO ILLNESS OR 29

FAMILY RESPONSIBILITY

PART 5 - ADDITIONAL PROVISIONS 30FOR FORESTRY CONTRACTORS AND HIRERS

UNCONSCIONABLE CONDUCT 30DURING NEGOTIATIONS

BEST PRACTICE IN NEGOTIATIONS 30

DISCLOSURE OF INFORMATION 30

BEST PRACTICE IN DISPUTE RESOLUTION 31

MISLEADING ADVERTISING 31

GENERAL PRINCIPLES FOR SETTING 31AND REVIEWING RATES

REVIEW OF RATES ON A REGULAR 32AND SYSTEMATIC BASIS

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BACKGROUND TO THE CODE

In 2004 the Victorian Government undertook an inquiry into the commercial arrangementsaffecting owner drivers and forestry contractors.Industrial Relations Victoria’s report found thatthese small businesses represent an importantpart of the Victorian economy, but that a rangeof factors, particularly the rising cost of fuel, have led to poor financial returns and a high rateof business failure for some in these sectors.

The Owner Drivers and Forestry ContractorsAct 2005 (Vic) provides for, amongst otherthings, the adoption by regulation of industrycodes of practice that establish mandatoryrequirements and guidance material relating to relations between owner drivers, forestrycontractors and their hirers.

Who does the Code apply to? Part 1 to 4 of the Code applies to owner driversin the transport industry and to harvesting andhaulage contractors in the forestry industry(together called “contractors”) and their hirers.

Part 5 of the Code contains additionalprovisions that apply only to harvesting andhaulage contractors in the forestry industry andtheir hirers.

However the all examples contained the Code may be used as guidance in respect of the Act for both owner drivers and harvestingand haulage contractors and their hirers, as appropriate.

What does the Code do?The Owner Drivers and Forestry ContractorsCode of Practice has been made by theVictorian Government after advice fromrepresentative industry bodies called theTransport Industry Council and the ForestryIndustry Council.

The Code operates in three ways: 1. The Code establishes mandatory

requirements that must be complied with;

2. The Code provides guidance to hirers and contractors, to the Small BusinessCommissioner and to the Victorian Civil andAdministrative Tribunal (“the Tribunal”) onconduct that is likely to be unconscionableconduct and contract terms that are likely to be unjust contract terms.

3. The Code also describes industry best practice.

Mandatory requirements of the Code Some provisions of the Code are mandatory,meaning they set out requirements that hirersand contractors must comply with. Section 30of the Act provides that:

“A person to whom the code of practiceapplies must comply with the code of practice tothe extent that it imposes duties or obligationson the person or prohibits the person fromengaging in certain conduct”.

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Guidance on unjust contract termsThe Tribunal has power under section 44(1)(g)of the Act to: “Make any order it considers fair, includingdeclaring void any unjust terms of a regulatedcontract, inserting a term into a regulatedcontract or otherwise varying a contract toavoid injustice”.

In determining whether a term of a contract isunjust, the Tribunal may have regard to rangeof matters listed in section 44(2) of the Act.Section 44(2)(n) provides that one of thosematters is: “Whether the term is inconsistent with any partof a relevant code of practice, whether or notthat part of the code imposes duties orobligations on a person or prohibits a personfrom engaging in certain conduct”.

Guidance on unconscionable conductThe Tribunal may also have regard to therequirements of the Code in determiningwhether the conduct of a hirer or a contractorconstitutes unconscionable conduct. Section31 of the Act provides that hirers must notengage in unconscionable conduct towardscontractors. In determining whether conductis unconscionable, the Tribunal may haveregard to any one or more of the matterslisted in that section. Similarly, section 32describes unconscionable conduct by acontractor towards a hirer.

Generally speaking, unconscionable conductoccurs where a stronger party to a transactionexploits the weaker party in a way that isunreasonable or unfair. The MacquarieDictionary defines unconscionable as: a) Unreasonably excessive;

b) Not in accordance with what is just and reasonable;

c) Not guided by conscience, unscrupulous.

Just because conduct is commercially toughdoes not make it unconscionable. Businessesare allowed to be rigorous and competitive intheir dealings with other businesses, but mustnot behave unconscionably. The Code describesconduct that is likely to be unconscionable withinan industry context to help contractors and hirersto avoid such conduct, and to help them tounderstand their rights.

However, what may amount to unconscionableconduct or an unjust term of a contract will depend on the whole of the parties’circumstances, and contractors and hirersshould seek their own legal or other advice.

Industry best practice The Code specifies certain practices that areregarded as constituting good or best practicein a number of circumstances, such as contractnegotiations, dispute resolution and allocation of work. Hirers who adopt these practices can be confident that their conduct will not befound to be unfair or unconscionable. However, there is no mandatory requirement to adoptthese practices.

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Dispute resolutionThe Act provides that where there is anallegation that: a) a person has breached a mandatory

provision of the Code;

b) a term of a contract is an unjust term(section 44(2));

c) a person has engaged in unconscionableconduct (sections 31 and 32);

d) a person has breached a provision of theAct; or

e) where a dispute arises under or in relationto the contract between the parties,

then the affected party can notify a dispute tothe Small Business Commissioner under Part 5of the Act.

If not resolved by mediation, the person notifyingthe dispute can refer the matter to the VictorianCivil and Administrative Tribunal. The Tribunalmay make a range of orders, including: a) an order for a party to do or refrain from

doing something;

b) an order invalidating, varying or requiringperformance of a contract; or

c) an order for a refund, compensation ordamages.

In accordance with usual legal principles, a person who may have been affected by a breach of the Act or Code has a duty to mitigate their loss. This means that inassessing any damages that could be paid,

the Tribunal might reduce the amount paid if,for example, the party did not use his or herbest efforts to minimise their loss.

Decisions of the Tribunal are subject to appealunder the usual processes in Part 5 of theVictorian Civil and Administrative Tribunal Act1998 (Vic).

The Code encourages parties to first attemptto settle disputes between themselves, beforeengaging in these formal mechanisms underthe Act. To this end, the Code identifies asbest practice a number of informal steps fordispute resolution that should be taken by theparties before using the mechanisms underPart 5 of the Act.

For more information regarding disputeresolution please contact: The Office of the Small Business CommissionerCall 13 22 15 (local call) or Toll Free 1800 136 034or visit website: www.sbc.vic.gov.au

Location: Level 2, 121 Exhibition Street,Melbourne 3000

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OWNER DRIVERS AND FORESTRYCONTRACTORS CODE OF PRACTICE

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PART 1INTRODUCTORY

01. OBJECTIVES

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The objectives of this Code are–

(a) to provide for certain mandatoryrequirements concerning the engagement ofcontractors;

(b) to provide guidance to hirers and contractors on–(i) conduct which is likely or unlikely to be

unconscionable conduct within themeaning of sections 31 and 32 of theAct, including by providing examples ofconduct that in the absence of anyspecial circumstances is likely to be, ornot to be, unconscionable conduct withinthe relevant industry context; and

(ii) contract terms which are likely or unlikelyto constitute unjust terms within themeaning of section 44(2) of the Act,including by providing examples ofcontract terms that in the absence of anyspecial circumstances, are likely to be, ornot to be, unjust contract terms withinthe relevant industry context;

(c) to ensure a competitive and fair operatingenvironment by promoting the followingprinciples to guide business relationsbetween hirers and contractors–

(i) parties to a contract should be able to operate their respective businesseswithout unfair business practices beingused against them;

(ii) contractors are entitled to be paid theagreed rate for their services;

(iii) hirers are entitled to have workperformed to a satisfactory standard;

(iv) parties should clearly communicate theirexpectations and requirements and anyplans that may affect the other party'sinterests;

(v) hirers should offer and pay contractorsremuneration that, considering thecontract as a whole, the services to beperformed and the general market forthose services, enables the contractor tomeet efficient operating expenses,receive a fair return for the contractor'sown labour and a return on investment.

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(1) In this Code–"contract" means a regulated contract within the meaning of section 3 of the Act;"the Act" means the Owner Drivers andForestry Contractors Act 2005.

(2) Where the term "contractor" is used in thisCode in a context that applies only to anatural person, the term refers–(a) if the contractor is a natural person

–to that person;(b) if the contractor is a partnership

–to any of the partners;(c) if the contractor is a company

–to an officer of the company.

(1) This Code applies to hirers and ownerdrivers, harvesting contractors and haulagecontractors.

(2) Where a provision of this Code ispreceded by the following heading– MANDATORY REQUIREMENTthe provision must be complied with bythe person or persons to which it applies.

Note: Section 30 of the Act provides that a person to whom acode of practice applies must comply with the code of practiceto the extent that it imposes duties or obligations on the personor prohibits the person from engaging in certain conduct.

(3) Part 5 contains provisions which includeexamples that relate to forestry contractors.Examples set out in any Part of this Codemay be used as guidance in respect of theAct for hirers and all kinds of contractors, bethey owner drivers, harvesting contractorsor haulage contractors.

Note: All terms used in this Code have the same meaning asprovided by the Act unless the context requires otherwise.

"Contractor" is defined in section 3 of the Act to mean anowner driver, a haulage contractor or a harvesting contractor.

See in particular the following definitions in the Act–thedefinition of "hirer" in section 3, the definition of "owner driver"in section 4, the definition of "haulage contractor" in section 5and the definition of "harvesting contractor" in section 6.

The definition of "owner driver" is affected by the Owner Driversand Forestry Contractors Regulations 2006. Those Regulationshave the effect of limiting the definition of owner driver tobusinesses that supply up to a maximum of 3 vehicles.

02. INTERPRETATION 03. APPLICATION

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GUIDANCEIn the absence of any special circumstances,where a hirer or a contractor engages in theconduct described below, that conduct is likelyto be unconscionable conduct within themeaning of sections 31 and 32 of the Act–

(a) where a party, by themselves or throughan agent–(i) does not provide a reasonable

opportunity to discuss an offer, or makesoffers on a "take it or leave it" basis andrefuses to consider any alternative offer.This does not mean that a hirer cannotuse template contracts, or that a partymust accept an offer that is put to them.However, a party should genuinelyconsider offers made to them; or

(ii) does not provide a reasonableopportunity for another party to properlyexamine and consider offers, or to obtainlegal, financial or other advice, includingin the party's preferred language; or

(iii) disguises the terms of a contract usingfine print, unnecessarily difficult languageor deceptive lay-out or headings; or

(iv) summarises the meaning of a documentto another party but omits to mentionimportant terms in a way that ismisleading; or

(v) fails to correct another party'smisunderstanding, where the hirer orcontractor knew or reasonably ought tohave known that the other party wasunder a serious misapprehension aboutthe terms of the agreement or any otherrelevant matter; or

(b) where a party builds up reasonablecommercial expectations in another partyfor the renewal of an agreement and thenexploits those expectations to extract aharsh or one-sided deal from the otherparty; or

(c) where a party attempts to pressure anotherparty into accepting an offer by acting inbreach of contract, or otherwise actingunlawfully, or by threatening to do so.

(1) This Code does not prevent hirers or contractors from acting vigorously in their owncommercial interests. However, each party should deal with the other party or parties fairlyand in good faith when negotiating a new contract or a variation to a contract.

PART 2CONDUCT DURING NEGOTIATIONS

04. UNCONSCIONABLE CONDUCT DURING NEGOTIATIONS

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EXAMPLE 4.1Wal was given a contract to look over. Theclause about goods in transit insurance wascomplex and hard to read. Wal asked thecompany's manager whether it meant he had totake out a new policy. The manager said he waspretty sure the insurance arrangements hadn'tchanged but he wasn't really certain. Walsigned the contract and sent it with a lettersaying he was told the insurance was the sameas before, but asking that the company tell himif this wasn't right. The company didn't reply.A dispute arose later about some expensivegoods damaged in an accident, and thecompany argued that Wal was obliged underthe contract to take out the insurance.The company's failure to correct Wal'smisunderstanding in circumstances where itwas brought to its attention and not correctedis likely to constitute unconscionable conductunder section 31 of the Act, and Wal could notifya dispute to the Small Business Commissioner.

EXAMPLE 4.2Ajani was looking for work. He responded to anadvertisement seeking couriers. He was given along and complicated contract. Ajani has troublewith English and said he needed to have a friendwith good English read the documents. Themanager said if Ajani wanted the job he wouldhave to sign on the spot and pay $1000 to coverthe "set up costs". Ajani was anxious to findwork and the manager was persuasive, so hesigned and paid. He later realised the contractpaid well below the going rate and it wasimpossible to make a living from the rates paid.The company refused to refund the $1000.The company's conduct is likely to constituteunconscionable conduct under section 31 of theAct, and Ajani could notify a dispute to the SmallBusiness Commissioner.

EXAMPLE 4.3Bill works for a company that provideswaterfront services using both contractors andits own employee drivers. Bill is planning toretire and is negotiating to sell his truck to thecompany. Bill persuades the other contractorsto refuse to work unless Bill's demands aremet. Bill and the other contractors' conductmay be in breach of their contracts and is alsolikely to be unconscionable conduct within themeaning of section 32 of the Act. The companycould notify a dispute to the Small BusinessCommissioner and could also seek an urgentinjunction in the Tribunal.

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ADDITIONAL GUIDANCESet out below are circumstances whereparties need to take special care that they donot act unconscionably–

(a) where a hirer is aware that a contractorlacks business experience or hasdifficulty with business language–

It is likely to result in unconscionableconduct within the meaning of section 31of the Act if the hirer refuses to allow thecontractor a reasonable opportunity toobtain an understanding of the contractso as to be able to protect his or herinterests appropriately.

(b) where a party is in an unusually strongnegotiating position in relation to anotherparty because of a monopoly orotherwise limited market for the supply ofthe services–

The imposition of unduly harsh or one-sidedcontracts in these circumstances is likely to beunconscionable conduct within the meaning ofeither section 31 or 32 of the Act.

EXAMPLE 4.4A company is seeking new contracts with itsdrivers. Even though the company knows Darrenhas problems with reading complex documents,the company insists the offer is only open for24 hours. Darren feels pressured to sign eventhough he doesn't understand the contract andhasn't had a chance to get his accountant toread it for him. This conduct is likely to constituteunconscionable conduct under section 31 of theAct, and Darren could notify a dispute to theSmall Business Commissioner.

EXAMPLE 4.5Uri and Jack have an expensive specialisedvehicle that can carry oversized farm machineryfrom sea ports to dealers. A machinery importeris the only business in Victoria with a need forthis kind of vehicle. There are two possiblescenarios in this situation of a limited marketthat may result in unconscionable conduct–(i) knowing that Uri and Jack have no other

potential customers for their vehicle, thecompany tries to force a significant ratereduction that makes the businessunprofitable; or

(ii) knowing that the company is reliant ontheir vehicle to perform its contracts withcustomers, Uri and Jack threaten to refuseto accept work over the busiest period ofthe year unless the company pays asignificant rate increase.

(2) The conduct described above is not anexhaustive description of conduct duringnegotiations that may be unconscionableconduct within the meaning of either section31 or 32 of the Act.

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BEST PRACTICETo ensure that contract negotiations areconducted fairly and that both partiesfully understand their agreement, theparties should–

(a) provide each other with the following–(i) a reasonable opportunity to meet and

discuss the terms and conditions;(ii) a reasonable opportunity to put

alternative offers that suit their ownbusiness needs;

(iii) sufficient time to properly examine andconsider offers and to consult withbusiness partners or fellow directors;

(iv) a reasonable opportunity to seek legal,financial or other advice andappropriate assistance to understanddocuments; and

(b) properly consider any offers made bythe other party.

Where a hirer has any concerns about acontractor's understanding of a contract, thehirer may request the contractor to providewritten confirmation that the contractor hasreceived advice from an appropriatelyqualified person.

Parties should be clear, open and certain aboutthe circumstances in which their contract willbe renewed or not renewed.

Contractors and hirers are also entitled undersections 25 and 26 of the Act to appoint agentsto conduct contract negotiations on their behalf.In summary, sections 25 and 26 of the Act–

(a) entitle contractors and hirers to appointnegotiating agents to negotiate contractson their behalf; and

(b) require other parties to recognisenegotiating agents where properlyappointed; and

(c) enable parties to require that negotiationsbe conducted through those agents.

05. BEST PRACTICE IN NEGOTIATIONS

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MANDATORY REQUIREMENT(2) A party to a contract must not make

any claim to another party that the otherparty's rights or entitlements under theAct or any other law or this Code areexcluded, unless the Act or other law orthis Code permits that exclusion.

(1) Section 65(1) of the Act provides thata provision of a contract is void to theextent that it is contrary to the Act orthis Code.(1)

06. PARTIES MUST NOT CLAIM TO EXCLUDETHE ACT OR OTHER LAWS OR THE CODE

EXAMPLE 6A freight forwarder has included a clausein its contract stating that the contractorwaives the requirement under section 23 ofthe Act that a hirer cannot deduct moneyfor insurance unless a copy of the relevantpolicy has been given to the contractor.The contract also provides the contractoris not permitted to notify a dispute to theSmall Business Commissioner. Theseclauses are invalid and unenforceable.

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EXAMPLE 7.1Alf's hirer is a small freight forwarder who hastwo major clients. One of those clients has justappointed a receiver, and it appears likely thatthe hirer might only get paid 20 cents in thedollar on debts it is owed. The hirer already owesAlf for more than 30 days work. The hirer shouldinform Alf immediately of the development anddiscuss how they will deal with the situation.Either party could seek the assistance of theSmall Business Commissioner.

EXAMPLE 7.2Kolya worked for a freight company that did mostof its work for a chain of home-ware stores. Afterdiscussing his plans with his hirer, Kolya investedin a new B Double and entered a five year financecontract. Kolya wasn't told that the contractbetween the hirer and the chain of home-warestores was up for renewal. The contract wasn'trenewed, Kolya lost the work and was stuck withthe new vehicle and payments. The companyshould have told Kolya that the contract with thecustomer was not yet secured, particularlyknowing that he was buying a new vehicle inreliance on secure work. Kolya could notify adispute to the Small Business Commissioner.

GUIDANCEIf a hirer or contractor is planning orhas experienced changes to the waythey conduct their business that maysignificantly affect the business of anotherparty, they should inform the other partyof those planned changes or changesas soon as reasonably practicable.A failure to do so is likely to constituteunconscionable conduct for the purposesof sections 31 and 32 of the Act.

However, a party is not obliged todisclose any incomplete proposal ornegotiation, or any trade secret orcommercial-in-confidence matter.

Fair business dealing requires parties to exchange information about their changed plans and dealingsthat may have an impact upon the other party's business. This exchange of information should beongoing throughout the relationship, and not just at the time a contract is entered into or renewed.Sections 31(2)(h) and 32(2)(h) of the Act provide that a factor to be considered in determining whethera hirer or a contractor has acted unconscionably is where that party unreasonably fails to disclose toanother party proposed conduct that might affect the other party's interests, or does not disclose anyrisks that that party should have foreseen would not be apparent to the other.

07. DISCLOSURE OF INFORMATION

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(1) Part 5 of the Act provides a process for theresolution of disputes between hirers andcontractors, including mediation by theSmall Business Commissioner. If this doesnot successfully resolve the dispute, theparty who notified the dispute may refer thematter to the Tribunal for determination.

(2) However, except in urgent circumstances,parties should first seek to resolve anydispute between themselves before usingthe disputes process provided under theAct. Work should continue as normal whilethe parties attempt to resolve the dispute.

BEST PRACTICEWhere a dispute arises, the aggrieved partyshould do the following–

(a) notify the other party of their concernswhen the issue arises;

(b) advise the other party what they wouldlike to happen to resolve the dispute;

(c) provide a reasonable time period forresolution;

(d) accept any invitation to meet with theother party to attempt to resolve thedispute;

(e) act professionally and courteously atall times;

(f) continue to perform or offer servicesas normal while the dispute is beingdealt with;

(g) ensure services are being performed ina safe manner;

(h) follow any process agreed betweenthe parties for the resolution ofdisputes.

Where an unforeseen event occurs beyondthe parties' control (such as a road closure)the parties should work together to find away of dealing with the situation that is fairand equitable.

08. DISPUTE RESOLUTION

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MANDATORY REQUIREMENT(1) A hirer seeking to engage a contractor

must not make any representationto the contractor, including throughadvertisements or in interviews–

(a) that the hirer knows to be false,or which the hirer is reckless asto whether it is correct; or

(b) that is misleading or deceptive orlikely to mislead or deceive.

(2) For the purposes of this section,representations that are likely tomislead or deceive include thefollowing–

(a) a representation that a contractorcan earn a certain amount where it isnot reasonably possible for a diligentcontractor to earn that amount;

09. MISLEADING ADVERTISING

EXAMPLE 9.1John sees an advertisement in the local paperthat says drivers will "earn in excess of $1500per week". John starts work, but then finds outfrom the other drivers that their average grossincome for the last year has been less than$900, and that no-one has ever managed toearn more than $1200 a week. John couldnotify a dispute to the Small BusinessCommissioner over this breach of the Code.

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EXAMPLE 9.2A courier company recruits new drivers withadvertisements stating "guaranteed minimum38 hours a week". However, after Hermanstarted with the company, and after he paintedhis vehicle in the hirer's livery, he was given acontract that said the minimum hours onlyapplied for three months then it was "up tothe driver to bring in the work". After the threemonths, Herman's hours drop back to lessthan 20 a week. Herman could notify a disputeto the Small Business Commissioner over thehirer's breach of the Code.

EXAMPLE 9.3A pizza restaurant advertised for a delivery driver.The advertisement states "guaranteed $100 pernight". The pizza restaurant should make it clearwhether this is a gross (before expenses) figure,for example, by saying "$100 per night (lessexpenses)" or a guarantee of earnings afterexpenses are taken out.

(b) a hirer guarantees a contractor anenforceable minimum level of income ornumber of hours of work for a certainperiod of time, but–(i) does not make it clear that the

minimum is only for that period; or (ii) in circumstances where the

engagement is to continue beyondthat period, does not provide anyinformation to the prospectivecontractor about expected earningsafter that period expires;

(c) a hirer provides estimates ofearnings to a contractor but fails toindicate whether the figure is a grossfigure (that is, that the contractor willincur overhead costs in earning thatamount) or a net figure (the figureafter expenses are taken out).

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MANDATORY REQUIREMENT(2) If a hirer requests or requires a contractor

to supply a vehicle or motorisedequipment that is different to the vehicleor motorised equipment supplied by thecontractor under a contract with the hirer,or if the contractor identifies a legitimateneed to upgrade the vehicle or motorisedequipment, the hirer must enter intonegotiations with the contractor forvariations to the contract for that purpose,and in doing so have regard to thefollowing–

(a) any increase or decrease in thecontractor's costs associated with thepurchase and operation of the requestedvehicle or motorised equipment;

(b) the appropriate level of commercialsecurity, having regard to the nature ofthe vehicle or motorised equipmentprovided and the amount of theinvestment;

(c) the need for the contractor to havereasonable security over his or herbusiness assets (for example, a contractof appropriate duration, a minimumnumber of hours or income, or both);

(d) the impact upon efficiency andproductivity as a result of the upgradedvehicle or motorised equipment.

(3) If, after these negotiations, the hirer agreesthat a different vehicle or motorised equipmentmay be supplied by the contractor, the hirermust set out in writing the terms andconditions being offered for the services usingthe different vehicle or motorised equipment,and must do so before the contractorpurchases or otherwise commits to supplyingthe vehicle or motorised equipment.

(4) If the hirer requires particular specificationsfor the different vehicle or motorisedequipment, the specifications must beprovided in writing to the contractor.

(1) Hirers occasionally require existing contractors to upgrade their vehicles or motorisedequipment. This can involve substantially higher overhead costs and a much greater levelof capital investment. Unfairness is likely to result in these circumstances if the terms of thecontract are not reviewed to make sure they remain reasonable and appropriate.

10. NEW VEHICLES OR MOTORISED EQUIPMENT

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11. GENERAL PRINCIPLES FORSETTING AND REVIEWING RATES

A hirer should offer and pay to a contractor arate of remuneration that is commensurate withthe rates typically paid within the industry forsimilar services, and which meets an efficientcontractor's business costs and provides areturn to the contractor that recognises thecontractor's capital investment.

GUIDANCEHirers should offer and pay contractorsremuneration that, considering the contractas a whole, the services to be performed,and the general market for the services,provides for each of the elements ofremuneration described below.

Considering the contract as a whole,contractors should receive at least anamount which, after accounting foroperating costs, is an amount that is notlikely to be less than the amount that thecontractor would typically receive forperforming those services as an employee.

A significant departure from these principlesmeans that the relevant contract term islikely to constitute an unfair contract term forthe purposes of section 44(1)(g) of the Act.

The elements of remuneration are the following–

(a) an amount that represents the recovery ofthe fixed and variable costs incurred inperforming the services required;

A hirer is not required to calculate the actualindividual overhead costs of a particularcontractor, but must consider the typicaland efficient overhead costs of a contractorwith the required type of vehicle orequipment.(2)

EXAMPLE 11A freight forwarder has a fleet of twentycontractors with B Doubles, and all contractsare up for review. In deciding what rate to offer,the hirer uses a cost model that is based onthe typical or average operating costs of a BDouble based on a three year old vehicle underfinance, that requires eight mechanical servicesa year. Some of the contractors have individualfinance payments that are higher or lower thanthe benchmark used to prepare the rate model,depending on the amount that they have eachborrowed. Some will have older vehicles (thatrequire more services) or newer vehicles (thatrequire fewer services). The use by the hirer ofthis benchmark model meets the requirementsof this section.

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(b) an amount that represents a fair return forthe contractor's labour;

For an owner driver, this is a fair amount forthe owner driver's labour in driving, loadingand unloading the vehicle and associatedactivities such as administration. A fairreturn for the owner driver's own labourshould be reflected in the contract betweenthe parties.

(c) an amount that represents a return on thecontractor's investment.

Contractors are businesses and thereforeaim to make a return on their businessinvestment, that is, a profit. Contractorsmay supply significant assets and carrysignificant commercial risk, and canreasonably expect to receive an amountover and above their efficient operatingcosts and their own labour as a reward forthat risk and investment. The amount that isa reasonable return on investment will varywidely in all the circumstances, and mayvary over time as market conditions change.

Factors that influence what is a reasonablereturn on investment can include the following–(i) the amount of the capital investment in the

vehicle or equipment;(ii) the level of commercial risk assumed by the

contractor; (iii) the security and certainty of the

arrangements;(iv) whether the vehicle or equipment provided

by the contractor can readily be used toprovide services to other persons;

(v) whether the vehicle or equipment is alsoused for personal use;

(vi) the efficiency and productivity of thecontractor;

(vii) the market for the services.

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EXAMPLE 12.1Mark delivers cars for a chain of car dealerships,exchanging new and traded-in vehicles betweenthe dealerships all over the State. Most journeyshe makes involve transferring just one car at atime. He is paid a rate based on the number ofcars carried and the number of kilometres, butonly for the kilometres he travels when his vehicleis loaded. The rates paid do not make anyallowance for the unloaded journey to collect thevehicle from the dealership, or for returning tohis base. This means that after taking account ofthe running cost of the vehicle, Mark is earningless than $10 an hour for all the work required toperform the requested services. The relevantterms of the contract are likely to constitute unjustterms within the meaning of section 44(1)(g) of theAct, and Mark could notify a dispute to the SmallBusiness Commissioner.

EXAMPLE 12.2A courier company has calculated that onaverage, it takes a certain number of minutesfor its couriers to collect or deliver goods. Thecompany pays on a fixed run rate based on thesuburbs between deliveries, and builds into thatrate an amount for the contractor's labour forthat average time spent in collecting or deliveringthe goods. Sometimes an individual courier mayhave to wait for a longer or a shorter period, buton average, over time, they receive compensationfor the time worked.

The relevant terms of the contract are unlikely toconstitute unjust terms within the meaning ofsection 44(1)(g) of the Act.

12. ADDITIONAL MATTERS TO BECONSIDERED IN SETTING RATES

In addition to the matters set out in section 11,hirers should also take the following mattersinto consideration when negotiating rates ofremuneration with contractors–

(a) the whole of the activities to beperformed by the contractor for thepurposes of the contract;

GUIDANCEContracts, considered as a whole, shouldtake into account the cost to the contractorof engaging in all the activities which arereasonably necessary to perform the services.

A failure to take reasonable account in acontract of all the work that is necessarilyperformed in providing the services meansthat the relevant term or terms of thecontract are likely to constitute unjustcontract terms for the purposes of section44(1)(g) of the Act.

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(b) where the customer pays additional ratesor levies;

It is common for arrangements between hirersand their customers to provide that the hirerreceives additional payments or higher rates incertain circumstances. With the rising cost offuel, customer fuel levies are common. Somehirers have acted unscrupulously by not givingthe contractor any benefit of such a loading orincrease, even though it is the contractor andnot the hirer who has actually had to bear theincreased cost caused by a rise in fuel prices.

GUIDANCEIf the hirer has the benefit ofarrangements with customers providingadditional payments or higher ratesfrom the customers where–(a) the cost of fuel rises or falls

(a fuel levy); or(b) the contractor spends excess time–

(i) loading and unloading, or waitingto be loaded or unloaded; or

(ii) waiting for customers to makegoods available for collection–

and the contract between the hirerand the contractor does not provideproportional payments or benefits to thecontractor in the same circumstances,then the relevant contract term is likely toconstitute an unjust contract term for thepurposes of section 44(1)(g) of the Act.

EXAMPLE 12.3Nina runs a two tonne van. In 5 years, her hirerhas only increased the rates paid to itscontractors by $1 an hour. At the beginning,Nina earned $900 a week on average, of whichabout $270 was spent on fuel. Because of thesignificant increase in the cost of fuel over thelast 5 years, Nina is now spending over $450 aweek on fuel, and the total return for her labourand investment is now well below $10 an hour.The company refuses to negotiate a new rate,saying the market is too competitive. However,the company's contracts with its customersallow it to charge an increased price wheneverthe cost of fuel increases by more than fivecents a litre. The company simply pockets thiscustomer price increase as it is the contractorswho pay for the fuel. This conduct is likely to beunconscionable conduct within the meaning ofsection 31 of the Act, and Nina could notify adispute to the Small Business Commissioner.

(c) where the contractor provides servicesto the hirer on an exclusive basis;

Contractors are businesses, not employees. Theyare not obliged to work solely for one hirer unlessthis is agreed between them. However, hirersoften require contractors to make themselvesavailable to accept work on a full time basis, andnot to work for anyone else. Often the contractoris required to paint their vehicle in the hirer's orcustomer's livery, meaning that regardless of theterms of the contract, the vehicle is not able to beused to perform work for other customers.

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GUIDANCEWhere the contractor–(a) is not permitted to perform services for

any other person using the vehiclesupplied under the contract; or

(b) has their vehicle painted in the hirer's orthe hirer's customer's livery–

then, unless there is evidence to thecontrary, the hirer should pay the contractorremuneration on the basis that the contractorwill receive no other income towards the fixedoverhead costs of the contractor's business.

A failure to do so means the relevantcontract term is likely to constitute an unjustcontract term for the purposes of section44(1)(g) of the Act.

(d) the need for a regular and systematicreview of fixed & variable overhead costs.

Section 31(2)(k) of the Act provides that a matterto be considered in determining whether a hirer'sconduct is unconscionable is whether or not thecontract allows for the payment of any increasesin fixed and variable overhead costs on a regularand systematic basis. This means that a contractwhich locks up a contractor's rates for longperiods of time without regard to increases inoverheads (particularly fuel prices) will besusceptible to a claim of unconscionable conduct.

GUIDANCESet out below is one practice that, while notbeing mandatory, constitutes a review of ratesfor increases in overhead costs in respect ofowner drivers on a "regular and systematicbasis", and is therefore unlikely to constituteunconscionable conduct within the meaningof section 31(2)(k) of the Act–(a) the component of a contractor's

remuneration that relates to the cost offuel is determined by direct reference tothe actual cost of the fuel required toperform the services and is adjusted onat least a monthly basis; and

(b) the determination of any increasesor decreases in the cost of fuel is byreference to a legitimate and accuratefuel price monitoring source; and

(c) the rates paid to the contractor arereviewed regularly and systematically inrespect of operating costs other than fuel.

While this section sets out an arrangementthat is unlikely to be unconscionable,other arrangements may be commerciallyappropriate and legitimate in all thecircumstances and comply with therequirements of section 31(2)(k) of the Act.

EXAMPLE 12.4Mick carries road base to road construction sites.His hirer is tendering for a new road building projectand asks the contractors to agree to a fixed rate perload for the three months of the project. The pricethat is negotiated takes into account the fact thatthe cost of fuel may increase during that time. Thisconduct is unlikely to be unconscionable conductwithin the meaning of section 31(2)(k) the Act.

Note: Part 5 sets out certain practices that constitute a reviewof rates for increases in overhead costs in respect of forestrycontractors on a "regular and systematic basis".

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(1) Contracts generally provide for rates whichare based upon the running costs of thetype of vehicle provided, for example, a two-tonne van. Where the contract between theparties permits, the contractor may agree toaccept offers from the hirer for loads thatcould be carried in a smaller vehicle for areduced rate of remuneration. Contractorsmay consider such occasional loads to be intheir own interests, for example where thealternative is running the vehicle unloaded.

(2) However, where the hirer regularly directsthe contractor to undertake work for suchreduced rates, the end result may be thatthe contractor is unable to cover the higheroperating costs of the larger vehicle.

GUIDANCEIn general, hirers should pay contractorsat the rate agreed between them for theparticular vehicle supplied by the contractor,regardless of whether the goods beingtransported could have been transported ina vehicle with a lesser carrying capacity.

Hirers should not–(a) direct contractors to undertake deliveries

with a smaller load to be paid at areduced rate; or

(b) make special arrangements withcustomers for reduced rates (forexample, supplying a two tonne van atthe lower one tonne van rate), and directthe contractor to perform deliveries forthat customer at the reduced rate.

Any regular direction that the contractoraccept a reduced rate that results in thecontractor being unable to meet theoperating costs of the larger vehicle is likelyto constitute unconscionable conductwithin the meaning of section 31 of the Act.

13. REDUCTION IN REMUNERATIONFOR CARRYING SMALLER LOADS

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EXAMPLE 14Bob works as a long distance driver. Hiscontract provides for payment 90 days afterinvoice, when the industry standard is generally7, 14 or 30 days, depending on the industrysector. Even then, his hirer regularly pays Boblate. The company says "you'll get paid if andwhen we get paid". The conduct of deliberateerratic payments is likely to constituteunconscionable conduct within the meaning ofsection 31 of the Act, and the contract termallowing for 90 days payment is likely toconstitute an unjust contract term for thepurposes of section 44(1)(g) of the Act.

14. PAYMENT OF INVOICES

GUIDANCEIn the absence of any unusual circumstances(or as otherwise required by law) a contractterm that allows a hirer to pay an owner drivermore than thirty days after presentation ofproperly completed invoices is likely toconstitute an unjust term of the contract forthe purposes of section 44(1)(g) of the Act.

Further, it is likely to constitute unconscionableconduct within the meaning of section 31 ofthe Act if the hirer has engaged in a pattern ofconduct of regularly being late in paying thecontractor's invoices, paying only part of theamount owed or failing to pay at all.

Contractors frequently have limited working capital. This means it is not reasonable to expect them tocarry operating costs for excessive periods. The period allowed for payment of invoices should providefor regular payments sufficient in the circumstances for the contractor to maintain a reasonablecash-flow to operate their business.

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EXAMPLE 15Russell works for a taxi truck company. Thecompany starts to deduct an "insurance fee" offive per cent of turnover from all its contractors.Russell already has his own insurance coveragethat is much cheaper, but the company says hemust also participate in its "self-insured" scheme.The hirer is in breach of sections 23 and 24 ofthe Act. Russell and his colleagues could notifya dispute to the Small Business Commissioner.

MANDATORY REQUIREMENT(5) If a hirer makes deductions from a

contractor's invoiced fees for services,or the use of equipment, provided bythe hirer or any other person, the hirermust provide a written statement to thecontractor setting out the nature of theequipment used or services providedand the amount deducted for theequipment or service.

(1) Section 24 of the Act places certainrestrictions on hirers requiring contractorsto pay any amount, or from makingdeductions from money payable tocontractors, in respect of services orequipment provided to contractors byhirers or any other person. Under section24, any amount deducted must be–(a) specified in the contract; and(b) a direct and proper reflection of the actual

cost of the services or equipment inrespect of which the costs are charged.

(2) Section 24 also requires the hirer to givethe contractor a reasonable opportunity toobtain the services or equipment fromanother supplier.

(3) Section 23 also requires a hirer seeking tomake deductions for insurance to have aninsurance policy in force and to have provideda copy of the policy to the contractor.

(4) Under section 65 of the Act, any term of acontract that is contrary to, or inconsistentwith, anything in the Act, the regulationsor this Code is void to the extent that it iscontrary or inconsistent. There are also strictrequirements under the Financial ServicesReform Act 2001 of the Commonwealthconcerning who is allowed to offerinsurance policies.

15. DEDUCTIONSFROM REMUNERATION

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PART 3DEDUCTIONS AND STATEMENTS

EXAMPLE 16A construction company negotiates withits owner drivers to install new vehicle monitoringtechnology to obtain government permission tooperate more heavily loaded vehicles on certainroads. The equipment costs $1500 to installwith a weekly monitoring fee of $30. Thecompany has calculated that the additionalload capacity would allow the contractors toearn an extra $200 a week. As the contractorobtains a significant financial benefit from usingthe equipment, it is unlikely to be an unjustcontract term if the contract allows the hirer todeduct the costs from the contractor'spayments, provided the contractor agrees andthe deduction is no more than the actual cost ofthe service and equipment provided.

16. DEDUCTIONS FOR THE USE OF THEHIRER'S EQUIPMENT AND TECHNOLOGY

GUIDANCEIf the hirer charges the contractor for theuse of equipment supplied by the hirer incircumstances where the contractor does notobtain any benefit or advantage to their ownbusiness from the use of the equipment, thenthe relevant contract term is likely toconstitute an unjust contract term for thepurposes of section 44(1)(g) of the Act.

However, it would not constitute an unjustterm if the rates paid to the contractor madeprovision for the cost of any such chargemade by the hirer.

A range of new technology, such as vehicle monitoring technology, GPS devices and electronicinvoicing equipment or other communications and monitoring equipment is now available.This technology may provide a benefit to the contractor or the hirer, or to both parties, in termsof improved efficiency, safety, client loyalty or productivity.

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EXAMPLE 17Fang Shan's contract states that she must pay$100 to the company if she is more than 10minutes late in a delivery. The inclusion of thiscontract term is in breach of this Code, andFang Shan could notify a dispute to the SmallBusiness Commissioner.

MANDATORY REQUIREMENTA hirer must not require a contractor, orinclude a term in a contract requiring acontractor, to make any payment whichis in the nature of a penalty. A "penalty"is a payment that must be made by aparty for an amount in excess of theamount necessary to remedy the actualloss or damage suffered as a result ofthe conduct.

17. PENALTIES

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BEST PRACTICEHaving regard to their legitimate businessneeds, hirers should use their bestendeavours to–(a) plan their fleet to match their

workloads; and(b) allocate work fairly between their

contractors.

Contractors should operate in an efficientand productive manner, and use their bestendeavours to assist hirers to meetcustomer requirements.

Parties should work together to pursueimproved management practices that avoidas far as possible unproductive time andunloaded travel, and which provide for themost efficient and productive utilisation ofthe contractor's and the hirer's vehicles,plant and equipment.

18. ALLOCATION OF WORK

Some arrangements in the transport industry pay remuneration to contractors for deliveries actuallyperformed, rather than for the hours where the contractor is available to work. This means that thefair allocation of work by the hirer is important for all parties.

PART 4ALLOCATION OF WORK, WORKINGARRANGEMENTS AND ABSENCES

GUIDANCEIf a hirer offers work to contractors in anunjust manner, this is likely to constituteunconscionable conduct within the meaning ofsection 31 of the Act. Such conduct may alsobe in breach of section 61 of the Act if carriedout for a reason prohibited by that section.(3)

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BEST PRACTICEWhen parties are negotiating a contract,they should give proper consideration toachieving safe work practices and areasonable work/life balance. Particularattention should be given to–

(a) ensuring their contracts comply with allapplicable laws and regulations on drivinghours and fatigue management; and

(b) the maximum number of hours a day inwhich services are to be provided; and

(c) the number of days each week, monthor year in which services are to beprovided; and

(d) structuring the hours in which servicesare to be provided to allow time forphysical recovery, rest and recreation,community participation and familytime; and

(e) what flexible arrangements can be putin place that may assist contractors tohave a better work/life balance. Sucharrangements might include allowingfor consultation over preferred rosters,arrangements to make it easier to findand use replacement drivers or flexiblestart and finishing times and locations.

Some contractors work very long hours, do nothave adequate rest and recovery between shifts,and do not have adequate family and recreationtime. While many contractors seek or acceptlong hours for financial or other reasons, thereis significant evidence to show that workingpatterns with excessive hours are unsafe, havelong-term health implications for contractors andhave a negative effect on family life.

19. WORKING ARRANGEMENTS

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20. ABSENCES DUE TO ILLNESSOR FAMILY RESPONSIBILITY

(1) Contractors are businesses, not employees.As such, provided the standards of thecontract are met, it is a matter for thecontractor to choose the person whoactually performs the services. This couldbe the owner of the contractor's businessor an employee or sub-contractor.

(2) A hirer may impose reasonable requirementson the use of alternative drivers based onthe qualifications, training or character of aproposed driver.

MANDATORY REQUIREMENT(3) A hirer must not terminate a contract only

because of the absence of the contractordue to temporary illness or incapacity,family responsibilities or a similar reason,without first allowing a reasonable periodof time for the contractor to provide asuitable replacement driver.

(4) In considering what period of time isreasonable for the contractor to providea replacement driver, regard must behad to the nature of the work and therelevant terms of any contract betweenthe parties.

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21. UNCONSCIONABLECONDUCT DURINGNEGOTIATIONSIn its application to forestry contractors,paragraph (b) of the additional guidance notesin section 4 is to be read as including thefollowing example–

EXAMPLE 4.6There is only one forestry manager engagingharvesting contractors in a particular regionof Victoria, and it is not practicable for thecontractors to travel to other regions or to workfor anyone else. If the forest managementcompany was to use its strong market positionto extract an unduly harsh and one-sided dealfrom harvesting contractors (having regard to allrelevant factors including international marketconditions) this is likely to constituteunconscionable conduct under section 31 theAct. Conversely, if the harvesting contractorswere to join together and threaten to boycottthe hirer unless the hirer agreed to a harsh orone-sided deal in the harvesting contractors'favour, this is likely to constitute unconscionableconduct by the contractors under section 32of the Act. The affected party could notify adispute to the Small Business Commissioner.

22. BEST PRACTICEIN NEGOTIATIONS(1) This section applies in relation to contract

negotiations between a hirer and a forestrycontractor.

(2) In addition to the matters set out in section5, the parties to the proposed contractshould, prior to finalising the terms of thecontract, jointly view–(a) the locations or indicative locations for

the performance of the contract; and(b) relevant harvesting and haulage

management plans.

23. DISCLOSUREOF INFORMATIONIn its application to forestry contractors,paragraph (b) of the additional guidance notesin section 4 is to be read as including thefollowing example–

EXAMPLE 7.3Nathan is negotiating with a forest managementcompany to perform harvesting work and ratesto be paid. His hirer is aware that the coupebeing considered has some terrain outside thatdefined in the agreement that could make theharvesting more complex and possibly damageequipment, with extra costs and risks anddelays. There is no way for Nathan to do hisown checks unless the company facilitates this.The hirer should tell Nathan about the unusualterrain and invite him to inspect the site to allowfor further negotiations.

PART 5ADDITIONAL PROVISIONS FORFORESTRY CONTRACTORS AND HIRERS

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24. BEST PRACTICE INDISPUTE RESOLUTIONIn relation to the matters set out in section 8 asbest practice in dispute resolution, an exampleof an unforeseen event beyond the parties'control in the context of the forestry industryis an environmental protest or blockade.

25. MISLEADINGADVERTISINGFor the purposes of section 9, an example of arepresentation by a hirer that is likely to misleador deceive a forestry contractor is an inaccurateguarantee or representation regarding thevolume of forest products available to theforestry contractor.

26. GENERAL PRINCIPLES FORSETTING & REVIEWING RATES(1) In its application to forestry contractors,

paragraph (a) of the guidance notes insection 11 is to be read as including thefollowing example–

EXAMPLE 11.2Based on his or her experience, a forestmanager has calculated benchmark costrates per hour for a bulldozer and a skidder.These benchmarks are based on the cost toan experienced and efficient harvestingcontractor who is using reasonably modernand well-maintained equipment. The forestmanager can use this benchmark, and neednot calculate the particular individual costs ofa contractor who is using older, less efficientequipment.

(2) In its application to forestry contractors,paragraph (b) of the guidance notes insection 11 is to be read as includingthe following–

For a haulage contractor, this is a fair amountfor the haulage contractor's labour in driving,loading and unloading the vehicle andassociated activities such as administration.

For a harvesting contractor, this is a fairamount for the harvesting contractor's labourin managing their harvesting business.

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27. REVIEW OF RATES ON A REGULARAND SYSTEMATIC BASISSection 31(2)(k) of the Act provides that a matter to be considered in determining whether a hirer'sconduct is unconscionable is whether or not the contract allows for the payment of any increasesin fixed and variable overhead costs on a regular and systematic basis. This means that a contractwhich locks up a forestry contractor's rates for long periods of time without regard to increases inoverheads (particularly fuel prices) will be susceptible to a claim of unconscionable conduct.

GUIDANCESet out below are certain practices that,while not being mandatory, constitute areview of rates for increases in overheadcosts in respect of forestry contractorson a "regular and systematic basis", andwhich are therefore unlikely to constituteunconscionable conduct within themeaning of section 31(2)(k) of the Act.

The component of a forestry contractor'sremuneration that relates to the cost of fuelis determined by direct reference to theactual cost of the fuel required to performthe services and is adjusted–(a) at least every six months; or (b) if there is an increase in the price of fuel

of ten per cent (or a lesser percentageamount) since the last rate adjustment; or

(c) if there is an increase in the cost of fuel ofsuch an amount that it causes an increaseof more than one per cent (or a lesserpercentage amount) of the forestrycontractor's operating costs since the lastrate adjustment.

In addition–(a) the determination of any increases or

decreases in the cost of fuel is by referenceto a legitimate and accurate fuel pricemonitoring source; and

(b) the rates paid to the forestry contractor arereviewed regularly and systematically inrespect of operating costs other than fuel.

While this section sets out practices thatare unlikely to be unconscionable, otherarrangements may be commercially appropriateand legitimate in all the circumstances andcomply with the requirements of section 31(2)(k)of the Act.

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EXAMPLE 27Ron is a harvesting contractor and hasthe benefit of a five year contract with aguaranteed volume and a turnover of $350,000a year. His hirer is in turn subject to a five yearcontract with a timber processor, and has thebenefit of a six-monthly fuel review clause.Ron's rates are similarly reviewed for fuelincreases under his contract every six months,and an additional lump sum is paid ascompensation for the average increases overthe previous six month period. Given Ron'slevel of contract security and turnover, and thecommercial arrangements between the hirerand the processor, a six month review isunlikely to be unconscionable conduct withinthe meaning of section 31(2)(k) the Act.

Endnotes

1 Sch. 1 cl. 6(1): Section 65(1) of the Act provides for atransitional period of 6 months after the Act comes intooperation during which contracts may override therequirements of Divisions 3 and 4 of Part 2 of the Act.

2 Sch. 1 cl. 11: Guidance on the typical overhead costs forcontractors can be obtained from the Rates and CostsSchedules published under section 15 of the Act, which areavailable at www.irv.vic.gov.au and www.sbc.vic.gov.au.

3 Sch. 1 cl. 18: Reasons set out in section 61 of the Actinclude: if the contractor has exercised a power or right underthe Act, informed a person of a breach of the Act or Code,participated in joint negotiations, raised an issue concerninghealth and safety or sought to renegotiate a contract.

Industrial Relations VictoriaDepartment of Innovation, Industry & Regional Development

For more information, go to the Industrial RelationsVictoria website at: www.irv.vic.gov.au

For further Information

Nov

embe

r20

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The Owner Drivers and Forestry Contractors Code of Practice was made by the Victorian Government after advice from the Transport Industry Council and the Forestry Industry Council,following an extensive consultation process.

These Councils are made up of members nominated by the following organisations:

Transport Industry Council- Victorian Transport Association- Transport Workers Union- Victorian Employers’ Chamber of Commerce and Industry- Victorian Trades Hall Council- Australian Industry Group- VicRoads

Forestry Industry Council- Victorian Harvesting and Haulage Council- Australian Plantation Products and Paper Industry Council (A3P)- VicForests- Victorian Association of Forest Industries- Construction Forestry, Mining and Energy Union, Forestry Division- Department of Primary Industries