Submissions and Issues (Issue 27)

Aboriginal Heritage Bill

The Aboriginal Heritage Bill has been presented and passed by parliament as the Aboriginal Heritage Act.

Further information will be supplied pending discussions with Aboriginal Affairs.

Work Plan Forum

The DPI has presented the CMPA with time frames for its proposals:

• ‘Trigger for Work Plan Variation’ & ‘Checklist for Work Plans’ completed in April
• DPI to meet with stakeholders
• DPI implementing tracking system for Work Plans as per VCEC report
• DPI to review letter to Councils
• DPI to collate referral bodies

Transport Industry Council

The CMPA Submission has been sent in incorporating comments received from Lindsay Coombs.

The development of the ‘Owner Drivers & Forestry Contractors Bill’ caught the interest of the Association due to our Member’s utilisation of owner drivers in transporting bulk materials. The Bill was monitored by the Association culminating in an industry forum in September 2005. The Bill has since become the “Owner Drivers & Forestry Contractors Act 2005”.

Members defined a need to have a clear and concise means of meeting the requirements of this Bill, before becoming an Act. The Association commissioned the development of a sector specific generic model contract designed for quarry operators (‘hirers’) in their dealings with cartage contractors (‘owner drivers’).

OHS (Mines) Regulations

When asked to consider the coverage of OHS (Mines) Regulations over the extractive industries, Members responded with an overwhelming no, with the main concern being the lack of clear benefits.

WorkCover have confirmed that quarries will NOT come under OHS (Mines) Regulations at this point in time.

OHS Regulations & Quarries

An inquiry is being conducted by the DPI (through the engagement of Neil Pope, former parliamentarian). The CMPA presented a submission and has meet with Mr Pope resulting in an overall very positive result.

Review of the EIDA

Grant Phillips recently met with DPI on this issue with the CMPA being requested to provide information on some points.

The EIDR have been extended to May 2007 reducing the pressure on this issue.

Victorian Aggregates Stack Site Facilities

A member enquired as to who is responsible for aggregate stack sites. It was established following discussion with Vic Roads that:

• Responsibility will vary between areas
• Either Principal (VicRoads/council) or sealing contractor pending contract wording
• Contractor’s responsibility to provide suitable site

Bendigo Mining

Further enquiries have been made by DIIRD due to difficulties in sourcing a use for overburden sands (containing arsenic).

Key CMPA concerns:

• DIIRD support
• Subsidies
• Longevity of project

It was noted that the CMPA would not make formal comment on this issue, rather allow members in the area to meet with the DIIRD in person.

Tripartite Forum

The DPI called to establish regular meetings between industry, regulator and unions. This process would be similar to WorkCover ‘Foundations for Safety’.

The CMPA will attend second meeting and make a decision from there.

Lindsay Coombs Works

The Major Works Contract for contracts above $80,000 has now been completed. All comments made by members, Vicroads, Civil Contractors Federation and the Extractive Industries Association.

The document is flexible in that there are many issues that need negotiation for each contract, mainly dealing with price, quality, volumes, delivery times, personnel, etc., but at the same time providing sufficient important protections that should not easily be negotiated away.

There are two more steps to be taken before the document is ready for use. The first is to get Vicroads assurance that it accords with the Ministerial Directive on contracts and the second is to ensure that there are no trade practices complications and if there are to obtain ACCC authorisation.

Summary of the CMPA Submission to the Transport Industry Council

Construction Materials Sector in Victoria and the CMPA

Based on the state’s annual production of 41,699,672 tonnes in 2004/05 and the fact that average truck carries 13 tonnes of material and a truck with quad-dog trailer carries 33 tonnes of material, it can be estimated that between 1,263,626 and 3,207,667 transport movements occur in industry annually.

These transport movements occur at distances up to 250km. This clearly demonstrates the importance that the industry places upon owner drivers and the importance of ensuring the needs of both hirers and owner drivers are met in contractual relations.

Role of the Code in Determining What is Unconscionable Conduct

The code should address unconscionable conduct by including a link to provisions of the Act.

The code should address enforcement by including a provision for allocation of damages to either party by the Tribunal in the event either the hirer or owner driver act in a manner contravening the code.

Unpaid Work

Consideration would need to be given to unavoidable events such as major road closures and tolled roadways.

Fuel Variation Clauses

The code should provide for increased or decreased costs in all elements of rates and not be limited to any special arrangement for fuel.

The code should provide model variation clauses which hirers can either implement directly into agreements with owner drivers or meet through alternative means.

Period for Payment of Invoices, Other Commercial Terms

Any ‘period of payment”, or other terms relating payment documented within the code should align directly with those contained within the Security of Payment Act.

Consideration of the application of the code to other commercial terms should be delayed until those terms are identified in model contracts.

Driver Illness and Family Responsibilities

The CMPA’s generic model contract will take this issue into consideration. It is important that the code communicates the importance of the owner driver covering such issues within their rates as an operating cost within their wages section.

Disputes Processes and Renegotiation

That disputes arising under contracts made between hirers and owner drivers should be settled by a mediator or arbitrator agreed to by the parties. As a default where the parties cannot agree the contract should allow for selection of a mediator or arbitrator selected by the Office of the Small Business Commissioner or for that Office to act as a mediator or arbitrator.

Purchase of New Vehicles

The code should provide a support platform through statutory bodies and vehicle manufacturers to ensure owner drivers purchase a legally compliant, suitable vehicle.

Goodwill or Entry Payment

Goodwill or entry payments are entirely inappropriate in the earth resources sector.

Restraint of Trade/No Competition Contact Clauses

The code should prohibit the use of no competition clauses in contracts. However the code should do nothing to prevent the normal enforcement of the performance of the contract except insofar as such enforcement may be achieved by unconscionable conduct.

The code should cover the need for confidentiality of the terms of agreement between the owner driver and the hirer including rates and other negotiated issues within the contract.

Advertising for New Drivers

The code should alert owner drivers as to issues which they should query and investigate with potential hirers where insufficient, or misleading, information may have been supplied to them.

Contracts and Rates

The CMPA suggests that the cost information should be aggregated from each industry sector. For example the CMPA facilitated a recent transport forum to substantiate applicable cost headings/model.

We would urge the Council to adopt such schedules as the basis for establishing each industry costing. The Council should adopt cost models for each industry sector and this information should be aggregated for each sector.

Technology and Additional Equipment

The CMPA has no difficulty in these items being listed and checked off for each contract period. It is important however that this list includes those items that the hirer and owner driver have agreed to above and beyond that specific under their standard vehicle standards.

Other Issues

Predatory Pricing

The code should contain some form of protection strategy in the event that predatory pricing is reported to the Council.

Conclusion

Due to the peculiarities of this sector and no doubt through all the other sectors covered under the Act’s umbrella, the CMPA sees it as essential for there to be industry specific codes covering our sector and that of other transport industries.

When and if this Act is tested in both the Australian Competition and Consumer Commission and the Federal Court’s Australian Competition Tribunal it will be important to ensure that industry is not left in a similar position to the Victorian broiler industry.

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