What a mess

Opinion by Bruce Honeywill

It reads like a bad April Fools joke but nobody is laughing.

On April 1, the Road Safety Remuneration Tribunal handed down its Decision on the application to vary the Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 (RSRO).

The majority of submissions made to the Tribunal from the road transport industry were to support the ‘application to vary’ the Order by extending the implementation of the Order from April 4, 2016 to January 1, 2017 and to allow a phase-in period so that the industry could come to terms with the economic ramifications of the RSRO.

In its Decision, the Tribunal refused to accept the application to vary and implementation of the Order would remain at April 4.

Then NatRoad, supported by the ATA, immediately applied for an injunction to stay the implementation of the Order.

Justice Collier, in a late sitting of the Federal Court in Brisbane, found for the applicants and granted a stay of the RSRO.

“This means,” says NatRoad on its website, “that the Contractor Driver Minimum Payments RSRO that was to apply to tens of thousands of contractor drivers across Australia from April 4 will not commence until further order of the court.”

And it was still April Fools Day.

How did the industry get to this place where owner-drivers have to battle day-by-day for their survival?

The Road Safety Remuneration Tribunal called its now infamous ‘Easter Hearings’ that upset many truck operators by the arrogance with which they were treated.

Many of the owner-drivers and small fleet owners involved have interests in running a safe and successful transport operations, not listening to legal procedure.

The Decision from the Tribunal was a slap in the face for the industry and peripheral groups.

Led by President Jennifer Acton (pictured), the Tribunal’s detailed Decision reeks of defensiveness and certainly, in this writer’s opinion, does not achieve a high standard of judicial objectivity.

The Tribunal is behaving like a group of cloistered missionaries with no experience of the world ‘out there’, who are sent into the darkest jungles to spread their word and are surprised when one of the group ends up in the cooking pot.

This sad metaphor can be extended further in relation to the Tribunal, where zealotry seems to be overtaking common sense, where the Tribunal sees owner-drivers and small fleets in the road transport industry following market practices that are a root cause of death and injury on our roads (s.[6] of the Decision).

I doubt if anyone is claiming current market practices are perfect and not in need of improvement.

But in the RSRO 2016, the Tribunal has found a devious way of increasing, or at least changing, the remuneration to owner-drivers that does not send a cost impact up the supply chain, eventually to affect the cost of living.

Rather the content of the Order pushes down without any real regard to equity and could force owner-drivers out of business to the benefit, without any suggestion of collusion, of the big fleets.

As the road transport industry grasped at straws to get a last minute postponement of the implementation of the RSRO in order to have time to seek ways of making it more amenable to the owner-driver sector, Acton and the Tribunal saw the application to vary as acceptance of the content of the RSRO.

Acton, as signatory to the decision, said in [26]: “It has been known since 18 December 2015 that the commencement date of the RSRO 2016 is 4 April 2016. The first application to vary the 2016 RSRO in respect of the commencement dates not made to the RSRT by the Australian Long Distance Owners and Drivers Association Inc until 3 March 2016. The first application to vary the 2016 RSRO to include a transitional provision regarding its minimum rates clauses was not made to the RSRT by the Australian Industry Group until 9 Match 2016.”

The Tribunal sees the late realisation of the impact of the RSRO as the fault of the road transport industry rather than a failure of the RSRT to communicate the content and potential ramifications of RSRO 2016 to the members of the industry it will most affect.

In previous articles, this website has suggested that under section 20 (1) of the Road Safety Remuneration Act 2012, the legislation that is the foundation of the Tribunal, the Tribunal must take into account the likely impact of any order on the viability of businesses in the road transport industry.

In the April Fools Day Decision, the Tribunal said: “[234] We consider the detrimental impact, if any, of any RSRO containing the clauses on the viability of businesses in the road transport industry, the national economy and the movement of freight across the nation is likely to be minimal. …the impact … may well be positive as the productivity reducing and cost effects of road accidents … are diminished.”

To support these assertions the Tribunal says the Order has been open to submissions, materials and comments from industry - submissions the Tribunal largely ignored.

There is no evidence of any economic modelling being completed by qualified economists on the business outlook of owner-drivers affected by the Order and any flow-on effect into regional and national economies.

In reading the full Decision, there seems to be a lot of waffle about the myths created and maintained by peak bodies, indignation at the hundreds of submissions daring to question the RSRO and an inability to see the the widespread reaction from industry might be rooted in actual and practical concerns that the RSRO could cause harm and injury to many hard working and law abiding owner-drivers and their families.

Hopefully, with the Stay Order from the Federal Court, the Decision of the Tribunal will be questioned but now the immediate future of the Order and the thousands of owner-drivers it will affect will be played out in the court rooms of the nation.

What a mess

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