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There are several decisions and processes
of note which have occurred recently – all of
them linked to the Road Transport (Long
Distance Operation Award) 2010.
As the focus of members has generally been
on the Road Transport (Local) Award we
provide a brief summary again for clarity of
application.
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The coverage clause of the LDO Award is to be
compared to that of the Local Award:
This industry award covers employers throughout
Australia in the road transport and distribution industry
and their employees in the classifications listed in the
Award to the exclusion of any other modern award.
However
4.2
This award does not cover employers and
employees covered by the Road Transport (Long
Distance Operations) Award 2010 whilst undertaking
long distance operations;
Clearly the LDO overrides the Local Award for Long
Distance Operations.
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A long distance operation is defines as:
any interstate operation, or any return journey
where the distance travelled exceeds 500
kilometres and the operation involves a vehicle
moving …materials …from a principal point of
commencement to a principal point of
destination.
interstate operation …involving a vehicle moving
…materials …from a principal point of
commencement in one State or Territory to a
principal point of destination in another State or
Territory. Provided that to be an interstate
operation the distance involved must exceed 200
kilometres, for any single journey.
So, in brief, the essential elements of a Long
Distance Operation are either:
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a return journey exceeding 500 kilometres; or
an interstate operation that must exceeding
200 kilometres for any journey
If you do an operation/job which fits this
description the Long Distance Award will
apply
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Coverage clause of the LDO Award provides:
This industry award covers employers throughout
Australia in the private transport industry engaged
in long distance operations and their employees in
the classifications listed in Schedule A Classification Structure (Note Drivers only) to the
exclusion of any other modern award.
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The classification structure of the Long
Distance Award only refers to Drivers – so
only Drivers are covered by this Award.
Offsiders accompanying Drivers on a Long
Distance Operation are covered under the
Local Award
Remember to look at the classification
definitions of the Long Distance Award to
determine rates of pay when long distance
work is performed
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After many submissions, conciliations and
arbitrations, last month, Senior Deputy
President Harrison released her decision
regarding changes to the Long Distance
Operation Award.
There are several changes to advise which are
explained on the following slides.
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The following definition was inserted:
fatigue management rules/regulations means
Commonwealth, State or Territory laws
controlling driving and working hours of
heavy vehicle operators or fatigue
management (this impacts on maximum
hours and is referred to later in the Award)
Previously there was definition in the Award
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Cl 11.4 -Termination away from home base
Where an employer decides to terminate the
employment of an employee and the employee
is away from their home base, the employer
shall provide the employee with the means of
returning to home base or reimburse the
employee for the cost of any fares reasonably
incurred in returning home.
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Clause 13 .1 had the following note included
to avoid employer confusion):
NOTE: The classification grades are different in
the Road Transport and Distribution Award
2010. Grade 4 under this award is equivalent
to Grade 6 under the Road Transport and
Distribution Award 2010.
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Wherever appearing in the Award - “Travelling
Allowance” has replaced the term “Living away from
home allowance”
By inserting an additional classification at the
beginning of Grade 5 in Schedule A:
Grade 5 - Driver of rigid vehicle and heavy
trailer combination with GCM over 42.5 tonnes
but not more than 53.4 tonnes.
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(Fixes the gap between Grade 4 max. of 42.5 and
G6 being 53.4 + - and nothing in between)
New clause 4.2 –
 The award does not cover an employee
while they are temporarily required by their
employer to perform driving duties which
are not on a long distance operation,
provided the employee is covered by the
Road Transport and Distribution Award
2010 while performing such duties. (So
confirming that employees will move between the
Awards and mirroring 4.2 in the RTD Award.)
20.2 Hours of Work and Fatigue Management (replacing
the heading ‘hours of work’)
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(a) Where applicable, hours of work will be in
accordance with Commonwealth, State or Territory laws,
relating to the control of driving and working hours of
heavy vehicle operators or the management of fatigue.
(b) Where clause 20.2(a) is not applicable hours of work
will be as follows:
Except where driving hours have been delayed because of
accidents or in circumstances over which the employer
has no control, the employee must not work and the
employer must not require the employee to work:
 (i) more than a total of 120 hours in any fortnight
exclusive of any unpaid intervals for meals.
 (ii) in any one day more than 12 hours, with a break of
half an hour after each five and one half hours worked;
provided that every employee must have I0 hours off
duty immediately after the working period is completed.
 (iii) A roster of work which provides for more than 120
hours to be worked in any fortnight.
There has been a significant change to the
Award by introducing clear ‘ordinary hours’.
The below clause was always in the Award (just
varied to change 4 weeks to 28 days).
10.2 Full-time employment
 A full-time employee is an employee engaged
by an employer for an average of 38 ordinary
hours per week over 28 days.
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However, the following has been added -20.1 (a)
(under Hours of Work) as follows:
(a) The ordinary hours of work shall be an average
of 38 hours per week, and may be calculated over a
period of not more than 28 days. (Significantly the
SDP determined this variation would come into
effect on the first pay period on or after 19 March
2012 – reviewed later).
It is this addition which has ramifications in respect
to the calculation of super entitlements.
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Clause 20.3 (under Hours of Work) (inserts the
Act’s test for determining reasonable additional
hours)
An employer may require an employee to work
reasonable hours of work at the rates of pay in
this award. An employee may refuse hours of
work which are unreasonable. In determining
whether additional hours are reasonable or
unreasonable the following must be taken into
account:
(a) any risk to employee health and safety from
working the additional hours;
(b) the employee's personal circumstances,
including family responsibilities;
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(c) the needs of the workplace or enterprise in
which the employee is employed;
(d) whether the employee is entitled to receive
overtime payments, penalty rates or other
compensation for, or a level of remuneration that
reflects an expectation of, working additional
hours;
(e) any notice given by the employer of any request
or requirement to work the additional hours;
(f) any notice given by the employee of his or her
intention to refuse to work the additional hours;
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(g) the usual patterns of work in the industry, or
the part of an industry, in which the employee
works;
(h) the nature of the employee's role, and the
employee's level of responsibility;
(i) whether the additional hours are in accordance
with averaging terms included under section 63
(Act) in a modern award or enterprise agreement
that applies to the employee, or with an averaging
arrangement agreed to by the employer and
employee under section 64;
j) any other relevant matter
24.2 Rate of pay for a period of paid
personal/carer's leave and compassionate leave
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The rate of pay for an employee who accesses a
period of paid personal/carer's leave or
compassionate leave must be a portion of the
applicable minimum rate prescribed by clause
13. 1 which corresponds to the amount of leave
taken. The applicable minimum rate must be that
applicable to the classification which the
employee would have worked in had they not
taken the period of leave.
A new clause 26.6 as follows:
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An employee will only be entitled to the
payments specified in clause 26.4 or clause
26.5 in circumstances where the majority of
the work undertaken by an employee on a
particular journey or long distance operation
is undertaken on a public holiday. (clarifying
when public holiday rates will be applicable)
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As referred to in previous slides – the Modern
Award variation in regard to clause 20.1(a) as
follows:
“the ordinary hours of work shall be an
average of 38 hours per week, and may
be calculated over a period of not more
than 28 days”
has had a flow-on impact regarding the
calculation of superannuation for long
distance drivers.
Members will recall that by letter dated 21
January 2013 the Australian Taxation Office
(ATO) (referencing ruling SGR2009/2) informed
the industry of their view that employers had
been incorrectly paying super for long distance
drivers.
This letter was sent to many employers –
including AFRA – and AFRA forwarded it to
members to ensure everyone was aware of the
ATO view on this matter.
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The ATO direction in that letter was that as
the Road Transport (Long Distance
Operations) Award 2010 did not have an
Ordinary Hours of Work clause - accordingly
for long distance drivers the levy was payable
on the total hours worked (so total earnings
for the week) discounted by the notional 20%
overtime component built into the hourly or
Cents Per Kilometre (CPK) rates in the LDO
Award.
For example: using a grade 6 driver as an
example (working a 50 hour week) and current
hourly rates and super percentage; under the
ATO January 2013 direction the super amount
would be:
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Hourly driving rate method:
$29.91 x 50 hours = $1,495.50 (less 20% for
o/t loading) x 9.5% = SGL payment of
$113.66
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As indicated in previous slides – SDP Harrison
agreed to Employer Submissions to insert an
Ordinary Hours Clause into the LDO Award as
an outcome of the Modern Award Review
process.
As also indicated SDP Harrison also decided
this change would operate retrospectively
from the 19th March 2012 – the date the
submission to insert an ordinary hours clause
in the Review process was first made
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NRTA has since announced the ATO have
advised them they intend to vary the
manner in which superannuation for long
distance drivers is calculated based upon
the change to the Modern Award.
The ATO has not adjusted their website re
long distance drivers and we have
requested formal written advice from them.
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NRTA have advised they have received
notification from the ATO that the following
calculation method will be applied:
on the basis of 38 hours at the hourly driving
rate, or 38 hours at the cents per kilometre rate at the notional rate of 75 kilometres per hour.
(It should be noted that the SGL calculation should
also include payment of the levy on allowances or
bonuses that are paid e.g. dangerous goods, wide
loads etc. (excludes travel allowance).
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Using a grade 6 driver as an example the new
calculation would be:
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Hourly driving rate:
$29.91 x 38 hours = $1,136.58 x 9.5% = SGL
payment of $107.98
Cents per kilometre rate:
38 hours @ 75kmh = 2850kms x .3988cpk =
$1,136.58 x 9.5% = SGL payment of $107.98
Our understanding is that the ATO are
proposing to vary their definition of Ordinary
Time Earnings regarding Long Distance Drivers
and to apply that retrospectively from 19
March 2012.
How that will be effected (ie. address any
overpayments since that time) is to be
determined. We await their written advice.
We sent out an advice to members earlier this
year regarding the first decision of the RSRT. The
RSRT was implemented in July 2012 – its main
functions being to:
 make road safety remuneration orders that set
out minimum pay and related conditions for
road transport drivers
 approve road transport collective agreements
(collective agreements between hirer’s and
contract drivers)
 resolve disputes between road transport
drivers, their hirers or employers and/or supply
chain participants about:
The Order commenced application on 1 May
2014 and applies to (relevant to members):
long distance operations (which is defined in the
Road Transport and Distribution Long Distance
Operation Award to mean an interstate operation
exceeding 200 km, or a return journey where the
distance travelled exceeds 500 km) in the industry of
the transportation by road of all materials whether in
a raw or manufactured state, or of livestock,
throughout Australia.
Applies re employee and contract drivers
Requirement to have a written contract (& keep 7 yrs)
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Before a road transport driver’s employment or
contract engagement starts, their employer or hirer
must have provided the road transport driver with a
written contract. That written contract has to deal
with a number of specified matters, including:
the nature of the service to be provided, parties
and contract period
the nature of the legal relationship (eg.
employer/employee or principal/contractor
what Award or Enterprise Agreement (if any) cover
or apply to the road transport driver
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what rate applies, hourly or kilometre etc. and any
guaranteed minimum income or hours
a mechanism for at least an annual review of rates,
when hirer can deduct money from driver
an annual printout of driver histories and required
notification of loss or suspension of licence
minimum period of notice of termination,
circumstances and manner of immediate
termination
a requirement for the employer or hirer not to
direct the road transport driver to commit any act
that will, or is likely to, result in a breach of any
law.
Payment period for contract drivers
 A hirer will be required to pay a contract
driver any undisputed amounts within
30 days of the receipt of an invoice from the
contractor. This overrides any less beneficial
provision in a contract already in existence
between the parties.
Safe driving plans
 If a road transport driver is driving a vehicle
with a gross vehicle mass of more than
4.5 tonnes, the hirer or employer of the road
transport driver must prepare a written safe
driving plan – in consultation with the
driver. The plan must be regularly reviewed
and any review must also be in consultation
with the road transport driver.
There are a number of specified matters the
safe driving plan must deal with, including:
 its period of operation, driver and
employer/hirer details and details of those in
supply chain
 all pickup and delivery locations, registrations
and make and model of all vehicles used
 a travel plan including anticipated time
frames and when breaks are to be taken
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vehicle inspection has been conducted,
defects fixed and driver has all appropriate
licences
instructions for the road transport driver to
manage their fatigue, including authorising
the road transport driver to have additional
rest breaks
the recording of the actual starting and
finishing times
instructions on what driver to do if can’t
comply with safe driving plan
WH&S Training
 Employers and hirers are required to take all
reasonable measures to ensure that road
transport drivers are trained in work health
and safety systems relevant to the services,
and must reimburse road transport drivers
for relevant expenses they have incurred –
provided prior approval sought which can’t
be unreasonably withheld.
Drug and alcohol policies
 Employers and hirers are required to develop and
implement a drug and alcohol policy. In doing so,
they must, so far as is reasonably practicable, consult
with relevant road transport drivers.
The policy must address specified matters; including:
 prohibiting the use, consumption, possession,
manufacture, sale, purchase or transfer of illegal
drugs, pharmacy drugs or alcohol
 a process for the driver to notify of dependency and
an obligation on the employer/hirer to investigate
and respond
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the process of mandatory drug and blood
alcohol testing
what drug and blood alcohol content levels
constitute a breach of the policy
repercussions of a breach of the policy (ie.
education, disciplinary action/termination)
Employers and hirers will be required to train
road transport drivers on the policy,
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In NSW there are several Determinations of
the NSW Industrial Relations Commission
setting rates and conditions relevant to
contract carriers (including):
The General Contract Carriers Determination;
(within Sydney Metro) and
The Interstate Carriers Contract
Determination (interstate work commencing
in Sydney)
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These determinations address things such as:
Calculation of minimum rates between
contract drivers and hirers
Formulas to calculate the rise and fall of
cartage rates
Allowances
Minimum notice terms
(In Victoria the Owner Drivers and Forestry
Contractors Act 2005 has some similar provisions
applying now to owner drivers and hirers)
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Currently these determinations exclude
application to certain contracts of carriage
including:
The transport of refrigerated goods, furniture
removal, cash in armoured vehicles, bricks,
tiles, pottery, petroleum, LPG and coal.
The TWU has made application to vary these
determinations (which were implemented in
1984) with significant changes proposed.
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The most significant change to Members is the
proposal that the Determinations be applied
across the board – to all contracts of carriage
(other than where another determination exists)–
which would include in respect to furniture
removals.
Other proposed changes include:
Having one Determination which covers all of
NSW and interstate with 2 tables of rates – 1 for
local (within 50km of Sydney) and 1 for all else
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Minimum engagement of 4 hours
Removal of some contract carriers obligations
– such as to pay for loss or damage to goods
A requirement to provide security of
engagement where practicable to do so
Reimbursement for tolls etc
Nominated ‘starting place’ and minimum
notice to change
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This matter will be proceeding to conciliation
over the coming weeks and will be continuing
thereafter for some time – as there is much
Industry opposition
We will continue to update members as to the
progress of this matter as advised to us.
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Contact IR Assist on:
p: 1300 393 519
e: andrew@irassist.com.au
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