Dealing with CoR - a member tells us what happened with him..

CEO Report

IWD - Join us for our first ever Breakfast!

Traditionally the transportation industry has been more male dominated, but in recent years we have seen a shift as more and more women enter this great industry and make a positive change. To celebrate their successes we are proud to have teamed up with Transport Women Australia Limited to make women the centre of attention during our first International Women's Day breakfast held on 8th March 2019 at the Pullman Sydney, Olympic Park.

International Women's day has been celebrated since 1911 with the purpose of globally celebrating the social, economic, cultural and political achievements of women. For this special event, we are proud to have Margaret Prendergast, Coordinator General, Transport Coordination, from Transport for NSW as our guest speaker.

Chat to Margaret, and hear her success story and celebrate International Women's Day with us!

Date: Friday 8 March 2019
Time: 7am to 9am
Place: Nexus Room, Pullman Sydney Olympic Park
Tickets: $55 members, $65 non-members, $5 raffle

Tickets are available here: https://www.trybooking.com/472496

Port Road Taskforce

On Monday 18 February TfNSW contacted delegates to the PRT for a response by Monday 25 February to the following question:

In the last PRT meeting held on 30 January 2019, the discussions expanded to other parts of the supply chain, outside of ports. There was a view that a comprehensive economic loss or impact analysis be completed by an economist. This was based on the discussion that other factors outside of Port Botany and ports (such as cold storage facilities) impact the productivity and add to costs to the supply chain.

In order to consider this project and its viability, we will need input from you to develop a series of problem statements.

To this end, we are would like you to ask yourselves the following question and offer your thoughts and comments.

Question: How can the International container supply chain supplying New South Wales be improved?

As you may be aware, we have made numerous formal and informal representations to TfNSW, Minister for Roads and Ports and the Premiers Office about the costly infrastructure surcharges at Port Botany. Please tell me what you would like to see remedied? Empty Container Parks and spiralling costs like surcharges would be included? Has experience with ContainerChain be worthwhile? Have Empty Container Parks been providing productive service for the extra cash? Are there enough empty slots? Do we need more weights on roads for containers?

CoR and Industrial Relations - A members experience...

I would like to devote the rest of my space in the CEO Reports for the words of one of our members who has had to deal with an industrial relations issue and CoR matter concurrently. Some of you may have heard of the case where a company was found to reasonably and fairly to have terminated an employee for reasons including CoR and its policies. We have another case for you involving one of our members.

The names of the member and his employee have been altered to preserve confidentiality. We make no claims around the facts of this matter. This is the experience of one of our members and their experience is in their words.

Richard has been driving with Rubric for a couple of years and has a DG License as well as driving under NHVR BFM Accreditation.

Richard was reluctant in filling in his paperwork correctly and always has issues with his Drivers Work Diary. He has received 2 breaches and fines in regard to times in his Log Book in recent times.

At a recent Tool Box meeting he informed me that he was sick and tired of filling in all this information over and over again and it was like he was back at School again.

He continued to, in my opinion, as owner of the business, abuse the system and expected my HR Manager to correct his Work Diary when he was not taking his appropriate breaks.

With the introduction of the CoR and the associated penalties now being 'criminal offences', I had enough of Richard's attitude.

I therefore terminated him on the spot but I paid him 2 weeks salary in lieu of notice.

As I expected I was served with Unfair Dismissal Notice.

Richard went to Legal Aid and was appointed a Representative. I say this in the fact that this young girl, solicitor, had never heard of CoR Legislation and she thought Richard had been treated unfairly and therefore was making a claim for 18 weeks’ pay.

We were appointed an Arbitrator and again he was not aware of the CoR Legislation.

As you would be aware, our HR Manager had documented every discussion and every breach with Richard so our Solicitor representing Rubric told us we had a very strong case.

The case revolved around unfair dismissal and CoR was not mentioned.

It came down to paying 'go away money' which was negotiated down from 18 weeks to 5 weeks’ pay. It was easier to pay the 7 weeks salary (approximately $7,000.00 plus Legal costs) than go to Court and fight the matter which would have cost us more in the long run. It came down to a financial decision in the end.

For me personally, I was pretty disappointed to say the least in regard to the outcome.

As a requirement of the settlement I am obliged not to disclose that Richard was terminated but he left on his own accord. This does not help our industry now that Richard is out their again with no blemish on his driving record. No mention of unfair dismissal or termination or his decision to ignore CoR requirements.

Some poor Operator is going to pick Richard up and have the same issues we have had.

I have right from the beginning had issues with the CoR legislation and the hardship this was going to cause the Transport Industry.

This only goes to prove me correct.

How can the judicial system not be aware of the CoR legislation when you have an employee, someone like Richard, tell his employer that he is not going to comply with this legislation and I will just have to deal with it.

And, the NHVR roadshows never mentioned the interplay of other legislation or the practical realities of actually administering these requirements on an industry already working itself hard with limited time and trying to comply.

Questions to note from my perspective are whether the NHVR have raised or provided seminars on CoR with the Fair Work Commission so that they have an understanding of the issues they will be facing when employers (believe) justifiably that they are terminating someone who consistently infringes CoR?

New obligations on employers relating to employee requests for flexible working arrangements

As part of the Fair Work Commission's review of all awards, the ACTU made a claim for awards to be varied to afford employees new rights. In essence, the ACTU had argued that employees with parenting or caring responsibilities should be able to pick the hours and days that they work.

Road Freight's workplace relations partner, Ai Group, strongly advocated against such changes, arguing that affording employees an unfettered right to simply pick when they work would be plainly unworkable.

Fortunately, the Commission accepted such arguments and rejected the ACTU claim. However, it has decided to amend awards to introduce new obligations designed to promote employee access to 'family friendly working arrangements'.

The new obligations build upon existing requirements contained in the Fair Work Act 2009.

Who will the new obligations apply in relation to?

The new obligations will apply in relation to award covered employees who make a request for flexible work arrangements under s.65 of the Fair Work Act 2009.

This includes employees, other than casuals, with at least 12 months of service (or a long term casual employee with a reasonable expectation of continuing employment on a regular and systematic basis) who request a change to their working arrangements (including hours of work, days of work, start times, finishing times etc) if they:

  • are the parent, or has responsibility for the care, of a child who is of school age or younger
  • are a carer (within the meaning of the Carer Recognition Act 2010)
  • have a disability
  • are 55 years of age or older
  • are experiencing violence from a member of the employee's family or
  • provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because the member is experiencing violence from the member's family

What are the new obligations?

The new requirements are set out in a proposed model clause.

In essence, awards will be amended to require that employers:

  • Undertake discussions with relevant employees regarding any request for a change in working arrangements made under s.65 of the Fair Work Act 2009 and genuinely try to reach agreement with them on an arrangement that accommodates their circumstances.
  • If an employer and employee agree to implement a change in working arrangements, set out the new arrangement in writing.
  • If the request is refused, provide a response setting out the reasons for this and the details of any alternate arrangement that can be accommodated

When will the new obligations commence?

The Commission has issued draft determinations proposing to vary each award to include the new model term and is undertaking a process that will allow parties to comment on such determinations before the changes to awards are made.

Road Freight NSW members will be advised of the changes to key awards that result from this process and the commencement date of such changes, once such matters are settled. This will include the following awards of relevance to members:

  • Road Transport and Distribution Award 2010, and
  • Road Transport (Long Distance Operations) Award 2010
  • Clerks - Private Sector Award 2010

What if I have further questions?

Members looking for further information in relation to the new changes, or who need any other advice or assistance in relation to a workplace relations matter, may contact the Road Freight NSW Workplace Advice Line on 1300 781 905.

M7 – Heavy Vehicle Access Request

Westlink M7 has created a new simpler process on their website called ‘Heavy Vehicle Access Request' which will provide the communication channel for oversized loads transport companies to alert M7 of loads planned for the M7 motorway.

https://www.westlinkm7.com.au/about/information-for-contractors

Transport companies with oversize/overmass (*OSOM) heavy vehicles and loads travelling on the M7 motorway, are to register and apply for a work access permit (WAP) through our online system, Permitted, through the above link IF the loads trigger one or more of the below criteria:

HEIGHT of load > 5.2m
and/or
WIDTH of load >= 4.3m
and/or
TOTAL MASS > 150t

Westlink M7 requires that the application for the Heavy Vehicle Access Request be submitted a minimum of 5-business days out from the planned night of transport.

The purpose of this application is to ensure that (1) the load is suitable to travel along the M7 Motorway and (2) the transparency that M7 is aware of the loads coming through and that any planned maintenance works on the mainline can either be rescheduled to accommodate for the loads, placed on alert for the load on the planned night of transport or discussions had with the transport company for an alternative night for transport

There is no need to apply for the Heavy Vehicle Access Request if your loads do not trigger any of the above criteria.

This process is also listed in the following RMS link:
http://www.rms.nsw.gov.au/business-industry/heavy-vehicles/road-access/restricted-access-vehicles/oversize-overmass/index.html

Chinese CEO's put Australia top of foreign growth list

The Annual Global CEO Survey by PwC shows that Chinese chief executives identified Australia as the No 1 region outside their home market to tap for growth. The result was a major change from a year ago, when Australia did not make the top 10.

Australia replaced the U.S. for the top spot, with 21 per cent of Chinese CEOs now naming Australia as the key growth market, according to the report. The U.S. was ranked second with 17 per cent, down dramatically from 59 per cent in 2018. Japan and France each came in at 13 per cent.

China was Australia's biggest foreign investor last year, according to Foreign Investment Review Board (FIRB) figures, spending more than $38.8bn. The U.S. came in second with $US26.5bn.

The survey polled 3,200 chief executives in 91 countries, including 131 in Australia, in September and October last year.

This is perhaps not surprising given the steady down turn in China's economy and uncertainty facing Chinese companies doing business in the U.S. It should also be noted the total range and extent of total Chinese investment in Australia is well behind the U.S. and EU.

NHVR to probe recent prime mover fires

The NHVR has launched an investigation into a spate of recent truck fires.

NHVR's Safety Standard and Assurance Executive Director Geoff Casey said concerns had been raised with the NHVR regarding several fires emanating in the engine bay of prime movers over the past year.

"There have been a number of high profile incidents recently, including a semi-trailer fire on the Princess Highway, near Wollongong in January," Mr Casey said

"Several other incidents have been reported through various sources as well as from Police and state transport agencies.

"Fires are obviously dangerous to heavy vehicle drivers, operators and other motorists, and often lead to major delays on key freight routes.

"While the NHVR has a specific interest in prime mover fires, we are also looking at the issue of truck fires more generally and their increasing prevalence."

As part of the investigation and research, the NHVR has held initial discussions with operators, vehicle and component manufacturers about the current causes of truck fires.

Mr Casey said the NHVR was also working with police and state agencies to continue to identify common causes of the fires.

"This will enable the NHVR to provide guidance and information to industry as to what measures may best prevent or minimise the likelihood of such incidents," he said.

Anyone who has information about a truck fire can call the NHVR's Confidential Reporting Line on 1800 931 785 or email vehiclestandards@nhvr.gov.au

Road Reports

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Road Freight NSW contact details

56 Fitzroy Street Marrickville NSW 2204

Tel: (02) 9557 1205

info@rfnsw.com.au

www.roadfreightnsw.com.au

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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