Joe Kelly, 07 April 2016

A High Court challenge is being prepared against the Road Safety Remuneration Tribunal by the body that represents independent contractors and which claims the tribunal’s decisions could put more than 35,000 self-employed long-haul truck drivers out of business.

The legal push is being piloted by Independent Contractors Australia, with its executive ­director Ken Phillips warning that a controversial tribunal order setting new minimum rates of pay for owner drivers is unconstitutional. “

The commonwealth does not have the constitutional power to fix prices — that’s the argument that we’ll be running,” he told The Australian. “The states do have the power to fix prices.”

Mr Phillips argues that the tribunal’s remuneration order amounts to price fixing on commercial contracts and warns that the system introduced by the Gillard government in 2012 was modelled on state industrial provisions operating in NSW.

Mr Phillips has received his legal advice from Christopher Levingston & Associates, Solicitors and Lawyers, based in Sydney, which is making the application on behalf of the ICA.

“We’ve got a case to run,” Mr Phillips said.

“There’s a question to be ­answered and we don’t ­believe that this is a question that has been substantially addressed.”

Tribunal president Jennifer Acton yesterday followed the practice of some heads of quasi-judicial agencies and declined to comment about growing critic­ism from industry groups and politicians about the rulings and performance of the tribunal.

Nationals MPs want the trib­unal scrapped. Queensland senator Barry O’Sullivan told The Australian the new pay rates could be a more serious economic problem than Labor’s live- cattle export ban in 2011.

Employment Minister Michaelia Cash has proposed, when parliament resumes on April 18, to bring forward legislation to freeze the new minimum payments for owner drivers until next year.

Independent senator Nick Xenophon said that, while he supported the tribunal legislation in 2012, the new minimum pay rates had gone “way beyond what I thought it would do”.

“I will support the government’s bill in terms of it (the order) being delayed,” the South Australian senator said.

Independent senator Glenn Lazarus said the tribunal’s remu­neration order was “bullshit” and flagged he would support the government’s bill.

“In fact, if it doesn’t get up I will be putting a bill up to abolish the tribunal all together,” the Queensland senator said.

The Australian Industry Group and National Road Transport ­Association won Federal Court ­orders to stop new rates of pay being introduced this week, a move the Transport Workers Union is trying to overturn.

The Federal Court yesterday reserved its judgment on the TWU application to lift the stay on the tribunal order. It will announce at 2.15pm today whether to lift the stay or extend it until May 9 and 10, when it has set aside hearings to determine whether the tribunal made legal errors in rejecting industry calls to defer the April 4 start date for the new rates.

Mr Phillips yesterday warned that if the stay was lifted it could bankrupt more than 35,000 owner-drivers, saying the real figure could be closer to 50,000 — figures contested by the TWU.

“The consequence of this is ­widescale bankruptcies,” Mr Phillips said. “People will lose their houses; family breakups; and there will be suicides. Have no doubt.”

TWU national secretary Tony Sheldon said the new minimum rates were “set to keep people safe on our roads and truck drivers in business” and warned that 25 people­ were killed in truck incid­ents in March.

He pointed to tribunal findings last week that accused industry bodies of an “absolute abdication of their responsibilities” by failing to educate truck drivers about the new system. The tribunal singled out the National Road Transport Association (NatRoad) of spreading “uncertainty and confusion” and accused the Fair Work ­Ombudsman of failing to properly inform people of the new regime.

“The independent tribunal said that there’s been a series of misinformation,” Mr Sheldon told ABC radio.

Extracted in full from The Australian.