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Road Freight Transport Industry Tribunal

Road Freight Transport Industry Tribunal was established within the Commission under the Owner-Drivers (Contracts and Disputes) Act 2007 (WA) on 1 August 2008 (also referred to as 'OD Act').

The Tribunal seeks to promote a safe and sustainable road freight transport industry by regulating the relationship between persons who enter into contracts to transport goods in heavy vehicles and persons who hire them to do so. The OD Act governs employees, sub-contractors, corporations and partnerships that carry on the business of transporting goods.

The OD Act and the Owner-Drivers (Contracts and Disputes) (Code of Conduct) Regulations 2010 (WA) (also referred to as 'OD Regulations') give the tribunal the authority to deal with certain matters, including:

  • disputes arising under or in relation to the terms of an owner-driver contract;
  • disputes arising under or in relation to the OD Act and the code of conduct and breaches of the OD Act and the code of conduct; and
  • matters arising in relation to the conduct of joint negotiations for an owner-driver contract.

Helpful quicklinks

Fact sheets

Applications and forms

 

What to expect out of the process

According to the Industrial Relations Commission Regulations 2005 (WA), the procedure generally involves the following steps:

  1. Step 1 - Determining eligibility

    Check if you are eligible to submit an application to the Tribunal.

  2. Step 2 - Submitting an application

    If you believe that you are eligible, lodge a Form 7 – Referral to the Road Freight Transport Industry Tribunal to the Tribunal.

  3. Step 3 - Conciliation

    A conciliation is generally held by the Tribunal in order to assist the parties to try to reach a mutually agreed resolution.

  4. Step 4 - Hearing

    If the parties do not reach an agreement in the conference, then a hearing is held where the Tribunal will make a binding decision on the matter.

Step-by-step guidance on applications to Road Freight Transport Industry Tribunal

Determining eligibility

To determine your eligibility, check the following definitions and then review the types of matters table below.

Definitions

  • An owner-driver is a natural person, a corporation or a partnership that carries on the business of transporting goods.
  • An owner-driver contract is a contract which is entered into in the course of business by an owner-driver with another person for the transport of goods in a heavy vehicle by the owner-driver. An owner-driver contract does not include a contract that is a contract of employment.
  • Hirer means a person who engages an owner-driver under an owner-driver contract.
  • Inspector means an Industrial Inspector as defined in the Industrial Relations Act 1979 (WA) section 7.

 

You can make an application to the Road Freight Transport Industry Tribunal if your matter falls within the below table:

Types of matters

 Who can apply
Disputes arising under or in relation to terms of an owner-driver contract
  • A person who is a party to the owner-driver contract, 
  • a transport association in which a party to the owner-driver contract is eligible to be enrolled as a member; or
  • an industrial inspector; or
  • the Minister for Transport.
Disputes arising under or in relation to the OD Act or the code of conduct, or involving an allegation that a person has contravened this Act or the code of conduct
  • an owner-driver or hirer with a sufficient interest in the dispute; or
  • a transport association; or
  • except in a case involving an allegation that a person has contravened Part 6 - an inspector; or
  • the Minister.
Matters arising in relation to the conduct of joint negotiations for an owner-driver contract
  • an owner-driver or hirer with a sufficient interest in the matter; or
  • a transport association; or
  • the Minister.

 

The table is also available in a separate file here.

Submitting an application

To start an application, you must fill in Form 7 – Referral to the Road Freight Transport Industry Tribunal, which may be lodged in the Registry of the Commission in person, by online lodgement, by email or by post.

After you have submitted your Form 7, the Commission’s Registry will:

  • check it to make sure that it contains all the required information;
  • if the form is complete, send a copy of it to you for your records; and
  • serve a copy of it on the respondent. There is no need for you to serve your Form 7 on the respondent unless you are instructed to do so. You will then be contacted by the Tribunal to arrange to have your referral dealt with.

A person who is served a referral is required to file an answering statement. The time for service of the statement will be endorsed on the referral by the Registrar of the Commission. The form for the answering statement is Form 4 – Response (General).

Generally, the Respondent is to file an answering statement within 21 days of the date of service of the notice of referral, unless an ex parte application for a shortened time period is filed and such application is granted. When the Registrar receives the notice of referral, it will endorse on the notice of referral the time for lodging a response.

Conciliation

Conciliation is a conference conducted by the Commissioner who considers the case from both sides and can help the parties make a genuine effort to solve their dispute.

The Tribunal will in most cases commence proceedings by calling a compulsory conciliation conference and require nominated persons to attend.

The Tribunal may issue a summon to attend conciliation proceedings under section 45 of the Owner‑Drivers (Contracts and Disputes) Act 2007 (WA).

Urgent matters
In the context of Road Freight Transport Industry Tribunal, it is common for the Tribunal to call for a compulsory conciliation conference at short notice if the matter is urgent. In this case, a person may be summoned to attend by oral communication, by email, by telephone or in writing. Such a conference can be called prior to the filing of an answering statement.

For more information please read the Commission’s conciliation conference fact sheet by clicking here.

Possible outcomes of the conference

  • An agreement may be reached during or after the conference.
  • If an agreement is not reached, The Tribunal may hold further conferences depending on the circumstances, or list the matter for hearing.

What is a Hearing

A hearing is where the Tribunal receives arguments and evidence from both parties and makes a binding decision on a matter. It usually takes place in a room that is similar to a court room. There are two types of hearings: interlocutory or preliminary hearings and substantive hearings.

 

Interlocutory or preliminary hearings

There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) matters may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents.

Some examples of preliminary issues include:

  • whether the Commission has jurisdiction to deal with the application;
  • whether the employee is under the salary cap; or
  • whether the Commission can accept an application that was made out of time.

There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues.

 A Directions hearing is similar to a preliminary hearing, it is where the Commission will set out how the matter will progress. This can include setting out a timeline for when things ought to occur such as discovery, or when things are to be filed with the Commission, such as outlines of submissions or witness statements.

Substantive hearing

A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute.

 

For more information please read the Commission’s hearing fact sheet by clicking here.

For information on evidence, please read the Commission’s evidence fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission’s representation fact sheet by clicking here.

Possible outcomes

According to s 48 of the Owner‑Drivers (Contracts and Disputes) Act 2007 (WA), if the Tribunal arbitrates a dispute it may:

(a) order the payment of a sum of money —

(i) found by the Tribunal to be owing by one party to another party; or

(ii) by way of damages (including exemplary damages and damages in the nature of interest); or

(iii) by way of restitution;

(b) order the refund of any money paid under an owner-driver contract;

(c) make an order in the nature of an order for specific performance of an owner-driver contract;

(d) declare that a debt is, or is not, owing;

(e) order a party to do, or to refrain from doing, something;

(f) make any other order it considers fair, including declaring void any unjust term of an owner-driver contract.

 In making an order under s 48(4), the Tribunal cannot —

(a) insert a term into; or

(b) subject to subsection (4)(f), otherwise vary, an owner-driver contract.

In making a determination, the Tribunal must endeavour to ensure that the matter is resolved taking into account any agreement reached by the parties on any particular issue and on terms that could reasonably have been agreed between the parties in the first instance or by conciliation. The Tribunal may also make orders to prevent persons from entering into owner-driver contracts.

Latest news

Tribunal finds owner-driver contract was lawfully terminated

Posted 4 years ago in Road Freight Transport Industry Tribunal

Details 
Created: 02 October 2019

The Road Freight Transport Industry Tribunal has dismissed a claim by an owner-driver that alleged the respondent contravened an agreement where the applicant would deliver concrete as directed by the respondent ('Cartage Agreement') by summarily terminating it without payment of compensation. The respondent terminated the Cartage Agreement under clause 9.1(i) following the investigation of an incident where the applicant had drove his truck towards a person, which resulted in the truck contacting the person (the incident).

The Tribunal considered the meaning of cl 9.1(i) i, set out below:

"Holcim may terminate the cartage agreement of an Owner granted by this Agreement immediately and without compensation to the Owner:

…

(i) in the event of a fundamental breach by the Owner, or its Driver, of this Agreement, including, but not limited to:

  1. Serious and wilful misconduct (including, theft, violence or violent threats and fraud);…"

The Tribunal determined that regardless of the type of conduct or behaviour, the conduct must be a fundamental breach.

The Tribunal then considered the evidence of the incident and concluded that the applicant's conduct, when he continued to drive towards a person who was moments before standing in his clear vision, was both serious and wilful misconduct. Further, that even if the applicant's conduct was not serious and wilful misconduct it would be a serious safety breach under cl 9.1(f) of the Cartage Agreement which would also justify the respondent to summarily terminate it without compensation.

In relation to the applicant's claim that they were denied procedural fairness in the course of the respondent's decision making, the Tribunal found that it does not have jurisdiction to consider general notions of industrial or procedural fairness and that no exception applied. In the alternative, the Tribunal considered that procedural fairness had not been denied to the applicant who had received ample opportunity to explain the incident, was given a copy of meeting notes from the investigation, was shown footage of the incident several times and was given the opportunity to, and did in fact, have a support person present at the incident investigation meetings.

Finally, the Tribunal considered whether the respondent's offer to the applicant of a further five-year contract if they agreed to do certain things induced the applicant to enter the contract. The Tribunal found that the respondent had not misrepresented the contract to the applicant because the applicant received independent advice and none of the evidence suggested that the applicant had felt misled. Also, any prior representations were overtaken by the fact that the parties had entered into a further Cartage Agreement that contained an “entire agreement” type of clause, ruling out any prior representations, which were not, in any event, fraudulent. Additionally, even if a misrepresentation was established, the Tribunal expressed doubt on what relief it could grant.

The decision can be read here.

Read More

RFT cannot enforce owner-driver contracts against third parties

Posted 4 years ago in Road Freight Transport Industry Tribunal

The Road Freight Transport Industry Tribunal has made a declaration and issued orders for the payment of an alleged balance of monies owed to the applicant pursuant to an owner-driver contract. The Tribunal was satisfied that the applicant is an owner-driver and that despite the referral to the Tribunal being made after the termination of the owner-driver contract, the Tribunal had jurisdiction to deal with the applicant’s claim.

It was determined by the Tribunal that an oral owner-driver contract was entered into by the parties in or about July 2017 for the supply and heavy vehicle transportation of building sand. The respondent paid a portion of the balance owed to the applicant, giving rise to the remaining debt being outstanding.

The Tribunal considered that there is no capacity to institute third party proceedings to compel a third party to cover monies that they may owe and found that the respondent does owe the outstanding balance to the applicant plus interest.

The decision can be read here.

Read More

Owner-driver contract not breached in relation to fuel prices

Posted 5 years ago in Road Freight Transport Industry Tribunal

Wednesday, 27 February 2019

The Road Freight Transport Industry Tribunal has dismissed two claims made by the applicant arising from an owner-driver contract between the applicant and the respondent.

The Tribunal considered the first of the two issues raised by the applicant and found that they had not brought any evidence to show that the respondent had engaged in unconscionable conduct in relation to the acquisition of the applicant's services. The Tribunal found that the applicant did not provide any information on the circumstances leading to him entering an unfair owner-driver contract or that the owner-driver contract was uncommercial or unfair in any way.

The Tribunal considered the second of the two issues raised by the applicant and found that there was no evidence or argument brought which suggested that the price that the applicant was paying for fuel, a discount of 11%, was not substantially cheaper than bowser price and contrary to the owner-driver contract.

The Tribunal dismissed the applicant's claims.

The decision can be read here.

Read More

View all Road Freight Transport Industry Tribunal news

Frequently asked questions

The Commission is committed to ensuring its information, facilities and services are accessible to all members of the Western Australian community. For more information on accessibility, please visit our Access and inclusion page.

If you no longer wish to pursue your application, you should discontinue your claim by filing a Form 1A – Multipurpose Form.

The Tribunal is located at the Western Australian Industrial Relations Commission, Level 17, 111 St Georges Terrace, Perth, WA 6000. For more information see the Contact us page. 

The Tribunal may also hear matters, subject to the availability of the parties, in country towns and regional locations.

The forms to be used in proceedings before the Tribunal can be found in our Applications and forms page.

It highly depends on each individual case and is not fixed. There will be many factors which will affect the length of the process, including whether the application proceeds to hearing, whether any interlocutory hearings are necessary and the complexity of the matter.

Parties may be represented by another person or they may represent themselves. Parties can be represented by an industrial agent, union or employer association, lawyer, or a relative or friend. Except where the representative is a lawyer, the party being represented must file a Form 11 – Notification of Representative Commencing or Ceasing to Act to confirm that another person is representing them.

There are generally no costs associated with your application unless you purchase transcript of the proceedings or summon a witness for hearing. Each party pays their own costs in relation to preparation of their case. This includes legal costs if you decide to engage a lawyer or paid agent to represent you.

A party has similar rights of appeal to parties dissatisfied with a decision of the Commission and may appeal to the Full Bench of the Western Australian Industrial Relations Commission. For more information, see Appeals to the Full Bench.

Once the other party is provided with a copy of your notice of referral, they may provide an answering statement to the application within 21 days by filing a Form 4 – Response (General).