Industrial Relations Act 1996

For the purposes of this Chapter, a contract of carriage is a contract (whether written or oral or partly written and partly oral) for the transportation of goods by means of a motor vehicle or bicycle in the course of a business of transporting goods of that kind by motor vehicle or bicycle, but only—

where the carrier is not a partnership or body corporate—if no person except the carrier is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the carrier or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business, or

where the carrier is a partnership—if no person other than a partner is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the partnership or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business, or

where the carrier is a body corporate—if no person is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the body corporate or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business unless the person is—

a director of the body corporate or a member of the family of a director of the body corporate, or

a person who, together with the members of his or her family, has a controlling interest in the body corporate, or

a member of the family of a person who, together with the members of his or her family, has a controlling interest in the body corporate.

For the purposes of subsection (1), a reference to a carrier includes a carrier carrying on business under a franchise or other arrangement.

A contract of carriage includes any contract that the Commission declares, after inquiry, to be such a contract. The Commission may make such a declaration if, in its opinion—

the contract was entered into for the purpose of defeating, evading or avoiding the provisions of this Act relating to contracts of carriage, and

but for being entered into for that purpose, the contract would have been a contract of carriage.

The Commission constituted by a Presidential Member may also declare particular contracts, or contracts of a class, to be contracts of carriage.

The Commission must not make a declaration under subsection (3A) unless it is satisfied—

the contract or class of contracts is for the work of transporting persons or goods, or both, and

it is appropriate to do so having regard to the following matters—

whether the person who is to transport the persons or goods under the contract or class of contracts has low bargaining power in negotiations in relation to the contract under which the work is performed,

whether the person receives remuneration at or below the rate of an employee performing comparable work,

whether the person has a low degree of authority over the performance of the work,

whether the terms contained in the contract or class of contracts would be unfair to, or operate unfairly in relation to, the person,

whether the terms of the contract or class of contracts taken as a whole are reasonable terms,

whether the person has other characteristics prescribed by the regulations,

other matters the Commission considers relevant,

other matters prescribed by the regulations.

To avoid doubt, a contract may be the subject of a declaration under subsection (3A) even if the contract is not a contract of carriage or a contract specified in section 310B(2).

A contract determination or contract agreement, as in force on the making of a declaration under subsection (3A), does not apply to the contract or class of contracts subject to the declaration unless the contract determination or contract agreement is varied to specifically include the contract or the class of contracts.

The Commission may, on its own motion or on application in accordance with this Act, vary a contract determination or contract agreement to specifically include a contract or class of contracts subject to a declaration under subsection (3A).

A contract of carriage does not include a contract—

that is, if the carrier is a common carrier, made in the ordinary course of the business of the carrier as a common carrier, or

(Repealed)

for the carriage of livestock, or

if the principal contractor is a primary producer or a member of the family of a primary producer and the contract is for the transportation of primary produce (other than timber), or

for the transportation of primary produce (other than timber) from or to land used for primary production.

(Repealed)

In this section—

if the carrier is not a partnership or body corporate—the carrier, or

if the carrier is a partnership—a partner, or

if the carrier is a body corporate—a person referred to in section 309(1)(c)(i), (ii) or (iii).

where the carrier is not a partnership or body corporate—

the carrier’s business of transporting goods does not own or operate more than a total of 3 motor vehicles and bicycles, and

the person directly involved in the business is engaged in driving or riding on one of the motor vehicles or bicycles in the course of the business,

where the carrier is a partnership—

the partnership’s business of transporting goods does not own or operate more than a total of 3 motor vehicles and bicycles, and

a person directly involved in the business is engaged in driving or riding on one of the motor vehicles or bicycles in the course of the business,

where the carrier is a body corporate—

the body corporate’s business of transporting goods does not own or operate more than a total of 3 motor vehicles and bicycles, and

a person directly involved in the business is engaged in driving or riding on one of the motor vehicles or bicycles in the course of the business,

where the motor vehicle or bicycle is driven or ridden on by a person who is employed or engaged, whether or not under a contract of employment or contract for services or by the carrier, to take the place of a person directly involved in the business who is—

absent, if the absence is a kind specified for this section in a contract determination or contract agreement, or

sick, or

on annual leave, or

otherwise reasonably unavailable,

other circumstances prescribed by the regulations.