What's new? NSW Industrial Relations

Chapter 6 deals with contracts of carriage (e.g., delivery contracts between drivers and contractors). It allows the Industrial Relations Commission (IRC) to regulate these contracts with enforceable decisions. The proposed Bill extends Chapter 6 to cover gig workers in the transport industry, as well as updating other provisions to better fit the modern transport industry. It also adjusts the rules for carriers who operate up to five vehicles.

The proposed Bill brings gig workers into Chapter 6 by deeming them to be working under a contract of carriage if they perform work for a platform (e.g., rideshare services or food delivery). The IRC will also be empowered to decide whether a contract is a contract of carriage, even if the driver works for multiple platforms. The Bill also removes some current exclusions, such as those for bread milk and cream carters, and food delivery, for example.

The Bill also proposes other changes:

• Accessorial Liability: If another participant in the contract chain causes a violation of workers' rights (such as underpayment or withholding pay), they can be held responsible, and penalised as the Commission or Court decides.
• Payment of Tolls: Drivers will be able to recover toll costs incurred in performing  their contracts.

Further Amendments: The Bill also provides guidance to the Commission in relation to:

• the making of contract determinations and contract agreements
• conciliation and arbitration of industrial disputes and disputes regarding contract determinations and agreements
• transmission of business in relation to contract agreements
• termination of contract agreements.

The Commonwealth has passed a law (Fair Work Amendment (Closing Loopholes No 2) Act 2024) to regulate gig worker pay and conditions. The law allows the Fair Work Commission to create award-like instruments (Minimum Standards Orders) for these workers, which can override state laws in some cases.

For transport workers (i.e. other than gig workers), Minimum Standards Orders (MSOs) are intended to operate alongside State instruments and only overrule the latter in the event of any inconsistency. However, MSOs applying to gig workers will directly overrule any NSW instruments applying to those same cohort workers.

It will be up to the transport sector to decide whether a State based instrument, or a federal MSO is sought in relation to a particular cohort of workers and the enterprises for whom they perform work.