The ATA has released its contract checklist, which aims to help trucking businesses ensure their contracts are fair and legal.
The checklist responds to the lengthening payment terms faced by trucking businesses, as well as concerns that small trucking businesses lack the power and information to negotiate balanced contracts with their customers.
Chief executive of the ATA Christopher Melham said some small trucking operators found themselves signing whatever was required to get a job, without being able to weigh up what the contract could mean for their business.
“Failing to examine the terms of a contract can lead to businesses taking on risks that should belong to consignors, signing contracts with illegal chain of responsibility stipulations, or accepting payment terms they don’t have the cash flow to support,” Mr Melham said.
“This best practice checklist provides trucking businesses and their legal advisers with information about the contract issues they should consider before they sign.”
The checklist covers contract issues such as:
Heavy Vehicle National Law and WA chain of responsibility contract requirements. Pricing and payment terms. Liability for consequential loss. Indemnities, limitation and release clauses. Force majeure. And more.
To support the checklist the ATA has also released comprehensive information about the new protections for small businesses against unfair terms in standard form contracts. The protections will come into force on 12 November 2016.
The protections will apply to businesses with fewer than 20 employees that agree to standard form contracts where the upfront price does not exceed either $300,000, or $1 million if the contract is for more than 12 months.
“Almost 98 per cent of trucking businesses have fewer than 20 employees, so these protections have the potential to be extremely important for the trucking industry,” Mr Melham said.
“The ACCC has published excellent general information about the protections, but this ATA information focuses specifically on the terms that are commonly found in trucking industry contracts.
“The information is essential for any small trucking business that is considering signing a standard form contract, and for larger trucking businesses that are looking to review their standard form contracts to comply with the new requirements,” he said.
The contract checklist and unfair contract terms information were prepared by Cooper Grace Ward exclusively for the ATA and the members of its member associations.
The TWU begs to disagree
The Australian Trucking Association’s checklist for members facing troublesome contracts does little to address the problems the association has itself created, the Transport Workers’ Union has said.
The association opposed enforceable standards that guaranteed truck drivers payment for work within 30 days. It also opposed the same system which was holding wealthy clients such as major retailers and manufacturers to account for their low cost contracts to transport companies and owner drivers. Further, the association opposed an application to ensure these wealthy clients paid transport companies within 30 days of work completed.
This system would have made transport businesses more sustainable, allowing them to pay owner drivers and employee drivers better rates and maintain their fleets.
“The association has chosen to avoid making clients responsible and instead is trying to skim off the wages of drivers to make a buck for their members. Now it is trying to demonstrate it is doing anything for transport companies by coming up with a pathetic checklist for companies when signing contracts. But the reality is transport companies will continue to be bullied by clients until enforceable standards are put back in place to stop them doing it,” said TWU national secretary Tony Sheldon.
One driver, Steven Melichar, in a submission to the Small Business Ombudsman Kate Carnell told how his income had gone up $1,360 in the 10 days the minimum rates Order for owner drivers was in place before it was torn down in April. “Who will compensate Mr Melichar for the thousands of dollars he has lost to date through the actions of the ATA, NatRoad and their friends in Federal Government?” asked Mr Sheldon.
Mr Sheldon warned the actions of the ATA and NatRoad did not just threaten the sustainability of transport companies and owner drivers but was also risking lives on the roads in horrific truck crashes. “Pressure on trucking leads to fatigued drivers under pressure to take risks. It also leads to companies cutting corners in maintenance. But even on this the ATA and NatRoad are in denial: they continually try to explain away the horrific number of deaths and injuries on the roads by comparing today’s statistics with statistics from over 30 years ago when many cars were not even equipped with seat belts.”
The latest Bureau of Infrastructure, Transport and Regional Economics show a 6.7% increase in fatal crashes involving articulated trucks. A 10-year study by the Australian Institute of Health and Wellbeing shows more people are now being hospitalized after truck crashes due to injuries with a serious threat to life.
“The ATA needs to start representing its members in a real and demonstrable way and seeking a long-term solution to problems in trucking. It must stop acting apologists for wealthy clients,” Mr Sheldon added.
