The owner-driver suicide (Loophole) Bill

The Albanese Labor government intends to put small business owner-driver truck drivers out of business.

This post is devoted to truckies, or more specifically the 40,000-or-so self-employed owner-drivers who haul much of our economic goods across Australia on the trays of their truck rigs. The Albanese government’s Loophole Bill is a plan to put these truckies off the road, out of business.

This is the fifth in my series explaining the Albanese government’s ‘Loophole’ industrial relations Bill currently before parliament. The first four Substack posts are: Overview (2 October 2023), then Neutering High Court on contract law (6 October 2023), followed by Outlawing self-employed and gig (13 October 2023) and Destroying casuals’ incomes (22 October 2023)

When I started thinking about this post I thought that I should perhaps apologise in advance for the inevitable ‘down’ tone that comes with this topic. But no! There are hard facts here that need to be stated plainly.

You see, this issue touches a particularly raw emotional nerve for me. When a previous Labor government pulled this stunt around seven years ago, five truckies are known to have committed suicide because they were being put out of business. I knew and was involved with two of the men who died.

Let there be no pretence, the Loophole Bill (Part 16 Divisions 1, 2, 3, 4) is a reintroduction of the hugely harmful 2012-2016 Road Safety Remuneration Tribunal (RSRT). The RSRT triggered the bankruptcy, or near-bankruptcy, of many of those independent drivers before the RSRT was abolished in April 2016.

Why the emotional attachment

In 2016, I coordinated Self-Employed Australia in making application to the High Court to challenge the constitutional validity of the RSRT under section 92 of the Constitution (interstate trade). In doing this we raised funds from independent truck-drivers themselves. Our submissions to the High Court included affidavits and supporting testimony from some 24 independent truck-drivers across Australia. These people were just some of a larger network of drivers with whom we were involved.

On Friday 15 April 2016, we appeared before the Chief Justice of Australia (French CJ). His Honour on that day remitted the matter to the Federal Court stating, “The constitutional case may be arguable…” On 19 April Tuesday 2016, the Australian Senate voted to repeal the RSRT. Its abolition received Royal Assent that evening. On Friday 22 April, SEA received the disturbing and upsetting news that two of the independent truck-drivers in our network had committed suicide due to RSRT stress. The repeal of the RSRT came too late for them. These were people we knew and had worked with over the High Court appeal.

The Loophole Bill reintroduces the very same thing as the RSRT, only with a different structure. Have no doubt that, again, tens of thousands of self-employed, independent truck-drivers’ livelihoods will be threatened. We made submissions warning about the RSRT in 2011 and were ignored. What we warned about occurred but worse. Based on the experience of the RSRT we can expect bankruptcies in the sector and the possibility of suicides.

In this post I give some of the detail of the attack on independent truckies in the Loophole Bill. If you want the full ‘wham bam, thankyou mam’ detail, including the content of the specific sections of the Bill, it’s here in SEA’s submission to the Senate independents.

Why the Australian Labor Party and the Transport Workers Union (TWU) persist in attacking owner-drivers

First, let’s understand the ALP’s/TWU argument.

The TWU has persistently argued that truck drivers will only drive safely if the rates they are paid are controlled by an employment regulatory body. The TWU has for a long time argued that because owner-drivers are self-employed and hence not covered by employment regulations, they are consequently unsafe.

The answer, the TWU says, is to force all owner-drivers into employment regulation, as this will make owner-drivers safe drivers.

It’s an argument that is plainly wrong. But like all ‘wrong’ arguments it contains an element of arguable ‘logic’ that can resonate.

The argument goes that if drivers are ‘underpaid’ (however defined), that they are forced or induced to drive long hours which leads to fatigue, to take (upper) drugs to stay awake, to speed, to overload their vehicles and generally to drive unsafely. That is, that driver behaviour is a consequence of (and caused by) low pay rates. Labor/TWU seek to create ‘law’ from this argument. But this is wrong when put to the test of practicality.

Instead, road safety is affected by many things: the quality of vehicles, the state and quality of roads and the behaviour, performance, capability and culpability of drivers.

Road regulations are heavily imposed on all truck drivers and effectively enforced. This includes load limits, required standards for trucks to be registered, strict speed limits, compulsory logs to record driver hours, drug and alcohol testing and so on.

An argument could be raised that if the safe rates argument holds valid for truck drivers, should this not also apply to all drivers on the road? That is, that whether any driver on the road drives safely or not, can be, and is pre-determined by, their income level. It’s a nonsense idea.

The TWU ‘solution’ to alleged unsafe rates, is to require all truck drivers to be employees or (as in the Loophole Bill) to be regulated as employees.

Photo by Alexander Grey on Unsplash

What’s really in play?

The truth is that the Loophole Bill is about the reduction or near-elimination of competition in the road transport industry. Owner-drivers are a bloody annoyance to the big dominant trucking companies whose business dominance in the sector is heavily dependent on the TWU to suppress competition. Eliminating the independence of owner-drivers by forcing them to be employees, as the Loophole Bill will do, is a direct competition-destroyer.

What’s in it for the TWU? Simple. Membership, superannuation contributions, and more. In a word, ‘money’. Always follow the money!

This allegation of anti-competitive collusion between the TWU and trucking companies is not frivolous. There is evidence.

In 2015, then Australian Competition and Consumer Commission Chair Rod Simms gave a major speech on the issue highlighting specific cases where it could be argued that under the mask of an industrial relations agreement a business had colluded with unions to create agreements that would damage competitors. Rod Simms mentioned several cases, but one case stood out. That case was the transport company, Toll, who had been exposed as entering an industrial agreement with the Transport Workers Union on the condition that the TWU would conduct aggressive action against named competitors of Toll with the intention of harming the competitors. The effect of such action would be to harm competition.

The Simms speech is of major importance.

Rod Simms said of the Toll case:

Unions have been given a clear role under the law to represent their members and take action seeking improved wages and conditions. However, this does not give them or businesses cooperating with them a licence to seek to regulate markets. They could take themselves outside the above exemptions if they seek to determine which firms may operate within markets, what prices they can charge or how bids for work will be determined.

In a market economy it should be the market that sets prices and determines who participates and who wins work, not unions or businesses. (page 3)

The Loophole Bill is designed to and would result in the outcome that Rod Simms says should not occur—namely, competition collusion and manipulation.

The Loophole Bill design and outcome

I’ve gone to considerable effort to detail how the Loophole Bill achieves its object of destroying small business owner-drivers. Again, if you want the technical detail, it’s here in SEA’s submission to the Senate independents.

But in summary, ‘collective agreements’ are to be imposed on ‘employee-like’ workers (owner-drivers in this instance) such that the individual nature of each owner-driver’s enterprise is to be eliminated. Through this mechanism, individual owner-drivers will be denied their individuality and be forced to be treated like an employee in a big trucking business. This is the legislated death of small business, independent truck drivers.

As I campaign in Parliament to have the Loophole Bill blocked the future livelihoods of Australia’s independent, small business owner-drivers is in the hands of the seven independent Senators. I’m in Parliament House Canberra again this Thursday 2 November 2023 putting the case for blocking.

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