Know your rights

Am I an employee or a subcontractor?

Having an ABN does not automatically make you a subcontractor. What matters is how the work really runs: who controls your hours and routes, who owns and insures the truck, whether you can knock back work, and whether you can send someone else in your place.

If you drive the company's truck, wear their uniform, take their roster and cannot refuse work, you are most likely an employee — and you should be paid under the award with superannuation, leave and workers compensation.

What is sham contracting?

Sham contracting is when a business tells you to get an ABN and calls you a contractor, but treats you like an employee, to avoid paying super, leave and penalty rates. It is illegal under the Fair Work Act 2009 and carries large penalties for the business.

You cannot sign away employee entitlements. If you were pushed onto an ABN and nothing else about the job changed, that is a strong warning sign — keep your rosters, messages and invoices.

How much superannuation should I get?

Employees are owed 12% super on ordinary time earnings, paid to your fund — not to you in cash.

Some contract drivers who are paid mainly for their own labour are also entitled to super, even with an ABN. If you supply and run the truck, you are generally paying your own super, so your rate must be high enough to cover it. The Break-even page loads it in for you.

Do I need to register for GST?

If your business turnover is $75,000 or more a year, GST registration is compulsory.

You then add 10% GST to your invoices, lodge a BAS, and claim GST back on fuel, tyres, servicing and tolls. GST is never your money — set it aside as it comes in.

What about fuel tax credits?

Fuel tax credits can apply to diesel used in vehicles over 4.5 tonnes GVM on public roads, but the road user charge is deducted first, so the credit can drop to nil. Check the current rate on the ATO website and enter it on the Break-even page.

What is the award and why does it matter to me?

The Road Transport and Distribution Award 2020 (MA000038) sets the legal minimum hourly rates for employee drivers, plus overtime, weekend and night penalties.

As a subcontractor the award is not your minimum — it is your reference floor. Your rate has to beat the award once you add super, leave, insurance, unpaid admin time and every dollar the truck costs to run.

Fatigue, logbooks and pressure to keep driving

Heavy vehicle fatigue laws (NHVR) apply no matter who you contract to. Under Chain of Responsibility, a customer or contractor who pressures you into breaching driving hours is breaking the law too — the responsibility is not only yours.

Never accept a rate or a deadline that can only be met by driving fatigued or overloaded.

Owner-driver protections in your state

NSW — New South Wales

Contract carriers are covered by Chapter 6 of the Industrial Relations Act 1996 (NSW), including contract determinations and unfair contract remedies.

VIC — Victoria

Owner drivers are covered by the Owner Drivers and Forestry Contractors Act 2005 (Vic) — you must be given the information booklet and rates schedule before engagement.

QLD — Queensland

No owner-driver specific Act; the Independent Contractors Act 2006 (Cth) unfair contract remedies apply.

SA — South Australia

No owner-driver specific Act; the Independent Contractors Act 2006 (Cth) unfair contract remedies apply.

WA — Western Australia

The Owner-Drivers (Contracts and Disputes) Act 2007 (WA) sets minimum contract requirements and a dispute tribunal.

TAS — Tasmania

No owner-driver specific Act; the Independent Contractors Act 2006 (Cth) unfair contract remedies apply.

NT — Northern Territory

No owner-driver specific Act; the Independent Contractors Act 2006 (Cth) unfair contract remedies apply.

ACT — Australian Capital Territory

No owner-driver specific Act; the Independent Contractors Act 2006 (Cth) unfair contract remedies apply.