Category: Transport & Logistics

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Contractor vs Employee — truck driver loses bid to claim historical employment benefits

06 February 2024

Case note: Chiodo v Silk Contract Logistics [2023] FCA 1047

In a recent decision of Chiodo v Silk Contract Logistics [2023] FCA 1047, the Federal Court dismissed a truck driver’s claim that he was an employee and therefore entitled to payment for annual leave and long service leave, as well as superannuation. The Court found that the truck driver was a contractor and not entitled to the benefits usually afforded to an employee.

The Court’s decision re-emphasises the importance that is placed in defining the contractual relationship between parties when assessing whether an individual is an employee or an independent contractor.

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Recent National Heavy Vehicle Regulator’s prosecution case – a timely reminder for all companies and staff on their Primary Duty

15 December 2023

On 4 December 2023, the National Heavy Vehicle Regulator’s (Regulator) prosecution case against a transport company and some of its executives, for various breaches of the National Heavy Vehicle Law (NHVL) – including the most serious being Category 1 breaches – was heard at the Downing Centre Court in New South Wales. The case concerned the incident on the Eastern Freeway in April 2020 where four Victoria Police officers were killed whilst conducting a roadside intercept.

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Understanding the tricks and traps to leasing a transport storage facility

09 November 2023

Transport and logistics are the backbone of Australia’s economy, with the need for secure and efficient storage facilities increasing steadily. Whether you are a seasoned logistics professional or a newcomer to the industry, leasing a transport storage facility in Australia can be a complex process. This article serves as a guide to help you navigate the intricacies of leasing a transport storage facility.

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Unfair terms and the transport and logistics industry

13 October 2023

The Unfair Contract Terms (UCT) regime is being updated to broaden its application and impose penalties for breach.

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What you need to know about fuel tax credits

02 October 2023

The fuel tax credit scheme refunds fuel tax to users of heavy vehicles, machinery, plant and equipment, and light vehicles used off public roads.

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The transport industry and labour hire — is your business exposed?

11 September 2023

A version of this article was first published by VTA in August 2023.

It has become apparent that there is some confusion about how labour hire regulation impacts the transport industry. A business can be liable for a penalty exceeding $590,000 for using an unlicensed provider, or providing labour without a labour hire licence — so it’s important to get it right.

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The costs of trade assistance

07 September 2023

A version of this article was first published by The DCN in September 2023.

On 20 July 2023, the Productivity Commission (Commission) issued its Trade and Assistance Review 2021-22.

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Contractor truck drivers not ‘employees’ for superannuation guarantee — time to review your arrangements

16 May 2023

The recent case of Jamsek v ZG Operations Australia Pty Ltd (No 3) (Jamsek) has clarified the application of the superannuation guarantee (SG) regime to truck drivers.

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Federal Budget 2023-24 — Overview of trade, logistics, manufacturing and biosecurity measures

11 May 2023

On 9 May 2023, the Australian Federal Treasurer delivered the Australian Federal Budget for 2023-24 (Budget).

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Changes to contracting in the Australian supply chain?

26 April 2023

A version of this article was first published by The DCN in March 2023.

The international supply chain has experienced significant turmoil across the past few years from the combined effects of the Covid-19 pandemic, the conflict in Ukraine and the trade disputes between China and many developed nations.

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Changes to the Unfair Contract Terms regime with increased penalties from 9 November — here’s what you need to know!

21 April 2023

The Unfair Contract Terms regime (UCT) is intended to prevent businesses with a stronger bargaining position from relying on unfair terms in standard form contracts with consumers and/or small businesses.

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Are you paying the correct amount of superannuation support for your drivers?

28 February 2023

There has been an increase in investigations by the Australian Taxation Office (ATO) into superannuation guarantee compliance within the transport and logistics industry.

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What will replace the Administrative Appeals Tribunal (AAT)?

06 February 2023

On 16 December 2022, Attorney-General Mark Dreyfus announced the federal government’s plan to abolish the Administrative Appeals Tribunal (AAT) and replace it with a new administrative review body. The reasons for the proposed abolition were that the AAT had become too politicised through politically motivated appointments of AAT members, which rendered the tribunal dysfunctional.

A version of this article was first published by The DCN in February 2023.

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Federal Budget 2022-23

Federal Budget 2022-23 — New tax measures announced

26 October 2022

On 25 October 2022, Federal Treasurer Jim Chalmers handed down the Budget of the newly elected Government for 2022-23.

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penalty

Freight distribution business penalised by FWO for failure to comply with Compliance Notice

14 October 2022

The Fair Work Ombudsman (FWO) succeeded in seeking a penalty against the operator of a freight distribution business for a failure to comply with a Compliance Notice.

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Brand

Is your Brand fully protected?

11 August 2022

All too often, we come across situations where businesses fail to properly protect their brands which include trading names and logos.

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Payroll Tax

Spotlight on Payroll Tax Compliance

03 August 2022

We have observed a recent increase in State Revenue Office (SRO) investigations regarding payroll tax compliance.

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safety

Reduced safety fine for Transport Company

07 July 2022

On 22 May 2022, the Supreme Court of South Australia handed down a decision in Cleanaway Operations Pty Ltd v Phillip Hanel (Commonwealth: Comcare) [2022] SASC 52 upholding the conviction of Cleanaway Operations Pty Ltd (Cleanaway) for offences under section 32 of the Work Health and Safety Act 2011(Cth) (Act).

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reforms

New government’s proposed workplace relations reforms

17 June 2022

The Australian Labor Party (ALP) proposed a number of amendments in the workplace and industrial relations space which, given the election outcome, the Albanese government is likely to pursue.

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Victorian Transport Association appoints Rigby Cooke Lawyers to provide WR/IR advisory service

03 June 2022

We are delighted to share the news that our Workplace Relations team has recently been appointed by the Victorian Transport Association (VTA) to provide a workplace and industrial relations advisory service to members of the VTA and the Australian Road Transport Industrial Association (ARTIO).

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Federal Budget 2022-23 – overview of customs and trade related measures

31 March 2022

On 29 March 2022, the Treasurer handed down the Australian Federal Budget for 2022-23 (Budget).

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contract

It all depends on the written contract

10 February 2022

Two related decisions handed down by the High Court of Australia on Wednesday 9 February 2022 continue the approach of the Court enunciated in the Workpac v Rossato [2021] HCA 23 (Rossato) decision handed down last year giving primacy to the terms of the written contract to determine the nature of the relationship between the parties.

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Freight company hit with fine for back-payment contravention

05 August 2021

On 26 July 2021, the Fair Work Ombudsman (FWO) successfully secured a pecuniary penalty of $21,500 in the Federal Circuit Court against the operator of a long-haul trucking business based in Melbourne for failing to comply with a Compliance Notice requiring back-payments of entitlements to a former truck driver.

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Large fine for Fatigue Breaches under Heavy Vehicle National Law

02 September 2020

During these difficult times, it is important that all members of the supply chain remember their obligations under the Heavy Vehicle National Law (HVNL) and, in particular, their primary duty under the Chain of Responsibility (CoR) provisions. The potential financial and legal ramifications of failing to comply with those obligations can be significant as seen in a recent case in Queensland.

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The Legal Life – meet Elizabeth Guerra-Stolfa

05 June 2020

Elizabeth Guerra-Stolfa is a Partner and the leader of our Litigation & Dispute Resolution group. With over 30 years of experience, she specialises in complex superior court, specialist tribunal litigation, Royal Commission hearings, mediation and alternative dispute resolution.

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Transport & Logistics, Workplace relations, award

Important changes in the Transport & Logistics industry

20 May 2020

There have been a number of developments in recent weeks that all transport and logistics operators with employees need to be aware of.

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Supply Chain, COVID-19

Supply chain responses to COVID-19

18 May 2020

This article was first published on 12 May 2020 by Daily Cargo News.

I have previously written the effects of COVID-19 in the international supply chain as well as having presented at meetings and webinars. This included a recent webinar with the Customs Brokers and Forwarders Council of Australia, which was attended by more than 300 members.

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ROSI, Australia, Transport

Australian Government gives green light for Roads of Strategic Importance initiatives

06 May 2020

On Wednesday 29 April 2020, the Australian Federal Government and the Queensland Government announced that works on 22 jointly funded projects would be brought forward under the Roads of Strategic Importance (ROSI) initiative. The full announcement is available here.

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enforceable undertaking, Transport

National Heavy Vehicle Regulator accepts first enforceable undertaking

01 May 2020

The National Heavy Vehicle Regulator (NHVR) has accepted an enforceable undertaking from Laing O’Rourke Australia Construction Pty Ltd (Laing O’Rourke). This is the first enforceable undertaking of its kind to be accepted by the NHVR.

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border

Countries and States may shut borders, but freight and logistics cannot be interrupted

26 March 2020

With the COVID-19 pandemic continuing to spread and both State and Federal Governments announcing changes to their response policies daily, there has been understandable concern about the continued operation of the supply chain domestically and internationally.

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The risks and consequences of new industrial manslaughter laws

05 March 2020

With the recent introduction of the offence of workplace manslaughter in Victoria, it is important for organisations and their officers to understand the risks should they fail to maintain their health and safety obligations and how the consequences differ across the nation.

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Company directors personally liable for unpaid GST

What corporate veil? Company directors personally liable for unpaid GST

25 February 2020

From 1 April 2020, in a significant extension to the director penalty regime, company directors will be personally liable for unpaid GST (including luxury car tax and wine equalisation tax).

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Chain of Responsibility provisions

Changes to the Chain of Responsibility Provisions: One year on

18 November 2019

Readers may be aware that on 1 October 2018 changes to the Chain of Responsibility (CoR) provisions of the Heavy Vehicle National Law (HVNL) were implemented. These changes imposed a primary duty on each party in the supply chain to ensure that everything reasonably practical to guarantee safety in transport and reduce the risk of harm and loss, is done.

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Victorian Owner Drivers and Forestry Contractors Act passes Parliament

22 October 2019

Amendments to the Owner Drivers and Forestry Contractors Act 2005 (ODFC Act) passed the Victorian Parliament on 12 September 2019, granting greater rights to contractors who own and drive their own vehicles.

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Labour Hire Licensing Scheme starts 30 October 2019

22 October 2019

Large penalties for ‘providing’ or ‘using’ unlicensed labour hire in the Transport industry

The Labour Hire Licensing Act 2018 (Act) establishes a licensing scheme to regulate labour hire providers and labour hire users in Victoria.

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Full Federal Court Decision on Fuel Tax Credits

22 October 2019

Linfox Australia Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCAFC 131

The Full Court of the Federal Court recently handed down a decision in Linfox Australia Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2019] FCAFC 131 (Linfox Case) in relation to fuel tax credits claimed by Linfox pursuant to the provisions of the Fuel Tax Act 2006 (Cth) (FTA).

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Notifiable Data Breaches scheme – do you know when you need to notify?

22 October 2019

The Commonwealth Notifiable Data Breaches (NDB) scheme has now been in place for over 18 months and has been widely publicised. Your organisation should be aware of its obligations and have a data breach response plan in place so that quick action can be taken if a breach occurs or is suspected to have occurred.

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Government attack on the black economy – road freight services targeted

22 October 2019

Businesses that provide road freight services have increased tax compliance obligations as they are now subject to the Government’s Taxable Payments Reporting System (TPRS).

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How blockchain may affect practices in the supply chain – nowhere to hide!

23 July 2019

The term seems to have first arisen in the early 1990s with reference to an ‘open distributed ledger that can record transactions between two parties efficiently and in a verifiable and permanent way’ and was developed to serve as a ‘public transaction ledger’ for the bitcoin cryptocurrency.

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Surveillance in the workplace

23 July 2019

With the ever increasing responsibility on companies and their directors and officers to ensure safety and security in the workplace, as well as to ensure compliance with the Heavy Vehicle National Law (HVNL), various forms of workplace surveillance are increasingly being used by employers in the transport and logistics industry.

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1 July 2019 – increases to wages and remuneration in the transport sector

01 July 2019

Adjustments to wages and remuneration in the transport industry commence today.

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Schedule of minimum wage increases – transport sector

01 July 2019

The following tables detail the new minimum rates of pay for part-time and full-time employees under various modern awards, applicable to adult employees in the transport industry.

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Stevedore infrastructure charges remain a concern for industry and government

01 March 2019

Australia depends heavily on sea cargo and the efficient movement of goods through the supply chain both for exports and imports. The benefits of the proliferation of free trade agreements (FTAs) and other initiatives aimed at facilitating trade and reducing barriers and costs, can be compromised when access to the infrastructure is limited, delayed or made more expensive, especially where there is little recourse against those practices.

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The High Court confirms real and present financial danger for those handling goods under customs control

01 March 2019

When most goods enter the country, the completion of customs formalities usually includes the payment of customs and excise duty. However in a number of cases, the duties are not paid on import and the goods are moved under “customs control” to “licensed premises” which are secured facilities, whether bonds or warehouses where goods are held pending payment of the duties and release into “home consumption” for wider use, often for retail sale.

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Atkins Freight Services

Financing your assets – The taxation issues

01 March 2019

One of the fundamental questions any business owner needs to address is how to finance their assets. On commercial grounds, the various options have important implications.

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Transport & Logistics Contracts – Common but Fatal Traps

01 March 2019

Contracts to provide transport or logistics services are vital to business success, but if not well negotiated, can have serious or even fatal consequences for the transport or logistics provider.

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Can the National Heavy Vehicle Law get any heavier?

04 February 2019

Readers will be aware that significant changes to the Chain of Responsibility (CoR) provisions under the Heavy Vehicle National Law (HVNL) came into effect on 1 October 2018.

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COVID-19, Exports, Australian Federal Government, Australia

Risks of transporting goods by sea: loss of containers in transit & the Brown Marmorated Stink Bug

25 January 2019

While there has recently been significant commentary on Chain of Responsibility under the Heavy Vehicle National Law and transport of goods by road the most common manner of importing and exporting goods to and from Australia is by sea.

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Atkins Freight Services

New chain of responsibility provisions are biting

19 December 2018

Rigby Cooke Lawyers partner and litigation and dispute resolution specialist Elizabeth Guerra-Stolfa recently warned of the consequences to members of the supply chain for failing to be prepared to meet their obligations under the new Chain of Responsibility (CoR) provisions of the Heavy Vehicle National Law (HVNL) which came into effect on 1 October 2018.

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Potential pitfalls of the impending TPP-11

05 December 2018

This article was first published by the Customs Brokers and Forwarders Council of Australia.

I have been working with the Customs Brokers and Forwarders Council of Australia (CBFCA) to develop guidance material and host legal forums on the introduction of the Trans-Pacific Partnership (TPP-11), a free trade agreement that comes into play from 30 December 2018.

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Tenders

Tenders: high rewards but high risks

03 December 2018

Governments and, increasingly big companies, are using tender processes (including Request for Proposals and Request for Tenders) to award contracts to transport and logistics companies.

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Smart contracts – transacting in the digital era

26 November 2018

Since the launch of Bitcoin in 2009, more and more people have become aware of blockchain technology, and its potential to revolutionise payments systems. However, blockchain has many applications beyond cryptocurrency. ‘Smart contracts’ – computer code which execute the terms of an agreement have the potential to revolutionise commercial transactions.

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Mass Requirements under the Heavy Vehicle National Law

07 November 2018

The Heavy Vehicle National Law (HVNL) requires that heavy vehicles, their components and their loads meet mass requirements including mass limits. The Heavy Vehicle (Mass, Dimension and Loading) National Regulation sets out, among other things, the mass requirements, mass limits and exemptions applicable to heavy vehicles.

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B doubles

Who can claim depreciation on trucks?

07 November 2018

This may seem a somewhat straightforward question, but, as with many tax questions, the answer is not particularly easy. Like most of these matters, the answer depends on the circumstances.

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Human Resources responsibilities in implementing new Chain of Responsibility law

07 November 2018

Changes to the Heavy Vehicle National Law (HVNL) took effect on 1 October 2018. These changes relate to new inclusions to Chain of Responsibility (CoR) laws, and resemble the current risk-based approach that is applied in workplace health and safety law.

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Load restraint provisions of the Heavy Vehicle National Law

01 October 2018

Readers will be aware from our previous articles (available herehere and here) that the new Chain of Responsibility (CoR) provisions under the Heavy Vehicle National Law (HVNL) will come into force on 1 October 2018.

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Chain of Responsibility

06 August 2018

From taking “reasonable steps” to manage risk, to the imposition of a Primary Duty.

The Chain of Responsibility (CoR) regime is intended to ensure that responsibility for preventing breaches of the Heavy Vehicle National Law (HVNL) are shared by each member of the supply chain.

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Overloading of Heavy Vehicles – recent prosecutions under the Heavy Vehicle National Law

03 August 2018

There has been a recent focus on breaches of the Heavy Vehicle National Law (HVNL) in the lead up to the implementation on 1 October 2018 of the primary duty obligations under the Chain of Responsibility (CoR) provisions of the HVNL.

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Independent Contractors or Employees? An important distinction

21 June 2018

Transport companies often have people working for them, or providing services to them, in a number of different capacities.

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Damage to goods in transit – who is responsible for the loss?

21 June 2018

Transporting goods by road can be a risky and expensive process.

The risk of damage to or loss of goods transported by road is a real concern for not only the seller and buyer of those goods but also the private carrier responsible for transporting the goods.

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Employee v contractor – tax problems if you get it wrong

21 June 2018

In follow up to our recent article titled Independent Contractors or Employees, while it’s one thing to know the difference between employees and independent contractors, an important issue to consider is the consequences for getting the classification wrong.

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Independent Contractors or Employees? An important distinction

21 June 2018

Transport companies often have people working for them, or providing services to them, in a number of different capacities. In addition to full-time, part-time and casual employees, transport companies may engage drivers or other workers who are described as independent contractors and who may rely exclusively on the transport company for work and income and be subject to significant control of their activities by the transport company.

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Schedule of minimum wage increases – transport sector

21 June 2018

The following tables detail the new minimum rates of pay for part-time and full-time employees under various modern awards, applicable to employees in the transport industry.

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B doubles

Key changes to Chain of Responsibility Laws to be implemented from 1 October 2018

30 May 2018

The National Heavy Vehicle Regulator (NHVR) has announced that the new Chain of Responsibility (CoR) provisions under the Heavy Vehicle National Law (HVNL) will be implemented from 1 October 2018.

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Freezing orders granted in a case involving theft by CFO against transport company

Freezing orders granted in a case involving theft by CFO against transport company

26 March 2018

Earlier this month in MWP Transport Pty Ltd & Ors v Kent & Ors [2018] NSWSC 300, the Supreme Court of New South Wales granted a transport company a freezing order over the assets of its group’s Chief Financial Officer (CFO) and a number of his companies after he admitted to theft of more than $5 million over an extended period.

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Rigby Cooke Lawyers

Human Resources responsibilities in implementing new Chain of Responsibility law

06 March 2018

Changes to the Heavy Vehicle National Law (HVNL) are due to take effect in mid-2018. These changes relate to new inclusions to Chain of Responsibility (CoR) laws, and resemble the current risk-based approach that is applied in workplace health and safety law.

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TPP

The first 7 days of the Trump administration ‒ revolutionary or a naughty boy?

06 February 2017

This article was written by Rigby Cooke Lawyers Trade and Customs Partner Andrew Hudson, and was originally published by Lloyd’s list Australia on 6 February 2017. For further information, please contact Andrew Hudson

The first week of the Trump administration delivered a number of the outcomes promised during the election campaign and put to rest the theories that the outcomes were only rhetoric.

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Welcome to 2017 – real change or more of the same?

24 January 2017

This article first published in Air Cargo Asia Pacific magazine: Issue 246, January 2017

With the inauguration of the new US President in the rear view mirror and the first run of executive orders signed, sealed and delivered, it is looking likely that we may see a new world order focussed on ‘local interests’.

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roadworthy

Are you roadworthy?

14 November 2016

A recent case in the Supreme Court of South Australia has highlighted the consequences for employers who allow their employees to drive unroadworthy vehicles.

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Heavy Vehicle National Law

Heavy Vehicle National Law reform

14 November 2016

The Heavy Vehicle National Law and Other Legislation Bill 2016 was introduced into Queensland parliament on 13 September 2016 and looks to amend the Heavy Vehicle National Law. The Bill was referred to the Transport and Utilities Committee for comment by 1 November 2016.

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border

Modern award changes in Transport & Logistics

29 August 2016

Cashing out annual leave, excessive annual leave and annual leave in advance.

The Fair Work Commission (FWC) has reviewed annual leave in modern awards and there have been changes to the annual leave provisions to the transport industry modern awards to1 :

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Atkins Freight Services

Trucking company ordered to pay

15 July 2016

In a sobering lesson for trucking companies, the Industrial Relations Court of South Australia has ordered Atkins Freight Services Pty Ltd (Atkins Freight), an Adelaide transport company, to pay penalties of $93,000 and back-pay more than $374,000 to 10 truck drivers.

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Road Safety

BREAKING NEWS: Road Safety Remuneration Tribunal Abolished

19 April 2016

In breaking news, the Road Safety Remuneration Tribunal (RSRT) was abolished by Parliament last night.

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B doubles

Trucking mad!

16 March 2016

Rigby Cooke recently acted for a client that had entered into a sub-lease with a global transport and logistics provider. The site was to be used as a depot for our client’s business, which relies heavily on the use of B-Doubles.

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Chain of Responsibility

Traffic woes: How the M5 tunnel helped shape Chain of Responsibility laws

16 March 2016

Rigby Cooke recently acted for a client in a NSW Supreme Court case which clearly defined the Chain of Responsibility laws that relate to consignors and loaders of goods.

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freezing orders

Record Fines issued for breaches of Chain of Responsibility Laws – the reality of COR is sinking in

26 February 2016

Scott’s Transport has been issued with what appear to be the most severe penalties for breaches of Chain of Responsibility laws in Australia to date.

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