Western Australian Industrial Relations Commission

Use of heavy vehicle may be express or implied term in owner-driver contracts

The Full Bench upheld an appeal against a decision of the Road Freight Transport Industry Tribunal and found the Tribunal's interpretation of s 5(1) of the Owner-Drivers (Contracts and Disputes) Act 2007 to be too narrow and inconsistent with the purpose of the Owner-Drivers Act. The Honourable Acting President Smith, with whom Commissioners Emmanuel and Matthews agreed, found that for a contract to be an owner-driver contract under the Owner-Drivers Act it is not necessary for the contract to expressly provide for the use of a heavy vehicle, providing a term can be implied that objectively a heavy vehicle is required to transport goods.

The Hon A/President referred in her reasons for decision that the effect of this construction could be illustrated by the following example where the terms of a contract were otherwise unspecified.  If a contract required the transportation of a tank, it may be implied that a heavy vehicle would be required. However, if the contract required the transportation of a pizza then a heavy vehicle would not be necessary to fulfil the contract.

The decision of the Road Freight Transport Industry Tribunal was suspended and the matter remitted for further hearing and determination. This was because the matter at first instance was determined on the papers and there was conflicting and competing affidavit evidence so that it could not be determined on the facts if the appellant and respondent were parties to an owner-driver contract.

The decision can be read here

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