Western Australian Industrial Relations Commission

The Road Freight Transport Industry Tribunal has made a declaration and issued orders for the payment of an alleged balance of monies owed to the applicant pursuant to an owner-driver contract. The Tribunal was satisfied that the applicant is an owner-driver and that despite the referral to the Tribunal being made after the termination of the owner-driver contract, the Tribunal had jurisdiction to deal with the applicant’s claim.

It was determined by the Tribunal that an oral owner-driver contract was entered into by the parties in or about July 2017 for the supply and heavy vehicle transportation of building sand. The respondent paid a portion of the balance owed to the applicant, giving rise to the remaining debt being outstanding.

The Tribunal considered that there is no capacity to institute third party proceedings to compel a third party to cover monies that they may owe and found that the respondent does owe the outstanding balance to the applicant plus interest.

The decision can be read here.

The Road Freight Transport Industry Tribunal has dismissed two claims made by the applicant arising from an owner-driver contract between the applicant and the respondent.

The Tribunal considered the first of the two issues raised by the applicant and found that they had not brought any evidence to show that the respondent had engaged in unconscionable conduct in relation to the acquisition of the applicant's services. The Tribunal found that the applicant did not provide any information on the circumstances leading to him entering an unfair owner-driver contract or that the owner-driver contract was uncommercial or unfair in any way.

The Tribunal considered the second of the two issues raised by the applicant and found that there was no evidence or argument brought which suggested that the price that the applicant was paying for fuel, a discount of 11%, was not substantially cheaper than bowser price and contrary to the owner-driver contract.

The Tribunal dismissed the applicant's claims.

The decision can be read here.

Use of a “heavy vehicle” must be expressly stated to invoke Tribunal’s jurisdiction

The Road Freight Transport Industry Tribunal has dismissed an applicant’s claim for wrongful termination of contract and unconscionable conduct, on the basis that the agreement between the parties did not constitute an “owner-driver contract” as there was no requirement under the agreement and no business requirement for the applicant to use a heavy vehicle.

The Tribunal found that unless the terms of the contract provide for the use of a heavy vehicle as defined in s 3 of the Owner-Drivers (Contracts and Disputes) Act 2007 (WA), then the resulting contract is not one amenable to the Tribunal’s jurisdiction.

The Tribunal held that while the respondent would have been aware the applicant was considering obtaining a larger vehicle to perform the services, that is not the same as constituting an agreement that the applicant use a heavy vehicle for the purposes of the OD Act.

The application was dismissed for want of jurisdiction.

The decision can be read here

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

Unconscionable conduct and rates of pay not 'safe and sustainable’

The Road Freight Transport Industry Tribunal has upheld in part, an owner-driver’s claim for breach of contract and unconscionable conduct.

The respondent terminated the owner-driver contract summarily without notice for breach. The reasons for the summary termination of the contract were disputed by the owner-driver and several issues were raised in response, including:

  • that the respondent failed to comply with its obligation under the contract to give notice to the owner-driver of its default and to give it an opportunity to remedy any alleged breaches of the contract;
  • that the owner-driver maintained it was not in breach of the contract by failing to comply with the respondent’s leave policy and that all leave taken or proposed to be taken was approved by the respondent; and
  • that the owner-driver, in not working Saturdays after the first two years of performance under the contract, did so with the knowledge of and acquiescence by the respondent and the respondent cannot now complain.

The owner-driver maintained the respondent engaged in unconscionable conduct in the way it allocated work to it and by the way the contract was terminated, which was said to involve deception by the respondent. Finally, the owner-driver claimed the rates paid by the respondent under the contract were not “safe and sustainable rates” for the purposes of the Owner-Drivers (Contracts and Disputes) Act 2007 (WA) and the Owner-Drivers (Contracts and Disputes) (Code of Conduct) Regulations 2010 (WA).

Senior Commissioner Kenner found that the negotiations for the contract between the owner-driver and the respondent were not unconscionable. However, he concluded that the failure to provide the owner-driver with a copy of the Guideline Rates published by the Road Freight Transport Industry Council, was unconscionable for the purposes of s 30(2)(g) of the OD Act.

Senior Commissioner Kenner was not satisfied on the evidence, that the respondent was able to rely on the owner-driver’s failure to work Saturdays, as a ground to find there was a breach of contract and to terminate it. The Senior Commissioner was satisfied that the owner-driver was in default of the contract by proceeding to take extended leave, contrary to the respondent’s revised policy. However, the respondent did not give notice to the owner-driver under the contract of the alleged default, and give it an opportunity to remedy it.

Senior Commissioner Kenner found the removal of the lifter was plainly a breach of the contract. The respondent took unfair advantage of the situation and removed the lifter in a deceptive way. Accordingly, the Senior Commissioner found such conduct to be unconscionable. As to the allocation of work and the distribution of runs, the Senior Commissioner was not satisfied the owner-driver made out its case in relation to unconscionable conduct.

Finally, Senior Commissioner Kenner found the rates of payment to the owner-driver under the contract were not safe and sustainable rates.

The parties were directed to confer as to the quantum of damages and any sum in respect of safe and sustainable rates.  

A copy of the decision can be found here.

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Western Australian Industrial Relations Commission
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PERTH WA 6000

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