In April 2023, the applicant was engaged by the respondent to provide ongoing transport services under a contract. The applicant’s responsibilities included the collection and delivery of equipment and items hired out by the respondent for the building and construction industry, including equipment, portable buildings, amenities sheds, toilets, generators, and shipping containers.  In January 2025, the respondent terminated the contract without notice, prompting the applicant to file a referral to the Commission, sitting as the Road Freight Tribunal (Tribunal) in March 2025.

The application raised two principal issues: whether the respondent was required to make a payment in lieu of notice under the Owner Drivers (Contracts and Disputes) Act 2007 (WA) (OD Act), and whether the respondent was liable for damages for allegedly banning the applicant from subcontracting work to other transport companies subsequently engaged by the respondent.

The respondent objected to the Commission’s jurisdiction, arguing that the contract was not an ‘owner-driver contract’ as defined by the OD Act, since it did not expressly require the use of a heavy vehicle. The applicant argued that, in practice, the contract predominantly involved the use of heavy vehicles, and that this was an implied term of the agreement. The Tribunal examined the contract, the surrounding commercial relationship, and the evidence provided by both parties. It was noted that the applicant owned and operated a fleet of heavy vehicles and that the majority of the work performed for the respondent involved transporting goods that could only be moved by such vehicles. The Tribunal also considered relevant case law, which clarified that a contract may be considered an owner-driver contract if the use of heavy vehicles is an express or implied term, or a necessary incident for the effective performance of the contract.

The Tribunal concluded that the contract between the applicant and respondent was, in substance, an owner-driver contract within the meaning of the OD Act. The agreement was found to be partly written and partly oral, with the use of heavy vehicles forming a necessary part of the contract.  Occasional use of light vehicles and subcontracting did not alter the overall nature of the relationship, which was predominantly for the transport of goods requiring heavy vehicles. Accordingly, the Tribunal determined it had jurisdiction to hear the application and listed the matter for a conciliation conference.

 

The decision can be read here.