Today, Nov 19th 2017

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Owner Driver Rights

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One of the biggest benefits of the Owner Drivers Act was the setting up of the Road Freight Transport Industry Tribunal.

The Tribunal has given owner-drivers a jurisdiction to take any disputes they have with their hirer.

Previously these disputes had to be taken to a civil court, which could be quite an expensive process.

The Tribunal operates within the WA Industrial Relations Commission and is a “no costs” jurisdiction. Each party bears their own costs - win or lose.

Which means if you lose your case, you do get confronted with having to pay a significant amount to the other side for their costs.

The TWU regularly prepares applications and runs cases for members NO CHARGE. I currently have four or five coming up for hearing.

In fact most cases are taken to the Tribunal by the TWU and mainly fall into two categories:

  • Claims for payment of money owed to the owner-driver by the hirer; and
  • Claims for wrongful termination of owner-driver contracts.

This article focuses on the wrongful termination of owner-driver contracts.

An owner-driver contract does not have to be in writing.

I have had many owner-drivers tell me: “I do not have a contract”.

That is not the case. Whenever an owner-driver transports goods for someone, whether it is a “one-off” job, or part of an ongoing relationship that lasts many years, the owner-driver does so pursuant to a contract.

Most written owner-driver contracts include a “termination clause” which will usually state a contract can be terminated by the hirer by giving a specified period of notice.

Better contracts specify a notice period of three months. Less favourable contracts provide for a notice period of four weeks and I have even seen contracts with lesser periods.

In these cases the owner-driver is generally bound by the terms of the signed written contract.

As for owner-drivers without written contracts, the Tribunal can act if the hirer terminates the contract without giving notice to the owner-driver.

The TWU has been able to establish at the Tribunal that there is a term implied into every ongoing owner driver contract. That if the hirer wants to terminate the contract, then the hirer must give the owner-driver “reasonable” notice of termination.

That is, a hirer cannot at the end of a day’s work, or a weeks’ work, tell an owner-driver who has been regularly doing work for that hirer for the previous 6 months, or 6 years “Thanks Bill, I won’t need your services in the future, see you later”.

If the hirer fails to offer compensation to an owner-driver for not giving notice of the termination, this amounts to a breach of the implied term in the contract in relation to termination on reasonable notice.

In such cases the Tribunal can make an order that the hirer pay damages to the owner-driver for the wrongful termination of the contract.

Damages will be in the amount that the owner-driver would reasonably have expected to earn under the contract, during the period of “reasonable notice”.

What is “reasonable notice” depends on the particular circumstances of each case.

The courts and the Tribunal have said the notice period should allow the owner-driver a sufficient period time to enter similar arrangements with another hirer.

Tribunal decisions provide us with some guide to what is a “reasonable” notice period.

In one case, the owner-driver had been with the company for about four and a half years, and his rigid truck was set up especially for that work.

The Tribunal found that a reasonable period of notice would have been two months. In a recent case, where the owner-driver provided a prime-mover, and the contract had only been ongoing for about 12 months, the Tribunal held that 6 weeks was a reasonable notice period.

For further information on owner driver rates please feel free to give me a call at the TWU.