Buchmueller v Allied Express Transport Pty Ltd [1999] FCA 319

FEDERAL COURT OF AUSTRALIA

Buchmueller v Allied Express Transport Pty Ltd [1999] FCA 319

INDUSTRIAL LAW – review of employment contract under s 127A of the Workplace Relations Act 1966 (Cth) – whether variation of contract under s 127B of the Act – whether unfair - use of award rates in comparison. Workplace Relations Act 1966 (Cth) Industrial Relations Act 1990 (Qld) GARY FREDERICK BUCHMUELLER v ALLIED EXPRESS TRANSPORT PTY LIMITED (ACN 001 787 962) QI 1021 OF 1997 DOWSETT J 26 MARCH 1999 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QI 1021 OF 1997

BETWEEN: GARY FREDERICK BUCHMUELLER

Applicant

AND: ALLIED EXPRESS TRANSPORT PTY LIMITED (ACN 001 787 962)

Respondent

JUDGE: DOWSETT J

DATE OF ORDER: 26 MARCH 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The contract regulating the relationship of contract carrier and principal contractor between the applicant and the respondent be varied by inserting in cl 14 a further paragraph numbered "3" as follows:- "Upon termination hereof, the principal contractor will pay to the contract carrier the sum of $13,080, and upon such payment all rights and liabilities of the parties hereto arising pursuant to this contract or pursuant to another contract made this day between the same parties will be released and discharged." 2. There is no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QI 1021 OF 1997

BETWEEN: GARY FREDERICK BUCHMUELLER

Applicant

AND: ALLIED EXPRESS TRANSPORT PTY LIMITED (ACN 001 787 962)

Respondent

JUDGE: DOWSETT J

DATE: 26 MARCH 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application for relief pursuant to s 127A of the Workplace Relations Act 1966 (Cth). 2 The applicant is aged forty, having been born on 25 August 1958. He is married with two sons aged thirteen and nine. He was previously employed in the building industry but because of an injury, was unable to continue in that calling. He owned a flat top truck with a carrying capacity of one-and-a-half tonnes, fitted with roof racks. In the middle of 1996, as the result of advice received from the Workers' Compensation Board, he decided to seek employment in the courier industry. The respondent was engaged in that industry. It operated using independent contractors who brought their own vehicles to the enterprise. On or about 24 July 1996 the applicant became such a contractor. He entered into two contracts, one setting out the conditions of his appointment, the other being, in effect, a "restraint of trade" agreement. 3 The circumstances in which the parties entered into the contracts received considerable attention in the course of the trial. The applicant said that he was initially interviewed by Mr Gary Williamson. At a later stage, Mr Bill East joined them. They told him that they needed a truck such as his. He claims in his affidavit that he was shown a white board on which were written words to the effect:- "Drivers will earn between $600 and $800 gross per week". 4 In his evidence-in-chief concerning the white board, the applicant said that he was shown it by Williamson and East and told, "That's what our drivers are earning". He said that he was told, "You know, that is roughly what you'll be earning. A lot of drivers are earning more than that." He inferred that Williamson, "reckons I could be earning more than $800 a week." In his oral evidence, he did not actually say what was on the board, although he implied that the figure "$800" was there. He was asked what else was on the white board and said, "No, all I saw was the – it was just big numbers and that is all I sort of remember." He was then asked, "Well, was that the only discussion about rates of pay?" He replied, "Yes, yes. They said I could earn good money there, and that was about it. They looked at my truck, and after that – that was about it." 5 Concerning the signing of the contracts, he said:- "Yes, well, I was brought into a room and they said, 'Go through this', and I looked through it and said, 'There is a lot there.' Because at the same time there was another driver there, and he seemed to be anxious to get out of the place so I said, 'How long have I got to do this?' and they said, 'It doesn't matter.' He said, 'Go through. You can sign it; we'll give you a photocopy of it later.' But to me, I thought "later" was when I got back with the other driver or, you know, the next day, or the end of the week, but it never happened." 6 The applicant was subsequently told that the respondent would take 35 per cent of what he earned, and that there would be another 20 per cent deducted for "PPS Tax". In cross-examination, he said that the board showed the figures "$600 to $800". It was put to him that whatever was on the board, nothing was said about the relevance of the figures to his income. He re-asserted his earlier version. It was also put to him that Mr East had said that drivers at Allied averaged between $500 to $700 per five day week. The applicant said, "It was always between $600 and $800 that they were talking about." At some stage, the applicant told them of his injury. This did not concern them. He was told that he would be paid the "two tonne truck rate" and that this would work out at roughly $20 per hour. He was also told that most of his work would be paid at hourly hire rates, and that his vehicle would be loaded and unloaded by forklifts at the various premises from which he collected, and to which he delivered goods. He said that he was not given time to read the contracts but was told to sign "on the dotted line". After signing, he was given familiarisation training in using the computer. 7 East then asked him if he was happy. He indicated that he was. Arrangements were then made to fit the appropriate decals to the vehicle. He was given three shirts bearing the respondent's name. He probably paid for these. East explained that the respondent would deduct moneys from payments due to him, including 34 per cent as its share, and further amounts for insurance, the computer system, the CB radio and paper usage. A computer and a radio were then fitted to the applicant's utility vehicle. He actually started work on 26 July. He said that initially, he commenced work at 6.30 am each morning, Monday to Friday, and worked until 5.30 pm or 6.00 pm, taking a half-hour for lunch. 8 The applicant asserts that from the beginning, he received less than the amounts allegedly promised to him although, as he claims, he worked hard. After about six weeks, he complained to East who said that it was not the applicant's fault and that he would arrange for the radio operators to "sort things out", presumably meaning to direct more work towards the applicant. The applicant said that things picked up for a while, but that he still was not making as much as he had been promised. After about three months, he was told that he would be given a regular task, commencing at 7.30 am each morning, for a client called Corporate Express. The task involved delivering pallets of computer paper for which he was to receive $15 per load, regardless of the time taken to complete it. He was also entitled to claim for waiting time but was not aware of this until about two months after he commenced. His income increased whilst he was working at Corporate Express, but after about two months, he was taken off that job. He claimed that no explanation was given, but that East had "implied Corporate Express had got their own truck to do the delivery". The applicant said that he subsequently discovered that this was not so. 9 In early November, he again spoke to East, complaining that his workload was inadequate. East said that he would again speak to the radio operators and also suggested that the applicant contact the operators every fifteen minutes to ask them whether they had work for him. At about this time, the applicant decided to reduce his work hours because he thought that there was little point in working long hours given the volume of work. Thereafter, he commenced at about 7.30 am and finished at approximately 4.30 pm. His work did not pick up after the November discussion, and he continued to complain. Early in 1997, he said to East that the dole was worth more than he was receiving. East continually reassured him that work would pick up soon. On 21 February 1997 East told him that he was to be given a run worth a minimum of three hours per day, five days a week, and allegedly also said, "It will boost your pay by $300 per week". The job was with Teco Australia. The applicant said that his remuneration from this source turned out to be "more like $200 per week". He complained in these terms to East who allegedly replied that he would try to arrange for the applicant to get extra work in localities to which he was travelling for Teco. The applicant said that thereafter, this happened, but only rarely. 10 From 10 March onwards, the applicant's volume of work dropped away sharply. At 4.00 pm on 14 April 1997, he commenced a run involving six tasks. He said that the first address given to him was incorrect. It seems that he had an altercation with the radio operator which led to East intervening over the radio, saying, "Don't yell". The applicant denies having yelled. The applicant eventually obtained the correct address and completed four deliveries. He says that because of the initial delay, he was unable to make the other deliveries, presumably because the relevant premises were closed. On 15 April 1997 the applicant was called to see East. East told him that there were three things wrong with him:- (a) He had not shaved that day; (b) He was not wearing black King Gee shorts as required of drivers, although he was, as he said, wearing black shorts; and (c) He had an "attitude" problem. 11 Upon inquiry, East said that his attitude problem was connected with his continual "whingeing" about his pay. East also said, "If you don't like it, leave". According to the applicant, another driver was present during this conversation, together with a lady who worked in the office called Sharyn. After a further exchange between East and the applicant, the other driver left and the applicant pursued him. The applicant spoke to the other driver and then returned to East who was in an agitated condition and said, "One thing I don't like is if I'm talking to someone and that person walks off and leaves me standing on my own".