Buchmueller v Allied Express Transport Pty Ltd [1999] FCA 319 (26 March 1999)

Last Updated: 29 March 1999

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".

12 According to the applicant, East then stepped closer to him, causing the applicant to fear that East might hit him. The applicant tensed his body and said, "Now I know how you operate". East then said that he was sacked and alleged that the applicant had threatened him with violence and raised his fist. East called upon Sharyn to witness this, to which the applicant said, "Come on Sharyn you can't tell me I raised my fist." Sharyn did not say anything but appeared to be upset. There were further exchanges. East told the applicant to go home and think about it, to return at 8.30 in the morning, and that he (East) would then tell him what was happening. The applicant asked, "Are you sacking me?" He was again told to go home and that they would discuss the matter in the morning. Towards the end of the conversation with East, the latter said to him, "You know we've got drivers here earning $1,000 to $1,300 a week." The applicant found this provocative.

13 On the following morning, according to the applicant, East said that he was to be dismissed but that he would give him the appropriate forms to enable him to get social security. The applicant then handed East a letter which had been previously prepared. It is Exhibit "GFB 2" to one of his affidavits. It is dated 16 April 1997 and says:-

"I have noted that you have purported to terminate my contract with Allied Express. This letter is to inform you that the purported termination constituted a repudiatry breach of my contract. I do not accept that repudiatry breach. It is my intention to keep the contract on foot and, if necessary, sue for damages for breach of my contract."

14 I have also had regard to the evidence given by the applicant as to the outgoings incurred by him in connection with his work. To the extent that it may be necessary, I will make specific findings about that evidence at a later stage.

15 Sean David McDonald was the other driver referred to in the applicant's evidence as being present during the confrontation with East. He had worked for the respondent from about September 1996 until April 1997. He was at the premises on the relevant day in April 1997 to collect his final pay. He had a conversation with Gary Williamson about returning his radio and then went downstairs. He noticed the applicant and Mr East in conversation. Sharyn was also present. The conversation was "getting heated", and East raised his voice, "laying down the law to Gary". McDonald remembered the applicant asking Sharyn a question and East telling her to keep out of it and that she should not answer the question. East then continued to talk to the applicant in a manner which the witness described as "preaching". He said that East was waving his arms around and raising his voice. McDonald intervened in the discussion, making some fairly aggressive remarks to East, who told him to leave. He did so, and the applicant followed him. It is clear from this evidence that although McDonald may have seen that part of the conversation prior to his intervention, he did not see the conversation which took place after the applicant subsequently returned to resume the conversation with East. He said in re-examination that Williamson had also shown him the white board and told him that the figures represented "the earnings of some of their better drivers".

16 Mr Biagnini, a union employee, gave evidence. He had participated in the preparation of a guide book for costing the outgoings incurred by owner-drivers. Mr Lockwood, an accountant, also gave evidence. The evidence of these witnesses relates substantially to the quantum of any award, although they may also be relevant to the question of the fairness or otherwise of the contract. It is convenient that I leave their evidence for consideration at a later stage.

17 East's evidence concerning the initial conversation with the applicant was that he told the applicant that:

"Our drivers average between $500 and $700 per five day week, provided they put in the hours and are prepared to stay around for the work. At the beginning you cannot expect to earn that much until you adjust to the system and learn how to manage ad hoc courier work, so a more realistic target would be $500 per week."

18 To this the applicant responded, "I don't care about the money; I just want a job". East then said:-

"Well we pay you 65% of what we charge the clients less your PPS tax, sickness and accident insurance and radio fees. You can get paid for waiting if the delays are over thirty minutes. If you start at the right places where the morning work is allocated, and you pick up the skills of multiple hiring the ad hoc work, you should be ok. You can expect to carry anything from an envelope to freight on pallets."

19 East said that at the relevant time, there was a white board at the respondent's premises which was used to publish to all drivers the average income for the fleet during the previous week, the total number of jobs completed by the fleet during that week and a target average income figure for the fleet for the coming week. He thought that the figures referred to by the applicant were probably the gross target for the following week. He denied having told the applicant that he would earn $20 per hour and asserted that drivers were not remunerated by the hour. Over the applicant's first twenty-one weeks of operation, he earned an average of $668 per week, with a high of $882 and a low of $549.

20 East said that the applicant did not attend meetings for new drivers arranged by him in the second half of 1996. (The applicant said in evidence that he was never expressly invited to such meetings.) At an early stage, East heard that he was struggling a little because of his inadequate knowledge of Brisbane. He subsequently spoke to the applicant, asking him if he was earning about what he had been told to expect. The applicant said that he was. East then said that if he were going to improve, he would have to improve his knowledge (presumably of Brisbane), keep his position updated on the computer and key in his "drops". East had been told that the applicant was not updating his position, particularly after allocation of a job, nor was he advising that he was available for further allocation. East said that the termination of the applicant's involvement with Corporate Express was as a result of the client choosing to use its own vehicle. He agreed that the applicant again complained about his income in November 1996. East pointed out that his range was between $550 and $650 per week, but he agreed to speak to the operators again with a view to helping him to get work closer to where he lived. He also offered him a regular 5.00 pm pick-up at Richlands, worth about $100 per week. The applicant declined this work. (The applicant said in evidence that by this stage, he did not want longer hours because he did not think that the job was worth it.)

21 East said that in February 1997 he arranged for the Teco run to be assigned to the applicant. This involved a minimum of three hours work per day. He told him that he would also get waiting time and extra time if the job extended beyond three hours. East said that regular work, as opposed to job-by-job allocation, was much appreciated by drivers and that he had offered three such regular tasks to the applicant by the end of February 1997. In mid-March 1997 the applicant told East that he considered that he had been promised a minimum of $300 per week, based on three hours work per day at $20 per hour, for the Teco job. East replied that he had not promised any amount. East also told him that he could do other work in conjunction with the Teco task to supplement his income.

22 Towards the end of March, the applicant again complained that his income was inadequate and that Teco was making him return to the pick-up point to collect additional items for delivery after he had commenced the run. East told him that in those circumstances, he was entitled to charge extra and that he should inform the base when this happened so that the charges could be varied accordingly. About a week later, East asked the applicant if he had collated the information relating to the so-called "call-backs" to the Teco office. The applicant said that he had not done so, although he asserted that Teco was continuing to recall him for further deliveries . East asked him how he could help the applicant if he would not co-operate.

23 On Tuesday 15 April, East decided to give the applicant a warning letter concerning his "poor and unco-operative attitude towards his work and staff". This arose out of an incident on the previous day. An operator had complained that the applicant had been rude and abusive and had taken excessive time to deal with a routine problem concerning an address. East said that he had previously warned the applicant about not shaving. (The applicant said in evidence that he did not need to shave every day.) East said that when the complaints were put to him, the applicant replied, "Why don't you sack me and be done with it so I can get the dole." East asked, "Is that what you want me to do?" The applicant replied "Yes". East then called Sharyn Fisher, the customer service manager, and asked the applicant again, "Do you want me to sack you?" On this occasion the applicant relied, "No I don't want the sack." He then requested that his margin on the Teco work be improved. East replied, "We are in the process of attempting to upgrade this account but where is the information you said you'd get us?" The applicant then said, "Don't treat me like shit. I can't live on the money you pay me. You're just a fucking joke". He became very aggressive, and East asked him to leave. As they were walking towards the door, the applicant turned and confronted East, waiving his hands around and saying that they had caused his problems. East said "Gary you'll have to leave." At this stage the applicant put his fist in the air and shook it at East. He was trembling with rage and abusive. East said to him, "Gary punch me and it will be a big mistake." The applicant then lowered his fist. East said, "Gary its over. You've physically threatened me and so you're no longer required by us as a driver." The applicant replied, "No. I'll come back in the morning". East said, "No, Gary. You've threatened me with assault. So don't come back." The applicant then said to Sharyn "I didn't raise my fist did I Sharyn?". East told Sharyn not to answer, and the applicant then said "You can't sack me over this. Fuck you. I'm going to the union". East said "Fine. Go down the road and ring them." East asked him to leave , but he declined to do so. East then threatened to call the police. The applicant said "I'll wait until the police arrive. Let me make a phone call." East refused this request. Further confrontation occurred. The applicant spoke to another driver. East insisted that they both leave.

24 Sharyn Fisher said that she recalled an incident which occurred on 15 April 1997. She said that East asked her to listen to a conversation which he intended to have with the applicant. East started the conversation by explaining to him that he wanted to discuss various areas of the applicant's conduct as a driver. She recalled that East mentioned the applicant's attitude, rudeness to the operator and his "whingeing" about his work. He also made some remark about the applicant's appearance, particularly having regard to his shorts, his tank top and his dirty boots. She said that the applicant responded by saying words to the effect that, "I get treated like shit." East then said that he was trying to help him by pointing out these defects. The applicant subsequently moved away saying, "This is just bullshit. I'm not going to cop this." Ms Fisher then recalled East saying, "Do you want me to sack you?" The applicant replied, "No. I don't want the sack." The only persons present during this conversation were the applicant, East and Ms Fisher. She started to move in the direction of the office but returned when she heard the applicant raising his voice again, saying that he could not survive on his earnings and words to the effect of, "This is a fucking joke." East then asked the applicant to leave the premises. He started to go, but then turned and walked up to East, standing up close to his face, waving his arms. East told him to leave. The witness said that East had not provoked him, nor did he retaliate in any way. The applicant then raised his fist. The witness hid behind East. She said that the applicant was yelling and behaving wildly. East then told him not to come back as he had threatened him. The applicant turned to Ms Fisher and suggested that he had not raised his fist. At East's request, she did not respond. At some stage, another driver walked into the warehouse and had a conversation with the applicant in which he referred abusively to the respondent and to East. East asked both drivers to leave. The applicant and the other driver left, but the applicant subsequently returned, suggesting that he would be commencing legal proceedings. The other driver "did a burn-out" in the carpark, and the applicant laughed.

25 In cross-examination, Ms Fisher said that prior to the other driver arriving on the scene, East and the applicant were having a discussion which was heated "in a sense" in that the applicant was out of control and East was trying to calm him down. She did not recall East raising his voice. She was adamant that the applicant had clenched his fist and raised it. She was, herself, fearful that she might be punched.

26 There are three major disputes concerning the facts. They are as to:-

(a) The circumstances surrounding the making of the contracts;

(b) The amount of work made available to the applicant and how he dealt with it and with the procedures associated with the respondent's business; and

(c) The circumstances surrounding the applicant's dismissal.

27 Although I thought the applicant was generally an honest witness, I formed the view that he was probably not particularly attentive to detail. For that reason, I am reluctant to accept his evidence as to the precise wording of the conversation between him and the representatives of the respondent prior to their entering into the contracts. I was invited to draw an inference adverse to the respondent in this regard from the failure of the respondent to call Williamson as a witness. I have taken this matter into account, but in the circumstances of this case, I do not think that it should weigh heavily. Even on the applicant's version of events, it is by no means clear that he was promised anything very specific. Further, it seems unlikely that the white board would have been permanently in position simply to demonstrate to prospective employees their likely range of remuneration. I consider that East's explanation of it as a weekly communication to all drivers is probably correct. That does not exclude the possibility that East or Williamson may have described the figures in some other way, but in the absence of more precise evidence as to what was written on the board, it is difficult to draw any firm inferences about its role in this matter. In particular, I would infer from East's evidence that there must have been some written text, identifying the significance of the figures. If the board was being used for the purpose described by East, the respondent would have little to gain from misrepresenting matters to people already engaged in the business and with knowledge of it.

28 I accept the applicant's evidence that the figures "$600 to $800" were on the board. I accept his evidence in this regard in preference to that of East primarily because it would be difficult for East, at this point in time, to remember precisely the figures on the board on any particular day, given the purpose for which it was used. I do not accept that anything was said to lead the applicant to believe that such figures gave an indication of what he could expect to make after expenses and/or taxes. The range is so wide that it can only have been intended to be a general indication of whatever it described. For present purposes, I am not satisfied that it was reasonable for the applicant to take the figure as anything other than an indication of a likely range of gross revenue before outgoings and tax were deducted.

29 As to the performance by the applicant of his duties and his adaptation to the respondent's system of allocation of work, I accept that from time to time, he probably demonstrated his inexperience and that with additional experience, he may well have increased his capacity to earn. I also accept that from time to time, he failed to utilize the computer and radio system in such a way as to maximize his availability for the allocation of jobs. Nonetheless, the respondent's criticisms of him in this regard are very general and do not suggest that it perceived that there was likely to be any long-term problem. I also do not accept that the respondent had any serious concerns about the applicant's appearance, although he may have been spoken to on one or two occasions. He was probably not as smart in his appearance as the respondent would have wished. In general, I am reluctant to rely on the accuracy of the applicant's figures as to his hours of work and expenses to the extent that they are not evidenced in writing. As I have said, my assessment of him is that while he is generally truthful, he has little eye for detail. As to the circumstances surrounding his dismissal, it is probable that both the applicant and East were understandably agitated at the time. For that reason alone, it may be that their recollections are clouded. I was not impressed by the witness, McDonald. He seemed quite disenchanted with the respondent and anxious to support the applicant in his attack upon it. On the other hand, I was impressed by the evidence of Ms Fisher and am inclined to accept her as providing the most reliable account of the events which she witnessed. She was positive that the applicant had threatened East without any apparent previous provocation and to that extent, she corroborates East's version. I accept Ms Fisher's evidence.

30 If a contract for the provision of services is to be efficacious, there must be an express or implied term as to the conduct of each party towards third parties to the extent that such conduct may affect the other. If one party is abusive towards or threatens an employee of the other, it is likely to be highly disruptive of the relationship between the parties and of the business of each of them. If one party demonstrates a propensity to such behaviour it will be difficult for the relationship to continue. A threat of physical violence is inevitably so disruptive as to make it most unlikely that the persons concerned can continue to work together in a co-operative and trusting way. I conclude that it was an implied term of the contractual arrangements between the parties in this case that in the event of significant misconduct by either in the course of their joint business, the other could immediately terminate their relationship. The applicant's conduct was such as to justify his termination in this case. It would be unreasonable to expect the respondent to continue to allow the applicant to deal with clients on its behalf, once it knew that he responded to stress in business relationships by threatening violence. In those circumstances, no question of payment in lieu of notice arises. It is not necessary for me to consider that matter further.

31 The applicant seeks review of the contracts upon the ground that they are either unfair or harsh. Section 127A(4) provides that:-

"In reviewing the contract, the Court may have regard to:
(a) the relative strength of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties;
(b) whether any undue influence or pressure is exerted on, or any unfair tactics were used against, a party to the contract;
(c) ...
(d) whether the contract provides a total remuneration that is, or is likely to be, less than that of an employee performing similar work; and
(e) any other matter that the Court thinks relevant."

32 The applicant submits that he was in a position of relative weakness in the bargaining process and/or that undue influence or pressure was exerted on him. I am not satisfied of either of these matters. It might be said that any employer is in a position of strength as compared with a potential employee because the former has a job to offer. I doubt, however, that subs 127A(4) was intended to have such a broad meaning. Prior to the contracts, the applicant was in receipt of social security benefits or workers' compensation payments, and there is no suggestion that these would have been immediately discontinued or that if they were discontinued, they would not have been replaced by other appropriate benefits. There was no evidence of any particularly difficult financial circumstances although undoubtedly, things would not have been comfortable. I cannot see that there was any operative inequality in the respective bargaining positions of the parties. Nor am I satisfied that there was any undue influence or pressure exerted upon the applicant to enter into the contract. It was faintly suggested that he was pressed to sign the contracts without any opportunity to read them or seek advice, but there is no reason to believe that he lacked the moral strength of an ordinary person. It was also submitted that the contracts were unfair or harsh because they did not enable the applicant to earn the amounts which he claims were represented to him. As I have found that any such representations could not reasonably have been taken as anything more than general indications, and as his gross receipts were regularly within the stated range in any event, this basis of complaint must fail.

33 That leaves for consideration the question of whether or not the contracts provided for total remuneration that was or was likely to be less than that of an employee performing similar work. As I understand it, such an employee would have been subject to the terms of the Transport, Distribution and Courier Industry Award - Southern Division. In order to assess the relative benefits to the applicant of his remuneration under the contracts as opposed to his notional return under that award, it is appropriate to analyse the amounts he actually received for his work with the respondent. This appears from Exhibit "SP1" to the affidavit of Stephen Parker. The exhibit is not easy to understand. In order to clarify its meaning (because that was not done in evidence) I asked the parties to provide an appropriate explanation. This was done by letter dated 19 March 1999 from the solicitors for the respondent, the solicitors for the applicant concurring. I will make that letter Exhibit 20 in the proceedings. It explains the various columns as follows:-

Column Heading	Meaning
Driver Amount	This indicates the total amount due to the driver for the week in question.
Total Payment	This identifies additional payments due to the driver from earlier weeks.
Taxable Deductions	Although the heading suggests to the contrary, outgoings which would generally be deductible for tax purposes are not included. Rather, the "taxable deductions" are those calculated having regard to pre-tax income. It is said that an example would be superannuation payments. I imagine that the Medicare levy might also be included. These matters appear to be personal rather than related to the applicant's employment.
Gross	This represents the total of the "Driver Amount" and "Total Payments" columns, less the amount of the "Taxable Deductions" column.
Tax	This shows the amount deducted from the relevant gross calculated in accordance with the Prescribed Payments System pursuant to the Income Tax Assessment Act 1997 (Cth).
Non-Taxable Deductions	This includes amounts charged by the respondent to the applicant for use of the radio and computer systems and also for insurance against disability, sickness, accident, public liability and transit insurance. Insurance relating directly to the motor vehicle is not included.
Cash	This column records amounts received by the driver directly from customers. Such amounts must be deducted from the amount otherwise payable by the respondent to the applicant.
Carried Forward	This relates to amounts payable to the respondent by the applicant in previous weeks, but not then deducted.
Cheque Amount	This shows the amount actually paid at the end of the week by the respondent to the applicant.

34 I propose to identify the hourly rate, exclusive of all expenses, but before tax, derived by the applicant in the course of his time with the respondent, and to compare that with the hourly rate which he would have received had he been employed pursuant to the award. Because the exercise is designed to provide a comparison of hourly rates, it is appropriate to exclude those weeks included in Exhibit "SP1" which are clearly atypical. They are the first and last weeks of his employment (which were obviously not full working weeks), the weeks ending 3 and 10 January (in which he derived no income, presumably because he took leave) and the week ending 27 December 1996 (probably a short week due to the Christmas and Boxing Day holidays). For the remaining thirty-four weeks, the total amounts in the columns headed "Driver Amount" and "Total Payments" is $21,799.35. The amounts in the "Taxable Deductions" column should be treated as personal outgoings met on the applicant's behalf by the respondent from amounts due by the latter to the former. Such amounts were notionally "received" by the applicant. The only other relevant column is that headed "Non-Taxable Deductions". As I have said, this column includes amounts paid by the applicant to the respondent. The evidence indicates that these amounts were outgoings in connection with the performance of his work, paid out of amounts otherwise payable by the respondent to him. They were outgoings which would have been met by an employer were the relationship one of employer and employee. The total amount (excluding the amounts relating to the excluded weeks) is $1483.40. The amounts in the "Carried Forward" column total $116.80. They seem to have been debited as "Non-Taxable Deductions" in the week ending 17 January 1997 and so need not be considered further. These figures show a pre-tax income (after deducting business-related outgoings) of $20,315.95 for thirty-four weeks.

35 It is necessary to identify his hours of work. He said that initially, he started work at 6.30 am and worked through until 5.30 or 6.00 pm, taking only a half-hour for lunch. These times included travelling time from work to his home, about a half-hour each way. At a later stage, he worked from about 7.30 am until 4.30 pm. The working week pursuant to the award was thirty-eight hours. I think it likely that, at least in the early stages, he was a little slow as a result of his inadequate knowledge of the Brisbane area. It is also possible that his techniques in using his radio and computer equipment were inadequate. Although I doubt that this was a major problem, nonetheless, in estimating the actual length of his working week in the initial stages as a self-employed contractor, it is appropriate to take these matters into account. Further, a self-employed person may be inclined to work longer hours on some days in the expectation that he will be able to work shorter hours on others. In other words, flexible working hours are probably an incident of self-employment. It may be true that the applicant did not remain in self-employment long enough to take advantage of this, but it is a relevant factor. In the circumstances, for the purposes of the present exercise, I consider that it is appropriate to assume an actual average working week of forty hours. This shows an hourly rate of $14.94. This hourly rate represents the return to the applicant before he met the costs associated with the running of the vehicle other than those paid to the respondent. In particular, the applicant had to pay for fuel and other running costs from this amount.

36 I turn now to the award. It permits the payment of hourly rates to casual employees who are defined to be those working for less than thirty-eight hours per week. Although the analogy with the applicant's position may not be perfect, the position of the casual employee on hourly rates is closer than that of a permanent employee on weekly rates who also receives annual and sick leave. See cl 3.1 and sub cl 3.3(5). The award rate for a driver during the relevant period was $398.50. The hourly rate pursuant to the award was calculated by dividing this rate by thirty-eight (hours per week) and adding 19 per cent to represent benefits not available to persons on hourly rates. This shows $12.48 per hour.

37 Other benefits were also available to such an employee. Firstly, an owner-driver was entitled to a payment of a weekly sum of $306.16 representing the value of the supply of the vehicle. Sub clause 5(a) of Sch 2 prescribed that the appropriate method of calculating the hourly rate for payment of this allowance was again to divide by thirty-eight and add 19 per cent, showing an hourly rate of $9.59. This amount represented "basic fixed and operation costs". See award, Sch 2, cl 2(b), 1^st proviso. I take this to include fuel, repairs, registration and vehicle and third party insurance, but not the specialized outgoings paid by the applicant to the respondent for communications and radio services.

38 Such an employee was, at the relevant time, also entitled to superannuation payments at the rate of 6 per cent. This appears from the evidence of Mr Lockwood. However an employee was only eligible for such contributions after he or she had been employed by the employer during five consecutive weeks during which he or she had worked a minimum of fifty hours. Contributions were payable only after the expiry of that period. See cl 3.6 (3)(b). Had the applicant been a casual employee, his entitlement to superannuation contributions would have commenced in the week ending 6 September 1996 and continued for thirty-three weeks. It would presumably have been calculated on the amount paid each week, without regard to the cost of providing the vehicle. Six per cent of $12.48 (the hourly rate) is 75 cents. Assuming a thirty-eight hour week for thirty-three weeks, this would yield a further $940.50.

39 A casual employee was also entitled to long service leave. It is difficult to calculate the value of this benefit. There was no vested entitlement to any pro-rata payment in lieu of leave until the employee had worked for ten years. See Industrial Relations Act 1990 (Qld) subs 11.22, subs 11.27 and subs 11.29. Using the formula prescribed in subs 11.29(4), and assuming a working week of thirty-eight hours, the applicant would be entitled to a further $300.35, but this must be discounted substantially to reflect the fact that he may not have worked for ten years and so earned entitlement to any pro-rata payment. He was, after all, at the very beginning of his work with the respondent.

40 I summarize the applicant's actual financial position and that of a casual employee as follows:-

Applicant		Casual Employee
Hourly rate (40 hour week)	$14.94*	Hourly rate (38 hour week)	$ 12.48
		Vehicle allowance (per hour) TOTAL	9.59 $ 22.07
Long Service Leave	NIL	Long Service Leave (subject to discounting)	$300.35
Superannuation Contribution	NIL	Superannuation Contribution	$940.50

* (1) After meeting outgoings payable to respondent.

(2) Applicant must pay vehicle operating expenses from this amount.

41 It is obvious that the applicant's remuneration as an independent contractor was substantially less than that to which he would have been entitled had he been an employee.

42 I accept that a mere discrepancy between the actual return pursuant to a contract and the notional return pursuant to an award does not compel a finding that the contract was unfair or harsh. There may be reasons for a person choosing to be a contractor rather than an employee. He or she may hope for long-term financial benefits despite short-term disadvantages, or the flexibility of working hours may offer some special attraction. In the present case, however, there were no factors sufficient to offset the substantial financial disadvantage incurred by the applicant. To some extent, this disadvantage was contributed to by the applicant's inexperience, but the bulk of it was attributable to the unfairness of the contracts. In the absence of other significant attractions for the applicant, it could not be fair to expect him to accept substantially less than the value of the award for somebody in a similar position.

43 I have demonstrated the fact of unfairness by reference to the award. In view of my findings as to the vagueness of the applicant's evidence concerning the initial representations, it is not possible to do so by reference to them. It follows that any compensating order should also be based on the award. Sub-section 127B(2) compels this approach. In particular, I propose to use the award formula to compensate for the cost of providing the motor vehicle, as opposed to the calculations made by Mr Lockwood, based upon the book to which Mr Biagnini referred. This approach has at least two advantages. Firstly, the award formula was obviously approved by the Commission. If the Biagnini book was as widely accepted as was asserted in evidence, it was presumably taken into account in the award. Secondly, by using the award, I avoid the need to consider difficult questions concerning the age of the vehicle and other conditions peculiar to the applicant. The award formula presumably takes such matters into account. See the notes to Sch 2.

44 Section 127B contemplates an order setting aside the relevant contract (presumably leaving the parties subject to the award) or an order varying the contract. The former approach would leave the parties to sort out the application of the award, with ample room for further argument. Similarly, were I to insert into their agreements a term requiring parity with the award conditions, there would be considerable room for further dispute. If the parties were in a continuing relationship, such an approach might be necessary, but their relationship is long over. For the same reason, there is no point in now reviewing the "restraint of trade" provision. The time during which it was to run has expired, and there is no suggestion of a dispute between the parties as to any alleged breach thereof.

45 Although it may be somewhat artificial, the needs of the parties will be met by making an order which finally crystallizes their mutual obligations. This will be achieved by inserting into the contract regulating the relationship of principal contractor and contract carrier a clause terminating all obligations pursuant to the contracts upon the payment by the respondent to the applicant of a sum which represents the amount of the applicant's disadvantage. The difference between the hourly rate applicable to a casual employee and that actually received by the applicant is $7.13 per hour. This shows a weekly shortfall of $285.20 for the thirty-four typical (40 hour) weeks to which I have referred, a total of $9,696.80. To this must be added an allowance for lost superannuation in the amount of $940.50, and for his possible loss of long-service leave benefits totalling $300.35. The latter figure must be heavily discounted as it can be in no way probable that the applicant would have become entitled to it. It is also necessary to make some allowance for the atypical weeks, namely the weeks ending 26 July 1996 (one day only), 27 December 1996 and 18 April 1997. No allowance should be made for the weeks ending 3 January and 10 January 1997 as an allowance for leave was built into the hourly rate for casual employees. It is difficult to know what allowance should be made for these weeks, but I note that the difference between the hourly rate received by the applicant and that payable under the award, taking account of the vehicle allowance, was almost 50 per cent of the former figure. Allowing roughly 50 per cent of the amounts actually earned in those three weeks shows a further amount of about $220.00. Taking account of all of these matters, a total figure of $10,900 seems appropriate. In order to place the applicant in an unprejudiced position, some allowance should be made for interest. The relevant prescribed rate for Federal Court judgments varied over the relevant period between 10 and 12 per cent. Substantial justice will be done by allowing interest for two years, at 10 per cent, showing a further $2,180. The total shortfall is therefore $13,080.

46 I propose to order, pursuant to s 127B, that 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."

47 Before making this order I will, however, hear submissions from the parties. I will also hear any submissions as to costs, although I assume pursuant to s 347, there should be no order.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 26 March 1999

Counsel for the Applicant:	Mr P D T Applegarth
Solicitor for the Applicant:	Reidy & Tonkin
Counsel for the Respondent:	Mr J Higgins
Solicitor for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	7-10 December 1998 25 February 1999
Date of Judgment:	26 March 1999