OWNER-DRIVERS (CONTRACTS AND DISPUTES) ACT 2007 - SECT 30

OWNER-DRIVERS (CONTRACTS AND DISPUTES) ACT 2007 - SECT 30

30 .         Unconscionable conduct by hirers

        (1)         A hirer must not engage in conduct that is, in all the circumstances, unconscionable with respect to an owner-driver in relation to the acquisition or possible acquisition by the hirer of services from the owner-driver under an owner-driver contract.

        (2)         Without limiting the matters to which the Tribunal may have regard for the purpose of determining whether a hirer has engaged in conduct that is unconscionable in contravention of subsection (1), the Tribunal may have regard to the following —

            (a)         the relative strengths of the negotiating positions of the hirer and owner-driver;

            (b)         whether, as a result of conduct engaged in by the hirer, the owner-driver was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the hirer;

            (c)         whether the owner-driver was able to understand any documents relating to the acquisition or possible acquisition by the hirer of services from the owner-driver under an owner-driver contract;

            (d)         whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the owner-driver (or a person acting on behalf of the owner-driver) by the hirer or a person acting on behalf of the hirer in relation to the acquisition or possible acquisition by the hirer of services from the owner-driver under an owner-driver contract;

            (e)         the amount for which, and the circumstances under which, the owner-driver could have provided identical or equivalent services to a person other than the hirer, including as an employee;

            (f)         the extent to which the hirer’s conduct towards the owner-driver was consistent with the hirer’s conduct in similar transactions between the hirer and other similar owner-drivers;

            (g)         the requirements of the code of conduct;

            (h)         the extent to which the hirer unreasonably failed to disclose to the owner-driver —

                  (i)         any intended conduct of the hirer that might affect the interests of the owner-driver; and

                  (ii)         any risks to the owner-driver arising from the hirer’s intended conduct that are risks that the hirer should have foreseen would not be apparent to the owner-driver;

                  (i)         the extent to which the hirer was willing to negotiate the terms and conditions of the acquisition or possible acquisition by the hirer of services from the owner-driver under an owner-driver contract;

            (j)         the extent to which the hirer acted in good faith;

            (k)         whether or not the owner-driver contract provides for the payment of any increases in the owner-driver’s fixed and variable overhead costs (as defined in section 27(4));

            (l)         the terms of an owner-driver contract, including whether any term of the contract is an unfair term.

        [Section 30 amended: No. 36 of 2022 s. 8.]