Buchmueller v Allied Express Transport Pty Ltd

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…