Mark Webster v Auz Country Carriers

[2012] FWA 3325

[2012] FWA 3325

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.394-Application for unfair dismissal remedy

Mark Webster
v
Auz Country Carriers
(U2011/14404)

DEPUTY PRESIDENT SMITH MELBOURNE, 19 APRIL 2012

Owner/driver; contractor or employee.

[1] The following decision, now edited, was issued during proceedings conducted on 16 March 2012.

[2] Mr Webster I have read your submission and I have read Mr Ryan’s submission which raises a jurisdictional challenge.

[3] The merits of the matter are not relevant at this stage, firstly I have to deal with whether or not there was an employment relationship. If there is not an employment relationship, then that may be relevant in any contractual dispute that you might have as to whether the contract was terminated in a manner inconsistent with the contract.

[4] There is a long history in both this Tribunal and the Federal Court and the High Court of Australia dealing with issues in relation to owner/drivers and subcontractors. That history unfortunately is against you on this occasion. In particular I refer to a decision of the Full Bench in Abdalla v Viewdaze Pty Ltd 1 that goes very deeply into these matters, and there is also a High Court decision called Hollis v. Vabu 2 that looks closely and owner/drivers.

[5] On the material before me, the nature of your relationship puts you on the contractor side. This means I have to uphold the jurisdictional objection that has been raised by Mr Ryan and that you cannot proceed to argue that you have been unfairly dismissed.

[6] Your application is dismissed as it is not in jurisdiction.

DEPUTY PRESIDENT

Appearances:

M. Webster the applicant.

P. Ryan with B. Merkus on behalf of Auz Country Carriers.

Hearing details:

2012.
Melbourne:
March, 16.

 1 (2003) 122 IR 215 PR927971

 2 (2001) 207 CLR 21

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