Roger Tull v Allied Express Transport Pty Ltd T/A Allied Express

[2015] FWC 3319

[2015] FWC 3319 [Note: An appeal pursuant to s.604 (C2015/4233) was lodged against this decision - refer to Full Bench decision dated 9 September 2015 [[2015] FWCFB 6227] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roger Tull
v
Allied Express Transport Pty Ltd T/A Allied Express
(U2014/15405)

COMMISSIONER WILLIAMS PERTH, 19 MAY 2015

Termination of employment.

[1] This matter concerns an application made by Mr Roger Tull (Mr Tull or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Allied Express Transport Pty Ltd T/A Allied Express (the respondent).

[2] The respondent objects to the application on the ground that Mr Tull was an independent contractor not an employee and so is not able to make an unfair dismissal remedy application. Mr Tull disputes this and submits that he was indeed an employee. This decision will consider this preliminary jurisdictional point. If this preliminary jurisdictional objection is rejected the decision will then consider the substantive question regarding the fairness of the dismissal.

[3] At the hearing of this matter Mr Tull gave evidence as did the respondent’s Western Australian State Manager Mr Stephen Wolfe (Mr Wolfe) and the respondent’s National Operations Manager – Administration Mr John Richardson (Mr Richardson).

The relevant facts

[4] Mr Tull’s relationship with the respondent began in April 2014.

[5] He was first interviewed by Mr Wolfe. Mr Tull says that at the interview the word subcontractor were not mentioned and he says it was implied he would be an employee.

[6] He agreed to be a parcel delivery driver and understood he would receive a guaranteed minimum of $1250 a week. He says there was no mention of being paid $4 per delivery.

[7] On his second day of work he was given a document to take home and sign. His evidence is that he altered the document to read that he was offered the $1250 a week as a guaranteed minimum and initialled this amendment and returned the document to the Warehouse Manager’s office.

[8] Some time prior to the end of October 2014 Mr Tull complained that he was not receiving the regular weekly payments he thought he should. Mr Wolfe advised him that they could not find the copy of the document he had signed in April 2014. Mr Tull at this time was apparently contesting whether or not he was a subcontractor.

[9] Mr Tull’s evidence was that he was then told that if he didn’t sign another copy of the document he wouldn’t be allowed to work and get paid until he did. Mr Tull then signed a copy of this document on 31 October 2014.

[10] I am satisfied on the evidence that the document Mr Tull signed in April 2014 was, with apparently minor changes, the same as the document he later signed on 31 October 2014. 1 This latter document is a Contract Carrier Agreement. Mr Tull signed as the Contract Carrier on this document. The October 2014 document was not executed by any person on behalf of the respondent.

[11] The Contract Carrier Agreement defines contract carrier as any owner/driver or subcontractor who supplies his/her own vehicle. Clause 8 expressly states that the parties agree and acknowledge that the contract carrier is an independent contractor. The terms of the agreement generally are consistent with the relationship between the contract carrier and the respondent being that of contractor and principal rather than of employee and employer.

[12] To carry out the work Mr Tull supplied a two tonne transit van which he owned outright. Mr Tull paid all the costs of maintaining this vehicle and paid the costs of registration and insurance.

[13] Mr Tull’s vehicle was branded with Allied Express stickers.

[14] The respondent supplied Mr Tull with a personal digital assistant (PDA) on which he was sent the details of individual jobs. An amount was deducted from Mr Tull’s earnings for the use of the respondent’s PDA.

[15] For the full period of the relationship Mr Tull was paid on a piecework basis. Specifically this was based on the number of cartons and their weight delivered by him each day.

[16] After being allocated jobs or pickups it was at Mr Tull’s discretion in what order he completed these and what routes he chose to drive.

[17] Mr Tull had an Australian Business Number. Tax invoices were regularly generated and the respondent paid these amounts to Mr Tull. The earnings paid to Mr Tull fluctuated each week ranging from $253.42 for one week up to $1169.21 on one other week. No deductions for taxation were made.

[18] There is no evidence that Mr Tull was entitled to or ever took paid sick leave or paid annual leave.

[19] The parties in their dealings with each other appear to have acted consistent with the terms of the Contract Carrier Agreement that Mr Tull signed in April 2014 and again in October 2014.

[20] The respondent ended the relationship with Mr Tull on 10 November 2014.

[21] Mr Tull had made a complaint to the Australian Tax Office (the ATO) regarding superannuation payments. Mr Tull provided information to the ATO as did the respondent regarding this issue. The ATO considered whether Mr Tull was an eligible employee under the Superannuation Guarantee (Administration) Act 1992 for the period 1 April 2014 to 30 June 2014. The ATO’s decision in March 2015 was that Mr Tull was not considered to be an eligible employee and the relationship between Mr Tull and the respondent was not one of employer and employee but rather was one of principal and contractor. 2

Consideration

[22] The respondent has drawn the Commission’s attention to the case of Travis Parker v Allied Express 3 wherein Deputy President Hamilton usefully considered the relevant principles applicable in matters such as this and applied those to the particular circumstances before him. It is sufficient to observe that whilst those principles are applicable in this case this case must be determined on the facts found by the Commission as currently constituted on the basis of the evidence of Mr Tull and the respondent’s witnesses in this particular matter. Those findings of fact are set out above.

[23] Mr Tull emphasised that at the time he was interviewed for the position he believed it was implied that he would be an employee. Notwithstanding this Mr Tull a few days later freely signed the Contract Carrier Agreement which expressly states he would be an independent contractor. From that point onwards the relationship and day to day interactions between the parties appears to have been consistent with that agreement.

[24] In October 2014 after querying his payments and the respondent then identifying it did not have a copy of the agreement Mr Tull signed in April 2014 he was told he was required to again sign the Contract Carrier Agreement which he did, but with considerable reluctance. After this the relationship between the parties in practice continued as it had been previously.

[25] In summary the characteristics of that relationship were that Mr Tull was responsible for providing his vehicle at his cost. The respondent allocated individual jobs to him which he accepted and completed in the order and by a route decided by himself. The number of these jobs varied significantly from day to day. He provided the respondent an Australian Business Number and payment for each of those jobs on a piecework basis was made in response to tax invoices. No tax was deducted from the payments. The respondent did not provide to Mr Tull paid annual leave, sick leave or superannuation.

[26] Considering the evidence here there are numerous and strong indications that the real relationship between Mr Tull and the respondent was indeed that of principal and contractor and very little that would indicate that the relationship was that of employee and employer. Consequently my conclusion is that the true nature of the relationship in this instance was one of principal and contractor.

[27] Mr Tull was not an employee of the respondent at the time the relationship ended in November 2014. I uphold the respondent’s jurisdictional objection. Mr Tull not being an employee is unable to make this application for an unfair dismissal remedy and this application will be dismissed.

[28] An order to that effect will now be issued.

COMMISSIONER

Appearances:

R Tull on his own behalf.

J Murphy of Counsel for the respondent.

Hearing details:

2015.

Perth and Sydney (video hearing)

April 10.

 1   Exhibit R4, Attachments A and B.

 2   Exhibit R1.

 3   [2015] FWC 757.

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