Truck Moves Australia Pty Ltd v Simmonds

Truck Moves Australia Pty Ltd brought this proceeding against two of its former employees, Mr Simmonds and Mr Zader, seeking declarations that the employees were not covered by the Road Transport and Distribution Award 2010 or the Road Transport (Long Distance Operations) Award 2010, and that Truck Moves was required to pay them in accordance with the national minimum wage order during the period between 1 January 2010 and the respective dates on which their employment by Truck Moves terminated. The drivers had complained to the Fair Work Ombudsman that they had been underpaid, claiming that the RTD Award applied to them while they were employees of Truck Moves but that they had not been paid in accordance with that award. The employees argued that the vehicles they moved were goods that were transported by road as a result of that operation. The court was required to decide whether the business of Truck Moves was within the definition of “road transport and distribution industry” in the Road Transport and Distribution Award 2010, and whether the movement of unladen trucks or other vehicles at request of or for delivery to the employer’s customer was within the meaning of “the transport by road of goods” in clause 3.1 of the Award.

The court held that the business of Truck Moves was not within the definition of “road transport and distribution industry” in the Road Transport and Distribution Award 2010. The court found that the employees were not covered by the RTD Award or any other award because the vehicles they moved were not goods being transported by road. The court held that the definition of “goods” in the RTD Award did not include the vehicles moved by Truck Moves, which were being transported for reward as a bailee, not as goods being transported. The court also held that the infrequent instances of laden trucks being moved by road by the employees were ancillary to the business of Truck Moves. The court held that the employees were not covered by the RTD Award or any other award because the movement of unladen trucks or other vehicles at request of or for delivery to the employer’s customer was not within the meaning of “the transport by road of goods” in clause 3.1 of the Award. The court found that the drivers were not engaged in the transport of goods by road, but rather in the transportation of vehicles for reward as a bailee. The court also found that the infrequent instances of laden trucks being moved by road by the employees were ancillary to the business of Truck Moves, and therefore did not bring Truck Moves within the scope of the RTD Award.

The court made the following orders: (1) It was declared that the applicant’s employment of each respondent was not covered by the Road Transport and Distribution Award 2010 or the Road Transport (Long Distance Operations) Award 2010. (2) It was declared that during the period between 1 January 2010 and the respective dates on which his employment by the applicant terminated, the applicant was required to pay each respondent in accordance with the national minimum wage order as in force from time to time made pursuant to the provisions of the Fair Work Act 2009 (Cth) or at any higher rate actually paid to him.