DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Kym Wheare
v
Hi Trans Express
(U2020/14174)

Application for an unfair dismissal remedy – truck driver – labour hire agency - whether employee of host business – no employment relationship – application dismissed

[1] On 28 October 2020 Kym Wheare (Mr Wheare or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy concerning an alleged dismissal on 7 October 2020. The respondent to the application is Hi Trans Express¹ (Hi Trans or the Respondent).

[2] The application is opposed by Hi Trans which raises a jurisdictional objection. It says that it did not employ or dismiss Mr Wheare.

[3] Mr Wheare’s application was not conciliated as Hi Trans sought determination of his eligibility to make the claim before further proceedings (if any) were conducted.

[4] I issued directions on 18 November 2020.

[5] Materials were filed by Mr Wheare and Hi Trans (including materials made available during the hearing).

[6] I heard the matter by telephone on 15 December 2020. Both parties were self-represented.

Facts

[7] I heard evidence from both Mr Wheare and from Hi Trans’s General Manager of People, Safety and Culture Ms Marrone.

[8] There are some disputed facts, though generally the relevant facts are agreed (but not the application of the facts to the law). Where there are differences, it is largely the product of recall. Mr Wheare’s evidence tended on certain issues to fall into generality. Ms Marrone had a better specific recall on matters within her knowledge and belief. Whilst much of Mr Wheare’s evidence is able to be relied upon, I prefer Ms Marrone’s evidence where there are relevant factual differences.

[9] Mr Wheare is a driver of heavy and long-haul vehicles across state borders. He resides in Adelaide, South Australia. He drives largely between South Australia and the eastern states and along the eastern states. He has performed this work for about ten years.

[10] After responding to an advertisement on seek.com, Mr Wheare started work as a driver in about 2011 through a labour hire agency. He was placed with Hi Trans, who inducted him and through whom he secured his initial heavy vehicle driver accreditation.

[11] Between 2011 and 2014 Mr Wheare drove primarily for Hi Trans.

[12] In 2015 Mr Wheare ceased driving for Hi Trans.

[13] Between 2015 and 2019 Mr Wheare drove, again though a labour hire agency, for a variety of other trucking companies. He also took time off from driving to attend to family and personal matters.

[14] In the first half of 2020 (according to Mr Wheare, in about February / March; according to Hi Trans, in about May), Mr Wheare again responded to an advertisement for drivers on seek.com.

[15] When responding to the advertisement, Mr Wheare dealt with a labour hire agency used by trucking companies, 1800 Drivers. The agency put Mr Wheare onto a number of trucking companies. One was Hi Trans.

[16] Mr Wheare was familiar with Hi Trans from his previous work and was interested in again driving for them. He spoke to Hi Trans. Hi Trans agreed to offer Mr Wheare some driving routes on referral from the agency.

[17] Between May 2020 and October 2020 Mr Wheare drove Hi Trans trucks on interstate routes, as rostered by Hi Trans.

[18] In this period he also drove for other trucking companies on referral from 1800 Drivers. However, the bulk of his driving was with Hi Trans.

[19] In October 2020 disagreement arose between Mr Wheare and Hi Trans on at lest two issues. Mr Wheare believed that Hi Trans had not provided safe vehicles or adequate facilities. Hi Trans believed that, upon an examination of his logbooks, Mr Wheare was driving in excess of industry standards and legal requirements in that he was not taking full mandatory rest breaks before getting back on the road.

[20] Hi Trans advised 1800 Drivers that it was no longer willing to accept Mr Wheare driving its vehicles.

[21] On 7 October 2020 the Operations Manager of 1800 Drivers (David Reardon) wrote to Mr Wheare seeking a written explanation to the allegations.²

[22] Mr Wheare responded claiming that his level of accreditation permitted longer driving shifts, and claimed that it was Hi Trans which had failed to provide safe trucks and adequate driver facilities.

[23] Thereafter, Mr Wheare received no further work from either 1800 Drivers or Hi Trans.

[24] Mr Wheare filed unfair dismissal proceedings against Hi Trans on 28 October 2020.

Submissions

[25] Hi Trans submit that it could not have unfairly dismissed Mr Wheare as it did not employ him.

[26] Hi Trans submit that Mr Wheare was engaged by a labour hire agency (Driver Recruitment Pty Ltd trading as 1800 Drivers) which supplied driver labour to Hi Trans and other trucking companies. It says Mr Wheare was either an employee or contractor of that agency.

[27] In support of its submission, Hi Trans relies on the following:

•  Mr Wheare was recruited to work for Hi Trans in 2020 via a seek.com advertisement placed by 1800 Drivers. It was only after his initial contact with 1800 Drivers that he was referred by the labour hire agency to Hi Trans for work;

•  Mr Wheare had no oral or written contract of employment with Hi Trans;

•  Mr Wheare did not exclusively work for Hi Trans. Whilst working for Hi Trans he was also offered and accepted work by the labour hire agency with other trucking companies;

•  Mr Wheare was not paid by Hi Trans. He was paid by 1800 Drivers. The labour hire agency would invoice Hi Trans for work done by Mr Wheare, and after verifying the work as stated, the invoice would be paid to the labour hire agency. No money was transacted between Hi Trans and Mr Wheare; and

•  notification that Mr Wheare was no longer providing work to Hi Trans was communicated by 1800 Drivers, not by Hi Trans.

[28] Mr Wheare submits that he was employed by Hi Trans and dismissed by Hi Trans. He says that his work for Hi Trans in 2020 was not the first time he had worked for Hi Trans. He had done so between around 2011 and 2014. He says he enjoyed working for Hi Trans and but for unfair allegations against him he would still be working for Hi Trans even though he believed it had failed to meet its duty of care towards him in the final months of his work.

[29] Mr Wheare relies on the following:

•  it was employees of Hi Trans who gave him his rostered shifts;

•  it was Hi Trans who funded his remuneration and checked whether the remuneration to be paid matched his work roster;

•  he dealt with Hi Trans on any operational issues that arose;

•  he drove trucks owned by Hi Trans and emblazoned with Hi Trans logos;

•  his original accreditation had been certified by Hi Trans in about 2011;

•  his essential worker border pass allowing him to cross borders during the COVID-19 period was issued by Hi Trans; and

•  even though he occasionally worked for other trucking companies, most of his work in 2020 was with Hi Trans.

Consideration

[30] Section 386 of the FW Act provides:

“(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[31] The references to “employment” and “employer” in section 386(1)(a) mean that an employment relationship needs to have existed at the time of dismissal such that the “person” was in the “employment” of the “employer” against whom proceedings have been commenced.

[32] Was there an employment relationship between Mr Wheare and Hi Trans?

[33] It is trite to note that a variety of relationships exist which result in work being performed. Not all are employment relationships. The law distinguishes between a contract of service (being an employment relationship) and a contract for services (being a contractor/principal relationship). The prevalence of genuine independent contracting as well as labour hire (or on-hire) alongside direct employment and contractors are features of the modern economy.

[34] A multi-factor test derived from court authorities has been applied by the Commission for distinguishing between independent contractors and employees.³ The Commission is obliged to consider the totality of the relationship having regard to various indicia that might shed light on the true nature of the relationship.

[35] Also well-established is that courts will look to the real substance of a relationship to determine if an employment relationship exists.⁴ Another expression of this principle has been said by a full bench of the Commission to be “what might be described as the commercial authenticity of those arrangements”.⁵ Whilst the ‘label’ parties give to their relationship is an important consideration, the parties cannot deem the relationship between themselves to be something which, in substance, it is not.⁶

[36] I now turn to consider each of the indicia summarised in French Accent to the extent relevant to the facts in this matter.

[37] Control: Mr Wheare was given driving jobs by Hi Trans managers. Once he accepted a job (route) he was required to comply with standards and rules applied by Hi Trans with respect to the operation of its vehicles. However, as he was able to work for other trucking companies, he was not obliged to accept an offered job.

[38] Entitlement to work for others: Mr Wheare had the right, and exercised the right, to not work exclusively for Hi Trans. He accepted work from other trucking companies, work that was supplied through the agency of 1800 Drivers. The bulk of his work in the relevant period was however for Hi Trans.

[39] Separate place of work and advertising of services: As Mr Wheare worked for both Hi Trans and other trucking companies, his place of work varied between trucks owned and operated by Hi Trans, and trucks owned and operated by other trucking companies. He made it known to the agency (1800 Drivers) that he was able to work for a variety of companies, depending on availability and his preferences.

[40] Provision and maintenance of tools and equipment: Mr Wheare used the vehicles supplied by Hi Trans when driving for Hi Trans. His heavy vehicle accreditation was personal to himself (originally acquired via Hi Trans), and was carried across the various trucking companies for whom he drove.

[41] Entitlement to delegate or sub-contract work: Mr Wheare was able to decline a job, but was not able to sub-contract a Hi Trans job he had accepted.

[42] Right to suspend or dismiss: Hi Trans had the right not to offer more jobs to Mr Wheare (and exercised that right) but it was 1800 Drivers who had and exercised the right to hire and fire Mr Wheare.

[43] Public presentation: When driving for Hi Trans, the trucks (being owned by Hi Trans) were publicly identifiable as a Hi Trans vehicle.

[44] Deduction of income tax and GST: Hi Trans made no payments direct to Mr Wheare and therefore made no deductions from income by way of income tax or otherwise.

[45] Provision of invoices and periodic payment: Payment to Mr Wheare was made by 1800 Drivers. 1800 Drivers had an arrangement with Hi Trans whereby Hi Trans would verify that a particular job had been performed (and the hours worked) and then 1800 Drivers would pay Mr Wheare. 1800 Drivers would send a tax invoice⁷ to Hi Trans to remit that amount to its (1800 Drivers) account, and Hi Trans, upon payment, would send a remittance advice to 1800 Drivers.

[46] Paid leave: Hi Trans did not provide any paid leave to Mr Wheare.

[47] Nature of the work: The work required Mr Wheare to hold a licence and accreditation to drive the relevant vehicles. Hi Trans satisfied itself that the relevant accreditation was held by Mr Wheare before offering him work driving its vehicles.

[48] Creation of goodwill and other saleable assets: Aside from accruing further personal experience and expertise as a truck driver, there was no goodwill or saleable asset built by Mr Wheare whilst driving for Hi Trans or other trucking companies.

[49] Proportion of remuneration spent on business expenses: There was little evidence about this. There was little by way of “business” expense in relative terms apart from disagreement between Mr Wheare and Hi Trans over the adequacy of sleeping and accommodation facilities provided whilst en-route.

[50] In this matter, there are some competing indicia though none point strongly towards an employment relationship or are inconsistent with a genuine labour hire arrangement existing. The manner in which the relationship was created (via 1800 Drivers) and ended (via 1800 Drivers), the fact that it was 1800 Drivers who sought an explanation from Mr Wheare for alleged breaches of driving protocols, and the fact that Mr Wheare could elect whether to accept a shift and with which trucking company all weigh against a finding of an employment relationship with Hi Trans. Whilst Hi Trans controlled operational work once a job was offered and accepted, this was a necessary incident of Mr Wheare (at that point) agreeing to drive its trucks according to the operational standards, regulations and protocols applicable to Hi Trans.

[51] That Mr Wheare did not work exclusively for Hi Trans and both had and exercised the right to work for other trucking companies in the relevant period is a strong indicator that he was a contractor engaged through a labour hire agency, and not an employee of Hi Trans. As recently noted by a Commission full bench, one of the “usual and essential hallmarks of an employment relationship” is exclusivity when work is being performed.⁸ That characteristic is not evident in this matter. That the majority of work performed by Mr Wheare was done for one client of 1800 Drivers is not evidence of exclusivity.

[52] Nor do I accept the proposition that Mr Wheare was jointly employed by both 1800 Drivers and Hi Trans. There is no legal foundation on which a claim of joint employment in respect of the same work can be made or sustained under Australian law. I adopt the observations of Hampton DP in Costello v Allstaff Industrial Personnel (SA) Pty Ltd ⁹ and the later observations of a full bench of this Commission in FP Group v Tooheys on this point where it was said:¹⁰

“the application of a concept of joint employment to labour hire arrangements would involve a very considerable development of the common law…we do not consider that the Commission’s role as a statutory tribunal extends to engagement in the development of the common law. That is a matter for the courts.”

[53] Such an approach is consistent with observations made by a separate full bench in French Accent:

“[26] Moreover, the nature of the ultimate question is such that in any given case that is not clear cut, reasonable judicial minds may differ as to the correct answer in any given case. This was explicitly recognised in Roy Morgan. This necessarily means that there is an area of uncertainty for businesses that wish to engage only on the basis of independent contract and not on the basis of employment. Any change to the present approach is a matter for the legislature. Our duty is to continue to apply the established general law approach until legislation or the High Court requires otherwise.”

Conclusion

[54] For the aforementioned reasons, no contract of employment existed between Mr Wheare and Hi Trans. As Hi Trans was not his employer, it could not have and did not dismiss Mr Wheare within the meaning of section 386 of the FW Act.

[55] There being no dismissal from employment by the Respondent, the application does not invoke the Commission’s jurisdiction. The application must be dismissed. An order¹¹ giving effect to this decision is issued in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

Mr K Wheare, in his own right
Ms L Marrone with Ms L Taylor, for the Respondent

Hearing details:

2020
Adelaide (by telephone)
15 December.

Printed by authority of the Commonwealth Government Printer

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1 At the hearing, the Respondent advised that its correct identity is Primeline Contracting Pty Ltd trading as Hi Trans Express

2 A5 Email David Reardon 7 October 2020 1.17pm

3 Jiang Shen Cai trading as French Accent v Rozario [2011] FWAFB 8307 at [30] (French Accent) applying Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, Roy Morgan Research Pty Ltd v Commissioner of Taxation [1997] 37 ATR 528 and Hollis v Vabu [2001] HCA 44

4 On call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 206 IR 252 at [89]

5 FP Group Pty Ltd v Tooheys [2013] FWCFB 9605 at [22]

6 Abdulla v Viewdaze Pty Ltd t/as Malta Travel (2003) 122 IR 215 at [34]

7 Example, R3

⁸ Gupta v Portier Pacific Pty Ltd [2020] FWCFB 1698 at [70]

9 [2004] SAIRC 13; see also Trakas v BPL Adelaide Pty Ltd [2018] FWC 1530 at [118]

10 FP Group Pty Ltd v Tooheys [2013] FWCFB 9605 at [41] and [44

11 PR725863