Melbourne-based firm not subject to unfair dismissal claims from its independent contractor drivers
The Fair Work Commission (FWC) has confirmed that drivers for express delivery provider Network Transport Services (NTS) are independent contractors, not employees.
That ruling means an unfair dismissal claim against the company has been discarded.
FWC commissioner David Gregory says Divek Marya’s working situation had some elements of direct employment. But the fact that he was able to supplement his income with other work outside of NTS was key in determining his status as an independent contractor.
“I accept that it might be difficult in practice for owner drivers, like Mr Marya, to actually provide services elsewhere, given the time commitment involved in providing services to NTS,” he rules.
“However, I am also satisfied the Owner Driver agreement does not preclude this from occurring and the evidence in the proceedings indicates some owner drivers, at least, provide services to other persons or businesses, who are not existing clients or customers of NTS.”
Marya had argued that the company’s ban on accepting work directly with its clients had diluted this right, but Gregory noted that such non-solicitation clauses were “entirely appropriate”.
The owner-driver’s assertion that NTS had “ultimate control” over his working life was also dismissed.
“I am satisfied that the nature of the relationship between Mr Marya and NTS was one of principal and independent contractor, rather than employer and employee,” Gregory concludes. “Given that Mr Marya was not an employee of NTS, it follows he is not a person protected from unfair dismissal.”