'Misguided' owner-drivers take on McColl's


Owner-drivers cast aside by McColl's attempt to test the boundaries of Fair Work Australia's jurisdiction by claiming unfair dismissal

'Misguided' owner-drivers take on McColl's
'Misguided' owner-drivers launch unfair dismissal against McColl's

By Brad Gardner | June 28, 2012

A group of owner-drivers has attempted to test the boundaries of Fair Work Australia’s powers by claiming unfair dismissal against McColl’s Transport after the operator terminated their contracts.

Glenn Miller, Tom Gale and Brendan Speed believed they were more like employees than sub-contractors and that the reason they were let go earlier this year – a slow down in work – was a sham.

Each owner-driver argued an employment-like relationship existed because McColl’s exercised complete control over work allocation, it discouraged them from delegating their duties and that their trucks had to display McColl’s signage.

The subbies also blamed the hours worked for McColl’s for restricting their ability to offer their services elsewhere.

But Fair Work Australia Senior Deputy President Lea Drake upheld McColl’s argument the men were not entitled to claim unfair dismissal because they were not employees.

"McColl’s arrangements were consistent with a relationship between the parties of principal and contractor. There was no evidence put to me by the applicants that persuaded me that the relationship was one of employment," Drake says.

"Much of the applicants’ evidence was given as if they believed that McColl’s had an employment arrangement with their corporate entities and that this could be interpreted as creating an employment relationship with them as individuals. This is a misguided approach."

Miller, Gale and Speed argued they were always on call and felt obligated to accept all tasks for fear of having their workload reduced in future if they did not.

Gale and Speed claimed McColl’s Allocation Manager Ken Dok told them they could not use relief drivers. But Drake says Dok’s decision to prevent the owner-drivers from delegating their duties did not make them employees.

She says they should have used a dispute resolution procedure in their contract with McColl's to show there was a clause permitting the use of relief drivers as long as the operator approved them and they completed an induction.

Furthermore, there was nothing in the contracts stipulating owner-drivers had to work exclusively for McColl’s.

"They were free to come and go as they pleased and to provide services to others," Drake says.

She says the inability to offer services elsewhere stemmed from fatigue management requirements, not from McColl’s actions.

"The number of hours that a driver can work within the law is limited. If the applicants performed work for the legal maximum number of hours with McColl’s then they could not perform work for others. That is the natural operation of the legislation."

The manager of McColl’s bulk food grade division, Mick Mulraney, told Fair Work Australia the owner-drivers were paid by the kilometre, just like employees, but they also received a premium rate.

"There was no evidence to contradict the evidence of Mr Mulraney that this payment was made to compensate the applicants for their substantial investment and shared commercial risks. This is indicative of a principal and contractor relationship," Drake says.

McColl’s did not pay Miller, Speed and Gale salaries, superannuation or leave entitlements.

Drake cited the fact each owner-driver supplied a prime mover as "a highly persuasive factor" in determining the relationship was on a principal and contractor basis.

Mulraney says McColl’s called the men one or two days before work was allocated to see if they were available. The company nominated pick-up and delivery points and the load to be carried.

"On either version of the facts McColl’s exercised a high degree of control over the work and hours of work of the applicants, particularly in respect to the setting of pick-up and drop-off times," Drake says.

"The applicants relied on this factor to characterise the relationship as being one of employment. However, this level of control is equally consistent with a principal and contractor relationship."

McColl’s Deputy CEO Enrique Klix told ATN the company works hard to maintain a good working relationship with its sub-contractors.

He says regular meetings are held to keep them updated on what is happening in the business and to listen to their concerns.

He says many sub-contractors have been with McColl’s for more than 10 years and all have signed contracts as an incorporated company.

"They all have the option, and many do, [to] work for other transport companies, have more than one truck, employ drivers independently and do their own taxation," Klix says.

"We pay them competitive rates based on kilometres and on time. We don´t pay them salaries, superannuation or leave entitlements."

Klix says subbies have access to McColl’s workshops to maintain their vehicles at competitive rates.

"McColl’s also gives sub-contractors access to fuel at below the standard pump retail price with generous payment terms," he says.

"As safety is our biggest priority, we also offer to install state-of-the-art GPS technology and invite all sub-contractors to participate in simulator driving training to help these drivers upgrade their skills."

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