Boske hails bitter sweet FWO court victory

By: Rob McKay


Vindication but company and founder count the cost

Boske hails bitter sweet FWO court victory
The case hinged on the contracts and how they came to be signed

 

The Federal Circuit Court has dismissed Fair Work Ombudsman (FWO) charges centring on whether four drivers were engaged as contractors or were actually employees.

The case was brought against Boske Road Transport, now known as Avert Logistics and named such in the case.

Managing director Rick Boske cast the defece as a ‘David and Goliath’ struggle.

"After 3½ years defending false allegations against my company & having our family name dragged through the mud, being falsely accused, we can finally breath again!" Rick Boske said in a social media post and an email to ATN.

"When many industry colleague’s prompted me ‘just pay them what they want’ guilty or not rather than go to court to defend our innocence & suffer the consequences of excessive court costs wasn’t fair. It never sat well with me on principal, it was a huge decision to fight & costly too, but we did.

"It may have been the easy cheaper alternative but what we were accused of was just wrong, we were not involved in Sham Contracting nor had we underpaid our Contractors!"

Boske noted that colleagues had distanced themselves from him in that time, as did customers "because of court action as they didn’t want to be tarnished".

He enumerated the cost of fighting the accusations over the 3½ years as:

  • lost accounts worth some $2 million a year
  • pre-court our growth of 25% a year since 2009, fell to  zero growth in the past 3½ years
  • never reported a loss since we started, expect the year of defending court action.
  • legal costs of $200,000
  • losing the Boske Road Transport name
  • "many many many sleepless nights".

"Sadly the accusers just walk away, without a scratch, without outplaying one cent, without suppling one document, their attack was fully funded by the Australian Taxpayer!" the statement continued.

"Right there is where the system is WRONG, the accuser don’t have any skin in the game, they simply walk away looking for their next meal ticket."


Read how the FWO case against Boske Road Transport was announced, here


The FWO had alleged that, the number of obligations on drivers – relating to work hours, leave, clothes and truck branding and permission to work for third parties – together amounted to an employment relationship rather than one of independent contractors. If accepted, the underpayment would have amounted to $63,803.

Judge Michael Jarrett disagreed, siding with Avert Logistics, which argued that the contractor relationship was sought and freely entered into and made clear at the start and that the level of company control was far less stringent than alleged and work times were controlled by customers.

Jarrett noted the contract gave the drivers the ability to decline work and indeed one had done so when unwell.

He accepted that working for a customer was only allocated when the drivers messaged back confirming their acceptance.

In the end, Jarrett ruled that the contract the drivers signed defined the relationship.

He summed up saying that, though there was "considerable merit" in the FWO case, when looked at holistically, "ultimately the terms of the written agreements between the drivers and the respondent and more importantly the way in which they were entered into by the individual drivers satisfies me that the relationship is really one of independent contractor and principal and that was what was intended by the parties.

"The contracting parties were not the individuals themselves in most cases but were entities set up by the drivers for their own purposes.

"There is no suggestion that the respondent required the drivers to enter into the contracts in any particular way although it is clear that the respondents were offering engagement as a contractor.

"There is no suggestion that the contracts are a sham."

Asked for a response and what its next steps would be, an FWO spokesperson told ATN: "The Fair Work Ombudsman is currently considering the court’s decision."

 

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