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Too early for Toll to decide on appeal

Toll undecided if it will appeal court ruling that held the company liable for enforcing unfair contracts against nine owner-drivers

By Brad Gardner | April 27, 2012

Toll has not determined if it will appeal a court ruling that upheld an unfair contract claim from nine owner-drivers.

The NSW Industrial Court earlier this month ruled in favour of the sub-contractors in their legal battle that stemmed from Toll’s takeover of Brambles 16 years ago.

It sent the Transport Workers Union (TWU), which represented the subbies, and Toll away to discuss the level of compensation, which a previous ruling put close to $400,000.

“Although a decision has been handed down against Toll, the court’s orders have not yet been finalised. Toll and the union have been directed to confer as to the exact terms of those orders,” Toll General Manager of Corporate Affairs Andrew Ethell says.

“Until the court issues its final orders, it is too early for Toll to make a decision on possible further appeals.”

The matter was first heard in 2009, which went in favour of the nine owner-drivers. Toll appealed in 2010 for the case to be reheard.

In the original matter, the court ordered Toll to pay the group of owner-drivers more than $392,000 in compensation, with one owner-driver to receive $67,000.

Haylen says the Industrial Court will base its decision on the payments set out in the original ruling but also told the TWU and Toll to discuss the issue.

“It should be made clear to the parties, however, that discussions as to appropriate money orders…should not compromise either party in relation to their appeal rights,” he ruled.

The drivers, who moved from Brambles to Toll as part of the 1996 sale, began legal action after Toll refused to grant them goodwill – a practice whereby drivers sell their trucks and positions.

Brambles permitted goodwill and when the owner-drivers transferred to Toll they were told in a letter their employment conditions “will be no less favourable than those currently applied to you”.

Toll had an unwritten policy against goodwill but did not inform the owner-drivers until they tried to sell their position and assets.

Justice Wayne Haylen says Toll had an obligation to inform the owner-drivers but it gave them the impression their conditions would remain unchanged because it was anxious to ensure they remained with the business.

“Toll must now bear the cost of the consequences of its harsh and unconscionable conduct in this regard,” he says.

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