Owner-driver Union Delegate Wins Adverse Action Injunction
Release date: 28/10/2013
In a rare adverse action case involving an independent contractor, the Federal Court has issued a mandatory injunction compelling a building materials supplier to provide concrete haulage work to an owner-driver pending the hearing of his case that his contract was terminated because of his union activity.
Workplace Express, 28 October 2013
Justice Berna Collier ordered Hanson Construction Materials Pty Ltd to continue to provide work to the owner-driver and his company, United Motor Search Pty Ltd, despite its termination of their independent contractor arrangement on September 30.
Justice Collier said the owner-driver had presented evidence of a number of incidents "which, while in themselves minor, could in the course of a trial be supported by further evidence adduced, and indeed build to a complete picture supporting [his] case" that his union activity was the reason for HCM terminating his contract.
The evidence included his role as the TWU delegate for owner-drivers at HCM, the increased presence of the union at the workplace as a result of his recruitment activity, a dispute with a HCM line manager over his wearing of a TWU cap, and harassment and unfair treatment following his central involvement in an earlier general protections case lodged by the union in the FWC.
Justice Collier said the balance of convenience supported an injunction, accepting the owner-driver's argument that this was not a "normal" commercial dispute, "but a dispute between a large corporation and an owner driver whose livelihood depends on the outcome of the proceedings".
The owner-driver started with HCM in 2011 after he purchased a concrete mixer owned by an existing contractor to the company.
He claims that HCM agreed to give him work until 2020 if he upgraded to a larger mixer, relying in part on written correspondence between the company and the previous owner of the truck.
In addition to the adverse action limb of the case, Justice Collier said the owner-driver had established a serious question to be tried that a contract in those terms existed between his company and HCM.
The owner-driver said he had purchased the larger truck based on undertakings given by HCM about future work.
Justice Collier said that damages would not be an adequate remedy for the owner-driver should he succeed at trial, given the disruption to his business affairs should interlocutory relief be denied.
The judge stuck by her decision in Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd that an applicant for a mandatory interlocutory injunction compelling a respondent to take positive action, as distinct from refraining from certain conduct, had to establish a stronger case on the merits than merely demonstrating a serious issue to be tried.
But she said the owner-driver had met this higher obligation, and ordered HCM to comply with its "usual cyclical rostering arrangements" and provide work to him using his new, larger mixer.
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