Owner Truck Drivers found to be Employees by Federal Court

By Renee Karakinos, Lawyer, and Chao Ni, Principal

This article is written about the case of Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119.

In the above case, the Full Federal Court unanimously ruled that two truck drivers, who had worked exclusively for a company for 40 years, were employees and not independent contractors.
In arriving at this decision, the Court identified the following factors:

  1. Though the drivers had owned their trucks, it was found that in 1986 the drivers had been required to purchase their truck from the company at a specified price or face termination of employment.

  2. Though the drivers possessed a degree of freedom over the operation of their day to day activities, they had to work for the company from 6am to at least 3pm each day, which left them little opportunity to work for anyone else. The notion that they were free to find other customers was deemed illusory.

  3. The drivers carried the company’s logo on their trucks and clothes for most of the relationship.

  4. The drivers had worked solely for the company and the income that was derived was their sole source of income during the entire period.

  5. The company controlled the drivers’ hours of work, what they were to do, their remuneration, the annual leave that they could take, the paperwork they had to complete and other key rights and obligations.

The decision will allow the drivers to recover unpaid leave and superannuation entitlements spanning almost 40 years.

All businesses that engage owner drivers as independent contractors should regularly complete a contractor versus employee audit to assess their exposure to legal risk.

For more information about this article, please contact our Employment Law team by email or on telephone +61 3 8540 0200.