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Court clears Brisbane operator of sham contracting allegations

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After a demanding three and a half year battle, Avert Logistics (formerly Boske Road Transport) has had a Fair Work Ombudsman (FWO) case dismissed by The Federal Circuit Court (Brisbane).

The case brought allegations centring on whether four drivers were engaged as contractors or were actually employees.

The FWO 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.

But 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.

“The contracting parties were not the individuals themselves in most cases but were entities set up by the drivers for their own purposes,” the judge said.

“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 respondent was offering engagement as a contractor.

“There is no suggestion that the contracts are a sham.”

In a recent media statement, Avert Logistics managing director Rick Boske said he was extremely elated and relieved after the ruling.

“Avert has always, and continues to take pride in honest, legal and trustworthy business practices,” he said.

In an email to sister publication ATN and social media post, Boske said he can finally breath again.

He said many industry colleagues told him to just pay the drivers want they want because it was cheaper than fighting the allegations in court.

“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 per cent 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”
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