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A misclassification of drivers as independent contractors has led to the Fair Work Ombudsman commencing legal action against a Queensland transport company.
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FWO signals intent on contractor misclassification with legal action
06 January 2020
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Boske Road Transport Pty Ltd will face the Federal Circuit Court after the Fair Work Ombudsman alleged that it misclassified four drivers as independent contractors, when they were in fact employees, and underpaying them $63,803.
Boske, which engages drivers out of its main depot in the Brisbane suburb of Slacks Creek to deliver packages, has been purported to engage the four delivery drivers as independent contractors for various periods between March 2016 and August 2018.
The workers drove vans owned by the company, wore company uniforms and were required to work at days and times set by the company.
The FWO alleges that the drivers were underpaid as they were in fact employees covered by the Road Transport and Distribution Award 2010, and for one worker in relation to a period of long-distance work, the Road Transport (Long Distance Operations) Award 2010.
It is alleged three of the workers were underpaid hourly overtime rates and public holiday rates, and not paid for any annual or personal leave. The long-distance driver, who had the largest alleged underpayment, was also allegedly underpaid through failures to pay for loading and unloading duties and to meet a cents-per-kilometre entitlement.
Fair Work Ombudsman Sandra Parker said that the regulator will be cracking down on companies that misclassify employees as independent contractors.
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“If employers misclassify employees as independent contractors and pay flat rates that undercut entitlements, they face serious consequences such as court action, hefty back-payment bills and penalties,” Ms Parker said.
“Businesses who need information on whether an employment relationship exists should contact us.”
In addition to penalties, the FWO is seeking court orders requiring Boske to rectify all underpayments with interest and pay all related superannuation entitlements.
Fair Work Inspectors commenced an investigation into the company after receiving requests for assistance from the employees.
Alleged underpayments of individual drivers ranged from $7,460 to $32,486.
A first directions hearing is listed in the Federal Circuit Court in Brisbane for 22 May 2020.
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