A deed of release between the transport company and its employees provided little protection for the employer
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An Adelaide transport company has been ordered by the Industrial Relations Court of South Australia to back pay ten truck drivers a sum of $374,000 representing outstanding wages, superannuation and interest.
The legal action brought by the Fair Work Ombudsman against Atkins Freight Services, which transports bulk petroleum products into the Northern Territory, NSW and Western Australia, also resulted in penalties of $93,000.
Atkins argued that the amount payable to two of the drivers should be reduced because it had entered into Deeds of Release with them even before the Fair Work Ombudsman started legal action.
The company also claimed that a third driver was covered by a Collective Agreement during the underpayment period.
But Justice Richard White found said that the Fair Work Ombudsman was not bound by the Deeds of Release between the company and the drivers.
Since there was no genuine legal dispute between the company and the drivers at the time the Deeds were signed, the Deeds were an attempt to contract out of the company’s obligation to pay the drivers their minimum Award entitlements.
The amount was released to the drivers after Atkins’ appeal was dismissed. The drivers received back payments ranging between $8,012 and $91,566.
The case highlights that the Fair Work Ombudsman has the ability to recover lawful minimum entitlements owed to employees, even where employers attempt to unlawfully contract out of their obligations to pay them
“We carry out enforcement work in the public interest. Any private arrangements that employers make cannot prevent the Fair Work Ombudsman from taking appropriate action, in accordance with our enforcement and compliance and litigation policies,” Fair Work Ombudsman Natalie James said.
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