Owner Drivers and Forestry Contractors Regulations 2017

Fair business dealing requires parties to exchange information about their changed plans and dealings that may have an impact on the other party's business. This exchange of information should be ongoing throughout the relationship, and not just at the time a contract is entered into or renewed. Sections 31(2)(h) and 32(2)(h) of the Act provide that a factor to be considered in determining whether a hirer or a contractor has acted unconscionably is if that party unreasonably fails to disclose to another party proposed conduct that might affect the other party's interests, or does not disclose any risks that that party should have foreseen would not be apparent to the other.

Guidance

If a hirer or contractor is planning or has experienced changes to the way they conduct their business that may significantly affect the business of another party, they should inform the other party of those planned changes or changes as soon as reasonably practicable. A failure to do so is likely to constitute unconscionable conduct for the purposes of sections 31 and 32 of the Act.

However, a party is not obliged to disclose any incomplete proposal or negotiation, or any trade secret or commercial-in-confidence matter.

Example 7.1 to Sch. 1 Pt 2 cl. 7 amended by S.R. No. 4/2021 regs 7(c), 10.

Example 7.1

Alf's hirer is a small freight forwarder who has 2 major clients. One of those clients has just appointed a receiver, and it appears likely that the hirer might only get paid 20 cents in the dollar on debts it is owed. The hirer already owes Alf for more than 20 days' work. The hirer should inform Alf immediately of the development and discuss how they will deal with the situation. Either party could seek the assistance of the Small Business Commission.

Example 7.2 to Sch. 1 Pt 2 cl. 7 amended by S.R. No. 4/2021 reg. 7(c).

Example 7.2

Kolya worked for a freight company that did most of its work for a chain of homeware stores. After discussing his plans with his hirer, Kolya invested in a new B Double and entered a 5-year finance contract. Kolya wasn't told that the contract between the hirer and the chain of homeware stores was up for renewal. The contract wasn't renewed, Kolya lost the work and was stuck with the new vehicle and payments. The company should have told Kolya that the contract with the customer was not yet secured, particularly knowing that he was buying a new vehicle in reliance on secure work. Kolya could notify a dispute to the Small Business Commission.