Owner-Drivers (Contracts and Disputes) Act 2007

In considering for the purposes of sections 30(2)(l) and 31(2)(k) whether a term of an owner‑driver contract is an unfair term, the Tribunal may have regard to the following —

whether the term causes a significant imbalance in the parties’ rights and obligations arising under the contract;

whether the term is reasonably necessary in order to protect the legitimate interests of a party;

whether the term would cause significant detriment (financial or otherwise) to a party if it were to be applied or relied on;

whether the term provides for the payment by the hirer to the owner‑driver of the guideline rate;

the intelligibility of the contract generally, and of the term in particular;

the extent to which the term, and its legal and practical effect, was accurately explained to a party;

the extent to which a party understood the term and its effect before the term was agreed to;

whether or not it was reasonably practicable for a party to reject, or negotiate for a change to, the term before it was agreed to;

the relationship of the term to other terms of the contract;

whether a party obtained independent legal or other expert advice before agreeing to the term;

whether, at the time the term was agreed, a party knew, or could have found out by asking, that the term would cause the other party hardship;

whether the term is usually found in owner‑driver contracts of that kind;

the justification for the term;

whether the term is harsh or oppressive;

whether the term is inconsistent with any part of the code of conduct, whether or not that part of the code imposes duties or obligations on a person or prohibits a person from engaging in certain conduct.

For the purposes of subsection (1)(d), a term of an owner‑driver contract that provides for the payment by the hirer to the owner‑driver of less than the guideline rate is presumed to be unfair, unless the hirer proves otherwise.

In considering for the purposes of sections 30(2)(l) and 31(2)(k) whether a term of an owner‑driver contract is an unfair term, the Tribunal must not have regard to any unfairness arising out of circumstances that were not reasonably foreseeable when the parties agreed to the term.