Yes Assist found to be part of insurance industry


Yes Insurance fails to divorce trucking support division from award in question

Yes Assist found to be part of insurance industry
The Federal Circuit Court found against Yes Insurance

 

Yes Insurance Group has lost a Federal Circuit Court hearing argument that its Yes Assist assistance and recovery service to the trucking industry is not covered by the insurance award.

The ruling is part of a case the Fair Work Ombudsman’s office brought against Yes Insurance over a Yes Assist employee after Yes Insurance failed to comply with a 2020 compliance notice.

That contravention saw a Yes Insurance director roped into the proceedings.

 In seeking to stave off the ruling, Yes Insurance argued that, while it was part of the insurance industry, Yes Assist is in the roadside assistance and recovery service industry as that is the service it provides to the trucking industry. It argued that its service is similar to that which the Royal Automobile Club of Victoria (RACV) offers motorists.

However, Judge Karl Blake found that the structure of its offering made the distinction untenable.

"Truck operators pay Yes Assist a ‘regular fee’," Blake observed.

"In exchange for that fee, the truck operator receives assistance if a truck breaks down. It is implicit (if not express) in . . . evidence that a truck operator can only receive the benefits from Yes Assist if a truck breaks down. The level of assistance provided to the truck operators depends on the amount of the regular fee (or the type of membership) the truck operator has paid or holds.

"At this point, it is worth observing that what is described starts to resemble a form of insurance. The ‘regular fee’ or ‘membership’ is the premium. The benefits of Yes Assist are only available in the event of a specified contingency (truck breakdown). The benefits to which a truck operator has access depends on the level of the ‘regular fee’ paid or membership held. That is not unlike many insurance products - health insurance, car insurance and travel insurance to name but a few, all offer different levels of benefits depending on the level of premium the customer is prepared to pay.

"The question then arises, having regard to the various elements of ‘insurance’ noted earlier, whether Yes Assist is taking on some liability that ordinarily falls on the truck operator, and whether Yes Assist is providing compensation or some other benefit to truck operator. ‘Liability’ is defined in the Macquarie Dictionary to mean ‘an obligation, especially for payment’. There is little doubt, in my view, that Yes Assist assumes an obligation for various matters when a truck breaks down that the truck operator would otherwise be responsible for if the operator had not purchased the Yes Assist product."

Blake also noted that there was no evidence given that Yes Assist actually provides roadside services.

In his mind, the RACV argument failed in part because "it is well-known that its roadside assistance service complements its other insurance offerings such as motor vehicle insurance". 

A half-day penalty hearing was set down for April 1.

 

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