Supreme Court of the NT|1986-02-25|Before: Rice J, Mr J

Christofis v Tomazos [1986] NTSC 4; 38 NTR 8; 83 FLR 183 (25 February 1986)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Rice J.(1) CWDS Appeal - worker's compensation - whether appellant a "workman" within the meaning of the Act - no specific agreement with respondent - appellant paid flat rate per house tiled - application of common law test - contract of service or for services - "control" test - "integration" test - other factors in aid of test to be applied. Workmen's Compensation Act s.6 Cases applied: Australian Mutual Provident Society v Chaplin and Anor. (1978) 18 ALR 385 Uranez (Aust.) Pty. Ltd. v Hale (1980) 54 ALJR 378 Cases referred to: Bank voor Handel en Scheepvaart N.V. v Slatford (1953) QB 248 at 295 Brodribb Sawmilling Co. Pty. Ltd. v Gray and Anor [1984] VicRp 25; at 342 Dietrich v Dare Federal Commissioner of Taxation v Barrett ; Humberstone v Northern Timber Mills ; Narich Pty. Ltd. v Commissioner of Payroll Tax at 32 Performing Rights Society Ltd. v Mitchell and Booker Ltd. Queensland Stations Pty. Ltd. v The Federal Commissioner of Taxation ; Ready Mixed Concrete (South East) Ltd. v Minister of Pensions and National Insurance at 524 Stevenson Jordan and Harrison Ltd. v MacDonald and Evans Stevens v Brodribb Sawmilling and Ors. (unreported High Court decision) 13 February 1986 Zuijs v Wirth Brothers Pty. Ltd. ; HRNG DARWIN #DATE 25:2:1986 Counsel for the appellant: Mr J. Waters Solicitor for the appellant: Waters, James and

O'Neil Counsel for the respondent: Mr T. Riley Solicitor for the respondent: Mildren, Silvester and

Partners ORDER Appeal dismissed with costs against appellant. JUDGE1 This matter came before me by way of appeal from a decision and determination of the Workmen's Compensation Tribunal (as it then was), constituted by Miss S. Thomas S.M. at Darwin, made and delivered on 7 August 1985. By agreement between counsel the matter proceeded upon the transcript of the proceedings before the Tribunal and its reasons for determination. Certain documents which constituted the exhibits in the proceedings before the Tribunal were also tendered by consent during the course of the appeal. No further evidence was presented to this Court. 2. By Act No. 47 of 1984, which came into effect on 11 September 1985 the Workmen's Compensation Act (hereinafter referred to as "the Act") became the Workers' Compensation Act and all references therein to a "workman" were amended to read "worker". Further, the Workmen's Compensation Tribunal became the Workers' Compensation Court. For the sake of consistency, however, I will use the terminology of the old Act throughout these reasons for judgment. 3. In his Notice of Motion the appellant raises four grounds of appeal, namely:- "... that the Tribunal erred:- (A) In finding that there was no intention by the parties to create an employer/employee relationship for all practical and legal purposes. (B) In finding that on the balance of evidence that it was not a term of the agreement between the parties that the applicant was to be available for work by the respondent as and when they needed him. (C) In finding that the agreement was not one which contemplated a lengthy working relationship between the parties. (D) In finding that not withstanding her finding as to the extent of control exercised at all material times by the respondent over the applicant that such control was not the decisive test as to whether the applicant was a workman for the purpose of the Workmen's Compensation Act." 4. Put simply, the appellant challenges the Tribunal's mixed findings of fact and law that the appellant is not a "workman" within the meaning of the Act. 5. It has been established that the question to be determined contains a mixture of fact and law, the resolution of which depends peculiarly upon the facts of the particular case. Accordingly, it is in my view necessary to set out in detail the evidence relating to the relationship and dealings between the parties. Mr Waters, of counsel for the appellant, did not in any significant respect seek to challenge the Tribunal's summary of the evidence contained in its reasons for determination. Indeed, Mr Waters conceded that the evidence of the respective parties coincided in almost all respects. I shall adopt the most convenient course and set out hereunder those parts of the Tribunal's review of the evidence and its findings which relate to the appellant's contractual relationship with the respondent. Mr Waters did go behind these findings and referred to the transcript by way of emphasis and in connection with particular submissions that he made. I shall, where relevant, adopt the same course. 6. The Tribunal summarized the evidence as follows:- "DIMITROS CHRISTOFIS gave evidence that he is a

tiler by occupation involved in this trade since 1973. Mr Christofis started working for Tomazos Brothers about April or May 1982. Mr Tomazos would show him the houses he wanted tiled and they would then agree on a rate. Mr Christofis bought his own tools to each job but Mr Tomazos provided the equipment required on the site. Mr Christofis and Mr Tomazos had agreed on a price of $220 per flat and that Mr Christofis was to tile 21 units. Mr Christofis then tiled 40 houses for Mr Tomazos at $230 per house. Mr Christofis had then tiled a further 20 houses at $250 per house and then another ten houses at Palmerston $300 per house. And then a further 20 houses at Karama at $300 per house. During the installation of the tiles in these houses Mr Christofis sustained an injury. It is not in dispute that Mr Christofis was injured when he stood on the running board of a truck driven by Mr Michael Tomazos. Mr Tomazos apparently unaware of Mr Christofis's presence drove off and Mr Christofis stepped off the running board onto the ground. The vehicle was travelling at a sufficient speed at that time to cause

him to land awkwardly on his left leg. The impact with the ground twisted his leg around and he suffered a spiral or twisting fracture to the upper third of his left femur. During each of the jobs Mr Christofis had carried out for Tomazos Bros Pty Ltd, Mr Tomazos would come and say this has to be done this way, tiles have to be put this way, this is what the plan says, and Mr Christofis would do as he was told. If the tiling wasn't done to specific plans Mr Christofis would have to go back and rectify the mistake. Sometimes he had to move from one job to another before the earlier job was completed. When Mr Christofis had finished a contract for Mr Tomazos, he would apply for work elsewhere until the houses were ready for him to do for Mr Tomazos. When Mr Tomazos had work he had to go back immediately otherwise he would get the sack. They had an agreement that Mr Christofis would always be available when Mr Tomazos needed him. Mr Christofis was the only tiler employed by Mr Tomazos. He was paid fortnightly, he used to tile 5 houses per fortnight, during the period of his employment he had not taken any time off on holidays. Mr Christofis was paid approximately $1200 per fortnight and during the two year period he was employed by Tomazos Bros, earned approximately $20,000. During this period Mr Christofis received payments from other contractors when he was in between jobs with Tomazos Bros. As soon as Mr Tomazos had his houses ready Mr Christofis would leave what other job he was doing and go back to working on Tomazos Bros' houses. During the two year period Mr Christofis worked for Tomazos Bros he also worked for the Housing Commission, TandT Builders, but this was only when Tomazos Bros'

houses were not ready for tiling. Mr Christofis worked the normal tradesmen's hours 7.30 am to 5.30 pm 6 days a week. Following the accident Mr Christofis was taken to Darwin Hospital and was 4 months away from work. He had supervised his brother-in-law who did the work as a tiler instead of him. Tomazos Bros. paid his brother-in-law. Pay books kept by Mr Christofis were tendered Exhibit 1. Mr Christofis returned to work for Tomazos Bros. in October 1984, he had difficulties because a piece of steel had been put in his leg and this caused some pain. He was off work from the 22nd November, 1984 till the 7th January 1985 when the pin was removed. Prior to going off work for the removal of the pin he was working for TandT Builders, earning $120 a day. He has worked as a tiler since 2nd January 1985, presently employed by Antonio Tomaros and Gerry Reissis at $120 per day. He is still experiencing some difficulties with his leg. When Mr Christofis worked for Tomazos Bros. as a tiler he worked alone and never had any employees or apprentices. Under Cross-examination. Mr Christofis stated that he

cannot read builders plans but does have a little knowledge to understand them. Once he had been shown by Mr Tomazos how to tile a certain type of house, he knew how to do all the others that were exactly the same and didn't have to be shown. Practically every day one of the Tomazos Bros. would come and inspect his work. The Supervisor from the Housing Commission came every day to check everything that was being done to the houses. If the supervisor didn't pass the tiling, Mr Christofis had to fix up any errors, no extra money was paid for this and Tomazos Bros. provided the materials. The Inspector from the Housing Commission would tell the Tomazos Bros. of any faults, the Tomazos Bros. would come and tell Mr Christofis if it was faulty and he would have to rectify it. Mr Christofis stated he was paid a gross amount by Mr Tomazos and from this had to pay his own tax. This was how Mr Tomazos paid all his employees. In September 1983 Mr Christofis obtained an assessment number from the Taxation Department and in compliance with the law, Tomazos Bros. retained 10 per cent of his pay. Part of his agreement with Tomazos Bros. was that if he was doing another job and they wanted him to work for them, then he would leave the other job immediately and work for them. If he didn't go back someone else would get the job. Tomazos Bros. would always give 2-3 weeks notice of when they required his services. Tomazos Bros. did not give any supervision as to the method by which he performed his work and after initially explaining what they required, the only supervision was if there was a change in the type of tiling to be done, or if they required the work to be done so that other workers could get into the building. Mr Christofis fixed his own lunch breaks at times when the job allowed for a break. When Mr Christofis returned to work he was working in partnership with his brother-in-law. They worked together and finished off the houses. The respondent called evidence from Mr Antonio Tomazos and Mr John McDonald. Antonio Tomazos gave evidence that he is a Director of Tomazos Brothers Pty Ltd. The applicant Mr Christofis first did work as a tiler for his Company in 1983. Mr Tomazos had discussed with Mr Christofis the terms of employment. They had agreed on a flat rate per house. The respondent was to provide the materials, the tiles, the glue and other adhesives, Mr Christofis was to provide the tools. The houses were fairly similar to each other in that although of different type more or less the same amount of work was involved. The actual lay-out of tiles was similar. Mr Tomazos would read the drawings, see what sort of tiles were involved in every house and explain to Mr Christofis what he was going to do. Mr Christofis decided how to lay the tiles to comply with the plans. Before paying for each job Mr Tomazos checked with the supervisor from the Housing Commission that the job was allright. Mr Tomazos would call in 2 or 3 times a day to see that everything was allright and a supervisor from the Housing Commission would come to inspect the work every day. They had an agreement that if there were any errors made in the tiling Mr Christofis had to fix it and Mr Tomazos would provide the materials. Prior to September 1983 Mr Christofis paid his own tax after that date, with the new law Mr Tomazos withheld ten per-cent. There was no agreement that Mr Christofis work solely for him and he was free to go anywhere he liked. He was not required to work any set hours and it did not matter how long a job took as long as it did not hold up anyone else. If Mr Christofis was in front, then he could go and work for anybody else. Mr Christofis had an accident and subsequently returned with his brother-in-law to do tiling work for the respondent Company. The brother-in-law was doing the heavy work. Mr Tomazos paid them so much per house. The payments were made initially to Mr Christofis' brother-in-law and then when Mr Christofis obtained a file number from the Taxation Department they were paid to Mr Christofis. Before the accident Mr Tomazos paid Mr Christofis fortnightly, calculated on how many houses had been completed. Mr Tomazos did not pay Mr Christofis any holiday pay, any tool allowance, a site allowance or a dirt allowance. Apart from the materials to do the job, Mr Tomazos did not provide anything else. Mr Christofis ceased working for Tomazos Bros. because they could not agree on a new contract price for a block of 8 houses. The Company obtained someone else to do the tiling. It was not a term of any agreement that Mr Christofis was to be available to work for the Company as soon as they neeeded him. The Company would give Mr Christofis one or two weeks notice of when they wanted him to start a contract and if he was not available they would find someone else. Under cross-examination Mr Tomazos stated he had carpenters and plumbers employed in the same way as Mr Christofis, the only difference being the plumbers supplied all the material. The labourers were employed at so much per week. They were paid a gross amount. At the beginning of each contract in respect of a batch of houses, Mr Tomazos would explain where the tiles were to go and after that they were all pretty much the same. If a problem arose in a house Mr Christofis had completed, he was expected to return as soon as possible to fix it up. Mr Tomazos directed which house within the contract block Mr Christofis was to work on. Because of the continuity of work during 1982 and 1983 Mr Tomazos was able to keep the team of men who worked for him fully occupied. John David McDonald gave evidence that he is a Chartered Loss Adjuster. On the 13th July 1983 he had a conversation with Mr Christofis at his homne. Mr Christofis stated that he had been working for his brother and during that time Paye tax had been deducted. He had left there two years previously and had not paid tax because he could not afford to pay tax. Under cross-examination Mr McDonald agreed that Mr Tomazos had told him it wasn't his habit to ask for insurance covers from persons who appeared on his site, but that nevertheless Mr Christofis was a form of independent contractor. Mr McDonald gave evidence Mr Tomazos had agreed Mr Christofis' working hours were 7.30 am to 5.00 pm Monday to Saturday inclusive." 7. The Tribunal made the following specific findings of fact:- 1. There was no expressed intention of the parties as to the type of relationship to be created except that the appellant was to be paid a flat rate per house. 2. Each house was subject to inspection by a supervisor of the Housing Commission.

The appellant had to fix any errors or unsatisfactory aspects in tiling following inspection by a supervisor of the Housing Commission without any additional payment to himself but the respondent paid for the materials.
The Tribunal accepted the evidence of Tomazos: (1) that there was no agreement that the appellant work solely for him; (2) that the appellant was free to go anywhere he liked; (3) while a project was in progress, if the appellant was ahead in his work he could go and work for someone else; (4) that it was not a term of any agreement that the appellant was to be available to work for the respondent as soon as the respondent needed him; (5) that the respondent would give the appellant one or two weeks' notice of when the respondent wanted him to start a contract, and if he was not available the respondent would find someone else; (6) that the appellant was not required to work any fixed hours; (7) because of the continuity of work during 1982 and 1983 Tomazos was able to keep the team of men who worked for him fully occupied.
The respondent did not pay the appellant any holiday pay, any tool allowance, site allowance or a dirt allowance.
Apart from providing the materials to do the job the respondent did not provide anything else.
The relationship between the parties terminated when they were unable to agree on a flat rate per house for a Housing Commission project.
At the time of his accident the appellant had worked for the respondent for approximately fifteen months and resumed working for the respondent after his accident.
Between building site projects becoming available to the respondent the appellant did take on work from

other employers. The appellant, however, spent the greater portion of his time "in employment with" the respondent. (My parenthesis.) 10. The appellant tiled each (sic.) of the houses in particular Housing Commission projects that the respondent had contracted to build. When one particular project of 40 or 20 houses was completed, the appellant obtained work elsewhere, and when notified by the respondent the next project was ready to be started, returned to the respondent. 11. The appellant was "employed" as a tiler and after a brief explanation of the plans per block of houses about where the tiles were to be laid, there was very little supervision or control over the way in which the appellant performed his work. Each house was apparently tiled in the same manner, the way it was done being left to the appellant's own expertize. (My parenthesis.) 12. Overall the respondent did exercise a fair degree of control as (its) objective was to complete the construction of blocks of houses to the satisfaction of the Housing Commission. This involved co-ordinating the work of teams of tradesmen and labourers, including builders, plumbers and carpenters to complete the finished product. 13. That the appellant in fact worked from 7.30 am to 5.00 pm 6 days a week. (The evidence is that he worked until 5.30 pm). That the reason for these hours seems to be that the appellant would not hold up other tradesmen. 14. The Tribunal accepted the evidence of the appellant that although there was no requirement by the respondent that the appellant work any fixed hours, he was required to work at such a rate that he did not hold up work to be performed by the other tradesmen such as plumbers and carpenters. 15. Although no hours of work as such were fixed, the appellant was required to work to an apparently tight schedule. 16. There did not seem to have been any attempt to tie the appellant to the respondent. 17. That the appellant provided all his own tools. 18. Prior to his accident the appellant did not sub-contract. No such right was ever discussed between the parties. 19. Following his accident when the appellant resumed work, his brother-in-law worked with him to do the heavy work. Initially payment was made to his brother-in-law. After September 1983, when in compliance with the new law the appellant obtained an assessment number from the Taxation Department, the respondent paid the appellant. 8. Turning to the aspect of control, while the Tribunal found that the respondent appeared to have a considerable amount of control, I interpret its findings in that regard as being related to the need to co-ordinate tradesmen generally and not to the appellant specifically, especially as the Tribunal qualifies its findings on this topic by saying:- "To this extent it would appear the Respondent Company had a considerable amount of control, a control as to when and where rather than how." (My emphasis) 9. The Tribunal did not expressly state in which way its findings supported either contention, but acknowledged that there was evidence capable of supporting both arguments. It concluded by saying that on balance the appellant fits into the category of an independent contractor and that he has failed to satisfy it on the balance of probabilities that he is a workman within the meaning of the Workmen's Compensation Act and that accordingly the application must fail. 10. Mr Waters did not seek to develop paragraphs (A) to (D), set out above, as separate and distinct grounds of appeal. The issue for determination is whether the appellant is a "person who has entered into a contract of service" with the respondent within the terms of the definition of "workman" contained in s.6 of the Act. 11. The term "contract of service" referred to in s.6 imports the common law test of an employer-employee relationship: See for example Dietrich v Dare (1980) 30 ALR 407. The Act extends the common law concept in certain respects. Before the Tribunal, the appellant relied on the extended definition of "workman" contained in s.6(2) of the Act. This ground was abandoned on appeal. Accordingly, this appeal falls to be resolved by an application of the common law test. 12. In Performing Right Society Limited v Mitchell and Booker (Palais de Danse) Limited (1924) 1 KB 762 McCardie J. considered the tests for deciding whether a person is a servant or an independent contractor and made the following observations at p 767:- "It seems, however, reasonably clear that the final test, if there be a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleged to be a servant. This circumstance is, of course, one only of several to be considered, but it is usually of a vital importance. The point is well put in Pollock on Torts, 12th Edition, pages 79, 80: 'The relation of master and servant exists only between persons of whom the one has the order and the control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs or at any moment may direct the means also, or, as it has been put, 'retains the power of controlling the work': see per Crompton J. in Sadler v Henlock 4 E and B 570 at 578. A servant is a person subject to the command

of his master as to the manner in which he should do his work:... An independent contractor is one who undertakes to produce a given result but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.'" 13. The so-called "control test" has been applied in Australia in a series of decisions of the High Court including Queensland Stations Pty. Ltd. v The Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539 and Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389. There is a contrast to be found in these cases between the approach of Latham C.J. and Rich J. and that of Dixon J. (as he then was). The former clearly embraces the concept of control. (See, for example, at pages 545 and 548 to 549 of the Queensland Stations Case) However, in the same case, Dixon J. seems to approach the problem by balancing a number of considerations rather than by applying a single and exhaustive test. The following passage appears at page 552 of his judgment in the Queensland Stations case: "In considering the facts, it is a mistake to treat as decisive a reservation of control over the manner in which the droving is performed and the cattle are handled. For instance, in the present case the circumstance that the drover agrees to obey and carry

out all lawful instructions cannot outweigh the countervailing considerations which are found in the employment by him of servants of his own, the provision of horses, equipment, plant, rations, and a remuneration at a rate per head delivered." His Honour then cites authority for the proposition that a reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract. 14. In Humberstone's case Dixon J. said at page 404. "For a case like the present, the test of the existence of the relation of master and servant is still whether the contract placed the supposed servant subject to the command of the employer in the course of executing the work not only as to what he shall do but to how he shall do it. The regulation of industrial conditions and other laws have in many respects made the classical tests difficult of application and it may be that ultimately they will be re-stated in some modified form..." Despite his reservations regarding the classical tests, Dixon J. continues as follows: "The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in

the employer so that he was subject to the latter's order and directions." (My emphasis) (At page 404 to 405.) 15. Thus Dixon J. emphasises that it is not the fact of control which is important but the ultimate legal authority to control which, as the classical test stood at that time, was a vital factor. This gloss upon the control test becomes significant when one considers the case of skilled employment. For example, in Zuijs v Wirth Brothers Pty. Ltd. [1955] HCA 73; (1955) 93 CLR 561, an acrobat and trapeze artist was engaged by circus owners. He was required to perform with a companion and to march in the grand parade. He received a weekly payment. The engagement was for an indefinite period. The Court, at page 570, rejected the notion that the nature of the task which a person had contracted to perform could be the determinant of the nature of the relationship:- "... a false criterion is involved in the view that if, because the work to be done involves the exercise of a particular art or special skill or individual judgment or action, the other party would not in fact control or interfere in its performance, that shows that it is not a contract of service but an independent contract." 16. Referring to the case of Wardell v Kent County Council (1938) 3 All ER 473 the Court referred by way of example to nursing, professional football and, significant in the present context, cabinet making, as occupations which can be undertaken as an employee or servant irrespective of the level of skill involved. The Court at p 571 observed as follows: "The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be room for it, if only in incidental or collateral matters. Even if Mr Phillip Wirth could not interfere in the actual technique of the acrobats and in the character of the act, no reason appears why the appellant should not be subject to directions in all other respects." (My emphasis) 17. Mr Waters submitted that on the basis of this authority the appellant is a workman: his work involves a degree of skill and expertise rendering it impractical for the respondent to exercise any direct and close supervision of the tiling work performed. It was submitted that the existence of this skill does not preclude the existence of an overriding legal authority on the part of the respondent to so direct the work if he chose to do so. In Mr Waters' submission the appellant was not simply engaged to produce a given result in the manner he saw fit but was instead engaged to do work at the direction of the respondent even if the respondent, in reality, could only exercise such authority in relation to incidental matters and in relation to the final appearance of the work done. Mr Waters laid particular stress upon the following passage in the evidence:- "MR WATERS: Mr Christofis, during all of these contracts that you have described to us at northern suburbs and Palmerston and Karama, can you tell us whether there was any supervision of you by Tomazos Brothers, the company? --- Yes. What did that supervision consist of?---Yes, Mr Tomazos would come along and say to me, 'Well, look, this job

this has to be done; you have to do this this way; you have to put these tiles like this. This is what the plan says. You must work there. You must do this and you must do that' and I do exactly as he tells me. Were there occasions when the work was not done to their satisfaction?---Yes, if there was anything that wasn't done to specific plans Mr Tomazos would tell me that it was wrong and I'd have to go back and rectify my mistake. Mr Christofis, were there occasions when you had to move from one job to another before the earlier job had been completed?---Yes, there was. Can you recall such an incident?---Yes, there were occasions when I was working on a particular house and Mr Tomazos would come along and say, 'Oh look, the tiles are broken in the kitchen. You have to come and fix them immediately', and I would leave what I was doing and go and fix them and go back to the job I was doing first."

Mr Waters also pointed to passages of the evidence relating to the appellant's inability to read building plans and the need for principals of the respondent company to actually go to the work site to point out to the appellant the areas to be tiled. The appellant also states that an officer of the respondent company would inspect his work almost every day. It is apparent from the evidence that the direction as to the placement of the tiles did not need to be given in relation to each house included in each series of houses to be tiled as the houses were largely of a uniform design.
In the appellant's submission the evidence reveals a sufficient degree of de facto and, more importantly, in view of the foregoing remarks of the High Court in the Zuijs case, de jure control over the work of the appellant to require the work relationship to be determined as being that of employer-employee. It was submitted that this is so even though the appellant was an "expert tiler" and did not receive, and in the practical sense, could not receive from the respondent instructions in relation to the actual process of affixing tiles to the wall.
In my opinion, however, in the light of recent authority, the matter cannot be finally determined in this way, even upon a view of the facts most favourable to the appellant. Before turning to the most recent cases, I will deal briefly with a further submission made on the appellant's behalf.
Mr Waters referred to what has become known as the "integration test" first proposed by Denning L.J. in Stevenson Jordan and Harrison Ltd. v MacDonald and Evans (1952) 1 LTR 101 and re-affirmed by himself in Bank voor Handelen Scheepvaart N. V. v Slatford (1953) 1 QB 248 at p 295. The so-called test is encapsulated at page 111 of the former decision:- "One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of a business, and his work is done as an integral part of business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it."
Mr Waters pointed to the high degree of complexity inherent in the construction of a house or home unit. Tradesmen possessing a wide variety of skills must come to the job according to a strict schedule. Each is dependent upon completion of certain tasks by other tradesmen before they can satisfactorily and economically complete their own tasks. Mr Waters pointed to the passages in the evidence which reveal that the appellant was the only tiler engaged by the respondent. He further pointed to the fact that the appellant agreed to be available to the respondent immediately upon demand even to the extent of being required to leave other work if necessary. He was, in Mr Waters' submission, "part and parcel" of the respondent's organisation and not merely accessory to it. Without him the whole complex scheme would grind to a halt.

restate the question rather than providing an answer to it may be open to doubt." 25. I turn now to a consideration of the more recent decisions. First of all, there is the decision of the Privy Council on appeal from the Full Court of the Supreme Court of South Australia in Australian Mutual Provident Society v Chaplin and Anor (1978) 18 ALR 385. The issue was dealt with quite briefly by Lord Fraser of Tullybelton in the following passages appearing at p 387: "Their Lordships are content to adopt the following passages from the judgment of the learned Chief Justice in the Supreme Court, in which Hogarth J. concurred, as a correct summary of the law for the present purpose: 'How, then, is one to distinguish between a contract of service and a contract for services? The older test was simple. It all turned on the right to control the manner of doing the work. If the alleged employer possessed such a power the contract was a contract of service, not a contract for services: if not, then not. That power was both a necessary and sufficient condition of a contract of service.' After referring to a number of decided cases, the Chief Justice went on: 'It seems to me, then, that at the present time there is no magic touchstone. The court has to look at a number of indicia and then make up its mind into which category the instant case should be put. It is a question of balancing the indicia pro and con ... But the power of control over the matter of doing the work is very important, perhaps the most important of such indicia.'" 26. These passages clearly indicate, in my view, a shift in emphasis. It is now necessary to take a more wide-ranging view of the relationship in order to categorise it. Control is important and in many cases decisive but it is only one of a number of indicia to be considered. See also the decision of the Privy Council in Narich Pty Ltd v Commissioner of Payroll Tax (1984) 58 ALJR 30 at p 32. 27. When adopting this approach it is, in my view, important to bear in mind the remarks of Lord Fraser in the A.M.P. Society case which precede the passage quoted above at p 387:- "The appeal does not raise any question of law. A number of decided cases was referred to in the course of the argument but, except on certain particular points to be mentioned later, their Lordships consider that these cases are only useful as examples of facts which have been treated by the courts as indications for or against a contract of service." 28. The remainder of the judgment in that case is taken up with the detailed analysis of the express contractual and factual aspects of the relationship between the parties in that case. So too are the large number of cases which follow the A.M.P. Society case. It would be an unhelpful exercise to refer in detail to all of these cases and to draw from them a list of factors which are to be regarded as important or even vital to the determination of those cases. They were all simply decisions upon the facts. They serve only to highlight the sorts of things that the tribunal of fact should look to when reaching a conclusion upon the facts of a particular case. 29. I will proceed to consider aspects of the parties' relationship under a number of headings. In the present case there is no suggestion of any expressed intention between the parties or of a written contract. (a) Control: 30. I have already referred in detail to the evidence on this point. The respondent would physically point out to the appellant where to place the tiles. The appellant could not read builder's plans. To a large extent, however, the dwellings were of standard design and the process of pointing out the work to be done was repeated only where a variation existed. This process involves, in my opinion, control over what was to be done but not control over how it was to be done. 31. As Brooking J., being one of the majority in the Full Court of the Supreme Court of Victoria, said in Brodribb Sawmilling Co. Pty. Ltd v Gray and Anor. [1984] VicRp 25; (1984) VR 321 at p 342, "Whether the men concerned are servants or independent contractors, their work has to be defined for them by some person or persons, and the obvious candidate for that position is the employer himself ... just as a sub-contractor who is told by the builder to paint one room but not another is having the work to be done defined for him." 32. Incidentally, on 13 February 1986, the High Court (Mason, Wilson, Brennan and Dawson JJ., Deane J. dissenting) dismissed an appeal from the decision of the Full Court in that case which concluded that the appellants were both independent contractors. 33. The respondent evidently inspected the work on a daily basis. However, the evidence on this point is to some extent equivocal and it appears that many of these inspections were conducted by the Housing Commission Inspector. Much of the corrective work ordered by the respondent as a result of these inspections was done in order to comply with the Housing Commission's direction. It is perhaps not without significance that although the cost of materials for corrective work was borne by the respondent, the appellant bore the labour cost himself. 34. The evidence is that the respondent did not control the actual process of affixing tiles to the walls, the mixing of glues and other activities which were part of the tiling process. 35. Although, in my opinion, the evidence relating to control tends in favour of the view that the appellant is an independent contractor, there are some aspects of it which are equivocal and the resolution of the present appeal will be best served upon a consideration of other indicia as well. (b) The Duration of the Relationship. 36. In the present case, it appears from the appellant's own evidence that separate contracts were entered into in relation to each of the four sets of dwellings referred to in the Tribunal's review of the evidence. In each case the job was discussed and a "price" (I use the appellant's own term) per house was agreed. It is my opinion that at the completion of each set of dwellings the contractual relation between the parties, however it may be designated, terminated with a fresh contract resulting from the subsequent negotiations. At the time of the injury complained of, the appellant was preforming a distinct contract for the tiling of 20 houses at Karama at a price of $300 per house. The relationship between the parties later came to an end upon their failure to agree on a price for another lot of dwellings. 37. This finding tends to suggest that the appellant was engaged to produce a result; to tile a number of dwellings. The contrast is to be found in a case where the contract is for an indefinite period or even for a period defined by reference to time rather than by the task to be performed. 38. In my opinion this factor militates against the existence of an employer-employee relationship. (c) Nature of Remuneration. 39. The appellant was paid an agreed rate per dwelling for his tiling work. No doubt this arrangement was convenient since the houses were of a standard design. Such an arrangement again suggests the existence of a contract for services, an agreement to produce a given result. As I have noted previously, in cases where corrective work was required, the appellant was paid no extra remuneration. He bore the labour cost of such work but not the cost of materials. (d) Working Hours. 40. It appears that in fact the appellant attended work regularly 6 days per week between the hours of 7.30 am and 5.30 pm. There had never been any discussion between the parties on this point. However those were the hours adhered to in the industry. Both the appellant and Mr Tomazos, in their evidence, stated that regular attendance during these hours was required so that the appellant did not hinder the work of other tradesmen. I do not consider that the appellant was under a legal obligation to attend the work site at these particular hours. The obligation was to produce a result and to fit into the schedule of construction. It just happened that this could be best achieved by regular attendance during the usual working hours. 41. In my opinion this factor in the instant case does not indicate the existence of a contract of service. (e) Acceptance of other employment. 42. The appellant accepted work from other sources during periods when he was not required by the respondent. However, he would leave that alternative employment when required by the respondent. He said that if he did not return immediately the respondent "... would give me the sack". In the light of my views about their contractual relations, however, the appellant's fear of being "sacked" seems to me to be misplaced. In my opinion no contract existed between the parties during the periods between each lot of dwellings. Moreover, there was no agreement between the parties restraining the appellant from seeking other work either during or between his periods of tiling with the respondent. 43. In my opinion, these factors support the existence of a contract for services. (f) Provision of Tools and Materials. 44. It is established on the evidence that the appellant supplied his own tools and vehicle and that the respondent provided the materials. 45. The provision of the vehicle would appear to be of no significance since it played no part in the job the appellant was called upon to do. The fact that he provided his own tools carries the matter no further since it is usual trade practice for a tradesman, be he a carpenter, bricklayer, plasterer, plumber, painter, electrician or tiler, to carry his own tools of trade with him irrespective of the sort of engagement in which he may be involved. 46. The fact that the builder provides the materials for the particular trade adds nothing to the resolution of the problem since a builder, or building owner, may not infrequently find it more economical, and indeed profitable, to provide the building materials irrespective of which tradesmen are engaged and whether as an employee or an independent contractor. 47. In my opinion, there is nothing in the evidence which leans either way. (g) Right to sub-contract or assign. 48. On the evidence the appellant did not engage any other person, whether by way of a sub-contractor or a mere labourer to do any of his tiling work until after the accident. Nevertheless, I consider that while on one view what the appellant did later in this regard is irrelevant for the purposes of determining the relationship existing between the parties at the time of the accident, the better view is that the appellant's actions in engaging his brother-in-law to step-in, so to speak, and help to complete the appellant's remaining tiling contract with the full approval of the respondent, goes in aid of supporting the existence of a contract for services between the appellant and the respondent. As was said in the AMP Society case (supra) at p 391, the power to delegate is an important factor in deciding whether a worker is a servant or an independent contractor. In my opinion, what the appellant did was to make appropriate arrangements for the completion of his contract to tile the remainder of the set number of houses as he was obliged to do under the contract. 49. For his part, the appellant accepted the subsequent arrangements about payment of the contract price in accordance with the change in the law relating to the retention of a percentage of it as a sub-contractor for income tax purposes. (h) Tax arrangements, holiday pay, and allowances. 50. In my opinion, the evidence justifies the finding that the respondent did not deduct any tax from the price agreed to be paid to the appellant which was based on a flat rate per house. Moreover, the evidence establishes that the appellant was paid fortnightly on the basis of completed work with no allowance for progress payments on houses where tiling was incomplete. No allowances were paid or credited to the appellant for any holiday pay, tool allowance, site allowance or any other industrial allowance. 51. In my opinion, these factors go in aid of supporting the conclusion that the appellant was in business on his own account as an independent contractor. 52. I can find nothing in the Tribunal's findings of fact which follow the review of the evidence which are either inconsistent with the established facts or is so improbable that no reasonable person could accept them. (Uranez (Aust.) Pty. Ltd. v Hale (1980) 54 ALJR 378.) Furthermore, in my opinion, there is no error of law or fact disclosed in the conclusion which the Tribunal reached. 53. Overall, I am of the opinion that on the balance of probabilities the indicia against there being a contract of service between the parties at the relevant time outweigh those which suggest there was. Accordingly I am driven to the conclusion that the appellant was not employed by the respondent under a contract of service and is not, therefore, a workman within the meaning of the Act. 54. The appeal, therefore, will be dismissed with costs against the appellant.

Christofis v Tomazos [1986] NTSC 4; 38 NTR 8; 83 FLR 183

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Christofis v Tomazos [1986] NTSC 4; 38 NTR 8; 83 FLR 183 (25 February 1986)

Parties

Cases Cited (10)