Damevski v Guidice [2003] FCAFC 252 | Case summary | Zoe

CTHFCAFC

Damevski v Guidice

[2003] FCAFC 252

Federal Court of Australia (Full Court)|2003-05-30|Before: Jennings P, Crawthorne DP, McCusker DP, Thorpe J, Mummery J, Merkel JJ

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At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2003-05-30

Before

Jennings P, Crawthorne DP, McCusker DP, Thorpe J, Mummery J

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[3]

On 14 July 2001 Endoxos held a meeting with all of its staff to discuss a restructure. The appellant received notification of the meeting but did not attend. Two days later, on 16 July 2001, Endoxos wrote to the appellant and indicated that, as had been explained at the meeting, the company was under severe cost pressures and it had decided to abandon its existing employment arrangements and to adopt a contracting system. The employees could participate in this arrangement by becoming contractors to a company called MLC Workplace Solutions Pty Ltd (MLC). It was also indicated that if employees did not wish to become contractors Endoxos would be forced to relinquish its cleaning contracts. It was explained that if that occurred the appellant would lose his job with Endoxos and his employment with any new contractor could not be guaranteed.

[4]

Endoxos' letter of 16 July 2001 included detailed material in relation to the contract proposal. There were formal documents which required completion if the appellant decided to relinquish his employment with Endoxos and to become a contractor to MLC. Apart from the formal documents there was a 16 page booklet produced by MLC entitled 'The Contractors Guide, The Agency Contracting System.' The booklet outlines the relationship between MLC and its contractors and between MLC and its clients, such as Endoxos, to whom it provides labour. The booklet also contains information about the advantages to employees of becoming contractors and deals with loss of income insurance, taxation and other matters.

[21]

Mr Damevski has received no further work from MLC or Endoxos since that date." 22 Prior to and after 19 August 2001, Endoxos provided Mr Damevski with the following: · a van with Endoxos livery, which was maintained and fuelled by Endoxos · shirts and a hat with Endoxos livery · two pairs of trousers · a mobile phone to enable his supervisors at Endoxos to contact him if they required him to alter his starting times · job sheets describing the jobs which Endoxos required him to perform and the starting and finishing time of his shifts · all the necessary equipment required to perform his cleaning duties 23 Prior to and after 19 August 2001, Mr Damevski worked as part of a team directed by a leading hand appointed by Endoxos. Endoxos management also conducted occasional oversight and monitoring of Mr Damevski's work. 24 After 19 August 2001 Endoxos was required to pay MLC for Mr Damevski's services within 24 hours of the weekly invoice sent by MLC. Mr Damevski was paid by MLC fortnightly. MLC deducted amounts from Mr Damevski's pay with respect to accident and public liability insurances, long service leave and superannuation. 25 After 19 August 2001, Mr Damevski continued to work at the direction of Endoxos, in the same manner in which he had worked for Endoxos prior to 19 August 2001. Mr Damevski did not trade under a business name, only acquiring a business name on 21 January 2002 some 5 months after his August 2001 resignation and 18 days before the day Mr Damevski alleged he was terminated by Endoxos. 26 After 19 August 2001, the only work Mr Damevski performed was work for Endoxos. Mr Damevski did not reduce his level of tax after 19 August 2001. When Mr Damevski was sick he notified Endoxos, not MLC. Endoxos relocated him in his work areas, without any consultation with MLC either by Endoxos or Mr Damevski. 27 On 23 October 2001, Endoxos increased Mr Damevski's pay from $130 per day to $135 per day, after discussions with Mr Kelvin Burke on behalf of Endoxos. The actual payments to Mr Damevski continued to come from MLC as they had after 19 August 2001. 28 In January 2002, Mr Damevski performed night shift work. He had been performing work on that shift at a particular location since 1999. An Endoxos supervisor met him at the job and told him he was being taken off that site. On 8 February 2002 he performed day shift work at another site. After completing his work at that site he rang an Endoxos leading hand and asked where he was to work next. He was told to come to the Endoxos office where an Endoxos management representative and an Endoxos supervisor informed him that he was being taken off the day shift job. He was also told that he would lose the van and the mobile phone and be relocated to work at the Australian Federal Police Headquarters. He was unable to work at that location without the benefit of the van, due to having only one car in his family and due to his wife's illness. He was not offered any further work by Endoxos. MLC did not offer him any work. 29 The nature of events on 8 February 2002 gives one the distinct impression that Endoxos considered it had the right to terminate Mr Damevski without any notification to MLC.

Documentary evidence 30 The Endoxos letter of 16 July 2001 was accompanied by an "information pack". The information pack included 'The Contractors Guide - The Agency Contracting System', which was an MLC "badged document" of the Australian Independent Contractors Agency Pty Ltd ("AICA"). The guide portrays MLC, which was an agent of AICA, as a service provider to "self-employed people". It explains that MLC provides the administrative services of a contractor management agency to bona fide self-employed contractors who do not wish to be bound by the "constraints" of the wages system. Merkel J reproduces relevant parts of the guide at [163] - [167]. 31 The guide contains a section entitled 'Information for Accountants - Taxation issues for independent contractors working through "Odco" style Labour hire arrangements'. This is a reference to the arrangement discussed in Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 ("Odco"). Under the heading 'What are Odco style labour hire contractors?' it states: "Odco independent contractors are people who work through specific labour hire arrangements where: · No common law employment exists · Each contractor has a daily hire contract with the labour hire agency · No contract exists with the user of the contractor service Odco contractors working through the Australian Independent Contractors Agency usually register a business name as a sole trader with the NSW Department of Fair Trading. They register their principal place of business as their residential address. Clauses 1 and 2 of the Agreement to Contract stipulate that contractors utilising the Odco contract system accept (or reject) work on an hourly or day to day basis with clients of the Agency. The contractor is available for work where the Agency places him/her." 32 The information pack also contains an unsigned pro-forma AICA document entitled "Agreement to Contract", the contents of which are reproduced by Merkel J at [155]. It is not clear whether Mr Damevski signed this document, as a signed copy was not produced. In fact, Mr Damevski's signature is not attached to any document in the information pack, or any other MLC or AICA document in evidence. 33 The Agreement to Contract is a blank pro-forma document used by AICA and contains no mention of MLC. It is not clear whether MLC regularly uses this document when signing up independent contractors under the arrangement set out in the information pack. 34 The MLC Workplace Solutions Hiring Agreement is an agreement between MLC and Endoxos for the provision of contract personnel. The terms of the Hiring Agreement are reproduced by Merkel J at [161]. The agreement instructs Endoxos to provide MLC with feedback on the performance of contractors and, in the event Endoxos is unhappy with a contractor, to inform MLC and send the contractor off-site.

The Full Bench of the Commission 35 The Full Bench of the Commission did not properly address whether on the evidence available to it there was a contract between Mr Damevski and Endoxos, in particular, whether the existence of a contract could be implied from the conduct of Mr Damevski and Endoxos. The Full Bench referred to Grainger C's decision as follows: "[19] The Commissioner decided that there was no contract in existence between the appellant and Endoxos after 19 August 2001 and that after that date the only contract to which the appellant was a party was one with MLC. The matters upon which the Commissioner relied were the appellant's resignation from Endoxos, his entry into a written contact [sic] with MLC, the circumstances surrounding that change and the fact that MLC paid him according to time sheets he submitted to MLC. Although the Commissioner also found that the contract between the appellant and MLC was one for the provision of services, that issue did not need to be decided.

[27]

From 20 August 2001 there is no evidence of a direct contractual relationship which covers these ingredients between Mr Damevski and Endoxos. Exhibit R8 [Hiring Agreement] evidences a direct contractual relationship between Mr Damevski and MLC. Whilst there is no doubt that Endoxos continued to have a significant role in relation to the work undertaken by Mr Damevski after 19 August 2001 there is no evidence of a direct contractual relationship between Mr Damevski and Endoxos from that date." (emphasis supplied) 41 Grainger C also referred to the Hiring Agreement at [9] of his judgment, opining that it: "…made clear that if Mr Damevski accepted the terms being put to him by Endoxos it would have the effect of causing him to cease to be an employee of Endoxos on 19 August 2001 and becoming an independent contractor whose direct contractual relationship would be, not with Endoxos, but with an independent company, MLC Workplace Solutions Pty Ltd." 42 It is surprising that Grainger C was able to characterise the nature of the contractual relationship between Mr Damevski and MLC, and dismiss the possibility of a contractual relationship between Mr Damevski and Endoxos, on the basis of a Hiring Agreement that makes no reference to Mr Damevski and to which Mr Damevski is not a party. The Hiring Agreement and Grainger C's conclusion regarding the existence of a contract between Mr Damevski and MLC cannot be determinative of the existence of a contract between Endoxos and Mr Damevski. 43 Grainger C at [29] was also influenced by his view that Mr Damevski: "…accepted a rate of remuneration from MLC which took into account his changed status as an independent contractor. He received valuable consideration for accepting his new status as an independent contractor."

44 There was no evidence to support that finding. The evidence was that Endoxos paid $130 gross to Mr Damevski for an 7.6 hour day and that Endoxos, not MLC, increased the rate to $135 gross, subsequently to the interposing of MLC into the relationship between Endoxos and Mr Damevski.
45 Despite the evidence indicating that Mr Damevski dealt almost exclusively with Endoxos and had limited contact with MLC, Grainger C summarised his finding at [30] saying:

"[30] I find that MLC is, on the evidence available before me, completely independent from Endoxos and that from 20 August 2001 MLC was the principal contractor dealing directly with Mr Damevski in his role as an independent sub-contractor carrying out cleaning services."

consideration 46 Counsel for Endoxos asserted that there was no evidence of a direct contractual relationship between Mr Damevski and Endoxos given there was no intention to create legal relations. Counsel pointed to Mr Damevski's resignation from Endoxos and his payment of accrued annual leave. Counsel also pointed to the existence of an agreement by Mr Damevski to perform work for MLC. 47 Counsel for Endoxos had no alternative submission as to the nature of any contract between Mr Damevski and Endoxos, if it existed. He submitted that Mr Damevski's contract was with MLC, and that Endoxos had an express intention to end its legal relationship with Mr Damevski.

The reality of the situation 48 There was no clear and unambiguous contract between MLC and Mr Damevski. The only evidence of any agreement for Mr Damevski to perform work for MLC was the Endoxos letter of 16 July 2001. Mr Damevski agreed with Endoxos to accept the AICA/MLC offer. There is no evidence that Mr Damevski signed any agreement with MLC, nor any evidence produced regarding discussions or negotiations between Mr Damevski and MLC concerning a contractual agreement. Under the Hiring Agreement between MLC and Endoxos, MLC was to supply "contract personnel" to Endoxos. However, Mr Damevski was not "supplied to" Endoxos by MLC. Mr Damevski already had a relationship with Endoxos. 49 Even if it was assumed that Mr Damevski's signature on the Endoxos letter of 16 July 2001 was sufficient to create a contract with MLC, it is questionable whether the contract was ever fulfilled or exercised by either party. The only evidence regarding the terms and conditions of any contract between Mr Damevski and MLC is the information pack, referred to above at [30]. The arrangement detailed in the information pack, however, bears little resemblance to what actually occurred. 50 Mr Damevski was not a "bona fide" independent contractor who did "not wish to be bound by the constraints of the wages system". MLC did not perform the role described in the information pack, apart from performing the administrative role of paying Mr Damevski's wages. The evidence was that Mr Damevski worked solely for Endoxos pursuant to an arrangement where he would be paid by MLC, who would in turn look to Endoxos for reimbursement of such payments plus an administration fee. 51 In retaining its right on and from 19 August 2001 to direct and control the performance of work by Mr Damevski, and to terminate Mr Damevski's services, Endoxos did so on its own behalf and not as an "agent of MLC". Equally, considering the entire factual matrix, it could not be said that MLC was Mr Damevski's employer. Rather, MLC acted as an agent for Endoxos in paying Mr Damevski, on Endoxos' behalf. This was the only role it performed. 52 Mr Lindsay Burke's prediction that "nothing would change" was correct.

Was Mr Damevski an independent contractor? 53 There is no evidence in the current case of Mr Damevski providing his services as an independent contractor, using the introduction and administrative services of MLC. 54 The arrangement detailed in the information pack would have Mr Damevski as an independent contractor running his own cleaning business, calling MLC when he was available for work and being directed to various companies holding contracts to clean government and private premises. In running his own business, Mr Damevski would presumably also build his own contacts and provide cleaning services outside of his arrangement with MLC. To maintain consistency in his workflow he would "stay in contact" with MLC. 55 To argue that the above occurred in the present case is to defy reality. 56 The only evidence used to show that Mr Damevski actually performed the role of an independent contractor is that, as requested, he registered a business name 18 days before he was allegedly terminated. There are no other indicators that would suggest Mr Damevski was engaged in his own "economic enterprise": see Country Metropolitan Agency Contracting Services Pty Ltd v Slater and WorkCover/CGU Workers Compensation Insurance (SA) Pty Ltd [2003] SAWCT 57 (unreported, Jennings P, Crawthorne DP and McCusker DP, 30 May 2003) and Dacas v Brook Street Bureau (UK) Ltd [2003] IRLR 190. 57 Dacas is a decision of the Employment Appeal Tribunal, following an appeal from a decision that had found that the appellant was not employed by either the Brook Street Bureau employment agency or the agencies client, Wandsworth Borough Council. Burton J, presiding, discussed the Employment Tribunal's application of the control test and the "mutuality of obligation" test, but pointed out that: "They did not operate a Market Investigations test. Had they done so, it appears quite inevitable that they would have found, insofar as it assisted in the conclusion, that the Appellant was not carrying on a business of her own. This Appellant was not offering any kind of specialist services; she was not a nurse or a physiotherapist at the hostel, she was a cleaner. This Appellant was not providing, on the evidence at any rate, such services to anyone else. She was full-time working at West Drive, as it was seemingly found by the Tribunal. On the face of it, she would in ordinary parlance, working as a cleaner on an hourly rate full-time at a hostel, seen to be an employee, but she would certainly not look like someone who was carrying on business on her own account, yet the Tribunal concluded that she was not an employee and they did so, by reference to the label or rubric in the Temporary Worker Agreement… …It appears to us quite clear, that all the pointers on the findings of fact by the Tribunal were in favour of employment, and because all the other factors found by them to be neutral, no pointers existed pointing against employment. The only pointer was the label, but, albeit that they were no doubt entitled to take that into account, if it pointed the opposite way to all the indications which on their own findings otherwise existed in this contract, then they were not entitled to treat that label or rubric as determinative or decisive, as they appear to have done." 58 Mr Damevski was not carrying on a business of his own. In truth, the relationship between Endoxos and Mr Damevski was one of mutual dependence and involved no one else, other than MLC in a confined capacity which related entirely to the manner of effecting Mr Damevski's remuneration. Mr Damevski had no right to delegate his shifts to other persons. He worked solely for Endoxos. He was provided with equipment by Endoxos to perform work. 59 The circumstances surrounding Mr Damevski's alleged dismissal indicate that he was not able to refuse work without the likelihood of not receiving any more work. Upon Mr Damevski's termination MLC did not find any replacement work for him. Although MLC actually states in its information pack that the disadvantages attending a transfer to agency contracting are offset because contractors are offered continuity of work through different clients, there is no evidence that MLC had any other cleaning contractor clients for whom Mr Damevski could work.

Odco 60 It is apparent from the information pack that MLC was attempting to replicate the arrangement discussed in Odco. Labour hire agencies that rely on Odco to legitimise particular activities should bear in mind that the existence of a contractual relationship and employment relationship, in any given set of circumstances, is ultimately a question of law. When attempting to replicate the arrangement discussed in Odco, it is not sufficient to give lip service to it. There is no legitimacy in arrangements which merely attempt to exploit difficult areas of law and create vehicles designed, inter alia, to enable employers to avoid their award and statutory obligations. 61 Merkel J provides a summary of relevant aspects of the Odco decision at [149] - [151]. Contrary to the current case, the workers discussed in Odco were first "screened" at interviews conducted by the labour hire company, Troubleshooters Available ("Troubleshooters"). Inquiry was made of the worker's reasons for wanting to be self-employed, whether they had been self-employed before, whether they were members of a relevant union and superannuation scheme, and whether they had construction industry long service leave registration. 62 A worker was invited to sign an 'Agreement to Contract', in much the same form as the AICA Agreement to Contract, provided satisfactory answers were given at the interview. The result of this was to make the worker eligible to be offered work from time to time on some particular site for some particular builder client of Troubleshooters. 63 In Odco, the Court dismissed many of the arguments advanced by the relevant union to show that Troubleshooters had no real control over the workers and that Troubleshooters' role was in reality one of agent. The Court, however, accepted that the maintenance of communication between a worker and Troubleshooters does not negate the existence of a contractual relationship between the worker and the builder. The Court also made it clear that payment of wages by a third party is not fatal to the existence of a contract of employment between a worker and a putative employer. 64 The Court found, ultimately, that the evidence indicated that it was always intended that Troubleshooters would be liable to pay the worker for all work, at the rate which it had agreed with the worker, whether or not it received payment from the builder. Relevant to this was the fact that Troubleshooters was the entity that fixed and adjusted the remuneration to which the worker was entitled and the builder was not always aware of the rate paid to the worker by Troubleshooters. In the instant case, Endoxos, not MLC, determined Mr Damevski's rate of pay. 65 Endoxos did not establish an arrangement in the form recognised in Odco or any like arrangement.

Labour-hire arrangements 66 At [173] and [174] Merkel J distinguishes the present case from a number of cases where no employee-employer relationship has been found to exist between a worker and a client of a labour hire agency. I agree with respect with Merkel J, for the reasons given by him, that the current case differs from those cases, and from Odco. 67 It is worth considering some of the differences between the cases referred to by Merkel J and the instant case. The cases of Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438 and McMahon Services Pty Ltd v Cox (2001) 78 SASR 540 are very similar to each other. These cases concerned claims for damages for personal injury against clients of labour hire companies, for whom the workers were providing services. In both cases the worker had already received compensation under the Workers Rehabilitation and Compensation Act 1986 (SA) based on a finding that the labour hire company was the employer. Having received compensation on that basis, perhaps unsurprisingly it was held in these subsequent cases that the labour hire agency, and not the client of the labour hire agency, employed the worker. 68 In Mason & Cox, the court held that the fact of control alone does not lead to the conclusion that there is a contractual relationship and drew attention to the fact that there was no evidence of a legal, as opposed to a practical, right to control the worker. McMahon approved the reasoning in Mason & Cox, and further held that it was essential to look closely at the facts of each case when applying the criteria set out in the definition of contract of service in the Workers Rehabilitation and Compensation Act. 69 In Swift Placements Pty Limited v Workcover Authority of New South Wales (Inspector May) (2000) 96 IR 69, it was held that control over a worker did not merely relate to the on-the-job situation, but rather the ultimate or legal control over the worker. Like the decision in McMahon, the court also noted that much depended upon the particular circumstances as disclosed by the facts found. 70 The reference to the importance of the existence of 'legal control' as opposed to 'practical control' may have been appropriate in those cases; however, it is a curious and unhelpful concept when the evidence concerning the nature of the relationship is unclear. A finding based on which entity holds 'legal control' tends towards a circular argument when 'legal control' is a conclusion of law and is, in effect, the question that the court is being asked to determine. 71 The relationships in the instant case are different to those in the cases referred to above. There was no employment relationship between Mr Damevski and MLC. Mr Damevski was compelled to sign a statement at the bottom of an Endoxos letter stating he would participate in the MLC arrangement. Mr Damevski never asked MLC to find him work. MLC did not introduce Mr Damevski to Endoxos. MLC did not direct Mr Damevski to work at Endoxos. Mr Damevski did not contact MLC to inform them he was available for work. There was no contact between Mr Damevski and MLC regarding the performance of his work. 72 The decision of the Full Bench of the Commission in Advanced Australian Workplace Solutions Pty Ltd v Kangan Batman TAFE (unreported, AIRC, Full Bench, Print S0253, 25 October 1999) also concerned an Odco type arrangement. Unlike Mr Damevski, Ms Fox, who had applied for relief in respect of her termination, had actually signed an Agreement to Contract in a similar form to the one included in the MLC information pack. The Full Bench in Advanced Australian Workplace Solutions relied heavily on the evidence of both Ms Fox and the representative for Kangan, which indicated that neither of them thought that they were in a relationship of employee and employer. The Full Bench acknowledged that in Meade v New England Seed Traders Pty Ltd [1972] WCR 113, the New South Wales Court of Appeal had said at p.117: "There is certainly evidence that neither Mr Mead nor Mr Crofts realized that he was an employed worker, but while this may be some evidence to rebut the existence of contracts of service, it does not, in the circumstances, seem to be of very much weight." 73 Nevertheless, the Full Bench in Advanced Australian Workplace Solutions repeatedly stated that, in the circumstances, it chose to give that evidence considerable weight. 74 The Full Bench in Advanced Australian Workplace Solutions acknowledged that sometimes contracts of employment are entered into with a minimum of formality. However, it was found that the evidence did not establish offer and acceptance, intention to create a legal relationship or valuable consideration. 75 Interestingly, in concluding the Full Bench said: "None of the cases to which we have referred determines the present one. In particular, Odco (above) does not determine the present case. Although the documentation between AAWS and Ms Fox and between AAWS and Kangan is the same as that in Odco, other facts, as Simmonds C noted, differ. He said that he did not find the reasoning in Odco to be determinative in this matter. We, with respect, agree. Our conclusions arise from the facts of the case before us." 76 There are a few recent examples of cases concerning labour hire arrangements in which either contractual relationships have been found between a worker and a 'host employer', or where the concept of dual employment has been entertained: see Oanh Nguyen and A-N-T Contract Packers Pty Ltd, t/as A-N-T Personnel v Thiess Services Pty Ltd t/as Thiess Services, [2003] NSWIRComm 1006 (unreported, IRCNSW, McKenna C, 3 March 2003); Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152; Josie Bianchi v Staff Aid Services (unreported, AIRC, Commissioner Lewin, PR937820, 12 September 2003). 77 The outcomes in English case law relating to labour hire arrangements also vary. In Franks v Reuters Limited and First Resort Employment Ltd [2003] EWCA Civ 417 (unreported, Supreme Court of Judicature Court of Appeal (Civil Division), President, Lord Justice Thorpe and Lord Justice Mummery, 10 April 2003), the court allowed an appeal from a decision of the Employment Appeal Tribunal that Mr Franks was not an employee of Reuters Limited. Mr Franks had found work with Reuters through the employment agency, First Resort Employment Limited. In the leading judgment, Lord Mummary, referring to the House of Lords decision in Carmichael v National Power Plc [1999] 1 WLR 2042, drew attention to the need to look "beyond and beneath the documents" and not reach a decision concerning the existence of an employment contract on the basis of construing the correspondence. Lord Mummary pointed out that: "Drawing a line between those who are employees (and so have statutory employment rights) and those who are not entitled to statutory employment protection has become more, rather than less, difficult as work relations in and away from the workplace have become more complex and diverse. This development makes it all the more important that the employment tribunal, as the tribunal of fact, should consider all the relevant evidence about the dynamics of the work relationship between the person claiming to be an employee and the putative employer." 78 Lord Mummary said that even where the work relations are documented, it was necessary to examine not only the correspondence, but also the circumstances surrounding it, the subsequent conduct of the parties, and the way in which the parties operated and understood the situation.

Existence of a contract 79 The ambiguity of the contract between MLC and Mr Damevski and the inconsistency between the information pack and the reality of the situation, requires one to examine the entire factual matrix to establish what legal relationship, if any, actually existed. 80 Despite the inadequacy of the documentary evidence, the Full Bench concluded that it was clear on the documentary evidence that Mr Damevski performed work for MLC. The Full Bench was in error by not looking beyond the documentary evidence. 81 Although there is no evidence of an express contract between Mr Damevski and Endoxos, the Full Bench failed to properly apply established principles of contract law and address, after considering all of the relevant evidence, whether there was a contract which could be implied to exist based on the conduct of the parties. 82 Although contracts are not to be implied lightly, the Court may find exceptions to the general rule concerning express intentions. The Court may imply a contract by concluding that the parties intended to create contractual relations after examining extrinsic evidence, including what the parties said and did: see Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) NSWLR 309; Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25 at 31 per Bingham LJ and Orion Insurance Co Plc v Sphere Drake Insurance Plc [1990] 1 Lloyd's Rep 465 at 492-4 per Hirst J. 83 Prerequisites for an enforceable contract were set out by Grainger C and are reproduced at [40] above. However, as discussed in the relevant chapter of 'The Law of Employment, which was the source for the list of prerequisites, those elements of contract are to be applied subject to the various nuances of contract law. In relation to the second element listed, offer and acceptance, it is pointed out in Cheshire, Fifoot & Furmston's Law of Contract, 14th ed, (M P Furmston), (2001), England, Butterworths LexisNexis, at p.33 that: "These complementary ideas present a convenient method of analysing a situation, provided that they are not applied too literally and that the facts are not sacrificed to phrases." Lord Wilberforce's judgment in New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd [1975] AC 154 at 167 is quoted and reference is made to cases where the courts have held that there is a contract despite the difficulty or impossibility of analysing the transaction in terms of offer and acceptance. Below the relevant passage from the decision of Lord Wilberforce in New Zealand Shipping is set out more fully: "It is only the precise analysis of this complex of relations into the classical offer and acceptance, with identifiable consideration, that seems to present difficulty, but this same difficulty exists in many situations of daily life, e.g., sales at auction; supermarket purchases; boarding an omnibus; purchasing a train ticket; tenders for the supply of goods; offers of rewards; acceptance by post; warranties of authority by agents; manufacturers' guarantees; gratuitous bailments; bankers' commercial credits. These are all examples which show that English law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a practical approach, often at the cost of forcing the facts to fit uneasily into the marked slots of offer, acceptance and consideration." 84 Documentary evidence of an offer from Endoxos to re-employ Mr Damevski, and a signed acceptance by Mr Damevski, is unnecessary. Although there was no formal offer of a new employment contract, it is not uncommon for two commercial entities to informally enter into a contract. There is no reason to treat an employment relationship any differently. The agreement between the two can be evinced by their conduct. In Anson's Law of Contract,28th ed, (J Beatson), (2002) Oxford, Oxford University Press, it is pointed out at p.30 that: "An agreement may be inferred from conduct alone; the intention of the parties is a matter of inference from their conduct, and the inference is more or less easily drawn according to the circumstances of the case." (footnote omitted) 85 In Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, conduct of the parties was held to be determinative in establishing acceptance and intention in relation to formation of contract. After pointing out that pre-contractual conduct is only admissible on questions of construction where the contract is ambiguous, Heydon JA said at 163 and 164: "The second relevant principle is that post-contractual conduct is admissible on the question of whether a contract was formed: Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 77; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 668, 669, 672; B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9,147 at 9,149, 9,194-9,156; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9,251 at 9,255." 86 In providing his exposition of the case law relating to formation of contract, Heydon JA said at 177: "But limited recognition has been given to the possibility of finding contracts exist even though it is not easy to locate an offer or acceptance. In Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117 - 11,118, McHugh JA (Hope JA and Mahoney JA concurring) said: "It is often difficult to fit a commercial arrangement into the common lawyers' analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of 'offer', 'acceptance', 'consideration' and 'intention to create a legal relationship' which are the benchmarks of the contract of classical theory. In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding legal relationship… Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may be reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed." Those passages were cited withapproval by Ormiston J in Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 82-83." 87 Heydon JA also said that: "One further observation of McHugh JA in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (at 11,117) is relevant: "…it is an error 'to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed'.…Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. …The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract… ." See also, to the same effect, Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep 601 at 611 (affirmed on appeal (at 615))." 88 Mason P supported the observations of Heydon JA, saying at 155 in Brambles: "As Heydon JA demonstrates, this case shows the difficulties of pressing too far classical theory of contract formation based on offer and acceptance (see also Pobjie Agencies v Vinidex Tubemakers (2000) Aust Contract Reports 90-112 (91,217))." 89 When Mr Damevski returned to work after his resignation on 19 August 2001 he began working with Endoxos again, without any relevant role having been played by MLC. Viewed objectively, it can be implied that Endoxos and Mr Damevski informally re-entered an arrangement in the nature of a contract of service on the same terms and conditions under which Mr Damevski had previously worked for Endoxos the preceding day. 90 As nothing changed in the relationship between Endoxos and Mr Damevski after 19 August 2001, all terms and conditions had been addressed by the parties, as they were the same as under the previous employment relationship, subject to varied pay arrangements which occurred later. 91 The third element of an enforceable contract, in the list referred to by Grainger C is "consideration". Although MLC paid Mr Damevski, a realistic reading of the facts indicates that consideration passed between Mr Damevski and Endoxos. Mr Damevski provided cleaning services to Endoxos, not MLC. Endoxos, not MLC, determined the rate it would pay for those cleaning services. MLC merely performed an administrative function by providing Mr Damevski's pay, on behalf of Endoxos. 92 Counsel for Endoxos relied upon the requirement for an intention to create legal relations to assert that there was no evidence of a legally enforceable contract. Subject to a rebuttal, it will be presumed in commercial agreements that the parties intend to create legal relations. Although the Hiring Agreement indicates Endoxos set about making arrangements to obtain its labour through MLC, this is not a clear rebuttal. Relationships can be established outside the Hiring Agreement. The Hiring Agreement cannot be determinative of the intentions of Endoxos and Mr Damevski to create legal relations. 93 Anson's Law of Contract, 28th ed. at p.31, discusses the test applied to intention for the purpose of establishing an agreement: "In common with most European legal systems, the test of a person's intention is not a subjective, but an objective one; that is to say, the intention which the law will attribute to a person is always that which that person's conduct bears when reasonably construed by a person in the position of the offeree, and not necessarily that which was present in the offeror's own mind. … Although the approach is objective, it is not purely objective in the sense that the intentions of the parties are entirely irrelevant so that a contract may be formed which is in accordance with the intention of neither party. It has been stated that 'the judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other." 94 Anson's Law of Contract also refers to the test of intention in relation to the creation of legal relations at p. 71: "The test of an intention to effect legal relations is an objective one. It may be that the promisor never anticipated that the promise would give rise to any legal obligation, but if a reasonable person would consider there was an intention so to contract, then the promisor will be bound." 95 It is an accepted principle of contract law that although a person's apparent intention will generally represent their real intention, an objective approach should be taken in establishing intention: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd; Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25 and Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 176 per Brooking J and 176 per Tadgell J. 96 Endoxos may have set about making arrangements for the provision of labour through a third party, but ultimately it acted in a way that showed that it in fact intended to create legal relations. The evidence indicates that Endoxos wanted to maintain control of Mr Damevski, expected him to use their equipment and clothing emblazoned with Endoxos livery and, ultimately, wanted to be able to dismiss Mr Damevski. 97 In Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd, Mahoney JA said at 330: "It is generally accepted that, in determining whether what the parties have done results in a binding contract, their intention is significant. And there is reference in the cases and the textbooks to the question whether, for there to be a binding contract, it is necessary that the parties have an actual or subjective intention to contract: see, eg, the cases referred to by McLelland J in Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251; see generally, Halsbury's Laws of England, 4th ed, vol 9, par 300 at 175. But questions in that form are, I think, apt to mislead: it is, in my opinion of more assistance to ask whether actual or subjective intention to contract plays a part in determining whether there is a binding contract, and (if it does) what part it plays. The proper view is, in my opinion, that the existence of a contract is a consequence which the law imposes upon, or sees as a result of, what the parties have said and done. Actual subjective intention to contract is a factor which the law takes into account in determining whether a contract exists but it is not, or not always, the determining factor." 98 Although Endoxos turned its mind to the potential advantages of using the arrangement offered by MLC, it did not ask itself whether the way it continued its relationship with Mr Damevski would result in the entering of contractual relations. Its intention can only be inferred from its conduct. 99 The conclusion of a reasonable bystander would be that a contract existed between Endoxos and Mr Damevski, and that MLC was engaged to provide payment services. Endoxos held the position of responsibility and wielded the power.

Conclusion 100 The Commission, both at first instance and at Full Bench level, erred in concluding that Mr Damevski and Endoxos were not in a legal relationship. Looking objectively at what occurred after 19 August 2001, it is plain that Mr Damevski entered into a new contractual relationship with Endoxos where he started afresh, in the context of his rights to accrued annual leave entitlements, and whereby the work he performed for Endoxos resulted in MLC paying him his wages as a consequence of an arrangement between MLC and Endoxos. 101 Although Endoxos had an intention to remove costs related to its role as an employer (such as increases in public liability insurance premiums), through its actions it also displayed an intention to establish a contractual relationship with Mr Damevski after his "resignation" on 19 August 2001. Endoxos directed Mr Damevski to worksites, called Mr Damevski to its offices for further instructions when necessary, gave Mr Damevski attire and equipment to enable him to perform work, and received pay slips from him. Mr Damevski also showed an intention to re-enter the legal relationship with Endoxos, by once again taking up the role he held with Endoxos before 19 August 2001. 102 The facts of this case also reveal that the contractual relationship that existed between Mr Damevski and Endoxos was one of employee and employer. As previously pointed out, the only difference between the relationship before and after 19 August 2001 was that MLC was given the role of paymaster. The latest pronouncement of the High Court on the issue of the existence a contract of employment or an independent contractual relationship demonstrates that when one seeks to characterise a contractual relationship dealing with work, one looks to the reality of the situation and eschews unrealistic descriptions of employees as independent contractors when the facts of a case disclose the contrary: see Hollis v Vabu Pty Limited (2001) 207 CLR 21 at [47] to [57].

Relief 103 The Commission was incorrect in determining that Mr Damevski was not an employee and this was a fundamental jurisdictional issue. In this circumstance it is appropriate for this Court to give prerogative relief. In Pawel v The Australian Industrial Relations Commission [1999] FCA 1160 at [14]; (1999) 97 IR 392 at 395, Branson and Marshall JJ said: "… although the Commission on an application under s170CE(1)(a) must determine whether the applicant was an employee in one of the categories specified in s 170CB(1), the jurisdiction of the Commissioner under s170CE(1)(a) is contingent on the fact that the applicant was such an employee, and not the Commission's opinion or satisfaction in this regard. That is, to adopt the language of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at para 127, the determination of whether the applicant is an employee in one of the categories specified in s 170CB(1) is a determination not only of jurisdictional fact but a determination of "constitutional facts" (see also v Judges of the Federal Court of AustraliaEx parte W.A. National Football League (1979) 143 CLR 190 at 214-215" 104 In Pawel, the relevant employee sought to invoke the jurisdiction of the Commission to entertain a claim that his employment had been terminated harshly, unjustly or unreasonably. At first instance Simmonds C held that Mr Pawel's employment had not been terminated at the initiative of his employer. He declined to entertain the application. The Full Bench held that the Commissioner's findings, which led him to his conclusion that Mr Pawel's employment had not been terminated at the initiative of the employer, were open to him. Essentially it agreed with the conclusion of Simmonds C; however its use of the expression "reasonably open" prompted Branson and Marshall JJ to say at [14]: "On an appeal to the Full Bench of the Commission with respect to a determination of a Commissioner as to whether an applicant was an employee in one of the categories specified in s 170CB(1), the Full Bench would be concerned with whether the Commission reached the right conclusion as to whether an applicant under s 170CE(1)(a) was such an employee. It would not be concerned simply with whether the decision of the Commissioner was reasonably open to him or her."

105 At [15] their Honours noted that it would have been open to the legislature to make any question of whether a person was "an employee whose employment was terminated by the employer" a question for the Commission's satisfaction, but that it did not.
106 At 16 their Honours said that:

"There seems to be no reason not to construe s 170CE(1) in accordance with the ordinary meaning of the words used in it. That is, that the jurisdictional fact which conditions the powers of the Commission under s 170CE(1) is that the applicant is "an employee whose employment has been terminated by the employer" within the meaning of the subsection. As Gummow J pointed out in Eshetu at para 127, a court or tribunal cannot give itself jurisdiction by erroneously deciding that a jurisdictional fact exists (see also R v Judges of the Federal Court of Australia (at 214). On an appeal to the Full Bench of the Commission with respect to a determination of a Commissioner as to whether an applicant was "an employee whose employment has been terminated by the employer", the Full Bench would be concerned with whether the Commissioner reached the right conclusion as to whether the applicant was such an employee. It would not be concerned simply with whether the decision of the Commissioner was reasonably open to him or her." 107 Their Honours observed at [26] that the approach taken by the Commissioner, to the question of whether Mr Pawel's employment was terminated by the employer, was inconsistent with authority of the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. Their Honours essentially found that the Full Bench fell into the same error. 108 At [35] their Honours observed that in Sammartino v Foggo [1999] FCA 1231; (1999) 93 IR 52, a Full Court issued a writ of certiorari to quash a decision of a Full Bench of the Commission "refusing leave on the basis that the Full Bench had fallen into an error of law which caused it to identify the wrong issue for its consideration". 109 Reference was made at [36] to Mann v Ross (1999) FCA 273; (1999) 88 FCR 274 where a Full Court issued a writ of certiorari to quash a decision of a Commissioner that the Commission lacked jurisdiction to hear and determine Mr Mann's application in respect of what he alleged to be an unfair dismissal. 110 It was not contended in the instant case that Pawel, Sammertino or Mann were incorrectly decided. I do not consider that they were incorrectly decided. They are at least not clearly wrong. 111 In Pawel at [39] it was observed that prerogative relief should be granted because "… the Full Bench misdirected itself to the proper approach to be taken to the application for leave to appeal in a way which affected the exercise of its power to grant leave." 112 However, the Full Court in Pawel did not intend to confine the availability of prerogative relief to circumstances where the Full Bench had taken the wrong approach to an application for leave to appeal. Such relief, as Sammertino and Mann show, is also available where the Commission incorrectly determines a jurisdictional fact. Whether or not Mr Damevski was an employee of Endoxos was a jurisdictional fact, which provided the gateway for his access to the unfair dismissal regime administered by the Commission. It was pivotal to its exercise of its jurisdiction. 113 The Commission does not have the power to determine conclusively a matter upon which its jurisdiction depends; see R v Gray; ex parte Marsh (1985) 157 CLR 351 at 371-372 per Gibbs CJ, 379 per Wilson J and 381-382 per Brennan J. 114 As Gibbs CJ said in Marsh at 371-2: "There is a well recognized distinction between an error made by a tribunal in the course of deciding a matter, on the one hand, and an absence or excess of jurisdiction on the other: see, e.g., R. v. Taylor; Ex parte Professional Officers' Association -- Commonwealth Public Service (38) and Reg. v. Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd (39). However, the question on which side of the line a particular case should fall may be a very difficult one: Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section (40). Since Anisminic Ltd. v. Foreign Compensation Commission (41) it has been more clearly understood that an error of law may amount to a jurisdictional error even though the tribunal which made the error had jurisdiction to embark on its inquiry. In that case Lord Wilberforce said (42):

  " ... the cases in which a tribunal has been held to have passed outside its proper limits are not limited to those in which it had no power to enter upon its inquiry or its jurisdiction, or has not satisfied a condition precedent. Certainly such cases exist ... but they do not exhaust the principle. A tribunal may quite properly validly enter upon its task and in the course of carrying it out may make a decision which is invalid -- not merely erroneous. This may be described as `asking the wrong question' or `applying the wrong test' -- expressions not wholly satisfactory since they do not, in themselves, distinguish between doing something which is not in the tribunal's area and doing something wrong within that area -- a crucial distinction which the court has to make."

See also per Lord Reid (43) and per Lord Pearce (44). In Anisminic Ltd. v. Foreign Compensation Commission, Lord Pearce said (45): "It would lead to an absurd situation if a tribunal, having been given a circumscribed area of inquiry, carved out from the general jurisdiction of the courts, were entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament."

115 If the Commission wrongly declines to exercise jurisdiction on the basis that it finds a person does not qualify to access that jurisdiction, whereas the facts before it demonstrate that the person does in fact qualify, the Commission has made an error which goes to the very exercise of its jurisdiction. In this case the Commission has wrongly refused to allow Mr Damevski to access the provisions of s170CE of the Act when, on the facts before it, he had such an entitlement.
116 In any event, by concentrating entirely on "the documentary evidence" and considering it to be conclusive, without reference to the totality of the evidence before it, the Full Bench misdirected itself and asked itself the wrong question by failing to consider the possibility that a contract of employment subsisted between Mr Damevski and Endoxos after the 19 August 2001. It shut its eyes to uncontested evidence which demonstrated the reality of what occurred between Endoxos, MLC and Mr Damevski.
117 No provision in the Act makes the existence of an employment relationship between an applicant and a putative employer a matter which the Commission is empowered to determine exclusively based on its satisfaction of whether a certain state of facts exists. The Commission is empowered to deal with claims for harsh, unjust or unreasonable terminations. Such a claim is made by "an employee whose employment has been terminated by the employer". Section 170CE is not conditioned on the existence of the Commission's satisfaction that an applicant is such an employee. That question is a question of jurisdictional fact to be determined on an objective basis on the evidence before the Commission. As Gibbs J said in R v Federal Court; ex parte W A National Football League (1974) 143 CLR 190 at 214:

"…where a court is once created by Parliament acting under limited powers given by the Constitution the existence of a state of things necessary to bring a case within the scope of these powers must be a condition of the jurisdiction of the court." 118 In this case the attack on the decision of the Commission is not directed to the exercise of a discretionary power. It is a case where Parliament has made the existence of some fact or event a condition upon which the exercise of the jurisdiction of the Commission depends. That fact is the existence of an employment relationship between the parties. The Commission cannot give itself jurisdiction by erroneously deciding that fact or decline jurisdiction by doing likewise: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [127], per Gummow J, whose language I have adopted to the instant circumstances. 119 The decision of the Full Bench is amenable to constitutional writs because it contained an error of law on a matter that went to the heart of its jurisdiction. 120 Alternatively, the Commission's error may be described as follows. The Full Bench fell into an error of law by ignoring relevant material, that is, material going to the existence of a subsisting contract of employment between the parties. That error caused it to reach a mistaken conclusion and adversely affected the exercise of its power such that it wrongly declined jurisdiction: see Craig v The State of South Australia (1995) 184 CLR 163 at 179. 121 The Commission's ignoring of relevant material occurred in a way that affected the exercise of its power such that it made an error of law by wrongly declining jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82], per McHugh, Gummow and Hayne JJ. 122 As was said in Yusuf at [82], and is adaptable to the instant case if one substitutes "Tribunal" for "Commission" and "Act" for the "Migration Act": "Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 13 November 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 313 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN: RISTE DAMEVSKI

      APPLICANT

AND: THE HONOURABLE JUSTICE GEOFFREY MICHAEL GUIDICE, PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, THE HONOURABLE DR ALEXANDER JOHN NICHOLAS BLAIN, A DEPUTY PRESIDENT OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, PETER ASHBY LAWSON AND GARETH SIMON GRAHAM GRAINGER, MEMBERS OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

      FIRST RESPONDENT

      ENDOXOS PTY LIMITED

      (ACN 052 513 514)

      SECOND RESPONDENT

JUDGES: WILCOX, MARSHALL AND MERKEL JJ

DATE: 13 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT MERKEL J: 123 The present matter concerns an employer's endeavour to terminate the employment of its employees and to simultaneously contract with an independent agency for the provision by those employees, supposedly acting as independent contractors, of the same services the employees had previously provided in their capacity as employees. The issue arising is whether, after the termination of their employment, the former employees provided their services to their former employer as employees or as independent contractors. That issue is of some importance because of a trend for both public and private sector organisations to outsource some of their labour requirements: see A Stewart, "Redefining Employment? Meeting the Challenge of Contract and Agency Labour", (2002) 15 Australian Journal of Labour Law 235 at 251-256. 124 The applicant ("Damevski") had his employment as a cleaner terminated by his employer, the second respondent ("Endoxos"), as from 19 August 2001. However, as from 19 August 2001 Damevski continued to provide to Endoxos the same services, as a cleaner, that he had previously provided to it. The services were provided pursuant to contractual arrangements purportedly made between: · Endoxos and MLC Workplace Solutions Pty Ltd ("MLC") and/or Australian Independent Contractors Agency Pty Ltd ("AICA") ("the Endoxos agreement"); and · Damevski and MLC and/or AICA ("the Damevski agreement"). 125 Pro forma contract documents contained in an information pack provided by Endoxos to Damevski state that the Endoxos agreement was to be between Endoxos and MLC and the Damevski agreement was to be between Damevski and AICA. MLC and AICA appear to be related companies. However, there is some confusion as to the precise role played by each company. The confusion has arisen because no evidence was adduced by representatives of MLC and AICA and those companies do not appear to have acted strictly in accordance with the pro forma contract documents. Because the parties made no distinction between AICA and MLC it is appropriate to treat the relevant contracting party as "AICA/MLC". 126 On or about 8 February 2002, Damevski was informed by Endoxos that his services as a cleaner were no longer required. Shortly thereafter Damevski was informed by AICA/MLC that it could not provide him with any further work. As a consequence, Damevski's employment was effectively terminated during February 2002. 127 Damevski applied for relief against Endoxos in the Industrial Relations Commission pursuant to ss 170CE(1) and 170CM(1) of the Workplace Relations Act 1996 (Cth) ("the Act") in respect of the termination of his employment during February 2002. Relevantly, ss 170CE(1) provides: "… an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: (a) on the ground that the termination was harsh, unjust or unreasonable; or (b) on the ground of an alleged contravention of section … 170CM …;" Section 170CM(1) relevantly provides: "… an employer must not terminate an employee's employment unless: (a) the employee has been given the required period of notice …; or (b) the employee has been paid the required amount of compensation instead of notice … ; or (c) the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue the employment of the employee concerned during the required period of notice … " 128 Commissioner Grainger (at PR 917597), and on Damevski's application for leave to appeal, the Full Bench of the Industrial Relations Commission (constituted by President Guidice J, Deputy President Blain and Commissioner Lawson at PR 922380) ("the Commission") decided that: · Damevski was not an employee of Endoxos at the time of the alleged termination of Damevski's employment during February 2002; and · as a consequence, Damevski's application for relief pursuant to ss 170CE(1)(a) and 170CM(1) of the Act in respect of the termination must be dismissed for want of jurisdiction under both sections. 129 The jurisdiction of the Commission in respect of Damevski's application for relief under ss 170CE(1) and 170CM(1) of the Act is conditioned upon an employee-employer relationship existing at the date of the termination of employment between the employee claiming relief and the employer against whom relief is being claimed: see Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231 at 235 per Branson and Marshall JJ. Accordingly if, contrary to the decisions made in the Commission, an employment relationship existed between Damevski and Endoxos during February 2002 the Commission would have erred in law in dismissing Damevski's application for relief for want of jurisdiction and Damevski would be entitled to the relief he is seeking to quash the decisions of the Commission and direct it to hear and determine his application for relief in respect of the termination of his employment according to law. 130 The evidence before the Commission was summarised by the Full Bench at [2]-[13]: "[2] It is common ground that the appellant commenced employment with Endoxos as a cleaner in August 1998 in Canberra. He worked cleaning buildings pursuant to contracts obtained by Endoxos. From the commencement of his employment he was provided with a van bearing Endoxos identification and with petrol and maintenance also paid for by Endoxos. Endoxos also provided a company uniform.

Damevski v Guidice

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