Day-to-day control of the applicants
212 Despite the modern reliance on the multi-factor test, the "right to control" remains a central consideration in many cases: Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597 at 601 and 606 per Lords Keith, Elwyn-Jones, Roskill, Brandon and Templeman; Stevens at 24 per Mason J and 36 per Wilson and Dawson JJ; ACE Insurance (FC) at [103]; Quest at [186]; Eastern Van Services at [93]. Two brief examples are illustrative.
213 In Vabu, the High Court held by majority that the relationship between a company conducting a business of delivering parcels and documents, Vabu Pty Ltd, and a bicycle courier working for that business, was that of employer and employee. The company's control over aspects of the courier's performance was important, as demonstrated by the following passages of the plurality judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ:
[49] … the evidence shows that the couriers had little control over the manner of performing their work. They were required to be at work by 9 am and were assigned in a work roster according to the order in which they signed on. If they signed on after this time, they would not necessarily work on their normal "channel". Couriers were not able to refuse work. It was stated in document 590 that "any driver who does so will no longer work for this firm". The evidence does not disclose whether the couriers were able to delegate any of their tasks or whether they could have worked for another courier operator in addition to Vabu during the day. It may be thought unlikely that the couriers would have been permitted by Vabu to engage in either activity.
…
[57] Finally, … this is not a case where there was only the right to exercise control in incidental or collateral matters. Rather, there was considerable scope for the actual exercise of control. Vabu's whole business consisted of the delivery of documents and parcels by means of couriers. Vabu retained control of the allocation and direction of the various deliveries. The couriers had little latitude. Their work was allocated by Vabu's fleet controller. They were to deliver goods in the manner in which Vabu directed. In this way, Vabu's business involved the marshalling and direction of the labour of the couriers, whose efforts comprised the very essence of the public manifestation of Vabu's business. It was not the case that the couriers supplemented or performed part of the work undertaken by Vabu or aided from time to time; rather, as the two documents relating to work practices suggest, to its customers they were Vabu and effectively performed all of Vabu's operations in the outside world. It would be unrealistic to describe the couriers other than as employees.
(Citations omitted and emphasis added.)
214 Another brief example is the Full Court's decision in Ace Insurance (FC), which involved an inquiry into whether five insurance sales agents were employees of a general insurer named "Combined". Having reviewed the relevant principles and evidence, Buchanan J, with the agreement of Lander and Robertson JJ, concluded as follows at [148]:
The overwhelming impression from the evidence is that the agents at each of the three levels were specifically trained by Combined in particular techniques of selling which Combined had adopted as its own, and the training was constantly reinforced. They then worked under close direction, supervision and organisation with a view to selling insurance products in a way determined by Combined. They had no real independence of action or true independence of organisation.
(Emphasis added.)
215 In the present case, the applicants provided a "Table of Indicia" to the primary judge that outlined various factors which were contended to indicate an employment relationship. In relation to the applicants' submission that the company exercised control over them, the primary judge relevantly noted the following in opposition, or by way of qualification:
(a) the number of hours in fact worked by the applicants and the flexibility around returning home once all deliveries were completed indicated a relationship of less control than might be expected of a typical employer-employee relationship (Primary Judgment at [187]);
(b) the applicants were not instructed by the company to wear a uniform (ibid at [188]);
(c) the company had no real control over the way in which Mr Jamsek and Mr Whitby managed and operated their trucks and the company did not purport to exercise control in any way in respect of the decisions to purchase trucks or maintain them (ibid at [189]). The company did not have the authority to direct the management and control of the trucks, being assets of the Partnerships (ibid at [191]);
(d) the fact that the applicants were told what to deliver was not an indicia that necessarily characterises the relationship as one of employment because any external courier would be told the same thing (ibid at [190]);
(e) the applicants secured their own loads in the trucks; they were not supervised in doing so or delivering the products (ibid at [194]);
(f) with limited exceptions, the applicants were not in fact directed in how to conduct their deliveries (ibid at [192], [195] and [197]);
(g) certain aspects of the contracts - including the disputes procedure and the ability of the company to determine the priority of deliveries - were not indicative of control over the applicants (ibid at [200]-[205]);
(h) the fact that the applicants performed cleaning work at the warehouse on isolated occasions was "consistent with the give-and-take one might expect to see in the context of the long standing relationship each had with the company" (ibid at [209]);
(i) the applicants notified the company when they wanted to take leave (ibid at [210]); and
(j) the fact that Mr Jamsek paid for someone to carry out his delivery activities when he took leave in 2000 weighs against the conclusion he was an employee (ibid at [211]).
216 I do not take issue with all of these points and acknowledge that the applicants did possess a degree of freedom over the operation of their day-to-day activities. However, there are aspects of the control of the applicants by the company which, in my view, deserve prominence in the circumstances of the present case.
217 The first aspect of control is the duration of the hours worked by the applicants each day. They were required to work from 6 am to at least 3 pm on each work day Monday to Friday. The primary judge accepted (at [187]) that "there was undoubtedly an expectation (expressly referred to in the 1993, 1998 and 2001 Contracts) that the applicants would, or would be available for, work for 9 hours per day", and (at [183]) that, during the entirety of their long working relationship the applicants "worked more or less regular hours with a relatively constant set of working arrangements". However, the primary judge expressed (at [187]) that "[t]he number of hours in fact worked and the flexibility around returning home once all deliveries were completed, rather than being required to return to the warehouse, perhaps to perform other work, indicates a relationship of less control than might be expected of a typical employer-employee relationship".
218 There were indeed aspects of flexibility possessed by the applicants that "traditional" employees may not have been afforded. For one, if the applicants made all the deliveries for that day, they were commonly entitled to head home. That said, in light of the long relationship between the applicants and the company, and given the applicants were expected to work nine hours a day for the company for nearly 40 years, this flexibility should not be viewed as materially indicative of the applicants undertaking an independent business.
219 Second, for the majority of their working relationship, the applicants' trucks were adorned with the logo of the company. In 1990, Mr Jamsek was asked to, and did, install a tarpaulin on the truck bearing a "Thorn" logo and arranged to have the truck painted. In 1993, upon request by the company, Mr Whitby purchased a new tarpaulin, which the company installed and affixed the company logo. Around 2002, the company supplied and installed a new tarpaulin on Mr Whitby's truck. The company paid half the cost of the tarpaulin and the company logos that were added after installation of the tarpaulin. Around 2008 or 2009, the company supplied and installed on Mr Whitby's truck a black tarpaulin bearing both "Thorn" and "Zumbotel" logos. However, from 2010, Mr Whitby disassembled the gates and tarpaulin on his truck so it would become a "flatbed", and from that point forward did not bear a company logo.
220 The following photos are three examples provided by Mr Whitby of the versions of tarpaulins supplied by the company during the working relationship:
221 There is likewise evidence as to the clothing worn by the applicants during their work. While working for ALI, the applicants wore a uniform with an "ALI" logo that was supplied by the company. Mr Jamsek stated that, around the time of the 1993 Contract, he was supplied with "Thorn" uniforms to replace the "ALI" uniforms. From time to time thereafter, the company provided or made available to the drivers items of clothing bearing branding of the business or company. The primary judge concluded (at [99]) that the applicants wore a mix of clothing provided by the company (bearing branding or logos) and their own clothing.
222 The following photo is an example provided by Mr Whitby of a uniform that was supplied to him by the company:
223 The primary judge's consideration of the company branding on the trucks and worn by the applicants was confined to the following passages:
[188] I accept that Mr Whitby and Mr Jamsek wore branded clothing to varying degrees over the years. They would wear a mix of personal and branded clothing. I do not accept that they wore what might be described as a full uniform. They were not instructed by the companies to wear a uniform.
[189] The companies did not own their own trucks. The companies had no real control over the way in which Mr Whitby and Mr Jamsek managed and operated their trucks. The contracts expressly required the "Delivery Contractor" to "exercise all reasonable care and diligence in the carriage and safe keeping of the goods in their charge". The companies did not purport to exercise control in any way in respect of the decisions to purchase trucks or maintain them. They requested, on occasions, that tarpaulins be added to which company logos were affixed.
(Emphasis added.)
224 With respect to the primary judge, the fact that the company ostensibly required, or at least expected, the applicants for a substantial part of their relationship to adorn their trucks with the company logo and wear (and least in part) clothing adorned with the company logo, deserved greater emphasis in assessing the nature of the relationship between the applicants and the company. Although there may not have been a prescriptive policy regarding the applicants' clothing during work, and there was no evidence of the company expressly requiring the applicants to wear particular clothing, there was an underlying pattern of conduct that supports the inference of an expectation that the applicants would, at least ordinarily, wear clothing bearing the company logo.
225 The effect of this conduct was to encourage stakeholders to identify the applicants as part of the company's staff: Vabu at [52]. In the circumstances, it would not have been misleading to describe the applicants as representatives of the company, which is a matter indicating an employment relationship: Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia [1931] HCA 53; 46 CLR 41 at 48 per Dixon J, cited in Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 at 366 per McHugh J. Additionally, the adornment of the trucks with company logos is also relevant to the separate consideration, as discussed below, as to the extent to which the applicants could reasonably be expected to work for others beyond the hours prescribed for company work. In this regard, the specific branding would likely have limited the opportunity for the applicants to obtain alternative work.