Is the Agreement a s 127A contract?
36 An application under s 127A of the WRA is concerned with the review of the terms of a contract at the time the contract was made and not any subsequent conduct: see Finch v Herald & Weekly Times Ltd (1996) 65 IPR 239 per North J at 251 and Harding v EIG Ansvar Ltd [2000] FCA 46 per Spender J at para 37. An issue was raised as to which contract the application related to: was it the drivers' agreement as entered into on 10 August 1996, or was it the contract that existed after the accreditation system, which placed new requirements on drivers, began? As a result of the accreditation system, new By-laws were created, such as that imposing the requirement to wear uniforms. As the drivers' agreement required drivers to comply with the By-laws there was an alteration of the terms of the contract, thereby giving rise to an offer for a new contract. In this case, the applicant's conduct, by the continued use of the network and enjoyment of the benefits of the contract, allows the inference to be drawn that he accepted the variation of the terms of the contract, thus giving rise to a new contract, despite there being no actual communication by the applicant of his acceptance, as is usually required: see Commonwealth of Australia v Crothall Hospital Services (Aust.) Ltd (1981) 36 ALR 567 at 580 per Ellicott J, Blackburn & Deane JJ agreeing; Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 528 per Kirby P and at 534-535 per McHugh JA; and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 at para 173 per Ipp AJA, Mason P agreeing. It is clearly the contract as amended by the introduction of accreditation that is the subject of this application.
37 It was agreed that the applicant was not an employee of the respondent but was rather an independent contractor. But it was argued that he provided no service to the respondent and, therefore could not fall within s 127A. Section 127A is remedial legislation and should be beneficially read in favour of the classes of persons it was intended to protect. Those classes are not limited to the independent contractors who personally perform work and who are expressly referred to by the section. A concurrent purpose (among other, concurrent purposes), is the protection of employees against having their wage and conditions, as fixed by the various processes - awards and different kinds of recognised agreements made available by the WRA, undermined by oppressively cheap competition from "quasi-employee", independent contractors. The latter purpose is readily inferred from the terms of s 127A(4)(d) and from the terms, objects and purposes of the Act generally. Section 127A occurs in Part VI of the Act, entitled "Dispute prevention and settlement" and s 88A provides that:
"The objects of this Part are to ensure that:
(a) wages and conditions of employment are protected by a system of enforceable awards established and maintained by the Commission; and
(b) awards act as a safety net of fair minimum wages and conditions of employment"
38 Clearly, the respondent provided the applicant with services pursuant to the Agreement, namely its radio network services. In my opinion, but for the terms of s 127A(3)(b) and (c), this would be enough to enable s 127A to catch the Agreement: it is a contract for services; it is binding on an independent contractor and, in my view, it "relates to" the performance of work by him or her. There is no justification for reading down the language of s 127A(1). However subs (3) indicates that the contracts touched by the section are to be those as to which the interested parties are, on the one hand, the "independent contractor" and, on the other, "the person contracting for the services". This is a clear indication that the section was indeed intended to be limited to cases where one party, the "independent contractor", performs work and thereby provides services to the other, the "person contracting for the services". It would not be enough that the applicant had provided services, for example, to the taxi-owner, for s 127A(1)(a) to catch his contract with the respondent. (See below as to whether the arrangements between the applicant and respondent are, within s 127A(1)(b), collateral to a contract of services with the particular taxi-owner.)
39 The next question then is whether a driver provides the respondent with services such as to allow the Agreement to be classified as a contract for services. While it is fair to say that the driver principally provides a service to the members of the public whom he or she transports, in relation to the respondent, the possible services that a driver may be said to provide are some which assist the respondent's marketing effort. These include:
· the wearing of a uniform bearing the respondent's name and logo;
· ensuring that the taxi is clean and tidy at all times;
· exhibiting politeness and courtesy to passengers;
· the requirement that the driver must answer requests for a taxi once booked into the network (although he or she can choose not to accept a booking); and
· the necessity to attend promptly (within a time set by the respondent) upon a waiting passenger whose booking the driver has accepted.
40 When an individual who can, in the sense explained above, be called an independent contractor contracts to provide some service, it is not, despite the necessity for a liberal interpretation of s 127A(1), the case that such contract is necessarily to be characterised as a contract "for services". The question calls for assessment of the purpose of the contract and involves matters of degree. If a consumer, in the course of buying a television set from a sole trader who sells and repairs such goods, haggles on price and arranges that, for the vendor's last price offered, the vendor will deliver the set and get it working in the consumer's house, neither party would be entitled to the benefit of s 127A. Although the services of delivery and set-up are contracted for, the contract cannot realistically be characterised as a contract for services. It is a contract for sale of a television set; the condition that some, relatively minor services will be supplied is a mere adjunct to the contract. The same would be true of a contract for the sale of a motor vehicle to a carpenter where the consideration is mainly cash but, in part, also the carpenter's promise to install some shelving for the vehicle vendor. The contract remains one for sale of a vehicle, and not one "for services" even though services are to be performed. However, compare the position if the carpenter has let it be known that he wants work and will accept payment in kind by the transfer to him of a suitable vehicle. The contract might fairly be called one for services as well as for sale of the vehicle.
41 In the present case, my view is that the contract is fairly to be understood as one for access to the radio network, that is for a service provided by the respondent and not the driver. While the fulfilment of the driver's obligations provide some marketing or public relations benefits, and in that sense a service, to the respondent, the driver also benefits directly and substantially from the fulfilment of those obligations. It is not realistic to say that the contract is one for the driver's services as well as for the respondent's services. The driver promises to accept the respondent's terms and conditions. While that promise is valuable to the respondent, one cannot say that it is the purpose, or a principal purpose, of the contract. The gist of the contract is not the provision of services, by the driver's work, for the respondent.
42 In deference to the matters argued, I deal with some more specific submissions.
43 In relation to the requirement that the driver attend to bookings, the position, as agreed between the parties, is that a driver has the option not to accept a booking. By a driver's agreeing to be bound by the By-laws as to the matters relating to punctuality and acceptance of fares, the driver is doing no more than is required by reg 13(1) of the Taxi and Hire Car Regulations (ACT). That requires the driver of a taxi to "not neglect, refuse or fail to carry out punctually any hiring he or she has agreed to take".
44 The same can be said of the By-laws as they relate to overcharging and compliance with s 36 of the Motor Traffic Act. In large measure, the Agreement merely re-obliges drivers to do what they are already legally bound to do. In being so re-obliged, it cannot be said that the driver is providing the respondent with a service within the meaning of s 127A of the WRA.
45 Acceptance by drivers of the degree of control by the respondent over them, arising from the discipline system is not, in any meaningful sense, indicative of the driver providing the respondent with services. An internal remedy for breach of the contract is hardly a principal purpose of the contract.
46 Counsel for the applicant sought to place reliance on the contract between the respondent and the government, characterising that contract as giving rise to an obligation on the respondent to provide not only a radio network but the entire gamut of taxi services in the Australian Capital Territory. Accordingly, it was submitted that, by agreeing to the By-laws as to performance of their work, drivers were providing a service to the respondent, namely driving services, that allowed it to provide an entire service to the public. However, the evidence was that a driver is not obliged to accept a booking but may choose to obtain