Notification under section 130 of the Industrial Relations Act 1996 by the Australasian Meat Industry Employees' Union, New South Wales Branch, of a dispute with Peter Stoitse Transport Pty Ltd and another re industrial action and the Australasian Meat Industry Employees' Union, New South Wales Branch (on behalf of Kevin Freund and others) and Peter Stoitse Transport Pty Ltd and another [2002] NSWIRComm 185 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

Notification under section 130 of the Industrial Relations Act 1996 by the Australasian Meat Industry Employees' Union, New South Wales Branch, of a dispute with Peter Stoitse Transport Pty Ltd and another re industrial action and the Australasian Meat Industry Employees' Union, New South Wales Branch (on behalf of Kevin Freund and others) and Peter Stoitse Transport Pty Ltd and another [2002] NSWIRComm 185

[2002] NSWIRComm 185

Industrial Relations Commission (NSW)|2002-07-01|Before: Sams DP

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-07-01

Before

Sams DP

Source

Original judgment source is linked above.

Judgment (145 paragraphs)

[1]

CITATION : Notification under section 130 of the Industrial Relations Act 1996 by the Australasian Meat Industry Employees' Union, New South Wales Branch, of a dispute with Peter Stoitse Transport Pty Ltd and another re industrial action and the Australasian Meat Industry Employees' Union, New South Wales Branch (on behalf of Kevin Freund and others) and Peter Stoitse Transport Pty Ltd and another [2002] NSWIRComm 185 NOTIFIER (Matter IRC 6347 of 2000) Australasian Meat Industry Employees' Union APPLICANT (Matters IRC 145, 146 & 147 of 2001) PARTIES : The Australasian Meat Industry Employees' Union, New South Wales Branch on behalf of Kevin Freund, Noel James Black and Rodney Wait FIRST RESPONDENT (all matters) Peter Stoitse Transport Pty Ltd SECOND RESPONDENT (all matters) Workforce On Tap FILE NUMBER: 6347 of 2000 and 145, 146,147 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - conduct of proceedings - Settlement with first respondent - Industrial Relations Commission Rules - ex-parte proceedings - Rule 83(a) - real and effective employer - "control test" - principles considered - contract of employment - Temporary Employment Agreement - Australian Workplace Agreement - employees not offered further work - whether dismissal occured - notice and warnings of dismissal - whether dismissal "harsh, unjust or unreasonable" - practicality of reinstatement - compensation - meaning of s89(6) of the Act - principles considered. CATCHWORDS : Held, proceedings determined exparte - second respondent was real and effective employer - applicants' evidence accepted - applicants dismissed without notice or warning - applicants dismissed for objecting to the terms of an Australian Workplace Agreement - dismissals "harsh, unreasonable and unjust" - applicants long periods of service - difficulty in finding work in country New South Wales - reinstatement a nullity - compensation at maximum amounts - terms of s89(6) limited to earnings in the 6 months after dismissal - 6 months compensation less amounts earned after dismissal - orders made - proceedings concluded, save for any cost application. LEGISLATION CITED : Industrial Relations Act 1996 Freund and Ors and Peter Stoitse Transport Pty Ltd and anor [2002] NSWIRComm 54 Drake v Commissioner of State Revenue [2000] VSCA 122 Zuijs v Worth Brothers (1955) 93 CLR 561 Queen v Foster and others (1952) 85 CLR 138 CASES CITED : Australian Mutual Provident Society v Allen and Another 52 ALJR 407 Vabu Pty Ltd v Commissioner of Taxation 81 IR 150 Hollis v Vabu Pty Ltd [2001] HCA 44 Dalgety Farmers Limited v Bruce (1995) 12 NSW CC R 36 Morgan v Kittochside Nominees Pty Ltd [2002] AIRC PR918793 D & R Commercial Pty Ltd and Flood 2002 NSWIRComm 88 HEARING DATES: 06/25/2002 DATE OF JUDGMENT: 08/08/2002

[68]

49 The agreement provides, inter alia, for the following terms: 1. My employment with Workforce On Tap is as a temporary on an assignment by assignment basis, with each assignment constituting a discrete period of employment. I may accept or reject any offer of an assignment from Workforce On Tap. On completion of an assignment, whether satisfactory or otherwise, Workforce On Tap is under no obligation to offer me further assignments; … 3. I accept that if a customer of Workforce On Tap varies the length of an assignment period or terminates my attendance at an assignment, as provided for in point 2 above, Workforce On Tap has the right to discontinue my employment and to not offer me further assignments with other customers in the future. Where notice of termination is necessary, such notice shall be in accordance with the terms of the relevant Award, Site or enterprise Agreement; 4. I accept that I am under the care, control and supervision of Workforce On Tap's customer during the period of any assignment in regard to defined working arrangements and the manner and proficiency in which my work is to be performed. I acknowledge the right of Workforce On Tap's customer to direct my work activities; … 6. Payment for my work will be made by Workforce On Tap on a weekly basis only on receipt of a Workforce On Tap time sheet, correctly completed and with appropriate authorisation by an approved customer supervisor, or by some other method defined by Workforce On Tap. … 15. I understand that it is my responsibility to provide an authorised Workforce On Tap time sheet to the Workforce On Tap office and acknowledge that I will not be paid if the time sheet is not provided. … 17. I agree to notify Workforce On Tap as soon as is practicable, but no later than normal start time on any day, that I am unable to attend during any period of an assignment; … 19. For a period of six months from the cessation of my last assignment, I agree that I will not seek or accept a direct offer of employment whether temporary, contract or permanent from any customer, former customer, employee or former employee of Workforce On Tap to whom I am introduced without first notifying Workforce On Tap; 20. I agree to complete an Employment Declaration (Australian Taxation Office form) with Workforce On Tap this financial year if I have not already done so; … 22. Workforce On Tap is responsible for statutory Workers' Compensation Insurance and, in the event of any injury occurring during an assignment, I will contact Workforce On Tap with details immediately;

[87]

68 In the same judgment, Sheller J summarized the current state of the law on the subject. It is appropriate to quote extensively from his Honour's judgment: Consideration, in any particular case, of whether a relationship of employer and employee exists, starts with the High Court's decision in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. At 24 Mason J, with whose judgment Brennan J was in general agreement, said that a prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. The importance of control lies not so much in its actual exercise, though that is relevant, as in the right of the employer to exercise it. But his Honour said: "… the existence of control, while significant, is not the sole criterion by which to engage whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: …other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee." …At 26 Mason J said that the power to delegate is an important factor in deciding whether a worker is a servant or an independent contractor and referred to Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407 at 410. At 27 his Honour referred to what has been called the "organisation" test, that is to say, that the person engaged was part and parcel of the other's organisation and said he was unable to accept that the original test could result in an affirmative finding that the contract was one of service when the control test either on its own or with other indicia yielded the conclusion that it was a contract for services: "Of the two concepts, legal authority to control is the more relevant and the more cogent in determining the nature of the relationship." However at 29 his Honour reiterated that Control is not now regarded as the only relevant factor: "Rather it is the totality of the relationship between the parties which must be considered." At 36-37 Wilson and Dawson JJ said that in most cases it is still appropriate to apply the control test in the first instance because it remains the surest guide to whether a person is contracting independently or serving as an employee. Other indicia suggesting a contact of service rather that a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax: "None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance. However an attempt to list relevant matters may mislead because they are no more than guides. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance." Deane J agreed with the reasons set out in the judgment of Mason J for the conclusion that the persons engaged were independent contractors and not employees.

[88]

69 To this authority may be added the more recent views of the majority of the High Court in Hollis v Vabu Pty Ltd [2001] HCA 44 concerning the "control test". At Para 43 - 45 of the judgment, Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ said: Control These notions also influence the meaning to be given today to "control" as a discrimen between employees and independent contractors. In Stevens v Brodribb Sawmilling Co Pty Ltd, the Court was adjusting the notion of "control" to circumstances of contemporary life and, in doing so, continued the developments in Zuijs v Wirth Brothers Pty Ltd [60] and Humberstone v Northern Timer Mills . In Humberstone , Dixon J observed that the regulation of industrial conditions and other statutes had made more difficult of application the classic test, whether the contract placed the supposed employee subject to the command of the employer. Moreover as has been pointed out: The control test was the product of a predominantly agricultural society. It was first devised in an age untroubled by the complexities of a modern industrial society placing its accent on the division of functions and extreme specialisation. At the time when the courts first formulated the distinction between employees and independent contractors by reference to the test of control, an employer could be expected to know as much about the job as his employee. Moreover, the employer would usually work with the employee and the test of control and supervision was then a real one to distinguish between the employee and the independent contractor. With the inventions and growth of the limited liability company and the great advances in science and technology, the conditions which give rise to the control test largely disappeared. Moreover, with the advent into industry of professional men and other occupations performing services which by their nature could not be subject to supervision, the distinction between employees and independent contractors often seemed a vague one. It was against that background that in Brodribb , Mason J said that, whilst these criticisms might readily be acknowledged: the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, 'so far as there is scope for it', even if it be 'only in incidental or collateral matters': Zuijs v Wirth Brothers Pty Ltd . Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered. So it is that, in the present case, guidance for the outcome is provided by various matters, which are expressive of the fundamental concerns underlying the doctrine of vicarious liability. These include, but are not confined to, what now is considered "control".