Plaintiff v First Defendant

1 The first defendant, the Victorian WorkCover Authority ('the VWA'), is the statutory authority responsible for the administration of compensation claims made under the Workplace Injury Rehabilitation and Compensation Act 2013 ('the WIRCA'). In 2016 the second defendant, Mr George Barca, lodged such a claim with QBE Workers Compensation (Vic) Ltd ('QBE'), an authorised agent of the VWA. He alleged that he had suffered an accidental injury on 2 October 2015 in the course of providing emergency roadside assistance to a member of the Royal Automobile Club of Victoria ('RACV'). Mr Barca had been engaged by the plaintiff, Eastern Van Services Pty Ltd ('EVS'), pursuant to a series of written contracts, to do work of the kind that he was doing when he was allegedly injured. EVS, in turn, was operating under a contract with a subsidiary of RACV under which EVS was required to supply emergency roadside assistance services to members of RACV and others.

2 By making his compensation claim, Mr Barca asserted, in effect, that he was a 'worker' and that EVS was his 'employer' for the purposes of the WIRCA. QBE accepted Mr Barca's claim. QBE thus accepted that Mr Barca was a 'worker' and that EVS was his 'employer' at the relevant time.

3 EVS objected under s 79 of the WIRCA to QBE's acceptance of Mr Barca's claim, contending that Mr Barca was not a 'worker' in relation to his RACV work, but rather a self-employed independent contractor. EVS relied in particular on the terms of the written contract between itself and Mr Barca that was in force at the time of the incident, namely a contract dated 29 October 2014; on indications that Mr Barca had his own business as a mobile mechanic; and on Mr Barca's tax arrangements, among other things. However, under s 84 of the WIRCA, the VWA confirmed the decision of its authorised agent to accept Mr Barca's claim. The VWA was satisfied Mr Barca was an employee of EVS under the general law. On that basis it concluded that he was a 'worker' within the meaning of the principal definition of that word in the WIRCA. The VWA also determined that, in the alternative, Mr Barca was a person deemed by certain other provisions of the WIRCA to be a 'worker'.

4 EVS now appeals under s 85 of the WIRCA against VWA's decision to confirm the acceptance of Mr Barca's claim. The VWA no longer contends that Mr Barca was a 'deemed worker', but continues to maintain that Mr Barca was an employee of EVS and that, therefore, he was a 'worker' within the principal definition. Until late 2018, EVS's position was simply that Mr Barca was not an employee but rather a self-employed independent contractor within the meaning of the general law, and that, for that reason, he was not a 'worker' within the meaning of the WIRCA. However, in post-hearing written submissions filed in late 2018 in response to an invitation to the parties to comment on certain intervening decisions of this Court,[1] and after a change of senior counsel, EVS advanced for the first time - presumably in the alternative - a legal submission to the effect that, for the purposes of the WIRCA, the concept of 'worker' under the principal definition of that term is narrower than the general law understanding of 'employee', and that Mr Barca fell outside that narrower concept. For the reasons set out below, I do not accept EVS's new legal submission nor EVS's original contention. In my view, Mr Barca was an employee of EVS in relation to Mr Barca's RACV work. And, in my view, that is enough to show he was a 'worker' and that EVS was his 'employer' within the meaning of the WIRCA. Accordingly, the appeal will be dismissed.

5 This case has a long and complicated procedural history. That history is intertwined with the history of another appeal in this Court under s 85 of the WIRCA, namely a matter in which the appellant was BSA Ltd_._ That matter concerned whether a certain Foxtel satellite equipment installer was or was not a 'deemed worker' for the purposes of the WIRCA.

6 The BSA Ltd matter ('the BSA matter') was commenced before the commencement of the present appeal. In an interlocutory ruling given in the BSA matter on 29 July 2016, Garde J decided that an appeal under s 85 of the WIRCA is in the nature of a de novo appeal rather than in the nature of judicial review.[2] The present appeal was commenced about a week later, on 8 August 2016.

7 The present appeal was commenced by originating motion. An affidavit of the managing director of EVS, Mr Antonio Re, sworn 5 August 2016 was filed in support of the appeal.

8 As at the commencement of the appeal and for some ten months thereafter, the only other party to the appeal was the VWA. It had been named as the sole defendant.

9 During that period of approximately ten months, various interlocutory steps were taken as between EVS and the VWA. A second affidavit of Mr Antonio Re was filed on 19 September 2016. Between 31 October 2016 and 11 November 2016, the then parties exchanged notices to admit and notices of dispute. There was an application by the VWA for EVS to give discovery of documents. That was opposed. On 13 February 2017, Daly AsJ ruled on the discovery dispute, ordering certain discovery against EVS. Subsequently, on 17 March 2017, a solicitor acting for the VWA, Alexander Murphy, affirmed and filed an affidavit exhibiting documents that had been discovered by EVS pursuant to the order made by Daly AsJ. There were 17 such exhibits to Mr Murphy's affidavit. On 31 March 2017 a court book (of 513 pages) was filed.

10 The appeal was listed for hearing before me on 27 April 2017. There were still only two parties, EVS and the VWA. At the hearing, I raised a concern about the absence of Mr Barca as a party to the appeal. My concern was based on the possible adverse implications for Mr Barca under ss 89 and 90 of the WIRCA if the appeal was to succeed. After discussion of the point, the then parties recognised that the appeal could not duly proceed without, at least, formal notice being given to Mr Barca. Accordingly, the hearing was adjourned to enable proper steps to be taken in that regard.

11 On 18 May 2017, I made a consent order on the papers to the effect that Mr Barca be joined to the proceeding as the second defendant. On 29 May 2017, I made a further consent order on the papers re-listing the appeal for hearing on 1 August 2017 (with an estimate of 1 - 2 days) and giving various procedural directions made necessary or appropriate by the addition of Mr Barca as a second defendant.

12 Thereafter, the plaintiff gave Mr Barca a notice to admit and Mr Barca filed a notice of dispute in response. On 4 July 2017 a third affidavit of Antonio Re was filed, accompanied by three new exhibits. On 12 July 2017 a fourth affidavit of Mr Re, accompanied by a further five exhibits, was filed. No evidence was filed on behalf of Mr Barca. However, he took up a position of opposition to the appeal; and the VWA continued to do likewise. Fresh outlines of written submissions were exchanged between all of the parties. On 25 July 2017 a supplementary court book (of 83 pages) was filed.

13 The (reconstituted) appeal duly came on for hearing, before me, on 1 and 2 August 2017. By agreement, both the court book and the supplementary court book were received, in their entirety, as court exhibits, albeit on the basis that the written submissions contained therein were to be treated as submissions only. The court books included all of the abovementioned affidavits together with their respective exhibits. Two additional documentary exhibits were received, being written contracts entered into between EVS and Mr Barca in 2010 and 2014 respectively. The defendants had required Mr Re to attend for cross-examination on his affidavits. Accordingly, Mr Re gave oral evidence-in-chief adopting his affidavits. He also identified the two written contracts just mentioned. Mr Re was cross-examined by counsel for each defendant respectively, and was re-examined. No other oral evidence was given by any witness. The VWA's solicitor, Mr Murphy was not required for cross-examination on his affidavit of 17 March 2017 (or at all). Nevertheless, the hearing fully occupied both of the days provided. In addition, leave was given to senior counsel then appearing (with Ms Nelson) for EVS, Mr Green QC, to complete his submissions in reply in writing, and he did so. Further, I directed the parties to file and serve a joint chronology of relevant events, matters and circumstances, to be agreed as far as possible. Otherwise, judgment was reserved. A joint chronology was filed on 9 August 2017.

14 At about this time, the Supreme Court was continuing to deal with the abovementioned BSA matter in relation to which the interlocutory judgment of Garde J had been given. The circumstances of the BSA matter were, to some extent, comparable with the circumstances of the present case. On 4 August 2017 the BSA matter came on before me for the hearing of a further interlocutory application. I noted that, as had happened in the present case, the putative (deemed) 'worker' had not been made a party. At the end of the hearing I made orders for joinder corresponding with the orders made in the present case. The substantive appeal in the BSA matter was ultimately heard in December 2017 by McDonald J. His Honour gave judgment on 13 February 2018 ('BSA').[3] In that case, the only issue was whether the individual in question was a 'deemed worker'. In the present case, as already indicated, the VWA had ceased to rely on the 'deemed worker' provisions. Hence the only (ultimate) issue in the present case was whether Mr Barca was a 'worker' (and EVS his employer) within the principal definition of 'worker' in the WIRCA. Nevertheless, similarities between the circumstances of the cases remained.

15 An appeal against the decision of McDonald J was commenced by the unsuccessful party, BSA Ltd. The appeal was heard by the Court of Appeal on 10 September 2018 and judgment was reserved. To that stage, no party to the present case had indicated any desire to be heard on BSA. On 29 September 2018 I notified the parties to the present case that, unless any of them sought to be heard on the judgment of McDonald J in BSA or on the fact that judgment was pending in the appeal from McDonald J, I proposed to list the present proceeding for judgment on 18 October 2018. On 9 October 2018 the solicitors for the appellant (EVS) notified my chambers that EVS did wish to be heard on BSA prior to any judgment being delivered in the present matter. Correspondence between the parties ensued. On 11 October 2018, I made consent directions on the papers for the exchange of further written submissions. On 19 October 2018 notification was received that the Court of Appeal would deliver judgment on 24 October 2018. On the same day (19 October 2018) I made a further consent order, on the papers, for a revised timetable for written submissions. On 24 October 2018, the Court of Appeal dismissed the appeal from McDonald J in BSA ('the BSA appeal').[4] Thereafter, in accordance with the new timetable, each party filed written submissions referring to the two BSA Ltd decisions. The last of those written submissions was filed on 19 November 2018.

16 As indicated above, EVS raised a quite new legal submission by means of its post-hearing written submissions relating to BSA and the BSA appeal. Because that submission relates in large part to the proper interpretation of the provisions of the WIRCA relating to the identification of a 'worker', and because I do not accept it, I will deal with it before I return to the parties' previous submissions. However, it is desirable to refer first to the parties' joint chronology.

17 As mentioned above, shortly after the August 2017 hearing the parties filed a joint chronology of relevant events, matters and circumstances, as I had directed them to do. The joint chronology is based partly on the documentary exhibits, partly on the oral evidence of Mr Re (about which there was little dispute) and partly on points otherwise agreed. The document clears up several factual issues that needed clearing up. It covers a considerable amount of ground. On the other hand, it is not fully detailed or fully comprehensive in itself. Appropriately, it is endorsed with a statement that it is not intended to be a substitute for an examination of the evidence as a whole. Of course, I accept that statement. However, the joint chronology is a very helpful document. Every item in the document, except one (which is identified below), is stated to be agreed. As is invariably the case, the very fact that the items are arranged in chronological order is helpful. It is convenient to reproduce the parties' joint chronology now, omitting only the transcript and court book references given and references in it to certain procedural steps taken in this appeal that I have already covered or that do not call for mention:[5]

EVS is part of the Nationwide Group, being wholly owned by Nationwide Towing & Transport Pty Ltd.

EVS commenced using a contract in a form effectively the same as the contract dated 29 October 2014 between EVS and George Barca (GB) with all its contractors, with variations over the years.

GB registered as an individual sole trader with the Australian Business Register.

GB registered the business trading names 'All Districts Mobile Mechanic' and 'Jim's Mobile Mechanics'.

* GB carried on a mobile mechanics business under the name All Districts Mobile Mechanics using a liveried van and uses various media outlets to promote the business. *

* This is the one item that is disputed by the first and second defendants (see further below).

GB purchases Toyota Hiace UWM-431 (the Hiace van).

The Hiace van was liveried, 'All Districts Mobile Mechanics'.

EVS entered into a written contractual arrangement with GB, whereby GB agreed to provide emergency roadside services to EVS (the 2010 Contract).

EVS entered into a written contractual agreement with RACV Road Service Pty Ltd (RACV) whereby EVS agreed to provide emergency roadside services to RACV members and members of the public interested in becoming RACV members (the RACV Contract).

EVS entered into a written contractual arrangement with GB (who is described in Schedule A to the contract as 'George Barca - All Districts Mobile Mechanic') whereby GB agreed to provide emergency roadside services to EVS (the 2012 Contract).

EVS entered into a written contractual arrangement with GB (trading as 'All Districts Mobile Mechanic' and 'Jim's Mobile Mechanics') whereby GB agreed to provide emergency roadside services to EVS (the Contract).

For the purposes of providing the Services the subject of the Contract GB was provided with an RACV liveried van by EVS.

In providing the Services the subject of the Contract GB wore an RACV liveried uniform provided by EVS.

In providing the Services the subject of the Contract GB was required to comply with EVS' OHS policies, quality control policies, performance standards, professional conduct policies, vehicle standards.

EVS expected GB to adhere to the RACV specifications described in Schedule B to the RACV Contract, namely those set out in the Road Services Contractors' Procedure Manual at CB 352-433 and the Metropolitan Road Services Operations Manual at CB 435-472 (the Manuals).

EVS did everything within its power to make sure that it complied with the obligation in clause 4 of Schedule B to the RACV Contract, by ensuring that drivers complied with the specifications in the manuals.

'In all the years [Mr Re had] not pulled out the RACV specifications in front of any drivers, or any drivers' meetings'. *

* This is a quote from evidence given by Mr Re in cross-examination.

In providing the services the subject of the contract, GB was paid at a rate set by EVS. The 'per job' rates that GB was paid are set out in the schedules to the 2010 Contract, the 2012 Contract and the Contract.

During his engagement with EVS, the fuel for the use of the van supplied by EVS was paid for by EVS by use of a BP fuel card to be applied for that purpose.

GB did not transfer to any other persons any rights or obligations pursuant to the Contract.

'Recipient Created Tax Invoices' were provided to GB by EVS in support of payment of fees to him.

GB was providing roadside assistance to an RACV member during which, so he alleges, he was involved in an incident causing him injury (the incident).

GB alleges he reported his injury/condition to EVS.

After a visit from Mr Re and Mr Hortis, an EVS manager, GB performed auditing work for EVS.

GB lodged a Tax Return for the year ended 30 June 2015 in which he represented that he earned a business income of $25,729 and $1,843 in Capital Gross Salary and Wage Income.

GB lodged a Tax Return claiming motor vehicle expenses of $2,390 (including actual fuel cost of $1,912) in respect of his Toyota Hiace UWM-431.

In that return GB declared income of $38,988. All of that income was paid by EVS.

GB lodged a Worker's Injury Claim form with QBE in which he named 'Nationwide Towing' as his employer and in which he alleged that he suffered an injury caused by the Incident (the Claim).

GB stated in his Worker's Injury Claim form, 'I have a small business mobile mechanic that has little to no work since heart surgery'.

EVS first receives medical certificate from GB in respect of the incident.

EVS submitted to QBE an Employer Injury Claim report in relation to the incident in which it disputed that GB was a 'worker' and disputed that it was his employer.

EVS formally requested a written statement of reasons for QBE's decision.

A listing for 'All Districts Mobile Mechanic' appeared on the website www.yellowpages.com.au.

A listing for 'All District Mobile Mechanic' appeared on the website www.truelocal.com.au.

A listing for 'All District Mobile Mechanics' appeared on the website www.aussieweb.com.au.

A listing for 'All Districts Mobile Mechanic' appeared on the website www.localbusinessguide.com.au.

Pursuant to s 79(1)(a) of the WIRCA, EVS lodged an objection to liability with the Authority on the ground that GB was not a 'worker' within the meaning of the WIRCA.

The Authority made a written determination that GB was a 'worker' as defined under the Act. As a result, it confirmed that the liability of the claim had been correctly accepted against the Work Cover policy of EVS.

EVS lodged an appeal against the determination under s 85 of the Act.

Mr Barca's Facebook page stated, 'George Barca. Self-employed. Studied at Dandenong College of TAFE. Went to Doveton Technical School. From Doreen, Victoria, Australia.'

A listing for 'All Districts Mobile Mechanics' appeared on the website 'Australia Business Directory' at www.aubizs.com.

18 As to the one disputed item in the joint chronology, the first and second defendants say that the evidence does not warrant a finding that Mr Barca actually carried on a mobile mechanics business continuously from June 2001 to the present time or that he has used various media outlets to promote the business throughout that period. Having considered all of the evidence, I agree with the first and second defendants in that regard. As the joint chronology recites, Mr Barca's claim for compensation dated 20 January 2016 stated that his small business as a mobile mechanic had had little or no work 'since having heart surgery'; and there is no indication when the heart surgery occurred. The only evidence of advertising relates to April 2016, by which time Mr Barca had ceased to perform work for EVS.

19 Further, by way of clarification, I note that, despite the reference in the joint chronology to EVS entering into a written agreement with RACV on 1 October 2011, I believe it to be common ground that EVS was providing emergency roadside services to or for RACV (under similar arrangements) as from 1999 (when EVS was incorporated). In any event, that seems to be implicit in the item in the joint chronology stating that from 1999 onwards EVS was using a contract in a form effectively the same as the contract dated 29 October 2014 between EVS and George Barca with all its contractors, with variations over the years.

20 The term 'worker' is defined in s 3 of the WIRCA as follows:

worker means an individual -

(a) who -

(i) performs work for an employer; or

(ii) agrees with an employer to perform work -

at the employer's direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise; or

(b) who is deemed to be a worker under this Act.

21 In the same section, there is an inclusive definition of 'employer', which, so far as relevant reads:

employer includes -

(a) a person -

(i) for whom a worker works; or

(ii) with whom a worker agrees to perform work -

at the person's direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise; and

(b) a person who is deemed to be an employer under this Act;

...

22 Section 4(3) of the WIRCA provides:

(3) Part 1 of Schedule 1 provides that, for the purposes of this Act, certain persons are deemed to be workers or employers.

23 So far as relevant, clause 9 of Schedule 1 provides:

9. Contractors

(1) This clause applies if -

(a) an entity (the principal), in the course of, and for the purposes of, a trade or business carried on by the entity, enters into a contractual arrangement with another entity (the contractor) for the provision by the contractor of services (not being transport services within the meaning of clause 8) to the principal for reward in respect of a relevant period; and

(b) the provision of the services by the contractor under the contractual arrangement is not ancillary to the provision of materials or equipment by the contractor to the principal under the contractual arrangement; and

(c) at least 80 per cent of those services are, or are to be, pursuant to the contractual arrangement, provided by the same individual (the individual) being -

(i) the contractor; or

(ii) if the contractor is a partnership, an individual member of the partnership; or

(iii) if the contractor is a body corporate - a member, director, shareholder or employee of the body corporate; or

(iv) if the contractor is the trustee of a trust - a person who may benefit under that trust or is an employee of the trustee; and

(d) the gross income of the contractor that is, or is to be, derived from the provision of the services pursuant to the contractual arrangement is, or is to be, at least 80 per cent of the total gross income of the contractor earned from services of the same class provided by or on behalf of the contractor in the relevant period.

(2) This clause does not apply in respect of a contractual arrangement if the Authority determines that, in providing services to the principal, the contractor is carrying on an independent trade or business.

...

(5) If subclause (1) applies -

(a) the individual is deemed to be a worker in respect of the relevant period; and

(b) the principal is deemed to be the employer of the individual in respect of the relevant period; and

(c) the total amount paid or payable by the principal to the contractor under the contractual arrangement, less -

(i) the applicable prescribed percentage (if any); or

(ii) if there is no applicable prescribed percentage, the part of that total amount not attributable to the provision of labour -

is deemed to be remuneration.

(6) In this clause -

...

services includes results (whether goods or services) of work performed.

The post-hearing legal submissions relating to BSA

24 As indicated above, in all of the written submissions filed prior to the hearing on 1 - 2 August 2017, it was common ground that the principal definition of 'worker' (contained in sub-cl (a) of the definition of that term in s 3 of the WIRCA) was to be read as invoking the concept of an employee at general or common law. To that stage, no party had suggested that either the words of the principal definition or the provisions relating to 'deemed workers' or even the fact that the WIRCA was an Act relating to workers' compensation threw any doubt on that proposition. On the other hand, the parties' joint approach in that regard was not based on any prior decision, of which I was aware, about the meaning of the definition of 'worker' in the WIRCA. In those circumstances, I decided to raise the point with the parties at the hearing. In response, they confirmed their joint position.[6]

25 In deciding to raise the point, I had speculated whether the words of sub-cl (a) of the definition (read with the definition of 'employer') might, particularly in a statute relating to worker's compensation, call for a broad interpretation, rather than a standard one. Such a view might have found support in the judgment of Allsop CJ in Tattsbet Ltd v Morrow.[7] In any event, at the hearing matters were left on the basis that I would proceed in accordance with the joint position of the parties unless, upon further reflection, I formed the view that the case could not be properly and fairly decided on that basis, in which event I would have called for further submissions on the point.

26 It had not occurred to me (nor, apparently, to any of the counsel then appearing in the case) that the statutory context might call for a reading of the definition of 'worker' in sub-cl (a) that was narrower than the concept of 'employee' at common or general law. Nor did my subsequent invitation to the parties to comment on the BSA case spring from any such notion. Rather, it sprang from the thought that the tenor of the judgments in BSA and the BSA appeal (given that there were certain factual similarities between that case and this) might assist the defendants' position in the present case, such that fairness called for EVS to be given an opportunity to comment on that possibility.

27 The written submissions that were prepared on behalf of EVS in response to my invitation for comment on BSA were prepared jointly by Mr C O'Grady QC, who had not previously been involved in the case, and Ms Davern-Nelson, who had. Without intending to diminish the role of junior counsel, I will hereafter, for the sake of clearly distinguishing those submissions from others, refer to them as the submissions of Mr O'Grady QC.

28 In his first, revised set of written submissions (filed on 31 October 2018), Mr O'Grady QC submitted that the BSA decisions supported the position of EVS in respect of the only outstanding matter in this proceeding, namely whether the relationship between EVS and Mr Barca was that of principal and contractor or employer and employee. He submitted that this support flowed from two inter-related features of the BSA decisions:

(a) First, he said, the BSA decisions illustrate how a number of the indicia relied upon by the VWA do not preclude an entity possessing those characteristics from being characterised as a contractor (as opposed to an employee) and the person engaging that entity being characterised as a principal (as opposed to an employer) for the purposes of the WIRCA;

(b) Second, he said, the approach adopted by the Court in the BSA decisions highlighted the importance of construing the definition of 'worker' in s 3 of the WIRCA consistently with the Act as a whole, including the deeming mechanism contained in clause 9 of Schedule 1 of the WIRCA.

29 Mr O'Grady QC then set out certain relevant provisions of the WIRCA. The provisions that he set out are included in the provisions set out above at paragraphs 20 - 23.

30 Mr O'Grady QC noted that the BSA decisions concerned the application of clauses 9(1) and 9(2) of Schedule 1 of the WIRCA. He observed that it appears to have been accepted in the BSA decisions that the relevant individual, Mr Yoresh, who was a director and the sole employee of the company Cloudless Vision Pty Ltd ('CV'), which had in turn contracted with BSA Ltd to install and upgrade Foxtel satellite television communication equipment, was not directly caught by the definition of 'worker' in s 3 of the WIRCA. Mr O'Grady noted that the issue in BSA was whether, by virtue of s 4(3) when read in combination with clause 9 of Schedule 1 of the WIRCA, Mr Yoresh was deemed to be a worker.

31 Mr O'Grady QC submitted that in BSA it was common ground that, subject to the operation of the exception contained in clause 9(2) of Schedule 1, clause 9 would apply. He further noted that it was agreed that the criteria contained in clauses 9(1)(a), 9(1)(b), 9(1)(c)(iii) and 9(1)(d) of Schedule 1 were met. Mr O'Grady submitted that this position was not questioned by McDonald J who, Mr O'Grady QC submitted, 'proceeded on the basis that CV was a contractor'.[8]

32 According to Mr O'Grady QC, it followed that the position adopted by the parties in BSA and accepted by McDonald J was that, on the facts before the Court in BSA, a 'contractual arrangement' between a 'principal' and 'contractor' 'for the provision by the contractor of services' was in place: Schedule 1 clause 9(1)(a).[9] Implicit in the Court proceeding in this way, Mr O'Grady QC submitted, was the acceptance of the proposition that an entity carrying on a business with the features identified by McDonald J at [39], [45]-[47], [49]-[54], [57]-[58] and [61] of BSA may nonetheless be a 'contractor' who provides services under a contract for services, not as an employee under a contract of service.

33 Mr O'Grady QC contended that these assumptions were not questioned or criticised by the Court of Appeal in the BSA appeal.

34 Mr O'Grady QC submitted that McDonald J had been prepared to proceed on the basis that BSA was a 'contractor' notwithstanding the following:

(a) Throughout the 2015 financial year in providing satellite installation services to BSA Ltd, CV was totally dependent upon BSA Ltd. BSA Ltd was CV's sole source of income during this period. CV never advertised its services to other potential customers. It did not present to the world at large as having any independent existence from BSA Ltd. Customers who received the benefit of the satellite installations carried out by CV were oblivious to its existence. CV's van had no signage. Mr Yoresh introduced himself to customers as being from Foxtel. He wore a Foxtel t-shirt with BSA Ltd insignia. CV was subject to significant external control by BSA Ltd.[10]

(b) The procedure set out in Schedule 5 of the contract between BSA Ltd and CV prescribing operating procedures regulated every aspect of:

(i) the work to be undertaken by CV;

(ii) obligations upon CV to communicate with BSA Ltd, particularly with respect to the issues of 'customer jeopardy', 'technical jeopardy', 'Foxtel jeopardy' and 'cable work jeopardy';

(iii) inventory management;

(iv) recruitment and selections;

(v) complaints procedures.[11]

(c) BSA Ltd retained the right to classify complaints received from customers. CV was obliged to respond to complaints in accordance with this classification in a way and within the time frame set out in the contract.[12]

(d) If BSA Ltd considered that CV was not actively working with BSA and the customer to resolve the complaint, BSA retained the power to take control and arrange whatever repairs or actions were considered necessary to resolve the complaints. All complaints were investigated by a BSA Ltd QA supervisor. If a BSA Ltd QA supervisor denied the complaint, BSA Ltd was responsible for providing a detailed description to Foxtel and the customer of why it was denied. In these circumstances, CV was precluded from making an offer of a cash settlement to the customer once the complaint has been denied.[13]

(e) Clause 23.2 of the contract precluded CV from providing to Foxtel any services 'that in the reasonable opinion of BSA Ltd are similar to the Services without first seeking the prior agreement of BSA Ltd which shall not be unreasonably withheld'. The effect of clause 23.2 was that, absent the agreement of BSA Ltd, CV was precluded from providing any services to Foxtel via the four other companies contracted to provide satellite installation services to Foxtel.[14]

(f) The effect of clause 23.3 when read in conjunction with the obligation to comply with the contractor availability period put in place by clause 5(b) of Schedule 5, was to preclude CV from providing any services to any other entity which would impact upon compliance with the 3-month availability period.[15]

(g) Clause 23.4 precluded CV from displaying or distributing any Foxtel branded matter, clothing or signage when carrying out work for other persons. The practical effect of that clause was to prevent CV from undertaking any work for the four other companies contracted to provide satellite installation services to Foxtel.[16]

(h) The practical position was that it was simply impossible for Mr Yoresh to undertake work for anyone other than BSA Ltd during the period the 2012 contract was in operation. In truth, the relationship between CV and BSA Ltd was exclusive. There was no practical capacity for CV to undertake satellite installation services for a competitor of BSA Ltd whilst the 2012 contract was operative. Apart from the contract availability period of 3 months, there was the practical consideration that Mr Yoresh was advised of the work allocated to him at 6.00pm on the previous day. Having been allocated work he was fully occupied. He worked an average of 7.5-8 hours each day. There was no capacity for Mr Yoresh to undertake work for any other party.[17]

(i) Whilst the majority of the work undertaken by Mr Yoresh was not subject to direct supervision by BSA Ltd, CV was subject to significant levels of control and direction by BSA Ltd.[18]

(j) During the period June 2012 to 18 May 2015 Mr Yoresh was the sole employee of CV. Carrying on a satellite installation business during the period the 2012 contract was operative, CV had the capacity to engage other personnel but had not done so. The capacity to engage other personnel under the 2012 contract when weighed against the many other considerations consistent with dependence by CV upon the business of BSA Ltd did not support a finding that CV was conducting an independent business. BSA Ltd retained a right of veto over who could be engaged.[19]

(k) BSA Ltd was the sole source of work and income for CV during the period the 2012 contract was operative. During this period CV did not hold itself out to the world at large as conducting a satellite installation business. It had no reason to do so because it was fully occupied in providing services to BSA Ltd. The customers of Foxtel were oblivious to CV having an independent existence.[20]

35 Mr O'Grady QC submitted that the Court of Appeal in BSA was also prepared to proceed on the basis that, notwithstanding the features set out in sub-paragraphs (a), (b), (c), (d), (i), (j) and (k) of the preceding paragraph, BSA Ltd was a contractor for the purposes of clause 9(1) of Schedule 1.[21] But as the Court of Appeal held that CV was not carrying out an independent trade or business, the appeal was dismissed.

36 Mr O'Grady QC then turned more directly to the present case.

37 Mr O'Grady QC submitted that clause 9(1)(a) of Schedule 1 of the WIRCA describes an arrangement for the provision of services. The effect of the remainder of the clause is, he submitted, to deem that arrangement to be something else, akin to a relationship of employment, if certain preconditions are met.

38 Here, Mr O'Grady QC contended, the defendants accept that the agreement between EVS and Mr Barca was labelled as, and treated by the parties as, one of independent contractor and principal.[22] Put differently, Mr O'Grady QC said, there is an acceptance that, at least in the matter of form, the arrangement between EVS and Mr Barca was an arrangement of the type described in clause 9(1)(a).

39 Mr O'Grady QC proceeded to say that the defendants also accepted that the evidence was not sufficient to establish that 80 per cent of Mr Barca's total gross income was earned from the provision of services to EVS, with the result that the deeming provision was not engaged. In other words, Mr O'Grady QC said, the defendants accept that the preconditions for a deemed employment relationship are not present.

40 Mr O'Grady QC noted that, despite this concession, the defendants sought to rely upon the following features of Mr Barca's 'business'[23] to support the characterisation that he was engaged as an employee as opposed to a contractor:

(a) Mr Barca worked clothed in the branded uniform that EVS prescribed. The purpose of the uniform was, in EVS's own view, to project and protect the brand and reputation of EVS, including to its client, RACV, and in RACV's view, to promote its corporate brand.

(b) EVS imposed a relevant degree of control over the work undertaken by Mr Barca. It did so by imposing a work system on Mr Barca through its contract, which required him to comply with the procedures, rules and policies of itself and of RACV. EVS was able to impose disciplinary consequences in performance reviews for failures to follow EVS directions on matters such as uniform standards. Performance reviews that are focused on dress standards and methods of work are a characteristic of an employment relationship.

(c) The RACV Operations Manual specified a set of detailed procedures for the performance of emergency roadside assistance to RACV customers, including:

(i) the correct use of RACV administration forms and processes in respect of membership entitlement and payment; instructions for ascertaining the validity of motorists' membership; following the instructions of the Assistance Centre if membership is not current; the requirement to verify membership before provision of service; procedure for the acceptance of checks [scil, cheques] and credit cards and issuing of tax invoices;

(ii) the method for providing 'RACV Parts and Battery Service', including the requirement to generate a 'parts job' in the RACV management system and generating specific paperwork;

(iii) the rules and procedure for the supply of fuel to motorists including instructions for refilling with diesel fuel;

(iv) the requirement to 'standby' after completing a job;

(v) instructions for rope-towing motorists' vehicles, allowing no discretion to rope-tow, permitting it only where access is required to perform breakdown duties, expressly forbidding it in any other circumstances and forbidding towing for more than 500 metres;

(vi) the requirement to complete a 'service indemnity card' where a vehicle cannot be repaired to a satisfactory condition and is unsafe to drive but the motorist wishes to drive the vehicle;

(vii) the requirement that when carrying out diagnosis and repairs under the bonnet, the engine oil and water level must be checked;

(viii) the procedure for arranging wheel-changes and tows for heavy vehicles;

(ix) the procedures for wheel-changes;

(x) rules for supplying parts and collecting payment from motorists;

(xi) the requirement to provide assistance to non-RACV members (women alone; and the elderly; disabled drivers; vehicles on emergency calls; emergency services);

(xii) the procedure to be observed when attending a job if the motorist or vehicle is not at the expected location.

(d) That it was not practically feasible for Mr Barca to delegate work.

(e) That it was practically impossible for Mr Barca to undertake work for anyone other than EVS because Mr Barca worked 'long shifts' four days per week (three weekdays 3.00pm to 11.00pm, and a Saturday 10.00am to 8.00pm) or 34 hours per week on a regular basis, so there was no capacity for Mr Barca to undertake work for any other party.

(f) All income disclosed by Mr Barca in his tax return was accounted for by payments to him by EVS in the relevant tax period.

41 Mr O'Grady QC submitted that EVS had taken issue and still takes issue with a number of the matters relied upon by the defendants and also with the defendants' contention that, when regard is had to the totality of the relationship, the matters relied upon support a finding that EVS was an employer.

42 According to Mr O'Grady QC, the issue raised by BSA (at both levels) is that CV possessed a number of the features 'that the defendants suggest are inconsistent with the characterisation of contractors'. Mr O'Grady QC submitted that these included: control (including prescribed systems and processes); the ability to project an independent business existence; the ability to undertake work for others (although in this regard, Mr O'Grady QC submitted, the reasoning of McLeish JA at [91]-[99] in the BSA appeal differed from that of McDonald J); and limitations on the ability to delegate work. Indeed, Mr O'Grady QC submitted, it would appear that in many respects the control being exercised by BSA Ltd and the lack of independence in the provision of services by CV was more suggestive of an employment relationship than the relationship between EVS and Mr Barca's business.

43 Mr O'Grady QC submitted that for the Court to hold, on the basis of the factors set out above, that Mr Barca was an employee engaged under a contract of service as opposed to a contractor engaged under a contract for the provision of services (despite what Mr O'Grady QC describes as the clear terms of the contract between EVS and Mr Barca) and as such was a 'worker' (not a person 'deemed to be a worker') would be to make a determination that is difficult to reconcile with the approach adopted by the parties and accepted by McDonald J in BSA.

44 Mr O'Grady QC quoted the following passage from the judgment of McLeish JA (with whom Tate and Hargrave JJA agreed):

Clause 9 is, as the parties both accepted, a deeming provision whose purpose is to bring within the scope of the statutory concepts of 'worker' and 'employer' persons who would not otherwise be so regarded under the primary definitions in the Act. The Act makes provision for a system for claims to be made by injured workers and compensation paid to them as part of a scheme under which employers are registered and pay premiums calculated by reference to the number of employees they have and their claims history. Both parties rightly accepted that cl 9's purpose is to treat as workers and employers persons who are in a relationship akin to employment. In other words, cl 9 is directed to ensuring that employers cannot avoid their obligations under the Act by adopting arrangements by which a person working for them is not treated as a worker under the Act.[24]

45 According to Mr O'Grady QC, it is apparent that McLeish JA accepted that the relationship described in clause 9(1) of Schedule 1, whilst 'akin' to a relationship of employment, was not a relationship of employment. Mr O'Grady QC further submitted that McLeish JA was also of the view that the parties to the relationship described in clause 9(1) of Schedule 1 would not fall within the scope of the statutory concepts of 'worker' and 'employer' as those terms appear in the primary definitions in the WIRCA.

46 Mr O'Grady QC submitted that McLeish JA had gone on to accept that whilst some of the factual circumstances bearing on the application of the primary definition may also be relevant to the application of the deeming provision, clause 9 of Schedule 1 only has application if the definition of 'worker' and 'employer' in s 3 of the WIRCA were not satisfied.[25]

47 According to Mr O'Grady QC, it is implicit in this reasoning of McLeish JA that the features of CV that told against a finding that it was carrying on an independent trade or business did not bring it and BSA Ltd within the scope of the statutory concept of 'worker' and 'employer' as used in the primary definitions in the WIRCA. Consistent with this approach, Mr O'Grady QC submitted, the raft of similar matters relied upon by the defendants in this proceeding should not be seen as bringing Mr Barca and EVS within those definitions.

48 Next, Mr O'Grady QC submitted that the position adopted by the defendants[26] would give rise to a real and significant tension between the definition of 'worker' in s 3 of the WIRCA and the provisions of clause 9 of Schedule 1. Mr O'Grady cited a well-known passage in Project Blue Sky Incorporated v Australian Broadcasting Authority[27] to the effect that the meaning of a statutory provision must be determined 'by reference to the language of the instrument viewed as a whole' and with a view to 'maintaining the unity of the statutory scheme'.[28]

49 Mr O'Grady QC submitted that to hold that the characteristics identified by McDonald J in BSA at [39], [45]-[47], [49]-[54], [57]-[58] and [61] mean that the person is a 'worker', notwithstanding that clause 9 of Schedule 1 is not engaged, would be to undermine the unity of the statutory scheme. He submitted that such a determination would not be consistent with the approach identified by the plurality in Project Blue Sky.

50 Mr O'Grady QC went on to submit that, put differently, and applying the approach identified in Project Blue Sky:

(a) Clause 9 of Schedule 1 is the provision specifically directed to the determination of whether an entity which 'on its face' is a contractor should be treated as a 'worker' for the purposes of the WIRCA. It is premised, he submitted, upon the assumption that an entity that is not carrying on an independent trade or business can be a contractor even where:

(i) 80 per cent of those services are, or are to be, pursuant to the contractual arrangement, provided by the same individual;

(ii) the gross income of the contractor that is, or is to be, derived from the provision of the services pursuant to the contractual arrangement is, or is to be, at least 80 per cent of the total gross income of the contractor earned from services of the same class provided by or on behalf of the contractor in the relevant period.

According to the submission, were this not the case the cumulative requirements set out in sub-clause 9(1) for the application of that clause could not be satisfied, and there would be no work for the exception contained in sub-clause 9(2) to do.

(b) To attribute to the definition of 'worker' a meaning that would undermine this assumption (even if this reflects the evolving common law position), would, according to Mr O'Grady QC, give rise to an apparent conflict between the definition of 'worker' and the mechanism that clause 9 of Schedule 1 puts in place. The nature of this conflict was said to appear from the analysis set out already.

(c) To the extent that such a conflict appears, Mr O'Grady QC submitted, it should be alleviated by attributing to 'worker', as it appears in s 3 of the WIRCA, a meaning that reflects the fact that under the statutory scheme an entity that meets the cumulative requirements for the application of clause 9 set out in sub-clause (1) and which possesses the features identified by McDonald J in BSA, can still be a contractor. According to the submission, the approach being urged on this Court by the VWA would exacerbate rather than alleviate the conflict between these provisions.

51 Mr O'Grady QC then sought to illustrate his proposition in the following way. In this case, he submitted, in order to support the view that Mr Barca was in truth an employee, the VWA rely on a number of the indicia that McDonald J held were possessed by CV, an entity that McDonald J and the Court of Appeal were (according to the submission) prepared to accept was a contractor for the purposes of clause 9. On this approach, Mr O'Grady QC submitted, it would appear to follow that, on the facts of BSA, CV was not a contractor at all and clause 9(1) had no application. Mr O'Grady QC went on to submit that there is a clear tension between the Court in one proceeding accepting that various indicia are not inconsistent with an entity being a contractor for the purposes of the statutory scheme and in another relying upon the same or similar indicia to support a finding that the entity is not a contractor for the purposes of the same statutory scheme. Consistent with the approach identified in Project Blue Sky, Mr O'Grady submitted, this tension should be avoided if possible.

52 Conversely, Mr O'Grady QC submitted, the approach contended for by EVS creates no such tension. In keeping with the cumulative requirements set out in clause 9(1) of Schedule 1 and the approach of McDonald J and the Court of Appeal in BSA, EVS's (new) approach 'proceeds on the basis that an entity with the characteristics of CV (and the business conducted by Mr Barca) is a contractor, albeit a contractor capable of being deemed to be a "worker" pursuant to the mechanism that clause 9 puts in place'.

53 Mr O'Grady QC concluded by submitting that, for the reasons advanced, the Court should not hold that Mr Barca was a 'worker' as that term is defined in s 3 of the WIRCA.

The VWA's response to the submissions of EVS on BSA

54 There is much overlap between the written submissions of the two defendants filed in response to the post-hearing submissions of EVS relating to the BSA matter. It is convenient to refer primarily to the VWA's submissions.

55 In short, the VWA (represented by Ms L Nichols, now Ms L Nichols QC) submitted that the BSA decisions have no real bearing on the issues for decision in this appeal. According to the VWA, this case, and the BSA decisions, are concerned with different questions. To hold that Mr Barker is a 'worker' would not entail any conflict with the BSA decisions. The contention of EVS that the BSA decisions lend support to its position is wholly misconceived. If any support may be drawn from the reasoning in BSA on any issue, it is for VWA's contention that Mr Barca was not conducting an independent business in any relevant sense. That contention is consistent with the decision in BSA that CV was not carrying on an independent trade or business. Thus went the opening summary of the VWA's post-hearing written submissions.

56 According to the VWA, the question decided in BSA was whether CV was 'carrying on an independent trade or business' for the purposes of sub-clause 9(2) of Schedule 1 to the WIRCA. The parties had accepted that if that question was answered in the negative, Mr Yoresh, who conducted a business through CV, was to be considered a deemed worker, and BSA his deemed employer, by operation of clause 9 and within the meaning of s 3 of the WIRCA. By contrast, the VWA submitted, the question in this case is whether Mr Barca was a 'worker' within the meaning of s 3(a) of the WIRCA, performing or having agreed to perform work for EVS. The VWA had only withdrawn its (alternative) reliance on the deemed worker provisions because it conceded that the evidence of Mr Barca's gross income was insufficient, with the result that the deeming provision was not engaged. The VWA did not accept that Mr Barca was carrying on an independent trade or business. That issue is only in contention insofar as the conduct of a business by Mr Barca informs the question of whether he was a worker within the meaning of s 3(a) of the WIRCA.

57 According to the VWA, this appeal was conducted on the basis that sub-cl (a) of the definition of 'worker' in the WIRCA imported the common law test for determining an employer/employee relationship.

58 The VWA submitted that EVS's contention, reduced to its essence, was that the courts in BSA accepted that Mr Yoresh and BSA Ltd were not in a relationship of worker and employer - rather, they had a principal and contractor relationship. However, according to the VWA, the courts in the BSA decisions simply did not do that.

59 The VWA referred to the observation of the Court of Appeal in the BSA appeal[29] that the deeming provision in clause 9 only falls to be considered if the primary definitions of 'worker' and 'employer' are not satisfied. In a different case (that is, a case unlike BSA and unlike the present case), where all issues are in contest, the court would be required to consider first whether the definitions of 'worker' and 'employer' are satisfied and only then, if the same were not satisfied, would clause 9 fall to be considered. The VWA submitted that, in BSA, those issues were not in contest and were not decided by the Court. Rather, the parties accepted that, absent the application of the exception in sub-clause 9(2), BSA Ltd was properly deemed to be Mr Yoresh's employer. Accordingly, the only decision for the Court was whether, on the facts, CV was carrying on an independent trade or business for the purposes of sub-clause 9(2).

60 According to the VWA, EVS is wrong in its submission that the trial judge in BSA accepted the characterisation of the relationship between BSA Ltd and CV as one of contractor and principal and therefore not one of worker and employer. Noting that EVS had gone on to say that the Court of Appeal did not 'question or criticise' the 'assumptions' of the trial judge, the VWA submitted that, in this way, EVS's submission wrongly imputed to the courts in BSA a judgment about issues not in dispute. VWA denies that the courts in BSA positively characterised the relationship not to be one of worker and employer.

61 To state the obvious, the VWA submitted, a determination by a court on the issue for decision, where the parties have agreed upon the criteria for the application of that issue, cannot permissibly be equated with a determination of the agreed criteria, and at least not in this case.

62 Next, the VWA submitted that another premise of EVS's submission was misconceived. According to the VWA, the facts of the two cases are not the same. Even if they are similar, they are not similar for all purposes. Accordingly, the VWA submitted, it is not correct that the attributes of the relationship between Mr Barca and EVS have effectively been determined, in BSA, to evidence a contractor - principal relationship.

63 In support, the VWA submitted that particular attributes of relevant relationships cannot be taken to have an 'immutable hue'. Similar sets of facts may fall on one side of the line in one case, or for one purpose, and on the other side of the line, for another. A particular feature of a relationship may assume a certain significance in one context and not in another. The VWA cited Stevens v Brodribb Sawmilling Co Pty Ltd,[30] where Wilson and Dawson JJ said (on the question of employment relationships), '[t]he ultimate question will always be whether the 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 do not always have the same significance'.[31] Similarly, the VWA submitted, the Full Court of the Federal Court in Roy Morgan Research Pty Ltd v Commission of Taxation[32] observed that the task of characterising the relationship in question is 'a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another'.[33]

64 The VWA submitted that that point is of particular importance here, because the facts in BSA were analysed by the Court in each case not for the purposes of determining whether Mr Yoresh was a worker, but for a different purpose.

65 In summary on this aspect, the VWA submitted that the effect of EVS's submission was to invite the Court to determine the issue raised in this case by applying reasoning erroneously imputed to the courts in the BSA matter, on an issue that was not decided in BSA, on facts merely assumed to be equivalent to the facts here. That, according to the VWA, is not a proper approach.

66 Next, the VWA turned to an argument which, it said, EVS 'appears to advance', to the effect that where an entity appears 'on its face' to be a 'contractor', the proper application of s 3 of the WIRCA requires that one first ask whether the entity meets the requirements of clause 9(1) before considering whether the entity may in fact be a 'worker' within the meaning of sub-cl (a) of the definition of 'worker' in s 3 of the WIRCA. The VWA submitted that, if that argument is advanced, it is erroneous. No support for it could be found in the language of s 3, or from its statutory context.

67 On the question of statutory context, it was submitted by the VWA that to read down the primary provision by reference to a deeming provision intended to bring within the scope of the statutory concepts of 'worker' and 'employer' persons who would otherwise not be so regarded,[34] would be inimical to the purpose evident in the statutory definition of the employment relationship. The proper approach to s 3 is to construe it on its own terms, and not to first carve out from its operation, on an a priori basis, a notional exception defined by the deeming provisions in Schedule 1.

68 According to the VWA, the question in this appeal is whether Mr Barca is a worker within the meaning of sub-cl (a) of the definition in s 3 of the WIRCA. That question is not answered by asking whether he could be a contractor within the meaning of sub-cl (b) of the definition and clause 9 of Schedule 1.

69 In any given case, the VWA submitted, the starting point will be different depending on the issue raised for decision. It may well be, for example, that the same set of facts would lead to the result that a person was a 'worker' for the purposes of s 3(a) and also that that person was not 'carrying on an independent trade or business' for the purpose of sub-clause 9(2), if the facts were analysed for both purposes. The VWA cited the observation of the Court of Appeal in the BSA appeal[35] to the effect that the expression 'independent trade or business' has resonance with expressions that have been used in other contexts in determining whether a person performing work for another does so as an employee under a contract of service or as independent contractor under a contract for services.

70 Finally, in this regard, the VWA observed that if the contention of EVS that the facts are essentially similar is accepted, and if regard is had to the question in fact decided in BSA, the better view is that the BSA decisions support the defendants' position in this appeal. In BSA, it was decided that CV was not carrying on an independent trade or business. On facts that EVS says are materially similar, EVS must contend that, nevertheless, Mr Barca was conducting his own business and for that reason (among others) was not employed by EVS. If anything can be drawn from BSA, the VWA submitted, it is that the VWA's contention that Mr Barca was not conducting an independent business in any relevant sense is consistent with the decision in BSA that CV was not carrying on an independent trade or business.

Additional material in Mr Barca's response on BSA

71 The written submissions of Mr McKeown (as counsel for the Second Defendant, Mr Barca) adopted those advanced on behalf of the VWA. In addition, Mr McKeown sought to buttress the VWA's proposition that, if anything, the BSA decisions assist the defendants. Reference was made to the control exercised over Mr Barca by EVS in terms of his shift hours, work location, and when and where he was required by EVS to perform his duties. Mr McKeown then referred to paragraph 102 of the judgment of McLeish JA in the BSA appeal in which his Honour had said that the features showing that BSA Ltd exerted control over CV's business were very considerable. McLeish JA had listed those features. Mr McKeown summarised the list as follows. First, the inability of CV to employ personnel or subcontract to another entity without the approval of BSA Ltd. Secondly, having committed to work for BSA Ltd, CV was required to attend upon customers at times stipulated by BSA Ltd. Thirdly, CV was required to deal with customers at certain times before attending upon them or performing work in accordance with stipulated requirements. Fourthly, CV was required to use specified material including some that were required to be supplied by BSA Ltd. Fifthly, CV did not bill the Foxtel customers whose services it installed but authorised BSA Ltd to do that instead and was required to facilitate that process in respect of each customer. BSA Ltd paid CV on a fortnightly basis after deducting equipment costs and other applicable charges.

72 In the present case, Mr McKeown submitted, the evidence before the Court was similar in those respects. Mr Barca could not employ personnel or subcontract work without approval of EVS. Mr Barca was required to work set roster hours and attend to call outs as directed by EVS. Mr Barca was required to use certain material and equipment as provided to him by EVS. Mr Barca did not, substantively and directly, bill persons upon whom he attended on call outs. According to Mr McKeown, these features tended to support the view that Mr Barca was not carrying on an independent trade or business.

73 In Mr O'Grady QC's submissions in reply on behalf of EVS (which were filed on 19 November 2018), he disputed that the matters raised by the defendants undermined his prior submissions. Indeed, he said, the acceptance by the defendants that there would appear to be a high level of similarity between the business conducted by CV and the business conducted by Mr Barca reinforced the submissions he had made.

74 Mr O'Grady QC submitted that where a court is interpreting and giving effect to the provisions of a statute, the proper construction of the statute is a matter for the court, as distinct from the parties, to determine.

75 Mr O'Grady QC accepted that in BSA the focus was on the operation of the deemed worker provisions. However, Mr O'Grady QC submitted, it followed from the terms of clause 9 of Schedule 1 of the WIRCA that in the BSA matter both the parties and the Court proceeded on the basis that a business with the features of CV was capable of falling within the scope of the term 'contractor', as that term was used in clause 9. Put differently, Mr O'Grady QC submitted, a business with those features did not necessarily satisfy the primary definition of worker.

76 Mr O'Grady QC further accepted that it was apparently common ground in BSA that the entity in that case was a contractor for the purposes of clause 9 and, necessarily, did not fall within the primary definition of 'worker'. Mr O'Grady QC also accepted that, therefore, the Court did not have to determine (in the sense of resolving a dispute between the parties) that issue itself. However, he submitted, that does not mean that the Court's acceptance of the position should be set at nought. At the very least, he submitted, the Court (at both levels) should be taken to have proceeded on the basis that there was no necessary inconsistency between the features of CV and it being a contractor for the purposes of the WIRCA.

77 Mr O'Grady QC said that EVS's position was not that particular attributes of the contractor/principal relationship considered in BSA have an 'immutable hue', but rather that they are not necessarily inconsistent with characterisation as a contractor. Whether or not Mr Barca was a worker fell to be determined by consideration of the totality of the relationship. What BSA makes clear, Mr O'Grady QC submitted, is that, when undertaking this assessment, a number of matters relied upon by the defendants are not necessarily inconsistent with the contractor/principal relationship.

78 Mr O'Grady QC further submitted that the WIRCA must be read as a whole and that, accordingly, the same entity cannot (absent operation of the deeming provision) be at the same time both a 'worker' and contractor; and that all of the provisions of the WIRCA must have work to do. He submitted that the 'broad' meaning of worker contended for by the defendants would leave clause 9 with very little work to do. Accordingly, he submitted, this Court should construe the term ' worker' with these matters in mind.

79 Next, Mr O'Grady QC submitted that, as illustrated in BSA, the WIRCA proceeds on the basis that an entity can be both a contractor and not be carrying on an independent trade or business. CV was such an entity. It follows, Mr O'Grady QC submitted, that even if this Court rejects the primary position of EVS as to the independence of the business that Mr Barca was conducting, this would not preclude a determination that he was nonetheless a contractor and not a 'worker'.

80 Mr O'Grady QC then turned to the submissions made by both the defendants that the appeal had been conducted on the basis that sub-cl (a) of the definition of 'worker' in the WIRCA imported the common law test for determining an employer/employee relationship. Mr O'Grady QC submitted that any such suggestion was an overstatement. He submitted that there was no concession by EVS that the statutory scheme need not be considered. He referred to certain relevant parts of the transcript in this regard.

81 Mr O'Grady QC said that EVS does not resile from the proposition that the common law test is important and informs the meaning of the statutory definitions in the WIRCA. EVS simply submits that the BSA decisions (which the parties did not have the benefit of at the initial hearing) highlight the care which needs to accompany the application of those tests in the current statutory context.

82 Mr O'Grady QC concluded by reiterating the submission that the BSA decisions support the position of EVS that the Court should not hold that Mr Barca was a 'worker' as that term is defined within s 3 of the WIRCA.

Resolution of the issues raised by the submissions on BSA

83 I do not accept Mr O'Grady QC's proposition that the principal definition of 'worker' in s 3 of the WIRCA - comprising the words contained in sub-cl (a) of the definition - must be read down by reference to the 'deemed worker' provisions in clause 9 of Schedule 1.

84 In my view there is nothing in the BSA decisions that calls for such a result.

85 I agree in substance with the written submissions of the defendants in that regard, as recounted above.

86 It would be most unusual for a court to treat an anti-avoidance provision as cutting down the scope of the relevant substantive provisions. In the BSA appeal_,_ McLeish JA accepted that the 'deemed worker' provisions of the WIRCA are anti-avoidance provisions in relation to the principal definition of 'worker'.[36]

87 It is true, as Mr O'Grady QC submitted, that features of the kind identified in BSA do not necessarily make a relationship an employer/employee relationship or otherwise attract the application of the principal definition of 'worker' in the WIRCA. That is so because there may be some other feature or features that, on balance, are considered to lead to the opposite result. An example may be where the putative 'worker' is engaged by an interposed body corporate which in turn has a capacity to delegate and/or to employ other staff.[37] Clause 9 (and also clause 10) of Schedule 1 seem to be directed particularly at situations of that kind, although clause 9(c)(i) does also cover cases where the 'contractor' and the relevant individual are one in the same. In any event, none of that means that features of the kind identified in BSA do not tend to indicate the existence of an employer/employee relationship. They do. It is just that they may, in the end, be counterbalanced or outweighed by other features.

88 While I agree with Mr McKeown that there are significant similarities between the relationship features identified in BSA and the relationship features of the present case, there is also a significant difference. Mr Yoresh was engaged not by BSA Ltd but by another body corporate, CV, whereas Mr Barca was engaged directly by EVS. That may, at least in part, explain why, in BSA, no attempt was made to rely on the principal definition of 'worker'. In any event, it illustrates why Mr O'Grady QC's central proposition cannot be accepted.

89 Thus it is fully open to the defendants in the present case to rely on the features of the relationship between Mr Barca and EVS that are similar to the features of the relationship between, on the one hand, Mr Yoresh and CV, and, on the other hand, BSA Ltd, as identified in BSA. Further, given the factual similarities between the two cases, it is open to the defendants to take some comfort from the conclusion reached in BSA on the issue that arose under clause 9(2) of the Schedule 1 in that case, namely, whether CV was carrying on an independent trade or business. That was an issue similar in kind to one of the many issues that has been raised in the present case, namely whether Mr Barca was relevantly carrying on his own trade or business. That issue is merely a part of a much larger issue, to which I now turn.

The general approach to be taken in assessing whether Mr Barca was a 'worker'

90 As just indicated, I do not accept Mr O'Grady QC's submission as to the interpretation and application of the relevant provisions of the WIRCA. However, I assume that EVS continues to press its original submissions of law (and fact) in the alternative to Mr O'Grady QC's submissions. Mr O'Grady QC did not say that those original submissions were abandoned or that, failing acceptance of his (new) submissions, EVS would not press its appeal. Accordingly, when hereafter I refer to the submissions of EVS, I will be referring to those made on its behalf by Mr Green QC and Ms Nelson (as she then was) up to and including the time of the oral hearing.

91 During the oral hearing, Ms Nichols (now Ms Nichols QC) said that the VWA agreed with the summary of applicable legal principles stated at the outset by Mr Green QC.[38] That summary was along the following lines.[39] The essential question is: was Mr Barca an employee of EVS or an independent contractor at the relevant time? The question is to be answered by reference to the evidence before the Court, informed by legal principle and legal learning. One is thrown back to the common law. The Court assesses and evaluates the evidence to identify and isolate the factors capable of pointing in one direction or another. Having done so, one weighs or balances those factors in keeping with established principles. In reaching a conclusion, none of those principles is decisive. One does not tick off items in the nature of a check list. The object is to paint a picture from the accumulation of detail. From a distance, one stands back from the detailed picture and makes an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is the thing. That is not the same as the sum total of the individual details. One does not engage in a process of fact stacking. Rather, one arrives at a judgment by means of examining the totality of the relationship between the parties. The task is neither formulaic nor arithmetic. The Court brings a judgment to bear on the matter. The authorities show that the distinction between employee and independent contractor has become an increasingly amorphous one, as the former single test of 'control' has been 'submerged in a circumfluence of competing criteria and indicia'.[40] The degree of control remains a prominent but not decisive factor. Other relevant matters include the way in which the work is remunerated, the provision and maintenance of equipment, the arrangements made about hours of work, provision for holidays, the obligation to work, the arrangements made about taxation and the capacity to delegate the work. Where the relationship between two persons is founded on contract, the character of the relationship depends on the meaning and effect of the contract.[41] The actual terms and terminology of the contract will always be of considerable importance.[42] An employee, as distinct from an independent contractor, is susceptible of obeying lawful commands given by his or her putative employer. Disobedience of such commands can, in an employment relationship, justify dismissal. To be an employee is to be deployed in whatever way the employer deems appropriate, be it in relation to hours worked or the way the job is to be done or otherwise. The less room to move the putative employee has, the more likely he or she is to be an employee. The greater the latitude, the more likely he or she is to be an independent contractor.

92 Mr McKeown, for his part, did not submit that there was anything fundamentally wrong with this summary of principles of Mr Green QC.

93 During final submissions, Ms Nelson (for EVS) addressed me in some detail on five decided cases, namely Hollis v Vabu Pty Ltd,[43] Roy Morgan Research Pty Ltd v Commissioner of Taxation,[44] Ace Insurance Ltd v Trifunovski,[45] Tattsbet Limited v Morrow,[46] and Federal Commissioner of Taxation v Genys.[47] Counsel for the defendants took no issue with the authority or applicability of the first three of those cases. As to Tattsbet, the defendants submitted that there was some tension between it and Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd[48] with respect to the so-called 'entrepreneur test' that had been identified by Bromberg J in On-Call Interpreters & Translators Agency Pty Ltd v Commissioner of Taxation (No 3).[49] However, the defendants also submitted that there was no need for me to deal with, or try to resolve, any such tension in this case. I agree with that. I agree because, in my view, the defendants must succeed even if one assumes, in favour of EVS, that Tattsbet is to be preferred to Quest and On-Call Interpreters in relation to the 'entrepreneur test' issue. I do make that assumption, but without finally deciding the point.

94 The Genys case was about whether the respondent was an 'itinerant' worker for the purposes of claiming travel deductions against income tax. Again, I will assume it is good law, but it does not have much to do with the present case.

95 In the BSA appeal_,_ McLeish JA noted in passing that the primary definitions of 'worker' and 'employer' in the WIRCA draw upon concepts used in determining whether persons are in an employment relationship at common law, in particular concepts of 'direction', 'instruction' and 'contract of employment'. His Honour said that it was not necessary to examine further how those definitions operate, or to consider to what extent they replicate or depart from the common law tests. There is nothing in his Honour's observations to indicate that it would be inappropriate to apply the common law tests. I see no unfairness to EVS if I apply the common law tests. EVS initially invited me to do so. Subsequently, it invited me to read down the relevant definition in accordance with Mr O'Grady QC's submissions. I have not accepted that invitation. It seems to me that, in relation to this Act (an Act which deals with workers' compensation), it is unlikely that it will ever be established (on any basis) that the common law tests are too onerous on the putative employer. The defendants have not objected to the application of the common law tests. Hence, without deciding that the common law tests are necessarily applicable, I will, in favour of EVS, apply them. I will do so substantially in accordance with Mr Green QC's summary, as recounted above.[50]

96 At the end of the hearing, save for one relatively minor matter, the primary facts were not in dispute. The primary facts of most importance are summarised in the joint chronology.

97 A fairly minor exception relates to whether Mr Barca operated, and advertised, his mobile mechanic business continuously throughout the period from June 2001 to the present time. I have already indicated that, in my view, the evidence does not warrant a finding to that precise effect. However, the evidence, including in particular Mr Barca's tax return from 2014-2015 and his admitted advertising of April 2016, warrants a finding, which I make, that Mr Barca's mobile mechanic business was in existence during the period of most relevance, namely the period from 11 November 2008, when Mr Barca first commenced providing services to EVS, through to April 2016. That finding is easier to make because Mr Barca declined to file an affidavit or otherwise to give evidence. On the other hand, there is nothing to contradict the statement in Mr Barca's workers compensation claim form to the effect that the business had had little or no work since his heart surgery (whenever that was). Further, I note that, according to Mr Barca's tax return for 2014-2015, the entirety of his gross income was received from EVS during that period. I find that any work that Mr Barca did as a mobile mechanic was, at best, very limited during the period from 1 July 2014 to the time when Mr Barca ceased working for EVS, namely December 2015 or January 2016.

98 The questions between the parties as to the significance or weight to be attached to the primary facts are matters that are most conveniently addressed in relation to the particular 'factors' to which they relate.

99 I turn now to those factors. I do not do so by way of ticking boxes or fact stacking. Rather, I am following the lead of the parties, each of which dealt with the remaining issues under comparable headings.

100 In its written and oral submissions, EVS emphasised heavily the actual terms of the agreement between it and Mr Barca dated 29 October 2014.

101 In those circumstances I have set out as an annexure to this judgment the entire contract except Schedule B which consists of certain maps showing areas to which Mr Barca could be sent in the RACV van.

102 EVS relies in particular on clause 17 which provides that Mr Barca's relationship with EVS shall be that of independent contractor and further provides that nothing in the agreement shall be construed as creating the relationship of employer/employee or master and servant. However, as the VWA submits, that is not determinative: the parties cannot deem the relationship between themselves to be something that it is not.[51]

103 EVS also stresses that in Schedule A and in the signing clause the 'contractor' is identified as 'Barca, George trading as All Districts Mobile Mechanic ^ Jims Mobile Mechanics'. In both places, the single ABN for 'All Districts Mobile Mechanic' and 'Jims Mobile Mechanics' is stated.

104 As indicated above, I am satisfied that Mr Barca's mobile mechanics business remained in existence at that time, although its actual operations were, at best, very limited at that time.

105 EVS further submits that the references in the contract to the mobile mechanics business amount to a representation, or a holding out, by Mr Barca that he was doing the work provided for in the EVS contract as part of his own mobile mechanics business.

106 However, in my view, that is to seek to derive far too much from the mere title under which Mr Barca signed the agreement. The agreement was in a standard EVS form. It was the form applicable to individuals. Mr Barca signed it as an individual. Although the relevant business name was registered to both Mr Barca and his wife, there is no suggestion that Mrs Barca, or any partnership, was a party to the agreement. Moreover, as the defendants point out, the preamble to the agreement explained that EVS had arrangements with its clients (described in the agreement as 'Principals') to provide emergency roadside assistance and repair (ERA) services to the public and that Mr Barca had agreed to operate a van provided to him by EVS to provide ERA services. The principal in this case was RACV. Relevantly, the EVS/Barca contract required that Mr Barca comply with the reasonable requirements of both EVS and RACV, and comply with all the policies, procedures, rules and manuals relating to work health and safety, quality control, professional conduct and standards and vehicle standards and such other policies and procedures, rules and manuals that EVS or RACV may issue from time to time.[52]

107 Thus, what the contract itself required Mr Barca to do was to provide very specialised services to nominated persons. Those services were so specialised and confined that they cannot really be treated as something that Mr Barca did in his capacity as the proprietor of a general (mobile) mechanics business. There was really a vast gulf between Mr Barca as an RACV service man and Mr Barca as the proprietor of a mobile mechanics business.

108 EVS submits that in all of Mr Barca's tax arrangements, including in respect of his dealings with the ATO, he represented that he was running his own business. No PAYG deductions were made by EVS from the payments to Mr Barca. The payments were made to Mr Barca trading as All Districts Mobile Mechanics. Mr Barca's tax return represented that he was running a business rather than that he was an employee.

109 EVS emphasises that, in Tattsbet, Jessup J said that 'in contemporary Australia, it is impossible to ignore, and difficult to depreciate, the taxation of implications of the mode of operation of which parties to a relationship have voluntarily adopted'.[53]

110 However, in my view, Mr Barca's tax arrangements are not as significant as EVS maintains. Unlike the putative employee in Tattsbet, Mr Barca was not registered for GST and did not charge or collect GST. There is no evidence as to whether he did or did not file business activity statements (BAS). By contrast, in Tattsbet, Ms Morrow had devoted many hours on a regular basis to accounting for GST and preparing BAS. In Tattsbet, Jessup J placed more emphasis on Ms Morrow's positive GST and BAS arrangements than on the absence of PAYG collections. In addition, in Tattsbet, Ms Morrow had claimed large deductions for wages she had paid to her own staff. There is nothing equivalent in the case of Mr Barca.

111 EVS submits that in Hollis the High Court accepted that, when looking at the totality of the relationship, control is one of the factors taken into account in deciding whether the person is an employee.[54] According to EVS, even where significant control is exercised over the role performed, that does not of itself lead to the conclusion that a person is an employee. EVS gives as an example Elazac Pty Ltd v Shirreff[55] where the worker was held not to be an employee despite being given instructions (sometimes hourly) about what was to be done and when, with the expectation that the instructions would be carried out immediately.

112 In my view, Elazac does not assist EVS much. In that case the putative worker was a project manager who had his own staff and business. That case is not really comparable at all.

113 EVS goes on to submit that the relevant considerations in relation to control include such matters as place of work, hours of work and similar matters that go to the independence of operations by the party under consideration.[56]

114 EVS submits that the contractual arrangements between Mr Barca and itself indicate only minimal control over the operations of Mr Barca. EVS mentions clause 3.3 of the agreement which provided that Mr Barca was not obliged to accept any 'Work Offer' to provide the 'Services'.

115 However, that same clause provided that Mr Barca was required to give EVS not less than 24 hours' notice of any Services which he had agreed to supply, but could no longer supply. That language implies that Mr Barca was not free simply to decline to supply services which he had previously agreed to supply. Moreover, the evidence established that the van drivers, including Mr Barca, were issued with three month rosters in advance. The drivers were expected to fulfil their obligations under the rosters. There was affidavit evidence from Mr Re, summarised in Mr Green QC's written post-hearing reply, that Mr Barca not infrequently was early to begin or, more significantly, to leave work during his roster. However, many employees are absent from scheduled work from time to time. There can be many reasons for this. I do not regard those exceptions to Mr Barca's work patterns for EVS as being very significant.

116 EVS points out that Mr Barca did not attend a fixed place of work but rather his place of work included various sites throughout metropolitan Melbourne. However, he was obliged to go the very places where he was called by RACV and EVS to go.

117 Next, EVS contends that, when Mr Barca attended a breakdown site, he was to use his own skill and judgment to make the site safe and to use his technical training, skill and expertise as a mechanic to diagnose the cause of the breakdown and, where possible, to effect remediation, communicate with the RACV roadside assistance customer, on occasion provide parts or consumables on negotiated commercial terms between him and the RACV customer, and, on other occasions, arrange for the removal from the breakdown site of the RACV customer's vehicle by arranging for the vehicle to be towed. According to EVS, while all of this was going on, there was no superior looking over Mr Barca's shoulder.

118 However, in my view, there were many significant ways in which Mr Barca's work was controlled by EVS or by EVS and RACV in combination. A long list of those ways was given by Mr O'Grady QC on behalf of EVS itself in paragraph 40 above. There is no need to repeat that list. I note that Mr O'Grady QC submitted that EVS took issue with a number of the matters listed, but, in my view, there is no basis for any such issue to be taken.

119 At the hearing, there was some controversy about the extent to which Mr Barca was free to sell parts or equipment to RACV members or others at a profit. What emerged, ultimately, was that there was very little if any scope for this to be done. Virtually everything supplied by Mr Barca from the RACV van was subject to RACV-prescribed prices and policies.

120 EVS submits that Mr Barca was conducting an independent trade or business by seeking to make a profit (that is, a return on risk) rather than simply payment for the time, skill and effort provided. EVS contends that so much appears from the terms of the 29 October 2014 agreement dealing with risk and liability.

121 However, the agreement contained only two terms dealing with risk and liability. One term said that Mr Barca bore the risk in relation to damage to an RACV customer vehicle or to the vehicle provided by EVS to Mr Barca. But the legal situation is the same in relation to an employee, subject to any express terms to the contrary. Secondly, the agreement provided for Mr Barca to indemnify EVS in relation to damage to vehicles. However, once again, the same would apply to any employee under common law. Further, the liability of Mr Barca to indemnify EVS appeared to be limited to the amount of certain excesses on insurance policies, as specified in Schedule A to the agreement.

122 EVS submits that Mr Barca was not paid a weekly wage. Rather, he was paid on a fee for service basis, being the aggregate of the jobs he chose to attend based on a fee for service payment formula.

123 In its original written submissions,[57] EVS relied on what it called the invoicing arrangements between EVS and Mr Barca under the agreement. However, it emerged subsequently, and was confirmed at the oral hearing, that the invoicing arrangements provided for in the contract had been discontinued and replaced quite some time ago. No longer was there any arrangement for Mr Barca (or any other van driver) to submit an invoice. Rather, records were kept by the RACV of the jobs done by the drivers and information derived from those records was sent to EVS. EVS in turn created, on a monthly basis, documents which it describes as 'recipient created tax invoices'. Examples of the recipient created tax invoices are included in the evidence. They show how much is to be paid to the driver, and for what things.[58] Most of the recipient created tax invoices for Mr Barca that are included in the court book record him being paid an amount between about $4,000.00 and about $4,600.00 as 'gross payment/job fees'. There are some other amounts shown too, including 'monthly bonus' or 'quarterly bonus'. It is true that, in some of the samples provided, the monthly amount for gross payment/job fees was much lower. However, that does not detract much from the overall impression generated by the documents, namely that Mr Barca was earning a reasonably predictable, regular amount of remuneration from his ERA work for EVS.

124 EVS provided an equipped patrol van for Mr Barca for the purposes of his work. The obligations on Mr Barca to supply additional equipment of his own were not greatly onerous. EVS was responsible for the cost of maintaining the van and for the cost of all fuel used by the van. These are matters indicative of an employment relationship, not of an independent contractor relationship.

125 It is true that Mr Barca needed to be a reasonably skilled motor mechanic. However, in modern times, that factor is not a strong indicator of an independent contractor relationship. In Zuijs, the circus acrobat was held to be an employee, notwithstanding his elevated level of skill.

126 Contrary to the submission included in EVS's first written submissions, there was no realistic prospect that Mr Barca could acquire any goodwill pursuant to the agreement.

127 EVS submitted that Mr Barca was also entitled to engage subcontractors thereby having a saleable business that might affect the value of the goodwill of his All Districts Mobile Mechanics business. Again, there is no substance in that submission. Any delegation could only be to a person accredited and approved in writing by both RACV and EVS. Even then, Mr Barca would have remained liable for the provision of the services by the delegatee.[59]

128 In my view, having regard to all of the evidence, Mr Barca's work for EVS had little or nothing to do with any business of Mr Barca's own.

129 Having regard to all of the evidence in this appeal, and having considered carefully all of the submissions made to the Court, I am firmly of the view that Mr Barca was in an employer/employee relationship with EVS at the time of his alleged accident.

130 It follows that the appeal should be dismissed.

ANNEXURE TO JUDGMENT - Contract between EVS and Mr Barca dated 29 October 2014

THIS AGREEMENT FOR SERVICES is made on the 29 day of 10 2014. [date inserted by hand and initialled]

The Contractor specified in Item 1 of Schedule A

1. Eastern Vans has arrangements with its clients (each a "Principal") for providing emergency roadside assistance and repair services to the public ("Customers").
2. The Contractor wishes to provide emergency roadside services to the Customers ("the Services").

1. The Contractor specified in Item 1 of Schedule A has agreed to operate a van provided to him by Eastern Vans ("the Vehicle") to use to provide the Services.

In this Contractor Agreement ("Agreement") unless the contrary intention appears:

1.1 Words importing the singular include the plural and vice versa;

1.2 Words importing a gender shall include all other genders;

1.3 Words importing persons include all bodies and associations incorporated and vice versa;

1.4 Regardless of any other provision of this Agreement, if GST is imposed on any Supply made to a party under or in accordance with this Agreement, the amount which the party must pay for the Supply increases by the amount of the GST

1.5 Headings are included for convenience only and are not to be taken into account and in interpretation of any clauses of this Agreement;

1.6 All references to clauses, schedules and recitals are to the clauses of any schedules and clauses of any recitals contained in this Agreement;

1.7 "Contractor" shall be interpreted to include their representatives, agents, employees, executors, administrators, receivers, managers, liquidators and assigns including but not limited to its Drivers and Delegatees.

1.8 "Eastern Vans" shall be interpreted to include their representatives, agents, employees, executors, administrators, receivers, managers, liquidators and assigns.

2.1 In this Agreement:

2.2 "Agreement" means this contractor agreement.

2.3 "Business" means the business of providing emergency roadside repair services.

2.4 "Confidential Information" means:

2.4.1 the Customer and supplier details of Eastern Vans and their practices, business dealings, pricing and costing details and policies, trade secrets and/or affairs, including Customer and supplier lists, transactions, proposals, agreements and accounts;

2.4.2 the practices, business dealings, business plans, financial or trading information or techniques, strategies and methods of marketing, budgeting and market analysis, pricing and costing details and policies, trade secrets and/or affairs of Eastern Vans;

2.4.3 all Eastern Vans employee or contractor related information, including Personal Information, specific remuneration details, information located within personnel files and Eastern Vans payroll files and communications and information passing between Eastern Vans and/or its employee or Contractors;

2.4.4 all electronic and documented databases, computer hardware, software or systems, multi-media presentations and disks owned by or licensed to Eastern Vans (including all systems, processes, designs, methods, applications, methodologies and source code, in all formats);

2.4.5 medical and/or health records provided to Eastern Vans in connection with the Business;

2.4.6 any information licensed from third parties to Eastern Vans on a confidential basis, for internal use and/or for sublicenses to end users;

2.4.7 any Document or information which comes into the possession or knowledge of the Contractor during the course of the Agreement which from its nature and content would be reasonably expected to be confidential or which contains information of a commercial value to Eastern Vans;

2.4.8 the Documents; and

2.4.9 any information and Document adapted or derived in any way from the information detailed in Clauses 24.1 to 24.8, even where the adaptation or derivation involves significant or substantial original work;

2.4.10 information and material which are in the public domain other than by way of unauthorised disclosure.

2.5 "Delegatee" means the person described in clause 4.2,

2.6 "Documents" includes supplier lists, price lists, Customer lists, market research information, software (including source code and object code versions), data in any material form (including electronic form), manuals, diagrams, graphs, charts, projections, specifications, estimates, records, concepts, accounts, plans, formulae, designs, methods, techniques, processes, correspondence, letters, electronic messages and papers of every description including all copies of or extracts from the same.

2.7 "Driver" means those representatives of the Contractor who from time to time drive the Vehicle and who have been accredited and approved by Eastern Vans and the Principal.

2.8 "Eastern Vans" means:

2.8.1 Eastern vans Services Pty Ltd ACN 090 167 552; and

2.8.2 any associated entity, as that term is defined by the Corporations Act 2001 (Cth), of Eastern Vans.

2.9 "GST" means goods and services tax within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any modification thereof.

2.10 "Intellectual Property" means any statutory or other proprietary, ownership or control rights which now exist or may in future exist (both in Australia and in any foreign country) in respect of any invention, patents, trademarks (including goodwill and whether registered or unregistered), copyrights (including future copyrights), designs, circuit layouts, Confidential Information, trade secrets, know-how and all other rights with respect to all works, inventions, discoveries, improvements, designs, computer programs, processes, concepts, strategies and plans that the Contractor and/or Nominated Person (either solely or jointly) conceives, develops or may develop, directly or indirectly, as a result of the Agreement or in connection with or in any way affecting or relating to the Business or capable of being used or adapted for use in connection with the Business.

2.11 "Invoice" means the invoice described in clause 4.10

2.12 "Loss" includes, without limitation, damages, costs, expenses, interest, loss of profits, or special or indirect loss or damage.

2.13 "Members" means a Customer that is a member of an automobile club.

2.14 "Notice of Suspension" means the notice described in clause 10.1.

2.15 "Notice of Termination" means the notice described clause 11.1.

2.16 "Personal Information" means information or an opinion, whether true or not, and whether recorded in a material form or otherwise, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion and which is received, created, held or otherwise handled by the Contractor during the course of, or in connection with, this Agreement

2.17 "Property" means any property of Eastern Vans, including (but not limited to) any documentation, Documents and papers, Confidential Information, policies, manuals, keys, mobile phones, vehicles, electronic or documented databases, computer software and hardware, multi-media presentations (including any Intellectual Property subsisting therein) and all copies of same.

2.18 'RCTI' means a Recipient Created Tax Invoice as described in clause 6,

2.19 "Services" means the Services described in recital B of this Agreement.

2.20 "Shift Worksheet" means the record described in clause 4.7.

2.21 "The Term" means the term of the Agreement (including any further term) as described in clause 9.

2.22 "Vehicle" means the vehicle described in recital C of this Agreement.

2.23 "Work Offer" means an offer of work to the Contractor for the delivery of the Services in order to meet the requirements of the Principal.

3.1 Eastern Vans hereby agrees to provide to the Contractor a Vehicle and the Contractor hereby agrees to take and use the Vehicle to provide the Services.

3.2 Eastern Vans must allocate the Vehicle a fleet number for the purposes of identifying the Vehicle in relation to the Business and the provision of Services.

3.3 Eastern Vans acknowledges that the Contractor and the Contractor agrees that, it is not obliged to accept any Work Offer to provide the Services. However, the Contractor shall give Eastern Vans not less than 24 hours' notice of any Services which it has agreed to supply, but can no longer do so.

3.4 If Eastern Vans is planning or has experienced changes to the way it conducts its business that may significantly affect the business of the Contractor, Eastern Vans must inform the Contractor of those planned changes or changes as soon as reasonably practicable. Eastern Vans is not obliged to disclose any incomplete proposal or negotiation, or any trade secret or commercial-in-confidence matter.

4.1 The Contractor warrants that it must:

4.1.1 provide a copy of this Agreement executed by the Contractor to Eastern Vans prior to commencing the Services;

4.1.2 perform the Services with due skill and care to the best of their ability;

4.1.3 comply with the reasonable requirements of Eastern Vans and the Principal as advised from time to time in connection with OHS) quality control, performance standards and it's compliance with the terms of this Agreement;

4.1.4 provide the equipment specified in Item 4 of Schedule A for the provision of the Services and keep the equipment in good and safe working order;

4.1.5 comply with all the policies, procedures, rules and manuals relating to Work Health and Safety, quality control, professional conduct and standards and Vehicle standards (as amended from time to time) and such other policies and procedures, rules and manuals that Eastern Vans or the Principal may issue from time to time in relation to these matters;

4.1.6 provide a copy of this Agreement to any Driver or Delegatee and ensure that each Driver or Delegatee will comply with the terms of this Agreement; and

4.1.7 provide Eastern Vans with its preferences as to when it wishes to perform the Services in order that Eastern Vans can prepare a Work Offer to meet the requirements of the Principal in relation to the Business.

4.2 The Contractor may delegate the carrying out of the Services to a person other than the Driver ("Delegatee"), provided that:

4.2.1 prior to the Delegatee carrying out the Services the Delegatee has been accredited and approved by the Principal and Eastern Vans in writing; and

4.2.2 the Contractor remains liable for the provision of Services by the Delegatee on behalf of the Contractor in accordance with the terms of the Agreement.

4.3 The Contractor is responsible for:

(a) the cost of all damage caused by it (and its employees, representatives, agents and officers including any Delegatee) or by the Vehicle or by any Customer's vehicle in respect of which the Contractor is providing the Services; and

(b) for the cost of losses and damage (other than fair wear and tear) to all safety and operating equipment provided with the Vehicle.

4.4 The Contractor must ensure that the Vehicle is in a fully operational state to perform the Services and that the Vehicle and the Driver bear the specific colour schemes, symbols and logos nominated by the Principal for the purposes of the Business and that the said Vehicle, colour schemes, symbols and logos will be kept clean and in good order and condition at all times. If the Vehicle, colour schemes and logos are not in good working order or condition, the Contractor should immediately report these to Eastern Vans.

4.5 The Contractor hereby indemnifies Eastern Vans against all costs expenses and other liabilities Eastern Vans may suffer in respect of any loss or damage described in clause 4.3 as specified in Item 8 and Item 9 of Schedule A as the Accident Excess and Damage Excess.

4.6 The Contractor is at all times responsible to ensure that the Vehicle is suitable for the provision of the Services.

4.7 Whilst providing the Services the Contractor agrees that every Driver and Delegatee will record in a suitable form ("Shift Worksheet") particulars of Services provided which form will include any such details which the Principal and/or Eastern Vans may reasonably request from time to time for the purposes of verifying the provision of the Services and fees payable to the Contractor for those Services. The Contractor further agrees that it will provide the Principal and/or Eastern Vans with a copy of the Shift Worksheet at the earliest reasonable time after completion of the job.

4.8 The Contractor will issue a confirmation of Service that is signed by the Customer at the completion of all service requests and will make all such material available to Eastern Vans or the Principal as required,

4.9 In addition, where the Contractor collects money from Customers for any purpose, the Contractor will complete the relevant documents required by the Principal and will hand a copy of each completed receipt together with the current receipt book log form to an authorised Eastern Vans representative within that pay period. Eastern Vans may at its determination, deduct any money collected by the Contractor from fees to be paid under clause 5.1.

4.10 The Contractor further agrees that he will provide Eastern Vans with an invoice ("invoice") summarising the Services provided during the relevant invoicing period which will be supported by the Shift Worksheets.

4.11 Where the Vehicle has a Principal's phone installed in it, then the Contractor acknowledges that the phone is predominantly for use by the Members of that Principal. The Contractor is responsible for the costs incurred on that phone account over and above the allowance provided as specified in Item 10 of Schedule A as the Van Phone Allowance.

4.12 Subject to clause 18 the Contractor and Eastern Vans acknowledge and agree that this Agreement does not require the Contractor to provide Services exclusively to Eastern Vans and nothing in this Agreement prevents the Contractor engaging or being concerned in any other business or providing services to other businesses.

4.13 The Contractor will pay Eastern Vans' reasonable expenses incurred in or as a result of the exercise of any right or remedy of Eastern Vans against the Contractor.

4.14 The Contractor will comply at his own cost and expense with all laws including Statutes (including, but not limited to Victorian road regulations and all relevant Workplace Health and Safety laws and guidelines), Regulations, By-laws, Orders and all requirements of any Federal, State, Municipal, Public, or other authority so far as they apply to the Contractor in providing Services pursuant to this Agreement.

4.15 If the Contractor is planning or has experienced changes to the way it conducts its business that may significantly affect the business of Eastern Vans, the Contractor must inform Eastern Vans of those planned changes or changes as soon as reasonably practicable. The Contractor is not obliged to disclose any incomplete proposal or negotiation, or any trade secret or commercial-in-confidence matter.

4.16 The Contractor may at its own discretion incorporate a company to provide the Services under this Agreement and shall notify Eastern Vans of that company's details, including name, ACN, ABN and registered office. Upon receipt of that notification by Eastern Vans, the company shall be deemed to be a party to this Agreement and shall be bound as it if it were the Contractor. However, this does not release the Contractor from any of its obligations under this Agreement nor prejudice or waive any rights of Eastern Vans against the Contractor.

5.1 In consideration of the provision of the Services by the Contractor, Eastern Vans agrees to pay to the Contractor an agreed job rate for each completed job for a Customer. The agreed job rate payable is set out in Item 5 of Schedule A as amended by Eastern Vans from time to time.

5.2 No payment shall be due by Eastern Vans to the Contractor other than in respect of Services for which a properly completed Shift Worksheet and Invoice have been provided to Eastern Vans as provided in Item 7 of Schedule A

5.3 The Contractor agrees to obtain and maintain all relevant insurances with respect to loss of income.

5.4 No payment shall be due by Eastern Vans to the Contractor other than in respect of services for which a properly completed invoice has been provided to Eastern Vans.

5.5 The fees payable by Eastern Vans to the Contractor for the provision of Services pursuant to Item 5 of Schedule A will be paid on the dates specified in Item 6 of Schedule A.

5.6 The fees payable by Eastern Vans to the Contractor for the provision of Services pursuant to Item 5 of Schedule A may be reviewed from time to time and may be varied by agreement between the parties hereto.

5.7 The Contractor acknowledges that the fee paid by Eastern Vans to the Contractor incorporates a charge for the use of the Vehicle by the Contractor.

5.8 If the Principal has designated dispatch groups then those dispatch groups shall be defined in Schedule B Dispatch Groups (Area) and may be reviewed and varied from time to time by the Principal without notice.

6.1 The parties agree that this clause 6 shall apply if the Contractor is registered for GST.

6.2 The Contractor agrees that Eastern Vans will issue Recipient Created Tax Invoices ("RCTI") in respect of the provision of the Services by the Contractor under this Agreement.

6.3 The Contractor will not issue Invoices in respect of any Services for which Eastern Vans issues a RCTI.

6.4 The Contractor acknowledges that it is registered for GST and that it will notify Eastern Vans if it ceases to be registered.

6.5 Eastern Vans acknowledges that it is registered for GST and that it will notify the Contractor if it ceases to be registered.

6.6 For the purposes of clause 4.10 and clause 5.4, the Contractor shall be deemed to have satisfied it's [sic] obligation to provide an Invoice if Eastern Vans has issued a RCTI.

7.1 The Contractor hereby covenants with Eastern Vans that it and each Driver and Delegatee:

7.1.1 is licensed and will maintain an appropriate license to drive the Vehicle under the relevant rules and regulations of the State in which he is to perform Services in accordance with this Agreement;

7.1.2 has not been the subject of conviction for any criminal offence in any Court of Law other than as disclosed to Eastern Vans in writing prior to execution of this Agreement. Should any criminal proceedings be instituted against the Contractor which may result in conviction and therefore affect the legal right of the Contractor to properly and legally drive the Vehicle, the Contractor undertakes to immediately notify Eastern Vans of all relevant details relating to the proceedings. The Contractor acknowledges that certain Principals have specified that no person who has been convicted of a criminal offence can be engaged for Services;

7.1.3 will provide Services pursuant to this Agreement in a proper and workmanlike manner in accordance with the terms of this Agreement and will at all times exercise proper care and control of the Vehicle in its care and will ensure that he operates the Vehicle within the limits and safety standards specified by the manufacturers;

7.1.4 unless authorised in writing by a Customer or an authorised representative of Eastern Vans, will not remove articles, parts, fuel or any other property belonging to a Customer other than for the purposes of undertaking repairs to the Customer's Vehicle;

7.1.5 will note and report any dispute with a Customer to Eastern Vans' control centre. The Customer of the public should be referred to the Manager of the control centre to record his or her complaint. Upon a complaint being made, the Contractor should not enter into discussion regarding the matter in dispute;

7.1.6 will not at any time whilst providing the Services, or within 10 hours before providing the Services, consume and/or be under the influence of alcohol or any drug, legal or otherwise, which may affect his ability to drive and work safely;

7.1.7 consents to random testing by Eastern Vans with respect to drugs and alcohol;

7.1.8 will not smoke in the Vehicle or on Eastern Vans' property other than in selected reserved areas;

7.1.9 will ensure that:

1. the Principal's representatives who allocate the work are aware of its readiness to accept work at all times while signed on. This includes the Contractor ensuring that it is contactable by phone if away from the Vehicle;

2. the Vehicle is returned to Eastern Vans to enable inspection of the Vehicle, equipment and tools at regular intervals, when requested by the Contractor or Eastern Vans and to enable proper maintenance of the Vehicle to be carried out by the Contractor;

3. all mechanical problems with the Vehicle are immediately reported to Eastern Vans in order that it may effect repairs;

4. the Vehicle is in a safe and roadworthy condition at all times when he is operating the Vehicle and that the correct plant, safety items and equipment are on the Vehicle at all times and are used when appropriate;

5. there are no discharges of pollutants from Customers' vehicles or equipment under the control of Customers. If discharges can be identified by the Contractor, the Contractor should immediately report these to the Manager of the Eastern Vans' control centre;

6. the interior and exterior of the Vehicle are kept in a clean and tidy condition at all times;

7. decals, stickers or other advertising material, including football stickers and streamers are not attached to any Vehicle belonging to Eastern Vans unless specifically authorised by Eastern Vans;

8. all plant, equipment and safety items provided with the Vehicle are functional and are properly maintained;

9. he will wear any approved safety uniform of the Principal (if applicable) at all times;

10. he maintains the uniform in a clean condition, wears clean shirts and trousers every day, and that, other than the items of clothing mentioned above in Clause 7.1.9i), no other piece of clothing is visible;

11. he complies with all safety procedures provided by Eastern Vans and wears the Safety Uniform of the Principal's at all times while working outside the Vehicle; and

12. where possible, the owner or agent of the owner to which the Contractor is providing the Service is provided with a completed service report after completion of the Vehicle service.

7.1.10 will use his best endeavors to promote the interests of the Principal and any parts, products and recommended repairers of the Principal.

7.2 For the avoidance of doubt the Contractor remains liable for the provision of all Services delivered by any Driver or Delegatee on behalf of the Contractor.

8.1 Eastern Vans covenants with the Contractor that it shall:

8.1.1 Provide the Contractor with a Vehicle suitable to enable the Contractor to adequately provide Services to the Members, including Service information by radio wave or other transmission;

8.1.2 Ensure, at the expense of Eastern Vans, that the Vehicle is registered, comprehensively insured and roadworthy and is and will be maintained in accordance with the relevant regulations governing such Vehicles for the State in which it is operated.

9.1 This Agreement is for the period commencing on the date hereof until the date set out in Item 2 of Schedule A. The Agreement may be terminated prior to this date in accordance with the provisions of this Agreement.

9.2 This Agreement shall be automatically renewed at the expiration of the initial Term for a further term as specified in Item 3 of Schedule A without need for any notice.

9.3 Notwithstanding the foregoing, the Agreement shall not be renewed at the end of the initial Term if either party gives written notice to the other not less than thirty days before the end of the initial Term, stating that it does not wish to renew the Agreement.

9.4 The renewed agreement is to be identical with this Agreement except that the date of commencement of the further term shall be the day following expiration of the initial Term.

10.1 Without prejudice to any other remedy it may have against the Contractor, Eastern Vans shall have the right to suspend this Agreement forthwith by notice in writing to the Contractor ("Notice of Suspension") in the event that the Contractor breaches any term or condition of this Agreement.

10.2 The Notice of Suspension shall specify the breach or other reason for the suspension of this Agreement and the remedy required for re-instating the Agreement. Suspension will take effect immediately upon service of the Notice of Suspension on the Contractor. Suspension may be imposed with not less than one hour's notice to the Contractor.

11.1 Without prejudice to any remedy it may have against the Contractor for a breach or non-performance of this Agreement, Eastern Vans shall have the right to terminate this Agreement forthwith by notice in writing to the Contractor ("Notice of Termination") in the event that:

11.1.1 the Contractor commits a breach of any of the essential terms of this Agreement. The essential terms of this Agreement are Clauses 7.1.9; 15 and 16; or

11.1.2 the Contractor is suspended 3 times for breach of any other terms of this Agreement; or

11.1.3 the Contractor commits an illegal act or breach of the Law, Statute, Regulations, By-laws, Orders or other requirements of any Federal, State, Municipal, Public or other authority.

11.2 The Notice of Termination shall specify the breach of non-performance or other reason for the termination of this Agreement and termination will take effect immediately upon service of the Notice of Termination on the Contractor. The Notice of Termination must be served within thirty days of Eastern Vans becoming aware of the act giving Eastern Vans the right to terminate this Agreement.

12.1 Without prejudice to any remedy it may have against Eastern Vans for a breach or non-performance of this Agreement, the Contractor shall have the right to terminate this Agreement forthwith by notice in writing to the Eastern Vans ("Notice of Termination") in the event that:

12.1.1 the appointment of a Liquidator, Receiver, Receiver & Manager or Mortgagee in Possession to Eastern Vans or its estate is assigned for the benefit of its creditors; or

12.1.2 Eastern Vans commits an illegal act or breach of the Law, Statute, Regulations, By-laws, Orders or other requirements of any Federal, State, Municipal, Public or other authority.

13.1 The Contractor agrees that, following service of a Notice of Suspension or a Notice of Termination by Eastern Vans, Eastern Vans has the right to prevent the Contractor from using the Vehicle by whatever means Eastern Vans deems necessary including, but not limited to:

13.1.1 the placement of wheel clamps on the vehicle;

13.1.2 the removal of the vehicle from the possession of the Contractor; and

13.1.3 the suspension of all radio or other transmission facilities provided by Eastern Vans.

13.2 The Contractor hereby authorises Eastern Vans to enter into his premises and to deal with the Vehicle as Eastern Vans deems necessary in the exercise of its rights under clause 13.1. Eastern Vans shall not be liable for any loss or damage suffered by the Contractor as a result of exercising these rights.

14.1 The Contractor acknowledges and agrees that all signs, logos, specific colour schemes and symbols of the Principal and Eastern Vans are now and at all times remain the sole property of either the Principal or Eastern Vans. Nothing in this Agreement shall give the Contractor authority to use the name of the Principal or Eastern Vans, its logo, sign and symbols without the consent in writing of Eastern Vans.

15.1 The Contractor may not deal with, assign, or otherwise transfer its rights and obligations under this Agreement without obtaining written consent from Eastern Vans to any such dealing.

16.1 The Contractor hereby indemnifies Eastern Vans against all Loss, demands, claims, charges, liability and actions incurred by it in connection with the following:

16.1.1 any default in the performance of its obligations under this Agreement;

16.1.2 any act of a Government department or statutory authority in respect of costs or charges arising directly or indirectly as a consequence of the Contractor providing services and being remunerated in the manner contemplated herein;

16.1.3 Loss to the Property of Eastern Vans where such Loss is caused directly or indirectly by the acts or omissions of the Contractor; or

16.1.4 personal injury, death, loss of or damage to any Property whatsoever, arising out of or, as a consequence of, the acts or omissions of the Contractor.

16.2 The Contractor releases Eastern Vans from, and covenants that it will not make, any claim, demand or action at common law, including negligence, in equity, under statute or otherwise, or commence any proceedings against Eastern Vans arising from or in connection with this Agreement, including but not limited to any claim, demand or action for superannuation, workers compensation or leave entitlements.

17.1 The Contractor's relationship with Eastern Vans shall be that of independent contractor. The Contractor shall not have the power, right or authority to bind or create any obligation or responsibility on behalf of Eastern Vans. Nothing stated in this Agreement shall be construed as constituting the Contractor and Eastern Vans as partners, or as creating the relationship of employer and employee, master and servant, principal and agent, contractor and sub-contractor, principal or agent (otherwise than as specifically provided herein), or joint venturers.

18.1 In consideration of Eastern Vans providing the Vehicle to enable the Contractor to provide the Services, the Contractor agrees and covenants with Eastern Vans that during the Term of this Agreement, he will not engage, either directly or indirectly, or be concerned with or provide Services to any other business using the Vehicle or the uniform.

18.2 Notwithstanding the provisions of Clause 18.1 above, Eastern Vans may authorise the Contractor to provide Services to other businesses or authorise independent use of the Vehicle by the Contractor. Any such authority will only apply to the circumstances for which the authority was sought and shall not be construed as an authority beyond those circumstances.

18.3 The Contractor acknowledges that the restriction in clauses 18.1 and 18.2 is necessary, fair and reasonable in order to protect the Business of and reputation of Eastern Vans and the Principal.

19.1 Any notice, demand, consent, statement or other communication to be given or made under this Agreement:

19.1.1 must be in writing;

19.1.2 may be signed by an authorised officer of the party giving or making it; and

19.1.3 may be given by being left or sent by pre-paid ordinary post to the address of the intended recipient as specified in this Agreement (or where a new address has been notified in writing) or by facsimile to the intended recipient's current number for service

19.2 With respect to a notice, demand, consent, statement or other communication as specified in Clause 19.1:

19.2.1 service will be deemed to have occurred two business days after posting;

19.2.2 service by facsimile transmission will be deemed to have occurred at the conclusion of transmission from the sender's facsimile machine; and

19.2.3 service by any of the means specified in Clause 19.1.3 above will be valid and effective service even though the intended recipient does not receive the notice or where it has been posted it has been returned to the sender through the post unclaimed.

20.1 The Contractor will not, except as authorised by Eastern Vans, reveal to any person, persons, company or other entity any information concerning the confidential operations, dealings, business, finance, transactions, assets or other affairs of the Principal, Eastern Vans or any of its subsidiaries which may come to the Contractor's knowledge during the course of this Agreement and shall keep with complete secrecy all Confidential Information entrusted to it and shall not use or attempt to use any such information in any manner which may injure or cause loss either directly or indirectly to Eastern Vans or its business or may be likely so to do. This restriction shall continue to apply beyond the Term of this Agreement without limit but shall cease to apply to information that may come into the public domain,

21.1 This Agreement shall be construed and take effect in accordance with the laws of Victoria and each party hereto submits to the jurisdiction of the relevant Court of Law in that jurisdiction.

22.1 If any of the provisions of this Agreement or the application of any term or provision to any person or in any circumstance is or becomes wholly or partly illegal, invalid or unenforceable in any jurisdiction, that term or provision, or the relevant part of that term or provision (as applicable), will be severed and neither the remaining terms and provisions nor the validity or enforceability of the severed term or provision in any other jurisdiction will be affected.

23.1 This Agreement comprises the sole and entire Agreement between the parties and no earlier representations or agreement whether oral or in writing in relation to any matter dealt with in this Agreement shall have any effect from the date of this Agreement and shall not be varied except in writing signed by all parties. Any warranty, representation or other term or condition of any nature not contained or recorded in this Agreement is of no force or effect.

Contractor: BARCA, GEORGE trading as ALL DISTRICTS MOBILE MECHANIC JIMS MOBILE MECHANICS

Term of Agreement: 29 / 10 / 14 to 29 / 10 / 15 [date inserted by hand]

Further Term: 29 / 10 / 15 to 29 / 10 / 16 [date inserted by hand and initialled]

Normal Hour Rate per job Mon to Fri between 0600 and 1800 hours

Bays, City & Knox $12.00 Latrobe $13.00 Calder $15.00 Calder regional $20.00

After Hour rate per job All Other hours including weekends and public holidays

Bays, City & Knox $16.00 Latrobe $18.00 Calder $20.00 Calder regional $30.00

Bays, City, Knox & Latrobe $8.00 Calder & Calder regional $10.00

Night rate per shift 2300 to 0700 hours - up to 10 Jobs, then the appropriate per job rate

Monthly in arrears on or about the 15th of the month following that to which the fees relate.

All documentation must be presented within 3 business days of following month

SCHEDULE B DISPATCH GROUPS (AREA) [Schedule B omitted from reproduced document]

EASTERN VAN SERVICES PTY LTD A.C.N, 090 167 552 by its authorised representatives in accordance with section 127 of the Corporations Act 2001

SIGNED by BARCA, GEORGE trading as ALL DISTRICTS MOBILE MECHANIC

[1] BSA Ltd v Victorian Workcover Authority [2018] VSC 46 ('BSA'); BSA Ltd v Victorian Workcover Authority [2018] VSCA 265 (23 October 2018) ('the BSA appeal').

[2] BSA Ltd v Victorian WorkCover Authority [2016] VSC 435.

[5] The asterisks and the related words in italics are additions of mine, included by way of explanation.

[6] Transcript of Proceedings, Eastern Van Services Pty Ltd v Victorian Workcover Authority (Supreme Court of Victoria, S CI 2016 03144, Cavanough J, 1-2 August 2017) ('Transcript of Proceedings') T29-30 (Mr Green QC); T272 (Ms Nichols, now Ms Nichols QC). Mr McKeown, as counsel for Mr Barca, did not comment specifically on this point, but must be taken to have agreed with the submissions made by the other two parties.

[7] [2015] FCAFC 62; (2015) 233 FCR 46, 49-50 [4]-[5] ('Tattsbet').

[8] Eastern Van Services Pty Ltd, 'Plaintiff's Amended Submissions on the Impact of BSA Ltd v Victorian Workcover Authority [2018] VSC 46 (13 February 2018) and BSA Ltd v Victorian Workcover Authority [2018] VSCA 265 (23 October 2018)', Submission in Eastern Van Services Pty Ltd v Victorian Workcover Authority, S CI 2016 03144, 31 October 2018, [9] ('Plaintiff's 31 October 2018 Submissions'), citing BSA (n 1) [34].

[9] Plaintiff's 31 October 2018 Submissions (n 8) [10], citing the BSA appeal (n 1) [82].

[10] Plaintiff's 31 October 2018 Submissions (n 8) [12], citing BSA (n 1) [39].

[11] Ibid [12b], citing BSA (n 1) [45].

[12] Plaintiff's 31 October 2018 Submissions (n 8) [12.c.], citing BSA (n 1) [46].

[13] Ibid [12d], citing BSA (n 1) [47].

[14] Ibid [12e], citing BSA (n 1) [49].

[15] Ibid [12f], citing BSA (n 1) [50]-[52].

[16] Plaintiff's 31 October 2018 Submissions (n 8) [12g], citing BSA (n 1) [53].

[17] Ibid [12h], citing BSA (n 1) [54].

[18] Ibid [12i], citing BSA (n 1) [57].

[19] Ibid [12j], citing BSA (n 1) [58].

[20] Plaintiff's 31 October 2018 Submissions (n 8) [12k], citing BSA (n 1) [61].

[21] The BSA appeal (n 1) [95]-[99], [100]-[104].

[22] In my view, although it was accepted that the agreement had the label referred to, the defendants did not accept that the agreement was treated by both of the parties, for all purposes, as one of independent contractor and principal. I do not think that the citations given here by Mr O'Grady QC would make out that contention.

[24] The BSA appeal (n 1) [79]. Emphasis added by Mr O'Grady QC.

[26] Being, I note, the same position that had previously been adopted in written submissions by the plaintiff, EVS when represented by different senior counsel.

[27] [1998] HCA 28; (1998) 194 CLR 355 ('Project Blue Sky').

[30] [1986] HCA 1; (1986) 160 CLR 16.

[32] [2010] FCAFC 52; (2010) 268 ALR 232 ('Roy Morgan Research').

[33] Ibid, 242 [31] quoting Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939, 944 as quoted in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 37 ATR 528, 533.

[34] Citing the BSA appeal (n 1) [79].

[36] The BSA appeal (n 1) [79], [80], [83], [85].

[37] Compare Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385; Tattsbet (n 7); Sweeney v Boylan Nominees [2006] HCA 19; (2006) 226 CLR 161, 172-173 [29]-[32].

[38] Transcript of Proceedings (n 6) T157.

[40] Stevens v Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, 49 (Deane J).

[41] Citing Connelly v Wells (1994) 55 IR 73, 74.

[42] Citing Stevens v Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, 37 (Wilson and Dawson JJ).

[43] [2001] HCA 44; (2001) 207 CLR 21 ('Hollis').

[45] [2013] FCAFC 3; (2013) 209 FCR 146.

[47] [1987] FCA 20; (1987) 17 FCR 495 ('Genys').

[48] [2015] FCAFC 37; (2015) 228 FCR 346 ('Quest'): reversed on other grounds in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45; (2015) 256 CLR 137.

[49] [2011] FCA 366; (2011) 214 FCR 82 ('On-Call Interpreters').

[50] Subsequent cases indicate that there is no reason to depart substantially from that summary: see, esp. WorkPac Pty Ltd v Skene [2018] FCAFC 131 [180]; Moffet v Dental Corporation Pty Ltd [2019] FCA 344 [10]-[20] (Flick J).

[51] Hollis (n 41) 45 [58]; Ace Insurance Limited v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146, 149 [11].

[55] [2011] VSCA 405 ('Elazac').

[56] Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561 ('Zuijs'); Stevens v Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, 24 (Mason J).

[58] Compare Fair Work Ombudsman v Maclean Bay Pty Ltd [2012] FCA 10; (2012) 200 FCR 57 (Marshall J) at 84-85 [141]-[148].

[59] There was no evidence that EVS had ever approved of Mr Barca or any other driver delegating the carrying out of the services required to be provided under the agreement. Had such a thing ever happened, EVS could easily have provided evidence of it.