Thompson v Groote Eylandt Mining Co Ltd [2003] NTCA 5

[3] In Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, McHugh J at p 302 said:

"To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence parliament failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved."

The thrust of this observation is not diminished if a preferable view is that the process is more accurately described as implying the words (see Pearce and Geddes Statutory Interpretation Australia, 5th Ed, par 2.28).

[4] I am not satisfied that the choice of words in question here was deliberately intended to exclude workers rights in a case such as this. This case and Herbert v KP Welding Construction Pty Ltd (1996) 125 FLR 3000 show the words in this context are capable of an "ambulatory operation" per Spigelman CJ in R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at 687-8.

[5] I agree with the orders proposed by Mildren J.

[6] The appellant was the applicant in the Work Health Court where he successfully obtained a finding by Mr McGregor SM that he was, at the material time, a worker within the meaning of para (a) of the definition of "worker" contained in s 3(1) of the Work Health Act. The consequence of that finding was that the worker was entitled to compensation under the Act and subsequently, on 14 January 2002, another magistrate, Mr Trigg SM, made orders requiring the respondent to pay to the appellant arrears of compensation for loss of earning capacity, interest and future weekly payments of compensation, as well as other benefits under the Act.

[7] The respondent appealed to the Supreme Court which upheld the appeal on the basis that the learned magistrate had erred in finding that the appellant was a worker as so defined.

[8] The relevant definition of "worker" at the material date was as follows:

(a) who, under a contract or agreement of any kind (whether expressed or implied, oral or in writing or under a law of the Territory or not), performs work or a service of any kind for another person and who is a P.A.Y.E. taxpayer;

(b) who is a person or a member of a class of persons prescribed for the purposes of this definition;

(c) who is employed in the service of the Commonwealth;

(d) subject to sub-section (2), who is a member of the immediate family of the employer;

(e) subject to sub-section (3), who is a director (by whatever name called) of a body corporate;

(f) subject to sub-sections (7) and (8), who is employed in voluntary work and who receives in relation to that work, if anything, nothing more than reasonable travelling, accommodation or other out -of -pocket expenses;

(g) who is a person, or a member of a class of persons prescribed for the purposes of this definition; and

(h) who is a person referred to in sub-section (10).

[9] A "P.A.Y.E. taxpayer" was also defined in s 3(1) of the Act as follows:

"P.A.Y.E. taxpayer", in relation to a worker, means that his employer makes deductions from money paid to the worker for work performed or service provided to the employer in accordance with Division 2 of Part IV of the Income Tax Assessment Act 1936 of the Commonwealth, and includes a worker in respect of whom such deductions are not made by his employer but only because -

(a) of the shortness of time during which the worker has been in the employment of his employer; or

(b) having regard to the amount of money paid to the worker, his employer is not required to make such deductions under that Division.

[10] The facts as found were that the appellant was, in May 1994, a 17-year-old boy. In 1993 he had completed year 12 in Queensland and had left school. He was in need of a job. He had never held a job of any kind, not even a part-time casual job. He had a female cousin working for the respondent and she telephoned him to say that there would be work coming up on Groote Eylandt. She gave him no details, but met him at the island's airstrip and introduced him to Manuel Driss, who was the alter ego of Drisco Pty Ltd. Mr Driss told the appellant that he could start work the next day, that he was not to worry about his pay which would come in due course and that he would be doing basic labouring work. Neither said anything else and no rate of pay was discussed.

[11] The appellant began work on 9 April 1994 and received his first pay for a period of four and a half days on the next payday. He was paid by cheque, with a yellow slip attached which showed "gross $675.00, 20% tax $135.00". The appellant was satisfied with that. He did not ask about the rate of tax. He thought that he was being treated as a normal worker. He did not know the difference between PAYE and PPS taxation rates. At no time did Drisco Pty Ltd deduct instalments of income tax from the appellant's wages on a PAYE basis; Drisco Pty Ltd deducted income tax from the appellant's wages on the PPS basis and at the PPS rate.

[12] On or about 7 May 1994, the appellant suffered an injury at work. Assuming that the appellant was a worker, there is no question that the injury arose out of or in the course of the appellant's employment. The site of the injury was at the magnetic separation area, a concrete building at the manganese mine on Groote Eylandt in the Northern Territory, the premises of the respondent. The injury occurred whilst the appellant was performing work for Drisco Pty Ltd in accordance with the terms of his employment. At the time of his injury, the respondent had in the course of, or for the purpose of, its trade or business, contracted with Drisco Pty Ltd for the execution of certain works in respect of which the appellant was working at the time of the injury and at the time of his injury, the appellant was performing the duties of his employment in pursuance of that contract. It was an agreed fact that if the appellant was found to be a worker within the meaning of the Act, then, by virtue of s 127(1) of the Work Health Act, as it existed at the date of the injury, the respondent was liable to pay compensation to the appellant pursuant to the Act as if the appellant had been employed by the respondent.

[13] Drisco Pty Ltd did not have any insurance to cover it or its workers for workmen's compensation payments. Nothing was said to the appellant to encourage him to arrange insurance for himself and he did not have any insurance either.

[14] All the equipment needed by the appellant to perform his work was provided by Drisco Pty Ltd. At all material times it was common ground that the appellant was required to do whatever he was directed to do by Mr Driss; that he was required to perform his work in the manner in which he was instructed to do by his employer; that the employer provided all the materials, tools and safety equipment that the appellant needed; that the appellant was obliged to obey the directions of the employer, its servants and agents as to the manner in which the work was to be performed and where and when it was to be performed; that the appellant was required to perform the work personally as part of the business of the employer company; that the appellant was not permitted to work for anyone else during the hours of the day that he was committed to work for the employer, and the appellant was required to start and finish his work at times stipulated by the employer.

[15] The learned magistrate found that there was no conspiracy between the appellant Mr Driss and Drisco Pty Ltd to cheat the taxation system and that there was no intention on the part of the appellant not to become a PAYE taxpayer. Importantly, the learned magistrate found that the appellant made no attempt to evade the Income Tax Assessment Act 1936 and that there was no agreement between the parties to the employment contract that, notwithstanding the relationship established by that contract, they would or might pretend that the contract was other than what it was for taxation purposes.

One might readily conclude in this case, were it a fact in issue, that there was an attempt by Driss and Drisco to evade certain apposite provisions of ITAA, even an evasion by shift or contrivance by filling in the wrong forms and making the wrong deductions. Indeed, on the evidence before me any other conclusion would be repugnant to reason. I refrain from holding that Driss and Drisco attempted to evade the PAYE provisions. They are not parties to the action, it is not a fact in issue, and such a finding would only prejudice them.

[17] It is necessary now to turn to the provisions of the Income Tax Assessment Act 1936 (the ITAA) to understand something of the difference between a PAYE taxpayer and a person who is subject to deductions of tax under the prescribed payments scheme (PPS). In KP Welding Construction Pty Ltd v Herbert [1995] NTSC 1; (1995) 102 NTR 20 at pp 28-29, Kearney J conveniently summarised the difference between PAYE and PPS tax deductions as follows:

... PAYE tax is deductible under Div 2 of Pt VI of the ITAA only from the salary or wages of an employee; that is, it is deductible only when a relationship of employer/employee exists, in accordance with those terms as defined in s 221A(1) of the ITAA. "Employee" is there defined in terms of "a person who receives, or is entitled to receive, salary or wages"; and "employer" as "a person who pays or is liable to pay any salary or wages". It can be seen that PAYE tax is therefore deductible only when a master-servant relationship exists; that is, in traditional common law terms, when one person contracts to perform work for another, and is substantially subject to the control and direction of that other when doing it. It follows that PAYE tax is not deductible from money paid to an independent contractor, that is, a person who undertakes to perform work but is not, in its execution, subject to the control and direction of the person for whom he performs the work. Payments to independent contractors in certain industries, including the building and construction industry, are (separately and distinct from the PAYE system) subject to deductions of tax at source under the prescribed payments scheme (PPS), provided for by ss 221YHA-221YHZ which constitute Div 3A of Pt VI of the ITAA; the standard rate is 20 per cent.

It can be seen that for the purpose of policing the PAYE system the Australian Taxation Office must determine whether the necessary employer-and-employee relationship exists. The office primarily uses the "control" test for this purpose.

[18] There is no doubt that the learned magistrate's finding that the appellant was an employee and not an independent contractor of Drisco Pty Ltd was correct, and indeed, that finding was not challenged on appeal to the Supreme Court.

[19] The learned magistrate found as a fact, that the appellant was entitled to compensation because on the facts he fell within proviso (a) to the definition of "P.A.Y.E. taxpayer" because, according to the second reading speech for the Work Health Amendment (Serial 83) Bill, the Minister contemplated that the Australian Tax Office was to be "the policeman or watchdog for the new provision", that the fact that the employer had deducted tax on the PPS basis did not necessarily preclude a finding that the appellant fell within proviso (a) to the definition of "P.A.Y.E. taxpayer"; that the Court would not contemplate, where the worker is not a party to evasion by shift or contrivance, a desire on the part of the employer to save the cost of the policy or to pay his men an attractive pay in a hardship posting without properly deducting income tax as the reason and therefore the Court was left with the reason that Australian Taxation Office had not had time to digest the material and tell the employer to meet his obligations under Div 2 of

Pt VI. His Worship held that all the evidence pointed to that conclusion and accordingly, that the deductions were not made because the time had been too short to point out the error of the employer's ways.

[20] On appeal, Bailey J held that the definition of PAYE taxpayer provides an objective test, the question being whether the employer in fact makes tax deductions which purport to be made under the PAYE system. If such deductions are made, the person from whose payments the employer makes such deductions is a PAYE taxpayer within the meaning of the definition of "worker" in s 3(1) of the Act. Bailey J also disagreed with the learned magistrate's finding that the facts fell within proviso (a) of the definition of "P.A.Y.E taxpayer". His Honour said:

In the present case, it was not only an agreed fact that at all material times the employer did not deduct instalments of income tax on a PAYE basis, but the learned magistrate also found the employer never intended to make PAYE deductions on behalf of the respondent. The reason the PAYE deductions were not made had no connection with the "shortness of time" of the respondent's employment. PAYE deductions were not made because the employer had made a conscious decision not to make such deductions. He had made a conscious decision to make deductions of tax on the PPS basis. In such circumstances, it is not to the point that at some future indeterminate time, the ATO may have discovered that tax deductions were being made from the respondent's wages on an incorrect basis and moved to correct the situation. The respondent did not fall within the exception provided for in the definition of PAYE taxpayer.

No argument was pressed that this was a finding of fact by the learned magistrate which could not be upset on appeal; nor did the appellant seek to support the finding made by the learned magistrate before this Court. Rather, the argument was that the definition of "worker", should be read down to include a worker in the circumstances of the appellant. In particular, it was argued that it could not have been the intention of Parliament that the test as to who was a PAYE taxpayer, depended solely upon the objective fact of whether or not the employer made deductions from money paid to the worker in accordance with the provisions of the Income Tax Assessment Act 1936.

[21] The definition of "worker" in the Work Health Act has been amended many times. The definition with which we are now dealing is no longer the current definition. It remains to be seen whether the current definition is any more successful than the previous attempts at defining what is after all an ordinary English word. Prior to 1 January 1992, the definition of "worker" reflected the common law notion of the relationship of master and servant, with a number of specific exceptions such as employees of the Commonwealth, and a number of specific inclusions such as Judges, Magistrates and members of the police force who may not have been servants at common law. The principal argument of the respondents is that the amendment in the definition effected by the Work Health Amendment Act (No 3) 1991 was intended to replace the former common law test with a simple objective test: was the employee a person whose employer was in fact making deductions etc, subject only to the provisos mentioned in

paras (a) and (b) of the definition of "P.A.Y.E. taxpayer"? The respondent's contention depended upon a literal construction of the definition. Support for this contention was to be found in the respondent's submission in a number of other matters, including the opinions of Kearney J in

KP Welding Construction Pty Ltd v Herbert, supra, at 38; some observations from Martin CJ and Thomas J on appeal: (1996) 125 FLR 299 at 301, and by Angel J at 304; the decision of Thomas J in Michalak v Murlise (1995)

125 FLR 305; as well as some observations of the Minister in his Second Reading Speech:

The next major initiative included in the bill is the removal of the exemption certificate provisions. In the present act, provision exists for a person to be exempted from compulsory insurance requirements if he can demonstrate that he is an independent contractor. Such an exemption effectively removes the individual from the scope of the act in terms of both compulsory insurance and compensation benefits. Its purpose was to avoid delays caused by litigation, where it was not clear whether or not a person was a worker and thus entitled to compensation. The system has been reasonably successful in achieving its fundamental aims, but has been something of a bureaucratic nightmare to administer. It is also open to abuse. The new bill removes the exemption provisions altogether and, instead, redefines 'worker'. The new definition will relate to the taxation regime under which a person is paid.

The basis for future determination of a person's 'worker' status will be whether that person is employed and paid under the 'Pay As You Earn', or PAYE as it is commonly known, taxation provisions. This will be the sole basis for the purposes of worker compensation. It will alleviate the existing cumbersome administrative procedures and, in effect, will be monitored by the Australian Tax Office. Special provision is included in the bill for those who have only just commenced work with an employer and have not yet had PAYE tax deducted only because they have not yet been paid. There is also provision for low-income earners who do not reach the tax threshold and therefore do not pay PAYE tax. This amendment will be easy for workers and employers to understand and it has the advantage of keeping bureaucratic red tape to a minimum for the purposes of workers compensation. It will alleviate the existing cumbersome administrative procedures and, in effect, will be monitored by the Australian Tax office.

[22] Before analysing the problem in any detail, I should draw attention to the observations of the learned Judge that in his view this case was a graphic example of the deficiencies of the Act's definition of "worker" as it stood at the time of the appellant's accident. Although his Honour allowed the respondent's appeal, he said:

...it is difficult to imagine that the legislature would have set out to defeat a claim for compensation from a person in the situation of the present respondent. I consider that there is a great deal of merit in Mr Southwood's submissions that the definition of PAYE taxpayer as it stood from 1 January 1992 until 30 June 2000 was capable of working great injustice and unfairness to employees. The power to make appropriate tax deductions from an employee's wages lies with the employer. It would seem a gross injustice that an employee's compensation claim under the Work Health Act can be defeated because of his employer's failure to comply with the statutory obligations placed upon him by the ITAA. Notwithstanding the amendments made to the Act in 2000, the legislature may wish to consider appropriate action, whether by legislation or otherwise, to remedy the situation in relation to the present respondent and any other employees in a similar position.

I should also record that the failure of an employer to deduct PAYE tax from his employee's weekly salary or wages amounted to an offence against the ITAA; see ss 221C(1) and (1A), and was subject to a maximum penalty of $1,000.

[23] The approach to statutory interpretation in a case such as this depends upon a number of well-known principles. The first is the requirement of s 62A of the Interpretation Act 1978 which provides:

In interpreting a provision of an Act, a construction that promotes the purpose or object underlying the Act (whether the purpose or object is expressly stated in the Act or not) is to be preferred to a construction that does not promote the purpose or object.

[24] The preamble to the Work Health Act as it existed at the relevant time, was as follows:

An Act to promote occupational health and safety in the Territory to prevent industrial injuries and diseases, to promote the rehabilitation and maximum recovery from incapacity of injured workers, to provide financial compensation to workers incapacitated from industrial injuries or diseases and to the dependants of workers who die as the results of such injuries or diseases, to establish certain bodies and a fund for the proper administration of the Act, and for related purposes.

[25] The Act provided for a scheme of no fault liability and for the payment, amongst other things, of compensation and medical expenses in respect of injuries arising out of and in the course of a worker,s employment. As part of the scheme, employers were required to insure with an approved insurer for the full amount of the employer's liability under the Act; see s 126(1). Failure to insure was an offence against the Act for which a maximum penalty of $15,000 and a default penalty of $2,000 was fixed.

[26] It is a notorious fact that a number of employers, particularly small operators, had consistently attempted to avoid the provisions of the Act because of the high premiums charged by insurers, particularly in high risk industries such as the building industry. One method used to get around these requirements was to attempt to contract out of the arrangements by one means or another. The legislature attempted to prevent this. Section 186A provided that the Act applied, notwithstanding any agreement to the contrary, and that a contract or agreement purporting to exclude or limit the rights or entitlements of a person under the Act is to that extent null and void. Section 186A(3) created an offence punishable by a maximum penalty of $5,000 for any person who urged, prevailed upon, persuaded or offered an inducement to another person to enter into a contract or agreement whereby that other person would consent or agree to the application of the Act being excluded or limited in respect of that person.

[27] Another device employed was to attempt to create a situation where the worker appeared to be a sub-contractor. This was sometimes done by requiring the worker to form a limited company or by entering into a partnership with other workers, but often the devices used were very crude indeed. This occasionally led to litigation as to whether or not the so-called sub-contractor was in reality a worker. In any event, the legislature intervened by making the principal contractor liable under the Act for compensation payable by the sub-contractor to the sub-contractor's workmen: see s 127.

[28] There is no doubt that this legislation is beneficial legislation, and therefore the provisions of the Act must be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal and which are consistent with the actual language employed and to which its words are fairly open: see Khoury v Government Insurance Office (New South Wales) [1984] HCA 55; (1984) 54 ALR 639 at 649-650 per Mason, Brennan, Deane and Dawson JJ; [1984] HCA 55; (1984) 58 ALJR 502 at 508. This approach is not confined to cases of ambiguity; see Woodruffe v Northern Territory of Australia [2000] NTCA 8; (2000) 10 NTLR 52 at 62 (para [28]).

[29] There is also a principle of statutory interpretation which deals with the absurdity of the consequences of the literal interpretation. This rule is particularly significant bearing in mind the purposive approach which the courts are now obliged to adopt. It is derived from what is known as the rule in Heydon's Case [1584] EngR 9; (1584) 3 Co.Rep 7a at 7b; 76 ER 637 at 638:

That for the sure and true interpretation of all statutes in general ... four things are to be discerned and considered: (1st) What was the common law before the making of the Act?; (2nd) What was the mischief and defect for which the common law did not provide? (3rd) What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth. And (4th) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

[30] In Tickle Industries Pty Ltd v Hann & Richardson [1974] HCA 5; (1974) 2 ALR 281 at 289, Barwick CJ said:

It is ... a sound rule of statutory construction that a meaning of the language employed by the legislature which would produce an unjust or capricious result is to be avoided. Unless the statutory language is intractable, an intention to produce by its legislation an unjust or capricious result should not be attributed to the legislature.

[31] There is another rule of construction which I think is also of great significance in this case, and that is the rule expressed in the maxim nullus commodum capere potest de injuria sua propria: no man can take advantage of his own wrong. This is a very ancient rule and it applies equally to the construction of statutes as it does to contracts. In Davenport v The Queen (1877) 3 App.Cas 115, Sir Montegue E Smith, speaking on behalf of the Privy Council, observed at p 128-29:

In a long series of decisions the Courts have construed clauses of forfeiture in leases declaring in terms, however clear and strong, that they shall be void on breach of conditions by the lessees, to mean that they are voidable only at the option of the lessors. The same rule of construction has been applied to other contracts where a party bound by a condition has sought to take advantage of his own breach of it to annul the contract: see Doe v Bancks, Roberts v Davey, and other cases in the notes to Dumpor's case ...

It is however contended that this rule of construction is inapplicable when the Legislature has imposed the condition. But in many cases the language of statutes, even where public interests are affected, has been similarly modified. Thus, where the statute provided that if the purchaser at an auction refused to pay the auction duty, his bidding "should be null and void to all intents and purposes," it was decided that the bidding was void only at the option of the seller, though the object of the Act was to protect the revenue. In that case Mr Justice Coltman said: "It is so contrary to justice that a party should avoid his own contract by his own wrong that, unless constrained, we should not adopt a construction favourable to such a view." Malins v Freeman.

There is no doubt that the scope and purpose of an enactment or contract may be so opposed to this rule of construction that it ought not to prevail, but the intention to exclude it should be clearly established.

[32] There are a number of examples of the extent to which the rule has been applied. In "Broome's Legal Maxims" 10th Edition at p 191, the learned authors say:

It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.

[33] The rule has been applied in Australia in modern times. In Holden v Nuttall [1945] VicLawRp 29; (1945) VLR 171 at 178, Herring CJ construed the word "hardship" in the National Security (Landlord & Tenant) Regulations so as not to effect an injustice or enable a person to benefit from his own wrong. At 178, his Honour said:

In the circumstances of this case, moreover, I think it may properly be said that the hardship the defendant will suffer is self-inflicted and it is his own conduct that has caused any hardship that he may suffer. He has chosen to make use of the regulations for his own protection regardless of the injury he has done the plaintiff thereby. And by claiming to rely on the hardship he will suffer if dispossessed, he seeks to continue the protection to be derived by him from the regulations indefinitely, so that the injustice that

Mrs Uhe and he have been able to inflict upon the plaintiff may be perpetuated.

The regulations were not made to enable injustice to be perpetrated in this way. And the word "hardship" should if necessary be limited as a matter of construction so as to avoid attributing to the regulation-maker the intention of bringing about an injustice or allowing a man to benefit from his own wrong.

[34] The same principle has been applied in a number of other cases: see Woodcock & Anor v South Western Electricity Board (1975) 1 WLR 983 at 986-987; Burrows v Molyneux Gold-Dredging Company Ltd (1936) NZLR 211 at 230-233; The Firm (Australia) Pty Ltd v South Sydney Council [1999] NSWLEC 5 at para 7; Braunack v Goers (1979) 23 SASR 1 at 22. See also, Pearce and Geddes, Statutory Interpretation in Australia, 5th Edn., para [2.35].

[35] Applying those principles to this case, it would be quite wrong to so construe the definition of "P.A.Y.E. taxpayer" as to permit the employer to take advantage of his own wrong in circumstances such as the present where the appellant is totally innocent of any wrong doing. It is inconceivable that the legislature intended the definition to bring about that result. There is nothing in the Minister's Second Reading Speech to indicate that it was intended to permit employers to take advantage of their own wrong. The purpose of the amendment was to prevent abuse, not create it. Whilst I accept that the concept of an objective test is a feature of this definition, the language of the definition is not so intractable as to preclude the operation of this rule; nor has the legislature clearly expressed an intention that this rule is not to prevail. If a literal interpretation were to be adhered to, the result would also be unjust, would not promote the purposes of either the amending Act or the Act as a whole, and would undermine and weaken the Act's provisions designed to strengthen worker's entitlements and prevent employers from avoiding the Act's provisions to which I have already referred. I would conclude that the words "employer makes deductions" in the definition of "P.A.Y.E. taxpayer" includes those employers who are required by law to make such deductions, but who do not do so without the knowledge or authority of the worker.

[36] We were referred to the decision of this Court in Herbert v KP Welding Construction Pty Ltd (1996) 125 FLR 299. That case dealt with a quite different situation and in my opinion is not binding on this Court. Nevertheless, the approach which was adopted by the Court in that case is not inconsistent with the approach which should be adopted to the resolution of this matter.

[37] We were also referred to the decision of Thomas J in Michalak v Murlise

Pty Ltd (1995) 125 FLR 305. In that case there was no finding that the worker was ignorant of the employer's failure to comply with the Income Tax Assessment Act provisions and was not a party to that failure. Consequently, the principle that a person may not take advantage of his own wrong did not apply to the circumstances of that case and accordingly, the point we are now considering was not dealt with by her Honour.

[38] I would allow the appeal and set aside the judgment of the Supreme Court and restore the orders of Mr Trigg SM made on 14 January 2002. I would also order that the respondent pay the costs of the appeal in this Court and in the Supreme Court.

[39] I have read the draft decision prepared by Mildren J. I agree with his reasons and with his conclusion. The appeal should be allowed.

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