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AND: ANTE GILJEVIC Respondent

Judges: Crispin P, Gray and Madgwick JJ Date: 30 March 2006 Place: Canberra

REASONS FOR JUDGMENT CRISPIN P and GRAY J: 1. This is an appeal from a decision of Connolly J which upheld an appeal from Magistrate Campbell and set aside a finding that the respondent was not a worker employed by the appellant pursuant to the provisions of Chapter 3 of the Workers Compensation Act 1951 (ACT) (“the Act”).

2. As his Honour observed, the appeal from the learned Magistrate’s decision lay to a single judge of the Supreme Court pursuant to s 197 of the Act, and ss 387(2), 391 and 393 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) which has now been repealed and replaced by identical provisions in Part 4.5 of the Magistrates Court Act 1930 (ACT). Such an appeal is by way of rehearing: see generally Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378.

3. His Honour mentioned the recent decisions of the High Court of Australia in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 and Fox v Percy (2003) 214 CLR 118 concerning the approach that should be taken by appellate courts when appellants seek to impugn findings of fact based on the credibility of witnesses. His Honour noted, however, that counsel for the respondent, who had been the appellant in the proceedings before him, had acknowledged that the appeal from the magistrate should be determined on the footing that there was no challenge to any findings based upon her Honour’s preference for evidence given by Mr Bailey, who was a director of the appellant, rather than that given by the respondent.

4. The respondent’s claim for workers compensation related to injuries he sustained in an industrial accident on 9 August 2002 when he was working for the appellant as a builder’s labourer and was engaged in demolishing a steel shed on a building site in Fyshwick.

5. Her Honour made the following findings: By 9 August 2002 the applicant had been working for several days at the premises of Pirie Printing in Fyshwick. It was a one-man job. Mr Bailey had asked him to brick up a window and then to demolish a steel shed. Mr Bailey gave him a screw gun, a pinch bar and a ladder. The applicant told Mr Bailey that he would bring his tall ladder along to use as well. He agreed that he did not need to be told how to do basic brickwork as he understood what had to be done but said that he had been told by Mr Bailey how to take the roof down and what materials to put aside and save. Some time after he started the work he phoned Mr Bailey and told him that the drill attachment to the screw gun he was using did not fit all the sizes of the screws he needed to remove. He asked him to get the correct size for him. Mr Bailey subsequently arrived and gave him the correct socket bit. Later, as the applicant was attempting to prise apart some sheets of metal on the roof of the shed, he fell onto the concrete floor below. He was taken to The Canberra Hospital and spent seven or eight weeks there. As a result of the accident, the applicant’s pelvis was fractured as was his left knee. He also sustained injuries to his head, back and to his stomach.

6. In a carefully worded judgment, her Honour rejected the contention that the respondent had been employed by the appellant, finding that the relationship between the parties did not satisfy the relevant common law test, and that he could not be taken to have been employed as a worker by reason of the deeming provisions contained in s 11 of the Workers Compensation Act 1951 (ACT).

7. Her Honour began by exploring the background to the working relationship between the parties, explaining that the respondent was a man in his early 60’s who was born in Croatia. He had a hearing problem which was compounded by the fact that his use, and understanding, of English is “on occasions problematic”. He had worked on his father’s farm after leaving school at about 12 years of age and had taken up apprenticeships as a blacksmith and mechanic before undertaking military service. Upon his arrival in Australia in 1967 he had worked as a welder for a period and had then commenced working on building sites as a general labourer. He had undertaken concreting, masonry and carpentry work, but had no formal trade qualifications in any of those areas.

8. He met Mr Bailey in 1995 or 1996 and often performed work for the appellant thereafter, though there was never a written contract between them.

9. With reference to the regularity of work, her Honour found that: It was not every day but most of the time. According to the applicant his work for the respondent, in general terms, involved him performing activities of hard labouring and concreting on construction building sites. Mr Bailey would phone him when he had work for him. It was up to the applicant whether he accepted or rejected the work offered. Mr Bailey told him where they would be working, what time they would start and what time the work finished.

10. Her Honour did not accept the respondent’s evidence that his working hours were wholly determined by Mr Bailey, but made the following findings: According to Mr Bailey, he did not have control or direction over when the applicant would finish each day, but he did indicate that at some sites they were asked to start later than was traditional because, for example, of noise constraints. In that case he would tell the applicant and everyone else involved in the job of those restrictions. If the applicant had finished a job, then he would leave early and if there was only an hour or so work to go he might on occasion stay back to finish it. I accept that the applicant’s working hours were dictated more by custom in the building industry and the task at hand, than, as the applicant had stated “John always made the decision of when the work will start and when the work will end”.

11. It was common ground that the appellant paid the respondent applicant at an hourly rate. In the early years, cheques were drawn in favour of a partnership between the respondent and his then wife, but the partnership was subsequently terminated and thereafter the cheques were always drawn in the name of the respondent. Her Honour explained that: He was paid … for the number of hours he worked. On some days this would be seven or eight hours and on other days as little as two or three or four hours. He worked different hours on different days with no particular pattern or reason (he did not always start or finish at similar times). The applicant earned $25 an hour. This had increased to $27.50 an hour at the time of the accident. The applicant was also paid at an hourly rate by some of the others for whom he worked. On occasions, Mr Bailey would ask the applicant if he was short of money and if so, might give him a cheque for $1,000 or $2,000 to tide him over until he was next paid. Both men kept a record of the work undertaken by the applicant and they would use these records to reconcile the payments made by Mr Bailey with the number of hours worked by the applicant to see if the applicant had been overpaid or whether further money was due to him. These reconciliations would take place at no particular time just when it suited both men. Mr Bailey gave the applicant a cash bonus at Christmas time.

12. It was also common ground that the respondent did not work solely for the appellant, but did similar work for others in the construction industry. Her Honour accepted aspects of Mr Bailey’s evidence on this issue: He [Mr Bailey] said that he would ring the applicant and ask him if he could come to do the work and that on most occasions he said yes. He said that there were occasions when the applicant could not come straight away because he was working for someone else but could not comment as to how often that happened. He could not detail a specific instance where the applicant refused to work for him or stopped working because of being offered other work and said “If Tony was working for me at the time, it was a discussion and by mutual arrangement so that he didn’t miss out on other jobs where he may be earning - he may be able to fit in (sic)”.

13. The extent to which the respondent derived his income from the appellant and other sources varied over time.

14. It was common ground that the respondent would usually use his own tools. The respondent’s taxation returns revealed that he claimed depreciation on certain tools, being a jack-hammer, concrete mixer and grinder, which had originally cost less than $300. However, her Honour accepted his evidence that “if he did not have the appropriate equipment with him or did not own a particular tool he would use Mr Bailey’s”. He was also entitled to purchase additional equipment on the appellant’s account at a Canberra hardware store.

15. In upholding the appeal from her Honour’s decision, Connolly J noted that there were two issues: first, whether the respondent should have been held to have been an employee of the appellant on the relevant common law test; and, second, whether he should have been regarded as an employee by reason of the deeming provisions contained in s 11 of the Act. Was the respondent an employee at common law?

16. His Honour noted that the Magistrate had referred to the common law test of whether the activities of a worker amount to a contract of service or a contract for services set out by the High Court in Hollis v Vabu Pty Ltd (2001) 207 CLR 21, but had concluded that: ... the legal relationship between the two parties is more appropriately characterised as principal and independent contractor rather than employer and employee. That is, to use the language of the legislation, that there was not a contract of service but rather numerous contracts for services entered into between the parties over the years.

17. Whilst in Hollis v Vabu (supra) the issue of whether a worker who was a bicycle courier could be deemed an employee arose in the context of a claim based upon an allegation of vicarious responsibility for his conduct, it was common ground that the principles laid down by the High Court were equally applicable to the question of whether the respondent was an employee for the purposes of the Act subject, of course to the provisions of s 11.

18. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, said at 38 [39] that: In Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia (1931) 46 CLR 41, Dixon J explained the dichotomy between the relationships of employer and employee, and principal and independent contractor, in a passage which has frequently been referred to in this Court (Kondis v State Transport Authority (1984) 154 CLR 672 at 691- 692; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 574; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 329-330, 366). His Honour explained that, in the case of an independent contractor (Colonial Mutual (1931) 46 CLR 41 at 48): “[t]he work, although done at [the principal’s] request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.”

19. Their Honours observed that the old test of whether the contract placed the supposed employee at the command of the employer was of limited relevance in modern conditions, and cited the following passage from Glass, McHugh and Douglas, The nd Liability of Employers in Damages for Personal Injury, 2 ed (1979) at 72-73: The control test was the product of a predominantly agricultural society. It was first devised in an age untroubled by the complexities of a modern industrial society placing its accent on the division of functions and extreme specialisation. At the time when the courts first formulated the distinction between employees and independent contractors by reference to the test of control, an employer could be expected to know as much about the job as his employee. Moreover, the employer would usually work with the employee and the test of control and supervision was then a real one to distinguish between the employee and the independent contractor.

20. Their Honours noted that the control test was, nonetheless, one factor that might provide some assistance in determining whether a given worker was an employee or an independent contractor but said at 41 [47] that : . . . the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it.

21. Connolly J noted that in the initial appeal before him it had been argued that the Magistrate had similarly fallen into error by making too much of the respondent’s business and taxation arrangements, which had originally involved claiming to trade as a partnership, and which had continued to involve making deductions for the use of tools and vehicles and doing work for other builders. Whilst the appellant had said that he did not regard himself as an independent contractor, the Magistrate had found that the way that he had fashioned his financial and business arrangements had indicated the contrary.

22. His Honour also referred to a decision of the Australian Industrial Relations Commission in Abdalla v Viewdaze Pty Ltd (2003) 53 ATR 30 in which the Full Bench had provided a summary of principles said to have been extracted from High Court authorities concerning the question of whether a worker was an employee for the purpose of termination of employment provisions. His Honour observed that, whilst the decision was not binding, the summary was both useful and instructive. The Full Bench said at 228: Following Hollis v Vabu, the state of the law governing the determination of whether an individual is an employee or an independent contractor may be summarised as follows: (1) Whether a worker is an employee or an independent contractor turns on whether the relationship to which the contract between the worker and the putative employer gives rise is a relationship where the contract between the parties is to be characterised as a contract of service or a contract for the provision of services. The ultimate question will always be whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business on his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own. This question is answered by considering the totality of the relationship. (2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant “indicia” and the relative weight to be assigned to various “indicia” and may often be relevant to the construction of ambiguous terms in the contract. (3) The terms and terminology of the contract are always important and must be considered. However, in so doing, it should be borne in mind that parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: that is, the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract. If, after considering all other matters, the relationship is ambiguous and is capable of being one or the other, then the parties can remove that ambiguity by the very agreement itself which they make with one another. (4) Consideration should then be given to the various “indicia” identified in Brodribb and the other authorities bearing in mind that no list of indicia is to be regarded as comprehensive and the weight to be given to particular indicia will vary according to the circumstances. Where a consideration of the “indicia” points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. For ease of reference we have collected the following list of “indicia”: ° Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work or the like Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of independent contract. While control of this sort is a significant factor, it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where their work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weights significantly in favour of the worker being an employee. ... ° Whether the worker performs work for others (or has a genuine and practical entitlement to do so) The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, if the individual also works for others (or the genuine and practical entitlement to do so) then this suggests independent contract. ° Whether the worker has a separate place of work and/or advertises his or her services to the world at large ° Whether the worker provides and maintains significant tools or equipment Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary. ° Whether the work can be delegated or subcontracted If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally. ° Whether the putative employer has the right to suspend or dismiss the person engaged ° Whether the putative employer presents the worker to the world at large as an emanation of the business Typically, this will arise because the worker is required to wear the livery of the putative employer. ° Whether income tax is deducted from remuneration paid to the worker ° Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance. ° Whether the worker is provided with paid holidays or sick leave ° Whether the work involves a profession, trade or distinct calling on the part of the person engaged Such persons tend to be engaged as independent contractors rather than as employees. ° Whether the worker creates goodwill or saleable assets in the course of his or her work ° Whether the worker spends a significant portion of his remuneration on business expenses This list is not exhaustive. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question. (5) If the indicia point both ways and do not yield a clear result the determination should be guided primarily by whether it can be said that, viewed as a practical matter, the individual in question was or was not running his or her own business or enterprise with independence in the conduct of his or her operations as distinct from operating as a representative of another business with little or no independence in the conduct of his or her operations.

23. Having cited the passage quoted, his Honour proceeded to apply the indicia to the facts found by the Magistrate and to make observations as to their apparent significance. On the basis of that appraisal, his Honour concluded that the respondent had been an employee rather than an independent contractor and that the contrary finding by the Magistrate should be set aside.

24. Mr Rares SC, who appeared for the appellant with Mr Sharwood, submitted that his Honour had himself fallen into error by setting aside the Magistrate’s findings when she had enjoyed the advantages of seeing and hearing Mr Bailey and the respondent give evidence and the findings she had made in reliance upon such evidence had not revealed appellable error. He argued that, whilst his Honour had attempted to apply the relevant indicia to the facts found by the Magistrate based on the demeanour of the these witnesses, the approach reflected in the judgment revealed a failure to consider the subtle influence of demeanour on the Magistrate’s overall impression of the relationship between the parties. Mr Rares submitted that in the absence of some evident misapplication of principle or demonstrated mistake of fact, his Honour should have set aside any qualms he may have had about the correctness of the ultimate finding and accepted that any difference of view might well have been attributable to the advantages enjoyed by the Magistrate.

25. It is true, of course, that the subtle influence of demeanour may be important. Relevant, perhaps crucial, findings may be based in whole or in part not only upon impressions as to the credibility of the competing accounts of the salient facts but upon impressions of character, personality and intelligence. In some cases, the impressions may be clear and easily specified. In others, it may be difficult for a judge or magistrate to articulate the precise nature of the impressions, let alone explain the extent to which the decision has been influenced by these factors.

26. Furthermore, the need for restraint by appellate courts has long been acknowledged. In Fox v Percy (supra), Gleeson CJ, Gummow and Kirby JJ explained at [23] that: On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the recordhttp://www.austlii.edu.au/au/cases/cth/HCA/2003/22.html - fn29#fn29. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (footnotes omitted)

27. Nonetheless, their Honours proceeded to point out, at [25] that in Warren v Coombes (1979) 142 CLR 531 at 551 the majority of the High Court had said that: [I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

28. In the same decision their Honours went on to affirm, at [29], that in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law, and to explain that this is “not forbidden by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process”.

29. Accordingly, whilst we are conscious of the natural limitations that attended both the initial appeal from Magistrate Campbell and the current appeal from Connolly J, we do not accept that his Honour’s decision can be impugned by a generalised assertion that his Honour may not have given sufficient weight to the subtle influence of demeanour. It is, we think, necessary to consider the manner in which his Honour approached the relevant issues and to make a judgment as to whether it has been demonstrated that his Honour fell into appellable error in dealing with the appeal from the Magistrate.

30. We accept that the indicia identified in Abdalla v Viewdaze Pty Ltd (supra) offer useful guidance in cases of this nature. It may be noted that the Magistrate directed her attention to the aspects of the relationship concerning whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his own, rather than seeking to apply specific indicia. The fact that she did not do so does not necessarily demonstrate error on her part or invalidate the conclusion that she reached. Nonetheless, in dealing with the contention that Connolly J fell into error, it is appropriate to review the manner in which his Honour approached the relevant issues.

31. We will deal with the indicia in the same order as his Honour dealt with them. Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work and the like

32. His Honour noted that the respondent had not been subject to constant control and direction by Mr Bailey but said that in the modern workplace few employees have an employer “constantly looking over their shoulder”. His Honour referred to a finding that the respondent was a skilled labourer and said that “at the end of the day that is what he was - a building labourer who dug holes and did certain demolition and building work for a construction project manager”. He was not a tradesperson. The Magistrate had found that Mr Bailey did his best to visit each of his work sites every day and, as a general rule, would be at the site where the respondent was working every day. His Honour said that Mr Bailey seemed to have had the right to exercise control over the manner of the labouring work and had exercised that right from time to time. The fact that the respondent had been entitled to decline work offered to him did not materially alter the nature of the relationship.

33. Mr Bailey also conceded that he usually had more than one job going on at the same time and that it was not uncommon for him to ask the respondent to move from one site to another, depending upon the competing demands. Whether the worker performs work for others (or has a genuine and practical entitlement to do so)

34. It was not disputed that the respondent did labouring work for others. His Honour noted this fact but observed that, in a modern labour market in which there is an increasing reliance upon part-time employment, it did not follow that a person who pursues casual employment with different employers should be taken not to be an employee. Whether the worker has a separate place of work and/or advertises his or her services to the world at large

35. There was no evidence that the respondent held himself out as a contractor to the public at large by way of advertising or even, for that matter, a listing in the yellow pages, though he clearly worked not only for the appellant but others in the building industry. Mr Rares submitted that this was irrelevant. He compared the respondent’s position with that of barristers, and submitted that the fact that they do not advertise does not mean that they are not independent contractors who sell their services by the hour. A number of points should be made about this argument. First, his Honour did not suggest that this point was decisive; second, the validity of the implication that the position of barristers is in some way comparable to that of builders’ labourers is not self-evident and; third, unlike barristers, tradespeople and others running businesses involved in the building industry generally do advertise.

36. Mr Rares also argued that, whether the respondent advertised or not, he was still running a business and others were free to hire him. In the year ending 30 June 2001 he derived 83% of his gross income from the appellant but in the following year that fell to 45%. However, there is no reason to suppose that everyone dependent upon casual employment works only for one employer or that the percentage of income derived from any one employer would not vary from year to year. For example, a person who expresses an interest in working for a taxi cooperative on a casual basis as a taxi driver might wind up driving taxis for several different owners during the course of a financial year, but neither the plurality of employers nor the variability of their respective contributions to his overall income will make him an independent contractor or transmogrify any of his successive contracts of service into contracts for services. Whether the worker provides and maintains significant tools or equipment

37. In this case the respondent did provide some of his own tools, but his Honour found that these could hardly be described as significant and suggested that they were comparable to those of the couriers in Hollis v Vabu.

38. Mr Rares submitted that the comparison made by his Honour had been inappropriate. He pointed out that in Hollis v Vabu the High Court had said that the capital outlay in acquiring the bicycles was relatively small and that bicycles were not tools that were inherently capable of use only for courier work but also provided a means of personal transport or even a means of recreation. These comments could not be made of the jackhammers apparently owned by the respondent which he used from time to time on jobs for which he had been engaged by the appellant.

39. In Hollis v Vabu,. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ said at [56]: . . . the situation in respect of tools and equipment also favours, if anything, a finding that the bicycle couriers were employees. Apart from providing bicycles and being responsible for the cost of repairs, couriers were required to bear the cost of replacing or repairing any equipment of Vabu that was lost or damaged, including radios and uniforms. Although a more beneficent employer might have provided bicycles for its employees and undertaken the cost of their repairs, there is nothing contrary to a relationship of employment in the fact that employees were here required to do so. This is all the more so because the capital outlay was relatively small and because bicycles are not tools that are inherently capable of use only for courier work but provide a means of personal transport or even a means of recreation out of work time. The fact that the couriers were responsible for their own bicycles reflects only that they were in a situation of employment more favourable than not to the employer; it does not indicate the existence of a relationship of independent contractor and principal.

40. In this context, the suggestion that the comparison with tools provided by the respondent revealed some misunderstanding of the case seems to reflect an unduly pedantic approach to his Honour’s remarks. It is obviously true that a jackhammer is not similarly adaptable for use as personal transport or recreation. However, the comparison is otherwise apposite. Furthermore, as his Honour pointed out, the respondent did not provide consumables and, when he needed materials to complete his work, he was able to purchase them on the respondent’s trade account at a particular hardware store. It was not suggested that the couriers in Hollis v Vabu enjoyed a similar right to pledge their employer’s credit. His Honour was merely making the point that, viewed overall, he did not regard the respondent’s possession of the tools mentioned in evidence as having any more significance than the comparable possession of bicycles by the couriers in Hollis v Vabu. Whether the work could be delegated or subcontracted

41. As previously mentioned, the respondent was engaged by the appellant on an hourly rate to perform labouring duties. He did not quote on jobs and did not stand to make a profit or loss. There is no evidence that he ever hired anyone else to assist him or that he would have been entitled to engage subcontractors. Whether the putative employer has the right to suspend or dismiss the person engaged

42. It seems clear that Mr Bailey could have ceased to engage the respondent at any time but, as his Honour mentioned, could equally have ceased to re-engage any subcontractor. Whether the putative employer presents the worker to the world at large as an emanation of the business

43. As his Honour pointed out, this factor may be of obvious significance in industries in which it is common practice for employees to be uniformed. For example, the decision in Hollis v Vabu, was clearly influenced by the fact that the couriers had been required to wear a uniform with the insignia of the company that allegedly employed them. It was not suggested that uniforms are commonly used in the building industry. His Honour did mention that it is common practice for contractors to be identified on building site signs and there had been no evidence to suggest that the respondent had been listed as “labourer” alongside electrical contractors or plumbing contractors on signs erected at any of the sites at which he worked. That may be true, but no real weight could be placed upon this omission, given the short term and ad hoc basis of his engagements and the nature of the work that he was engaged to do. Whether income tax is deducted from remuneration paid to the worker

44. Tax was not deducted from the payments made to the respondent by the appellant, though the latter did comply with the taxation requirements imposed by the Prescribed Payments Scheme.

45. As previously mentioned, the respondent had previously entered into a partnership with his wife, apparently for taxation purposes, but this had been dissolved some years earlier. His Honour concluded that this fact was not a key issue in his decision and said that this view was consistent with the view of Kelly J in Jennings Industries Ltd v Negri (1982) 44 ACTR 9, as well as the approach adopted by the High Court in Husher v Husher (1999) 197 CLR 138 in considering the significance of taxation arrangements in calculating economic loss in tort claims. His Honour concluded that in reality the respondent had been selling his labour by the hour to the respondent.

46. Mr Rares submitted that this approach had been erroneous. He argued that bona fide arrangements of one’s affairs for taxation purposes, involving acceptance of an obligation to pay tax from gross receipts without prior PAYE or PAYG deductions, provided compelling evidence of a contract for services. In support of this contention, he cited the decision of the NSW Court of Appeal in Boral Roof Tiles Ltd v O’Brien (1994) 15 NSWCCR 1. However, that was a case in which payments had been made to a private company which apparently administered a family trust. The case does not, in our view, support the general proposition for which Mr Rares contended, though their Honours did make the point that the fact that a worker has entered into a transaction with the object of reducing his or her taxation liability may indicate the arrangement between the parties was real rather than a sham.

47. Mr Rares also submitted that his Honour had misunderstood the decision of the High Court in Husher v Husher (supra) which was concerned with the loss of earning capacity of a male plaintiff who had entered into a partnership arrangement with his wife. However, read in context, the point that his Honour was making in this passage of the judgment was that it was necessary to look beyond the mere fact that the respondent had once been in a partnership with his former wife to the real nature of the relationship between the parties. It was that general approach which was consistent with the approaches taken in Jennings Industries Ltd v Negri (supra) and Husher v Husher. The fact that the latter case was concerned with the real extent of the male partner’s loss rather than the true nature of his working relationship was immaterial to the point being made, namely that one looks to the true nature of the relationship or loss rather than acting on the assumption that the existence of a partnership is decisive of such questions.

48. Furthermore, his Honour’s view that evidence of a partnership dissolved some years earlier was not a decisive factor in determining the nature of the respondent’s relationship with the appellant on 9 August 2002 was obviously correct. Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks

49. The respondent worked at an agreed hourly rate, which was increased as the years went by but otherwise remained constant, irrespective of the difficulty of the tasks assigned to him or the degree of skill required to complete them. There was no element or risk in quoting fixed prices for jobs. It is true that barristers, surgeons and other professional people may charge on a time basis, but the nature of their engagements are scarcely comparable with those of the respondent. He also received Christmas bonuses. Whether the worker is provided with paid holidays or sick leave

50. These were not provided but, as his Honour mentioned, such benefits may not be provided to casual employees, who often receive a higher hourly rate of pay as compensation. Furthermore, when the respondent was injured, the appellant offered him a return to work on light duties, albeit in an attempt to lift his spirits and assure him that his working life was not over, rather than out of any sense of legal obligation. Whether the work involves a profession, trade or distinct calling on the part of the person engaged

51. Although the Magistrate found that the respondent was a skilled labourer, he was, nonetheless, a labourer, and his duties essentially involved heavy work. Whether the worker creates goodwill or saleable assets in the course of his or her work

52. His Honour found that to the extent to which the tasks he was assigned were performed well, the goodwill would flow to the appellant, which was a project management company engaged by members of the public to build or renovate buildings.

53. Mr Rares argued that this statement involved confusion between the goodwill that the respondent would have enjoyed as a result of an enhanced reputation for the quality of his work amongst those who might engage him in the future, and any goodwill that may have been enjoyed by the appellant. Considered in this context, however, we think that his Honour’s use of the term, “goodwill”, was clearly intended to refer to matters of mere personal reputation, but to the benefit or advantage that may become associated with a business and gives rise not only to the prospect of increased trade but also to enhancement of the overall capital value of the business. The point made by his Honour was that it was only the appellant that was likely to enjoy the benefit of any enhancement of goodwill in this sense. Whether the worker spends a significant portion of his or her remuneration on business expenses

54. Consumables such as blades, drill bits and the like were provided by the appellant and the respondent was entitled to use the appellant’s hardware account to purchase items on its behalf. On the other hand, as his taxation returns demonstrate, the respondent did make some claims for depreciation on some tools and for motor vehicle expenses involved in getting to and from various worksites. Conclusion

55. His Honour found, on all these indicia, that the respondent’s relationship with the appellant was that of an employee and employer, observing that this finding was consistent not only with the modern approach of the High Court, but with the older and often cited tests referred to in Humberstone v Northern Timber Mills (1949) 79 CLR 389. In that case, Dixon J said, at 404, that: (t)he question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.

56. Connolly J said that the relationship between the parties had involved the hire of a building worker to perform non-trades manual labour on building sites at an hourly rate, and concluded that this met the criteria of a contract of service. His Honour indicated that he would have upheld the appeal on this point.

57. None of the factors identified by his Honour individually provided a compelling argument for either party and, as Mr Rares submitted, the true nature of the contract had to be determined by reference to all of the circumstances of the relationship.

58. Mr Rares argued that there is nothing novel in builders’ labourers being independent contractors in relation to a particular builder. He cited the cases of Building Workers’ Industrial Union of Australia and Others v Odco Pty Ltd (1991) 29 FCR 104 and Accident Compensation Commission v Odco Pty Ltd (1990) 64 ALJR 606 as examples, though neither case involved situations comparable to that with which we are presently concerned.

59. Mr Rares also argued that the earlier partnership with his wife was a powerful indication of the respondent’s desire to conduct his own business. The income he then received had been income of the partnership and, whilst the partnership was subsequently dissolved, all that changed as a consequence was that he became a sole trader. The dissolution did not convert him into an employee of those who had formerly engaged the partnership. Hence, it was submitted, the learned Magistrate had correctly held that the respondent had “held himself out to be a self employed business person offering his manual labouring skills for hire”. Whilst this was cogently argued, the existence of even a current partnership has not always prevented a finding that one member of the partnership had worked for a third party as an employee. See, for example, Jennings Industries Ltd v Negri. In the present case, the respondent was a builder’s labourer who could not read English and who was not even paid at the end of each job or upon presentation of an invoice but when Mr Bailey sat down with him to go through his diary to work out what he was owed.

60. There are strong factors favouring both parties and it is entirely understandable that differing views have been taken as to this issue. However, after weighing all of the competing considerations urged upon us by counsel, we have finally concluded that it was open to Magistrate Campbell to make the findings that she did. To return to the test posited in Abdalla v Viewdaze Pty Ltd, it can be said that, viewed as a practical matter, the respondent was running his own business or enterprise and enjoyed independence in the conduct of his operations. In our opinion, no appellable error was demonstrated in the approach taken by her Honour in relation to this issue. Was the respondent a deemed employee?

61. On the other hand, we agree with the conclusion of Connolly J that, even if the respondent was engaged under a contract for services, he should have been deemed to have been employed by the appellant by reason of the provisions in s 11 of the Act. The relevant portions of that section are in the following terms: (1) This section applies to the engagement of an individual by a person (the principal) if - (a) The individual has been engaged by the principal - (i) under a contract for services to work for the principal (whether or not on a casual basis); or (ii) on a casual basis under a contract of service to perform work for the principal . . . . . . (2) For this Act, the individual is taken to be a worker employed by the principal if - (a) the engagement, under the contract or similar contracts, has been on a regular and systematic basis; or (b) the individual has (or apart from any injury, would have had) a reasonable expectation of the engagement continuing on a regular and systematic basis (under the contract or similar contracts), even if the engagement has not been on a regular or systematic basis. (3) To work out whether an engagement has been on a regular and systematic basis, or whether there is (or would have been) a reasonable expectation of an engagement continuing on that basis, relevant matters include (but are not limited to) the following: (a) the terms of all relevant contracts; (b) the working relationship between the principal and the individual and all associated circumstances; (c) the period of the engagement, or the periods of the engagement if it has not been continuous; (d) the frequency of work under the contract or similar contracts; (e) the number of hours worked under the contract or similar contracts; (f) the type of work; (g) normal arrangements for someone engaged to perform that type of work.

62. The learned Magistrate concluded that the respondent had not been engaged by the appellant on a “regular or systematic basis”, noting that there had been no evidence of “any assumption by the applicant that he was required to present himself on a daily, weekly or monthly basis to the respondent unless told otherwise nor that he actually did so”.

63. His Honour took the view that this had not been an appropriate test, observing that to import a requirement for daily reporting and regular hours would significantly limit the scope of s 11. His Honour concluded that the criteria in s 11(3)(a)-(g) had not been appropriately applied and proceeded to reconsider the application of the section to the facts found by the Magistrate, observing that: 39. It seems to me that in the present case the appellant has for many years been regularly engaged by the respondent, albeit on a casual basis. The essence of casual employment is just that - that it may involve irregular hours. To import a requirement of regularity of hours to a statutory regime expressly covering casual employment, and the section expressly covers persons operating under a contract for services whether or not on a casual basis (s 11(1)(a)(i)) seems to me to be in error. 40. The working relationship, as found by the Magistrate, was that Mr Bailey would phone the appellant and engage him to perform specific tasks at specific building sites. It was arranged that this would be at a set hourly rate, and apart from the evidence that this increased over the years from $25 per hour to $27.50, there was no evidence that there was ever specific negotiations as to price for different jobs. There was, it seems to me, a regular and systematic series of engagements of his hourly labour at a set rate. This extended over many years and, at least in the early years, the appellant earned the overwhelming proportion of his income from the respondent. The Magistrate seemed to attach significance to the fact that the hours had reduced over the last twelve months, saying (AB 28) that - . . . I am satisfied that this proportion had reduced considerably and indicated a permanent, rather than a temporary, change in the working relationship. I am satisfied that the engagement was not on a regular basis. 41. This, it seems to me, indicates an error. It could not be said that a casual employee who worked 20 hours a week in one year, but only four hours a week in the next year, was no longer a casual employee just because their hours had reduced. There was before the Magistrate the appellant’s work diary for the year before the accident, and this indicated that, although the hours had reduced, he continued, it seems to me, to work regularly for the respondent. An extract of the appellant’s days worked with the respondent from August 1999 to August 2002, the month of the accident, was prepared by the solicitors for the respondent, and tendered in the proceedings below. It showed the appellant working for between 16 and 26 days a month every month in 1999, and between 14 and 25 days every month in 2000 except September when only eight days were worked. In 2001 there was a greater variance, with June taken off for travel, and only a few days in July and August, but otherwise between 11 and 23 days a month. In 2002 he worked 15 days in January, 13 in February, five in March, 16 in April, six in May, he again had June off to travel, and he worked 15 days in July, and three days in August up to the accident on 9 August. It seems to me that this is indicative, taking account of the factors listed in s 11(3)(c), (d) and (e), to indicate that this was regular as well as systematic.

64. It was common ground that the concept of employment on a “regular and systematic” basis had been drawn from provisions found in regulations under the Workplace Relations Act 1996 (Cth), particularly reg 30B, and this concept has been considered by industrial tribunals in a number of cases. His Honour was referred to Smajlagic v Karhunan [1999] NSWIRComm 117, and Ransom v Arthur Anderson 413/99 M Print R4178, (23 April 1999) but found the decisions of limited assistance because they related to the question of whether employment was “casual”. The Commonwealth legislation does not contain any provision comparable to s 11(3) of the ACT Act.

65. It should be noted that it is the “engagement” that must be regular and systematic; not the hours worked pursuant to such engagement. Furthermore, the section applies to successive contracts and non-continuous periods of engagement. It is true that subs (3) provides that, in working out whether an engagement has been on a regular and systematic basis, a court must consider, inter alia, the frequency of work, the number of hours worked under the contract or similar contracts and the type of work. However, these statutory criteria relate to the decisive issue of whether the relevant engagement has been on a regular and systematic basis. The section contains nothing to suggest that the work performed pursuant to the engagements must be regular and systematic as well as frequent.

66. Subsection (1) also makes it clear that the work undertaken pursuant to such engagement may be casual. As Moore J observed in Reed v Blue Line Cruises Limited (1996) 73 IR 420 at 425: A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.

67. Connolly J was right to conclude that the absence of any contractual requirements for the respondent to work at set times or of any assumption that he be present on a daily weekly or monthly basis unless told otherwise did not preclude a finding that his engagements had been regular and systematic.

68. The term “regular” should be construed liberally. It may be accepted, as the Magistrate did, that it is intended to imply some form of repetitive pattern rather than being used as a synonym for “frequent” or “often”. However, equally, it is not used in the section as a synonym for words such as “uniform” or “constant”. Considered in the light of the criteria in s11 (3)(a)-(g), we are satisfied that the pattern of engagement over the years from 1995 to 2002 satisfied this description.

69. Mr Rares argued that the course of engagement over these years had not been shown to have been systematic because it had not been predictable that the respondent would be engaged to work at particular times, on particular jobs or at particular sites. Again, that is not the test. The concept of engagement on a systematic basis does not require the worker to be able to foresee or predict when his or her services may be required. It is sufficient that the pattern of engagement occurs as a consequence of an ongoing reliance upon the worker’s services as an incident of the business by which he or she is engaged. In the present case, the systematic nature of the engagement is evident from the constant pattern that was maintained over the years, the fact that payments were not made at the completion of each job but left until the respondent needed money or it was otherwise convenient, and the appellant’s ongoing reliance upon him as evidenced by such matters as his authorisation to buy goods on the appellant’s behalf and the provision of Christmas bonuses.

70. We would dismiss the appeal. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours, President Crispin and Justice Gray.

Associate: Date: 30 March 2006 IN THE SUPREME COURT OF THE ) No. ACTCA 18-2005 ) No. SCA 49 of 2004 AUSTRALIAN CAPITAL TERRITORY ) ) COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: YARAKA HOLDINGS PTY LIMITED Appellant AND: ANTE GILJEVIC Respondent

Judges: Crispin P, Gray and Madgwick JJ Date: 30 March 2006 Place: Canberra

REASONS FOR JUDGMENT MADGWICK J:

71. I have had the benefit of reading the judgment of Crispin P and Gray J in draft form. Except insofar as my conclusions and reasons differ from those of Crispin P and Gray J, I agree with what their Honours have said. Was the respondent a common law employee?

72. I agree with the summaries of the relevant factors given by Crispin P and Gray J and by Connolly J below. As the majority observes, there are factors which favour both parties, different minds might take different views on the question, and it was open to Magistrate Campbell to take the view that she did. The question is, however, which of the available views is the preferable one? I think that, on a balance, the indicators clearly enough favour the view taken by Connolly J.

73. As a preface to outlining the factors that seem to me to have decisive weight, I make two general observations. The first is that, while the overall pattern of relationships between the parties is important, the crucial enquiry is as to the nature of the particular contract they entered into, and in fulfilment of which the respondent was working, at the time of his injury. The second is that, just as parties may, by the adoption of express terms, reflect change over time in the nature of their legal relationships, circumstantial developments over time may compel the view that, despite the lack of express, fresh adoption of terms that correspond with current reality, the real nature of the parties’ legal relationship has changed.

74. These two considerations are, in my opinion, of importance in this case. When the respondent originally set up his partnership with his wife and set forth with his truck and his tools to earn their living, it seems likely that he was going into business as a handyman and skilled builders’ labourer, and that his initial engagements by the appellant were by way of contracts for the provision of the partnership’s services.

75. However, the subject engagement and contract occurred years later. By then, the respondent was not in partnership with anyone and was, to a varying but substantial degree, quite dependent on the engagements offered by the appellant. The appellant was also dependent on the respondent’s continuing availability – so much is evidenced by payments of cash Christmas bonuses. The payment of such bonuses to an independent contractor, even to a very regular contractor, is very unusual and implies, in part, an expectation of, and a need for, a continuing working relationship. Mr Bailey (the guiding hand of the appellant) and the respondent had formed a close personal relationship.

76. The appellant clearly had the power, which it exercised through Mr Bailey, to tell the respondent how to do his work (for example, the respondent was told how to take the roof off in the course of performing the work during which he was injured). Nothing in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 diminishes the importance and value of the ‘control test’ where it can be seen that the putative employer does in fact have the power to control how the work is done. That factor is perhaps the most important in the present case.

77. Also of importance is the clear inference that the respondent was not free to delegate the performance of the work he had been asked to do. The close personal relationship between the two men, and Mr Bailey’s careful assessment of whether the respondent personally was suitable for particular jobs, support the conclusion that the respondent was expected personally to perform all of the allocated work. Such a limitation on an independent contractor is very unusual unless the work contracted for is highly skilled; here it was not.

78. Furthermore, the appellant had authorised the respondent to pledge its credit to buy tools and consumable parts for them. Such an arrangement, as distinct from permitting the purchase on credit of pre-identified building materials, is very unusual in relation to an independent contractor.

79. By the time of the engagement during which the respondent was injured, the clear overall impression I have is that Mr Bailey had become the ‘boss’ and was perceived as such by the respondent in the context of a close, trusting relationship in which the respondent was the far more dependent party. The respondent was, by that time, in relation to the appellant (and whatever may have been his relations with other people or firms), not offering the services of any business he was running but simply, as a matter of the practical reality of things, serving the appellant as an employee in the latter’s business. There was no suggestion that the respondent had any comparable relationship with any other person or entity to that which he had with the appellant, via Mr Bailey.

80. In my view, the inference that that was the position is clear enough not to leave real doubt. Were that not so, the much earlier express recognition of the respondent as an independent contractor could still reasonably and properly compel a different conclusion.

81. Otherwise I agree with Connolly J’s analysis of the issue.

82. In my opinion the respondent was, at the relevant time, the employee of the appellant at common law. Was the respondent a section 11 deemed employee?

83. Immediately after the text of s 11, the following text appears as a heading in the Workers Compensation Act 1951 (ACT) (‘the Act’): ‘Examples of individuals who are workers.’

84. The examples then given include: 2 IT consultant—engagement under indefinite retainer An information technology consultant engaged on a retainer under which it is agreed that the consultant will be regularly and systematically available, on call by the principal, to offer advice or attend at short notice, even if the consultant was only recently engaged. … 4 Taxidriver (non-owner)—regular engagement A taxidriver engaged by the owner of the taxi under a contract (or contracts) for services for a certain number of shifts each week on a regular basis even if any (or all) of the following apply: • the driver works (or is free to work) different shifts from week to week; • the driver also works (or is free to work) for other taxi owners; • the driver was only recently engaged by the taxi owner. … 6 Regular casual worker A gardener engaged by a householder (under contracts of service or for services) on a regular and systematic basis over a number of years to work in the grounds of the house. The gardener's engagement may be found to be ‘regular and systematic’ even if any (or all) of the following apply: • there is no express or implied guarantee of continuing work; • the gardener also works (or is free to work) for other households; • there have been occasional periods during which the gardener has not worked for the householder.

85. The text also includes ‘Examples of individuals who are not workers’, and the examples given include: 8 IT consultant—occasional engagement An information technology consultant who is occasionally engaged by a small business for a week or more at a time under a contract for services, but not on a regular basis. 9 Owner-driver of a truck—irregular engagement An owner-driver of a truck engaged under contracts for services with a furniture retailer whenever available, who has made deliveries every day of the week at times (for example, just before Christmas), but at other times may go for months without working for the retailer. 10 Taxidriver (non-owner)—irregular engagement A taxi driver engaged by the owner of the taxi occasionally, but not regularly or systematically, under contracts for services to fill in for absent drivers. 11 Building contractor—irregular engagement A bricklayer engaged under contracts for services by a particular builder several times a year, but who is not regularly engaged by the builder. 12 Irregular casual worker A tree surgeon engaged by a householder on an irregular basis (under contracts of service or for services) to prune the trees around a house. The engagement may be found not to be ‘regular and systematic’ even if the tree surgeon has been occasionally engaged by the householder for many years. (However, if the tree surgeon is engaged through an employment agent, the tree surgeon is a worker employed by the agent (see s 10 (2).) (Original emphasis.)

86. Section 3 of the Act provides: ‘A note included in this Act is explanatory and is not part of this Act’. It was submitted that, by virtue of s 3, the examples are not part of the Act. If that were correct, then notwithstanding s 3, the notes to s 11 would nevertheless constitute the express and specific context in which the Australian Capital Territory Parliament had enacted s 11. Given the threshold primacy that is to be accorded to context under the modern approach to statutory interpretation, the examples (and the others, not reproduced here) would, as a practical matter, inescapably condition the meaning to be accorded to the prescriptive text of s 11.

87. However, s 126(4) of the Legislation Act 2001 (ACT) provides that an example in an Act is part of that Act. Section 132 provides that such an example is not exhaustive and may extend, but does not limit, the meaning of the Act or particular provision to which it relates. On that basis, a fortiori and as a matter of law, the meaning to be ascribed to s 11 is conditioned by the examples. They should not be treated merely as ‘notes’ within the meaning of s 3 of the Act.

88. Decisions concerning similar phraseology in the legislation of other jurisdictions, where such other legislation does not include similar conditioning examples, are accordingly apt to be less useful than they otherwise might be.

89. It is clear from the examples that a ‘regular … basis’ may be constituted by frequent though unpredictable engagements and that a ‘systematic basis’ need not involve either predictability of engagements or any assurance of work at all.

90. The respondent’s work for the appellant was certainly frequent enough to be termed ‘regular’ within an acceptable understanding of that term, which may, even in ordinary speech, be used to denote ‘frequent’.

91. Engagement under contracts on a ‘systematic basis’ implies something more than regularity in the sense just mentioned, that is, frequency. The basis of engagement must exhibit something that can fairly be called a system, method or plan (cf the rd definition of ‘systematic’ in the Macquarie Dictionary, revised 3 edn, 2001).

92. In my view there was such a basis apparent here. The system, method or plan involved: (a) a shared understanding that a substantial part of the respondent’s time was and would be devoted to work for the appellant; (b) the respondent preferentially making himself available to the appellant whenever possible; (c) expected and acknowledged loyalty and commitment by the respondent to the appellant’s interests and ventures (the bonus payments are significant here); (d) that the respondent would personally perform the work desired by the appellant rather than delegate it – such an inference, as indicated above, appears overwhelming; (e) a shared understanding that the appellant would, in return, furnish the respondent with a substantial amount of work; (f) an unusually high degree of mutual personal regard, trust and confidence between the parties (frequently deferred payment for services; ability to pledge the appellant’s credit); and (g) stability of those features over a long period.

93. The matter may be looked at also from the view point of the underlying policy of the Act, as Mr Rares SC submitted. He said: …you really do need to give a strict and literal meaning to ‘regular and systematic basis’ because it is intended … to pick up very limited circumstances where there is a de facto incorporation into the organisation of the employer (emphasis added). Some such notion must indeed be the justification for burdening an employer of an independent contractor with the same obligations that the Act casts upon employers towards their employees.

94. If one asks, then, was the respondent, by the time of his injury, de facto incorporated into the appellant’s organisation?, it seems to me that, by a comfortable margin, the entirety of the material favours a positive answer. It is not to the point that the respondent could and did also work elsewhere including, perhaps, as an independent contractor. Even a full-time employee may do so without that having any bearing on the nature of the full-time employment relationship.

95. Otherwise, I agree with what Crispin P and Gray J, and Connolly J below, have written on this aspect of the case. Conclusion

96. It follows that the orders should be as proposed by Crispin P and Gray J. I certify that the preceding paragraphs numbered seventy-one (71) to ninety-six (96) are a true copy of the Reasons for Judgment herein of his Honour Justice Madgwick.

Associate: Date: 30 March 2006

Counsel for the Appellant: Mr S D Rares SC and Mr W L Sharwood Solicitor for the Appellant: Hunt & Hunt Counsel for the Respondent: Mr R L Crowe SC and Mr F M G Parker Solicitor for the Respondent: Maliganis Edwards Johnson Date of hearing: 3 November 2005 Date of judgment: 30 March 2006