ZG Operations Australia Pty Ltd v Jamsek

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 16 July 2020.

3. The issues raised by the notice of cross-appeal be remitted to the Full Court of the Federal Court of Australia for determination, and the Full Court to otherwise make orders in accordance with the reasons of this Court.

S J Wood QC and D Ternovski for the appellants (instructed by Agnew Legal)

N C Hutley SC and R S Francois with A D Crossland for the respondents (instructed by Watson Law)

New South Wales Business Chamber Limited appearing as amicus curiae, limited to its written submissions

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Industrial law (Cth) - Nature of employment relationship - Employee or independent contractor - Where respondents previously employed by company as truck drivers - Where respondents agreed to "become contractors" and purchase own trucks - Where each respondent set up partnership with spouse - Where partnerships executed contract with company for provision of delivery services - Where contract provided partnerships to purchase trucks - Where contract provided partnerships be paid by company for delivery services - Whether respondents employees of company.

Words and phrases - "contractual rights and obligations", "control", "disparity in bargaining power", "employee", "goodwill", "independent contractor", "partnership", "provision of services", "sham", "substance and reality", "totality of the relationship", "worker", "written contract".

1. KIEFEL CJ, KEANE AND EDELMAN JJ. Between 1977 and 2017, Mr Jamsek and Mr Whitby[1] ("the respondents") were engaged as truck drivers by the second appellant's predecessors in business and subsequently by the second appellant itself. That business has undergone several changes of ownership during the period of the respondents' engagements. From the respondents' commencement in 1977 until 1986, the business was owned by Associated Lighting Industries Pty Ltd. The business was transferred in 1986 to Thorn EMI Pty Ltd and again in 1993 to the first appellant, which was then named Thorn Lighting Pty Ltd. Finally, in 2015, there was a corporate restructure by which Thorn Lighting Pty Ltd was renamed ZG Operations Australia Pty Ltd ("ZG Operations") and responsibility for the sales division of the business, which included the arrangements with the respondents' partnerships, was transferred to the second appellant, ZG Lighting Pty Ltd ("ZG Lighting"). ZG Lighting engaged the partnerships until the date of their termination on 20 January 2017[2]. For convenience, the various entities which engaged the respondents and their partnerships will be referred to in these reasons compendiously as "the company".
2. The respondents were initially engaged as employees of the company and drove trucks provided by the company. However, in late 1985 or early 1986, the company insisted that it would no longer employ the respondents, and would continue to use their services only if they purchased their trucks and entered into contracts to carry goods for the company. The respondents agreed to the new arrangement and each of Mr Jamsek and Mr Whitby set up a partnership with his wife. Those partnerships purchased trucks from the company and executed a written agreement with the company for the provision of delivery services. Thereafter, the respondents made deliveries as requested by the company. Each partnership invoiced the company for the delivery services provided, and was paid by it for those services. Part of the revenue earned was used to meet the partnerships' costs of operating the trucks. The net revenue earned was declared as partnership income and split between husband and wife for the purposes of income tax.
3. The agreement between the partnerships and the company was terminated in 2017. The respondents then commenced proceedings in the Federal Court of Australia seeking declarations in respect of statutory entitlements alleged to be owed to them as employees of the company pursuant to the Fair Work Act 2009 (Cth) ("the FW Act"), the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the SGA Act") and the Long Service Leave Act 1955 (NSW) ("the LSL Act"). In the proceedings, a question arose as to whether the respondents were "employees" for the purposes of the FW Act and the SGA Act and/or "workers" for the purposes of the LSL Act.

1. Mr Jamsek and Mr Whitby left high school at 14 and 15 years of age respectively. Neither has any formal qualifications, and both have only ever worked in jobs requiring manual labour. Both Mr Jamsek and Mr Whitby began working for the company in 1977 and became delivery drivers in 1980. There is no dispute that, at least until late 1985 or early 1986, they were employees of the company[7]. During this time, they drove trucks that were provided by the company[8].

1. In late 1985, aware that the company was planning to move locations, Mr Jamsek and another truck driver approached the company to request a pay rise to compensate them for the additional travel time. The request was rejected. A few weeks later, the company informed all five of its drivers, including Mr Jamsek and Mr Whitby, that it would not offer a pay rise but instead would offer the opportunity for the drivers to "become contractors", which would involve the drivers purchasing their own trucks. The drivers were told: "If you don't agree to become contractors, we can't guarantee you a job going forward"[9].
2. Each of the company's five drivers accepted the offer[10]. Each of Mr Jamsek and Mr Whitby, on the advice of his accountant, set up a partnership with his wife (referred to in these reasons as "the Jamsek partnership" and "the Whitby partnership" respectively)[11]. To give effect to the new arrangements, Mr Jamsek and Mr Whitby executed a written contract with the company ("the 1986 contract"). A copy of the 1986 contract could not be located when the proceedings commenced, and it was not in evidence at trial. Nevertheless, the primary judge inferred that, consistently with later contracts, each respondent entered into the 1986 contract on behalf of his partnership[12].
3. Pursuant to the 1986 contract, the drivers were paid a minimum "carton rate" of $120 per day (or $600 per week). Before the 1986 contract, Mr Whitby was earning approximately $410 per week[13]. Mr Whitby was also paid out his accrued annual leave balance at the time of entering into the 1986 contract[14].

1. Consistently with the proposal that led to the 1986 contract, Mr Jamsek and Mr Whitby each purchased a four‑tonne delivery truck from the company for sums of $15,000 and $21,000 respectively. Each borrowed money to finance the purchase[15]. The primary judge inferred that these trucks, like the trucks that were purchased subsequently, had been purchased by each respondent on behalf of his partnership[16]. The partnerships paid all expenses associated with the trucks, including registration, maintenance, and interest on the funds borrowed to finance their purchase[17].
2. New trucks were acquired by the Whitby partnership in 1989 (for $70,000)[18], by the Jamsek partnership in 1990 (for between $70,000 and $80,000)[19], and by the Whitby partnership in 1993 (on lease)[20]. Other than the truck leased by the Whitby partnership, in each instance the relevant partnership obtained finance to fund the purchase of the new truck. In the case of the Jamsek partnership, the finance for the acquisition in 1990 was paid back over a period of 10 years[21]. The respondents did not negotiate with the company as to the type or model of truck purchased[22].
3. In 2010, Mr Whitby purchased a utility vehicle. This vehicle was initially purchased for private use, but Mr Whitby later notified the company that he had purchased the ute and offered to use it to make smaller deliveries for the company in metropolitan areas where it was difficult to manoeuvre a large truck. He began using the ute for small deliveries that the company had previously engaged external couriers to perform[23]. From 2010, Mr Whitby made deliveries using his ute, rather than his truck, most of the time. It was largely left to Mr Whitby to decide which vehicle to use for deliveries[24]. After owning the first ute for approximately four years, Mr Whitby purchased a second ute, which was also used to make deliveries[25].

1. In 1993, Mr Whitby (for himself and on behalf of Mr Jamsek) and several other drivers approached the company and negotiated a new arrangement under which the partnerships would invoice the company on an hourly rate on the basis of a nine‑hour working day, although it was understood, and the contract provided, that actual hours worked might vary. The partnerships executed a written "Contract Carriers Arrangement" with the company in July 1993 ("the 1993 contract")[26].
2. The 1993 contract included the following terms:

a) Separate legal entities both from each other and THORN LIGHTING.

b) Able to work for other parties, providing that such work is not detrimental to either THORN LIGHTING or THORN LIGHTING customers.

c) To present an invoice for work carried out in the preceding week.

a) Undertake carriage of goods as reasonably directed

b) Comply with all Acts, Ordinances, Regulations and By‑laws relating to the registration, third party insurance and general operation of the vehicle within New South Wales.

c) Pay all legal costs, such as tax and duty, payable in respect of the vehicle and keep the vehicle in a mechanically sound, road worthy and clean condition.

d) Be responsible for the vehicle equipment and gear, the safe loading of the vehicle and the securing and weather protection of the load.

e) Exercise all reasonable care and diligence in the carriage and safe keeping of the goods in their charge. Account for all goods by use of run sheets and return of signed delivery dockets or similar documents.

f) Hold at all times and on request produce for inspection, a current driver's licence issued in respect of a vehicle of the class of the vehicle in use and immediately notify THORN LIGHTING if the licence is suspended or cancelled.

g) Not engage or use the services of a driver for the vehicle without prior and continuing approval by THORN LIGHTING. Such driver is to be correctly licensed, suitably dressed, and in all other respects entirely to the satisfaction of THORN LIGHTING.

h) Obtain and maintain a public liability insurance policy for an amount of $2,000,000 or greater in respect of any liability incurred by the Contractor in performance of work for THORN LIGHTING.

i) Obtain and maintain a comprehensive motor insurance policy over the vehicle including cover for amount of $5,000,000 or greater for third party property damage in respect of one accident.

Ensure that such policies include an indemnity of THORN LIGHTING for any action of the Contractor to which the policy applies.

Produce on request a current receipted copy of such policies.

j) Immediately report any accident to the person in charge of the NSW Branch Warehouse and to attend to any legal requirements at the scene or subsequent to the accident.

k) Not offer his vehicle for sale with any guarantee of either continuity of work for THORN LIGHTING, or implied acceptance by THORN LIGHTING of the purchaser."

1. The 1993 contract also provided for four weeks annual leave without pay and noted that allowances for annual leave, public holidays and sick days had already been made in the hourly rate[27].
2. Further contracts were executed between the partnerships and the company in 1998 and 2001. Each new contract was prompted by a request on behalf of the drivers for an increase in the hourly rate of pay, which was motivated on each occasion by concerns about increased costs, including for fuel, registration and insurance. Besides the changes to the hourly rate, for present purposes there were no other material changes to the contracts[28]. A further rate increase was approved in 2008, prompted by similar concerns from the drivers about rising costs[29].

1. Initially, the company gave the drivers delivery dockets, which were to be signed by customers upon each delivery. From around 2001, the drivers were also required to fill out "manifest run sheets", which outlined the deliveries to be completed that day and allowed company managers to identify where the drivers would be at certain times. Each run sheet would record the driver's arrival at the warehouse in the morning, would be signed by each customer upon delivery, and would record the time the driver had completed deliveries for the day. The drivers were to return the run sheets to the warehouse at the end of the day, or the next morning if the driver went straight home after his last delivery. Apart from the run sheets, the drivers were not required to fill out any other document akin to a timesheet[30].
2. Although the drivers were told what to deliver, they were left largely to agree amongst themselves on their respective delivery areas. Each driver structured his own delivery route. By around 2001, Mr Whitby, who lived about 160 kilometres from the company's warehouse, would relatively frequently drive home after making his last delivery, rather than return to the warehouse. He would structure his route such that he made his deliveries closest to the warehouse first and made his deliveries furthest away from the warehouse last[31]. In some years, the Whitby partnership rented a property near the warehouse, to save the costs of Mr Whitby travelling between the warehouse and his home[32].
3. The company's warehouse staff were responsible for picking and packing orders for delivery. Items for delivery would then be moved on pallets to the despatch area at the warehouse and sorted into runs, initially by warehouse staff. During this time, the drivers were instructed to wait in the canteen. From around 2006, a company manager told Mr Whitby that he was to start sorting his own run by himself. After six months, Mr Whitby was told that he was not to sort his run inside the warehouse, and should do so outside the warehouse. Warehouse staff would then load the sorted items onto the truck. Mr Whitby would sometimes shift the items around inside the truck to ensure safe transit of the goods, using a pallet jack if required[33].
4. In 2009, the drivers approached the company and proposed that they perform non‑metropolitan deliveries. The company agreed to "give it a go" if it would be cheaper for the company than paying others to make those deliveries. From time to time thereafter, the company would approach a driver to see if he was interested in a non‑metropolitan delivery and, if the driver was interested, he would quote for that job and complete it, if approved[34].

1. The income from the work performed by Mr Jamsek and Mr Whitby for the company was declared as income of each partnership and split, generally evenly, between husband and wife[35]. Generally, each partnership paid for running costs and other expenses associated with the trucks, including public liability insurance and motor vehicle insurance. These were claimed as deductions for tax purposes[36]. In the case of Mr Whitby, the Whitby partnership also claimed deductions in respect of the rental property used to minimise Mr Whitby's travelling costs between the warehouse and home[37].
2. As required by cl 1(c) of the contract, the partnerships invoiced the company for their work[38]. After the introduction of GST in 2000, each partnership charged GST to the company in relation to the services it supplied, and provided the company with tax invoices[39].
3. In 2012, the Whitby partnership was dissolved. Mr Whitby continued supplying his services, now as a sole trader using his own ABN. In his subsequent tax returns, Mr Whitby declared that he was carrying on a business in respect of a "transport operation" or a "courier service". He continued to claim deductions in respect of depreciation and expenses associated with the trucks[40].

1. Mr Jamsek and Mr Whitby worked more or less regular hours, usually arriving at the warehouse between 6.00 am and 7.00 am and finishing deliveries around 3.00 pm[41].
2. In 2000, Mr Jamsek took six or seven weeks of leave. During this period, a friend of Mr Jamsek drove his truck and the Jamsek partnership paid the friend for his work. The company paid the Jamsek partnership as usual[42].
3. In 2010, Mr Jamsek took five or six weeks of leave. During this period, he handed his run to other drivers at the company or, if those drivers could not take on his deliveries, the deliveries were done by external couriers[43].
4. Mr Jamsek took leave on several other occasions, and took two weeks annual leave over Christmas each year[44].

1. At various times throughout their engagements, the respondents were asked by the company to install tarpaulins bearing the company logo on the trucks. On some occasions, the respondents installed the tarpaulins themselves; on other occasions, the company installed the tarpaulins, or contributed towards the costs of installation[45]. In 2010, Mr Whitby converted his truck to become a "flatbed", and from that time onwards his truck did not bear a company logo[46].
2. At various times throughout their engagements, the respondents were supplied with uniforms bearing the company logo, including on occasions following a transfer of the business to a new entity[47]. The primary judge found that the respondents wore a mix of personal and branded clothing[48]. They were not instructed by the company to wear a uniform, although from 2014 they were required to wear high‑visibility vests inside the warehouse[49].

1. The respondents were occasionally asked to perform tasks beyond their core delivery duties.
2. Around 2012, Mr Jamsek and Mr Whitby were told by warehouse management that they were to start scanning the manifest run sheets to give to warehouse staff. When Mr Jamsek told the warehouse foreman that it was not part of his job, he was told that he had to do the clerical work. The respondents performed this task daily for the remainder of their engagements. Mr Whitby estimated that the task took 15 minutes per day to complete[50].
3. The respondents were occasionally asked by company warehouse staff to assist in cleaning up behind the warehouse while a stocktake was being undertaken. Neither assisted in the actual stocktake[51]. Both respondents also occasionally used their trucks to assist in relocations of the factory or warehouse, for which they were paid their usual rate[52]. From time to time, the respondents would also collect and return empty pallets to the warehouse, for which they would charge the company. There was no evidence that the respondents were directed to do so.

1. The primary judge concluded that, having regard to the totality of the parties' relationship, Mr Jamsek and Mr Whitby were not "employees" of the company for the purposes of the FW Act and the SGA Act, nor were they "workers" for the purpose of the LSL Act[53]. Rather, in his Honour's view, the case was "an example of partnerships (and from 1 July 2012, Mr Whitby) running businesses of their own"[54].
2. The primary judge considered that the events in 1986, including the formation of the partnerships, the payment of Mr Whitby's annual leave, and the purchase by the respondents of trucks, demonstrated a mutual intention that significant aspects of the existing relationship would change from the employment relationship subsisting to that time[55]. In the primary judge's view, this mutual intention to alter the structure of the relationship was reflected in the written contract[56].
3. The primary judge considered that the provision of trucks (and, in Mr Whitby's case, utes) was a significant factor - especially given the substantial value of those vehicles - which favoured a characterisation of the respondents as independent contractors[57]. The provision of services through the vehicle of a partnership (and, in Mr Whitby's case, later as a sole trader) also weighed in favour of a conclusion that the respondents were independent contractors. In this regard, the primary judge described the partnerships as having "conducted their affairs as one would expect of a business"[58], in that the partnerships bore the costs associated with purchasing and operating the trucks, and so bore the risk that the provision of services to the company would not be a profitable venture. In the primary judge's view, these were significantly higher risks than the risks Mr Jamsek and Mr Whitby would have faced as employees[59].
4. The company had submitted that the respondents' work did not involve the development of goodwill, on the basis that cl 2.1(k) of the contract restrained the respondents from selling their trucks with any guarantee of continuing work for the company. His Honour rejected this submission, noting that the clause did not prohibit the sale of a business and, if anything, suggested that the parties contemplated that the respondents might otherwise have something over and above the value of the trucks to sell. In the upshot, his Honour regarded this factor as insignificant[60].

1. The Full Court allowed the appeal. Anderson J wrote the leading judgment, with which Perram J and Wigney J agreed, each adding some further remarks as to the factors their Honours considered most significant in the overall balancing of relevant factors.
2. The Full Court emphasised that the ultimate question - whether either respondent was an employee - was to be answered by reference to the "substance and reality" of the relationship[69]. The Full Court emphasised that this was not the same question as asking whether either respondent was conducting his own business, noting that the distinction between a person serving his or her employer's business and a contractor conducting a business of his or her own "may not represent a perfect dichotomy"[70].
3. The task of ascertaining the "substance and reality" of the relationship was approached by the Full Court explicitly as a "matter of impression"[71] by reference to the history of the parties' dealings with each other over many decades. The Full Court proceeded on the footing that it was necessary to embark on such an exercise having regard to the need to consider "the totality of the relationship" between the parties beyond the terms of their written contracts[72]. It was said that at the heart of this conclusion was[73]:

"a preference for the substance of the relationship ... over certain aspects of the contractual obligations governing the relationship, and the legal structures through which the [respondents] contracted."

"[T]he essence of the legal framework between the parties involved the [respondents], for large part through their Partnerships, contracting with the company, with the Partnerships [supplying] the vehicles for the [respondents'] work. These are, on their face, indications that the [respondents] were operating an independent business. But ... they are outweighed by the particular, and perhaps peculiar, attributes of the long relationship between the parties."

1. Speaking broadly, this approach is erroneous in point of principle for the reasons given in CFMMEU v Personnel Contracting[75]. In relation to the particular matters identified by the Full Court as leading to a conclusion as to the character of the relationship that was contrary to the indications "on the face" of the parties' agreements, a consideration of those matters helps to illustrate why the conclusion reached by the Full Court was not soundly based in principle.
2. The first point made by the Full Court in this regard was that there was limited evidence that the respondents' wives contributed to work that generated income for the partnerships. On that basis, it was concluded that the respondents and their wives were "partners in name only"[76]. It is necessary to recall here that it was no part of the respondents' case that the partnerships were shams. And, in any event, partnerships in which one partner does not contribute his or her service to the partnership business are commonplace. There is no reason to view these partnerships differently.
3. As to the circumstances surrounding the making of the 1986 contract and the alteration thereby effected to the nature of the parties' relationship, the Full Court held that the parties' intentions in entering into the 1986 contract "must be characterised in light of the reality of the respective bargaining positions of each party"[77]. In the Full Court's opinion, because "the reality" was that there was little or no room for negotiation and the respondents were faced with "an effective ultimatum" of either redundancy or the restructured arrangement, the significance of entry into the 1986 contract was diminished[78]. It was also said that the significance of the respondents' investment in and deployment of their vehicles was lessened by the circumstances that the respondents were effectively compelled to purchase the trucks as part of entering into the 1986 contract; that the trucks were subsequently adorned with the company's logo for most of the duration of the engagements; and that driving the trucks did not require an exceptional level of skill[79].
4. It is necessary to note in these observations of the Full Court the expansive approach taken to determining the "substance and reality" of the relationship between the parties, and especially the significance attached to the disparity in bargaining power as itself affecting the meaning or effect of what the parties had agreed. This expansive approach accords with that which has been taken in the United Kingdom[80]. For the reasons stated in WorkPac Pty Ltd v Rossato[81] and in CFMMEU v Personnel Contracting[82], this expansive approach involves an unjustified departure from orthodox contractual analysis.

1. The appellants emphasised the finding of the primary judge that the respondents, as members of their partnerships, were engaged in the conduct of their own businesses[93]. That finding was clearly correct. Given that there is no basis for holding that the respondents were otherwise associated with the company, there is no basis for concluding that the respondents were employed by the company. The only relationship between the respondents and the company was that the respondents were members of partnerships that had agreed to make deliveries for the company.
2. On the orthodox approach to the interpretation of contracts, regard may be had to the circumstances surrounding the making of a contract[94]. The 1986 contract between the partnerships and the company came to be made because of the company's insistence that the only ongoing relationship between the respondents and the company would be that established by the 1986 contract and that the partnerships would own and operate the trucks which would transport the company's deliveries. Given that the genesis of the contract was the company's refusal to continue to employ the respondents as drivers, and the respondents' evident acceptance of that refusal, it is difficult to see how there could be any doubt that the respondents were thereafter no longer employees of the company.
3. The circumstance that this state of affairs was brought about by the exercise of superior bargaining power by the company weighed heavily with the Full Court; but that circumstance has no bearing on the meaning and effect of the bargains that were struck between the partnerships and the company. To say this is not to suggest that disparities in bargaining power may not give rise to injustices that call for a legal remedy. The law in Australia does provide remedies for such injustices under both the general law and statute. Those remedies were not invoked in this case. As has been noted earlier, the respondents did not claim that the contracts with the partnerships were shams. Nor did they seek to make a claim under statute or otherwise to challenge the validity of the contracts that were made by the partnerships. In Australia, claims of sham cannot be made by stealth under the obscurantist guise of a search for the "reality" of the situation[95].
4. Even if this disguised submission of sham were to be countenanced, the reality of the situation is that the partnerships, and not the respondents individually, owned and operated the trucks. The partnerships contracted with the company and invoiced the company for delivery services provided by the operation of the trucks. The partnerships earned income from the company, incurred expenses associated with the ownership and operation of the trucks, and took advantage of tax benefits of the structure. It is not possible to square the contention that the respondents were not conducting a business of their own as partners with the circumstance that, for many years, they enjoyed the advantages of splitting the income generated by the business conducted by the partnerships with their fellow partners.

The proposed cross‑appeal: expanded definition of "employee" under s 12(3) of the SGA Act

1. The respondents filed a notice of cross‑appeal in which they contended that Mr Jamsek and Mr Whitby fell within the expanded definition of "employee" pursuant to s 12(3) of the SGA Act. That sub‑section provides:

"If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract."

1. The primary judge rejected the contention that the respondents fell within s 12(3) for two reasons. First, the relevant contracts were between the company and the partnerships, and not the respondents as individuals. Secondly, the contracts were not "principally for the labour of the person", but rather "were plainly for the provision of substantial equipment" as well as labour[98].
2. The Full Court, having concluded that the respondents were employees according to the ordinary meaning of that term, considered that it was unnecessary to deal with s 12(3) in order to dispose of the appeal[99]. As a consequence, this Court does not have the benefit of the Full Court's reasoned resolution of the issue sought to be raised by the proposed cross‑appeal. Ordinarily, that circumstance would warrant the refusal of special leave to bring the cross‑appeal. That would be unfair in this case, given that the Full Court did not consider the respondents' submissions in relation to s 12(3) because their claim could be sustained on another basis.
3. The respondents submitted that the primary judge's first reason for rejecting the applicability of s 12(3) was erroneous. In the respondents' submission, all s 12(3) required was that the person work "under" a contract, not that the person was himself or herself a party to the contract. As for the primary judge's second reason, the respondents submitted that although one of the purposes of the contract was the provision of equipment, the contract remained one that was "principally" for the labour of the drivers.
4. The arguments advanced by the respondents are not insubstantial. They cannot be dismissed out of hand. Acceptance of these arguments would have substantial consequences for the revenue. It would be inappropriate for this Court to determine these issues in circumstances where the Commissioner of Taxation was not a party to the proceedings, and where the Full Court did not address these questions.
5. So far as the proposed cross‑appeal by the respondents is concerned, the justice of the case would be met by an order that the issues raised by the notice of cross‑appeal be remitted to the Full Court to enable that matter to be determined following the joinder of the Commissioner of Taxation.

1. The appeal should be allowed, and the orders made by the Full Court on 16 July 2020 be set aside. The issues raised by the notice of cross‑appeal should be remitted to the Full Court for determination, and the Full Court should otherwise make orders in accordance with these reasons.
2. GAGELER AND GLEESON JJ. In contrast to the companion appeal in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd ("CFMMEU")[100], which concerns a labour hire arrangement of a kind that has come to prominence with the disaggregation of business structures in the late 20th and early 21st centuries, the controversy underlying this appeal arises out of a scenario well known in an earlier industrial age.
3. A company with an established workforce of employees wants to change the structure of its business to turn them into independent contractors. To achieve that change, the company proffers written contracts which its workers sign. The conduct of the business of the company goes on with little change in practice. Later, an issue arises in a taxation or superannuation or workplace compensation or workplace entitlement context about whether the company achieved its aim. A worker claims that the written contract cannot obscure the reality that the true nature of his or her relationship with the company did not change at all.
4. Faced with claims of that type, to the extent necessary to adjudicate the issues in dispute, courts and tribunals applying common law principles have been astute to ascertain what the real relationship between the company and the worker was following the signing of the contract and to characterise that relationship in its totality. They have not always been astute to distinguish contractual variation from contractual performance. That has been unsurprising given that contractual performance and any contractual variation will have occurred within the same matrix of fact. The distinction, moreover, has not always been seen to have mattered, since the terms of the contract as varied and the manner of its performance have both been understood to have borne on the ultimate question of characterisation. That has been so whether the ultimate question of characterisation has been framed more in terms of whether the worker was supplying subordinated labour under the control of the company or more in terms of whether the worker was carrying on his or her own business.

"[I]n all arrangements where the parties occupy a relationship in the nature of that of joint adventurers, there is necessarily involved a certain degree of direction and control arising out of the nature of the relationship created by the agreement itself. But this does not necessarily create the relationship of employer and employee, that question, all the surrounding circumstances having been taken into consideration, being mainly determined by the degree and extent of the detailed control vested in one party over the acts of the other party in the actual execution of the work contemplated in the joint venture."

After referring to the terms of the "leases" and associated contractual documents, and to the work practices in place prior to the "lease" arrangements, their Honours continued[103]:

"Under the new system the drivers kept the cab at the company's garage or not, according to their own convenience, and they worked whatever days or hours they liked without control by the company. They were not bound to start from or finish at the company's garage, nor were they required to record their time on the bundy clock. They were not compelled to furnish any record of their hours, nor to work from any specified rank or under any orders as to the place or direction in which they should cruise for work. They paid for their own petrol and they were liable to repay to the company the cost of repairing any damage to the cab or its equipment."

In concluding that the previous relationship of employment had not been maintained under the new system, their Honours said[104]:

"Such a system does not appear to establish that the drivers were subject to the commands of the company as to the manner in which they shall do their work, but were independent in that, though they embarked upon the carrying out of a joint enterprise, each driver was substantially in the position of an independent contractor 'who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.'"

1. In Cam and Sons Pty Ltd v Sargent[105], Evatt J referred to Yellow Cabs as containing a discussion of the principles applicable to determining the issue in that case, which was whether a shipping company had succeeded by entering into a written agreement in turning the master and crew of one of its ships into a partnership chartering the ship. Proceeding on the understanding that "the relationship between the parties [was] to be determined by a careful consideration of the terms of the agreement made between them and their conduct whilst it was in force"[106], Judge Markell had determined at first instance that the relationship between the shipping company and the master and crew during the period in which the written agreement was in force was "in fact" that of employer and employee. The Full Court of this Court (Rich, Dixon, Evatt and McTiernan JJ) unanimously upheld that result in ex tempore reasons for judgment delivered seriatim. In the language of Dixon J, "the learned judge was perfectly right in treating the substance of the relation of master and servant as subsisting between the parties". His Honour explained[107]:

"In a matter of this sort we are to look at the substance of the transaction and not to treat a written agreement, which is designed to disguise its real nature, as succeeding in doing so if it amounts merely to a cloud of words and, without really altering the substantial relations between the parties, describes them by elaborate provisions expressed in terms appropriate to some other relation."

1. The approach in Yellow Cabs was later reflected, and Yellow Cabs was cited, in the reasoning in R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd[108] sufficiently set out in CFMMEU[109]. There, as noted in CFMMEU, application of that reasoning led to the result that an insurance company was not shown on the evidence to have been successful in making its insurance salesmen independent contractors.
2. Here, the primary judge (Thawley J) and the Full Court of the Federal Court (Perram, Wigney and Anderson JJ) took essentially the same approach to the resolution of the ultimate question of whether Mr Jamsek and Mr Whitby remained employees of the company after each signed the 1986 contract. They were correct to do so.
3. Subject to one qualification, we see nothing wrong with the Full Court's identification of the applicable common law principles. The one qualification concerns the Full Court's apparent preparedness to contemplate that two persons who have contracted with each other might simultaneously be an employer and an employee and a hirer and an independent contractor[110]. If the contemplation was no more than that a contract under which a relationship of employment is established and maintained need not be a contract that deals solely with the subject-matter of employment or that admits of performance solely through the establishment and maintenance of a relationship of employment, the contemplation would have been wholly orthodox. If the contemplation was that a single relationship established and maintained under a contract could be simultaneously a relationship of employer and employee and of hirer and independent contractor, the contemplation would have been heterodox. For the purposes of determining who is an "employee" at common law, the distinction between an employee and an independent contractor is and has always been a true dichotomy.
4. Our disagreement is with the evaluative conclusion reached by the Full Court. Against the background of the facts set out by Kiefel CJ, Keane and Edelman JJ, and without repetition of the principles we have referred to in CFMMEU, our reasons for disagreement can be expressed briefly and sufficiently with reference to the relationship between Mr Jamsek and the company during the period of the 1993 contract. Implicit in our earlier identification of the ultimate question is that we adopt the abbreviations of Kiefel CJ, Keane and Edelman JJ.

(1) to pay all legal costs, such as tax and duty, in relation to the vehicle and keep the vehicle mechanically sound, road worthy and clean (cl 2.1(c));

(2) to obtain and maintain a public liability insurance policy for an amount of $2,000,000 or greater in respect of any liability incurred by the partnership in performing work for ZG (cl 2.1(h)); and

(3) to obtain and maintain a comprehensive motor insurance policy over the vehicle for an amount of $5,000,000 or greater for third party property damage in respect of one accident (cl 2.1(i)).

1. Consistent with those contractual obligations, each partnership also agreed "[n]ot [to] offer [its] vehicle for sale with any guarantee of either continuity of work for [ZG], or implied acceptance by [ZG] of the purchaser"[130]. The significance of the supply of the vehicle by each partnership under the contract was reinforced by cl 5(e), which provided that sale of "the vehicle" for any reason other than replacement "automatically terminate[d] [the 1993 Contract] ... unless specifically, and in writing, agreed otherwise with the NSW Branch Manager".
2. Next, cl 1(b) provided that the partnerships were "[a]ble to work for other parties, providing that such work [was] not detrimental to either [ZG] or [ZG's] customers" and cl 2.1(g) provided that the partnerships agreed to "[n]ot engage or use the services of a driver for the vehicle without prior and continuing approval by [ZG]". This made explicit that the partnerships were not tied to ZG and that performance of the contractual obligations was not personal to Mr Jamsek and Mr Whitby[131].
3. The work - carriage of goods - and the payment for that work do not suggest relationships of employer and employee. Under cl 1(c) of the 1993 Contract, the partnerships were to invoice ZG for the work carried out in the preceding week. Under the 1993 Contract, the pay rates changed. Under cl 7(a), the partnerships were entitled to invoice ZG on an hourly rate, rather than on a "per carton" basis.
4. The work the partnerships were contracted to carry out under the contract - carriage of goods - was as reasonably directed by ZG[132]. Much was made of this clause by senior counsel for Mr Jamsek and Mr Whitby, who suggested that it was "the most complete example of control one can conceive of". While cl 2.1(a) did confer control on ZG, it was control of a particular kind: a power to give directions to make deliveries rather than to direct how that should be done. Put in different terms, ZG engaged the partnerships to carry its goods to its customers; not to carry goods absent a specified destination.
5. There are clauses in the 1993 Contract that may suggest relationships of employer and employee. For example, cl 7(b) provided that the parties had "agreed to a standard nine hour working day with a usual starting time of 6 am, both parties accepting that the actual hours may vary due to work load fluctuations". While this may tend slightly in favour of relationships of employer and employee, it should be viewed in the context of cl 9(a), which provided that "[ZG] [would] where ever possible, offer any extra work to the [partnerships] at a mutually agreed rate for each job". This suggests that while the parties agreed on a nine-hour working day as a starting point, there was flexibility built into the contract for the remuneration to increase as extra work was undertaken[133].

1. Mr Whitby having been declared bankrupt, the second and third respondents in the appeal to this Court were the trustees of Mr Whitby's estate in bankruptcy. It is convenient, however, in these reasons to refer to Mr Whitby personally. ↑

2. Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 121 [27], 131 [89]‑[91], 132 [95]. ↑

3. See ss 11‑13, 15, 30C, 30E of the FW Act; s 12(1) of the SGA Act; s 3(1) of the LSL Act. ↑

4. Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934. ↑

5. Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 121‑122 [30]‑[32], [34]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 153 [202]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 122 [38]‑[39]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 122 [40]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 122 [35]‑[36]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [22]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 122-123 [39]‑[41]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 123 [42]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 123 [43]‑[45]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [23]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 123 [46]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 123‑124 [50]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 124 [51]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 127 [61]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 123‑124 [50]-[51]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 124 [50], 127 [61]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 130 [81]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 131 [84]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 130 [82]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 124 [52], [54]‑[56]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 125 [57]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 127 [62]‑[63], [65]‑[66]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 129‑130 [77]‑[78]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 128 [71]‑[72]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 127‑128 [68]‑[69]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 135 [120]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 122 [33], 128‑129 [74]‑[75]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 130 [80]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 133 [110], 135 [119]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 133‑134 [111]‑[117], 135 [120]‑[121]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 135 [120]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 149 [188]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 134 [118], 135 [122]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 135 [123]‑[124]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 132 [100]‑[103], 163 [233]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 132 [97]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 132 [98]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 132 [98]‑[99]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 124 [51], 127 [61], [64], 128 [73], 130 [79]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 131 [83]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 126 [58], 133 [108]‑[109]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [188]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 133 [108], 138 [137]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 131 [85]‑[87]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 132‑133 [104]‑[106]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 133 [107]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [212], [218], [224]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [213]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [133]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [177]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [156], [166]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [145]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [145]‑[147], [149]‑[150]. See also [184]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [151]‑[152]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [189]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [188]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [187], [205]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [211]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [190], [199]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [183]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [185]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [209]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 147 [182]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 147 [181]. See also 118 [8], 119 [14]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 165 [242]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 165 [242]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 165 [243]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 165 [243]. ↑

76. Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 149 [191]. ↑

77. Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 151 [196]. ↑

78. Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 149‑152 [192]‑[201], 165 [245]. ↑

79. Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 153‑154 [205]‑[207]. ↑

81. (2021) 95 ALJR 681 at 694‑695 [62]‑[64]; 392 ALR 39 at 53‑54. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 160 [224]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 160 [224]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 160‑161 [225]. See also 120 [17]‑[18]. ↑

cf WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 at 694‑695 [62]‑[64]; 392 ALR 39 at 53‑54. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 162‑163 [229]‑[233]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 165 [244], citing On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation [No 3] (2011) 214 FCR 82 at 142 [291]; Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 at 390 [181]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 165 [244]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 166 [247]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 164 [237]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 118 [9]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [213]; Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 119 [11], 149 [190]. ↑

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352; Narich Pty Ltd v Commissioner of Pay‑roll Tax [1983] 2 NSWLR 597 at 601. ↑

See WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681 at 694‑695 [62]‑[64]; 392 ALR 39 at 53‑54; cf Autoclenz Ltd v Belcher [2011] 4 All ER 745 at 752‑757 [20]‑[35]. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [190], [199]. ↑

Humberstone v Northern Timber Mills (1949) 79 CLR 389; Barro Group Pty Ltd v Fraser [1985] VR 577; Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497. ↑

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [218]‑[220]. ↑

Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 168 [255]. ↑

102. [1930] AR (NSW) 137 at 163 (emphasis added). ↑

104. [1930] AR (NSW) 137 at 169, quoting Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd [1924] 1 KB 762 at 768. ↑

105. (1940) 14 ALJ 162; High Court of Australia file (proceeding No 7 of 1940). ↑

106. Sargent v Cam & Sons Pty Ltd (unreported, District Court of the Metropolitan District Holden at Sydney, 20 March 1940). ↑

107. Oral reasons of Dixon J, High Court of Australia file (proceeding No 7 of 1940). ↑

110. Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 117-118 [6]-[8], 147 [181]. ↑

111. Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 at 425. ↑

113. (2001) 207 CLR 21 at 31-32 [22], distinguishing Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537. ↑

114. ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 at 171 [95]. ↑

118. Jamsek v ZG Operations Australia Pty Ltd (2020) 279 FCR 114 at 153 [205]. ↑

121. Superannuation Guarantee (Administration) Act, ss 19(1), 33, 46. ↑

123. CFMMEU [2022] HCA 1 at [174], citing Australian Mutual Provident Society v Chaplin (1978) 52 ALJR 407 at 410; 18 ALR 385 at 391 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 48-49 [68]. ↑

124. CFMMEU [2022] HCA 1 at [175], citing, among other cases, Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 350, 352 and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 117 [50]. ↑

126. Partnership Act 1892 (NSW), s 1(1); Partnership Act 1958 (Vic), s 5(1); Partnership Act 1891 (SA), s 1(1); Partnership Act 1891 (Qld), s 5(1); Partnership Act 1895 (WA), s 7(1); Partnership Act 1891 (Tas), s 6(1); Partnership Act 1997 (NT), s 5(1); Partnership Act 1963 (ACT), s 6(1). ↑

131. See CFMMEU [2022] HCA 1 at [198], citing Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24, 36-37. ↑

133. CFMMEU [2022] HCA 1 at [174], citing Stevens (1986) 160 CLR 16 at 24. ↑

134. It was common ground that, but for the substitution of Mr Whitby for the Whitby Partnership and the change of pay rates, there were no material changes between the 1993 Contract, the 1998 Contract, the 2001 Contract and the 2008 Contract. ↑

135. See CFMMEU [2022] HCA 1 at [177], [183], [188], citing, among other cases, Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 at 112-113, Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 442, Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 163-164 [25], ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (NSW) (2012) 245 CLR 338 at 350-351 [31]-[32] and Chitty on Contracts, 33rd ed (2018), vol 1 at 1087 [13-124]. ↑

136. CFMMEU [2022] HCA 1 at [176], citing Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at 582 [35], James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 at 603 and Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 446. ↑

137. CFMMEU [2022] HCA 1 at [177], [183], [188], citing Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221 at 243‑244, Tallerman (1957) 98 CLR 93 at 112-113 and Chaplin (1978) 52 ALJR 407 at 411; 18 ALR 385 at 392-393. ↑