Table of Corrections
6 August 2015
In the first sentence of para 69 the word “appellant’s” has been replaced with “respondent’s”.
IN THE FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
2. Orders 1 and 2 made by the Federal Circuit Court on 4 July 2014 be set aside.
3. The respondent’s application under s 117 of the Fair Work Act 2009 (Cth) be dismissed.
4. The respondent’s application under s 357 of the Fair Work Act 2009 (Cth) be dismissed.
5. The cross-appeal be allowed in part.
6. To the extent that the respondent’s case in the Federal Circuit Court involved an allegation of a contravention of s 340 of the Fair Work Act 2009 (Cth) constituted by adverse action taken against her, being action of the kind referred to in item 3 in the table in s 342(1) of the Fair Work Act 2009 (Cth) –
(a) because she proposed to exercise the workplace rights referred to in para (b) and subpara (i) of para (c) of s 341(1) of the Fair Work Act 2009 (Cth), or either of those rights; or
(b) to prevent the exercise by her of the said workplace rights or either of them;
(“the respondent’s adverse action case”), the dismissal of that case by the Federal Circuit Court be set aside.
7. The respondent’s adverse action case be remitted to the Federal Circuit Court for hearing and determination –
(a) by reference to the appellant’s concession that the respondent proposed to make a complaint or inquiry to the Australian Taxation Office, being a body having the capacity under the Superannuation Guarantee (Administration) Act 1992 (Cth) to seek compliance with that Act; and
(b) otherwise, conformably with the reasons of the Full Court published this day.
8. The respondent’s case under the Independent Contractors Act 2006 (Cth) be remitted to the Federal Circuit Court for hearing and determination.
9. Otherwise, the cross-appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 386 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
ALLSOP CJ, JESSUP AND WHITE JJ
11 MAY 2015
REASONS FOR JUDGMENT
1 I have read the reasons to be published of Jessup J. I agree with them and with the orders proposed in them.
2 I wish only to add the following additional comments. First, the delay in the production of the decision was, with respect to the judge, unfortunate: over 20 months from final submissions. The practical realities of life as a judge may mean, sometimes, a degree of delay in decision-making. Pressure and volume of other judicial work, complexity and size of the particular decision-making task at hand, a lack, sometimes, of useful assistance from litigants or the profession, and illness or incapacity are but examples of reasons for delay. Some of the reasons may rest in point of fault; some in point of technique. The burdens on judges in a busy trial court can be enormous. Some reasons may be the responsibility of the Court itself, if too much work is given to a judicial officer without any, or adequate, time or facility to undertake reserved judgments. But systems must be made to cope. Whatever the cause of any particular delay (and there was no explanation available here), its consequences must be examined with an eye to the fair administration of justice. I agree with Jessup J that it has been demonstrated here that the delay affected, or can be seen as apparently affecting, the decision-making in question. Generally, some apparent operative effect of the delay is required for appellable error to be shown: Monie v Commonwealth  NSWCA 25; 63 NSWLR 729 as discussed in MM Constructions (Aust) Pty Ltd v Port Stephens Council  NSWCA 417; 191 LGERA 292 at . The conclusion as to the true reason for Ms Morrow’s termination was sparsely put. After such a long period, without any evidence in the judgment that the consideration and conclusion were made at a time reasonably proximate to the hearing, and without expressed careful consideration of all the evidence, the conclusion should be seen as flawed. It also had the effect of being, on its face in terms of expression, a contingent finding with the problems involved with such: Wade v Burns  HCA 35; 115 CLR 537 at 555; and see Tarabay v Leite  NSWCA 259 at -.
3 Secondly, the recently published decision of the Full Court in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd  FCAFC 37 does not require any different conclusion in this particular case. The place of Ms Morrow as an employer of workers in the agency, her means of remuneration, and the other factors pointed to in the reasons of Jessup J lead to the factual conclusion of a sufficient “enterprise” being undertaken by her to warrant the conclusion reached here by Jessup J, with which I agree. That makes it unnecessary to say anything about any necessity for an enquiry into whether a commercial enterprise as a going concern with employed capital and undertaking risk is being carried on by the putative independent contractor or employee, and the extent to which, as a matter of principle, an answer to such an enquiry is likely to be generally determinative: cf Quest at .
4 Thirdly, whilst the employment of staff by Ms Morrow is a matter of great significance in this case, such cannot be taken for all purposes and for all circumstances to be a necessarily determining factor against the conclusion that the person (the intermediate employer) is an employee. One only has to contemplate the circumstances of Lehigh Valley Coal Co v Yensavage 218 Fed 547 (1914 2nd CCA) as an example. The underground coalminer, Mr Terowsky, had a “helper”, the plaintiff, Mr Yensavage, who was horribly maimed in an explosion at the mine at which they mined coal together. Mr Terowsky was paid piece rates by reference to the amount of coal mined by him as a so-called independent contractor, with which remuneration he paid his “helper”. The mine owner said that Mr Terowsky was an independent contractor and that Mr Yensavage, the helper, was his employee, not its employee. The Second Circuit majority, Coxe J and Learned Hand J (then a District Judge sitting in the Circuit Court) would have none of it, in the context of a statute dealing with the responsibility to provide a safe system of work. The majority said at 552-553:
In the case at bar the necessary conclusion of the defendant’s theory is that Terowsky, as well as the plaintiff, was not an employé of the company, and that they owed him none of the duties of a master to a servant. The company is therefore not in the business of coal mining at all, in so far as it uses such miners, but is only engaged in letting out contracts to independent contractors, to whom they owe as little duty as to those firms which set up the pumps in their mines. Thus what is confessedly only a means of speeding up the miners and their helpers becomes conveniently an incidental means of stripping from them the protection of the statute. The laborers, under this contention, are to have recourse as an employer only to one of their own, without financial responsibility or control of any capital; the miner is to take his chances in the mine without the right to a safe place to work, or any other protection except as an invited person. This misses the whole purpose of such statutes, which are meant to protect those who are at an economic disadvantage.
It is true that the statute uses the word “employed,” but it must be understood with reference to the purpose of the act, and where all the conditions of the relation require protection, protection ought to be given. It is absurd to class such a miner as an independent contractor in the only sense in which that phase is here relevant. He has no capital, no financial responsibility. He is himself as dependent upon the conditions of his employment as the company fixes them as are his helpers. By him alone is carried on the company’s only business; he is their “hand,” if any one is. Because of the method of his pay one should not class him as though he came to do an adjunctive work, not the business of the company, something whose conduct and management they had not undertaken.
Such statutes are partial; they upset the freedom of contract, and for ulterior purposes put the two contesting sides at unequal advantage; they should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.
5 The statutory and factual context will always be critical in a multifactorial process of characterisation of a legal and human relationship: employment. Whose business or enterprise is being carried on may be critical. It was important in Lehigh. It may not, however, lessen the importance in another case of an arrangement for the provision of labour by someone who is a sole trader who wishes, or is prepared to bargain for, or accept, a sufficient degree of independence that tends to deny a characterisation of employment in all the circumstances, including the relevant statute.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 386 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
Allsop CJ, Jessup and White JJ
11 MAY 2015
REASONS FOR JUDGMENT
6 The respondent to this appeal from the Federal Circuit Court, Sharyn Morrow, for many years operated a shopfront betting agency for the appellant, Tattsbet Limited, at Logan Central. On 10 November 2011, the appellant summarily terminated that arrangement. In the proceeding below, the respondent alleged that she had been an employee of the appellant, and (whether or not she was an employee) that the termination of the agency agreement between herself and the appellant was unlawful under s 340 of the Fair Work Act 2009 (Cth) (“the FW Act”). The primary Judge upheld the respondent’s claim that she had been an employee (rather than, as contended by the appellant, an independent contractor), but rejected the allegation that the termination involved a contravention of s 340. His Honour’s finding in favour of the respondent led to her being awarded $7,400 as compensation pursuant to s 545(2)(b) of the FW Act in respect of a contravention of s 44(1) constituted by the appellant’s failure to give proper notice of termination of employment. The appellant appeals from that award, its single ground of appeal, effectively, being that the primary Judge was in error to have held that the respondent was its employee. For her part, the respondent cross-appeals against the dismissal of her case under s 340.
7 Those are the two main issues now before the Full Court, namely, whether the respondent was an employee or an independent contractor, and whether the appellant contravened s 340 of the FW Act when it terminated the respondent’s agency on 10 November 2011. Because of the terms of s 342(1) of the FW Act, the respondent’s case under s 340 was not, at least in her submission, dependent upon a finding that she had been an employee. The second issue, therefore, will need to be resolved even if it be held that the Federal Circuit Court was in error in finding that the respondent was the appellant’s employee.
8 There are three other issues that will also be considered in these reasons. First, in her cross-appeal the respondent contends that, to the extent that the primary Judge dismissed her case under s 340 of the FW Act, his Honour’s judgment was rendered unsafe by the delay which attended its delivery – about 20 months. Secondly, the respondent also cross-appeals against his Honour’s failure to deal at all with one of her claims, namely, that the representation made by the appellant to herself that she was an independent contractor involved a contravention of s 357 of the FW Act. And thirdly, although not the subject of the cross-appeal, or of a notice of contention, in the event that it is now held that the respondent was an independent contractor, she seeks to have a case which she ran in the alternative in the Federal Circuit Court under the Independent Contractors Act 2006 (Cth) (“the Contractors Act”), and which, because she was an employee, that court did not have to consider, referred back to that court for hearing and determination.
The Appeal – Employee or Contractor
9 According to the findings of the primary Judge, the respondent had a long history of working in the betting and wagering industry. From 1993 to 2002, she worked for Tabcorp in Victoria carrying out cash control duties. From 2001 to 2003, she worked as a manager of a hotel in Melbourne which had TAB facilities. A requirement of these positions was that she held formal Tabcorp wagering accreditation as a cash controller.
10 In 2004, the respondent was offered a position in Brisbane by the appellant. She accepted that offer, signing an agency agreement with the appellant for its agency at Moorooka. She trained with the appellant for three weeks at another agency before taking up her position at Moorooka. She later applied, unsuccessfully, for an agency in Elizabeth Street, Brisbane. From that application, she was offered a position at the Logan Central agency, which she accepted. She commenced working there in December 2005, and remained there until the termination of her engagement – the event as to which she complained in the Federal Circuit Court – on 10 November, 2011. From time to time, she was offered, and took up, the opportunity to operate other agencies at the same time as she continued to operate the Logan Central agency.
11 There were four consecutive agreements between the appellant and the respondent in respect of the Logan Central agency, the most recent of which – the one which was relevant in the proceeding in the Federal Circuit Court – was made on 9 March 2010. It is referred to hereafter as “the agency agreement”.
12 Clause 1 of the agency agreement, headed “Appointment of Agent”, provided that the appellant appointed the respondent “for the purpose of operating a UNiTAB Agency” at the Logan Central premises (UNiTAB Ltd being the then name of the appellant). There was a provision for a six-month probationary period, but this applied only “in the first term of appointment” and was, therefore, inapplicable to the circumstances of the respondent. It was provided that the appellant’s regional manager would carry out a “written Performance Appraisal” at least once during the term of the agreement (which was until 15 December 2012), and that the rating “earned” during that appraisal would have “a direct bearing on the continuation and/or renewal” of the agency agreement.
13 Clause 2 of the agency agreement provided as follows: “The parties acknowledge that the Agent is an independent contractor”.
14 Clause 3 of the agency agreement contained a prohibition upon the respondent transferring or assigning the benefit of the agreement to any person, firm or corporation.
15 Clause 4 of the agency agreement required the respondent to provide to the appellant “a non-interest bearing cash security bond” of $8,500, from which the appellant was entitled to deduct “all and any monies which may be or become owing” to it by her.
16 Clause 5 of the agency agreement was in the following terms:
UNiTAB will provide the following as part of this Agreement:
(a) The data line from the Agency to UNiTAB’s central computer;
(b) Terminals, and all office furnishings required by UNiTAB;
(c) A Cash Office Information System and Odds Display Monitors at a rental fee determined by UNiTAB and payable by the Agent (Appendix 1);
(d) A telephone service, rental and call charges to be repaid by the agent to UNiTAB on demand;
(e) A race broadcasting service;
(f) A satellite receiving system and the TV monitor for race telecasts at a rental fee determined by UNiTAB (Appendix 1);
(g) Stationery as approved by UNiTAB;
(h) All tickets stocks with the cost of betting tickets stocks repaid by the Agent to UNiTAB on demand (Appendix 1);
(i) Monies as UNiTAB shall think fit by way of working capital for the proper operation of the Agency. The Agent acknowledges that these monies shall at all times be and remain the property of UNiTAB and shall be repaid to UNiTAB on demand. No such monies shall be removed from the said premises except for immediate deposit into the Bank Account referred to in Clause 10 of this Agreement or as otherwise directed in writing by UNiTAB;
(j) Rent free premises;
(k) Payment of rates, outgoings and garbage collection;
(l) Payment of electricity charges;
(m) Repairs to office and office equipment;
(n) Promotional material for promotions organised by UNiTAB;
(o) An Electronic Results System and Results Display monitors at a rental fee determined by UNiTAB and payable by the Agent (Appendix 1);
(p) A Sportsbet Interactive Unit at a rental fee determined by UNiTAB and payable by the Agent (Appendix 1);
(q) A Keno Information Display System (“KIDS”) at a rental fee determined by UNiTAB and payable by the Agent (Appendix 1);
17 Clause 6 of the agency agreement required the respondent to submit an annual “written promotional plan” to the appellant’s regional manager. The plan was to detail “the promotional activities and other business initiatives which will be undertaken by [the respondent] over the ensuing twelve months.”
18 Clause 7 of the agency agreement required the respondent to keep the agency premises open for business “on such days and during such hours” as were required by the appellant. The requirement at the time of the execution of the agreement was for the agency to be open for 43 hours each week, excluding Sunday.
19 Clause 8 of the agency agreement required the respondent to be “personally … in attendance” at the office of the agency for 32 hours each week.
20 Clause 9 of the agency agreement provided that, if the respondent wished to be absent from her office for a period in excess of one week, she was to submit to the appellant’s regional manager, in advance, details of her proposed period of leave, of her proposed “relief agent”, of the names of persons acting as bank signatories and of the “casual staff arrangements” which she had made.
21 By cl 10 of the agency agreement, the respondent acknowledged that she would “process transactions relating to the business” of the appellant. She was required to keep the monies received and held by her in the course of conducting the agency separate from all other funds. As required by the appellant, the respondent was to remit to it the monies which she held in the course of conducting the agency.
22 Clauses 11 and 12 of the agency agreement dealt with the subject of statutory compliance, and do not require further comment here.
23 By cl 13 of the agency agreement, the respondent was permitted to use “only … such tickets, betting slips, forms, other stationery, display material, furniture and fittings as [were] provided or authorised” by the appellant.
24 Clauses 14 and 15 of the agency agreement related to the keeping of books and records. The respondent was required to account to the appellant “for all investments received and dividends or refunds paid or unpaid”.
25 Clause 16 of the agency agreement required the respondent to “operate the Agency in an orderly and proper manner” and to “maintain and keep the premises and machines clean and in a condition consistent with the standard … laid down by [the appellant] from time to time.” The respondent was required to report any damage and necessary repairs. Any non-observance of “the cleaning standards” would result in the engagement of commercial cleaners at the respondent’s expense.
26 Clauses 17-20 of the agency agreement dealt with the subject of “Staff Responsibilities”, and provided as follows:
17. The Agent shall assume responsibility for the engagement, training, payment, Workers’ Compensation, and conduct of any person employed by them for the business of the Agency. Such employees shall be the servant of the Agent and not of UNiTAB.
18. The Agent is required to engage, train and maintain a level of staff to ensure the office has sufficient staff available at all times. Minimum staffing levels are to be consistent with UNiTAB requirements to serve customers, and are to generally meet the labour required to service specified ticket sales volumes.
19. The Agent and its employees are required to observe a minimum business-like standard of dress at all times as follows:
Smart street attire or tailored slacks (eg. no T-shirts or shorts except as forming part of the corporate wardrobe, no jeans, thongs or joggers).
Open neck shirts, slacks, shorts and long socks (sock to be fully extended), (eg. no T-shirts except as forming part of the corporate wardrobe, no jeans, thongs or joggers).
20. The Agent will dismiss forthwith, or if not permitted under any industrial relation legislation and/or award, upon giving such notice as is required by such legislation or award, dismiss any employee who fails to meet the standards for business conduct and dress required by UNiTAB.
The Agent will not engage in the Agency any employee who, in the opinion of UNiTAB, fails to respond to counselling from UNiTAB’s Regional Manager.
27 Clause 21 of the agency agreement enjoined the respondent not to permit anyone other than herself and her employees to use or to operate the appellant’s machines, plant and equipment, and required her, at the termination of the agreement, to deliver up to the appellant all of its property which was entrusted to her or in her possession.
28 Clause 22 of the agency agreement provided that the respondent would be liable to the appellant for the losses which it sustained as the result of the acts, errors or omissions of the respondent or her employees.
29 Clause 23 of the agency agreement was in the following terms:
23. The Agent or any other person under its control shall not engage in any business or occupation of the said premises other than the business of UNiTAB, except such business or businesses as may be approved in writing by UNiTAB.
30 Clause 24 of the agency agreement contained a prohibition upon the respondent divulging, communicating or disclosing any information acquired by her in the conduct of the agency.
31 Clause 25 of the agency agreement was in the following terms:
25. The Agent shall display such regulations or rules of UNiTAB and such other notices as UNiTAB may require. No other notice of any kind may be displayed in or upon the premises without prior consent in writing from UNiTAB.
32 By cl 26 of the agency agreement, the respondent acknowledged that neither she nor any of her employees held a bookmaker’s licence or a bookmaker’s clerk’s licence pursuant to the applicable Queensland legislation. The respondent was, and her employees were, prohibited from acting as a bookmaker, a bookmaker’s clerk, a bookmaker’s agent or a bookmaker’s remote clerk during the term of the agreement.
33 Clause 27 of the agency agreement dealt with the subject of “remuneration”, and was as follows:
27. UNiTAB shall pay to the Agent for acting as its Agent in the terms required by this Agreement a consideration calculated in accordance with a scale of fees determined by UNiTAB from time to time. The parties acknowledge that the scale of fees applicable at the date of this Agreement is attached hereto as Appendix 3.
Appendix 3 provided for the respondent to be paid a commission calculated as a percentage of the weekly turnover of the agency. For a turnover of up to $40,000, the figure was 2.45%. This decreased stepwise to a turnover of $80,000, at which the figure was 1.25%. These levels of turnover would have yielded commission payments of $980 and $1,000 respectively. There was, however, a “minimum commission payment” of $900 per week, applicable only when the agency was “trading normally”, or when it was closed for more than 10 days for “resite or refurbishment”. Appendix 3 provided also for the respondent to be paid in respect of other specified transactions or operations, such as by way of “ticket handling fees”, “FootyTAB Commission” and “Sportsbet Commission”.
34 Clause 27A of the agency agreement dealt with the subject of goods and services tax (“GST”). In part, the clause read as follows:
27A.1 UNiTAB to Pay GST on Supplies by Agent
If GST is imposed on or in connection with any supply of goods, services and/or other things by the Agent under this Agreement, the following provisions will apply:
(a) Unless the prices specified in this Agreement are expressly stated to be inclusive of GST, they shall be deemed to be wholly exclusive of any GST, and the Agent may charge and recover from UNiTAB the amount of any GST imposed in addition to (and, subject to the provisions of this clause 27A.1, at the same time and in the same manner as) the amounts payable to the Agent under the other provisions of this Agreement;
(b) UNiTAB may issue Recipient Created Tax Invoices in respect of such supplies;
(c) The Agent shall not issue Tax Invoices in respect of such supplies;
(d) The Agent hereby acknowledges that it is registered for GST as at the date of signing this document and has supplied its Australian Business Number;
(e) The Agent shall immediately notify UNiTAB in writing if it ceases to be registered for GST;
(f) UNiTAB hereby acknowledges that it is registered for GST and;
(g) UNiTAB shall immediately notify the Agent in writing if it ceases to be registered for GST.
27A.2 Agent to Pay GST on Supplies by UNiTAB
If GST is imposed on or in connection with any supply of goods, services and/or other things by UNiTAB under this Agreement, then unless the prices specified in this Agreement are expressly stated to be inclusive of GST, they shall be deemed to be wholly exclusive of any GST, and UNiTAB may charge and recover from the Agent the amount of any GST imposed in addition to (and, subject to the provisions of this clause, at the same time and in the same manner as) the amounts payable to UNiTAB under the other provisions of this Agreement.
35 Other provisions of cl 27A required each of the appellant and the respondent to “review” the price of supplies made by her or it to the other if there should be a reduction in the costs of making the supplies concerned.
36 Clause 28 of the agency agreement dealt with the termination of the agreement. The appellant was entitled to terminate the appointment of the respondent “at any time … without prior notice and without assigning any reason for such termination”. The respondent could terminate her own appointment upon the giving of three calendar months’ notice in writing to the appellant.
37 The remaining provisions of the agency agreement, cll 30 and 31, do not require comment in the present context.
38 As was pointed out by the primary Judge, beyond stating that she would “process transactions relating to the business of [the appellant]”, the agency agreement did not specify the duties that the respondent would undertake in the operation of the agency. His Honour held it to be uncontroversial, however, that the respondent was to conduct a “shopfront” for the appellant, selling its betting and wagering products to the public. In doing so, his Honour held, the respondent was not merely performing “a clerical role selling bets and wagering contracts for [the appellant]”. Her role extended “to ensuring the smooth operation of the agency and making sure that it was open at relevant times and was adequately staffed.” Beyond that, more controversially in the submission of the appellant, the primary Judge did not accept that the running of the agency required “business acumen” on the respondent’s part. His Honour found that “a certain level of managerial expertise was required”, but that the work was not “particularly complex”, nor was there “an extensive number of persons to be managed by [the respondent]”. His Honour accepted the appellant’s case that the respondent was “engaged to manage and operate a business”, but posed for himself “the real question”, namely, “whose business was she operating?”
39 The primary Judge accepted the respondent’s evidence that the appellant selected the premises of the agency and conducted dealings with the landlord, that it paid the rent, that it supplied the necessary computer equipment, that it supplied and paid for data connections, that it supplied the telephones (while passing on the charges to the agency operator), that it provided all television screens, race broadcasting equipment, furniture and fittings for the agency, that it either supplied or approved the signage for the agency and that it determined the minimum hours the agency operated. This last aspect was, of course, covered by cl 7 of the agency agreement.
40 On the other hand, his Honour’s observation that the agency agreement “reposed in [the appellant] the ability to determine the number of hours per week that [the respondent] had to attend the agency” was not, with respect, correct. The agreement itself required the respondent to be in attendance for at least 32 hours each week, but cl 9 permitted her to absent herself for a period in excess of one week if she first gave the required details to the appellant in writing. Although there was a certain tension between cll 8 and 9 in these respects, ultimately counsel for the respondent accepted that cl 8 was subject to cl 9, and that the respondent could be absent, even without the leave of the appellant, if she had provided the details referred to. Her absence, of course, had no impact on the hours during which she was required to keep the agency open for business.
41 His Honour held, and it could scarcely be doubted, that the respondent’s place of work was determined by the appellant. That was, of course, inherent in the nature of the relationship itself: the respondent’s appointment was to operate the Logan Central agency. But his Honour’s observation was also valid in the sense that, necessarily, most of the the work which the respondent did for the appellant could only be done on the appellant’s premises, using the appellant’s furniture, equipment and systems. Save for what his Honour described as “some administrative tasks in the nature of accounting”, the respondent’s work could only be performed at that workplace. In this sense, the respondent “was not free to operate from whatever premises she chose”. Neither was it suggested that she “could simply make her services available to other betting shops as part of her business”.
42 The respondent gave evidence, and the primary Judge accepted, that her duties included unlocking the premises at the start of each day, turning on “the systems”, selling the bet types for which the system provided, and banking the takings. His Honour accepted evidence given on behalf of the appellant that the respondent was also responsible for creating a marketing plan, running local promotions, engaging with customers, handling customer complaints, monitoring customer behaviour, ensuring responsible service of gaming/wagering and complying with the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth).
43 The primary Judge found that the respondent had little flexibility in the way she operated the agency. Indeed, the appellant employed regional managers to “assist”, and to “advise”, those like the respondent in the running of their agencies. His Honour took the view that, in truth, “the regional manager’s role was to ensure that the agencies were conducted in a way that was acceptable to [the appellant].” By way of example of the appellant’s control over the way that the respondent operated the agency, his Honour referred to an occasion when the respondent had expanded her operation to include the sale of food. That was unacceptable to the appellant, and the respondent was required to desist from the practice, for the reason that it did not fit with the image which the appellant wished to cultivate and to project to the public.
44 Clause 5 of the agency agreement appeared to make it the appellant’s responsibility to provide the items and systems there referred to. There was, however, evidence that the appellant levied a charge on the respondent, based on the turnover of the agency, for the use of them, or of many of them (there being some uncertainty in the evidence as to the range of items that were covered by this charge). For example, in the financial year to 30 June 2011, the respondent was charged $4,510 for Sky Channel, $177 for Foxtel and $6,590 for the use of unspecified equipment, plus GST in each case. Additionally to the items mentioned in cl 5, the respondent, at her own initiative and, it seems, at her own expense, supplied facilities for the comfort of those working on the premises, such as a refrigerator and tea and coffee-making facilities.
45 In the submission of the appellant on appeal, a significant feature of the respondent’s situation was that she was responsible for the staffing of the agency. For most of the week, she would operate the agency by herself. On Saturdays, she would usually roster two additional members of staff, and on Thursdays, Sundays and some Friday nights, she would roster one additional member of staff. She did not work on Mondays and Tuesdays (taking them as what she described as “a delayed weekend”), and would roster a member of staff to replace her on those days. These staff members were employees of the respondent. In engaging them, she did not act merely on behalf of the appellant. Their terms of engagement were, subject to their agreement and compliance with the law, determined by the respondent, such as whether they were casual or part-time (as it happened, they were casual), how much they were paid and their hours of work. The respondent undertook the conventional responsibilities of an employer in this situation, including the withholding of “pay-as-you-go” (“PAYG”) tax instalments and the forwarding of them to the Australian Taxation Office (“the ATO”).
46 The position with respect to payroll tax was complicated by a change in the practice of the Queensland Office of State Revenue in 2008. Before the change, the respondent was grouped with other agents, with the result that they were all required to pay payroll tax, whereas the payroll of any one of them considered individually, and certainly of the respondent herself, would have fallen below the threshold at which payroll tax became payable under the Payroll Tax Act 1971 (Qld). At that time, the respondent paid payroll tax on the wages paid to her employees, and was reimbursed by the appellant. In 2008, the Office of State Revenue discontinued the grouping practice, with the result that the respondent was no longer required to pay payroll tax.
47 The respondent was an “active” member of the Queensland UNiTAB Agents Association (“the association”) from November 2008, and became the Vice-President of the association from November 2010. The primary Judge found that the association caused an enterprise agreement, the UNiTAB Agents Association (Sharon Morrow) Enterprise Bargaining - Certified Agreement 2008, to be reached with the relevant employees’ association and registered in the Queensland Industrial Relations Commission. Although not specifically mentioned by his Honour, this was, presumably an agreement between the respondent as employer and those who were employed by her at the time: see Industrial Relations Act 1999 (Qld), s 142. Although this agreement was made before the term of the agency agreement, it was implicit in his Honour’s observation that it continued to apply to the respondent’s employees during that term.
48 As mentioned above, the respondent was registered for GST purposes. Each quarter, she lodged a Business Activity Statement (“BAS”) which set out, amongst other things, her “total sales” for the quarter, her capital and non-capital purchases, and the amount of PAYG instalments which she had deducted from payments made to her employees. In evidence before the primary Judge were the respondent’s BAS returns from the quarter ended 30 September 2004 to the quarter ended 30 September 2011. Over the four quarters to, and including, that ended 30 September 2011, the respondent returned a total of $236,255 in sales, $54,312 in capital purchases, $17,996 in non-capital purchases and $7,522 in PAYG instalments. She remitted $21,491 in respect of the GST which she had collected, against which she claimed $6,410 by way of input tax credits. The time taken to complete these four BAS returns, including the time taken to collect any information, was estimated by the respondent at 30, 18, 22 and 20 hours respectively.
49 The respondent’s tax returns for the six years 2005-2010 were in evidence. In the return for the year ended 30 June 2010, the respondent completed the section headed “Business and Professional Items”. As her “main business or professional activity”, the respondent gave “TAB Agency Operation”. She declared a “total business income” of $232,934 and claimed total expenses of $159,114. Her “net income … from business” was $73,820.
50 The respondent’s position may be compared to that of agency managers who were expressly engaged by the appellant as employees. They were paid about $47,000 pa, in addition to which, presumably, they received paid leave and the other conventional entitlements of employees. By contrast, as noted above, the respondent’s net income was $73,820 in the year to 30 June 2010. Because her income was related to the takings of the agency rather than to her own hours of work, any leave taken by the respondent would not, presumably, have affected her gross remuneration. But she would, again presumably, have had to fund the cost of a replacement to operate the agency during the period of her absence. On the other hand, as the primary Judge pointed out, the agency agreement did make provision for the respondent to receive certain minimum payments if the agency were closed for resite or refurbishment.
51 No PAYG instalments were deducted by the appellant from the commission payments which it made to the respondent.
52 As the primary Judge pointed out, the respondent’s operation of the agency did not result in her having any goodwill in the relevant business. She had no asset that she might sell if she chose to leave the agency. She could do so, of course, only by giving three months’ notice. By contrast, the appellant might have terminated her appointment at any time, and for any reason, without notice. In these respects, his Honour was correct to observe that the respondent’s position was “entirely akin to that of an employee who has no right to sell the job to the next incumbent”.
53 Towards the start of the primary Judge’s reasons, his Honour identified the law to be applied to the determination of the question whether a particular person was an employee or an independent contractor as follows:
The most recent authorities, Stevens v Brodribb Sawmilling Co Pty Ltd … (1985) 160 CLR 16, Hollis v Vabu Pty Ltd (2001) [207 CLR 21] and ACE Insurance Ltd v Trifunovski (2013) … 209 FCR 146, make the following propositions clear:
a. the characterisation of the relationship by the parties, whilst of some weight, is not determinative of the proper characterisation of that relationship;
b. no one matter is likely to be determinative of whether a particular relationship between two people is that of employer and employee. Some matters will attract more weight in a particular case than those same factors will attract in another case; and
c. the “test”, if there is one, is said to be multi-factorial. All of the relevant circumstances need to be weighed and the totality of the relationship identified.
54 At the point where his Honour came to apply the law to the facts and circumstances before him, however, he extracted the following “tests” from the judgment of Bromberg J in On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 214 FCR 82, 123 :
Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a “practical matter”:
(i) is the person performing the work [of] an entrepreneur who owns and operates a business; and
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.
55 The primary Judge opined that a “genuine” independent contractor providing personal services would typically be “autonomous rather than subservient in its decision-making”. It would be “financially self-reliant rather than economically dependent upon the business of another”. It would be “chasing profit (that is a return on risk) rather than simply a payment for the time, skill and effort provided”.
56 In what was “a finely balanced case”, his Honour identified the indicators pointing in the direction of the respondent having been an independent contractor as the characterisation of the relationship by the agency agreement itself, something which was clearly understood by the respondent; the respondent’s accounting to the ATO; the respondent’s employment of others; the respondent’s membership of, and active participation in, an employers’ association; the respondent’s remuneration by way of recipient-created tax invoices; the respondent’s Australian Business Number; the respondent’s lodgement of quarterly BASs; and the respondent’s payment of GST on supplies made to the appellant by her.
57 The primary Judge also identified various “strong indicators pointing towards an employee-employer relationship”, namely, the tight control which the appellant exercised over the conduct of the agency; the provision of premises by the appellant; the provision of plant, equipment and other consumables (except for staff amenities) by the appellant; the prohibition on the respondent engaging in the provision of services to other like businesses such as bookmakers; the tight control which the appellant exercised over “the identity of the persons that [the respondent] could employ as staff”; the appellant’s reservation to itself of the right to approve any proposed leave of absence; the requirement for the respondent to purchase “the relevant supplies” from the appellant; the reimbursement, at least for some period, of the respondent by the appellant for the payment of payroll tax; the inability of the respondent to make autonomous decisions about the conduct of betting services provided through the agency, and to make autonomous decisions about the conduct of the agency business generally; and the requirement for promotional activities undertaken by the respondent to be approved by the appellant.
58 Overall, his Honour was left with the impression that the respondent was “clearly working in the [appellant’s] business rather than in a business of her own”. His Honour noted that, whilst success in the agency meant an increase in the respondent’s net income, “that was only ever a sharing of the profits of the agency”. His Honour concluded:
The income of the agency belonged to the [appellant], subject to its obligation to pay commission to [the respondent] according to the scales set out in the agency agreement. Remunerating employees by way of commission is not uncommon.
I appreciate the [appellant’s] argument that [the respondent] was operating a business in her own right as a TAB Agent, and that business of providing skill and labour in operating the agency was fundamentally different to the business of the [appellant], a business of betting and wagering. Nonetheless, the measure of control provided for in the contract between the parties, together with the evidence of the way in which that control was exercised, as I have set out above, leads me to conclude that [the respondent] was in fact an employee of the [appellant]. That is so even though [the respondent] was herself an employer of others in the agency.
59 In its Notice of Appeal dated 24 July 2014, the appellant’s first ground was that the primary Judge was in error to have found that the respondent was its employee. The appellant’s second ground amounted to a ten-item litany of factual errors said to have been made by his Honour, but the appeal was not conducted by reference to those complaints. As conducted, the appeal was confined to the first ground, in support of which the appellant submitted that his Honour had applied the wrong test, particularly to the extent to which he relied upon the judgment of Bromberg J in On Call.
60 As mentioned above, one of the authorities to which his Honour referred was ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532. That was the judgment at first instance in that case. About three months after the primary Judge in the present case reserved his judgment, but still more than 17 months before his Honour handed down that judgment, the decision of the Full Court in ACE Insurance was published: ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146. In the reasons of the Full Court, Buchanan J, with whom Lander and Robertson JJ agreed, undertook a comprehensive review of the authorities in the relevant area of the law. On the present appeal, it was not suggested that that review, or the authorities considered in it, cast any doubt upon the high-level articulation of the correct approach offered by the primary Judge, referred to in para 53 above. For that reason at least, the present is no occasion to traverse again the ground covered by Buchanan J in ACE Insurance. But there is one dimension of the problem which has become controversial here, it being submitted on behalf of the appellant that, although the primary Judge identified the correct approach, at the point when he came to decide the case before him he departed from it.
61 The area of the primary Judge’s reasons which is said to be problematic is that set out in para 54 above. As will be seen, his Honour ultimately saw the question as one which involved, in effect, a dichotomy between a situation in which the putative employee works in the business of another and a situation in which he or she conducts his or her own business as an “entrepreneur”. To view the matter through a prism of this kind is, however, to deflect attention from the central question, whether the person concerned is an employee or not; or, perhaps, as Mason J put it in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 28, to “shift the focus of attention” to a no less problematic question. As Buchanan J put it in ACE Insurance, “[w]orking in the business of another is not inconsistent with working in a business of one’s own” (209 FCR 146, 182 ). On the other hand, if the putative employee’s circumstances exhibit the characteristics of a business, that will undoubtedly be a matter proper to be taken into account in determining the question at hand, so long as sight is not lost of the question itself. The question is not whether the person is an entrepreneur: it is whether he or she is an employee.
62 After we had reserved on this appeal, the Full Court handed down judgment in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd  FCAFC 37, in which the question arose whether two serviced apartment housekeepers, who had traditionally been employed by the respondent in that case, were no longer so employed after arrangements were put in place for their services to be supplied by way of an intermediary. The cause of action arose under s 357 of the FW Act, in which respect it was held that the Ombudsman’s case failed because the actual representation which was made in the facts of the case did not satisfy the terms of the section. But North and Bromberg JJ (with the agreement of Barker J) gave detailed attention to the question whether the cleaners were employees or independent contractors, in the course of which their Honours held that the answer to any such question would be yielded by first answering the question whether the workers in question were engaged in the conduct of their own businesses. While I would pay the greatest respect to this recent, considered, judgment of the Full Court, the fact is that their Honours’ observations were, relevantly, by way of obiter. Furthermore, the present case is, on the facts, very different from Quest.
63 In the present case, the respondent was, on any view, working in the business of the appellant. Operating in the appellant’s specialised premises, and using the appellant’s equipment, methods and systems as she was, the respondent had little scope to vary the way she worked. Insofar as her actual work was concerned, there would have been little to distinguish her position from that of an employee, such as the employed managers who, it seems, worked for the appellant in some agencies. The primary Judge was justified in pointing to a number of indicia which suggested that the relationship in question was that of employer and employee.
64 Notwithstanding that, the situation before his Honour involved a number of features that, in combination, compel the conclusion that the respondent was not the employee of the appellant.
65 First (and this may be little more than laying the groundwork for the other features mentioned below), in the agency agreement itself it was provided that the respondent was an independent contractor. This was said to be an “acknowledge[ment]”, rather than a provision of contractual force in its own right, reflecting, no doubt, the parties’ appreciation that the reality of the relationship established by the agreement would determine whether the respondent was in truth an independent contractor, and that any attempt by them to place a “label” on the relationship would be of little importance. But their understanding of the position may, and in the present case would, be significant to the extent that it reflected what was the reality of the relationship: see Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385, 389-390.
66 It is important to distinguish this case from one in which an acknowledgement of the kind contained in cl 2 of the agency agreement does not reflect the real intentions of the putative employee. In this case, the agency agreement was the fourth in a line of similarly-worded agreements. There can be no suggestion that the respondent did not clearly appreciate the distinction between being an employee and being an independent contractor. As noted below, she structured her own arrangements conformably with the circumstances of a business operator. By the time she executed the agency agreement, she knew exactly what was proposed, and intended that her relationship with the appellant should be as acknowledged in cl 2.
67 Secondly, although the respondent might, in her own work in the premises of the agency, have been acting just as an employee would act in like circumstances, the truth of the matter is that she was not engaged, or paid, for her own work alone. She was engaged to operate the agency, and was paid by reference to the value of the business transacted there. She was not required to perform all the work herself, but was free to employ others to assist her or, on occasion, to work in place of her. The respondent’s active membership of the employers’ association, and her execution of an enterprise agreement with the relevant trade union covering her employees, are factors which stand outside the terms of the agency agreement itself, of course, but they are strongly consistent with the position for which the appellant contended, namely, that the respondent was engaged to operate the agency with the assistance of such employees as may have been necessary.
68 Thirdly, and relatedly, in the employment of staff the respondent was no mere agent for the appellant, or conduit for the transmission of benefits and obligations as between the appellant and the staff whom the respondent employed. The respondent employed the staff, and undertook, as principal, the conventional obligations of the employer. For example, the respondent paid the required workers’ compensation premiums. The only exception to what appears to have been a consistent pattern in this regard was the situation in respect of payroll tax obligations, where the respondent was, during the period when she was grouped with other agents, reimbursed by the appellant. That situation came about by reason of an administrative practice of the Office of State Revenue, and did not reflect on the reality of the relationship between the appellant and the respondent.
69 Fourthly, the respondent’s net personal income was only about a third of the gross remuneration which she received for operating the agency (to take the 2010 figures referred to at para 49 above). It is sometimes said that the essence of an employment relationship is the work and skill of the person concerned. The greater the divergence between the overall remuneration of the person and his or her personal net income from the arrangement, the harder it will usually be to conclude that the essence of what was being paid for was the work and skill of that person. The respondent’s main outlay, of course, was by way of wages for her employees, and to that extent this consideration merges with the second one referred to above, but the degree of the divergence apparent on the facts of the present case is nonetheless a striking feature of the respondent’s circumstances.
70 Fifthly, in contemporary Australia, it is impossible to ignore, and difficult to depreciate, the taxation implications of the mode of operation which parties to a relationship have voluntarily adopted. In the past, the deduction of what are now called PAYG instalments was always treated, uncontroversially, as indicative of an intention that the relationship in question was one of employment. To any suggestion that the absence of such instalments tended to point to the relationship being one of principal and independent contractor, it was often rejoined that such an argument was circular, in the sense that a consequence of the relationship being one of employment was, under legislation, that such instalments had to be deducted. In contemporary times, however, there are legislative markers on both sides, as it were. It is no longer just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor, and his or her compliance with the regulatory requirements which apply to the provision of services by persons who are not employees, that point quite strongly against the relationship being characterised in this way. These observations are made, of course, in the context of the present case, where there is no suggestion that the respondent’s participation in the GST system did not reflect her own conscious, well-informed, intentions.
71 There was nothing tokenistic about the respondent’s participation in the GST system. Not only did she collect, and forward to the ATO, GST in the amounts referred to in para 48 above, but, over the course of a year, she invested about 90 hours of her own, or of her accountant’s, time in the preparation of the relevant BAS returns and the collection of the necessary information: the equivalent of more than two weeks’ work for a normal wage-earner. There would be something conspicuously at odds with the reality of the respondent’s own actions, and the assumptions which those actions implied, were it now to be held that the respondent’s participation in the GST system was undertaken because of her own mistaken characterisation of her relationship with the appellant.
72 For the reasons stated above, I take the view that the primary Judge’s conclusion that the agency agreement established a relationship of employer and employee cannot be sustained. The appeal must be upheld, and the primary Judge’s order under s 117 of the FW Act set aside.
The Cross Appeal – Section 340 of the FW Act
73 Before the Federal Circuit Court, the respondent relied on the following provisions of the FW Act:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action
Adverse action is taken by …
an employer against an employee
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer
a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor’s prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor.
361 Reason for action to be presumed unless proved otherwise
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
74 The respondent’s case was that her employment, or her engagement as an independent contractor, was terminated on 10 November 2011 because she had, she exercised or she proposed to exercise one or more of the workplace rights identified in paras (a), (b) and (c) of s 341(1), or to prevent her from exercising one or more of these rights. It will be noted, relevantly to the facts of the present case, that each of these rights (save only that arising under subpara (ii) of para (c)) was linked to a “workplace law” (there being no suggestion by the respondent that any “workplace instrument” or any “order made by an industrial body” was brought into play in her case).
75 At a high level, the workplace law on which the respondent relied was the Superannuation Guarantee (Administration) Act 1992 (Cth) (“the SGA Act”). Her case was that she was, and that other agents were, entitled to have superannuation contributions made by the appellant for her, and their, benefits. Under s 341(1)(a) of the FW Act, it was said that the respondent was entitled to the benefit of the SGA Act. Under s 341(1)(b), in combination with s 340(1)(a)(iii), it was said that she proposed to participate in a process or proceedings under the SGA Act. Under s 341(1)(c)(i), it was said that she proposed to make a complaint or inquiry to the ATO, being a body which had the capacity to seek compliance with the SGA Act. She also identified the rights referred to in para (b) and subpara (c)(i) of s 341(1) as those which it had been the object of the appellant to prevent her from exercising, for the purposes of para (b) of s 340(1). Additionally, the respondent relied on s 341(1)(c)(ii), but, in the light of the conclusion reached in the previous section of these reasons, nothing further needs to be said about that.
76 Another dimension of the respondent’s case below should also be mentioned at this stage. It related specifically to the rights referred to in para (b), and subpara (c)(i), of s 341(1). Her primary case was that she proposed to participate in a process or proceedings, and/or to make a complaint or inquiry, in relation to her own entitlements under the SGA Act. But she also advanced an alternative case that, as a member of the executive of the association, she did those things with intended reference to the entitlements of agents of the appellant generally.
77 Before the Federal Circuit Court, the appellant conceded that, in respect of the entitlements of employees, the SGA Act was a workplace law within the meaning of the FW Act. Having held that the respondent was indeed an employee, the primary Judge proceeded to consider her case under s 340 on that basis. His Honour was not required to consider the appellant’s submission, which it repeated on appeal, that, with respect to the entitlements of independent contractors, the SGA Act was not a workplace law within the meaning of the FW Act.
78 Against this fairly complex forensic background, and before considering the merits of the cross-appeal, it will be convenient to turn to the facts which provided the subject matter of this compartment of the case in the Federal Circuit Court, and the terms in which the primary Judge rejected the respondent’s case under s 340. What follows is based on his Honour’s findings.
79 The respondent was a member of the executive committee of the association. She attended what the primary Judge described as “a national conference of the [a]ssociation” in May 2011 as a Queensland delegate. At the conference, members from the various States were apparently discussing different options for improving membership in the association. In the course of that discussion, the respondent was tasked with finding out if the association could obtain insurance or superannuation discounts for its members. For this purpose, she held discussions with BT Financial Group, the result of which was that she was led to believe that she should be receiving superannuation contributions from the appellant. The respondent made a report to this effect to the council of the association. According to the evidence of the respondent, the council of the association wanted to pursue the matter.
80 At about the same time, some other agents contracted to the appellant reported that their accountants had advised them that they too should be receiving superannuation contributions from the appellant. The respondent also understood that the corresponding association in Victoria was looking at the issue as well. The respondent considered whether she should, as an individual, find out if there was a right to superannuation entitlements, including whether a ruling should be sought from the ATO, or whether an approach should be made to the appellant to complain about its failure to make superannuation contributions. She was reluctant to pursue the claim personally, as she did not want to get into trouble with the appellant.
81 In about October 2011, the respondent was put in touch with a tax expert, who advised her about the contract which she had with the appellant, and told her how to make an application to the ATO for an appropriate ruling on the superannuation contribution issue. At about the same time, the respondent met with a former TAB agent who was prepared to take the superannuation contribution issue up with the ATO. She introduced the former agent to the tax expert. That was the last of any relevant activity undertaken by the respondent in relation to the superannuation issue.
82 In late October 2011, the Chief Executive of the appellant, Barrie Fletton, was contacted by one of the appellant’s regional managers, informing him that she had been contacted by a former TAB agent named Clayton regarding an approach that had been made indirectly to her (Clayton) by the respondent. Mr Fletton spoke directly to Ms Clayton, and was told that the respondent was attempting to encourage her to sue the appellant for superannuation. He then contacted the president of the association, and advised him that he wished to meet with the respondent. Such a meeting, at which the president as well as a member of the staff of the appellant were also present, took place on 10 November 2011. In his reasons, the primary Judge set out the thrust of the evidence given about the meeting by three of those who had been present, but his Honour did not make any findings of his own on the subject.
83 Notwithstanding that omission, it seems tolerably uncontroversial that, in some way and in some terms, Mr Fletton raised with the respondent her having initiated discussions with at least one former agent about the prospect of someone taking legal action against the appellant to enforce its obligation to make superannuation contributions. The respondent denied attempting to get Ms Clayton to take legal action against the appellant, but Mr Fletton did not accept that denial. The respondent was given the opportunity to resign, but, after conferring with the president of the association, declined to do so. Her engagement was thereupon terminated. This was confirmed by a letter, dated 10 November 2011, which she received from the appellant the following day.
84 The primary Judge held that it was clear that the respondent had a number of workplace rights within the meaning of s 341 of the FW Act. She was entitled to the benefit of a workplace law, namely the SGA Act, she was able to initiate, or to participate in, a process or proceedings under that law, and she was able to make a complaint or inquiry, both to the appellant and to the ATO, to seek compliance with that law. However, the respondent had not in fact made such a complaint or inquiry. His Honour continued:
Although [the respondent] had taken some advice about those matters before her termination, she had not at that point acted upon that advice. Indeed, her clear evidence is that she deliberately chose not to make the respondent aware of her inquiries for fear of reprisals from [the appellant].
Accordingly, the primary Judge held that the respondent had not established that she exercised a workplace right.
85 His Honour then turned to the question whether the respondent had proposed to exercise a workplace right. He said:
To the extent that she proposed to exercise her workplace right to pursue a complaint or inquiry about her superannuation (and thereby engaged s 341(1)(a)(iii) of the [FW] Act), there is no evidence that [the respondent] informed [the appellant] or anyone on its behalf about that. Indeed, it was her evidence that she deliberately kept her intention to pursue the issue of superannuation for her from [the appellant]. In those circumstances, [the respondent] cannot make out her case inasmuch as it relies upon her entitlement to pursue those matters on her own behalf.
(His Honour’s emphasis)
It is clear that, in the first sentence of this passage, his Honour intended to refer to s 340(1)(a)(iii) of the FW Act.
86 The primary Judge then turned to so much of the respondent’s case as involved the contention that she “exercised a workplace right in that her inquiries and actions undertaken as part of the executive of the [association], and specifically her inquiries of the former agent Ms Clayton, should be construed such that [his Honour] should be satisfied that [the respondent] was participating in a process or proceeding under a workplace law” (his Honour’s emphasis) for the purposes of s 341(1)(b) of the FW Act. His Honour rejected that contention in the following terms:
I reject her submissions about that because there is no evidence that Ms Clayton, the former agent approached by [the respondent], ever undertook any process or proceedings concerning superannuation contributions from [the appellant]. At best the evidence reveals that [the respondent] spoke to her about that and that Ms Clayton made contact with the “tax expert” identified by [the respondent] to her. There is no evidence that there was any process or proceedings embarked upon by Ms Clayton, or anyone else, in which [the respondent] participated. Moreover, apart from the meeting with the “tax expert” there is no evidence that Ms Clayton proposed exercising her workplace right to make a complaint or inquiry about superannuation contributions from [the appellant] (which I shall assume for the purposes of these reasons she had).
87 Given those findings, the primary Judge held that s 361(1) of the FW Act (the reverse onus provision) was not engaged in the case before him. He held that the respondent did not “establish the necessary facts upon which one might conclude that the adverse action taken against her was potentially for a reason proscribed by the [FW] Act”.
88 Notwithstanding that the primary Judge had reached this point in the resolution of the issues before him, his Honour proceeded to make findings about the reason, or reasons, for which the respondent’s engagement was terminated. In doing so, he applied s 361 of the FW Act.
89 In this part of the case, the primary Judge extracted a number of passages from the evidence of Mr Fletton. His Honour said that Mr Fletton’s evidence was that he understood that the respondent wanted (here quoting Mr Fletton) to “have agents running their own businesses deemed to be entitled to benefit from superannuation contributions. ... I considered the conduct of [the respondent] to be unprofessional and dishonourable and not what I thought to be appropriate for a TattsBet Agent.” Mr Fletton said that Ms Clayton “was a highly respected TattsBet Agent for many years and I was not happy that she had been approached and placed in a potentially awkward position by [the respondent] in this way.” Mr Fletton said that there had been other previous occasions where the respondent’s conduct had been brought to his attention and caused him concern. He said that this was not the first time that he had discussed the respondent’s behaviour with her. He said that the respondent’s prior history of unacceptable behaviour as an agent made him decide that he needed to speak with her because he could no longer “trust her as a TattsBet Agent.”
90 The primary Judge mentioned the issues that had previously been raised with the respondent, namely, her “failure to follow reasonable directions and her failure to comply with the [a]gency [a]greement” (ie her selling of food at the agency, which “detracted from the retail image that TattsBet was promoting through its electronic office format”); complaints regarding the respondent’s customer service standards; her not having complied with directions with respect to operating procedures for having separate cash floats for each wagering terminal; and her failure to keep the agency in a respectable and acceptable state of cleanliness. Mr Fletton said, in his evidence, that, when these issues were raised with the respondent by her regional manager, she was “generally dismissive and unco-operative”.
91 The primary Judge concluded with the following passage from Mr Fletton’s affidavit:
I objected to the underhand manner in which [the respondent] had gone about trying to involve others in … her plans to take action against TattsBet and the impact this conduct had on others such as Ms McQueen and Ms Clayton. The issue of superannuation for agents had never been raised with me by [the respondent] or any other [a]gent. In fact, at a meeting on the 10th of November 2011, Mr Ron Gray, president of the … [a]ssociation advised me that the [a]ssociation was thinking about coming to speak to me about this issue. At that time I told him that I thought this would be an appropriate way to address such an issue and that I would make a time available to speak with him about it.
92 On the strength of the evidence referred to above, the primary Judge said that he was satisfied that the real reason for the termination of the respondent’s agreement was the reason ascribed by Mr Fletton in his evidence, namely, that “he had lost trust and confidence in [the respondent] because of what he saw as the surreptitious way she went about … investigating the superannuation issue”. His Honour found that Mr Fletton’s state of mind was “informed by the information he had been given about [the respondent’s] contact with Ms Clayton”. Whether or what Ms Clayton had said was true, his Honour was “satisfied that the information, coupled with the other matters referred to by Mr Fletton in his evidence led him to conclude that the agency agreement should be terminated”. Mr Fletton saw the respondent and her conduct as “underhanded and divisive”, describing her as a “pest”. His Honour accepted Mr Fletton’s evidence that the information that he received about the respondent’s approaches to Ms Clayton was “the last straw”.
93 The respondent’s first ground of cross-appeal is as follows:
1. The learned trial judge erred in dismissing the Respondent's application alleging adverse action in breach of the Respondent's general protections under the Fair Work Act 2009 (the Act) in that:
(a) the learned trial judge has failed to consider, or adequately consider, whether the Appellant terminated its contract with the Respondent because the Respondent proposed to exercise workplace rights under section 340(1)(a)(iii) of the Act;
(b) the learned trial judge has failed to consider, or adequately consider, whether the Appellant terminated its contract with the Respondent in order to prevent the exercise of workplace rights under section 340(2) of the Act;
(c) the learned trial judge erred in paragraphs 96 and 98, as there was no need for evidence of any process or proceedings having actually been pursued by the Respondent, or by the former agent Ms Clayton, if the Appellant has acted because the Respondent proposed to participate in such a process or proceedings, or in order to prevent such a process or proceeding being taken;
(d) the learned trial judge erred in paragraph 97, in limiting the issue to examining whether the Respondent proposed to pursue a complaint about “her” superannuation, as the legislation does not require such a restricted approach, and in any event, the evidence supported the conclusion that the Respondent proposed to pursue such a complaint;
(e) the learned trial judge erred in paragraph 99, in that the statutory presumption under section 361 was engaged, and he has misdirected himself in requiring the Respondent to “establish the necessary facts upon which one might conclude that the adverse action taken against her was potentially for a reason proscribed by the Fair Work Act”;
(f) the learned trial judge erred in his findings at paragraph 100, as:
(i) an acceptance of the evidence of Mr Fletton that the reason for the termination was the “surreptitious way she went about investigating the superannuation issue” was not credible and against the weight of the evidence;
(ii) the acceptance of the evidence referred to in (i) did not prevent the exercise, or potential exercise, of workplace rights being a reason for the termination of employment; and
(iii) accepting the Appellant’s evidence of the Respondent being considered a “pest”, and her conduct as “underhanded and divisive”, supported rather than rebutted the Respondent’s claim that her services were terminated because of, or in order to prevent, the exercise of workplace rights;
94 This ground was advanced primarily in the context of the finding of the Federal Circuit Court that the respondent was the employee of the appellant. If that finding is reversed as I think it should be, the respondent’s ground of cross-appeal, viewed in that context, could not be sustained. However, two issues would remain. The first is the respondent’s contention that s 340 applied to her no less as an independent contractor than as an employee (because of the terms of item 3 in the table in s 342(1)). The second is the respondent’s contention that, even if she were herself an independent contractor, to the extent that she did, or proposed to do, the things mentioned in s 341(1)(b) and subpara (c)(i) as a member of the executive of the association, or to the extent that the appellant acted to prevent her from doing those things, it would have been sufficient for the person to whom the workplace law applied to be an employee.
95 In relation to the first issue, as mentioned above, it was the submission of the appellant that the SGA Act was not a “workplace law” to the extent that it dealt with the situation of independent contractors. For reasons which will appear, it is necessary to give close attention to the legislative provisions with which this submission was concerned.
96 By s 5 of the Superannuation Guarantee Charge Act 1992 (Cth) (“the SGC Act”), “[c]harge” was imposed on “any superannuation guarantee shortfall of an employer for a quarter”. By s 6 of the SGC Act, the amount of the charge was “an amount equal to the amount of the shortfall”. By s 17 of the SGA Act, an employer’s superannuation guarantee shortfall was calculated by reference to the total of the employer’s “individual superannuation guarantee shortfalls” for the quarter. Shortfalls of the latter kind arose under the SGA Act where an employer did not contribute, into a superannuation fund of the employee, an amount calculated by reference to the “charge percentage”. Subject to presently immaterial exceptions, in December 2011 the charge percentage, set out in s 19(2) of the SGA Act, was 9.
97 If a charge payment were made by an employer in relation to a particular employee, either the amount of that payment, or the employee’s entitlement, whichever were the lesser, was the “shortfall component” within the meaning of s 64A of the SGA Act. The Commissioner was then required, under s 65 of the SGA Act, to pay the shortfall component to, in the conventional case, a complying superannuation fund “that is held in the name of the employee and that is determined by the Commissioner to belong to the employee”.
98 Thus there were two ways in which these legislative provisions could have been beneficial to a particular employee: first, by using the inducement of avoiding the payment of a tax to procure the employer to make superannuation contributions into a complying fund, and secondly, where no such contributions were made, by entitling the employee to have a corresponding amount paid into his or her superannuation fund under s 65 of the SGA Act.
99 In the present case, none of this is controversial in relation to the circumstances of an employee in the common law sense of the word. However, s 12(3) of the SGA Act contained the following deeming provision:
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.
Even if the respondent were not the employee of the appellant, she would have been entitled to the benefit of the provisions referred to above if the agency agreement were wholly or principally for her labour.
100 In the respondent’s alternative case under Pt 3-1 of the FW Act (ie that which relied on the application of that Part to the circumstances of an “independent contractor”), it was treated as self-evident that, if she were not an employee as understood at common law, she was within the extended definition of the word in s 12(3) of the SGA Act. But no specific attention was given to that proposition in the submissions of either party. For my own part, I would not regard it as self-evident at all. As mentioned above, the respondent’s own net personal income represented only about a third of the gross receipts of the Logan Central agency. Without the benefit of the assistance of counsel on the connotation of the word “principally” in s 12(3), I would not be prepared to assume, favourably for the respondent, that the agency agreement was a contract of a kind referred to in that subsection.
101 If it were such a contract, the question then would be whether it followed that the respondent was entitled to the benefit of a “workplace law” within the meaning of Pt 3-1 of the FW Act. The relevant definition was as follows:
workplace law means:
(a) this Act; or
(b) the [Fair Work (Registered Organisations) Act 2009 (Cth)]; or
(c) the Independent Contractors Act 2006; or
(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
By s 11 of the FW Act, the terms “employer” and “employee” in this definition had their ordinary meanings.
102 The presently critical aspect of para (d) of the definition of “workplace law” is the term “law of the Commonwealth”. In Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466, 497, Isaacs J said:
[T]he “law” is not the piece of parchment or paper, nor is it the letters and words and figures printed upon the material. It consists of the “rule” resolved upon and adopted by the legislative organ of the community as that which is to be observed, positively and negatively, by action or inaction according to the tenor of the rule adopted. Constitutions may prescribe, and do prescribe, how that rule shall be arrived at and how evidenced. But “the law” is essentially the rule itself, and not the material evidence of it.
See also Momcilovic v The Queen (2011) 245 CLR 1, 106-107 - per Gummow J.
103 Was the respondent entitled to the benefit of a law of the Commonwealth, in the sense exposed above, that regulated the relationships between employers and employees? Assuming for the moment that the agency agreement answered the description in s 12(3) of the SGA Act, the answer must be no. If the respondent was entitled to anything under the SGA Act, that entitlement arose under the provisions of that Act that extended its operation beyond the circumstances of employees strictly so called. Those provisions did not regulate the relationships between employers and employees.
104 In the result, I would hold that the respondent, considered as someone who was not an employee in the common law sense, was not entitled to the benefit of so much of the SGA Act as was a “workplace law” within the meaning of s 341(1)(a) of the FW Act. I have two reasons for that conclusion, either of which would be sufficient: first, that it has not been established that the agency agreement was a contract of a kind referred to in s 12(3) of the SGA Act, and secondly, that the provisions of the SGA Act that entitled non-employees to superannuation were not a “workplace law” within the meaning of Pt 3-1 of the FW Act.
105 Turning next to s 341(1)(b) of the FW Act, there could be no realistic suggestion that the respondent’s mere ability to participate in a process or proceedings of the kind referred to, without more, was a reason for the appellant taking adverse action against her. Neither is there any suggestion that the respondent in fact initiated, or participated, in a process or proceedings under the SGA Act. The primary Judge held that she had not and, factually, that finding was not challenged on the cross-appeal. Rather, the respondent’s complaint relates to so much of the reasons of the primary Judge as dealt with her allegation that she had proposed to act in this way: see s 340(1)(a)(iii).
106 Conventionally, his Honour ought first to have made a finding on whether the respondent did, or did not, propose to initiate, or to participate in, a process or proceedings of the kind postulated; and, if a finding were made that there had been such a proposal, his Honour ought to have moved to a consideration of the question whether the respondent was dismissed because of it. Regrettably, the first of these stages of deliberation appears to have fallen between the cracks. The primary Judge made no finding of primary fact as to whether the respondent proposed to initiate a process or proceedings under the SGA Act.
107 Although the respondent could not succeed under s 341(1)(a) of the FW Act, that conclusion does not put her out of court under para (b) of the subsection. That paragraph is not dependent on the existence of an entitlement. It depends, rather, upon the person’s proposal to initiate a process or proceedings under a workplace law. It seems to have been accepted below that, in point of fact, the SGA Act did provide scope for a person in the position of the respondent to initiate a process or proceedings to have determined, one way or the other, whether she was entitled to superannuation. In such a setting, the process or proceedings which the respondent proposed to initiate, or to participate in, would, putatively, have been based on her contention that she was an employee. In the view I take, that contention would have been unmeritorious, but the SGA Act was a “workplace law” as defined for the purposes of the respondent’s proposal. She would have been seeking to establish an entitlement under legislation which was a workplace law in relevant respects. The operation of s 341(1)(b) is not limited to proposals to initiate processes or proceedings which would lead to the upholding of the right or entitlement sought to be vindicated.
108 Because the primary Judge did not make a finding on the question whether the respondent proposed to initiate a process or proceeding under the SGA Act, his Honour never reached the point of considering whether the appellant had discharged the onus of proving that the respondent was not dismissed because of such a proposal.
109 That omission might be of less consequence if his Honour had made a finding under s 341(1)(c)(i) of the FW Act on the question whether the respondent proposed to make a complaint or inquiry to the ATO. However, his Honour’s reasons in this area were problematic too. As noted above, he said that “to the extent that” the respondent did have such a proposal, there was no evidence that she informed the appellant about it. Putting it this way was, with respect, unsatisfactory at two levels. First, his Honour ought to have made a finding as to whether or not the respondent had the proposal referred to. By using the formula “[t]o the extent that”, his Honour effectively opted out of this part of his fact finding task. Secondly, on the assumption that the respondent did have such a proposal, her evidentiary case was complete. It was not for her to prove that she informed the appellant about it. It was for the appellant to prove that the respondent had not been dismissed because of the proposal, one possible way of doing so being to persuade his Honour that it knew nothing of the proposal. But that point was never reached.
110 In other respects under s 341(1)(c)(i), I would apply the same analysis as I have above in relation to para (b) of the subsection. The SGA Act was a workplace law to the extent that it was the respondent’s proposal to make a complaint or inquiry to the ATO based on her contention that she was an employee.
111 As the respondent submitted in her cross-appeal, the primary Judge said nothing in his reasons about her case under s 340(1)(b) of the FW Act, that is, her case that her contract was terminated in order to prevent her exercising a workplace right. Grammatically, the only “workplace rights” to which s 340(1)(b) could apply in the context of the facts of this case were those referred to in paras (b) and (c) of s 341(1). The criticisms which I have expressed of the primary Judge’s reasons under those paragraphs in conjunction with subpara (a)(iii) of s 340(1) apply equally in the context of para (b) of that subsection.
112 For the above reasons, I take the view that there was a miscarriage of justice in relation to so much of the respondent’s case below as alleged that she had been dismissed because she proposed to initiate, or to participate in, a process or proceedings under the SGA Act in relation to her own entitlement to superannuation; because she proposed to make a complaint or inquiry to the ATO, being a body that had the capacity under the SGA Act to enforce compliance with that Act; and to prevent her from initiating or participating in such a process or proceedings and from making such a complaint or inquiry.
113 In this compartment of the case, it is next necessary to consider the way the appellant conducted its defence to the cross-appeal in the Full Court. It “conceded” subpara (e) of the respondent’s first ground of cross-appeal. In para 99 of his reasons, the primary Judge said that s 361(1) of the FW Act was not “engaged” because the respondent did not “establish the necessary facts upon which one might conclude that the adverse action taken against her was potentially for a reason proscribed” by that Act.
114 In a supplementary outline filed the day before the hearing of the appeal, counsel for the appellant foreshadowed the following submission:
[The appellant] will concede on appeal that [the respondent] alleged at trial that the termination of the agency agreement was because [the respondent] proposed to exercise a workplace right in relation to any entitlement she believed she had in respect of superannuation. On this basis, [the appellant] concedes that s.361 of the Fair Work Act 2009 (Cth) was invoked and that the trial Judge erred in finding to the contrary. …[The appellant] concedes ground l(e) of the cross-appeal.
When it came time for that concession to be made at the hearing of the appeal, there was some confusion about the matter.
115 Counsel first conceded that “under s 361 she only has to allege it to engage it”. When the court inquired whether this meant, for example, that, if someone was alleging that they were dismissed because they were a union member, they would not have to prove they were in fact a union member, counsel said that the point probably did not “arise” because it was clear that the respondent “considered she had an entitlement to super or at least was pursuing that”. But counsel went on to make it clear that there was no concession that the respondent proposed to make a complaint or inquiry to the ATO: it was conceded only that that was what the respondent alleged. Counsel confirmed that, even if the respondent never proposed to make such a complaint or inquiry, the fact that she had alleged it cast the onus on the appellant to disprove the proposition that the respondent’s proposal was the reason why the adverse action was taken.
116 When the court inquired whether this understanding of the operation of s 361(1) meant that any person at all could file an application making an allegation as to the reason for the taking of adverse action, whereupon the onus would switch to the taker of the action to displace the presumption, counsel responded:
Well, in terms of does the allegation come in a complete vacuum or is there a proper factual matrix where – underpins it. And in this case what was underpinning it was that the evidence was she did pursue super in wanting a former agent to take up the issue of super entitlement, not just for the purpose of the benefit of the former agent but also for herself. That was the evidence. Now, it appears what his Honour has done is – so that wasn’t enough. She had to say she proposed to take this up at the ATO but in our submission you don’t require that level of detail.
Later in the hearing, counsel provided further clarification of the appellant’s position, if that be an appropriate way of putting it, as follows:
We conceded that she had given evidence that she proposed – she wanted to go to the ATO. We did not concede that simply by speaking to the former agent she has invoked a process. And then she has then alleged, in her application, “You terminated me because I proposed to exercise a workplace right.”
117 In the result, I consider that the cross-appeal should be resolved on the basis that the appellant conceded (1) the factual matter that the respondent had established that she proposed to make a complaint or inquiry to the ATO, being a body which had the capacity under the SGA Act to seek compliance with that Act, and (2) the legal question that, upon the respondent alleging that her contract was terminated because she had such a proposal, s 361(1) cast the onus of proving that the termination did not take place because of that proposal on to the appellant.
118 Although it involves some generosity of approach favourably to the appellant, I do not think it has been conceded that the respondent had established that she proposed to initiate, or to participate in, a process or proceedings under the SGA Act. That was part of the respondent’s case below, and, as mentioned above, was not the subject of any finding by the primary Judge.
119 The much larger question whether s 361(1) of the FW Act operates to reverse the onus of proof upon nothing more than the making of an allegation, without the maker of the allegation being under any obligation first to establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action, was not the subject of anything more than a cursory reference in the submissions made on behalf of either party in the cross-appeal. Although the appellant’s supplementary outline appears to involve a concession that s 361(1) does operate in this way, that involved, with respect to counsel, a very superficial reading of the provision which took account neither of the long history of corresponding provisions in previous legislation nor of the many first-instance judgments of this court in which it has been treated as uncontroversial that the party making an allegation that adverse action was taken “because” of a particular circumstance needs to establish the existence of the circumstance as an objective fact: see Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 167 -; Bahonko v Sterjov (2007) 167 IR 43, 75-77 -; Lever v Australian Nuclear Science and Technology Organisation  FCA 1251 at ; Police Federation of Australia v Nixon (2008) 168 FCR 340, 360-361 ; Rojas v Esselte Australia Pty Limited (No 2) (2008) 177 IR 306, 321-322 -; Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22, 27-28 ; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526, 578-579 -; Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3)  FCA 697 at ; Stephens v Australian Postal Corporation  FCA 732 at . I consider that we would be diverting the law from its proper course were we to accept a submission along the lines of that apparently contained in the appellant’s supplementary outline, even if expressed as a concession.
120 The jurisprudence to which I have referred is relevant, of course, to a case in which para (a) of s 340(1) of the FW Act is relied on. Different considerations may apply in a case run under para (b), which was a new provision introduced by the FW Act itself.
121 Returning to the primary Judge’s treatment of the respondent’s case in the Federal Circuit Court, as I understand it, the appellant wished to be understood as contending that, even if his Honour had found that the respondent did make the proposals referred to, the result could not have been different, because he held that the respondent was dismissed because, and only because, Mr Fletton had lost trust and confidence in her because of the surreptitious way that she went about investigating the superannuation issue. On the cross-appeal, the respondent submitted that this involved a distinction without a difference, and that the appellant must, if Mr Fletton’s evidence were accepted, be held to have acted against her for reasons which infringed s 340 of the FW Act.
122 The respondent’s case in this area raises issues of the kind that were dealt with by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 2) (2012) 248 CLR 549 and in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 314 ALR 1. There are, however, two reasons why the cross-appeal should not be resolved by reference to those issues (to the extent, that is, that the respondent’s case remains alive in its reliance on s 341(1)(b) and (c)). First, without the necessary findings of fact as to what the respondent proposed to do, the provisional conclusions of the primary Judge on the appellant’s reason or reasons for acting are beside the point. The reality is that there has been no such finding as would exclude the existence of reasons which related to any relevant proposals which the respondent may have made. Secondly, because they were based very substantially upon the primary Judge’s assessment of the reliability of the oral evidence, particularly in relation to the credit of Mr Fletton, the value of his Honour’s findings with respect to the reason or reasons why the respondent was dismissed was, with respect, compromised by the inordinate period which passed after he reserved his judgment and before he delivered his reasons, and by other related matters of concern. I shall return to this aspect in a later section of these reasons.
123 That leaves the second of the two issues which I mentioned in para 94 above. In the Federal Circuit Court, in the alternative to her argument that the SGA Act, as such, was a workplace law apropos her own circumstances, the respondent argued that so much of s 341(1)(b) of the FW Act as referred to the ability to participate in a process was “wide enough to include encouragement or support of another person actually bringing a claim”. This was in the context of a submission that the respondent “had the right to obtain a ruling on the question of whether TAB agents should receive superannuation contributions”. The “agents” here referred to were, presumptively, others engaged by the appellant on contracts similar to the respondent’s own. In relation to these people, therefore, the respondent’s case was the same as her case in relation to herself. On the case run by the respondent, those other agents could not be treated as the employees of the appellant, or as having an entitlement to the benefit of a workplace law.
124 There was, therefore, no suggestion on the part of the respondent that she was acting, or proposing to act, in the interests of employees of the appellant other than agents in positions similar to her own. It was persons in those positions whose entitlement to superannuation had become of interest to the association. Further, the case was not conducted, either in the Federal Circuit Court or on appeal, by reference to any suggestion that the respondent’s circumstances, or the agency agreement, differed in any material respect from those applicable in the case of other contractor agents of the appellant. There are indications in the evidence, and in the reasons of the primary Judge, that some of the appellant’s agencies were conducted by people who were on any view in its employ, but, whatever the respondent did, or proposed to do, of a quality that might attract the operation of s 340, it did not relate to such employees. Indeed, the case involved no suggestion that the appellant was not complying with its conventional superannuation obligations in relation to persons who were uncontroversially in its employ.
125 With respect to s 340(1)(a)(iii) and (b), in conjunction with paras (b) and subpara (c)(i) of s 341(1) of the FW Act, whether the respondent was acting, proposing to act, or being prevented from acting in the interests of other agents, rather than in her own interests alone, is a distinction without a difference. The primary Judge ought to have made findings of fact in this area, of course, but his Honour’s failure to do so does not, in my view, affect the quality of the respondent’s case on the cross-appeal, once she succeeds, as I consider she should, under these provisions of the legislation in relation to her own circumstances.
The Cross-Appeal – s 357 of the FW Act
126 It is convenient to consider next the respondent’s third ground of cross-appeal:
The learned trial judge erred in that, having correctly directed himself in paragraph 3(c) of the need to consider a claim for “sham contracting” in breach of section 357 of the Act, he does not further deal with that claim in the Judgment.
It seems that the respondent did advance a claim under s 357 of the FW Act, and it is clear that the Federal Circuit Court did not deal with that claim.
127 Section 357 provided as follows:
357 Misrepresenting employment as independent contracting arrangement
(1) A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) Subsection (1) does not apply if the employer proves that, when the representation was made, the employer:
(a) did not know; and
(b) was not reckless as to whether;
the contract was a contract of employment rather than a contract for services.
128 Since I take the view that the respondent was not in truth the employee of the appellant, I would hold that the factual premise of her claim under s 357 falls away. I would, therefore, reject the claim.
The Cross-Appeal – Delay in the delivery of judgment
129 The respondent’s second ground of cross-appeal was as follows:
The Judgment is rendered unsafe, and should be set aside accordingly, by reason of the delay between the hearing of the proceeding, on 10 October 2012, and the delivery of Judgment on 4 July 2014 (with written reasons being published on 7 July 2014), particularly given the learned trial judge’s apparent acceptance of the evidence of Mr Fletton as to the reasons for termination, where such a conclusion on the credibility of the evidence given at trial needed to be made promptly.
Regrettably, there is considerable substance in the complaint which the respondent makes about the delay in the delivery of judgment, and in the publication of reasons, at first instance in the present case.
130 On the appeal, the respondent caused to be read her own affidavit of 3 February 2015. She said that, on 7 February 2014, more than 15 months after the filing of the last post-hearing submission in the case, she sent an email to the President of the Bar Association, Mr Peter Davis, requesting his assistance in addressing the delay in the resolution of her case. There followed an exchange of correspondence with Mr Davis in which the respondent clarified when final submissions had been filed. It was not until 11 June 2014 that the respondent received an email from the Bar Association, attaching a letter from the court advising that judgment was anticipated by the end of June 2014. The respondent was next advised by the Federal Circuit Court that judgment would be delivered on 26 June 2014, but, on that date, the matter was adjourned to 4 July 2014. On that day, the primary Judge delivered judgment, and his Honour’s written reasons were available on 7 July 2014.
131 The principles which inform the decision of an appellate court to hold that excessive delay in the delivery of judgment at first instance in the case concerned has rendered that judgment unsafe were discussed at length by the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, 32-35 -. I would accept that, particularly where a transcript of the evidence at trial exists, mere delay need not justify a conclusion that the fact-finding process has miscarried. There are, however, additional circumstances which give rise to concern in the present case.
132 In Expectation, the Full Court said (140 FCR 17, 33 ):
The problem is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure — whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction.
In the present case, I can see no sign that the primary Judge sought to take the easiest path to the resolution of the disputes that were before him. To the contrary: his Honour gave careful attention to the appellant’s reasons for having taken adverse action against the respondent, notwithstanding that, on his findings, her case failed at an anterior stage. Nonetheless, the pressures to which the Full Court referred in Expectation appear to have been present here. The circumstances which surrounded the delivery of judgment bespeak an environment in which his Honour felt under considerable pressure to complete his reasons at the last minute.
133 Additionally, the omissions to which I have referred above, taken cumulatively, suggest that his Honour may not have given some issues in the case the attention which they deserved, notwithstanding the very long period during which he was reserved. Those arising under s 357 of the FW Act are an instance. His Honour’s failure to make the findings of fact that would be necessary for a proper determination of so much of the respondent’s case as relied on s 340(1)(a)(iii) and (b) of the FW Act are another. On the cross-appeal, our attention was also drawn to a number of minor errors – typographical and proofing errors, for example – in his Honour’s reasons. While nothing would normally turn on such matters, in the circumstances of the present case it must be accepted that they provide some support for the respondent’s second ground.
134 The critical finding with respect to the appellant’s reason or reasons for taking adverse action turned substantially upon the credit which the primary Judge assigned to the evidence of Mr Fletton. Notwithstanding the existence of transcript, that finding was inevitably based upon his Honour’s observation of Mr Fletton as a witness, and upon the advantage which a trial Judge conventionally has in such a setting. In my view, there is a real risk that his Honour compromised his ability to use that advantage in the determination of Mr Fletton’s reasons for acting when he allowed such an inordinate period to elapse between the giving of the evidence and the making of the determination. When considered together with the matters referred to in paras 106-109 above, the result is that his Honour’s disposition of the respondent’s case under s 340(1)(a)(iii) and (b), linked to s 341(1)(b) and (c)(i), of the FW Act cannot stand.
135 That leaves the question of how this aspect of the cross-appeal should be dealt with in the orders to be made by the Full Court. The only orders in fact made by the primary Judge on 4 July 2014 related to the one aspect of the respondent’s case which his Honour upheld (that arising under s 117 of the FW Act). His Honour did not take the conventional (and, in my view, necessary) step of dismissing those aspects of her case upon which she had been unsuccessful. Notwithstanding that omission, his Honour’s reasons involved a dismissal of the respondent’s case under s 340 of the FW Act. That result should be set aside, but only to the extent that it related to so much of the respondent’s case as alleged adverse action within item 3 in the table in s 342(1) of the FW Act and as relied on the provisions of ss 340 and 341 referred to at the end of the previous paragraph. In relevant respects, the matter should be remitted to the Federal Circuit Court to be heard and determined conformably with these reasons.
The respondent’s case under the Contractors Act
136 The only remaining issue relates to the respondent’s claim under the Contractors Act, with which the primary Judge did not deal because of his Honour’s holding that she was not an independent contractor. It was submitted on behalf of the respondent that this should be referred back to the Federal Circuit Court for hearing and determination, in the light of the holding of the Full Court that she was an independent contractor. The appellant opposed such a course, contending that it was covered neither by the notice of cross-appeal nor by any notice of contention.
137 The difficulty with the position for which the appellant contends is that, relevantly to the point arising under the Contractors Act, the respondent did not meet the description of someone who wanted to appeal from the judgment of the Federal Circuit Court within the meaning of r 36.21 of the Federal Court Rules 2011 (Cth), and she did not contend that the judgment of that court should be affirmed on other grounds within the meaning of r 36.24. Rather, she was in the position of someone who ran a primary case and an alternative case, whose primary case was accepted and whose alternative case was not, therefore, dealt with.
138 A somewhat analogous situation had, it seems, arisen in the original facts which formed the basis of a claim of professional negligence which came before the court in H K Frost Holdings Pty Ltd (In Liquidation) v Darvall McCutcheon (A Firm)  FCA 570. A plaintiff had an action in contract and an alternative claim in breach of confidence. The contract claim succeeded, and the confidence claim was not dealt with. The defendant appealed against the judgment in contract. That appeal was upheld. The plaintiff had made no reference to the confidence claim during the running of the appeal. Finn J said (at ):
The breach of confidence claim, as I have noted, was not the subject of actual findings by O’Bryan J let alone of any order or judgment in its own right. As such, it was not itself an appropriate subject of appeal to the Full Court: see Landsal Pty Ltd v REI Building Society (1993) … 41 FCR 421; notwithstanding that, on the delivery of O’Bryan J's judgment in the proceeding, that claim ceased to have independent existence and merged in the judgment itself: cf Chamberlain v Deputy Commissioner of Taxation; [(1988) 164 CLR 502]. The setting aside of that judgment had the effect of restoring the breach of confidence claim to its original condition of an undecided claim: see MacIntosh v Lobel (1993) 30 NSWLR 441 at 459. It was a claim that Frost Holdings was entitled to have determined. Ordinarily such would occur in the Supreme Court before a single judge exercising the original jurisdiction of the Supreme Court. And in my view save in exceptional circumstances (eg possibly where the claim itself was an obvious abuse of process), a Full Court on setting aside judgment in such circumstances would as of course remit the matter to the trial judge to have the outstanding cause of action decided - if it was aware that the cause of action was still a live one. It clearly had inherent jurisdiction to remit.
139 The present case is clearly one in which the course referred to by Finn J should be followed. I would exercise the power to remit given by s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth).
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.
Dated: 11 May 2015
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 386 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
ALLSOP CJ, JESSUP AND WHITE JJ
11 MAY 2015
REASONS FOR JUDGMENT
140 I agree with the orders proposed by Jessup J and with his reasons. I also agree with the additional reasons provided by the Chief Justice.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice White.
Dated: 11 May 2015