Federal Court of Australia

Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    No order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM AND ANDERSON JJ:

introduction

1    On 9 February 2022, the High Court of Australia:

(a)    allowed the appeal in ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 96 ALJR 144; 398 ALR 603; 312 IR 74 (Jamsek HCA);

(b)    set aside the orders this Court made on 16 July 2020; and

(c)    remitted “the issues raised by the notice of cross-appeal” to this Court for determination in accordance with the reasons of the High Court.

2    The issues in the notice of cross-appeal were pleaded as follows:

The Court below should have held, in the alternative, that section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) applied to Mr Jamsek and Mr Whitby. In particular, the Court below should have held that at all material times after 1985 Mr Jamsek and Mr Whitby worked under contracts (including contracts inferred by conduct) that were wholly or principally for their labour within the meaning of section 12(3) of the SGA Act and thus were "employees" for the purpose of that Act.

3    In the original appeal, this Court did not consider it necessary to decide this issue because it found that Mr Jamsek and Mr Whitby (collectively, the Drivers) were employees in the ordinary sense: Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; (2020) 279 FCR 114 at [255] (Jamsek FCA) (with Perram, Wigney and Anderson JJ agreeing).

4    The respondent in this appeal on remit (ZG), appealed against the findings of this Court and made submissions to the High Court that the Drivers were not employees, but rather, were independent contractors. The Drivers cross-appealed, claiming that this Court should have held that the Drivers were employees within the extended meaning of s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act). The High Court allowed ZG’s appeal, holding that the Drivers were independent contractors and not employees. In its decision, the High Court declined to deal with the cross-appeal: Jamsek HCA at [75], with Kiefel CJ, Keane and Edelman JJ finding that:

The arguments advanced by the [Drivers] are not insubstantial. They cannot be dismissed out of hand. Acceptance of these arguments would have substantial consequences for the revenue. It would be inappropriate for [the High] Court to determine these issues in circumstances where the Commissioner of Taxation was not a party to the proceedings, and where the Full Court did not address these questions.

5    On 4 July 2022, Justice Perram joined the Commissioner of Taxation as a party to the remitted appeal.

6    The facts giving rise to this remitted appeal are set out in the previous judgments of the primary judge, this Court and the High Court.

7    It would serve no purpose to repeat those facts in this remitted appeal.

8    The only issue before this Court on the remitted appeal is: whether the primary trial judge was correct to find that the Drivers did not fall within the extended definition of “employee” pursuant to s 12(3) of the SGA Act: Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [214]-[221] (Trial Judgment).

9    Section 12 of the SGA Act defines an “employee” for the purposes of the compulsory superannuation scheme established by that Act. Section 12(1) provides:

12    Interpretation: employee, employer

(1)    Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (11):

(a)    expand the meaning of those terms; and

(b)    make particular provision to avoid doubt as to the status of certain persons.

10    The balance of s 12 of the SGA Act makes provision for particular types of workers and working arrangements, such as members of Parliament, company directors and statutory office holders. Relevant to this remitted appeal is s 12(3), which provides:

(3)    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.

the drivers’ submissions

11    The Drivers advanced the following submissions as to why the primary judge erred in finding that the Drivers were not “employees” within the meaning of s 12(3) of the SGA Act.

12    The Drivers submit that to find that a person is an “employee” under the extended definition in s12(3) of the SGA Act requires that:

(a)    there should be a “contract”;

(b)    the contract is wholly or principally “for” the labour of a person; and

(c)    the person must “work” under that contract.

See: Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118; 278 FCR 502 (Moffet) per Perram and Anderson JJ at [82] and Wigney J at [111] and [117].

13    The Drivers submit that the primary judge was wrong to find that there was no relevant contract because the “contract” (whether express or implied) was between the relevant partnerships and ZG: Trial Judgment at [219]. This was for two reasons. First, a partnership is not a separate legal entity - so the contract was directly with Mr Jamsek and Mr Whitby as well as others. Second, the text of s 12(3) does not require the contract to be made with the putative employee, either solely or otherwise. Rather, s 12(3) requires that “a person works under a contract…”. In this case, both Mr Jamsek and Mr Whitby worked “under” the relevant contracts which regulated their working activities including times of work, annual leave, rosters and rates of pay and the Drivers were paid for their labour on a per hour basis. By way of example, the Drivers’ 1993 contract (beginning from AB 298) provided the following:

(1)    At cl 2(g) – The contractors will “Not engage or use the services of a driver for the vehicle without prior and continuing approval of [ZG]. Such driver is to be correctly licensed, suitably dressed, and in all other respects entirely to the satisfaction of [ZG]”.

(2)    At cl 2(k) – The contractors will “Not offer his vehicle for sale with any guarantee of either continuity of work for [ZG], or implied acceptance by [ZG] of the purchaser”.

(3)    At cl 3 – “Each contractor is entitled to four weeks annual leave without pay. It is normally expected that each contractor will take at least two weeks over the January factory reduced output period. The leave dates to be determined on a roster basis which ensures that no more than two trucks are off at the same time.

...

More than two weeks’ annual leave at that time must be agreed between the contractor and [ZG]”.

(4)    At cl 7 – under the heading “Pay rates”, the pay package is based on a driver providing a truck of a certain capacity. As at 5 July 1993, the running rate is $34.33 per hour and a standing rate is $18.92 per hour. If the contractors have no work then a standing rate of pay per hour will be paid.

14    The 1998 contract and the 2001 contract had terms to a similar effect.

15    The Drivers submit that the terms of the 1993, 1998 and 2001 contracts make clear that from the perspective of the putative employer, ZG, the identity of the men who provided their labour to drive the trucks was important. Their trustworthiness as well as their personal characteristics (e.g. “correctly licensed” and “suitably dressed”) were important to ZG such that they could not be substituted without ZG’s prior approval. The Drivers submit that their identity was the most important aspect of their contracts. This was because they were the public face of ZG and they went out to its customers and delivered its goods. The contracts, in this way, were principally for the labour of Mr Jamsek and Mr Whitby.

16    The Drivers submit that the primary judge was also wrong to find that the contracts “were not principally” for the labour of Mr Jamsek and Mr Whitby because the contracts also provided for the equipment being the delivery vehicles: Trial Judgment at [220].

17    The Drivers submit s 12(3) is intended to apply even where a contract may have multiple purposes. The Drivers submit that the Court’s role is to determine in such cases whether the contract, viewed from the perspective of the putative employer, is “principally” for the labour of the person working under that contract: Moffet at [83]-[85].

18    The Drivers submit that “principally” ordinarily means chiefly or mainly: Commissioner of Taxation v Commonwealth Aluminium Corporation Limited (1980) 143 CLR 646 at 658-8 per Stephen, Mason and Wilson JJ; Gray v Mercantile Mutual Insurance (Australia) Limited (1994) SASR 154 at 159 per Olsson J (with whom Mohr J agreed) citing Lockhart J in Parker Pen (Australia) Pty Ltd v Export Development Grants Board (1983) 67 FLR 234 at 240-241; see also Cascade Brewery Co Pty Ltd v Commissioner of Taxation (2006) 153 FCR 11 at [25] per Sundberg J.

19    The Drivers submit that an analysis of the substantive facts must be undertaken to determine whether the purpose of the provision of “labour” is the chief or main purpose from the perspective of the putative employer.

20    The Drivers submit that prior to 1986 (the year in which Mr Jamsek and Mr Whitby’s employment was terminated and they entered into the new “independent contractor” arrangements), Mr Whitby had been earning “$410 a week” as an employee. The new arrangements in 1986 “provided a minimum of $600 per week” and this amount built up over time. The primary judge found that Mr Whitby understood that this increase was to cover the fact he was now providing a truck, at his expense, as well as his labour: Trial Judgment at [28] and [29]. The Drivers submit that the conclusion which the primary judge should have reached was that the chief or main component of the value of the contract should be measured by the metric of money (costs and pay rates), rather than labour. The Drivers submit that this was, in part, corroborated by the evidence of Mr Jamsek’s partnership accounts which demonstrated that “less than 50 percent of the applicants’ gross income was used to pay their expenses”: Trial Judgment at [220].

21    Insofar as ZG and the Commissioner of Taxation (Commissioner) contend that the Drivers’ construction of s 12(3) of the SGA Act, (which turns on the meaning and effect of the word “principally”) would lead to a result which could impact “any unincorporated service provider such as a plumber, surveyor, accounting firm, doctor or barrister”, the Drivers reject this contention for the following reasons.

22    First, the Drivers submit that s 12(11) of the SGA Act, which provides “a person who is paid to do work wholly or principally of a domestic or private nature for not more than 30 hours per week is not regarded as an employee in relation to that work” prima facie applies to nearly all unincorporated service providers. As a result, the Drivers submit that they are unlikely to ever be employees within the meaning of s 12(3) of the SGA Act.

23    Second, the Drivers submit that, in terms of the provision of professional services, the question of how s 12(3) should be construed would more likely turn upon the meaning of “labour” rather than the word “principally”. For example, does “labour” mean just manual labour or also intellectual labour?

24    Third, the Drivers submit that a contract with a professional to produce a given result such as producing a tax return or fixing a broken arm is unlikely to be “for” labour per se. The Drivers submit that it is also unlikely that contracts for the provision of professional services would fall within s 12(3) of the SGA Act.

25    The Drivers submit that, on any view, resolving the correct construction of the word “principally” in s 12(3) of the SGA Act in the context of this case will not open any “floodgates”.

26    Insofar as ZG and the Commissioner place reliance upon Neale v Atlas Products (1955) 94 CLR 419 (Neale), in relation to the right to delegate or employ other persons to undertake the labour such that the contract properly construed was not principally “for” the labour of a person. The Drivers submit that the text of the contract in Neale, set out at p 252, provided for an absolute right to delegate or employ other persons to provide the labour. Whereas in the present case, the contractual “right” was highly controlled and required ZG’s permission which had only been given once in 30 years. This served to emphasise that the contracts required the personal labour of Mr Jamsek and Mr Whitby unless ZG agreed otherwise. The Drivers further submit that insofar as the contracts provided for “sick days” and “annual leave” that could only relate to the Drivers personally.

Consideration

27    The only issue before this Court on the remitted appeal is whether the primary judge was correct to find that Mr Jamsek and Mr Whitby did not fall within the extended definition of “employee” for the purposes of s 12(3) of the SGA Act: Trial Judgment at [214]-[221].

28    For the reasons that follow, the primary judge was correct to find that Mr Jamsek and Mr Whitby were not “employees” within the meaning of s 12(3) of the SGA Act. As a consequence, the appeal to this Court, as remitted, should be dismissed.

29    This Court in Moffet (Perram and Anderson JJ at [82] and Wigney J at [111] and [117]) held that s 12(3) has three elements, these are:

(a)    that there should be a “contract”;

(b)    which is wholly or principally “for” the labour of a person; and

(c)    that the person must “work” under that contract”.

30    We will now deal with these elements below.

the “contract” element not satisfied

31    In On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 214 FCR 82 (On Call), Bromberg J held at [309] that s 12(3) of the SGA Act requires a worker be a “party to the contract”. Bromberg J observed that s 12(3) provides that if a person works under a contract of a certain kind, “the person is an employee of the other party to the contract” (emphasis added). The words “other party to the contract” show that s 12(3) contemplates the relevant contract as having two sides to the contract with the person performing the work being the first party and the client being the “other party”.

32    On its proper construction, the first element of s 12(3), (i.e. that there should be a “contract”) requires a bilateral exchange of promises of labour and payment between two sides of the contract. On one side of the contract, a promise to provide labour and on the other side of the contract, a promise to make payment. There is no requirement for a bilateral contract in the literal sense of having only two named parties to the contract. When there is a bilateral exchange of promises, then the word “other” serves in its natural meaning to mean the party on the other side of the contract, in this case, the putative employer. This construction of s 12(3) is consistent with Moffet. In Moffet Dr Moffet fell within s 12(3) of the SGA Act in respect of his work as a dentist under a tripartite service agreement to which the corporate trustee of the Moffet Family Trust (Immediate Dental Care Pty Ltd) was also a party. There were three parties to the service agreement but it was clear that there were only two sides to the contract. On the one side, there was the paying entity, the employing entity, and the recipient of the services. On the other side of the contract, there was the individual worker and his service company which was the trustee of the Moffet Family Trust: Moffet at 504 [2]. This bilateral exchange of promises of labour and payment between two sides of a contract rather than a contract having only two named parties also prevents the superannuation guarantee regime being circumvented by the simple device of forming a contract which names more than two parties.

33    We accept the submission of the Commissioner that s 12(3) only has application where the putative “employee” is an identified natural person who is a party to the contract in their individual capacity, rather than in any other capacity such as a partner or trustee of a personal service trust. The actual language of s 12(3) suggests that it operates only when an individual, (i.e. a natural person) in that capacity, works under a contract. The ordinary meaning of the phrase “works under a contract” and the word “labour” each point to an individual worker in their individual capacity. The concepts of “works under a contract” and “labour” are concepts of personal exertion and personal effort: JMC Pty Ltd v Commissioner of Taxation [2022] FCA 750 at [189] (Wigney J).

34    This also accords with the legislative intent evident in the Senate Select Committee’s Second Report on the Superannuation Guarantee (Administration) Bill 1992 (Cth) at [2.9] p 147 (Committee Report), otherwise the word “other” in the phrase “other party to the contract” in s 12(3) has no work to do.

35    The Committee Report also observed at [2.9] p 147: “Accordingly, sub-clause 12(3) would apply only where the contract, either expressly or impliedly, required the work to be done by the party to the contract” (emphasis added). Use of the word “only” makes clear Parliament’s intention at the time of enactment was that s 12(3) would only apply when the worker was a party to the contract. It is a clear manifestation of Parliament’s intent, and is consistent with the natural meaning of the text of the provision.

36    Section 12(3) is not satisfied where a contract is properly characterised as being for the provision of a result and not for labour: Neale at 425; World Book (Australia) Pty Ltd v Commissioner of Taxation (FCT) (1992) 27 NSWLR 377 at 382, 385-386; JMC Pty Ltd v Commissioner of Taxation [2022] FCA 750 at [31], [195]; Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 96 ATC 4898 at 4903, special leave refused: Federal Commissioner of Taxation v Vabu Pty Ltd (1997) 35 ATR 340; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Hollis v Vabu) at 48 [68], although no s 12(3) issue arose there, see Hollis v Vabu at 31 [20].

37    That s 12(3) only has application where the putative “employee” is an identified natural person who is a party to the contract in their individual capacity is further reinforced by the combined operation of s 11(1)(ba) and s 19(1) of the SGA Act. This is also made clear by the purpose of the superannuation guarantee regime, which is to provide for adequate living standards in retirement for natural persons, individual workers and employees. The SGA Act and the extrinsic materials including the Committee Report are replete with references to that objective.

38    Section 11(1)(ba) of the SGA Act provides:

Payments under a contract referred to in subsection 12(3) that are made in respect of the labour of the person working under the contract.”

39    Section 19(1) of the SGA Act provides:

An employer’s individual superannuation guarantee shortfall for an employee for a quarter is the amount worked out using the formula …”

40    Reading ss 11(1)(ba) and (19)(1) together discloses that s 12(3) is only capable of operating where: (a) an identified natural person (the Worker) is a party to a contract in their individual capacity; (b) the Worker works under the contract; and (c) the party on the other side of the contract makes payments to the Worker in respect of their labour under the contract.

41    The requirement that the Worker be a party to the contract in order for s 12(3) to apply is further supported by the need to avoid the anomalous and unintended outcome which could otherwise arise in triangular labour hire agreements where both the labour hire entity and the employer would become liable to a superannuation guarantee charge in respect of the same Worker’s labour.

42    Section 12(3) of the SGA Act only applies where the putative “employee” is a natural person who is a party to the contract in his or her individual capacity and does not apply to partnerships like those of Mr Jamsek and Mr Whitby. Plainly, a partnership is not a legal entity distinct from its members: Rose v Federal Commissioner of Taxation (1951) 84 CLR 118 at 124. A partnership cannot itself contract. Instead, where the partners entered into a contract on behalf of the partnership, each of the partners is a party to the contract in his or her capacity as a partner, along with other third parties to the contract.

43    The primary judge was correct to reject the Drivers’ contention that the proper construction of the contractual arrangements was that the parties were the “individual drivers”. The primary judge found that the Drivers were not parties in their individual or personal capacities but rather parties in their capacity as partners. Save for Mr Whitby’s contract after 2012, the Drivers were not parties in their individual or personal capacities. Instead, they were parties, with their wives, to their respective partnerships: Trial Judgment at [219]; Jamsek HCA per Gageler and Gleeson JJ at [89].

44    While at common law a partnership is not a separate legal entity, s 72(1) of the SGA Act alters that position for the purposes of the Act. It provides that “subject to this section, this Act applies as if a partnership were a legal person”.

45    Section 72 of the SGA Act renders a partnership “a legal person” for the purposes of treating it as being itself party to a contract as putative “employer” under s 12(3). However, s72, in our opinion, does not operate to deem a partnership to be “a legal person” for the purposes of being treated as a putative “employee” under s 12(3) of the SGA Act. This is because only an identified natural person, and not a partnership, can be an “employee” under any of the ss 12(2)-(11) of the SGA Act.

46    We accept the submissions of the Commissioner that the purpose of the superannuation regime, including the SGA Act, is to secure Australian workers with a minimum level of superannuation by the application of a charge to all employers in respect of their individual employees, through an efficient mechanism based on self-assessment and administration by employers and the Australian Taxation Office: Bluescope Steel (AIS) Pty Ltd v Australian Workers’ Union (2019) 270 FCR 359 at 373 [43] (Allsop CJ), 428 [258] (Collier J).

47    The interpretation of ss 12(3) and 72 of the SGA Act which best achieves that purpose is to be preferred: s 15AB(1) of the Acts Interpretation Act 1901 (Cth). In interpreting s 72, assistance is provided by the explanatory memorandum (EM) for, and the Committee Report on, the Superannuation Guarantee (Administration) Bill: see EM at p 63 and Committee Report at [2.9], pp 147-148.

48    We accept the Commissioner’s submission that the purpose of s 72 (read as a whole and aided by consideration of this extrinsic material), is to deal with the imposition of obligations, liabilities and penalties upon a partnership, as an employer. It does not extend to rendering a partnership a legal person for the purpose of treating it as a party to a contract, as a putative “employee”, under s 12(3).

the “for” element not satisfied

49    The second element of s 12(3), that is, whether the contract is wholly or principally “for” the labour of the person, is to be assessed from the perspective of the putative “employer” client: Moffet at [84]-[85] (Perram and Anderson JJ, Wigney J agreeing).

50    The question of what the contract was “for” from the perspective of the putative employer “is to be determined by reference to [the] terms” of the contract: Moffet at [86] (Perram and Anderson JJ).

51    A contract that “leaves the contractor free to do the work himself or to employ other persons to carry it out” is not “wholly or principally for the labour of the person”: Neale at 425. It does not matter that “the contractor has himself performed the bulk of the work under the contract or that it was the expectation of the parties that he would do so if, in truth, the contract did not create the relationship of master and servant”: Neale at 425.

52    A contract “whereby the contractor has undertaken to produce a given result” is also not “wholly or principally for the labour of the person”: Neale at 425. It follows from the above analysis, that “s 12(3) only applies in relation to contracts for the personal performance of work by the worker who is a party to the contract”: On Call at [309] per Bromberg J.

53    The primary judge found that the contracts between the Drivers and ZG were not wholly or principally for the labour of the Drivers: Trial Judgment at [20]. The primary judge was correct to make this finding for the reasons that follow.

54    First, the contracts were for the provision of labour and equipment being the trucks rather than being contracts whereby the Drivers undertook to produce a given result.

55    Second, the contracts required the partnerships to deliver goods subject to the company’s reasonable directions “as to what carriage was to be undertaken”: Jamsek HCA at [69] (Kiefel CJ, Keane and Edelman JJ).

56    Third, the fee structure under the contracts provided for payment based on hours worked, rather than items delivered, and an agreed 45 hour working week, “both parties accepting that the actual hours may vary due to workload fluctuations”: Jamsek FCA at 125-126 [57]; cll 7(a), 7(b), 7(c); Jamsek HCA at 151 [20] (Kiefel CJ, Keane and Edelman JJ). Remuneration by the hour points against the contracts being characterised as stipulating a given result. In addition, the contracts provided for payment for nine hours each working day, even though it was possible that less work would be required in a day. This is inconsistent with the contracts being for a result.

57    Fourth, the provision of the delivery service under the contracts required the use of a substantial capital asset, the trucks, for which the partnerships were wholly responsible. The partnerships took on all costs and risks associated with the trucks, and as part of this service, the partnerships were also responsible for maintaining insurance: Jamsek FCA at [46]; cl 2(c) of the 1993 contract extracted in Jamsek FCA at [57]. The other contracts were in materially identical terms: Jamsek FCA at [40], [60]-[63], [65]-[66] and [209].

58    Fifth, the partnerships were able to delegate the work to a substitute driver with agreement from ZG. As Gordon and Steward JJ observed in Jamsek HCA, the “performance of the contractual obligations was not personal to Mr Jamsek and Mr Whitby”: Jamsek HCA at [103] and cl 2(g) of the 1993 contract extracted in Jamsek FCA at [57].

59    Sixth, properly characterised, the benefit received by ZG under the contracts was not divided into two separate components, one being labour to drive and the other being the use of a truck. What ZG received was a single integrated benefit being a delivery service to be carried out by the partnership, using the partnership’s resources at the partnership’s risk and fully insured at the partnership expense. As Gageler and Gleeson JJ observed “what was contracted for, provided, and paid for, under the contract was the carriage of goods by means of a truck, not the truck and separately Mr Jamsek as individual to drive it”: Jamsek HCA at [90]; see also at [66] (Kiefel CJ, Keane and Edelman JJ).

60    Seventh, properly characterised, the benefit received by ZG was a delivery service which included a labour component which was not the “principal benefit”: Moffet at [102] (Perram and Anderson JJ, Wigney J agreeing).

61    The primary judge found that the contracts were not wholly or principally for the labour of the Drivers and, as a consequence, the second element of s 12(3) was not satisfied. The primary judge was correct to so find.

62    The Drivers, as applicants at trial, carried the onus of establishing that they fell within s 12(3) of the Act. That in turn required a quantitative valuation of the various components of the delivery service. The Drivers had to adduce, at trial, evidence of the market value of these components. The Drivers failed to do so. There is no evidence of the market value of hiring similar trucks on similarly favourable terms (i.e. that the owner would be responsible for all the risks and running costs of the trucks) at any point during the 30 year period of engagement. Nor was there evidence of the market cost of the labour involved in providing the delivery service during that period. Without such evidence, it is not possible to quantify the relevant value of the labour component of the delivery service compared to the other benefits that ZG obtained under the contracts. As a consequence, the Drivers have not discharged their onus of proving that any of the contracts were principally for the labour of either Driver.

63    Lastly, it should be noted that the Commissioner, on this remitted appeal, submitted that there may be one possible exception to making a finding that Mr Whitby, in particular, has not discharged the onus of proof that the 2010 contract was principally for his labour. The Commissioner outlined how Mr Whitby used a utility vehicle (ute) to make smaller deliveries in metropolitan areas where it was difficult to manoeuvre a large truck. The primary judge made findings about Mr Whitby’s purchase of the ute, which was initially for private use, but which was later used for making deliveries: Trial Judgment at [69]. The primary judge set out the terms of a letter that Mr Whitby wrote to the company, and at Trial Judgment at [70] – [72], his Honour made findings concerning the use of the ute after that letter was sent. It is clear that Mr Whitby continued to use the truck. In some cases a truck was still required because there were some items that could not be delivered with the ute: Trial Judgment [72]. In oral argument, the Commissioner submitted that the correct contractual analysis is that which was proposed by Gordon and Steward JJ, in Jamsek HCA at [108], where their Honours found that there was a new contract made between Mr Whitby and ZG in 2012, when the partnership dissolved, on terms that were otherwise identical to the 2008 contract and, because it was on the same terms, it contemplated that Mr Whitby could use a ute for some deliveries. The Commissioner submitted that in Hollis v Vabu, the High Court described how a consideration relevant to this assessment is whether the equipment or vehicle is specialist in nature. In Hollis v Vabu, the tool in question (a bicycle used by couriers) was not found to be a tool that is “inherently capable of use only for courier work”: Hollis v Vabu at [56]. The Commissioner’s submission, ultimately, was that Mr Whitby was required to use a truck for some deliveries and that the truck in this case, unlike the bicycle in Hollis v Vabu, should be characterised as specialist, large scale capital equipment, and therefore, the better view is that Mr Whitby has not discharged his onus of proving that the contract in that period was principally for his labour. We agree with the Commissioner’s ultimate submission on this point.

disposition

64    At the conclusion of the hearing before this Court on 30 November 2022, we requested the parties confer in relation to the form that this Court’s orders should take, in light of the High Court’s formulation of its remitter order. Counsel provided the Court with an agreed form of order in the event the appellants are successful and in the event that they are unsuccessful.

65    For the reasons given, the appellants have been unsuccessful. The parties agreed that the appropriate orders in that case should be:

(1)    Appeal dismissed.

(2)    No order as to costs.

66    We will make orders accordingly.

Associate:

Dated:    24 March 2023

REASONS FOR JUDGMENT

WIGNEY J:

67    Mr Martin Jamsek and Mr Robert Whitby drove delivery trucks for ZG Lighting Pty Ltd and its related companies or predecessors in business (collectively, ZG) for many years. They commenced proceedings against ZG claiming certain relief on the basis that, among other things, they were employees of ZG for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act). The primary judge found that Mr Jamsek and Mr Whitby were neither employees, within the ordinary meaning of that term, nor “employee[s]” within the expanded meaning in s 12(3) of the SGA Act. This Court, on appeal, held that, on the facts as found by the primary judge, Mr Jamsek and Mr Whitby were employees of ZG within the ordinary meaning of that term and allowed Mr Jamsek and Mr Whitby’s appeal. The Court did not decide whether the expanded meaning of “employee” in s 12(3) of the SGA Act applied to Mr Jamsek and Mr Whitby. The High Court of Australia allowed ZG’s appeal, found that Mr Jamsek and Mr Whitby were not employees within the ordinary meaning of that term and remitted the matter to this Court to determine, in effect, whether Mr Jamsek and Mr Whitby were ZG’s employees within the expanded meaning in s 12(3) of the SGA Act.

68    The central question for determination on this remittal is essentially whether, when Mr Jamsek and Mr Whitby drove trucks for ZG, they were, to adapt the words of s 12(3) of the SGA Act, performing “work” under contracts, the other party to which was ZG, which were “wholly or principally for [their] labour”.

69    The relevant facts are set out in detail in the judgment of the primary judge, the earlier judgment of the Full Court and the High Court judgment. They do not need to be rehearsed. The relevant statutory provisions and the respective submissions of the parties are detailed in the judgment of Perram and Anderson JJ, which I have had the benefit of reading in draft.

70    I agree with Perram and Anderson JJ, essentially for the reasons given by their Honours, that Mr Jamsek and Mr Whitby were not performing work under contracts with ZG which were wholly or principally for their labour, and therefore were not “employee[s]” within the expanded meaning in s 12(3) of the SGA Act. The expanded definition of “employee” did not apply to Mr Jamsek’s and Mr Whitby’s circumstances for two main reasons: first, because Mr Jamsek and Mr Whitby were not parties, in their individual capacities, to the contracts with ZG under which they worked; and, second, because, even if they were parties to the contracts in that capacity, the contracts were not in any event wholly or principally for their labour.

71    In relation to the first reason, I agree with Perram and Anderson JJ that, properly construed, s 12(3) of the SGA Act requires that the putative employee be both a natural person and a party, in their individual capacity, to the contract with the putative employer under which they worked. The requirement that the putative employee be a party to the contract with the putative employer essentially flows from the use of the words “other party to the contract” in s 12(3) of the SGA Act. The requirement that the putative employee be a natural person flows not only from the nature of the statutory scheme in the SGA Act, but also from the fact that the expressions “work” and “labour”, understood in the context in which they are used in the SGA Act, connote personal exertion by a natural person: cf JMC Pty Ltd v Commissioner of Taxation [2022] FCA 750 at [189].

72    The difficulty for Mr Jamsek and Mr Whitby is that the contracts under which they performed work for ZG were contracts in respect of which they were, at best, parties only in their capacity as partners in their respective partnerships; the other partners in those partnerships being their wives. It is clear that Mr Jamsek and Mr Whitby executed the relevant contracts for and on behalf of their partnerships and were not parties to the contracts in their individual capacities. When they performed work under the contracts, they did so for and on behalf of their partnerships.

73    I also agree with Perram and Anderson JJ that s 72(1) of the SGA Act, properly construed, does not assist Mr Jamsek and Mr Whitby. Indeed, if anything, it underlines why Mr Jamsek and Mr Whitby could not relevantly be said to have been parties to the contracts with ZG under which they performed work. The relevant effect of s 72(1) is that a partnership is taken to be a “legal person” for the purposes of the SGA Act. It follows that when partners in a partnership enter into a contract on behalf of the partnership, the partnership itself may be taken to be a party to that contract for the purposes of the SGA Act. When that contract is a contract which is wholly or principally for the labour of another person, the partnership may therefore be taken to be an employer of that other person by reason of s 12(3) of the SGA Act. The partnership, as a legal person by reason of s 72(1) of the SGA Act, is then taken to be liable for any charges imposed by the SGA Act by reason of it being an employer.

74    The fact that a partnership is taken to be a legal person for the purposes of the SGA Act does not, however, mean that a partnership can be an employee under s 12(3) of the SGA Act. That is because a partnership, even one taken to be a legal person, cannot itself relevantly “work” or perform “labour” under a contract, those being concepts which, as noted earlier, involve personal exertion by a natural person. Perhaps more significantly, if a partnership is taken to be a legal person when it enters into a contract under which some of its partners perform work for the other party to the contract, it must follow that the partners themselves are not taken to be parties to that contract. The partnership is. Mr Jamsek and Mr Whitby therefore could not be said to have been parties to the contracts under which they performed work for ZG, at least for the purposes of s 12(3) of the SGA Act. Their partnerships were. The expanded definition of “employee” in s 12(3) of the SGA Act was therefore inapplicable to their circumstances.

75    In relation to the second reason, the fundamental problem for Mr Jamsek and Mr Whitby is that a substantial component of the contracts between their partnerships and ZG involved the provision of functional and properly maintained delivery trucks. The trucks were obviously integral to the carriage of goods under the contracts. The requirement to provide such a large capital item tells against construing the contracts as being wholly or principally for the labour of Mr Jamsek and Mr Whitby.

76    It is true that the contracts also included a labour component because the trucks had to be driven. The contracts also provided that the labour component was to be performed by Mr Jamsek and Mr Whitby, though there was provision for other drivers to be engaged, albeit with the “prior and continuing approval” of ZG. I doubt that the fact the contracts permitted other drivers to be engaged in those circumstances is determinative of the issue whether the contracts were wholly or principally for the labour of Mr Jamsek and Mr Whitby: see the consideration of this issue in analogous circumstances in JMC at [132]-[139] and [197]-[198].

77    It nevertheless cannot be accepted, in all the circumstances, that the contracts were principally, let alone wholly, for the labour of Mr Jamsek and Mr Whitby. Labour was but one of the components of the carriage of goods which Mr Jamsek and Mr Whitby, through their partnerships, undertook to provide to ZG pursuant to the contracts. Given the size of the capital commitment represented by the need to provide functional and properly maintained delivery trucks, labour could not be said to be the principal or predominant component: cf Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118 at [116].

78    It follows that I agree with Perram and Anderson JJ that the appeal, as remitted, must be dismissed with costs.

Associate:

Dated:    24 March 2023