FEDERAL COURT OF AUSTRALIA

Putland v Royans Wagga Pty Limited [2017] FCA 910

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for a case management hearing at a time convenient to the parties for the purposes of making procedural orders for the hearing to determine the outstanding issues as to final relief.

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

REASONS FOR JUDGMENT

BROMWICH J:

INTRODUCTION AND OVERVIEW

1    This is a multifaceted employment law dispute arising out of a particular kind of call centre and related work performed from September 2012 to early May 2015. The work was performed for the respondent, Royans Wagga Pty Limited, by the first applicant, Ms Linda Putland, and by her husband, Mr Shane Putland, the second respondent (together, the Putlands).

2    Royans Wagga’s principal business is that of repairing trucks. The work performed by the Putlands involved obtaining or otherwise receiving and passing on information about vehicle accidents or other incidents resulting in damage to trucks. It is convenient to describe the overall work product as providing an accident reporting service for Royans Wagga. The benefit of that service also extended to other companies associated with Royans Wagga.

3    The business conducted by Royans Wagga has been operating for many decades under various legal owners and structures, the details of which are not material. It was not in dispute that in the period leading up to 2005, prior to any involvement by the Putlands, Royans Wagga had an in-house, employee-based accident reporting service which referred potential leads for work to its core truck repair business.

4    The central issues in this case concern and flow from the capacity in which the accident reporting service work was performed by the Putlands for Royans Wagga. This entails consideration and application of long-standing authority dealing with the distinction between contracts of service between an employer and employee (employment contracts), contracts for services between a principal and independent contractor and related issues. Terms such as “worked for” or “work performed for” are used neutrally in these reasons to mean work done by the Putlands for Royans Wagga, whichever kind of contract was involved. Litigation in this area often involves situations that involve features of both kinds of contract. This was such a case.

5    The accident reporting service work was performed for Royans Wagga by Ms Putland from about May 2005, and also by Mr Putland from about 2008. The Putlands ceased performing the accident reporting service work in early May 2015. While the period in contention was from September 2012 until early May 2015, the prior arrangements by which Ms Putland in particular worked for Royans Wagga are relevant and important in ascertaining the nature of the legal relations that existed in the contested period.

6    At all times, the accident reporting service work included answering telephone calls from a range of sources (including members of the public), monitoring radios and scanners to detect reports or communications about accidents, and dealing with Royans Wagga sales representatives, who would use the information provided to attempt to secure the repair work arising out of the accident or incident.

7    In early 2005, Royans Wagga had difficulty in retaining staff to perform the accident reporting service work after various employees left Royans Wagga to move interstate. In 2005, Royans Wagga recruited Ms Putland (then Ms Pullen) to perform the accident reporting service work, including working from her home. In 2007, Ms Putland became responsible for performing the accident reporting service work 24 hours a day, seven days a week, solely from her home. At some point in time in 2008, Mr Putland commenced assisting Ms Putland with the work at their home. Those arrangements were background to the contractual arrangements that were the subject of the present dispute.

8    In early 2012, while the Putlands were still responsible for performing the work 24 hours a day, seven days a week, Royans Wagga had a growing dissatisfaction with the accident reporting service for a variety of reasons. In June 2012, Mr William (Bill) Andrews, the managing director of Royans Wagga, went to the Putlands’ home and had a conversation about proposed changes to the way the accident reporting service would operate. Thereafter, from about the end of July 2012 until approximately October 2014, the weekday accident reporting service work was performed from a new demountable shed at the Royans Wagga premises known as “the Hut”. From sometime in October 2014 until early May 2015, the accident reporting service work was conducted from the Putlands’ home. The term “radio base” was used to refer interchangeably both to the accident reporting service and to the various locations from which it was provided, these being the Hut, the Putlands’ home and another home from which the work was sometimes performed.

9    Mr Putland worked from the Hut from mid-2012 until approximately October 2014, during what might be termed business hours, although not confined to 9.00 am to 5.00 pm. Ms Putland worked from home on weekends from mid-2012 until approximately October 2014. Following the resignation of a radio base employee, Ms Kylie Yerbury, in approximately October 2014, the Putlands again worked solely from home with responsibility to perform the accident reporting service work 24 hours a day, seven days a week. The Putlands did not perform this work for anybody else at any time, including during the relevant period.

10    In early May 2015, Royans Wagga outsourced its accident reporting service to an independent call centre, Fonebox. Consequently, the Putlands ceased performing any work for Royans Wagga. This dispute arises partially from the alleged conduct of Royans Wagga in terminating the arrangement (however ultimately characterised) with the Putlands, and partially from the conduct of Royans Wagga throughout the relevant period in relation to wages and other benefits and conditions.

11    As noted above, the central issue is whether the contracts by which the Putlands performed the accident reporting service work were employment contracts, as was their primary position, or whether that work was performed as independent contractors, as was the Putlands’ alternative position and Royans Wagga’s contention.

12    If either of the Putlands were found to be an employee of Royans Wagga, back pay was sought according to the Clerks—Private Sector Award 2010 (Clerks Award). Civil penalties under the Fair Work Act 2009 (Cth) (FW Act) were also sought for the following alleged contraventions:

(1)    failure to pay wages and other benefits in accordance with an award in breach of s 45;

(2)    failure to provide pay slips in breach of s 536; and

(3)    falsely representing that the Putlands were employed as independent contractors in breach of s 357(1).

Payment in lieu of reasonable notice of termination was also sought.

13    Alternatively, even if the Putlands were independent contractors, they sought relief in that capacity by way of contract variations for harsh or unfair terms under s 16(1)(b) of the Independent Contractors Act 2006 (Cth) in order to secure payment in lieu of reasonable notice and payment of the difference between what they were paid and payments that would have been made if they were employed and paid in accordance with the Clerks Award.

14    Royans Wagga denies that there was ever any employment relationship or contract with either of the Putlands, asserts that there was an independent contractor arrangement with both, and asserts that proper notice of termination was given orally in December 2014. In the alternative, Royans Wagga asserts that even if there was any contract of employment, then such a conclusion was contrary to Royans Wagga’s knowledge (via Mr Andrews) and not reckless such that the defence in s 357(2) of the FW Act was made out. Aside from a concession that pay slips were not provided, Royans Wagga otherwise denied any entitlement to relief arising from any employment relationship found by the Court. Royans Wagga also denied any entitlement to alternative relief under the Independent Contractors Act.

15    The evidence, both oral and documentary, was wide-ranging and detailed. The main difference between the parties was the conclusions, both factual and legal, that they contended should be reached. There were also sharp differences in the evidence in a relatively small number of key areas. The resolution of both the legal and factual disputes has been difficult, requiring a detailed consideration of the oral evidence in particular.

16    Ultimately, I have found that the Putlands were employees of Royans Wagga. As a consequence of that finding, I have also considered the breaches of the FW Act and the breach of contract claimed by the Putlands. In respect of those breaches, I have found that the Putlands were employed pursuant to the Clerks Award as “call centre principal customer contact specialists” on a permanent, full-time basis, and that Royans Wagga breached ss 45, 357 and 536 of the FW Act. I will hear the parties in respect of final relief in the context of the findings made and conclusions reached in these reasons.

LEGAL PRINCIPLES AND STATUTORY PROVISIONS

Case law on the characterisation of employment contracts and independent contractors

17    The legal principles applicable to establishing whether work is performed pursuant to an employment contract or pursuant to a contract for services (i.e. as an independent contractor) were not in dispute. The difficulty arises in their application, especially in circumstances such as these in which certain features of the working arrangements indicated an independent contractor relationship, whereas other features indicated an employment relationship. The oral evidence, in particular of the Putlands, and of Mr Andrews on behalf of Royans Wagga, including its testing in cross-examination, ended up being of considerable importance.

18    Although modified by modern circumstances and technology, a prominent factor in determining whether a relationship is one of employer and employee or one of principal and independent contractor remains the degree of control which the person who engages another to perform work can exercise over the person so engaged: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24.2 per Mason J (as the former Chief Justice then was), citing Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 571; Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404 and Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395 at 402.

19    The reference in Stevens to the control that “can” be exercised reflects the focus on the existence of authority to control, rather than its exercise. The exercise of control is virtually conclusive evidence of its existence, but the absence of the exercise of control does not deny its existence. The existence of authority to control remains a critical consideration in many cases, because that underlying reality of the power dynamic can still go to the heart of the difference between the two types of contract. However, control, like other indicia, is an analytical tool by which to measure and assess the relationship. Assessment of the existence and extent of any right of control assists in guiding and advancing the inquiry, rather than necessarily providing a conclusive answer on its own as to the nature of the legal relationship. The nature of the relationship is the ultimate issue.

20    The importance of considering authority to control was also canvassed by Wilson and Dawson JJ in Stevens. Their Honours opined at 36.3 that in many, if not most, cases, it is appropriate to apply the control test in the first instance because it remains the surest guide as to whether a person is contracting independently or serving as an employee. Their Honours noted that modern work conditions and norms of behaviour enable personal skills to be exercised so as to prevent control over the manner of doing work, such that the control test in the original master and servant sense is no longer a sufficient or necessarily appropriate test. Their Honours noted that this led to the observation in other authorities that the right to control rather than its actual exercise is the important component. However, their Honours also cited authority for the proposition that, in some circumstances, it may also be a mistake to treat a reservation of control as decisive: Stevens at 36.4.

21    Authority to control is a test of substance and not form, calling for distracting appearances to be brushed away when not reflective of reality. Properly and rigorously applied with appropriate caution and adjustment, the authority to control test is still capable of translating well to modern circumstances. As Dixon J noted in Humberstone at 404 (also partially extracted in Stevens at 24), albeit in the now-redundant language of “master and servant” and confined in expression to post-war period male workers:

… the test of the existence of the relation of master and servant is still whether the contract placed the supposed servant subject to the command of the employer in the course of executing the work not only as to what he shall do but to how he shall do it. …

The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.

That passage has particular resonance in this case in considering the competing evidence and arguments, having regard to the importance of the concept of ultimate authority, as opposed to its exercise in the particular circumstances.

22    Mason J in Stevens also held that while the existence of control is significant, and in many cases even dominant, it is but one of a number of indicia which must be considered. Other factors may include the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee: Stevens at 24.5. That list is not exhaustive.

23    Wilson and Dawson JJ in Stevens noted that various other indicia have been added over time which may point towards employment rather than independent contractor status, including such things as the right to have a particular person do the work, the right to suspend or dismiss a person so engaged, the right to the exclusive services of that person and the right to dictate the place of work, the hours of work and so on: Stevens at 36.9. By contrast, indicators in favour of independent contractor status include such things as “a profession, trade or distinct calling”, the provision of the person’s own place of work (perhaps less significant in more recent times with relatively cheap and portable technology facilitating employees working from home with relative ease), the provision by the worker of his or her own equipment, the creation of goodwill or saleable assets, the payment of business expenses as a significant proportion of remuneration and payment of remuneration without the deduction of income tax: Stevens at 37.1. However, it must be kept steadily in mind that all of these indicia, and any others that might be thought of and sought to be applied as workplaces continue to evolve, can be no more than a guide leading to the answer to the ultimate question of whether a person is working for another in what is in truth an employment relationship or on his or her own behalf as an independent contractor, with the indications varying from case to case: Stevens at 37.3.

24    The importance of control must be considered keeping its historical context steadily in mind. Its source as a conceptual marker of an employment relationship was a predominantly agricultural society that has largely disappeared for most people. Many of the conditions that gave rise to that test have since disappeared, and occupations have emerged which do not so readily lend themselves to control as a dominant consideration. As was pointed out in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at 40-1 [43]-[45], Stevens entailed an adjustment of the concept of control to more modern life, and to that end, Stevens continued the developments over many years in this area reflected in cases such as Humberstone in 1949 and Zuijs in 1955.

25    It was this modernisation that produced the shift from actual control to the right to exercise it: Stevens at 29.1, as quoted in Hollis at 41 [44]. The distinction reflected in the control test remains fundamentally between serving an employer in the employer’s business and carrying on a trade or business of his or her own: Hollis at 39 [40], citing Windeyer J in Marshall v Whittaker’s Building Supply Company (1963) 109 CLR 210 at 217.

26    It may be difficult to give much independent weight to such things as taxation arrangements because they reflect a subjective view of the nature of the relationship and may therefore be considered in the same category as declarations of intent, which, while not necessarily wholly irrelevant, must be approached with caution and may not assist at all. In that event, such features may be taken into account, but will not be conclusive and should be subordinate to conduct which constitutes a stronger and more objective indication of rights and obligations fundamentally inconsistent with the basic requirements of a contract of employment, such as the ability to delegate or a lack of ultimate control over how work is done, and who may perform that work. See ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; 209 FCR 146 at 153 [37].

27    Even in cases in which the form of the arrangement is that of an independent contractor, a lack of real independence of action or true independence of organisation may lead to the conclusion that, in truth, there was no adequate foundation for finding the relationship to be anything other than one of employment: ACE Insurance at 186 [148]. Ultimately, whether a person is an employee or an independent contractor requires an objective assessment of the relationship. Which side the person falls on may not be easy to answer.

28    The outcomes of prior cases cannot simply be applied to reach the necessary conclusion in a given case. What really matters is principled analysis of the facts and circumstances of the case at hand. In ACE Insurance, ostensible independent contractor insurance agents were found to be employees, while in Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46, a person who worked entirely within the putative employer’s premises was nonetheless ultimately found to be an independent contractor due to a range of factors which, on appeal, were found to deny the existence of an employment relationship. In each case, careful attention to the detail of the totality of the arrangements and circumstances informed the ultimate conclusion reached. In ACE Insurance, Buchanan J, with whom Lander and Robertson JJ agreed, surveyed a wide range of appellate authority across a variety of circumstances in which the issue fell to be determined, and made the following pertinent observations at 173:

102    It is trite to say that the foregoing survey yields no single or unifying test to determine whether an employment relationship exists. Some features of a particular relationship may tend strongly against such a conclusion. Principal amongst such features, in my view, are contractual terms which deny any requirement for personal service or represent clear indications of the pursuit of an independent business. Even where such features are absent the proper conclusion may be that a particular relationship is not one of employment, but the analysis is less straightforward.

103    Of the indicia of employment it is clear that a right of control remains an important consideration in many cases. It may be found in a right of organisation and allocation of work, as much as in some theoretical right to say how actual work should be done.

29    ACE Insurance was followed in Tattsbet and may be regarded as one of the leading cases in this area. The analysis by Buchanan J in ACE Insurance has been of great assistance in deciding this case.

30    While the degree of control remains important, the modern approach is multifactorial and the totality of the relationship must therefore be considered. A range of indicia may, and usually will, need to be examined and those more useful favoured over those that are less useful as an indicator of the true relationship.

31    On any view, the central issue in this case was the characterisation of the nature of the relationship between the Putlands and Royans Wagga, applying the legal principles outlined above. As may be seen, the balance of the case largely fell to be considered in the context of the determination of that question. There is no single test, and indeed any attempt to find one may divert attention from the ultimate question of whether or not the Putlands were, in all the circumstances and at each relevant point in time, employees or independent contractors.

Statutory provisions

FW Act

32    The following provisions of the FW Act are relevant to the primary case advanced by the Putlands that their relationship with Royans Wagga was that of employer and employee:

13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note:    Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

45 Contravening a modern award

A person must not contravene a term of a modern award.

Note 1:    This section is a civil remedy provision (see Part 4-1).

Note 2:    A person does not contravene a term of a modern award unless the award applies to the person: see subsection 46(1).

46 The significance of a modern award applying to a person

(1)    A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.

(2)    A modern award does not give a person an entitlement unless the award applies to the person.

Note:    Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 4-1 in relation to outworkers who are not employees.

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.

536 Employer obligations in relation to pay slips

(1)    An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.

Note 1:    This subsection is a civil remedy provision (see Part 4-1).

Note 2:    Section 80 of the Paid Parental Leave Act 2010 requires an employer to give information to an employee to whom the employer pays an instalment under that Act.

Independent Contractors Act

33    The following provisions of the Independent Contractors Act are relevant to the alternative case advanced by the Putlands that their relationship with Royans Wagga was that of principal and independent contractor (emphasis per original):

12 Court may review services contract

(1)    An application may be made to the Court to review a services contract on either or both of the following grounds:

(a)    the contract is unfair;

(b)    the contract is harsh.

Note:    A proceeding pending in the Federal Circuit Court of Australia may be transferred to the Federal Court of Australia: see Part 5 of the Federal Circuit Court of Australia Act 1999.

(2)    An application under subsection (1) may be made only by a party to the services contract.

(3)    In reviewing a services contract, the Court must only have regard to:

(a)    the terms of the contract when it was made; and

(b)    to the extent that this Part allows the Court to consider other matters—other matters as existing at the time when the contract was made.

(4)    For the purposes of this Part, services contract includes a contract to vary a services contract.

Note:    The effect of subsection (4) is that a contract to vary a services contract can be reviewed under this Part, as the contract to vary will itself be a services contract.

16 Orders that Court may make

(1)    If the Court records an opinion under section 15 in relation to a services contract, the Court may make one or more of the following orders in relation to the opinion:

(a)    an order setting aside the whole or a part of the contract;

(b)    an order varying the contract.

(2)    An order may only be made for the purpose of placing the parties to the services contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies.

(3)    If an application under this Part is pending, the Court may make an interim order if it considers it is desirable to do so to preserve the position of a party to the services contract.

(4)    An order takes effect on the date of the order or a later date specified in the order.

(5)    A party to the services contract may apply to the Court to enforce an order by injunction or otherwise as the Court considers appropriate.

(6)    Subject to section 14, this section does not limit any other rights of a party to the services contract.

Note 1:    The rights of a party to a services contract may be affected by the exclusion provisions.

Note 2:    An appeal may be brought to the Federal Court of Australia from a judgment of the Federal Circuit Court of Australia: see section 24 of the Federal Court of Australia Act 1976.

PLEADINGS, CHRONOLOGY OF KEY EVENTS AND EVIDENCE

Summary of the Putlands’ case

34    On the first day of the hearing, counsel for the Putlands, Mr Nicholas Furlan, advised that the Putlands were not pressing their adverse action claim and, accordingly, were not pressing particular paragraphs of the statement of claim (as subsequently reflected in a second amended statement of claim filed on 8 July 2016).

35    The key aspect of the Putlands’ claim of a contract of employment was an asserted breach of s 45 of the FW Act, for underpayment (including overtime, penalties and superannuation contributions) pursuant to an asserted award. The balance of the Putlands’ case arising from the primary employment contract claim was articulated as having three dimensions (putting to one side the alternative claim under the Independent Contractors Act, the subject of disputed pleadings discussed further below), namely:

(1)    a sham contracting claim under s 357(1) of the FW Act;

(2)    a breach of an obligation to provide pay slips under s 536 of the FW Act; and

(3)    a claim for breach of contract for failure to provide reasonable notice of the termination of a contract.

36    The alternative case under the Independent Contractors Act advanced by the Putlands was that the contracts for services by which they were engaged were unfair or harsh at the time they were made. The contracts were pleaded to provide total remuneration that was, or was likely to be, less than that of an employee performing similar work, and pleaded not to include a term requiring Royans Wagga to give reasonable notice of termination. The Putlands sought relief by way of contract variations under s 16(1)(b) of the Independent Contractors Act in order to secure payment in lieu of reasonable notice and back payment.

37    The gravamen of the Putlands’ case was conveniently summarised by their counsel on the first day of the hearing as follows:

… these proceedings are, in essence, a claim for relief in connection with work arrangements between each of the applicants and the respondent in respect of the period September 2012 to 5 May 2015. Now, in order to properly understand the significance of what happened during that period, it will be necessary to lead evidence of things that happened a good deal earlier in time, especially in relation to Ms Putland, the first applicant.

… principally, these proceedings are a claim that each applicant was an employee and not an independent contractor of the respondent during that period, September 2012 to 5 May 2015, and that they were entitled to pay and other benefits prescribed by the Clerks—Private Sector Award 2010, and that they did not receive those benefits, which was a breach of both the award and section 45 of the Fair Work Act.

… they’re essentially award underpayment claims, these proceedings. The Clerks—Private Sector Award 2010 is an award made pursuant to Part 2-3 of the Fair Work Act, and it is therefore a modern award, and the significance of that … is a failure to comply with a provision for the modern award, such as the Clerks Award, is a breach of section 45 of the Fair Work Act.

Section 45 … is what is described as a civil remedy provision, and that is the effect of section 539(2) of the Act, and as a result of that, the applicants are entitled to apply to [the Court] for orders under Chapter 4, Division 2 of the Fair Work Act in respect of contraventions of section 45, and [the Court] will see that from section 540(1)(a).

[The Court] has [the] power to make orders … if satisfied there has been a breach of section 45. [The Court] has that power under section 545(2)(b), and that is a power to award compensation which the applicants seek to remedy the loss that they have suffered as a result of the underpayments they say have occurred. … the applicants claim pecuniary penalties under section 546(1) of the Fair Work Act.

…

If [the Court] is not satisfied that each of the applicants are employees, then that claim fails in its entirety, and [the Court] doesn’t need to go on to consider compensation or penalties for breach of section 45. Of course, [the Court] could take one view of Ms Putland’s situation and a different view of Mr Putland’s situation. The circumstances … are not entirely the same throughout that period.

Summary of Royans Wagga’s case

38    Counsel for Royans Wagga, Mr Bilal Rauf, indicated that the Royans Wagga’s case was that:

(1)    There was a contract for services (i.e. an independent contractor arrangement) with Ms Putland which came into existence in 2005.

(2)    There were variations to that contract, especially in 2007.

(3)    There was no variation of that contract in 2012 in relation to the legal arrangements between the parties; rather, there was only a change in the manner in which the contract was to be performed. Accordingly, it was not a contract to vary a services contract such as to engage s 12(4) of the Independent Contractors Act.

Pleadings

39    The pleadings in this case provide a starting point for defining some of the areas of agreement and dispute, before turning to the evidence and submissions to determine the facts upon which reliance should be based, both agreed and requiring resolution, and the application of the above legal principles to those facts.

40    The parties join issue by way of a second amended statement of claim and an amended defence. An issue arose on the first day of the hearing in relation to the scope of the defence filed by Royans Wagga in reply to the Putlands’ alternative claim for relief under the Independent Contractors Act. That issue was clarified in the amended defence filed on 25 August 2016, and the parties were sufficiently able to address the issue in closing written and oral submissions on the final hearing day, 7 September 2016.

41    In some areas, the defence pleading provides a sufficient account for the purposes of the Putlands’ claim, with there being no need to resolve differences in expression. For example, the second amended statement of claim pleads that Royans Wagga operated a business that “includes truck accident and repair centres and a truck incident and emergency telephone reporting and response service”. In reply, the defence states that, at all material times, Royans Wagga operated a “heavy vehicle accident repair specialist business”, and an aspect of that business was an “accident management service”. The difference in expression does not appear to be material and in any event is not treated that way. These reasons will continue to refer to that part of Royans Wagga’s activities as the accident reporting service.

42    The second amended statement of claim pleads that Ms Putland entered into a contract for the performance of work by her in relation to the accident reporting service in or about May 2005. Royans Wagga’s defence describes that contract as being for the provision of services by Ms Putland (contract for services). While Royans Wagga did not take issue with the original commencement of the arrangement with Ms Putland being in 2005, it pleads in its defence that from about November 2007, the contract with Ms Putland was partly oral and partly in writing. Royans Wagga particularised a written proposal provided to Royans Wagga by Ms Putland and her father, Ronald (Ron) Pullen, dated 16 September 2007, and relied upon the written terms of the proposal. The relevant text of that document is of some importance and is reproduced in the course of the analysis of the evidence.

43    In relation to the relevant period from September 2012 to May 2015, it is pleaded on behalf of the Putlands that their relationship with Royans Wagga was, in substance and reality, an employment relationship governed by an unwritten contract of employment, the existence of which is to be inferred from conduct. Certain aspects of the pleaded conduct included stipulated hours of work, stipulated rates of pay, Royans Wagga supplying and installing equipment in the Putlands’ home and the duties and responsibilities of the Putlands in terms of what work was to be done and how work was to be carried out in general terms. Certain terms of the inferred employment contract were pleaded, including a term allowing either party to terminate the contract on reasonable notice. These allegations were all denied by Royans Wagga, on the basis that there was no employment relationship or contract of employment.

44    The parties had a starkly different stance in relation to who was responsible for how the work would be carried out, itself an important feature of the legal distinction between employment contracts and independent contractor arrangements as outlined above. Much of the pleading response by Royans Wagga to the details relied upon by the Putlands, apart from rates of pay, was either denied or pleaded by way of not knowing and therefore not being able to admit the allegations.

Chronology of primary evidence – documentary and from the key witnesses

45    Much of the following chronology of key objective events was either not in dispute, or was established by evidence that was not contradicted. Considerable assistance was gained from chronologies helpfully furnished by both parties, supplemented as needed by reference to the evidence.

Before the relevant period: 1944 – June 2012

46    The Royans business was started by Bill Andrews’ grandfather in 1944. Royans Wagga commenced operating from Copland Street, Wagga Wagga in 1980. In the period between the late 1990s and early to mid-2000s, an in-house call centre known as the radio base was in operation at the Copland Street premises.

47    In the period between 1999 and 2001, Ms Margaret Scott (also known as Margaret Hinchcliffe) was employed by Royans Wagga as an operator of the radio base. At various times, the radio base serviced not only Royans Wagga but also other Royans businesses in Dubbo, Brisbane, Sydney and Newcastle (known as O’Reilly’s Newcastle). Nothing apparently turns on which other Royans branches received the benefit of radio base work performed by the Putlands, nor when. The work included answering telephones, monitoring police radios/scanners and dealing with sales representatives in order to provide the accident reporting service. A written record of the information received about each accident or incident was made. Margaret Scott created a “log report” template for that purpose. Ms Scott carried out some of this work from her home, particularly on weekends.

48    In 2002, the Royans group of companies was split into separate entities with separate management structures. Mr Andrews was appointed as managing director of Royans Wagga and director of the holding company of Royans Wagga, Royans Dubbo Pty Limited.

49    In the period from March 2001 to 10 September 2016, Brett Haberecht was employed by Royans Wagga as a sales representative, and had dealings with the Putlands. His evidence is considered below.

50    On 4 April 2003, Ms Putland obtained an Australian Business Number (ABN) as an individual/sole trader. The ABN extract in evidence, obtained on 19 November 2015, recorded:

(1)    two trading names – “Linda-Lewis” from 4 April 2003 and “MPOWER PT” from 13 May 2010;

(2)    one business name – “TRILOGY FITNESS” from 2 March 2011;

(3)    a last updated date of 27 October 2013; and

(4)    a GST status of “Not currently registered for GST”.

No business names are recorded for Mr Putland. There was no evidence of any business name being registered which was associated with the accident reporting service.

51    In about May 2005, one of the then operators of the radio base, Kelly Flint, ceased working for Royans Wagga. Mr Andrews met with Ms Putland (at that time, Ms Pullen) and she commenced working for the Royans Wagga radio base from her home. Ms Putland’s evidence was that when she first started, only weekday hours were available but there might be an opportunity to cover some weekends for others. She later did weekend work and other hours.

52    In or about 2007, Ms Putland was asked to train a Royans Wagga employee, Nicole Debritt. Ms Putland attended the radio base at Royans Wagga to provide this training to Ms Debritt.

53    On 1 May 2007, Mr Putland obtained an ABN as an individual/sole trader. The ABN extract in evidence, obtained on 2 December 2015, recorded one trading name (“Shane Putland”), a last updated date of 13 June 2013 and a GST status of “Not currently registered for GST”. No business names are recorded for Mr Putland.

54    In September 2007, discussions took place between Mr Andrews, Ms Putland and Ron Pullen (Ms Putland’s father) concerning a proposal for the provision of radio base services. On 18 September 2007, Mr Andrews received an email from Mr Pullen enclosing a written proposal to Royans Wagga. On about 19 or 20 September 2007, further discussions took place between Mr Andrews and Mr Pullen concerning details of the proposal. The relevant portions of the proposal were as follows (as per original):

Please Note:    The Following Proposal is Private and Confidential.

Attention: Bill Andrews

PROPOSAL to ROYANS WAGGA                16th-Sep-2007.

REFERENCE:    Consideration of 24/7 Customer Service & Base Operation.

BASE LOCATION:    [Putlands’ home address in North Wagga Wagga]

OVERVIEW:

We believe the Base Operation as it stands lacks the polish it needs to be complete and professional in its outlook for representing the very best interest of the Royan Group. We also believe the objectives to fix this problem can be achieved by way of the obligations outlined in the detailed proposal as listed.

An agreement subject to the conditions listed can be achieved by a contractual arrangement between the two parties from here on in called.

1.    The Company: ROYAN GROUP.

2.    The Prime Contractor:    “NWB” NORTH WAGGA BASE.

An agreement would allow the NWB to focus on streamlining the entire operation to gel with newly implemented programs which includes training of staff to a standard that’s required i.e. emphasising the importance of the monitor situation and the proper liaising with open clients and Royan staff.

[In] accordance with our proposal the NWB intends to explore any available new technology … methods of scanning for possible accidents in areas we currently do not target. In addition the NWB have a plan to set up a complete new network of possible call out “part timers” and “spotters” also in areas we currently do not target.

…

Please see PROPOSAL attached and Note: {Any or part of this proposal is subject to either approval or negotiation.}

OBLIGATIONS OF THE NWB

(a)     To ensure the smooth running of a customer service base operation which includes professional handling of the phone system, intense monitoring of scanner reports.

(b)    To move forward with commitments pertaining to new programs as stated.

(c)    Train staff …

(d)    To invoice the company “Royan” once every week for wage commitments etc.

(e)    To invoice the company “Royan” with phone A/c etc along with the attached phone A/c readouts as they become available.

(f)    Appointee of the NWB “Linda Pullen” to inform the Appointee of the company of any major changes to the current situation of the NWB that may effect the company.

The Employee

# The NWB will be responsible for all staff employed by NWB i.e.

…

(b)    Allocation of hours to the employee will be at the discretion of the NWB.

…

(d)    Any complaint to the company “Royan” about an employee of the NWB will be liaised between an appointee of the company “Royan” and the management of the NWB.

(e)    The NWB will not hesitate to remove any staff member found to be disloyal or not performing in the best interest of the company “Royan” or the NWB.

(f)    Wages are the total responsibility of the NWB and employees will be required to hold an ABN No.

OBLIGATIONS OF THE COMPANY “ROYANS”

•    The Royan management or their staff are not to interfere with the general running and management of the NWB unless of course deemed justified through discussion by NWB and the company “Royan”.

•    The payment of wages etc will be paid by bank transfer on a given day on a weekly basis upon receipt of an invoice. The amount is yet to be determined by both parties.

…

•    After the initial amount is determined, it is requested by NWB that this amount be negotiated every 2 two years from the given start date.

…

THE BENEFITS TO THE COMPANY “ROYANS”

…

•    Lifting the burden of the radio base operation from its current Royan company manager would automatically open a door of valuable time he could use somewhere else and the company can then get on with what it does best.( Repairing Trucks)

…

•    Contracting the base operation to an independent automatically creates incentives for the prime operator to succeed. This success would have to benefit the company.

•    Linda Pullen and Ronny will lead the team and Ronny would begin to use his initiative to canvass work for the company …

•    Instead of just sitting and waiting for phones to ring the NWB will exploit ways to filtrate the scan system enabling a better scan ear throughout a wider country area “I will explain details of this when we meet” in addition to engaging a truckie forum setup. We at NWB “and our staff” will make use of some down time to benefit the company.

•    The NWB already has the infrastructure and the know how to run a commitment as proposed …

Please note:    This proposal is draft form only and further discussion needs to take place between the stakeholders to achieve agreement status compatible to both parties.

PS. Bill I will call you soon so that we may discuss some of the finer items.

    Thank you    Ronny

55    On 10 October 2007, Ms Putland emailed a document to Bill Andrews. The covering email had the subject line “For the representatives” and was as follows:

Hi Bill,

Go over it and see what you think should/could be added, or changed.

Kind Regards, Linda

56    The document relevantly provided as follows (as per original):

Attention:    Branch Managers/Representatives of the Royan Group.

You may be already aware, as of the 1st week in November 2007, the Royan base operation will undergo a major change in terms of the present, and the future interest of the Company. There has already been a considerable amount of time and effort injected into criteria that will be set in the new plan.

The base will appreciate your involvement in these changes and we welcome and encourage you to forward any ideas that you feel are relevant in the success of the new operation.

We have set a formula criteria in writing that all new and existing operators will stringently have to follow. { A copy of this action can be emailed at request }

All staff will undergo an intensive training period to ensure a professional customer service centre is in operation 24/7.

With the support of the Group, you can be sure that the base will continue in its efforts, striving for a professional outlook at all times, and implementing the new ideas.

Some Recommendations to Consider:

•    To guarantee a more fair spotter payment policy.

•    First Call to the base ideally should be from the spotter direct, not from a branch representative as this has proven to cause some friction in the past. However this would still have to be at the Reps discretion as we understand they too have their followers and in the short term this may be difficult to change but in the long term spotters should be encouraged to ring the base.

Please note: The integrity and honesty of the new base is to ensure the 1st Call is the 1st Call, without further ado.

•    Branch representatives are asked to contact the base after they attend an accident scene, and inform the base of updates and outcome. This ensures a better and more complete log system without the need for callbacks, and memory jogs.

•    Branch Representatives/ Royans Staff should be discouraged from discussing personal issues with base staff, unless it is directly involved with a current job. It is not acceptable to include base staff in personal disagreements/issues between branches/staff of the Royans Group.

•    If an issue should arise with a base operator, you should contact Linda Putland as soon as possible with the problem so a suitable plan of action to rectify it can take place.

The base welcomes your suggestions/comments on how the base can further help you, and the Royans Group as a whole.

I wish to thank you for your support and of your consideration on the points above.

Kind regards,

Linda Putland …

…

57    In November 2007, Ms Putland commenced providing radio base services 24 hours a day, seven days a week from her home and the radio base situated at Royans Wagga closed. Royans Wagga describes this as being the point at which the written proposal furnished by Mr Pullen took effect.

58    On 23 November 2007, Mr Andrews sent an email to three Royans group managers, the relevant details of which are as follows (per original):

can we please keep in mind the radio base redistribution of charges as proposed. [Barry Blomeley, branch manager of Royans Brisbane] had to follow up with [Craig Martin, former head sales representative at Royans Brisbane] regarding former nemisis [sic] Ronny Pullen and any known acts of scullduggery [sic]. Please advise asap as this situation was first proposed a few months ago. In the meantime other branches are paying the bulk, but not getting the bulk of the calls. Perhaps their [sic] maybe other better suggestions.

Hope to hear from you soon.

59    In the middle of 2008, Mr Putland began assisting Ms Putland with the radio base work from home. In the period between August or September 2009 until February 2010, Ms Margaret Scott was paid (mostly via Ms Putland’s bank account, albeit Ms Scott gave evidence of some initial cash payments) to do some of the radio base work, mainly on weekends. Ms Scott received payments from Ms Putland into her bank account for that work, as reflected in Ms Scott’s bank statements. Ms Putland was taken to those bank statements in cross-examination, and specifically to 11 payments made to Ms Scott from Ms Putland’s bank account in the period from September to December 2009. It was put to Ms Putland more globally that the statements for the period from September 2009 to February 2010 included 18 payments to Ms Scott totalling $5,866.90. Ms Putland neither adopted nor dissented from that figure, but denied that payments took place outside that five-month period.

60    As outlined at [50] above, on 13 May 2010, Ms Putland registered a trading name “MPOWER PT”. On 2 March 2011, Ms Putland registered a business name “TRILOGY FITNESS”. As at 3 April 2011, the website for Trilogy Fitness had a class schedule. In the period from 2011 to 2012, Ms Putland leased premises for the purpose of conducting a fitness business venture. These events are recorded for completeness, but they are incapable of making any difference to the conclusions required to be reached because they are not in any way connected to the nature of the relationship Ms Putland had with Royans Wagga. It would not make any difference, either way, if MPOWER PT or Trilogy Fitness amounted to a business conducted by Ms Putland, noting that the evidence did not go that far in any event. Although perhaps of marginal significance, Ms Putland knew about business names but apparently did not register the name “North Wagga Base” nor any variation of it in either of the Putlands’ names. However, she registered another business name after the 2007 proposal i.e. MPOWER PT. If anything, this tends to suggest that the Putlands did not subjectively regard themselves as running their own business and, objectively, did not in this respect behave as though that was what was taking place.

61    On the evidence of Mr Putland, in the period from about 2010 to about 2011, David Sloan was paid by the Putlands to listen to scanners.

62    In late 2011 or early 2012, Mr Andrews had discussions with Ms Putland regarding radio base reports being late. This was evidently part of the reason for the discussions that led to the radio base work during the week returning to the Hut on the Royans Wagga premises after July 2012.

Leading into the relevant period: June 2012 to September 2012

63    In June 2012, Mr Andrews came to see the Putlands at their home. They had a conversation in the backyard. The Putlands were told, amongst other things, that Royans Wagga management wanted to see the radio base returned to the premises of Royans Wagga. This was so that management could be sure that calls were being answered and the log reports were being completed.

64    On 29 June 2012, Mr Andrews emailed Ms Putland his “initial thoughts” on radio base shifts and pay rates as follows:

Hi Linda,

Initial thoughts are;

Radio base at Rep Hut during the week.

Monday    5am – 1pm, 1pm – 9pm, 9pm – 5am

Tuesday    5am – 1pm, 1pm – 9pm, 9pm – 5am

Wednesday    5am – 1pm, 1pm – 9pm, 9pm – 5am

Thursday    5am – 1pm, 1pm – 9pm, 9pm – 5am

Friday        5am – 1pm, 1pm – 6pm

Weekend     Fri 6.30pm – Mon 5am

Weekend is valued at $800 and could be done at home.

Shifts from 5am -9pm are at $20 p/hr

Shift from 9pm – 5am is at $25 p/hr

Have a think about what shifts you would want to nominate for.

You could still submit your company invoice and add GST to the total.

Let me know what you think.

The Reps hut does have a reverse cycle air cond. & I would put a television in there.

Regards

Bill

65    Mr Putland ultimately agreed to do weekday shifts at a demountable building known as “the Hut” located at Royans Wagga’s premises in Wagga Wagga. Ms Putland ultimately agreed to work the weekend shift (Friday evening until Monday morning) from home.

66    From the end of July 2012, radio base work was performed during the week from the Hut.

67    In about July or August 2012, Mr Putland started working from 11.00 am to 5.00 pm in the Hut, Monday to Friday of each week. He filled in timesheets, submitted weekly invoices in his name and was paid by the hour for his work except on public holidays when he was paid a flat rate of $500 and later $400. Two other individuals, Mr Rodney Roy and Ms Kylie Yerbury, who were employees of Royans Wagga, were also doing radio base work in the Hut. Their agreed salaries were $20 per hour for day shifts and $25 per hour for night shifts. Mr Joel Roy, another employee of Royans Wagga, also briefly did some radio base work in the Hut before he was dismissed. Ms Yerbury’s work as an employee of Royans Wagga, in a role described in her contract of employment as “call centre receptionist”, was paid pursuant to the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (Vehicle Award).

68    Also in July or August 2012, Ms Putland started working weekend shifts which commenced at 6.00 pm on Friday and ended at 5.00 am the following Monday. She submitted weekly invoices in her name only and was paid a total of $800 per weekend-long shift.

69    In the period from the middle to the end of 2012, Vicki McCully did radio base work in the Hut. She was paid by the hour, had an ABN and submitted a weekly invoice. Ms McCully was trained by Mr Putland. There was no evidence to suggest that the work she did differed in any way at all from the work that Ms Yerbury did as a designated employee.

70    On 13 August 2012, Mr Putland made a formal complaint in writing to Royans Wagga about “intimidation and bullying” in “the workplace”.

The relevant period: September 2012 – May 2015

71    On 25 September 2012, Mr Putland issued an invoice numbered “001” in his own name and for work completed by him only.

72    In the period from October 2012 to December 2012, Mr Putland’s shift patterns were irregular.

73    In the period from the end of December 2012 to March 2013, Mr Putland generally worked 5.00 am to 9.00 pm, Monday to Thursday and 5.00 am to 6.00 pm on Friday of each week.

74    On 9 January 2013, Mr Andrews wrote a letter to assist Mr Putland to obtain finance to buy a motor vehicle. The letter represented that Mr Putland “works for Royans Wagga on a subcontractor basis and earns $1520.00 per week”. In cross-examination, Mr Andrews could not recall whether he turned his mind to the question of whether Mr Putland was an employee or a contractor, although this evidence was not specifically tied to the time of the letter and referred instead to the period around August 2012 when discussions were happening about Mr Putland moving into the Hut.

75    From about March 2013, Mr Putland generally worked 5.00 am to 9.00 pm on Monday, 6.00 am to 9.00 pm on Tuesday to Thursday, and 6.00 am to 6.00 pm on Friday of each week.

76    On 19 December 2013, the Putlands were informed by an email from Mr Andrews that Mr John Cusack, a sales representative of Royans Sydney, would be doing the radio base work for the Sydney branch of Royans from his home from 3 February 2014.

77    On 3 February 2014, Mr Cusack started to do the Sydney radio base work from his home, referred to as “The Rock”, confined to weekdays during business hours. This appeared to be a nickname or convenient label, rather than any formal designation. The reference to the service provided from the Putlands’ home as “North Wagga Base” did not appear to have any substantially greater degree of formality.

78    On 5 August 2014, Steve O’Reilly (the Royans Group administration manager) sent an email to Mr Andrews, David Church (director of Royans Melbourne) and Peter Royan (director of Royans Brisbane) attaching a presentation from a Royans meeting in Port Douglas. The text of the email was as follows:

Hi All

Attached is the Presentation displayed during the Port Douglas meeting (I have also copied it in email form below)

I hope you have success in your directors discussion on the matter and hope you can form a unanimous position.

I think the opportunity exists to create a turning point on the way we do business, and another step up in professionalising the Group.

Let me know what I can do to help.

…

79    The text in the body of that email, which was copied from the presentation slides, included the following:

Why change anything ?

Our current system has been running for decades without any real change.

Regular complaints include – calls not being answered / incorrect information / operators half asleep / working out of a house / no updates

We currently have 3 bases – which increases costs and reduces efficiency

We cannot professionally promote the current set up to Insurers / Brokers / Fleet customers

NTI has had a professional assist line for over a decade

ISS have been going for 9 years & have many fleet customers on board.

…

If they [ISS] remain the only option for insurers, they will take over the market ( they are already well on their way )

We could benefit from a united approach that focuses our resources.

We can create an alternative to ISS – an option for insurers …

We can create an alternative to ISS, for Fleets …

We can create a new market – an Accident Assist service for Brokers …

Proposal to consider

•    Outsource our bases (or at least the first point of contact)

•    Engage professional call centre to handle inbound 1800 calls

•    …

•    htttp://www.welldone.net.au/

•    …

•    Independent, established, professional

•    …

•    Call based charging (minimal calls = minimal costs)

Basic Process

…

Advantages over our existing set up’s

•    A service to market to brokers that is capable of removing the advantage ISS has built with insurers

•    An alternative to ISS for insurers

•    One professional set up with equipment & systems ready to go

•    Likely savings

•    a live base system – where reps log in and update on the go

•    a live base system – that we can all log in to at any time

•    a live base system that can generate very useful reports (can be exported to XL and sorted -- so, by rep, by branch, by location etc)

•    no need for daily emails of 3 base sheets that many do not even read.

•    We could have a user pays split up amongst our branches – with costs split by actual usage (not rough estimates that can change year to year)

htttp://www.welldone.net.au/index.php

•    …

•    time on calls $1.90 per minute (average inbound 2-3 mins, outbound 1-2 mins)

•    …

Summary

•    a Group solution that would improve our services and also allow us to compete with the very real threat from ISS.

•    an instant alternative to ISS

•    something that can trump ISS – via Brokers

•    reduced costs for all

•    …

•    It could actually turn a profit

80    On 10 September 2014, Mr Andrews attended a meeting at the offices of “Well Done”, a call centre contractor, in Nowra concerning Well Done becoming the service provider for the Royans companies.

81    In October 2014, Ms Yerbury resigned from her position. She was the last remaining person working in the Hut apart from Mr Putland. The only way in which the Putlands considered they could continue to provide the accident reporting service on their own was to move all of the work to their home. As a result, the radio base work was then performed exclusively from the Putlands’ home. At the time that Ms Yerbury resigned, Mr Andrews was overseas. He did not subsequently demur from the decision taken in his absence.

82    On 14 November 2014, Mr Andrews attended a Royans managers meeting in the Hunter Valley. The minutes record that “Wagga base operators” are to be given three months’ notice “shortly”.

83    In early December 2014, Mr Andrews went to the Putlands’ home. On his account, he provided three months’ notice of termination of the contract. The Putlands each say that he told them there would be a trial of a call centre but did not say that their engagement would necessarily end. Mr Andrews claims to have spoken to Ms Putland over the telephone shortly after the face-to-face meeting in December 2014 – on his account, minutes later. He said that Ms Putland was hostile. According to Mr Andrews, during that telephone conversation, Ms Putland asserted that she and her husband were employees of Royans Wagga. In response, Mr Andrews became angry and said:

You can’t be serious. You are contractors. You work from home. You give an ABN invoice. You’re charged GST. I can see right through what you’re trying to do here.

Ms Putland gave evidence of a hostile telephone conversation taking place, but much later in time, in February 2015. The evidence from her on that conversation was not very clear.

84    In late December 2014, a trial of Well Done commenced in respect of only Royans Brisbane and its affiliate, O’Neills Newcastle.

85    In about January or February 2015, the Royans Group commenced discussions with an alternative supplier of call centre services, Fonebox.

86    In April 2015, Mr Andrews provided a reference by telephone for Ms Putland in relation to a position with Wagga Radio Cabs.

87    On 9 April 2015, Royans Wagga entered into a contract with Fonebox.

88    On 2 May 2015, Mr Andrews had a discussion with Steve O’Reilly, who confirmed that the phones were diverted from the Putlands to Fonebox on 1 May 2015. The Putlands therefore ceased all radio base work on 1 May 2015. Evidence was given by each of the Putlands and Mr Andrews that the Putlands were notified by John Cusack on 2 May 2015 that all phones had been transferred to Fonebox.

89    On 4 May 2015, final invoices were issued by each of the Putlands. The final invoices reflected payment for half of the final weekend worked by the Putlands, an amount arrived at following negotiation between Mr Putland and Mr Andrews, in recognition of the fact that the Putlands were not aware that the phones had been transferred to Fonebox.

90    Mr Andrews wrote letters on behalf of each of the Putlands dated 4 May 2015, apparently in fact written on 5 May 2015, regarding the termination of their contracts. The text of each letter was relevantly as follows:

To whom it may concern,

[Ms Putland or Mr Putland] … has ceased to be used by any of the companies in the Royan Group for Radio Base Operations. [Ms Putland or Mr Putland] was provided a minimum of three months notice as per contract requirements. The final date of operations was May 1, 2015. I believe [she/he] is no longer contracted to any other Companies for [her/his] Radio Base Services.

91    For completeness, it should be observed that, on 19 May 2015, Well Done were told their services would not be used by Royans Wagga.

Additional evidence for the Putlands

Linda Putland

92    Ms Putland was the first witness called for the applicants and gave oral evidence in chief, cross-examination and re-examination for most of the first and second hearing days. She came across as being an intelligent woman, who had commenced but not concluded tertiary studies. In the greater part, Ms Putland seemed to be doing her best to give a truthful account of events. Overall, she came across as a frank and forthright witness. There did not appear to be any immediate issue as to her honesty or whether she was doing her best to give a truthful account, even after cross-examination. However, it was put to Ms Putland at various points that certain events deposed to by her did not occur.

93    It was not squarely put to Ms Putland at any time that she was lying. Any shortcomings in her evidence are therefore best viewed as reflecting on reliability rather than dishonesty or other forms of adverse credit finding. Some issues did emerge about Ms Putland’s memory (which was not surprising given that the earlier events took place in the mid to late 1990s), her reliability, the accuracy of some parts of her evidence and her understanding of anything of a technical nature, including as to financial matters.

94    Ms Putland repeatedly said that she did not understand maths or numbers. She did not know what “CPI” meant. She credibly said that she provided information to her accountant for the purposes of tax returns, and completely relied on him as to what she could or could not include in her tax return, including, most particularly, allowable deductions.

95    The key parts of Ms Putland’s evidence warranting particular attention covered the following topics:

(1)    Engagement of Ms Putland by Royans Wogga;

(2)    Radio base between 2005 to 2007;

(3)    Radio base between 2007 and 2008;

(4)    Radio base between 2008 and 2012;

(5)    Establishing the Hut: June 2012 onwards;

(6)    The commercial call centre proposal, the issue of termination, and the Putlands ceasing to work for Royans Wagga; and

(7)    Ms Putland’s evidence as to general matters.

Engagement of Ms Putland by Royans Wogga

96    On the topic of contract formation, in relation to the initial retention of Ms Putland by Royans Wagga, Ms Putland said that in May 2005 she had been looking for paid secretarial, receptionist or clerical work, and that her uncle, Mr Bert Cool, an employee of Royans Wagga, had organised a meeting between her and Mr Andrews. She said that when they met each other, Mr Andrews:

(1)    confirmed that Royans Wagga was looking for somebody and that Mr Cool had told him of her prior experience;

(2)    asked her if she would like to continue working from home, which she had been doing with a prior employer, Re-Car;

(3)    outlined what the job would entail and what her duties would be, including:

(a)    answering an 1800 number for the eastern seaboard of Australia;

(b)    answering branch diversions whereby each Royans branch would divert their office phones through to the 1800 number at 5.00 pm every afternoon and she would have to pick that up and deal with any calls;

(c)    monitoring and listening to police, ambulance, fire and rescue scanners and really concentrating for the words “accident” and “truck accident”;

(d)     logging all call details; and

(e)    at the end of the shift, emailing the logs through to the branch managers and representatives;

(4)    told her that at this time, he could only offer her work on week days, although there might be the opportunity to fill in for the other two base operators, Ms Vicki Hayden and Ms Casey Hilton, for weekend shifts;

(5)    took her into the radio base room, which was then located between an office and the staff room, and introduced her to Ms Hayden; and

(6)    told her to sit there for a while and watch Ms Hayden take a few calls.

97    This description of the proposed work is largely consistent with the evidence Ms Putland gave of the work that she ultimately performed and which apparently never really changed.

98    On the question of remuneration, Ms Putland said that Mr Andrews told her that she would be paid in accordance with the Clerks Award, which he said he thought was $18 per hour. In cross-examination, it was suggested to Ms Putland that, as the Clerks Award had not come into existence until 2010, Mr Andrews had not referred to any award. Ms Putland denied that. I find it unlikely that Ms Putland either lied or made up the reference to an award, although she was clearly mistaken as it was an award that did not, at that time, exist. I find that she was given to believe that she would be paid in accordance with some kind of employment industrial award.

99    From 2005 onwards, the work or services carried out for Royans Wagga was not provided to anyone else. Ms Putland never offered to do the work for anyone else and never approached anybody or asked them if she could do work for anyone else, an assertion that was not challenged in cross-examination.

Radio base between 2005 to 2007

100    In 2005, Ms Putland had one telephone, one computer and an airways scanner by which the transmissions of the police, ambulance and fire brigade could be listened to. Royans Wagga supplied her with an extra telephone handset for the extra telephone line that she had installed, two old scanners, a CB radio and perhaps an office chair; they gave her more “stuff” over the years. Ms Putland’s telephone bills (including bills for the installation of the additional phone line) were ultimately paid by Royans Wagga. In May 2013, the ownership and account name for the telephone lines at the Putlands’ home was changed over to Royans Wagga.

101    In about August or September 2005, Mr Andrews asked Ms Putland if she would take on the weekends, or some weekends, filling in for Vicky or Casey, and at that time said that she was doing a good job. In contrast to the afternoon shifts which were paid at $18 per hour, payment for the weekend work was to be made against an invoice charging $750, being for the period from 5.00 pm on Friday until Monday morning. Ms Putland said that she was not allowed to put an hourly rate on the invoice, but rather just a number, $750.

102    The following comments can be made about some of the documents that were originally annexures to the affidavit of Ms Putland (which was not read, but instead was oral evidence required to be adduced) to which she was taken in oral evidence in chief:

(1)    An ABN registered in the name of Ms Putland was obtained for her by her father (she not having any understanding of what they were at the time it was obtained) and was used on all of her invoices throughout the period that she was retained by Royans Wagga.

(2)    A collection of incident reports from 2005 and 2006 which did not of themselves indicate the nature of the relationship between the Putlands and Royans Wagga.

(3)    In relation to a sample copy of invoices from 16 November 2005 to 26 October 2007:

(a)    For the first period from 16 November 2005 to 5 July 2006, the description on the invoices was “North Wagga Base Operations for” and then either “Weekends of” or “Afternoons of” followed by an identification of the particular days and then a flat rate figure for those days consistent with work being done by Ms Putland (at that time referred to on the invoices by her maiden name of Linda Pullen). As noted above, the flat rate for weekends for that period was $750.

(b)    Ms Putland gave evidence about the different email addresses that appeared on the invoices for 2005 to 2007. This did not advance the case one way or the other.

(c)    Ms Putland was taken to an invoice from July 2007 which had the words “Additional Hours per Vicki Dayshift”. She said that she believed Vicki (Ms Hayden) was either sick that day or may have been looking for another job at that stage and had to go away for the day, so she did Vicki’s dayshift. This evidence did not advance either case in any readily discernible way.

(d)    In the period from 2005 to July 2006, Ms Putland’s invoices stated there was no registration for GST.

(e)    An invoice claiming payment of Telstra telephone accounts by Royans Wagga in July 2006. (In about 2009 or 2010 the lessee of the phone lines at the Putlands’ home was changed from the Putlands to Royans Wagga so as to get “corporate benefits”.)

(f)    For the later period from 12 July 2006 until later that month on 26 July 2006, GST was charged but soon after that it ceased being charged again.

Very few of these invoices make a reference to the number of hours worked.

Radio base between 2007 and 2008

103    Starting on or about 1 November 2007, Ms Putland had responsibility for the radio base 24 hours a day, seven days per week. Payment was made against invoices, with those invoices always including an ABN, and at various stages charging GST.

104    A substantial issue arising from the annexures to Ms Putland’s affidavit concerned a proposal to Royans Wagga that was, on the evidence of Ms Putland, apparently prepared by her father, Ron Pullen, the details of which are extracted at [54] above. The proposal in terms expressly refers to a “contractual arrangement between the parties”, with “North Wagga Base” being referred to as a prime contractor responsible for staff being employed, wages being paid and other independent contractor-type features. This was not as much in favour of such an arrangement existing as might first appear. There was a live dispute between the parties as to whether this document forms any part of the arrangements that started on 1 November 2007 or whether it was a proposal that went nowhere and gave way in fact to a contract of employment arrangement. Ms Putland said that at some point in the middle or towards the end of 2007:

(1)    Mr Andrews approached her and asked her if she would be interested in taking on the base full-time (“like, full on. Like, 24/7”);

(2)    this conversation was initiated by Mr Andrews;

(3)    Mr Andrews told her that the whole job would be worth $2,800 and that he wrote this down, but also said he couldn’t “just say this is going to be your job from now on, Linda”; he would invite other people to put in an expression of interest as well, being Vicki Hayden and John Cusack, who were respectively the original base operator and a prior base operator and sales representative of Royans Wagga;

(4)    Mr Andrews told her that she had to put in an expression of interest and that she had no idea how to do it, but that Mr Andrews had said not to worry and gave her some things to put in the document, telling her that there needed to be such a process, but not to worry because she already had the job;

(5)    she told her father about her conversation with Mr Andrews, and that he was a little bit worried at first about the 24/7 operation, but would support her in whatever decision she made;

(6)    Mr Andrews invited her and her father out to Royans Wagga and sat down with them and gave them points to include in the expression of interest. Her father and Mr Andrews had a discussion on what she should put in and what might sound good; and

(7)    the proposal was prepared by her father following that meeting and she was reasonably sure he had emailed it to Mr Andrews. There was never any further conversation about the document, she never saw it again, she forgot it even existed, and she never received a copy signed by Royans Wagga.

105    Ms Putland was questioned about another document which had been annexed to her affidavit, entitled “Employment Contract Agreement”. Ms Putland said that it may have been prepared by her father and that she thought it had been emailed to her by Mr Andrews, but that she had never discussed it with Mr Andrews, had never signed it and had never received a signed copy. An interesting feature is that the document refers to either party being able to terminate on 120 days’ written notice, and in Royans Wagga’s case, this was the notice period demanded by and given to the Putlands.

106    Ms Putland agreed that she assumed responsibility for all of the radio base work on a 24 hours a day, seven day a week basis at about the end of 2007, and continued to work from home. Ms Putland’s evidence was that she dealt with between 20 to 60 calls per day. She estimated that each incoming call required about four outgoing calls due to the need to follow up with the Royans Wagga sales representatives and ask them to call other people.

Radio base between 2008 and 2012

107    By the middle of 2008, Ms Putland was getting tired from the 24 hours a day, seven days a week operation, and described it as “a big job for one person to try and do” and “almost impossible”. Ms Putland said that one of her children had been born in 2007 and she had needed some help desperately, so she asked her husband, Mr Putland, if he would consider giving her a hand. When he agreed to assist, she went to Mr Andrews and asked him if it would be okay if he (meaning Mr Andrews) would “put Shane on board as well”, to give her a hand. Mr Andrews said “yes” and was fine with it as long as it did not cost him any more than $2,800 (i.e. the amount that Ms Putland was being paid for working the entire week). Mr Andrews recalled the conversation quite differently and, in particular, denied that his approval had been sought for Mr Putland to be involved. Instead, Mr Andrews’ evidence was that Ms Putland mentioned that Mr Putland was helping because she was short-staffed. I prefer the evidence of Ms Putland on this topic, not least because there was no evidence of “staff” being employed by the Putlands as opposed to a small degree of paid assistance. The evidence of Ms Putland indicated deference to Mr Andrews in relation to Mr Putland being involved.

108    Ms Putland trained her husband and did not charge any more for him. The work was subsequently divided up between the two of them, four hours on and four hours off, at the suggestion of her uncle, Mr Cool, and Mr Andrews.

109    Ms Putland saw her accountant, Mr Prest, in about 2009. He advised her that as she was approaching the threshold of having to charge GST, she should include GST in her invoice. Ms Putland also told Mr Andrews that she would now have to start including GST, to which he said, “yeah, that’s fine.”

110    Ms Putland was taken to a further set of sample invoices for the period 1 July 2009 to 28 October 2009. Again, the description given on those documents is “North Wagga Base Operations” and against the actual amount charged is “Normal Base Operation”. There is no reference to hours or even days, it being apparently a weekly payment for the 24 hours a day, seven days a week work that was being performed. This is more consistent with an independent contractor arrangement. Charging for GST was not consistent across the invoices and did not invariably take place. GST was charged for the invoice dated 1 July 2009, but not for invoices dated between 7 July 2009 and 9 September 2009. It was then charged again from 16 September 2009.

111    Later that year (also in 2009), Ms Putland went to see Mr Prest for some further advice. He said it would be more sensible if she and her husband were to split their wages, because the tax was starting to be “incredible” and she didn’t have anything to claim as a normal business would. Ms Putland said that Mr Prest had told her that the best thing she could do was to ask Mr Andrews if she could be “put on the books” so that she would be paid superannuation and holiday pay, and have income tax withheld. Ms Putland gave evidence that she went and spoke to Mr Andrews about this but he said that it was not something that he was considering at the time. He said he would speak to the different branch managers at a meeting that was coming up in a few weeks because it was everyone’s decision.

112    Ms Putland’s evidence was that the suggestion of income splitting was put into effect in 2010 following a discussion with Mr Andrews during which Ms Putland raised the conversation she had had with her accountant. In response, Mr Andrews had asked whether Ms Putland could invoice for half the year and her husband could invoice for half the year. This arrangement was reflected in the invoices that started to be issued in the name of Mr Putland from about 12 January 2010 (albeit that those invoices erroneously stated Ms Putland’s ABN instead of Mr Putland’s).

113    Repayments of loan moneys advanced by Royans Wagga are reflected in a number of the invoices issued in 2010 and 2011, some of which were recorded as “Less [amount] Staff Account” while others were recorded as “Less loan repayment”. Ms Putland explained that those loans took place because the Putlands could not demonstrate employment and instead borrowed money from Royans Wagga, deducting repayments from the invoices rendered. In my view, this was not an event of significant moment and had little bearing on the nature of the employment relationship. It was no more or less likely under either an employee or independent contractor arrangement.

114    Mr Andrews sent a copy of minutes of a group sales meeting held on 27 August 2009 to Ms Putland. Ms Putland identified this as taking place in mid-2009, which presumably means at some time proximate to the creation of the document. On the second half of the first page there is a heading that reads “Radio base”. Underneath that heading, the document stated, among other things, “We need to instruct the base operator of tasks we want them to do.” Ms Putland agreed that she did receive instructions of tasks that Royans Wagga wanted her to do.

115    Ms Putland said that there was a problem with representatives not telling the base when public holidays were occurring in their state, especially with the Brisbane branch. This resulted in callers being referred back to a closed office. This issue was also the subject of an email sent by Ms Putland.

116    In early 2010, Ms Putland started to charge a higher amount of $3,264.80, including GST, following a request for a pay rise, to which Mr Andrews agreed.

117    The evidence also included two quotes for a backup electrical power supply system from a company described as either Reconnect Communications or ReConnect Tumut, addressed to Royans Wagga, dated 4 June 2010 and 13 October 2010, respectively. It was not in dispute that the quotes were in relation to the installation of such a system for the Putlands’ home. This arose because of severe thunderstorms in the Wagga area in 2010, which affected the radio base work. The telephone system relied upon electricity to work, so when there was a power outage there were no telephones and therefore no accident reporting service. When the power outage happened during the storms, Ms Putland spoke to Mr Andrews and he suggested contacting Reconnect Communications about getting an alternative power supply. The equipment was paid for by Royans Wagga.

118    On 3 February 2012, Mr Andrews forwarded an email to the Putlands and Mr Haberecht (a sales representative for Royans Wagga) that he had sent to branch managers minutes earlier about the attempts of the Royans group of companies to maximise efficiencies between branches and the “Wagga radio base”. In that email, Mr Andrews directed every branch to adhere to a list of 10 procedures set out. Relevant to the issue of the characterisation of the relationship between Putlands and Royans Wagga are the following “required” procedures (verbatim; emphasis added):

…

As most of you are aware, as a group we are attempting to maximise efficiencies between branches & the Wagga radio base which requires adherence to the following points by every branch. This is stage one of proposed improvements which will require both reps & base to perform as per management requirements & expectations which branch managers will need to discuss with all their reps as a matter of urgency. Whether or not other stages of improvement are necessary will depend on a trial period of the following.

…

5.    Radio Base to send daily report no later than 7.00am every morning, otherwise other changes to the base will be required sooner.

6.    Radio Base to follow up reps if necessary on Owners Name & Where the vehicle went, perhaps obtaining this information may need several calls. Circumstances may sometimes arise that despite the best efforts of all concerned the information requested cannot be reported until after the base sheets have been sent. An ‘Update Report’ will then be sent when the information is available. If the information is not forth coming to the base without any obvious good reason, then the base will need to write something like, e.g. Base unable to get details from Rep XYZ despite numerous attempts, Branch Manager ABC to follow up & inform all.

7.    Radio base to text Sydney & Brisbane reps of 2nd, 3rd, 4th etc calls received from car towy spotters. These spotters will usually hang up immediately if they realise they are not the first call, but may have actually arrived at the scene or have extra information. The reps can then follow them up as appropriate.

…

10.    Whilst Royans Melbourne have a separate base themselves, common courtesies need to be complied with concerning all the above. …

Can all branch managers return email ‘To All’ if in agreement with the above & stating your support or otherwise to the conditions above & with an undertaking to see & tell your reps of the importance of adhering to these rules asap.

119    The only apparent purpose of Mr Andrews immediately forwarding to the Putlands and Mr Haberecht the above email sent to the branch managers was to advise of the directions in that email that applied to them and that were required to be performed to meet management requirements. This was a strong indication of the management control that Mr Andrews considered he could, and did, exercise over the way in which the Putlands performed their functions. With certain irrelevant qualifications, Ms Putland said that she did as was required by paragraphs 5 to 7 of the email sent to the branch managers, reproduced above. It is convenient to reproduce Mr Andrews’ evidence on this document at this point (emphasis added):

All we’re doing with this is having the reps do what they should be doing and the base doing what they should be doing and it was putting it out there so that they could all – well, the reps could hear it, and I sent it to the base, forward it to them so they could see what I’ve put to the reps. A lot of these rep things are things the base had complained about and it was things that I was trying to fix.

120    Also in evidence was a document entitled “Request for clarification on terms in relation to Police rostered “Owner to pay” towing and salvage contract”. The subheading and contents concern the responsibilities and obligations of a tow truck operator, and payment, when a New South Wales police officer has requested towing take place, arising from the operation and application of guidelines to the Tow Truck Industry Act 1998 (NSW) and the Tow Truck Industry Regulation 2008 (NSW). While the document is undated, one of the references at the beginning is to a document on a New South Wales government website, with a title including the date November 2012, such that I infer this document postdates that time. Ms Putland gave evidence that she prepared this document on behalf of Mr Andrews, who perused it and sent it back to her with a few suggested corrections to spelling mistakes, which she then fixed up. Ms Putland’s evidence was that she prepared this document because Mr Andrews and Mr Bert Cool (her uncle and an employee of Royans Wagga) had asked her to.

121    Ms Putland gave evidence that in 2012 there was some serious flooding in Wagga Wagga. The Putlands’ home was under water to a depth of 4 feet (that is, just over a metre). She said that they (in context, the Putland family) stayed in a motel for a week until they found a new place. The motel bill was paid for by Royans Wagga and instalments were deducted from the Putlands’ invoices under an entry titled “Less Motel acc”. It was put to Ms Putland in cross-examination that she received a government subsidy of some kind (perhaps a disaster relief fund), but she had no recollection of that taking place. Whether that occurred or not does not change the fact that the motel was at least initially paid for by Royans Wagga, as evidenced by the invoices rendered by the Putlands in mid-2012.

122    In the aftermath of the flooding, the radio base calls were diverted to the Putlands’ mobile phone numbers. All of the equipment costs for re-establishing the radio base at the Putlands’ new home were paid for by Royans Wagga.

Establishing the Hut: June 2012 onwards

123    Ms Putland gave evidence of having a conversation with Mr Andrews at her home in the middle of 2012 about the radio base operations. She said that there was a bitter conflict at that time within the company because there were suggestions that John Cusack of Royans Sydney wanted to get his own base situated at his home known as “The Rock”, which was 25 kilometres out of Wagga Wagga. On her evidence, Mr Andrews thought that a way to stop that from happening would be if he took control of the base again and put it out at the Hut.

124    According to Ms Putland, Mr Andrews told her that she and her husband would still be carrying out the base operations, but he would be putting a few extra people on. She thought he had already interviewed two people and had installed a whole lot of new software out in the Hut, such as new software for scanners. As a result of this change, the Putlands’ hours would decrease because other people would be put on. Mr Andrews initially said that they would have to go to the base in the Hut and could not do the work from home anymore, but she told him that would be almost impossible. That was because her parents, who were the main carers for the Putlands’ two children while they were working, had now moved to the other side of Wagga Wagga because of the flood, and their children had quite high needs due to certain medical conditions (which were described but do not need to be detailed). Ms Putland said it would have been quite hard for her to leave her children for the hours that Mr Andrews wanted and everything would have to change considerably.

125    On 29 June 2012, Mr Andrews sent her an email with the subject “Radio Base”, which showed the shifts that she was to select from, as extracted above at [64].

126    After this conversation (and email), from at least September 2012, and possibly as early as later July or August 2012 (see [67]-[68] above), Mr Putland attended the Hut and did shifts there and Ms Putland did weekend work from home. Ms Kylie Yerbury also worked in the Hut in September 2012.

127    Ms Yerbury was trained by Mr and Ms Putland. In relation to that training, Ms Putland gave Ms Yerbury a “call procedure list” that she had previously prepared and provided to Mr Andrews. In a similar vein, Ms Putland prepared a list of contact numbers to put in the Hut, gave it to Mr Andrews and provided a copy to Ms Yerbury. She also prepared and gave to Ms Yerbury a “WHO TO CALL” list.

128    In August 2013, Ms Putland sent an email requesting cleaning supplies for the Hut. This evidence, while of slight weight on its own, was apparently relied upon to demonstrate that first, that Ms Putland requested such supplies, and secondly as to the nature of the service the Putlands were providing, being confined essentially to labour.

129    In evidence was a series of emails on various dates in August 2012, including an attached letter addressing problems with rudeness. In one of those emails from Ms Putland to Mr Andrews, sent on 16 August 2012, she states (verbatim):

It is of my understanding that the radio base operates almost as a seperate [sic] entity, and is of a neutral position in regards to its service of the whole royan group.

130    The significance of that passage is the use of the word “almost”, which by necessary implication conveys the understanding that the service was not in fact an entity separate from the company, despite operating with a degree of ostensible separation. Weight can be placed on the quoted passage in particular because it is an implied representation, rather than anything that is self-serving, and accordingly can be accorded considerable weight. Even without reliance on the business records exception to the hearsay rule, such an implied representation would not be hearsay, but rather evidence of the truth: see s 59 of the Evidence Act 1995 (Cth) in relation to the concept of an asserted fact. The tone, content and tenor of the emails all indicate deference to Mr Andrews. His approval was sought as to the text and content of the material she drafted, and he dictated such things as the text for a covering email, which was then used without variation.

131    In late 2012, Ms Putland had a conversation with Mr Andrews about how she and her husband would be paid for the work and how they would invoice for the work. This conversation was in the context of Ms Putland working from home on weekends and Mr Putland working from the Hut during the week. As previously noted, Ms Putland’s evidence was that Mr Andrews asked if they could bill separately. When Mr Putland started going to the Hut, he had to provide his own separate invoices and she had to provide her own invoices. This was then done until the contract ended in May 2015 (whatever its legal character). This was consistent with the invoices in evidence for the second half of 2012 and the evidence that this practice continued until the end of the relationship in May 2015. Ms Putland’s evidence was that if Mr Putland had already worked a 15-hour shift then Mr Andrews permitted him to divert calls from the Hut to the Putland home. The final say rested with Mr Andrews.

132    From about late 2012, when Mr Putland went into the Hut at Royans Wagga, he was allowed to charge $20 per hour, and $25 per hour at night if he worked in the Hut, but if he filled in for Ms Yerbury’s shifts from home it was back to $20 per hour.

133    Ms Putland gave evidence that Ms Yerbury resigned from Royans Wagga in late 2014 (at [81] identified as being October 2014). Ms Yerbury had resigned by email while Mr Andrews was overseas, and Ms Putland said that she and Mr Putland could not contact Mr Andrews, so they just had to take over the phones because they were the only ones left and the phones needed to be answered. At that time, Mr Putland was the only person left to perform work in the Hut. Ms Putland said that Mr Andrews had called her upon his return from overseas to find out what had happened.

134    Ms Putland’s evidence was that after Ms Yerbury resigned, Mr Putland had submitted invoices for covering Ms Yerbury’s shift at Ms Yerbury’s hourly rate, which were refused by Mr Andrews. Mr Andrews apparently said that the Putlands could only invoice at Ms Yerbury’s rate of $25 per hour if the work was performed from the Hut. Ms Putland says that she questioned Mr Andrews on the fairness of the payment arrangement by saying:

Is that really fair, because Kylie [Ms Yerbury] got the same – she done exactly the same work. We didn’t do anything different to her. It’s just the fact that we were at home. Why should we get any less?

135    Ms Putland’s evidence was that Mr Andrews responded:

“Yes, but Kylie used to go out to the Hut to do it. You’re a contractor, Linda.”

136    Perhaps ironically, the unilateral nature of that subjective statement was itself telling evidence of the nature of the relationship between the Putlands and Royans Wagga via Mr Andrews. He retained the final say.

137    Ms Putland was asked whether she had a discussion with Mr Andrews at any stage about whether she was an employee or a contractor as follows:

Q.    Did you have a discussion with him at any stage about whether you were an employee or a contractor?

A.    Yes. That – that came up a fair bit with – Mr Andrews would often say to me, like, when I was – like, when I put my bill in for – for Kylie’s shift, he would say that I’m allowed to do my hourly rate as a – like, charge as an employee through the week but as a contractor on the weekend. That’s why I just couldn’t understand that. I still don’t really.

Q.    Did you say anything in response to that statement by Mr Andrews?

A.    “Well, it seems to – I’m a contractor when it suits – suits you, Bill, not – at any other time, I’m treated like one of the bunch, like a team member.” I’ve always, sort of – I haven’t been treated any differently until it comes to pay, and when I did look up the – the difference between the employee and the contract …

138    This was another example of evidence where its weight comes from implication rather than from the direct testimony. On her account, Mr Andrews was in control. However, as detailed below, Mr Andrews denies having discussions with either of the Putlands about them becoming employees.

The commercial call centre proposal, the issue of termination, and the Putlands ceasing to work for Royans Wagga

139    At the end of 2014, Ms Putland said that Mr Andrews had a discussion with her and Mr Putland. She said that Mr Andrews told them that there had been discussions with the other branches and the branches had decided a “new thing” might be taking place with an insurance company. Mr Andrews was not clear as to exactly what was going to happen, but he did mention that other places had “accident assist” or something similar where an insurance broker might be able to call through on a 1800 number. Accordingly, he wanted all branches to trial a call centre called “Well Done” in Nowra. Ms Putland says she asked him “so what does that mean for our job? What – what happens there?”. He said “well, look, it’s only a trial at the moment. We – We’ll just see how it goes.” Ms Putland says he did not really answer her question.

140    Ms Putland said that the issue of trialling a call centre came up again in the New Year (that is, early 2015). It came up many times over the Christmas holidays when all of the phones were diverted to them. There were no calls from O’Neills Newcastle. Ms Putland asked Mr Andrews about it and he said “they must have put them through to Well Done in Nowra”.

141    There was a further discussion about Well Done before May 2015, probably around late April, in a conversation between Ms Putland and Mr Andrews. Ms Putland told Mr Andrews that she had received a lot of complaints from spotters, in particular, and representatives who had a hard time getting hold of someone on the 1800 number. Counsel for Royans Wagga objected to this evidence, which was admitted not as to the truth and was subject to relevance. This evidence is relevant, admitted as to the fact that Ms Putland was told this, and that she conveyed it to Mr Andrews as something she had been told, but not as evidence of the truth. As such its evidentiary significance was limited, but it did indicate two things. First, that Ms Putland continued to raise issues concerning the radio base with Mr Andrews. Secondly, and of greater evidentiary weight, is that it is consistent with Ms Putland not having any subjective knowledge of having been given notice. If she thought that she had been given notice with effect in the immediate future (probably between late April and the end of contractual relations in early May), it is difficult to see why she would be raising issues to do with the quality of the services being provided by the alternative supplier. Rhetorically, why would she care if she was on the way out, so to speak? One answer might be that she was simply diligent despite being aware of the impending loss of work; but the better and more probable explanation is that she still hoped that the work might continue and had no idea that the end was nigh.

142    On 2 May 2015, John Cusack rang Ms Putland on her mobile number and said to her “the calls have stopped, they’ve gone through to the call centre now”. Ms Putland’s evidence was that she was told by Mr Andrews a few days or a week prior to 2 May 2015 that there was a possibility that some of the calls would stop because they were still trialling it (which I understood to mean the call centre), but there was never a proper end date and she says she was never told anything like that. Ms Putland maintained that she was told that some branches would put their telephones over to the alternative service.

143    Mr Andrews signed a letter dated 4 May 2015, although apparently written the next day, 5 May 2015, extracted at [90] above. Ms Putland said she was given a copy of the letter by Mr Andrews following her request to be supplied with a separation certificate for Centrelink purposes. Her evidence was that Mr Andrews refused to give her a separation certificate because he said “you weren’t ever an employee. You were a contractor. I can write you a letter if that will do.” I attach very little objective weight to the representations contained in that letter as to the nature of the relationship, and the statements allegedly made by Mr Andrews preceding it, for several reasons. First, it was a response to being asked for a separation certificate, which is a document that in ordinary usage is connected with employment. At least as much weight must be attached to the request for the separation certificate as an implied representation that Ms Putland was an employee as can be attached to any statement by Mr Andrews and any document signed by him to the effect that she was a contractor. Secondly, the letter (in this case for Ms Putland) refers to a purported belief on the part of Mr Andrews that Ms Putland was “no longer” contracted to any other companies for that work, when there was no evidence either that she had done any such work for any other company, or that Mr Andrews had any such belief or any basis for any such belief. Viewed in the most beneficial light, it may be seen as an attempt by Mr Andrews to help Ms Putland secure unemployment benefits. That conclusion applies equally to the letter in relation to Mr Putland, which was identical in content.

144    There are two more substantial conclusions to be drawn from that conversation and that letter. First, it does evidence the subjective beliefs of both Ms Putland and Mr Andrews. Although subjective belief has little role to play in contract formation, in the case of Mr Andrews, that assists him on the defence to the FW Act claim, at least as to actual knowledge of the Putlands being employees. Secondly, the reference to “a minimum of three months notice” in a letter dated 4 May 2015 is at least partially inconsistent with actual notice having been given well over four months prior, as asserted by Mr Andrews. If notice had in fact clearly and unambiguously been given the previous December, it is difficult to see why that degree of vagueness was deployed in the letters. It may be that Mr Andrews again was focussing on what would best help Ms Putland (and Mr Putland) to secure unemployment benefits.

Ms Putland’s evidence as to general matters

145    The practice of invoicing, and more general evidence as to when one or the other of the Putlands carried out the invoicing, suggested that for at least one of the years, some 75% of the invoiced amounts were by Ms Putland and 25% by Mr Putland. By contrast, Ms Putland’s tax returns, at least for 2011 and 2012, indicate that the income as declared to the Tax Office was divided down the middle, which indicates an income-splitting arrangement consistent with an independent contractor arrangement. The four tax returns in evidence each indicated that Ms Putland had claimed substantial expenses by way of deductions for contractor/subcontractor and commission expenses, depreciation expenses, motor vehicle expenses and other expenses.

146    The evidence indicates that GST, although charged and paid, may not have been remitted to the Tax Office.

147    On the topic of employees or anyone else assisting with the radio base work, Ms Putland said:

(1)    In the second half of 2005, when she just started working for Royans Wagga, her father may have assisted a bit and might have answered a few calls if she was really stuck and busy, but he was not paid by her or anyone else to do this. He answered one or two calls if she was really flat out and was handling two calls at once.

(2)    From about the beginning of 2006, when she had taken on additional hours, to the time at the end of 2007 when she started doing the whole of the operation 24 hours a day, seven days a week, nobody else helped her out or assisted with the work.

(3)    In the period commencing at the beginning of 2008 when she was doing 24 hours a day, seven days a week, to the point at which Mr Putland commenced doing some of the work in the middle of 2008, she believed she took a two-day holiday to Merimbula and in that period used Margaret Scott (Hinchcliffe) to answer calls for her over that weekend. Ms Putland thought Ms Scott was suggested by and paid by Mr Andrews; she was pretty sure that it was only for a two day period and she could hardly remember any other time off.

(4)    In the period from when Mr Putland started working with her at her home 24 hours a day, seven days a week from the middle of 2008 until about the middle or end of 2012, nobody else helped her with the radio base work. I understood this to be a reference to nobody helping her at the same time, as opposed to any form of relief work, which she otherwise gave evidence did take place.

(5)    In the period from about late 2012, when Mr Putland went into the Hut until the end of 2013, nobody gave her a hand on the weekend other than her husband, who may have done so when things were very busy. At times she relieved Mr Putland when he was working in the Hut such as for an appointment. She estimated that she probably helped him about 10% of the time and he helped her, at a wild guess, maybe 25 or 30% of the time. Ms Putland noted that she was hardly ever in the Hut to assist Mr Putland as he rarely needed assistance and did the solid 15 hour shift by himself. (Mr Putland did not live at the same house as Ms Putland in the period from October 2012 to April 2014).

(6)    In the final 18 months from late 2013 to May 2015, Mr Putland relieved her or helped with her duties on the weekends at times, probably a bit more than she had helped him in the Hut.

148    Cross-examination of Ms Putland at the tail end of the first day generally challenged the proposition that Ms Putland had provided the entire service on her own until Mr Putland became involved in 2008 and, in particular, the proposition that she had been able to do this 24 hours a day, seven days a week over many months. Evidence in Royans Wagga’s case established that Ms Putlands’ evidence understated the extent to which paid assistance in particular was obtained during the period in which the Putlands were responsible for the radio base 24 hours per day, seven days a week, albeit before the relevant period. The level of paid assistance provided to the Putlands is explored further in the context of Ms Scott’s evidence below.

Shane Putland

149    Mr Putland impressed as a witness without guile, simply giving truthful evidence to the best of his ability. His account was largely corroborative of Ms Putland’s evidence. It reinforced the notion that Mr Andrews dictated who was to do the work, but also that Mr Andrews was subjectively endeavouring to achieve an independent contractor arrangement.

150    Mr Putland gave evidence in chief that prior to the middle of 2008, he was working for a company called Ausply as a full-time labourer on a night shift. At that time, he was aware that Ms Putland was working for Royans Wagga and had been doing so since about 2005. In the first half of 2008, he noticed that Ms Putland’s workload had increased a lot, especially due to the Sydney branch of Royans requesting that their scanners be listened to, whereas previously it was mainly Wagga Wagga scanners and Albury scanners. Once that had started, Royans also requested that the RTA site be monitored more, and the workload for Ms Putland just increased. The significance of this evidence needs to be considered in the context of the rates of payment for the Putlands not changing consequent upon this increase in work.

151    Mr Putland was aware that from late 2007, Ms Putland had been responsible for the radio base 24 hours a day, seven days a week. Mr Putland said that it started getting to the point where Ms Putland was getting mentally exhausted and he told her she had to do something about it and maybe speak to Mr Andrews and hire someone else to do the work. He said that Ms Putland thought that because he had been helping her to listen to the scanners when he was home, she could talk to Mr Andrews and see if he could “come on board”. He was aware that Ms Putland subsequently had a conversation with Mr Andrews, who approved that course as long as Mr Putland could obtain an ABN and invoice with her “or however it needed to be”. Mr Putland said that after Ms Putland had received approval from Mr Andrews, he finished a week later at Ausply and then left that job.

152    Mr Putland described the training that Ms Putland gave him as entailing:

(1)    showing him how to answer the phones, which he had listened to her do a number of times;

(2)    explaining the things to listen for on the scanners, which he was already well aware of; and

(3)    explaining how to deal with each call as work came in, including who to call in which areas.

The impression to be gleaned from this evidence was that whilst the content of the work could undoubtedly be pressured and demanding, it was not a highly-skilled job in the sense of requiring high levels of technical ability or training, although inter-personal skills, judgment and initiative, especially under pressure, were no doubt of importance. There was not a wide scope to vary how things were done in the sense of monitoring the scanners and making and receiving phone calls and so on. It is not an area in which there was much scope for any fine level of control as to how those particular tasks were carried out, irrespective of whether the work was carried out as an employee or as an independent contractor. As Mr Putland described it, it took probably the first week until he was confident enough to do the job himself, by which time he “had it pretty much down pat”.

153    Mr Putland gave further and more detailed evidence on what was involved in carrying out the job, confirming the above impression as to its nature, most of the details of which are not necessary for the purposes of these reasons. In response to questions as to how the work was divided up between the Putlands from around 2008, Mr Putland indicated that he and Ms Putland:

… would help each other out. If someone was tired or needed to go do something, the other would just jump on board, and at times both of us would have to be required to answer calls. We just took it as each day comes.

154    Mr Putland was taken to his ABN document. He said that he remembered his wife getting him an ABN and that she did it on a computer. He could not recall exactly when she did it or for what reason. He had no recollection of talking to her about it.

155    Mr Putland remembered Ms Putland showing him the Royans Wagga group sales meeting minutes dated 27 August 2009 (as referred to in Ms Putland’s evidence at [114] above). He was taken to the bottom of the first page of that document which contained the words “We need to instruct the base operator of tasks we want them to do”. He confirmed that he did receive instructions about what he was to do.

156    Mr Putland was taken to the invoices that were issued by his wife and by himself. He gave evidence about entries in the invoices reflecting loans being made by Royans Wagga to the Putlands because they weren’t able to get a loan from elsewhere due to their contractor status. He described telling Mr Andrews about their difficulty in obtaining a loan and Mr Andrews offering to give them a loan “on the staff account, and just paid off weekly”.

157    Mr Putland was taken to another invoice, dated 13 April 2010, which had the entry:

Base Scanner Aerial                 $ 175.00

His evidence about this entry was that the Putlands needed to get a new aerial for one of the police scanners, so Mr Andrews told them that if they just went and bought one and submitted an invoice for the costs they would be reimbursed, which is what happened.

158    Mr Putland confirmed that during the period of his involvement in the radio base, from about the middle of 2008 through until May 2015, the work was only performed for Royans Wagga and nobody else. He also confirmed that nobody else ever asked him to perform those services for them. He never sought out an opportunity to do so because 24 hours a day, seven days a week was hard enough with one company. Even in the periods in which those hours were not worked, it was still a lot to take on.

159    Mr Putland also remembered seeing the 3 February 2012 email that had been sent to the branch managers and forwarded to the Putland email address, extracted above at [118]. Ms Putland showed it to him after receiving it through their joint email account. He read the document when he received it. He recalled that he and Ms Putland had discussions with Mr Andrews following this email and that they spoke to him about a lot of things, especially about updates for the log reports. This evidence, in keeping with the evidence of Ms Putland, was to the effect that while the details of individual call handling was generally carried out on their own initiative, the general scope of the work and the overall approach that should be taken was very substantially under the control and direction of Mr Andrews.

160    For example, paragraph 5 of the 3 February 2012 email was as follows:

Radio Base to send daily report no later than 7.00am every morning, otherwise other changes to the base will be required sooner.

Mr Putland said that he undertook that task after seeing that email and that when the representatives stopped doing what the email had asked of them and there were no updates given, Mr Andrews had requested to hold back on the emails sending the log reports to make sure the managers were aware of what was happening. He recalled that happening a few weeks after Mr Andrews’ 3 February 2012 email.

161    Mr Putland similarly confirmed compliance with the requirement in paragraph 6 of the same email that the radio base follow up the representatives if necessary on particular information. The same evidence was given concerning other directions in that email at paragraph 7 addressed to “radio base”, although Mr Putland noted that there was a degree of discretion involved because different Royans representatives had different requirements of the radio base.

162    Mr Putland also confirmed that after the floods in Wagga Wagga, Mr Andrews had asked the Putlands to get a second telephone line installed at their temporary rental house, and that this was paid for by Royans Wagga. Mr Putland said that Royans Wagga also paid for the telephone system at the Putlands’ flooded house to be disassembled, transported and reinstalled in the rental property. At the end of the Putlands’ six months in the rental property, Mr Putland said that Royans Wagga had again paid for the telephone system to be disassembled, transported and reinstalled, this time in their home.

163    Mr Putland recalled a conversation in the middle of 2012, when Mr Andrews came to the Putlands’ house to discuss the future of the radio base work. He remembered Mr Andrews talking about relocating the phones back to Royans Wagga so that they could be in more control of it. Mr Putland gave evidence that “One of the main things was to stop John Cusack having his own base”. A key part of Mr Putland’s evidence on this conversation was as follows:

We said to Bill [Mr Andrews] that, “is this going to affect our pay?” And he said, “well, what we’re thinking at the moment is – if we take it back and get a few other people there, and we’ll just taken [sic] as it goes.” So Bill really wanted more control.

When asked whether he said anything in response to what Mr Andrews had said to him in this conversation, Mr Putland said that he wasn’t very happy about it, but that he told Mr Andrews he would do some shifts out there (meaning in the Hut) as Ms Putland could not because the children were small. Mr Putland’s evidence on this topic described the situation as being very hard. The clear impression from his evidence was that he really had no choice but to agree to Mr Andrews’ proposal, albeit that Mr Andrews responded with an offer to do shorter hours.

164    Mr Putland gave evidence that Mr Andrews also told them in that conversation that he had already organised for two other people to work in the Hut, being Mr Rodney Roy and Mr Joel Roy. Mr Andrews also asked if the Putlands knew anyone else who might be interested in taking on some shifts.

165    Mr Putland was also taken to the email from Mr Andrews of 29 June 2012 which set out the proposed shift times. He remembered seeing the email after it was sent to Ms Putland’s email address, and discussing it with Ms Putland and Mr Andrews in a joint discussion. Mr Putland described being told by Mr Andrews that the Hut was being set up and that once it was ready, he could go there and start pretty much straight away.

166    It was plain from the burden of Mr Putland’s evidence that Mr Andrews was very much the controlling force in this movement of the work back to the Hut. On the basis of the Putlands’ evidence about this conversation in 2012, it was very clear that it was Mr Andrews who was determining how things would be done, and where. The evidence of Mr Andrews about this conversation, outlined below, did not change that impression. To the contrary, it tended to reinforce it, notwithstanding the use of the language of a “proposal”.

167    Mr Putland described work in the Hut as “the same job, just a different location”. He gave further evidence about the different people working in the Hut at that time, whom he described as all doing exactly the same work but just in different shifts. By that time, Ms Yerbury was also working in the Hut with Mr Putland and the Roys.

168    Mr Putland gave evidence that he eventually ended up taking on Mr Joel Roy’s shifts, and Mr Rodney Roy did not work in the Hut for very long. Some time later in 2012, Mr Putland suggested his friend’s mother, Ms Vicky McCully, to Mr Andrews as someone who might be interested in doing some shifts in the Hut. Mr Putland said that Mr Andrews asked him to organise Ms McCully to come in for a trial, which he did. Mr Putland said that Mr Andrews explained the role to her, and told her that if she obtained an ABN and invoiced her hours each week then Mr Putland would train her. Mr Putland was thereafter responsible for training Ms McCully. Invoices issued by Ms McCully that displayed her ABN formed part of the documentary evidence relied upon by Royans Wagga.

169    Mr Putland gave evidence in chief that between August 2012 and May 2015, Ms Putland’s father, Ron Pullen, would sometimes answer radio base calls at the Putlands’ home. Mr Putland said that this happened without any payment being provided to Mr Pullen, and did not happen at all in relation to shifts in the Hut. Mr Putland said that he and Ms Putland also paid Mr Sloan for listening to scanners in about 2010 or 2011. Mr Putland’s evidence was that Mr Sloan had worked for Mr Andrews “a long time ago” and Mr Andrews was aware that Mr Sloan was listening to the scanners “from day 1”. Mr Putland said that in relation to work performed by Ms Scott, the Putlands had spoken to Mr Andrews about needing to find someone to allow them to take some time off. Mr Putland said:

It was up to Bill’s discretion on who we get, because he wanted to pick the right person. And he advised Margaret [Ms Scott] would be a good candidate for it, because – as she had worked for Royans before.

Mr Putland thought that Mr Andrews did not put any requirements around when the person was to do the job, but he wanted to be able to pick who did the job. This evidence had a ring of truth about it and is accepted, even if it was inconsistent with the tenor of Mr Andrews’ evidence and the Royans Wagga pleading to the effect that not much was known about how the Putlands ran the radio base on a day-to-day basis.

170    Mr Putland gave evidence that in late 2014, after Ms Yerbury had left and he and Ms Putland were doing the radio base work exclusively from home, Mr Andrews came to their home and spoke to them about the radio base work. Mr Andrews advised them that Royans Wagga was going to trial the radio base phone calls going to a call centre. Mr Putland indicated that he thought Mr Andrews had said this call centre was located in Nowra, and emphasised that it was Australian-owned. Mr Andrews insisted that it was only a trial at that point in time. The Putlands were not sure how to take it, because they had always been told that the job was theirs indefinitely. He described Ms Putland as being very annoyed because she did not know how to take it, but that Mr Andrews kept insisting that it was a trial.

171    After that conversation, Mr Putland did not understand that the radio base work was going to be removed from him and Ms Putland. In his evidence he reasoned, perhaps with a degree of hindsight, that the first alternative place that Royans Wagga had tried [Well Done] had not worked out. He pointed out that Royans Wagga eventually chose not to use their services because the calls were taking up to five minutes to be answered (but I note that was not communicated to Well Done until after the Putlands had ceased working for Royans Wagga). Mr Putland said he thought it “just wasn’t working out at all” with the call centre in Nowra [being Well Done]. Mr Putland was told this, as was Ms Putland, by many of the sales representatives (necessarily a reference to part of the trial period with Well Done). The sales representatives had told them about the trial and said they were not happy about it. This was not evidence of the truth of what was said by the sales representatives, but was relevant in relation to the state of mind of the Putlands as to whether they thought they had been given notice.

172    Mr Putland said that after the initial meeting with Mr Andrews at the end of 2014, they had spoken to him quite a few times and had been told about the problems with the first call centre they had trialled. Mr Andrews told them that Royans was going to try another call centre but, again, he said it was only a trial. Mr Putland recalled this conversation taking place around the end of January 2015. Mr Putland said there were further conversations with Mr Andrews after January 2015 about this trial, and that Mr Andrews would ring up and let them know that it was not going as planned. He said that Mr Andrews told them that some Royans branches would divert their phones to these call centres, and he asked that they just keep doing the rest of the phones until Mr Andrews got back to them (that is, to the Putlands).

173    The evidence of the trials was consistent with Mr Putland genuinely not understanding that any notice of termination had been given.

174    Mr Putland was questioned about the final weekend that the Putlands worked for the radio base in early May 2015. He said that he and Ms Putland had noticed that no calls were coming through. He received a call from John Cusack on the Saturday morning that one of the other sales representatives, John Gould, had been trying get through to the radio base on the Saturday and was unsuccessful, so he had called Mr Cusack. After some investigating, it was realised between Mr Cusack and Mr Gould that all of the radio base phones had been diverted through to the call centre (which, at that stage, was Fonebox). Mr Putland said that Mr Cusack’s call was the first he had heard about the phones finally being transferred to the call centre and that he and Ms Putland were not aware it was happening.

175    The cross-examination of Mr Putland started with his tax returns. There is no need to go into this evidence in a great deal of detail as it is accepted that the taxation arrangements were consistent with an independent contractor arrangement. The same may be said about the invoices that were issued, and the use of an ABN. However, on the basis of the authorities discussed above, this sort of evidence often can, and in the context of this case does, have a similar weight to evidence of subjective intention. It reflects subjective belief as to what the arrangement was and is not necessarily determinative, or even very important, in trying to ascertain the true nature of the relationship. That was very much the situation in this case.

176    Mr Putland was cross-examined to the effect that there were advantages to him working from home rather than working in the Hut. This was focused on the period after Ms Yerbury had resigned in October 2014 while Mr Andrews was away. The work was taken back to the Putlands’ home from late 2014 until the termination of the arrangements between Royans Wagga and the Putlands in early May 2015. There were questions about the way in which the work had previously been organised in the Hut and when Ms Putland would fill in for him in the Hut. He also confirmed that there were occasions when the phones would be diverted back to their home and the service provided from there. He similarly agreed that the work was varied but not complex, describing it as easy for him to do. That, along with a letter provided by Mr Andrews that described Mr Putland as a subcontractor, did not much advance the key question of control, nor do much more than point to the subjective intention established, particularly in the mind of Mr Andrews, to have a subcontractor arrangement. That evidence did not persuade me as to the real substance of what was taking place.

177    On balance, Mr Putland’s evidence, while differently expressed, was consistent with Ms Putland’s evidence. The burden of his evidence was that the substance of the work he did was under the overall direction and control of Mr Andrews. There was no reason to doubt that this was so.

Additional evidence for Royans Wagga

Margaret Scott (also known as Margaret Hinchcliffe)

178    As noted earlier at [47], Ms Margaret Scott was an employee of Royans Wagga between late 1999 and 2001, and had assisted in setting up the radio base at Royans Wagga with Mr Andrews and Mr Bob Cool (Linda’s uncle). Her evidence in chief described the tasks she undertook as an employee of Royans Wagga between 1999 and 2001 in terms that were not materially different from the work description given by Ms Putland. She said that she had designed the forms used for recording incidents in conjunction with Mr Bob Cool, indicating that this was a part of her duties as an employee of Royans Wagga. Ms Scott’s evidence described the radio base in 1999 – 2001 in terms that were quite similar to the way in which work was organised in the Hut after July 2012, including the organisation of shifts.

179    Ms Scott gave evidence to the effect that she had done work for the Putlands over about a six month period, which she recalled commencing towards the end of 2009. She adopted her bank statements as reflecting the payment she received from the Putlands for doing that work, save for some work done for the Putlands for a period of approximately one month before the first bank transfer for which she had been paid cash in hand. Ms Scott stated that she understood the transition from cash payments to bank transfers arose from a discussion between the Putlands and their accountant. This served to confirm the reliance placed by the Putlands on their accountant, by way of the implied representation to that effect, which is not caught by the hearsay rule.

180    In her evidence in chief, Ms Scott described the work she was asked to do for the Putlands as “the same as what I had done when I was employed for Royans” and that she “agreed to do the phones for them of a weekend”. She said that none of this work was done from the Putlands’ home. Ms Scott indicated that the Putlands had provided her with a pre-paid mobile phone to make outgoing calls while the Royans Wagga phones were diverted to her house during the weekend. She gave evidence that she already owned two scanners and used those when working for the Putlands.

181    In cross-examination, Ms Scott said that while she was an employee of Royans Wagga in 2000 and 2001, she never had to fill in timesheets. Ms Scott stated, “Bill had me on a wage to come in Monday to Friday, 9 [am] to 5 [pm], and I was paid an award wage, and that’s what I did”. Ms Scott could not remember the name of the award, and confirmed that Royans Wagga “had me in a super fund”.

182    Ms Scott agreed in cross-examination that the total amount she was paid by the Putlands would be the total of the amounts recorded in her bank statements from September 2009 until February 2010, plus an amount of approximately $1,200 for the month of cash-in-hand work conducted prior to payment by bank transfer (that figure being calculated on the basis of approximately $300 per weekend for four weekends of work). She also agreed that the intensity of the work on the weekend for the Putlands varied. She said that while it was sometimes quiet, it was sometimes “crazy”, and she had to do the work from the beginning to the end of a shift, at all hours. She described the work as follows during cross-examination:

A.    [spontaneously] … What actually happens – you’ve got your scanners going there all the time. The phone will ring. You answer it. So, look, I could go to bed if I wanted to. The phone would ring. As soon as the phone rang, I would jump up, rip into the office and the computer was turned on and I would just start writing things down and calling everyone.

Q.    All right. So there was no point in time at which it was okay for you to turn everything off and not monitor the phones or the scanners at all? You had to be ready to jump up and spring into action if you got a call?

A.    That’s right.

Q.    Thank you. And that was the case the whole time you were doing this work for the Putlands over the weekends?

A.    Yes.

183    In a line of questioning in cross-examination about runners, who were individuals relied on by Royans Wagga to attend the scene of accidents and provide information on the owner of the trucks to assist in obtaining the repair jobs, Ms Scott gave evidence that she assumed that Mr Andrews was responsible for collecting forms with information about the runners and then determining how much the runners were paid for their assistance, albeit never having spoken to him about this process.

184    In re-examination, Ms Scott gave the following evidence in relation to her time as an employee of Royans Wagga between 1999 and 2001:

Q.    Ms Scott, you were asked questions about the hours which you worked, and you gave an answer that, generally 9 to 5, Monday through to Friday, and so I understand by that that you would attend at the premises to do the work?

A.    That’s right.

Q.    Were you able to divert the phones to your own home?

A.    Yes. I often did a weekend at home, because it’s really hard for them to get anyone to do the phones of a weekend. So what would happen, I would knock off work at, say, 5 o’clock. Bill was always back at – at the Royans premises, and I would just – I would go and get whatever I needed at the shop and what not, and I would say to him, “Okay. When you’re knocking off at, say, 6, give me a call and I will be ready to take over.” And that’s what Bill would do. He would ring me and say, “Are you right?” And I would say yes, and the phones would be switched through, and I would take them from there. I would have them all weekend.

Q.    And that was just on weekends, was it?

A.    When there was no one to do them. I did – did them quite often at home for Royans of a weekend.

185    In the end, Ms Scott’s evidence in support of the case for Royans Wagga was confined to her being paid what must have been approximately $7,000 by the Putlands over a six-month period between August 2009 and February 2010. That figure has been arrived at by adding $5,866.90 (the total amount paid to Ms Scott, as reflected in her bank statements and as noted above at [59]) and $1,200 (for the month of cash-in-hand weekend work). This did not do much at all to advance the case for the Putlands being employed as independent contractors, given the relief nature of the work performed. It is certainly not unheard of for employees to make arrangements for others to do their work in their absence, although ordinarily it would be expected that for an employee replacement, payment would come from the employer. In any event, this took place well before the relevant period. It does not alter the magnitude of the change from the work being done from the Putlands’ home in 2007 – 2012, to what was in place with the Hut after July 2012 until October 2014.

186    The greater value of Ms Scott’s evidence was in aid of the case for the Putlands. That is because it follows from Ms Scott’s evidence that the nature of the work she performed for the Putlands was consistent with work done as a Royans Wagga employee. It did not make any difference if it was done at the Putlands’ home or at her own home. It was indistinguishable from employee work. Moreover, when she was an employee of Royans Wagga she did weekend work of much the same kind, which went a long way towards extinguishing any material difference between the weekday work done in the Hut by Mr Putland, and the weekend work done from home by Ms Putland. Indeed, the way she described the work when she had been employed by Royans Wagga during the week seemed similar to the way in which the work was organised in the Hut.

Brett Haberecht

187    Brett Haberecht was employed by Royans Wagga in the period from March 2001 to February 2016 as a sales representative. He stated that his role involved going to truck accidents when required and travelling around to see transport companies. His evidence in chief was that part of his role as sales representative involved working in the Hut approximately one day per week to complete computer work, files and reports. Mr Haberecht gave the impression of someone who was eager to give evidence in favour of Royans Wagga and equally eager to discredit the Putlands. However, nothing much turns on this as he was not a particularly impressive witness and, in any event, did not have a very good recollection of even relatively recent events.

188    Mr Haberecht gave evidence in chief about seeing either Mr or Ms Putland in the Hut at various times. He said he had conversations with others at Royans Wagga about issues with irregular attendance by the Putlands in the Hut. He said that Mr Andrews would come in to the Hut sometimes in the morning and he would say to Mr Andrews “There’s no one in the Hut today. No one working today on the radio base.” When pressed for the exact words that he said to Mr Andrews, he recounted his part of the conversation as, “No one is in the Hut today. We’ve got no one on the radio base today”. His evidence was that Mr Andrews responded by saying “apparently not, Brett”. While that evidence was evidently called to discredit the work performance of the Putlands, it ultimately went nowhere, not least because that was not an issue in the case and, even if it had been, there was very little evidence to that effect. Mr Haberecht was also vague about the timing or frequency of the events he deposed to. However, his evidence in chief provides some evidence of the fact that Mr Andrews was regarded as being in control of what did or did not happen in the Hut, both by reason of his apparent regular attendance there and the fact that he was the person to whom comments or concerns would be directed.

189    In cross-examination, Mr Haberecht explained that his role at Royans Wagga in his last four years was different, insofar as he became responsible for travelling around and conducting sales work more than attending to accidents and incidents. He agreed that in those last four years he spent a great deal more time travelling on the roads (approximately four days per week), which must have been in the period from approximately 2012 until February 2016, when his employment at Royans Wagga ceased.

190    Mr Haberecht agreed in cross-examination that the radio base operators would, on occasion, identify people at the scene of an accident and assist the sales representatives with locations of accidents. He also agreed that it was important to try to get to the scene of an accident as quickly as possible so that competitors of Royans Wagga would not be the first to the job and procure the work. This evidence indicates that there was some degree of initiative and variety in the radio base work and it went comfortably beyond just answering telephones.

191    Mr Haberecht agreed that friction developed between sales representatives from time to time, and that in the “earlier piece” of his 15 years working at Royans Wagga, there had been some friction within the different branches of the Royans group.

192    In cross-examination, Mr Haberecht confirmed that there were a number of Royans Wagga employees who did some of the work in the Hut from August 2012. This was a small piece of evidence supporting the notion that the work in the Hut was employee work.

193    Also in cross-examination, after a number of questions on the topic, Mr Haberecht eventually recalled being told by Mr Andrews about a trial of a call centre in Nowra towards the end of 2014, although he was not aware of the name of the call centre company. He also recalled being told by other sales representatives that a call centre being trialled was taking too long to answer calls. He also recalled being aware that the Sydney radio base work was transferred to John Cusack in 2014.

Bill Andrews

194    Mr Andrews gave evidence in chief over approximately half a day and was cross-examined for almost a day and a half, with brief re-examination. Mr Andrews impressed as an intelligent and highly experienced businessman, with an adult lifetime working in senior positions with Royans company entities, including, in particular, Royans Wagga. The manner and content of his evidence showed him to be an articulate and forceful advocate for the best interests of Royans Wagga, as he perceived them to be. He was plainly a skilful negotiator who was well able to drive a hard bargain, exercising the power that came with the position he occupied. The bargaining position and skill between Royans Wagga and the Putlands was far from equal, and was as much a matter of Mr Andrews’ force of personality as his underlying financial power.

195    The key parts of his evidence warranting particular attention covered the following topics under the headings below:

(1)    History and structure of Royans, including Mr Andrews’ role;

(2)    Establishing the radio base and until Ms Putland commenced work – 1990s to 2005;

(3)    Radio base with Ms Putland between 2005 and 2007;

(4)    Radio base move to the Putland home in 2007;

(5)    Radio base between 2007 and 2012;

(6)    Establishing the Hut – June/July 2012;

(7)    The commercial call centre proposal, the issue of termination, and the Putlands ceasing to work for Royans Wagga;

(8)    After the Putlands’ termination;

(9)    Other aspects of the radio base operations during the time the Putlands worked there.

History and structure of Royans, including Mr Andrews’ role

196    Mr Andrews gave a reasonably detailed account of how Royans was started in 1944 by his grandfather, how his uncle and father started Royans Wagga in 1980 and the roles he had occupied at senior levels over a very long period of time. He described Royans Wagga as primarily a truck and trailer repair facility, which also repaired boats, motorhomes, horse floats, agricultural equipment, and construction and earthmoving equipment. Most of the work was insurance work, but there was also a large portion of private work as well.

197    Mr Andrews outlined in his evidence in chief the structure of staff and their roles at Royans Wagga, which included staff in the field, in the workshop and in the office. He confirmed that all employees were employed pursuant to the Vehicle Award, aside from two office staff who were employed pursuant to the Clerks Award, which Mr Andrews thought was a state-based award. As the later discussion about award classifications makes clear, the differential use of the two awards was consistent with their terms and helpfully informed the proper approach to that issue. All staff wore uniforms, which were ordered once per year for tradespeople, or were ordered on demand for the office staff and managers such as Mr Andrews.

198    In his evidence in chief, Mr Andrews outlined the structure and history of the Royans group of companies. He explained that each branch in the group has geographical boundaries which are referred to between the branches as “grey areas”. Those grey areas required cooperation between branches, and were usually divided between branches by postcode for the purposes of accident recovery work.

199    Mr Andrews gave evidence in chief about Royans Wagga engaging a number of contractors for things such as wheel alignment, auto electrics, signwriting, fabrication, lawn mowing and garden maintenance, cleaning and, by the time he gave evidence, an accident recovery service provided by Fonebox. He described many of the contractors as using equipment at the Royans Wagga premises, including scissor lifts, hydraulic rams, a vehicle pit and other equipment in the storeroom. This appeared to be an attempt to place those contractors in the same position as the Putlands. If so, it was not a convincing analogy in evidence in chief. It was even less so following cross-examination, in which Mr Andrews accepted that none of those contractors came and sat permanently at a designated location at Royans Wagga (unlike, as the evidence disclosed, Mr Putland did for over two years between about September 2012 to October 2014). Such contractors were generally contacted and asked to come and do specific work at the company premises. A number of them had employees who provided services that were not provided by staff at Royans Wagga. None of them had their phone or internet bills paid for by Royans Wagga. Each of them was a professional operation. Royans Wagga had never loaned any of them or their staff money. Notwithstanding that, Mr Andrews maintained that the circumstances of the Putlands were the same as these other contractors and denied the proposition that they were not in the same category. While I would not regard Mr Andrews as being untruthful on this evidence, I consider that he was stretching his evidence and that the comparison sought to be drawn by him was not properly there to be had. I therefore reject the intended effect of that evidence.

200    Mr Andrews gave the following evidence in chief about his role at Royans Wagga:

My role is to basically manage the key employees or the key staff at Royans Wagga as well as the branch manager of Royans Dubbo. My role is to ensure that they’re doing their job; to look at strategic planning; staff training; to make sure the workplace health and safety procedures are being followed; to monitor and guide the expenses; to peruse management or, rather, profit and loss and accounting details; and, I guess, advertising and just general things like that. There’s many other things, of course, but that’s just a guide.

201    The above description ended up also reflecting, in large measure, the nature of Mr Andrews’ relationship, on behalf of Royans Wagga, with the Putlands.

Establishing the radio base and until Ms Putland commenced work: 1990s to 2005

202    Mr Andrews said that the radio base started in the late 1990s and, until about 2005, it was fairly stable with employees “in the base” on the Royans Wagga premises. He said that those employees in the base were in the room behind reception and would be utilised for other purposes such as relief reception and other administrative tasks. However, that employee stability changed in about 2005 or 2006 when, within a period of about six months or perhaps over a year, one or two employees wanted to move to Queensland and one other employee moved to Canberra. Royans Wagga could see that if more staff were going to be leaving, different ideas needed to be considered as to what to do about continuing to provide the accident recovery service.

Radio base with Ms Putland between 2005 and 2007

203    Mr Andrews gave evidence in chief as to how he met Ms Putland and how she came to work for Royans Wagga. This builds on the general outline above. Ms Putland’s father, Mr Ron Pullen, was known to Mr Andrews from about 1992 as a person who procured work for Royans Wagga’s opposition, “Re-Car”. Re-Car was “sort of across the road and just a little bit down”, meaning located nearby. Mr Andrews regarded Mr Pullen as having a fairly good name for being a tough competitor and hard to win work against. Mr Andrews also sat on a few boards with Mr Pullen, including for the Trans-Help Foundation, for which Ms Putland later did some volunteer work. Mr Andrews could not recall exactly when he was first introduced to Ms Putland, but he thought it was when she came in for an interview with him in about 2005. Ms Putland’s uncle, Mr Bert Cool, who was an employee of Royans Wagga, had suggested that she would be good at the radio base work as she had experience working at Re-Car.

204    Mr Andrews gave evidence in chief that Ms Putland operated from home and that her duties were the “normal duties of a radio base”. This evidence was consistent with Ms Putland’s evidence of the work she performed for Royans Wagga from 2005.

205    In his evidence, Mr Andrews referred to finding some office ledgers which showed that Ms Putland was employed as a contractor back in the “early years”. It should be noted, however, that the only ledger in evidence, tendered by Royans Wagga, referred to Ms Pullen being paid “wages”. Accordingly, the documentary record and this evidence were in conflict. In any event, this record is of limited evidentiary value because it reflects subjective intention and not necessarily objective reality. It reinforces the importance to Mr Andrews, and thus to Royans Wagga, of his subjective view as to the employment arrangements that were most desirable to the business, rather than reflecting a disciplined approach to legal requirements. Additionally, that ledger relates to the 2007-2008 financial year, which is well before the relevant period commencing in September 2012.

Radio base move to the Putland home in 2007

206    Mr Andrews gave evidence in chief that in about September 2007, Royans Wagga were again having difficulty in maintaining employees at the radio base. He received a phone call from Ron Pullen, who said to him words to the following effect:

Bill, Linda [Pullen/Putland] has been doing the base now for a few years. I’ve been talking with Linda. We have … a very good proposal to put to you, and I’m sure you will find it most helpful and take a lot of weight off your mind. You won’t have to worry about the base. It’s a lot of good ideas in this. Do you mind if Linda and myself make an appointment with you and come and see you?