FEDERAL COURT OF AUSTRALIA

Howard v Merdaval Pty Ltd (trading as North Essendon Auto Spares) [2020] FCA 43

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    The sole issue that arises on this appeal is whether the primary judge erred in concluding that the appellant, a courier, was a contractor, and not an employee, of the respondent, which operates a wholesale and retail automotive spare parts business.

2    The appellant does not take issue with the factual findings made by the judge. Nor does she contend that the judge applied the wrong legal test.

3    The parties also accept that although the primary judge did not refer in detail to the relevant cases governing the issue, he nonetheless applied the correct legal principles.

Standard of review

4    Like appeals from a judgment of a single judge of this court to a Full Court, an appeal such as this from a judge of the Federal Circuit Court is an appeal by way of rehearing. Thus, as Kirby J said in CSR Limited v Della Maddalena (2006) 224 ALR 1; (2006) 80 ALJR 458; [2006] HCA 1 at [16]:

The form of rehearing ... shapes the requirements, and limitations, of such an appeal. The relevant requirements are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having conducted a rehearing as so described, the appellate court is obliged to give the judgment which in its opinion ought to have been given in the first instance. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge’s reasons and engaging in the tasks of weighing conflicting evidence and drawing ... inferences and conclusions.

(Footnotes and internal quotation marks omitted).

The facts

5    The respondent operates a wholesale and retail business called “Drive Auto Parts”, which supplies spare parts and fittings to automotive workshops. It also operates a retail store called “Auto One”, which sells automotive accessories. Part of the service that the respondent provides is the delivery via courier of auto spare parts to automotive workshops and dealerships around metropolitan Melbourne.

6    The appellant was engaged to provide courier services to the respondent between 2004 and 2015.

7    The appellant made an application in the Federal Circuit Court under s 545(1) of the Fair Work Act 2009 (Cth) against the respondent seeking compensation for contravention of either of the Road Transport Distribution Award 2010, or the Vehicle Manufacturing, Repaid, Services and Retail Award 2010. Her case below and on appeal is that:

(1)    she was an employee of the respondent at all relevant times, not an independent contractor;

(2)    her employment was covered by the terms of either the Road Transport Distribution Award 2010, or the Vehicle Manufacturing, Repaid, Services and Retail Award 2010; and

(3)    she was underpaid as a result in excess of $230,000.

8    The primary judge dismissed the application.

9    The primary findings of fact are contained in his Honour’s reasons at [161]-[176] under the headings “Conclusions”. The findings do not refer to any particular evidence referred to earlier in the reasons (at [18]-[160]). But, because the appellant does not take issue with those findings, conclusory though they be, they may be taken at face value. The appeal, in any event, was conducted on that basis.

10    It is best to set out the relevant parts of those findings (omitting findings that the parties agreed were irrelevant):

161.    This case concerns dealings between the parties over many years … The Respondent’s business needs were for contractors, due to the uncertainties of their business needs and the costs of establishing an employed driver in their relatively small business.

…

165.    I accept that the parties clearly intended their relationship to be one of independent contracting rather than a relationship of employment.

166.    Throughout the relevant periods the Respondent also used Ontime Couriers contractors from time to time, and the Respondent also had employee drivers. This is not a case of an employer simply setting out to avoid standard employer’s obligations. The Respondent had employed drivers and had a legitimate business need for contractors. The Applicant started working with the Respondent as a contractor …

167.    The Applicant did not wish to be an employee of the Respondent, primarily because she would not have been able to choose the type of vehicle she would have to drive for deliveries, nor have private use of the delivery vehicle. She also enjoyed some small flexibilities not likely to be available to employees. These differences were important to her.

168.    The nature of the work did not require any significant induction, training or direction. Goods ready for delivery were placed upon shelves and the deliveries made in runs to purchases located in similar geographic areas. Some planning was required to take an efficient route to make the deliveries. The Applicant developed the ‘run sheets’ used for the work by all of the drivers: although not a novel innovation, it nonetheless reflected her particular skills and experience in the courier industry. Similarly, the requirement to prioritise a certain customer (sometimes others) was an incidence of the courier work available. It is not unusual for a contractor to meet the need for priority deliveries, differently from standard deliveries.

169.    The Applicant did not adhere strictly to the hours of work of employees, nor employee requirements for medical certificates or prior approval for holidays. She booked fares on occasions before notifying the Respondent she was taking leave. She chose not to use the invoice books provided by the Respondent as she preferred those that she purchased. She chose her own motor vehicle based upon her preferences for the type of car she liked: she disliked manual vehicles in particular. She was not required to have any livery or signage on her vehicle which she used for her private purposes as well as for courier work. She was occasionally seen at shops during the day, a liberty an employee may have been cautioned about, without adverse comment. In total the arrangement provided a number of small liberties beyond that ordinarily expected by an employee in addition to the opportunity to choose her own motor vehicle, a liberty that was unlikely to be extended to a driver, and to have the private use of the vehicle.

170.    The Applicant worked as an employee with Melbourne Pathology during much of the period. It is not uncommon for people to have more than one source of income. That she worked as an employed delivery driver on the weekends does not seem inconsistent with either being a contractor or employee during the week. It would, however, have highlighted the difference in the nature of the arrangements she had with the Respondent.

171.    The Applicant did not have public liability insurance. There is no evidence as to the terms of her motor vehicle insurance, although all cars have at least compulsory third party personal injury insurance. The nature of the activities was such that a car accident was the major risk. It does not seem that this is a significant factor in the context of this case.

172.    Whilst she chose to use industry clothing (both the Respondent’s and that of manufacturer’s) that was her personal choice as only the Respondent’s retail store employees were required to wear a staff uniform. She attended some after hours staff meetings when the Respondent was reviewing its business. I am not persuaded that she was directed or required to do so: her attendance was consistent with maintaining good contracting arrangement and being aware of what services the Respondent may need into the future. She was invited to the Christmas parties, however it seems that the invitees were a broad group, even including some clients.

173.    The parties clearly intended their arrangement to be one of contractors and not an employer and employee relationship. The Applicant issued invoices each week and was paid as a contractor. She lodged her tax returns, prepared by her accountant, on this basis, claiming various deductions consistent with being a contractor … Whilst the Respondent had employed drivers the Applicant never sought employment in such a position, as she did not wish to be an employee. I am satisfied that she would have had no concerns about asking to be changed to an employment arrangement if she had wanted to be become an employee. Both Applicant and Respondent continued over many years content with the nature of the arrangement being one of contractors.

174.    The arrangement with the Respondent cannot be said to have resulted in the Applicant having a saleable business. It was a single contract. Whilst it appears that it was transferable (for example her son drove a few times), she did not seek to have anyone else perform the driving. The preparedness of the Respondent to have different drivers can be seen from their ongoing use of [another courier company] to provide contractors as required. There was nothing to stop the Applicant developing a [courier] business … she did not chose [sic] to attempt to do so …

175.    On the Applicant’s evidence she had been involved in various businesses in the courier industry over many years: she was not a person with no skills other than driving a vehicle … The rates paid were above the basic hourly driver rate in the award: as Counsel for the Respondent submitted, the rates paid were between $23 and $27 per hour when the rates under the award were between $15.89 and $18.63 an hour.

176.    When stepping back to look at the arrangements of these particular parties as a whole it appears that in the particular circumstances of this case that the Applicant was a contractor, as the parties intended and not an employee of the Respondent.

11    The reference at [167] of his Honour’s reasons to the appellant not wishing to be an employee of the respondent “primarily because she would not have been able to choose the type of vehicle she would have to drive for deliveries, nor have private use of the delivery vehicle” is, it is to be assumed, a reference to evidence given by the appellant recorded at [68] as follows:

68.    The Applicant never sought to become an employee of the Respondent, although the Respondent had employed drivers as well as using Ontime Courier contract drivers. The Applicant explained in evidence that the contract arrangement allowed her to use a vehicle that better suited her. She said that:

The cars that [the Respondent] had in the fleet, with all due respect, were fairly ordinary cars. One of them didn’t have – I believe didn’t have airbags. They were mostly manual, and when you’re driving for eight hours a day it gets pretty tiring when you’re driving a manual. I used to drive a manual taxi and it was pretty tiring. Some didn’t have – I believe some didn’t have air conditioning earlier on. So there were a few things that – that went against being a company driver that - - -

12    Although the primary judge’s reasons do not explicitly make a connection between those parts that recite the evidence given by the various witnesses called at the trial and the conclusions set out above, the following paragraphs may be taken to be relevant to those conclusions:

41.    The Applicant never charged GST as her earnings were under the GST threshold. Her tax returns were completed on the basis that she was a contractor.

42.    In her tax returns very substantial deductions were claimed for depreciation and operating costs for the motor vehicle she used in the arrangement.

43.    Each week, the Applicant submitted an invoice and it was paid a day or so later. If she did not work on a particular day, she was not paid, whether she took that day off as sick leave or holidays. She was required to fill in forms when taking holidays to give notice, which appear to have been approved when requested. Sick leave was simply notified as and when it occurred.

…

44.    The Applicant said that she started at 8.30am as the business opened at 8.00am and by 8.30am there were deliveries ready to be undertaken from telephone orders earlier in the morning. She continued to undertake deliveries throughout the day until 5.00pm. She said that if she finished deliveries before 5.00pm, she would undertake other work such as sweeping, tidying the kitchen or the like.

45.    The Applicant was paid an hourly rate, although provided services for 40 hours per week to the Respondent.

…

Control

47.    The Applicant says that during her work period she was told where to deliver goods, which jobs to do in what order, and had set start and finish times on set days.

…

54.    Her lunch period with the Respondent was not a fixed time and would occur somewhere between 11.30am and 2.00pm and last for 30 minutes. She said that Abbie would determine when she took her lunch break, although it seems more likely that this was related more to whether deliveries were waiting, than any specific direction.

55.    There was no livery upon her vehicle, nor any CB radio installed or maintained, nor any tracker or black box. The only contact that she had with the Respondent when carrying out couriering duties was by her telephone number.

…

Workplace involvement

61.    Over the first 18 months that she undertook work for the Respondent, she said that she attended workplace meetings each two to three months that were in the evenings, somewhere between 5.30pm and 6.00pm or later, where employees discussed how to improve the business and management provided pizzas for dinner. She said she was required to attend and these were unpaid.

62.    She always attended the work Christmas parties for staff.

Autonomy

63.    The Applicant conceded that she was often slightly late to commence work, which she said was five minutes or so, although it was said by Mr Luca to be around 15 minutes. She said that she made up for this at other times and occasionally would undertake courier work after her nominal finishing time at 5pm.

64.    It seems that neither her nor the Respondent were troubled by this degree of flexibility that she took in her hours. She also conceded that she had attended to personal matters occasionally, although the extent of this is in dispute. She denied that she had ever stopped to see her grandchildren during periods of time when she was engaged to undertake courier duties by the Respondent.

…

66.    The Applicant had no clients other than the Respondent. She did not have business cards nor undertake any advertising. She does not appear to have sought to develop a business that would require other drivers or other clients. She clearly had no business which was saleable, as such, as she only had one contract. However, the Respondent continued to use contract drivers from Ontime Couriers as well as the Applicant. The Applicant never sought to provide additional drivers to the Respondent on a similar basis to Ontime Couriers.

67.    She did not purchase or arrange her own public liability insurance, although her vehicle insurance may have covered public liability when she was driving. Other than driving, her tasks gave rise to little risk of liability to others.

…

69.    The company cars, used by employee drivers, were locked up at the company premises at night, and not available for personal use by the drivers.

70.    For the couple of days that her son undertook the work on her behalf, however she still billed the work as usual. Although she did not pay her son, this was unremarkable as it was clearly a family arrangement between her and her son …

…

Work Materials

72.    The Applicant provided her own receipt books as she preferred receipt books that had carbonised paper, rather than the old-style receipt books which had separate slips of carbon paper to be inserted between the pages. The Respondent only supplied the old style of receipt books which she found annoying, and therefore, she chose to purchase her own receipt books instead. She was not challenged in her use of her own receipt books or directed that she must use the receipt books provided by the Respondent.

73.    The telephone account with Optus was established as a business account by the Applicant at the time when she commenced her engagement with Ontime couriers, as is evidenced by the formatting of the Applicant’s name on the accounts. She maintained her own mobile phone, from which she was in telephone contact from time to time throughout the day as required, although on some days not requiring any telephone contact with the Respondent whilst she was on her courier runs. She claimed tax deductions for her business and telephone use.

Uniform

74.    The Applicant had been given various promotional caps and jackets and shirts some bearing the Respondent’s logos and others with the livery of suppliers on them. She was first given clothes in 2006, although was not required to wear them. She said she liked wearing the shirt with the Respondent’s logo on it as she was representing the Respondent’s company and the fabric and size of the shirts suited her. When delivering, she said that she usually wore one uniform which showed the business name used by the Respondent, although this does not appear to have been a requirement of the Respondent.

…

79.    Whilst there were no signs or logos on her vehicle (in either temporary or permanent form), she did have a courier sign in the back of her car so as to enable her to park in loading zones.

…

Leave

86.    Whilst formal applications were made from time to time for holidays, it appears that this was more in the form of notification than a request for leave, in that she would notify the Respondent, and was never told that she could not take the time.

…

89.    She never provided a medical certificate when off on sick leave and agreed that she occasionally predetermined when she was going to take leave.

…

Superannuation

92.    After she had commenced these proceedings, she also made a complaint to the ATO about superannuation, although it does not appear to me to be of assistance in determining these proceedings that she either made the complaint, nor the view taken by the Tax Office. After she finished with the Respondent, she continued to work with Melbourne Pathology one day a week as a courier driver and would have taken more courier work if it were available to her.

…

Tax returns

94.    Her tax returns were prepared by her long-term accountant Mr Anderson to whom she supplied all of the relevant documents. He would prepare the return, mail it to her, and she would sign it. She said she did not read it and simply trusted him.

95.    The accountant was aware that she was a contractor and had estimated 10 per cent private use for her motor vehicle for the purpose of the preparation of her returns. She said that she gave the accountant everything to do with the business, and when asked about the claims for stationery and printing, and protective clothing, she explained that she from time to time had to purchase receipt books and other stationery, and that various items of clothing were purchased, for example, she required a hi-vis vest when entering the premises of Caterpillar, and she believes the figures from her tax returns are from her receipts.

…

Contract and terms

121.    There was no specific written contract in place between the Applicant and Respondent, only [an] informal oral contract: … the supply of a vehicle and driver (not simply for a driver) at an hourly rate with a minimum engagement per week.

13    I referred earlier in these reasons to having omitted from the recitation of the primary judge’s reasoning certain of his Honour’s findings. They concern mainly the appellant’s prior work with a company called Tasmanian Trucking and her previous role as a sub-contractor with Ontime Couriers. The parties agreed that those matters can have no bearing on the issue and ought to have been disregarded by the primary judge. For that reason, I have omitted reference to them here.

Relevant legal principles

14    There is no single test to apply to determine whether a relationship is one of employment. Formerly, the law looked to the question of “control”. Nowadays, a so-called “multi-factorial” approach is to be adopted, requiring an assessment of the totality of the relationship. As Mason J said in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, at 29 (approved by the majority in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 41, [44]):

[T]he common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, ‘so far as there is scope for it’, even if it be ‘only in incidental or collateral matters’: Zuijs v Wirth Brothers Pty Ltd [(1955) 93 CLR 571]. Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered.

15    The “modern approach” and the difficulties associated with it were explained by Wilson and Dawson JJ in Stevens v Brodribb at 35, as follows:

The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he shall do it ... The modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances. Thus when Windeyer J in Marshall v. Whittaker’s Building Supply Co. [[1963] HCA 26; (1963) 109 CLR 210 at 217] said that the distinction between a servant and an independent contractor “is rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own”, he was really posing the ultimate question in a different way rather than offering a definition which could be applied for the purpose of providing an answer.

(Citation omitted)

16    Of this passage, the majority in Hollis v Vabu said (at 41, [45]):

So it is that, in the present case, guidance for the outcome is provided by various matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability. These include, but are not confined to, what now is considered “control”.

17    In ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 at 173, [103], Buchanan J, having reviewed the relevant authorities, said 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”.

18    In assessing the “totality of the relationship”, both the terms of the contract between the parties and the work practices imposed by the putative employer are relevant. See Hollis v Vabu at 33, [24]. Neither is dispositive. As Wilson and Dawson JJ said in Stevens v Brodribb at 36-37:

The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.

19    As I say, the parties agreed that these principles apply and that the primary judge is to be taken to have had them in mind. The appellant’s case is rather that the primary judge misapplied them.

The appellant’s case on appeal

20    The appellant’s written submissions contend that the primary judge was wrong to conclude that there was not a relationship of employment for the following reasons:

(1)    The fact that the respondent used both subcontractors and employees is an irrelevant consideration in construing the terms of the relationship between the appellant and the respondent.

(2)    The appellant’s wishes as to the type of vehicle and private use of it are not determinative as to the nature of the agreement between the parties as each employee is always able to negotiate the terms of their employment.

(3)    The observation of the primary judge that “it is not unusual for a contractor to meet the need for priority deliveries, differently from standard deliveries” does not assist in the determination of a subcontract relationship, and to the contrary, is an indicia of employment as the driver is advancing the interests of the principal, and not their own business interests.

(4)    “Small liberties beyond that ordinarily expected by an employee” may point towards a subcontractor relationship but the innocuous nature of those referred to do little to assist in the resolution of the question.

(5)    The fact that the appellant had a second job with Melbourne Pathology is immaterial in determining whether or not the terms of the relationship between the appellant and the respondent was one of employee/employer.

(6)    The subjective intention of the parties does nothing to assist in the determination of the question as to the nature of the relationship between them.

(7)    The fact that the appellant did not have a saleable business is in fact an indicator of employment and that to hypothesise that she may have been able to develop a business but chose not to do so is speculation which cannot assist the resolution of the question.

21    The appellant’s written submission contends that “the various factors which point to the contract being one of employment” include the following:

(a)    A business is conducted with a view to making a profit and the business operations may be altered so as to enhance the profitability. That feature is absent;

(b)    Similarly, the risk of loss making is absent; poor performance does not impact upon the Appellant’s earnings. Her hourly rate was unaffected;

  (c)    There was only one “client”, namely the respondent;

(d)    The appellant’s hours and days of work were set by the respondent. She did not have the liberty of choosing the time, manner and method of performance such as is available to the genuine sole trader;

(e)    Rates of pay were set by the respondent, and were set on a per hour basis, as opposed to a per task basis;

(f)    Whilst the appellant’s costs of operation were hers to bear, they were fixed in that they were basically limited to vehicle costs. Costs are fixed, earnings are fixed – the risk of operating a business is absent;

(g)    There was no goodwill that attached to the appellant’s engagement with the respondent;

(h)    The appellant was subject to the direction and control of the respondent. The “when, where and how?” of the work regime was determined by the respondent;

(i)    The appellant worked within the business of the respondent as an integrated part of its business operation, as opposed to having the liberty to carry out her job tasks at a time and place and in a manner of her choosing;

(j)    Requests for leave had to be sought and approval then obtained from the respondent.

22    The respondent says that the factual findings made by the primary judge mean that, applying the relevant legal principles, the primary judge was correct to conclude that the appellant was not an employee. In particular, the respondent points to the following findings of fact as supporting the judge’s conclusion that the appellant was not an employee of the respondent:

(1)    The parties intended their relationship to be one of independent contracting rather than a relationship of employment.

(2)    The appellant in particular “did not wish to be an employee of the respondent, primarily because she would not have been able to choose the type of vehicle she would have to drive for deliveries, nor have private use of the delivery vehicles” and “[s]he also enjoyed some small flexibilities not likely to be available to employees” that “were important to her”.

(3)    The appellant had her own ABN which she acquired in 2002, well before dealing directly with the respondent.

(4)    The appellant was not provided with paid holidays or sick leave or paid superannuation.

(5)    The appellant was paid as a contractor, and only for the work she performed and in accordance with tax invoices submitted by her to the respondent.

(6)    The appellant provided and maintained tools and equipment necessary to perform the work in a manner indicative of not being an employee, including driving her own car for which she claimed deductions for depreciation and operating costs.

(7)    The appellant used a mobile phone in the course of her work, which was established as a business account, for which she claimed tax deductions (along with claims in relation to stationery and printing and protective clothing, receipt books and other stationery and various items of clothing such as a hi-vis vest).

(8)    The appellant enjoyed “a degree of flexibility and a number of small liberties” in the performance of her work which were not accorded to persons engaged by the respondent as employees.

(9)    The appellant did not adhere strictly to the hours of work of employees, nor to the requirement to provide medical certificates for absences or to obtain prior approval before booking holidays.

(10)    The appellant chose her own car based upon her preferences for the type of car she liked.

(11)    The appellant was not required to wear a uniform and there was no livery on her car.

(12)    The appellant had a practical entitlement to, and did, delegate her work to others and it appeared that the appellant’s contract was transferable.

(13)    Although the appellant did not have a saleable business, there was nothing to stop the appellant developing her own business in circumstances where she had previously managed a courier company.

(14)    The rates paid by the respondent were some $7 to $8.50 above the minimum award rates payable to employees.

23    In the appellant’s outline of written submissions in reply, the appellant further submits that “[i]n the absence of a written agreement which delineates the relationship between the parties, the subjective understanding of a party is of little weight…The respondent looks to the surrounding facts and circumstances and says it is an independent contractor relationship. The respondent contends that was the intention of the parties and because of that intention, it is so. It is a circular argument.”

Consideration

24    The parties do not dispute any of the findings of fact made by the primary judge. They differ about the weight to be attributed to certain matters and to some extent on which side of the “ledger” they fall.

25    In my view, most of the matters relied upon by the appellant in her counsel’s written submissions listed at [20] and [21] above may be accepted, but they are for the most part either beside the point, or they do not affect one way or the other the issue to be decided.

26    The critical factors to be assessed in this case are the parties’ own understanding of their relationship, the level of control involved, whether the appellant was running a business, who provided tools and equipment, who was liable to make taxation payments and superannuation contributions, and the existence of leave entitlements. In the appellant’s written outline of submissions in reply, she notes that “the one significant factor is that of control”. I cannot accept this proposition. See [14] above.

Parties’ intentions

27    In addressing the relevant question, it is always important to pay close regard to the way in which the parties have characterised their relationship. Compare Forstaff Pty Ltd v Chief Commissioner of State Revenue (2004) 144 IR 1; [2004] NSWSC 573 at [120] (per McDougall J). See also Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 at [75] (per White J) (“The ‘label’ which the parties themselves place on their relationship is relevant but not conclusive. The parties cannot deem the character of their relationship to be something it is not ... However, when the competing indicia are reasonably evenly balanced, the parties’ own understanding of their relationship may be decisive...”). See also the cases referred to in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [173]-[176].

28    Here, the appellant accepts that the respondent intended to engage her as an independent contractor and she accepts – indeed it was her evidence – that she did not did wish to be an employee of the respondent primarily because she would not have been able to choose the type of vehicle she would have to drive for deliveries, nor have the private use of delivery vehicle provided by the respondent (which were “fairly ordinary cars … [o]ne of them didn’t have … airbags [and] [t]hey were mostly manual”).

29    I am unable to accept the appellant’s submission that “the subjective intention of the parties does nothing to assist in the determination of the question as to the nature of the relationship between them” (see [20(6)] above). On the contrary, that intention is an important factor to be considered in the mix of the multi-factorial approach described above. I do not accept the appellant’s submission to the contrary at [23] above.

Control

30    It is well established that the importance of control lies as much in the right to exercise it, as in its actual exercise. The question of control also concerns the level of independence enjoyed by the worker over their own work. Here, although as a matter of practice the appellant chose to work exclusively for the respondent, she was free to accept work from the respondent, or reject it, as she wished.

31    The appellant also had a right to delegate her work, which she did at least twice by arranging for her son to fill in for her. That is an important factor in deciding whether a worker is an employee or not. See Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 26 per Mason J, citing the decision of the Privy Council in Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 52 ALJR 407 at 410 (“In the present case there appears to be nothing … to prevent the respondent from delegating the whole performance of his work to one or more sub-agents … this power of unlimited delegation is almost conclusive against the contract being a contract of service …”). The appellant submits that “transferability is equally consistent with finding a temporary/casual employee as a replacement. The nature of the work to be performed permits that circumstance.” I do not agree.

32    Although as a practical matter the appellant worked exclusively for the respondent (during the week at least), and was directed what to deliver and when to deliver it, the entitlement to work for others and the ability to delegate point to the appellant not being an employee. Of course, that is not dispositive (see Forstaff Pty Ltd v Chief Commissioner of State Revenue (2004) 144 IR 1; [2004] NSWSC 573 at [114]), and the respondent did not contend otherwise.

Running a business

33    There is no doubt that the appellant was running her own business. She had an ABN, rendered invoices for her courier work and drove her own vehicle, for which she claimed deductions for depreciation and operating costs.

34    In oral submissions, counsel for the appellant submitted that:

[The appellant] had no name, brand, reputation or goodwill. The customers associated her with the respondent and not by reference to her own brand. The timely performance of her tasks reflected on the goodwill of the respondent and not on herself. In other words, if she did the job efficiently and effectively, it was the respondent who would receive the applause or the gratitude of the customer. And, as I indicated earlier, she had the capacity to improve the earnings and profits of the respondent but not of herself.

35    So much may be accepted. Nonetheless, the appellant’s circumstances exhibit some of the characteristics of a business. That is a matter properly to be taken into account in determining the question whether she an employee. See, eg, Tattsbett Ltd v Morrow (2015) 233 FCR 46 (per Jessup J, Allsop CJ and White J agreeing) at 62, [62]. The fact that the appellant operated such a business on her own account is one indicator, in the context of the multi-factorial approach, that she was not an employee.

Provision of tools and equipment

36    A worker’s provision and maintenance of the tools and equipment necessary to perform the work tends to suggest the relationship is not one of employment. See Queensland Stations v Federal Commissioner of Taxation (1945) 70 CLR 539 at 548 (Rich J) and 551 (Dixon J), and Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 37.

37    Here, the appellant provided her own car, stationery and printing, and protective clothing, which is an indicator that she was not an employee.

Integration in the organisation

38    On the other hand, it tends, slightly, in favour of a conclusion that the appellant was an employee that she was partly “integrated” in the business of the respondent, in the sense that she was included in staff meetings, functions or celebrations and was provided with (although not obliged to wear) clothes with the respondent’s branding.

Taxation, superannuation and no paid leave

39    As Lander J said in ACE v Trifunovski (2013) 209 FCR 146 at 153, [37]:

It is also difficult, in my view, to give much independent weight to arrangements about taxation, or even matters such as insurance cover or superannuation. These are reflections of a view by one party (or both) that the relationship is, or is not, one of employment. For that reason, in my view, those matters are in the same category as declarations by the parties in their contract (from which they often proceed). They may be taken into account but are not conclusive. These matters are less important than the adoption by the parties (where this occurs) of rights and obligations which are fundamentally inconsistent with basic requirements of a contract of employment, such as the ability to delegate the discharge of obligations under a contract to another person, or where there is a lack of control over how work is done.

40    The arrangements between the parties in this case as to taxation and superannuation (namely, that the appellant is responsible for them) are consistent with the appellant being an independent contractor. The same is true of the fact that the appellant did not receive any annual leave or sick leave benefits.

Conclusion

41    In my view, the primary judge was, for those reasons, correct to conclude that the appellant was not an employee of the respondent.

42    Neither award relied on applies to the appellant, so the allegations of breach and for damages made in the proceeding do not arise.

43    It follows that no other issue raised in the notice of appeal arises.

44    The appeal will be dismissed.

Associate:

Dated:    5 February 2020