FEDERAL COURT OF AUSTRALIA

Jensen v Cultural Infusion (Int) Pty Ltd [2020] FCA 358

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    If any order for costs is sought by a party, that party shall file and serve written submissions in relation to costs not exceeding three pages by 4.00pm on Thursday, 26 March 2020, with any responding submissions to be filed by 4.00pm on Thursday 2 April 2020.

3.    If no submissions seeking costs are filed by 4.00pm on Thursday, 26 March 2020, there be no order as to costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    If any order for costs is sought by a party, that party shall file and serve written submissions in relation to costs not exceeding three pages by 4.00pm on Thursday, 26 March 2020, with any responding submissions to be filed by 4.00pm on Thursday 2 April 2020.

3.    If no submissions seeking costs are filed by 4.00pm on Thursday, 26 March 2020, there be no order as to costs.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    If any order for costs is sought by a party, that party shall file and serve written submissions in relation to costs not exceeding three pages by 4.00pm on Thursday, 26 March 2020, with any responding submissions to be filed by 4.00pm on Thursday 2 April 2020.

3.    If no submissions seeking costs are filed by 4.00pm on Thursday, 26 March 2020, there be no order as to costs.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellants were professional actors who were engaged by the respondent for the performance of a travelling theatrical show. The issue that arises on these appeals is whether, for the purposes of the Fair Work Act 2009 (Cth), the appellants were engaged by the respondent as employees, or as independent contractors. The primary judge found that the appellants were independent contractors, with the consequence that relevant wages and entitlements under the Live Performance Award 2010 on which the appellants relied did not apply to their engagement: Jensen v Cultural Infusion (Int) Pty Ltd [2018] FCCA 2137; 337 FLR 191.

2    The appeals arise out of a largely common set of facts and raise a common issue. The appellants and the respondent agree that the same conclusion should be reached in each of the appeals. For the following reasons, I have determined that the primary judge erred in some respects in applying the multi-factorial approach in evaluating whether the appellants were independent contractors or employees. However, in reviewing the evidence, I have come to the same conclusion as that of the primary judge, namely that at all material times, the appellants and the respondent were in a relationship of independent contractor and principal. Therefore, the appeals will be dismissed.

Background

3    The following summary is drawn from the primary judge’s findings of primary fact in respect of which there was no challenge on appeal.

4    The appellants are professional actors. The respondent is a theatre company that is in the business of providing educational and school performances. The respondent engaged the appellants to participate in a series of performances titled the ANZAC Centenary Roadshow: Victoria’s Journey of Remembrance. The ANZAC Roadshow was underwritten by the Victorian Department of Premier and Cabinet, and performed throughout Victoria at venues such as Returned and Services League clubs, and at schools.

5    At the start of their engagement in July 2014, the appellants conducted rehearsals of the ANZAC Roadshow over a two-week period at premises occupied by the respondent. Those rehearsals were overseen by Mr Montgomery, the production manager and director, and Ms Suris, the script writer, both of whom were employees of the respondent.

6    Approximately mid-way through their two-week rehearsal schedule, each of the appellants entered into a written contract with the respondent. Their contracts were in substantially the same terms, and the parties agreed that the minor differences in the manner of formation and terms of those contracts were not material to these appeals.

7    The primary judge at [39] described the contracts as “drafted in a somewhat rudimentary form”. That was putting it kindly. The contracts appear to have been haphazardly drafted and contain a number of anomalies and inconsistencies. The primary judge stated at [39], and the parties have not challenged, that the “contracts should be construed against the matrix of mutually known facts which underpinned the production of the ANZAC Roadshow and as two honest businessmen would understand their terms: Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288 at 300 (Isaacs J); AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 at [80] (Nettle JA, Maxwell P and Bongiorno AJA agreeing).” That approach is consistent with more recent High Court authority, including Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; 261 CLR 544 at [16]-[19] (Kiefel, Bell and Gordon JJ) and [45] (Gageler J), and I have adopted that approach in my construction of the terms of the contracts.

8    I will address some of the relevant clauses of the contracts in considering the parties’ submissions. At this point, and by way of background, I note that the contracts provided as follows –

(1)    The preamble stated that the parties to the contract were the respondent, Cultural Infusion, and an acronym, “ACT”, stated to be the relevant actor (Ms Goodwin, Mr Jenson, or Mr Palframan) in their respective contracts “for and on behalf of ACT”. At [42], the primary judge construed the references to “ACT” as references to the relevant actor, and the parties have not challenged this construction.

(2)    Clause 1.1 expressed that the contracts were for a period of not less than one year (or two years in the case of Ms Goodwin’s contract).

(3)    Clauses 1.4.5 and 1.4.6 dealt with the actor engaging other performers or subcontracting. Clause 1.4.5 stated that “ACT may not engage performers not listed as members of ACT without first notifying Cultural Infusion.” Clause 1.4.6 stated that “ACT may not subcontract other performers to perform in place of ACT under any circumstances.”

(4)    Clause 1.5 was an express characterisation term. It provided that “The relationship between Cultural Infusion and ACT is that of principal and independent contractor and not that of employer and employee unless otherwise specified.”

(5)    Clause 1.6 provided that “all performers are responsible for their own Public Liability, Work Cover Superannuation, Police Checks and Working with Children Certificates”.

(6)    Clause 3 imposed obligations on the actor to undertake marketing and publicity for Cultural Infusion. The actor was obliged (inter alia) to be available, at no cost, for two publicity or promotional performances (clause 3.1); to allow Cultural Infusion to arrange publicity photographs (clause 3.2); to provide all necessary material for publication in the brochure and teacher resource notes (clause 3.3); to verbally acknowledge Cultural Infusion at the conclusion of all performances (clause 3.4); to display Cultural Infusion signage at all performances when supplied (clause 3.5); and to carry Cultural Infusion business cards and/or brochures when supplied, and/or forward contact details of Cultural Infusion to potential clients of Cultural Infusion (clause 3.6). Further, the actor was prohibited from undertaking other advertising or marketing ploys without written permission from Cultural Infusion (clause 3.8).

(7)    Clause 4 set out (inter alia) the actor’s obligations in relation to rehearsals and performances. Clause 4.18 provided that “Although Cultural Infusion provides extensive marketing, publicity and management support, we cannot guarantee or determine how much work will be available.”

(8)    Clause 5 provided that the actors were to provide a valid tax invoice to Cultural Infusion and that Cultural Infusion would pay the actor the fee prescribed in Item 2 of the Schedule.

(9)    Clause 7 provided in detail for the manner in which the actors were to invoice Cultural Infusion for performances.

(10)    Clause 9.1.3 provided that –

Any approach relating to a future engagement, that arises from a direct result of a CULTURAL INFUSION performance, brochures or other event or promotion must be channelled through CULTURAL INFUSION.

•    Direct being defined as repeated bookings from the school, or private functions held by the school.

•    Indirect being defined as any bookings that result from the original booking made by CULTURAL INFUSION including bookings for other venues or private functions.

(11)    Schedule 1 prescribed the actor’s rates of pay and allowances. The daily rate was $246.80 with additional allowances for extra hours, food and living away from home.

(12)    The contracts did not contain any clauses that entitled Cultural Infusion summarily to dismiss or terminate the actor, or that expressly reserved in any detail the manner in which Cultural Infusion would retain control over any particular aspect of the performances, or conferred any entitlement on the actor to annual leave or personal leave.

9    After their two-week rehearsal schedule, the appellants began touring and performing the ANZAC Roadshow. The show went for about 50 minutes and the appellants presented it up to three times per day. The appellants performed the show at more than 100 venues, over approximately 100 days of performances, over a period spanning nearly a year. The volume of work fluctuated from week to week, with some weeks during school holidays having no work at all. The respondent provided the appellants with a roster, which provided about four weeks’ notice of each upcoming performance.

10    The appellants made up the whole of the cast who performed the ANZAC Roadshow. The appellants performed the show according to a script. The appellants gave evidence that they would suggest changes to the script from time to time, but that the director had the final call. At the end of at least some performances at school venues, the appellants engaged in a discussion with students and teachers using a set of suggested topics provided by the respondent.

11    The appellants travelled to and from the respondent’s premises to their shows in a van provided by the respondent. The appellants were accompanied by the director and production manager, Mr Montgomery. Upon arrival, the appellants and Mr Montgomery would “bump” (or carry) in the various costumes, props, lighting and other items required for the show. All of that equipment was provided by the respondent. After the show, the appellants would “bump” (or carry) the equipment back to the van.

12    The appellants each had their own ABN and invoiced the respondent for their work on a monthly basis. The appellants tendered invoices in evidence before the primary judge that were stated to be GST free. The respondent paid the appellants’ invoices and did not deduct personal income tax.

13    The appellants incurred no personal expenses and took on no personal financial risk in the engagement. When the ANZAC Roadshow toured regional areas, the respondent met the costs of the appellants’ accommodation. The appellants did not accrue or take any paid leave from their work for the respondent. If one of the appellants was unavailable to perform a scheduled show, the respondent engaged an understudy to perform the role. During the period of their engagement with the respondent, all of the appellants performed other work for other entities, variously as contractors or employees, and as actors or in other industries.

The primary judge’s decision

14    The appellants filed their applications in the Federal Circuit Court on 11 December 2017, and invoked the small claims procedure under s 548 of the Fair Work Act. The appellants alleged that they had been engaged as casual employees, rather than as independent contractors of the respondent, and consequently sought payment of wages alleged to be owing under the Live Performance Award 2010. Ms Goodwin claimed $18,466.44, Mr Jensen claimed $18,696.13 and Mr Palframan claimed $18,788.06.

15    The appellants also raised other claims in written submissions filed in the Federal Circuit Court, which were dependent on a finding that the appellants were employees of the respondent. These additional claims were not included in the appellants’ originating applications or small claims forms, and on review of the Federal Circuit Court file, do not appear to have been perfected in any amended originating process. First, the appellants alleged that the respondent contravened the sham contracting provision in s 357 of the Fair Work Act, which prohibits an employer from misrepresenting to an employee that the employee performs work as an independent contractor: see, generally, Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45; 256 CLR 137. Second, the appellants alleged that the respondent contravened s 536 of the Fair Work Act, which requires an employer to give a pay slip to each of its employees within one working day of paying wages to the employee. By their submissions but not their originating applications or small claims forms, the appellants sought pecuniary penalties under s 546(1) of the Fair Work Act for the respondent’s alleged contraventions of the civil remedy provisions in s 45 (breaching the Live Performance Award 2010), s 357 (sham contracting) and s 536 (failing to provide pay slips) of the Act. However, given that the appellants invoked the small claims procedure, it appears that such orders were not available: s 548(1)(a) of the Fair Work Act. I consider this issue in more detail below. In addition, in written submissions filed in the Federal Circuit Court, the appellants sought a declaration that the respondent contravened s 340 of the Fair Work Act by taking adverse action against them for exercising their workplace rights. On review of the Federal Circuit Court file, it does not appear that the appellants substantiated or pressed this claim any further, and the respondent did not respond to it. Given that it was not raised and is not the subject of these appeals, I have not considered it.

16    The respondent filed a response in the Federal Circuit Court that presented two alternative defences to the appellants’ claims for wages. First, the respondent alleged that the appellants were independent contractors, and not employees, and therefore that the Live Performance Award 2010 did not apply. That argument is the subject of these appeals. Second, and in the alternative, the respondent alleged that if the appellants were employees, then the respondent nonetheless did not contravene the Live Performance Award 2010 because the appellants were not engaged as casual employees as alleged by the appellants, but rather they were engaged “by the week” under clause 23 of the Award. This alternative argument was not relied on in these appeals. Further, at the hearing of these appeals, counsel for the respondent accepted that if the appellants were employees of the respondent, then they were casual employees, and the appeals were conducted on that basis.

17    The primary judge proposed, and the parties agreed, to conduct a combined hearing of all three applications in relation to the preliminary issue whether the actors were engaged by the respondent as independent contractors or employees. The hearing of that preliminary issue was held on 18 and 19 June 2018. Each of the appellants gave evidence and was cross-examined. The respondent did not lead any oral evidence.

18    On 15 August 2018, the primary judge published his reasons for judgment, holding that at all material times, each of the appellants and the respondent were in a relationship of independent contractor and principal, and not employee and employer. The primary judge invited submissions from the parties for the disposition of the proceedings. In their submissions, the appellants referred only to their claims that the respondent breached the Live Performance Award 2010 and engaged in sham contracting, and conceded that since both of those claims depended on the appellants being found to be employees of the respondent, the appropriate order was for their applications to be dismissed. On 23 August 2018, the primary judge made orders dismissing each of the appellants’ applications.

19    The primary judge’s reasons are summarised as follows. His Honour began by setting out the factual background and procedural history: [1]-[106]. His Honour then addressed the applicable principles. His Honour briefly addressed the principles applicable to the apparent sham contracting claim (at [107]-[111]), and then focussed on the principles applicable to determining the independent contractor-employee distinction (at [112]-[144]), including: the issue whether the distinction is a question of fact, or of law, or of mixed fact and law; the historical approach to determining the distinction with its primary focus on control; and the modern multi-factorial approach. The parties have not challenged the primary judge’s account of the applicable principles. Next, the primary judge applied the multi-factorial approach to the facts: [145]-[213]. The primary judge stated that the analytical principles identified in the authorities are used to assess the nature of the relationship, that the indicia used to assess the independent contractor-employee distinction are not to be deployed as a checklist, and that there is no determinative criterion to the exclusion of any other: [146]. The primary judge considered various indicia of the parties’ relationship and attributed weight to those indicia as neutral, or as supporting a characterisation of independent contractor and principal, or of employee and employer. Some of the primary judge’s findings, and the weight that his Honour placed on those findings, were expressed more clearly than others. The primary judge made the following findings (inter alia) under the following headings –

(1)    Profession, trade or calling: [147] – the fact that the actors provided professional services was a neutral factor.

(2)    Factual matrix: [148]-[152] – the circumstances in which the appellants were offered and accepted their contracts with the respondent was not attributed any weight.

(3)    Control: [153]-[155] – the appellants’ evidence ascribing complete control and direction of the performance to the respondent was unpersuasive, given that the appellants contributed their individual skills to the iterative creative process of developing the show. Further, the parties’ subjective views about the issue of control were legally irrelevant.

(4)    Terms of the contract: [156]-[166] – the contracts were in writing. The contracts did not provide the respondent with a reserved right to terminate the appellants’ engagements, and this told against a high degree of control. The contracts allowed the actors to delegate their roles, so there was no obligation of personal service. The contracts contained an express characterisation term that stated that the parties’ relationship was of independent contractor and principal. The contracts provided for the parties to arrange their financial, taxation, liability and insurance affairs on the basis that their relationship was of independent contractor and principal. The contracts did not provide the respondent with an exclusive right to the appellants’ services, and the appellants did in fact perform other work for other entities during the period of their engagement with the respondent. The contracts did not purport to, and were not structured to, reserve to the respondent the goodwill which inhered in either the ANZAC Roadshow or the appellants’ personal reputations. The primary judge stated that he attached “particular weight to the nature of the parties’ contracts and the context in which [they] were made”: [166].

(5)    Express declaration of intent: [167]-[172] – it was of significance that the parties’ contracts expressly recorded that their relationship was of independent contractor and principal (at [172]).

(6)    Right of suspension or dismissal: [173]-[174] – the contracts did not reserve to the respondent a right to suspend or dismiss the appellants, but the respondent also did not guarantee a constant supply of work.

(7)    Business on own account: [175]-[184] – the natural individuality of the appellants’ personalities marked them out as actors, and it was their inherent ability as actors that provided the opportunity for them to gain a reputation and to be offered new work as those opportunities arose (at [183]). The actors had their own goodwill (at [184]).

(8)    Delegation: [185]-[188] – it is inherent in an employment contract that the employee will personally perform the services, such that where a contract allows for a party to delegate their obligations, that undermines a conclusion that an employment relationship exists. The contracts allowed the appellants to put forward persons who might be an understudy for their role, and insofar as it was submitted that the actors were unable to sub-contract their role under any circumstances, that overstated the position. Moreover, the contracts expressly reserved to the respondent a right to select and appoint other persons to perform a part in the performance, where the contracted party was unavailable.

(9)    Basis of remuneration: [189]-[191] – the rendering of invoices is quite foreign to an ordinary employment relationship. The appellants rendered invoices to the respondent in accordance with the contractual regime and were remunerated for each day of work, with other agreed allowances.

(10)    Taxation: [192]-[197] – the appellants rendered invoices to the respondent on a monthly basis, and no income tax was deducted from the amounts which they claimed as fees payable to them.

(11)    Holiday, sick leave and other entitlements: [198]-[199] – the primary judge stated that while the provision of annual, long service and sick leave is often used as a relevant indicator that supported an employment characterisation, it was necessary to appreciate that casual employees are not ordinarily entitled to such leave. The primary judge found that “although no entitlements to such leave were provided for by the contract, I regard this consideration as being of lesser significance than the matters addressed above” (at [199]).

(12)    Provision of equipment: [200]-[201] – the respondent provided all equipment for the performances, including transport, which supported an employment characterisation, but the primary judge regarded this as being of lesser significance than the above matters.

(13)    Expenditure: [202]-[203] – the appellants incurred minimal expenditure in providing their services, which supported an employment characterisation, but little weight was attached to that fact.

(14)    Assumption of risk: [204]-[205] – the allocation of risk was addressed in the terms of the contracts, and in some cases it was borne by the appellants and in other cases it was borne by the respondent.

(15)    Autonomy: [206]-[208] – the appellants “were not simply carrying out work as and when directed to do so by Cultural Infusion” (at [206]). The appellants were “relatively autonomous” in the presentation of the ANZAC Roadshow (at [207]).

(16)    Economic benefit: [209]-[210] – the economic benefit of the ANZAC Roadshow and any goodwill which inhered in that work was a neutral factor. The respondent was identified as the party that produced the performance, the appellants were distinctly identifiable as the actors performing in it, and the appellants’ professional reputations did not inhere in the respondent.

(17)    Representation as part of employer’s business: [211]-[212] – the appellants were required to carry business cards of the respondent, and the contract required the appellants to acknowledge the respondent as the sponsor of the ANZAC Roadshow.

(18)    Other factors: [213] – it was not necessary to consider other indicia that may have relevance in other cases.

20    By way of conclusion at [214]-[216] the primary judge stated –

(1)    The applications included the sham contracting claim and, in evaluating the evidence, the primary judge stated that he did not overlook the gravity of those allegations, in accordance with s 140(2)(c) of the Evidence Act 1995 (Cth) (at [214]). I shall consider this issue in more detail, below.

(2)    The respondent offered the appellants “project work during a one-year term as and when required to provide performances as directed by the Government” (at [216]).

(3)    The appellants’ work was “inherently freelance” and the appellants promoted their services and performed other work for other entities during the period of their engagement with the respondent (at [216]).

(4)    The appellants brought their individual skill and expertise to the ANZAC Roadshow performance (at [216]).

21    Finally, the primary judge concluded as follows (at [217]) –

Approaching the matter in a practical and realistic way, I consider that when the totality of the system of work and the work practices is assessed, the parties stood in the relationship of independent contractors and principal. There is nothing which I have identified upon a review of the matter overall which warrants the conclusion that this result is not intuitively sound.

The standard of proof applicable to the determination of the preliminary issue

22    Before turning to the substance of the parties’ submissions in the appeals to this Court, it is necessary to comment on the conduct of the proceeding in the Federal Circuit Court and in particular the standard of proof applied by the primary judge, and any relevant consequences for the determination of these appeals.

The preliminary issue

23    As set out above, the primary judge proposed, and the parties agreed, to conduct a combined hearing of all three applications in relation to the preliminary issue whether the actors were engaged as independent contractors or employees of the respondent. The primary judge at [10] explained that since the independent contractor-employee distinction was a common issue to the alleged contraventions of the Live Performance Award 2010 and the alleged sham contracting, the appellants’ applications would be most efficiently addressed by first determining the independent contractor-employee distinction as a preliminary issue. The primary judge did not refer to the fact that the appellants by their written submissions, but not by their originating applications or small claims forms, sought pecuniary penalties for the respondent’s alleged contraventions of the civil remedy provisions in s 45 (breaching the Live Performance Award 2010), s 357 (sham contracting) and s 536 (failing to provide pay slips) of the Fair Work Act, all of which claims were dependent on a finding that the appellants were employees of the respondent. Nor did the primary judge refer to the appellants’ bare submission for a declaration that the respondent took unlawful adverse action against them in contravention of s 340 of the Act.

Section 140 of the Evidence Act

24    As referred to above, the primary judge at [214] referred briefly to a sham contracting claim and to s 140(2)(c) of the Evidence Act 1995 (Cth) as follows –

By the applications, the actors seek that Cultural Infusion will be held liable for contraventions of s 357 for alleged misrepresentation in relation to sham contracting arrangements. In evaluating the evidence, I do not overlook the gravity of those allegations: s 140(2)(c) Evidence Act 1995 (Cth).

25    This reference by the primary judge to s 140(2)(c) of the Evidence Act raises the question of the applicable principles relating to the standard of proof to be applied in determining the preliminary issue of the independent contractor-employee distinction, by the primary judge at first instance in the Federal Circuit Court and also on appeal by way of rehearing to this Court.

26    Section 140 of the Evidence Act provides –

140    Civil proceedings: standard of proof

(1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

27    That provision is related to the often-cited observations of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 362 about the civil standard of proof –

But reasonable satisfaction is not the state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherently unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

28    It has been said that the standard of proof referred to in s 140(2) of the Evidence Act is a re-statement of Dixon J’s observations in Briginshaw: see, for example, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 at [63] (Logan, Bromberg and Katzmann JJ); Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770; 188 FCR 221 at [13] (Logan J); Patrick Stevedores v Construction, Forestry, Maritime, Mining, and Energy Union [2019] FCA 451; (2019) 286 IR 52 at [16] (Lee J). The Full Court has gone so far as to say that s 140(2) of the Evidence Act “codifies some of the cautionary observations made by Dixon J in Briginshaw”: Setka v Gregor (No 2) [2011] FCAFC 90; 195 FCR 203 at [24] (Lander, Tracey and Yates JJ). In this respect, I pause to observe the comments of Gleeson CJ and Hayne J in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [10], which caution against treating any provision of the uniform evidence legislation as a codification of a corresponding common law principle –

It is clear from the language of the Act [the New South Wales Evidence Act], and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence in New South Wales. Similar legislation has been enacted by the Parliament of the Commonwealth. Section 9 of the Act provides that it does not affect the operation of the common law except so far as the Act provides otherwise expressly or by necessary intendment. Even so, the sections of the Act relevant to this case undoubtedly make expression provision different from the common law. It is the language of the statute which now determines the manner in which evidence of the kind presently in question is to be treated. The appellant argues that the meaning and effect of that language, properly understood, is to be determined in the light of, and in a manner that conforms to, the pre-existing common law…

29    The issue of the codification of Briginshaw in s 140(2) of the Evidence Act does not require further attention in these appeals. I shall proceed by focussing on the terms of s 140(2) of the Evidence Act itself and the proper application of that provision.

The standard of proof to be applied

30    There is a question whether s 140(2)(c) of the Evidence Act should have applied to the primary judge’s consideration of the preliminary issue whether the appellants were independent contractors or employees of the respondent. That question also arises in this appeal because, as foreshadowed above, I have determined that the primary judge erred in some respects in applying the multi-factorial approach in evaluating whether the appellants were independent contractors or employees, and therefore I have reviewed the evidence and applied the civil standard of proof in determining that issue myself.

31    I accept as a general premise that allegations that a person has contravened a civil remedy provision in the Fair Work Act may involve allegations about grave matters that attract the application of s 140(2)(c) of the Evidence Act. This Court has previously described the civil remedy provisions in the Fair Work Act as “quasi-criminal” and emphasised that, in keeping with s 140(2)(c) of the Evidence Act, findings of contravention of those provisions “are not findings lightly to be made”: Australian Building and Constructions Commissioner v Hall [2017] FCA 274; 269 IR 28 at [18]-[20] (Flick J), which was upheld on appeal, referring to this reasoning: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 at [98]. However, it does not necessarily follow that s 140(2)(c) of the Evidence Act should be applied to a consideration of the preliminary issue of determining whether the appellants were independent contractors or employees. As stated above, the hearing in the Federal Circuit Court was confined to the preliminary issue of determining whether the appellants were employees. The Federal Circuit Court did not extend to determining the appellants’ claims for wages alleged to be owing, or the appellants’ further submissions (not reflected in their applications or small claims forms) consequent on their being found to be employees that sought pecuniary penalty orders for alleged contraventions of s 45 (breaching the Live Performance Award 2010), s 357 (sham contracting) and s 536 (failing to provide pay slips) of the Fair Work Act, as those issues did not arise. The primary judge dealt only with the preliminary issue, and made a declaration that the appellants were independent contractors of the respondent.

32    The question whether particular persons are independent contractors or employees of another entity has been considered by courts and tribunals of this country on many occasions and in various contexts, such as vicarious liability for common law negligence, workers’ compensation, taxation, industrial law, and occupational health and safety proceedings. The question requires the assessment and characterisation of a legal relationship. That assessment can be difficult as it involves the evaluative resolution of questions of fact and degree that may pull in opposite directions. The parties may themselves mischaracterise their relationship, without any deliberate contrivance or ill intent. The enquiry, in and of itself, does not involve impugning the conduct of the principal or employer, or suggest any moral turpitude. For the purposes of s 140(2)(c) of the Evidence Act, I do not consider that the question of characterisation involves matters, the gravity of which a court must take into account. It may be that the consequences of a particular determination of the independent contractor-employee distinction will give rise to subsequent enquiries that involve grave allegations, but that does not necessitate that the anterior enquiry itself be treated as giving rise to grave allegations. This distinction between an anterior enquiry, which does not itself give rise to grave allegations, and the potential consequences flowing from a determination of that anterior enquiry, which may give rise to grave allegations, was drawn by the Full Court in Setka v Gregor (No 2) [2011] FCAFC 90; 195 FCR 203. In that case, the Full Court considered whether the appellant had contravened s 767 of the Workplace Relations Act 1996 (Cth), which provided that a permit holder exercising right of entry rights under an occupational health and safety law should not intentionally hinder or obstruct any person, or otherwise act in an improper manner. The Full Court first considered the anterior enquiry, whether the appellant was exercising right of entry rights under an occupational health and safety law, before turning to the consequential enquiry of whether the appellant intentionally hindered or obstructed any person, or otherwise acted in an improper manner, and whether a pecuniary penalty should be imposed for contravention. In their joint reasons at [26], Lander, Tracey and Yates JJ commented that the anterior enquiry “could hardly be said to be grave”. On the present facts, I consider that the correct characterisation of the legal relationship between the appellants and the respondent could hardly be said to be a grave matter.

33    As stated above, the proceeding in the Federal Circuit Court, even if it had progressed beyond the preliminary issue of determining whether the appellants were employees, did not require determination of alleged contraventions of civil remedy provisions under the Fair Work Act, which could give rise to pecuniary penalty orders. The appellants did not file applications alleging that the respondent contravened any civil remedy provisions in the Fair Work Act, nor could the appellants properly have sought the imposition of pecuniary penalty orders. The appellants filed applications commencing proceedings in the Federal Circuit Court’s small claims list. Those applications were accompanied by a small claim under s 548 of the Fair Work Act, recorded in the Federal Circuit Court’s Form 5. In those small claims forms, the appellants alleged that the respondent contravened particular clauses of the Live Performance Award 2010 and claimed the payment of wages alleged to be owing. The small claims forms did not seek the imposition of pecuniary penalty orders against the respondent, and nor could they. Section 548(1)(a) of the Fair Work Act provides that a person may elect to bring proceedings under the small claims procedure if that person “applies for an order (other than pecuniary penalty order)”. Therefore, adopting the language of Flick J in Australian Building and Construction Commissioner v Hall [2017] FCA 274; 269 IR 28, discussed above, the proceeding did not engage the “quasi-criminal” civil remedy provisions in the Fair Work Act. In the terms of s 140(2)(c) of the Evidence Act, those potentially grave matters were not before the Federal Circuit Court and are not before this Court.

34    In conclusion on this issue, I consider that the primary judge may have been led into error by the appellants’ submissions that sought the imposition of pecuniary penalties, when pecuniary penalty orders were not available under the small claims procedure of the Fair Work Act. However, for the following three reasons, I have not found any error in the primary judge’s reference to s 140(2) of the Evidence Act. First, this issue was not raised in the appeals and was not the subject of any argument in this Court. Second, the primary judge did not clearly state the extent of any reliance that his Honour placed on s 140(2)(c) of the Evidence Act and it is to be kept in mind that s 140(2), as with the comments in Briginshaw, does not create any third standard of proof between the civil and criminal standards, but rather goes to the degree of satisfaction that is required to determine the civil standard of proof on the balance of probabilities: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at [2] (Mason CJ, Brennan, Deane and Gaudron JJ); Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537 at [100] (French and Jacobson JJ); Wotton v State of Queensland (No 5) [2015] FCA 1457; 352 ALR 146 (Mortimer J). Third, as foreshadowed above, I have otherwise found error on the part of the primary judge, such that I have considered the question for myself. Therefore, I am not required to decide whether the primary judge erred in this respect, in keeping with the principle that an appellate court should confine itself to determining only those issues which it considers to be dispositive of the justiciable controversy raised by the appeal: Boensch v Pascoe [2019] HCA 49; 94 ALJR 112 at [7] (Kiefel CJ, Gageler and Keane JJ). In considering the independent contractor-employee distinction myself, I have not applied s 140(2) of the Evidence Act because, for the reasons outlined above, I do not consider that the determination of that issue in the present circumstances involves the allegation of a grave matter.

Appellants’ submissions

35    The appellants do not challenge the primary judge’s account of the applicable principles or the primary judge’s adoption of the multi-factorial approach to determining the independent contractor-employee distinction. The appellants do not seek to depart from any established principle. The appellants submit that the primary judge erred in a number of ways in applying the multi-factorial approach, including by having insufficient regard to the features of casual employment in considering the appellants’ submission that they were casual employees of the respondent. The appellants’ notice of appeal filed on 13 September 2018 sets out 12 grounds of appeal. The appellants abandoned grounds 2 and 8, and grouped some of the remaining grounds together. The appellants’ grounds are considered below.

Respondent’s submissions

36    The respondent submitted that it supported every aspect of the primary judge’s reasons. The respondent accepted that the issue for determination was whether the appellants were independent contractors or employees of the respondent, and that if they were employees, then they were casual employees. The respondent’s submissions in response to the specific grounds of review are also considered below.

Appeal by way of rehearing

37    The appeal to this Court is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) and is in the nature of an appeal by way of rehearing: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [75] (Gleeson CJ and Gummow J); Western Australia v Ward [2002] HCA 28; 203 CLR 172 at [23] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). In an appeal by way of rehearing, the powers of the Court are exercisable where an appellant demonstrates some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ). What amounts to error will depend upon the issue in contention.

38    In demonstrating error, the appellants face the inherent difficulty that the decision from which they appeal is the product of evaluative judgment, which necessarily involved the resolution of questions of fact and degree in respect of which views may legitimately differ. It has been accepted that the application of the multi-factorial approach to determining the independent contractor-employee distinction can be difficult: Federal Commissioner of Taxation v Barrett [1973] HCA 49; 129 CLR 395 at 400 (Stephen J), cited in ACE Insurance Ltd v Trifunovski and Others [2013] FCAFC 3l; 209 FCR 146 at [9] (Lander J); Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16 at 35 (Wilson and Dawson JJ). This difficulty has been acknowledged in other appeals from judgments determining an independent contractor-employee distinction: see, for example, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (1997) 37 ATT 528 (Winneke P) at 533-4, cited in Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [32] (Keane CJ, Sundberg and Kenny JJ). However, although this is an appeal from an evaluative judgment, the correctness standard of review under the principles essayed in Warren v Coombes [1979] HCA 9; 142 CLR 531 applies: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [35]-[50] (Gaeglar J). The principles applicable to appellate review of evaluative judgments have been the subject of discussion in many other cases, as Allsop CJ catalogued in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [4]. The applicable principles that I should apply are those summarised by Allsop J (Drummond J and Mansfield J agreeing) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [28]-[29], which was followed in Aldi Foods (Allsop CJ at [10], Perram J at [53] and Markovic J at [169] agreeing) –

28    … First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in Abalos v Australian Postal Commission; Devries v Australian National Railways Commission and SRA v Earthline. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge’s views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.

29    The degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge. Sometimes, where matters of impression and judgment are concerned, giving “full weight” or “particular weight” to the views of the trial judge might be seen to shade into a degree of tolerance for a divergence of views [various authorities] … However, as Hill J said in Commissioner of Taxation (Cth) v Chubb Australia Ltd “giving full weight” to the view appealed from should not be taken too far. The appeal court must come to the view that the trial judge was wrong to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.

(Citations omitted)

39    It is the duty of this Court to conduct a real review of the evidence before the primary judge and of the primary judge’s reasons for judgment, having regard to any advantage enjoyed by the primary judge and not available to the Court on appeal: Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]-[29] (Gleeson CJ, Gummow and Kirby JJ). The appellants submitted, and the respondent accepted, that the primary judge enjoyed no relevant advantage in evaluating the issues the subject of the appeal. If, in accordance with the principles referred to above, this Court is of the view that error is shown, then it is the duty of this Court to give effect to its own views, making its own findings and drawing its own inferences and conclusions: Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 at 479-481 (Deane and Dawson JJ), cited in Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43].

Grounds of appeal

40    The appellants’ grounds of appeal are considered in turn, below. As I have mentioned, grounds 2 and 8 were abandoned.

Ground 1: characterising casual employment contracts

41    The appellants submitted that the primary judge erred by failing to have proper regard to the nature of the appellants’ engagement by the respondent, which on the appellants’ submission, was an engagement as casual employees, rather than as ongoing, full-time employees. The appellants submitted that the features of casual employment must be considered in determining the independent contractor-employee distinction, and they pointed to the increase in the proportion of casual employees in the Australian workforce to support that submission. The appellants submitted that particular indicia cannot be indicative of casual employment and also be indicative of independent contracting. The appellants submitted that the primary judge failed to have proper regard to the features of casual employment, such that the primary judge gave weight to particular indicia that should have been given either no weight at all or lesser weight. The appellants submitted that the primary judge erred in this respect in four ways. First, the appellants submitted that the primary judge erred in taking into account that the appellants did not serve the respondent exclusively, given that casual employees typically do not serve their employer exclusively. Second, the appellants submitted that the primary judge erred in taking into account that the appellants did not accrue or take paid annual leave, personal leave or long service leave, given that casual employees generally do not receive those leave entitlements. Third, the appellants submitted that the primary judge erred in taking into account that the respondent did not have a contractual right to terminate the appellants’ engagement on short notice or for misconduct, given that such a right would have been redundant because clause 4.18 of the contracts provided that the respondent did not promise to provide work to the appellants, and that accorded with casual employment. Fourth, the appellants submitted that the primary judge erred in taking into account that the appellants were not required to perform work when requested to do so by the respondent, given that the absence of a firm commitment to provide or perform work is the essence of casual employment.

42    The respondent submitted that there are many similarities between the indicia of independent contracting and casual employment. However, the respondent submitted that casual employment and independent contracting cannot be conflated, and that casual employees may enjoy rights and privileges, such as long service leave and protection from “unfair dismissal” under Part 3-2 of the Fair Work Act, which independent contractors do not enjoy. The respondent opposed the appellants’ submission that particular indicia cannot be indicative of casual employment and also be contra-indicative of employment, and instead submitted that those issues must go to the weight given to particular indicia. The respondent also made specific submissions in opposition to some of the appellants’ four specific alleged errors. First, the respondent submitted that the primary judge did not err in taking into account that the appellants did not exclusively serve the respondent, despite conceding that lack of exclusivity can also be a factor in casual employment contracts. Second, the respondent submitted that the primary judge gave appropriate weight to the appellants’ lack of leave entitlements, without addressing the appellants’ casual employment submission. Third, the respondent submitted that the absence of an express contractual right to terminate the appellants’ engagement and the fact that it did not guarantee future work (noting the respondent’s own dependence on the Victorian Government scheduling the ANZAC Roadshow performances) were indicative of independent contracting, without addressing the appellants’ casual employment submission. Fourth, the respondent did not specifically respond to the appellants’ submission regarding the absence of an obligation to perform work when requested to do so by the respondent, but generally supported the primary judge’s reasons.

43    Ground of appeal 1 is on one level an umbrella ground that alleges a general error by the primary judge in failing to have proper regard to the appellants’ purported casual employment. At this level of generality, I do not consider that the appellants have established any error on the part of the primary judge. The primary judge acknowledged the appellants’ submissions that the distinction was between a characterisation as either independent contractors or casual employees of the respondent: [55]-[57] and [198]. However, this ground also, on another level, raises four specific alleged errors by the primary judge arising from the alleged failure to have sufficient regard to the appellants’ purported casual employment. I shall consider each in turn, below.

44    First, I do not consider that there was any error in the primary judge’s regard to the fact that the appellants were not contractually obliged to, and did not in fact, exclusively serve the respondent. I accept that non-exclusive service may be a characteristic of both independent contracting and casual employment and, as such, less weight should be given to it, in and of itself, in evaluating the independent contractor-employee distinction in this case. However, I do not as a consequence accept that it was an error for the primary judge to have some regard to the fact that the appellants were not contractually obliged to, and did not in fact, exclusively serve the respondent. While non-exclusive service may be a characteristic of both independent contracting and casual employment, I consider that it may nonetheless support an independent contractor characterisation when viewed with other indicia, particularly as informing an assessment of whether a worker is operating a business of his or her own. An independent contractor that operates a business of his or her own may pursue work opportunities with various principals as they arise to expand his or her business and develop goodwill in new parts of the market for his or her goods or services, whereas a casual employee who works for multiple employers may simply do so to maximise his or her short-term remuneration. The relevance of considering the indicium of exclusive service in the context of determining an independent contractor-casual employee distinction will depend on the particular facts of the case, perhaps including any inferences that can be drawn about whether the workers are running their own business. The appellants sought to impugn particular paragraphs of the primary judge’s reasons as disclosing this alleged error: [163], [208] and [216]. In those paragraphs, the primary judge noted that the contracts did not contain a term requiring exclusive service and that the appellants in fact worked for other entities (at [163]), and commented that the appellants marketed their acting services in search of further opportunities (at [208] and [216]). The primary judge did not expressly attribute any weight to the fact of the appellants’ non-exclusive service. The appellants pointed to the primary judge’s use of the phrase “of particular significance” in [156]. In that passage, the primary judge was simply noting “that the following features of the contract are of particular significance”, and not attributing particular weight to the terms of the contract discussed in the subsequent eight paragraphs. The primary judge’s regard to the appellants’ non-exclusive service formed part of his broader assessment of the appellants’ autonomy from the respondent, and did not disclose any error.

45    Second, I consider, however, that the primary judge erred in his Honour’s treatment of the fact that, by their contracts, the appellants were not entitled to receive paid leave entitlements. The primary judge acknowledged that casual employees are not ordinarily entitled to leave or sick pay, and stated that he regarded this consideration as being of lesser significance than other matters (see [198]-[199]). I accept the appellants’ submission that not receiving paid leave entitlements is a typical characteristic of both independent contracting and casual employment and, as such, no weight should be given to it, in and of itself, in determining this case. The primary judge referred at [198] to On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; 214 FCR 82 at [219] (Bromberg J). There, Bromberg J acknowledged that casual employees are not ordinarily entitled to leave entitlements, and at [295] stated that the absence of leave entitlements was “of no assistance” given that the distinction to be drawn was between independent contracting and casual employment. While the primary judge appropriately acknowledged the limited value of this indicium, his Honour nonetheless appears to have attributed it some weight in forming the evaluative judgment, and therefore fell into error.

46    Third, I do not consider that there was any error in the primary judge’s regard to the fact that the respondent did not have a contractual right to terminate the appellants’ engagement on short notice or for misconduct. The primary judge at [158] found that the absence of a reserved right to terminate “contra-indicates a high degree of control in the parties’ relationship”, which implies that his Honour treated it as indicative of an independent contracting characterisation. Later, at [174], the primary judge again referred to the lack of a reserved right, but followed with a reference to the fact that the respondent also did not guarantee a constant supply of work to the appellants. The appellants submitted that the primary judge erred because the lack of a reserved right is irrelevant, given that clause 4.18 of the contracts stated that “we [the respondent] cannot guarantee or determine how much work will be available”. I do not accept the appellants’ submission that the lack of a reserved right is irrelevant, such that the primary judge by having any regard to it would fall into error. If, for example, the respondent had a reserved right to terminate the appellants’ engagement during a performance, then that might be indicative of an employment relationship (as the reserved right would have work to do even in the context of casual employment where there is no obligation for the employer to offer future engagements), so a lack of such a right may provide some limited support for an absence of control in support of an independent contracting characterisation. The primary judge had regard to the lack of a reserved right as informing the broader indicium of control, and also associated the lack of a reserved right for the respondent to terminate the appellants’ engagements with the countervailing lack of an obligation for the respondent to provide work to the appellants. The primary judge appreciated the limited relevance of the lack of a reserved right and did not fall into error.

47    Fourth, I do not consider that there was any error in relation to the primary judge’s consideration of the fact that the appellants were not required to perform work when requested to do so by the respondent. The appellants sought to impugn the primary judge’s reasons at [188] as demonstrating this error. In that paragraph, the primary judge considered the appellants’ capacity to propose understudies and to sub-contract the performance of their role, and did not expressly attribute any weight to either side of the independent contractor-employee distinction. The primary judge did not specifically have regard to the fact that the appellants were not required to work whenever the respondent requested, so this ground does not arise. However, at this point I note that in [188] of the primary judge’s reasons, his Honour did consider the appellants’ capacity to substitute their own service for the service of another worker and that reasoning is considered under ground 6, which relates to delegation, below.

Ground 3: control

48    The appellants submitted that the primary judge erred in failing to find that the respondent exercised control over who performed the work, and what, when, where and how the work was performed, and that this degree of control by the respondent was strongly indicative of an employment relationship. In particular, the appellants submitted that the primary judge erred in this respect in four ways. First, the appellants submitted that the primary judge erred at [153] in finding that the rehearsal and script writing process, undertaken at the respondent’s premises and under the supervision of the director and script writer, did not persuasively indicate control by the respondent. Second, the appellants submitted that the primary judge erred at [154] in finding that appellants’ evidence in the form of “default expressions” about the control, direction and instructions exerted upon them was “addressing the ultimate issue” and “was not determinative of the type of control which would suffice to establish an employment relationship.” Third, the appellants submitted that the primary judge erred at [207] in finding that the appellants were “not simply carrying out work as and when directed to do so”. Fourth, the appellants submitted that the primary judge erred at [207] in finding that the appellants were not “superintended” by the respondent in the presentation of their performances.

49    The respondent submitted that the primary judge correctly assessed the indicium of control and that the appellants’ submissions overstated the degree of control exercised by the respondent over the appellants’ work. The respondent also made specific submissions in opposition to some of the appellants’ four specific alleged errors. First, the respondent submitted that the rehearsal and script writing process must be viewed in context and pointed to evidence that the appellants’ skills and input to rehearsals were fundamental to finalising the performance. Second, the respondent did not specifically respond to the appellants’ submission regarding the primary judge’s treatment of the appellants’ evidence regarding control, but generally supported the primary judge’s reasons. Third and fourth, the respondent sought to meet the appellants’ attack on the primary judge’s conclusions in relation to control by submitting that the appellants had sought to dissect the parties’ working relationship to emphasise elements of control, whereas the assessment must be of the totality of the parties’ relationship. The respondent also emphasised that it was integral to the conduct of the ANZAC Roadshow that the respondent gave the appellants one month’s notice of upcoming shows, so that the appellants could arrange their professional commitments and continue performing other work.

50    As with ground 1, this ground is on one level an umbrella ground that alleges a general error by the primary judge in failing to find that the respondent exercised control over who performed the work, and what, when, where and how the work was performed, and that the degree of control by the respondent was strongly indicative of an employment relationship. At this level of generality, I do not consider that the appellants have established any error on the part of the primary judge. The indicium of a principal or employer’s control over an independent contractor or employee is not an absolute measure. There are degrees of control, and control can manifest in various ways, and may take on different complexions. The primary judge’s reasons include three paragraphs under the heading “control”: [153]-[155]. Those paragraphs deal with evidence given by the appellants in relation to control, which are the subject of the first two specific alleged errors in the primary judge’s reasoning in relation to control, considered below. The primary judge also expressed conclusions at [207] that are referrable to the indicium of control, which are the subject of the third and fourth specific alleged errors in the primary judge’s reasoning in relation to control, and are also considered below.

51    I now turn to the specific errors alleged by the appellants in relation to the primary judge’s reasoning in relation to control.

52    First, I do not consider that the primary judge erred by not finding that the rehearsal and script writing process did not persuasively indicate control by the respondent. The primary judge chose to emphasise the appellants’ own contributions to the iterative creative process of developing the show, rather than the respondents’ control over the content of the script and manner of performance, and I do not consider that any error in that approach has been shown. The same conclusion applies in relation to the appellants’ complaint that the primary judge failed to appreciate the control exercised by the respondent as evidenced in the appellants bumping (carrying) in and out the equipment required for each performance.

53    Second, I consider, however, that the primary judge did err in holding at [154] that the appellants’ evidence in the form of “default expressions” about the control, direction and instructions exerted upon them was “addressing the ultimate issue” and “was not determinative of the type of control which would suffice to establish an employment relationship.” At the hearing before the primary judge, each of the appellants gave evidence, in evidence-in-chief and under cross-examination, about their engagement with the respondent. That evidence was not contradicted. The evidence detailed the manner in which the respondent, principally through its employee Mr Montgomery, controlled the content and manner of the performance of the ANZAC Roadshow. I consider that the primary judge made a series of related errors in evaluating that evidence at [154]-[155] of his Honour’s reasons. First, the appellants’ evidence did not directly address the “ultimate issue”, which was whether the appellants were independent contractors or employees. Rather, it was evidence of the nature of the parties’ relationship, which was directly relevant to the indicium of control, and other indicia. Second, the primary judge regarded the appellants’ evidence as “not being determinative of the type of control which would suffice to establish an employment relationship.” There is no type of control which would itself suffice to establish an employment relationship. Control is only one indicium, albeit an important one, to be considered in assessing the totality of the parties’ relationship in determining the independent contractor-employee distinction: Stevens v Brodribb [1986] HCA 1; 160 CLR 16 at 24 (Mason J); Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [45] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). Third, the primary judge erred in referring to Connelly v Wells (1994) 55 IR 73 as authority for the proposition that “the parties’ subjective views upon such issues [the nature of control in their relationship], as distinct from their evidence in relation to them, was legally irrelevant”. In that case, Gleeson CJ at 74 commented that the parties’ subjective views about the legal nature of their relationship (ie, the ultimate issue) are “usually unhelpful and legally irrelevant”. This does not mean that the appellants’ evidence about the nature of the respondent’s control over their work was irrelevant.

54    Third and fourth, I do not consider that there was any specific error in the primary judge’s conclusions in relation to control. The primary judge’s conclusions that were the subject of alleged error go no further than stating that the appellants were not under the absolute control of the respondent. There was no error in that conclusion. I shall consider the indicium of control further in considering for myself the independent contractor-employee distinction, below.

Ground 4: mode of remuneration

55    The appellants submitted that the primary judge erred in finding that the respondent’s mode of remunerating them was indicative of independent contracting, when it should properly have been found to be indicative of an employment relationship. The appellants pointed to three specific errors by the primary judge that they alleged. First, the finding by the primary judge at [166] that the appellants had “quite deliberately set up a system for issuing invoices to Cultural Infusion for the performances which they undertook”, which the appellants submitted was made without evidence and should not have been attributed “particular significance” in supporting a finding of an independent contracting relationship. Second, the primary judge’s attribution at [166] of “particular weight” to the fact that the appellants were paid for each day of performance in finding an independent contracting relationship. Third, the appellants claimed that the primary judge was in error at [190] in treating the fact that the appellants were paid for days worked, rather than for each week that they provided services, as indicative of an independent contracting relationship. Further, the appellants made three more specific submissions in relation to the indicium of mode of remuneration. First, the appellants conceded that payment on submission of an invoice was suggestive of an independent contracting relationship, but submitted that the method of payment should not be attributed any weight in circumstances where they rendered invoices only to comply with the detailed requirements in their contracts and to ensure that they were paid. Second, the appellants submitted that the fact that they were paid monthly for the days that they worked, rather than being paid irregularly for the completion of particular tasks, pointed to employment. To support this submission, the appellants noted that the manner in which they were paid complied with the requirement in s 323 of the Fair Work Act that employers pay their employees on at least a monthly frequency. Third, the appellants submitted that the fact that they took on no financial risk pointed to an employment relationship. To support this submission, the appellants argued that independent contractors operating their own business take on the prospect of making a profit and the risk of making a loss when performing work, whereas employees do not take on such risk.

56    The respondent submitted that payment on invoice was indicative of independent contracting and otherwise generally supported the primary judge’s reasons.

57    I do not accept any of the three alleged errors in the primary judge’s consideration of the respondent’s mode of remunerating the appellants. First, I do not consider that there was any error in the primary judge’s finding that the appellants set up a system for issuing invoices to the respondent. The fact that each of the appellants set up a system for issuing invoices to the respondent is apparent on the face of the invoices issued by the appellants and made out to the respondent. Those invoices were necessarily prepared and rendered by way of some system. The primary judge did not extend the finding, as alleged by the appellants, to a finding that the appellants set up those systems other than to comply with the respondent’s offer, that is, other than to comply with the invoicing term of their contracts. The primary judge at [189] stated that the rendering of invoices was quite foreign to an ordinary employment relationship and cited Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487 at 495 and 497 (Steytler J, with Malcolm CJ and Rowland J agreeing). I do not consider that there was any error in the primary judge’s evaluation of the significance of payment on invoice. Second and third, I do not consider that a fair reading of the primary judge’s reasons discloses any particular reliance on the fact that the appellants were paid for each day of performances in finding an independent contracting relationship, such that these alleged errors do not arise.

58    I have considered the parties’ further submissions in relation to the significance of the respondent’s mode of remunerating the appellants in my own evaluation of the independent contractor-employee distinction, below.

Ground 5: exclusive service

59    This ground has been addressed, above, in considering the parties’ submissions in relation to ground 1 that go to the issue of exclusive service. As stated above, I do not consider that there was any error in the primary judge’s regard to the fact that the appellants were not contractually obliged to, and did not in fact, exclusively serve the respondent.

Ground 6: delegation

60    The appellants submitted that the primary judge erred in finding that the appellants were “not fixed with an obligation to render their services personally” (at [159]) and that it overstated the position to say that they were “unable to sub-contract their role under any circumstances” (at [188]). The appellants submitted that the contracts expressly prohibited them from sub-contracting their work for the respondent and that, in fact, the appellants did not sub-contract their work for the respondent. The appellants submitted that the primary judge conflated the power of an independent contractor to substitute another worker to perform the work that is the subject of their contract with the principal, that is, sub-contracting, with the power of an employer for whom the work is being done to select another worker to perform the work that can occur, for example, when an employer elects which of its casual employees to engage for a particular shift, or engages another employee to fill in for an ongoing employee who is on leave. Further, the appellants highlighted that the primary judge found that this factor was of “particular significance” (at [156]), such that this error materially influenced the primary judge’s evaluative application of the multi-factorial approach.

61    The respondent submitted that clauses 1.4.5 and 1.4.6 of the appellants’ contracts with the respondent needed to be read together and, as such, did not prohibit the appellants from sub-contracting their work for the respondent. The respondent otherwise generally supported the primary judge’s reasons.

62    It is desirable to set out clauses 1.4.5 and 1.4.6 of the appellants’ contract –

1.4.5    ACT may not engage performers not listed as members of ACT without first notifying Cultural Infusion.

1.4.6    ACT may not subcontract other performers to perform in place of ACT under any circumstances.    

63    It is also desirable to set out the relevant paragraphs ([159] and [185]-[188]) of the primary judge’s reasons –

159.    …the contracts did not proscribe the applicant’s roles from being delegated to an understudy. While the parties clearly intended that the actors would have the primary opportunity to perform their roles, what is of present significance is that they were agreed their roles could be delegated. And so the actors were not fixed with an obligation to render their services personally in all cases.

…

185.    Inherent in the nature of a contract of service is that the service will be performed personally. For that reason, the benefits and obligations of such contracts are not unilaterally assignable: ACE Insurance Pty Ltd v Trifunovski (2013) 209 FCR 146, [25] (Buchanan J). A consequence of this principle is that where a contract allows for a party to delegate their obligations this will undermine a conclusion that the relationship is one of employment. In ACE Insurance 209 FCR 146 at [37], Buchanan J considered the adoption by the parties of obligations which were inconsistent with an employment relationship – such as the ability to delegate and the degree of control exercised over performance of the work – as being of greater importance than the incidence of taxation.

186.    However, the ability to delegate will not be decisive. In Fair Work Ombudsman v Ecosway Pty Ltd (2016) 348 FCR 296, White J at [139] cited Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [4], and the reliance on Lehigh Valley Coal Co as an illustration of where delegation would not deny a finding of a relationship of employment.

187.    Equally, on the facts of Tattsbet, a decisive consideration was that the respondent was not required to perform all of the work that was required to be undertaken at the agency: at [64], [67]: see also Stevens v Brodribb 160 CLR at 24-26 and 38; Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 at 425, 428; Yaraka Holdings Pty Ltd v Ante Giljevic (2006) 149 IR 339 at [41] (Crispin P and Gray J).

188.    It is clear from the terms of the contracts that the actors were able to put forward persons who might be an understudy for their role. As the actors explained in the course of their evidence, after some months it became apparent that the demands of their roles was such that the use of an understudy was considered to be warranted. Insofar as it was submitted that the actors were unable to sub-contract their role under any circumstances, I consider that this overstated the position. Moreover, the contract expressly reserved to Cultural Infusion a right to select and appoint other persons to perform a part in the performance where the contracted party was unavailable.

(emphasis added)

64    I consider that there was error in the primary judge’s findings that the appellants were not required to provide personal service to the respondent, and that the appellants could sub-contract their work with the respondent. I accept the appellants’ submission that the primary judge conflated the power of an independent contractor to substitute another worker to perform the work that is the subject of their contract with the principal with the power of an employer for whom the work is being done, to select another worker to perform the work. I consider that this is reflected in the terms of the contracts. Clause 1.4.5 is poorly drafted and somewhat difficult to understand. It provides that “ACT” (construed as being the relevant actor, as discussed above) cannot engage performers not listed as “members of ACT” (on the only available construction, meaning anyone other than the relevant actor himself or herself) without notifying the respondent. It does not specify what such engagements may involve, or the power of the respondent to act on any such notification. By contrast, clause 1.4.6 is clear. It prohibits the appellants from sub-contracting other performers to perform in their place. In circumstances where the appellants’ only substantive work for the respondent was performing the ANZAC Roadshow, it effectively prohibited the appellants from any sub-contracting. Further, I accept that the appellants in fact did not sub-contract their work for the respondent. The appellants did not engage other actors to perform their role in the ANZAC Roadshow. Rather, the respondent, on occasion, itself selected, auditioned, trained, and engaged other actors to fill in as understudies when one of the appellants was not available for a performance.

Grounds 7 and 9: representation and integration

65    The appellants submitted that the primary judge erred in finding at [212] that whether the appellants were represented to be part of the respondent’s business was not a factor that was indicative of an employment relationship. Further, the appellants submitted that the primary judge should have found that the terms of the contracts governing the use of business cards, sponsorship, banners and promotion, as well as the extent of the appellants’ dependence upon and integration into the respondent’s business, were indicative of an employment relationship.

66    The respondent did not specifically respond to the appellants’ submission that the primary judge erred in finding at [212] that whether the appellants were represented to be part of the respondent’s business was not a factor that was indicative of an employment relationship, but generally supported the primary judge’s reasons. The respondent submitted that the fact that the appellants were required to carry the respondent’s business cards was not indicative of an employment relationship. Further, the respondent submitted that the appellants were only engaged by the respondent for one project for a limited time, and therefore they were not dependent upon or integrated into the respondent’s business.

67    I do not consider that there was any error at [212] of the primary’s judge’s reasons as alleged by the appellants. In that paragraph, the primary judge simply observed the facts that the appellants were not required to wear uniforms, but they were required to carry the respondent’s business cards and acknowledge the respondent as the sponsor of the ANZAC Roadshow. The primary judge did not make any affirmative findings about the significance of those matters to the evaluation of the independent contractor-employee distinction. The primary judge’s observations were accurate and do not reveal any error.

68    I have considered the parties’ further submissions in relation to the significance of the indicia of representation and integration in my own evaluation of the independent contractor-employee distinction, below.

Ground 10: nature of the work

69    The appellants submitted that the primary judge erred at [166], [183] and [216] in finding that the nature of the appellants’ work, as professional actors, and the appellants’ natural individuality, skill and expertise, were contra-indicative of an employment relationship, and therefore indicative of an independent contracting relationship. In those passages, the primary judge commented that “the actors considered themselves to be professional actors” (at [166]); “it was of greater use…to recognise that the natural individuality of their personalities and skills marked the applicants out as actors” (at [183]); and “the actors brought their individual skill and expertise to the ANZAC Roadshow performance” (at [216]). The appellants submitted that since the mid-20th century, courts have accepted that the inability of employers to be able to direct how the work of a skilled worker was performed did not mean that the control test was not met, and that the primary judge erroneously relied on the skilled nature of the appellants’ work in finding an independent contracting relationship.

70    The respondent’s submission in response to this ground was no more than to refer to and rely upon [166] of the primary judge’s reasons. The relevant sentence in that paragraph states that “when regard is had to the nature of their work, it is clear that the actors considered themselves to be professional actors.” This sentence is amongst those that are the subject of the appellants’ complaint under this ground.

71    In my view, the primary judge did not err in his consideration of the nature of the appellants’ work as professional actors. I accept the appellants’ submissions that the nature of the work performed by an independent contractor or an employee does not, in and of itself, indicate whether an independent contracting or employment relationship existed. This is apparent in authority that considered whether skilled professionals were independent contractors or employees. In Zuijs v Wirth Bros Pty Ltd [1955] HCA 73; 93 CLR 561, the High Court held that a circus trapeze artist who was injured in a fall while performing was an employee and therefore was entitled to workers’ compensation. The majority of Dixon CJ, Williams, Webb and Taylor JJ (McTiernan J agreeing) relevantly stated at 571-2 that –

…a false criterion is involved in the view that if, because the work to be done involves the exercise of a particular art of special skill or individual judgment or action, the other party could not in fact control or interfere in its performance, that shows that it is not a contract of service but an independent contract…

…

There are countless examples of highly specialized functions in modern life that must as a matter of practical necessity and sometimes even as a matter of law be performed on the responsibility of persons who possess particular knowledge and skill and who are accordingly qualified. But those engaged to perform the functions may nevertheless work under a contract of service.

72    There are other examples of this principle being applied in decisions involving radio play actors (Federal Commissioner of Taxation v J Walter Thompson (Australia) Pty Ltd [1944] HCA 23; 69 CLR 227 at 232 (Latham CJ)); expert real estate salesmen (Federal Commissioner of Taxation v Barrett [1973] HCA 49; 129 CLR 395 at 404 (Stephen J)); and a surgeon (Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 562-3 (Kirby P)). However, the primary judge considered the nature of the appellants’ work as actors in the context of addressing the goodwill that the actors possessed (at [184]), and in identifying their work as inherently freelance, which they promoted through websites, their agents, and themselves (at [216]). There was no error in that approach.

Ground 11: the characterisation term

73    The appellants submitted that the primary judge erred at [172] in finding that the characterisation term in the parties’ contracts was of significance. Clause 1.5 of the contracts stated that “the relationship between Cultural Infusion and ACT is that of principal and independent contractor and not that of employer and employee unless otherwise specified”. The appellants submitted that the characterisation term must be read in the context of the contract as a whole and the totality of the parties’ relationship beyond the terms of their contracts. The appellants submitted that in that context, especially noting the degree of control exercised by the respondent over the appellants that was not expressly provided for in the contracts, the characterisation term must be read down as being ineffective, failing in its purpose, or being varied or abandoned.

74    The respondent accepted that the parties to a working relationship cannot themselves, through the terms of their contract, determine the true nature of their relationship. Nonetheless, the respondent submitted that if the multi-factorial approach is finely balanced, then the parties’ own agreed characterisation of their relationship, as expressed in the characterisation term of their contracts, should be determinative.

75    I accept that the parties to a working relationship may not themselves, through the terms of their contract, determine the nature of their relationship in a way that is contrary to the legal complexion which it truly wears: R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; 85 CLR 138 at 151 (Dixon, Fullagar and Kitto JJ); Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [65] (Jessup J, Allsop CJ and White J agreeing). As put by Gray J in Re Porter; Re Transport Workers Union of Australia [1989] FCA 226; 34 IR 179 at 184, “the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck.” Nonetheless, I accept that in applying the multi-factorial approach to determining the independent contractor-employee distinction, a characterisation term may be relevant and the significance of a characterisation term must be assessed in the context of the contract as a whole and the totality of the parties’ relationship. I also accept that if the multi-factorial approach is finely balanced, then the parties’ own agreed characterisation of their relationship may, depending on the particular circumstances, be determinative in that it may tip the scales. This principle is recognised in authority. In Massey v Crown Life Insurance Co [1978] 1 WLR 678, Lord Denning MR stated at 679-680 –

The law, as I see it, is this: if the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label upon it …

On the other hand, if their relationship is ambiguous and is capable of being one or the other [ie either service or agency], then the parties can remove that ambiguity, by the very agreement itself which they make with one another. The agreement itself then becomes the best material from which to gather the true legal relationship between them. …

…

It seems to me on the authorities that, when it is a situation which is in doubt or which is ambiguous, so that it can be brought under one relationship or the other, it is open to the parties by agreement to stipulate what the legal situation between them shall be. That was said in the Ready Mixed Concrete case [1968] 2 Q.B. 497, 513 by MacKenna J.:

If it were doubtful what rights and duties the parties wished to provide for, a declaration of this kind might help in resolving the doubt and fixing them in the sense required to give effect to that intention.

So the way in which the parties draw up their agreement and express it may be a very important factor in defining what the true relation was between them. If they declare that one party is self-employed, that may be decisive.

76    Massey v Crown Life Insurance Co was cited by the Privy Council in Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 389, and in Narich Pty Ltd v Commissioner of Pay-Roll Tax [1983] 2 NSWLR 597 at 601. See also: Building Workers' Industrial Union of Australia v Odco Pty Ltd [1991] FCA 96; 29 FCR 104 at 126 (Wilcox, Burchett and Ryan JJ); NM Superannuation Pty Ltd v Young [1993] FCA 91; 41 FCR 182 at 199 (Hill J, Burchett J and O’Loughlin J agreeing); Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; 184 FCR 448 at [38] (Keane CJ, Sundberg and Kenny JJ).

77    There is no hard and fast rule about the weight to be attributed to the parties’ agreement about the legal nature of their relationship, as expressed in a characterisation term. Any characterisation term must be considered in light of all of the terms of the particular contract and the facts of the particular case. I do not consider that the primary judge erred in considering the characterisation term. The appellants’ alleged error in respect of the characterisation term is caught up in and forms part of the appellants’ ultimate submission that the primary judge erred in failing to find that they were in an employment relationship with the respondent.

Ground 12: contracts of employment

78    Finally, the appellants submitted an overarching ground of appeal that the primary judge erred in concluding that the parties were in an independent contracting, rather than an employment relationship. The appellants relied on their earlier grounds of appeal and associated submissions to support this overarching ground.

79    The respondent submitted that the primary judge was correct to conclude that the parties were in an independent contracting, rather than employment, relationship, and generally supported the primary judge’s reasons.

80    As stated at [37] above, this is an appeal by way of rehearing, in which the powers of the Court are exercisable where an appellant demonstrates some legal, factual or discretionary error. The appellants accepted that it is insufficient for them to simply seek that this Court decide for itself whether they were independent contractors or employees of the respondent. Nonetheless, the appellants submitted that given that there is no conflict about evidence or the credibility of witnesses, and therefore that this Court is in as good of a position as the primary judge to evaluative the independent contract-employee distinction, this Court may form its own conclusion on the parties’ relationship and if that conclusion is different to that of the primary judge, then the primary judge has erred. While the respondent accepted that the primary judge did not enjoy any advantage that is not available to this Court in reviewing the evidence and reaching a conclusion, the respondent did not specifically respond to the submission that the appellants are not required to establish any more specific error for this Court to go on to determine the independent contractor-employee distinction itself.

81    Given that I have found that the appellants have made out some specific errors by the primary judge under grounds 1 (characterising casual employment contracts), 3 (control), and 6 (delegation), I will consider below the correct characterisation of the parties’ relationship.

The characterisation of the parties’ relationship

82    Upon the basis of my own review of the evidence, I have concluded that, at all material times, the appellants were independent contractors, and not employees of the respondent.

Applicable principles

83    The authorities make clear, and the parties accepted, that the determination of whether a person is engaged as an independent contractor or an employee requires the application of the multi-factorial approach: Stevens v Brodribb [1986] HCA 1; 160 CLR 16 at 24 (Mason J), 35 (Wilson and Dawson JJ) and 49 (Deane J). There is no single or unifying test: ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; 209 FCR 146 at [102] (Buchanan J, Lander J and Robertson J agreeing). Courts no longer rely on control on the part of the principal or employer over the independent contractor or employee as the sole criterion to determine the distinction: Stevens v Brodribb [1986] HCA 1; 160 CLR 16 at 24 (Mason J); Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [45] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). The Court must have regard to the totality of the relationship between the parties, including their actual work practices, and not merely the terms of their contracts: Stevens v Brodribb [1986] HCA 1; 160 CLR 16 at 29 (Mason J); Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [24] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). The statutory and factual context will always be critical in a multi-factorial process of characterising a legal and human relationship as one of employment: Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [5] (Allsop CJ). The Court must consider various indicia that point towards either an independent contracting or an employment relationship, attribute weight to those indicia, and make an evaluative judgment. No one indicium is likely to be determinative and certain indicia will attract more weight in a particular case than in another case. The evaluation is a matter of fact and degree, and turns on the particular circumstances of the case.

84    There are many examples in the cases of the application of the multi-factorial approach to determining the independent contractor-employee distinction. In Stevens v Brodribb [1986] HCA 1; 160 CLR 16 Wilson and Dawson JJ at 36-37 –

The other indicia of the nature of the relationship [in addition to the indicia of control] 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.

85    The distinction between an employee 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”: Marshall v Whittaker’s Building Supply Company [1963] HCA 26; 109 CLR 210 at 217 (Windeyer J), cited in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [40] (Gleeson CJ, Gaudron, Gummow Kirby and Hayne JJ). This distinction has been referred to as posing the “ultimate question”: Stevens v Brodribb [1986] HCA 1; 160 CLR 16 at 35 (Wilson and Dawson JJ). The difference referred to by Windeyer J has led in some cases to the expression of a two-stage enquiry in assessing the independent contractor-employee distinction by asking – first, did the worker have his or her own business; and if so, second, was the worker’s work performed in and for their own business as a representative of that business, and not in and for their principal or employer’s business as a representative of their principal or employer’s business: see, On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 336; 214 FCR 82 (Bromberg J) at [208], and Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; 228 FCR 346 (Quest) at [177]-[186] (North and Bromberg JJ). The decision of the Full Court in the latter case was reversed on appeal to the High Court, which set aside the Full Court’s orders: Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45; 256 CLR 137. However, the Full Court’s finding that the two workers were employees and not independent contractors was not in issue on appeal to the High Court: see, [2015] HCA 45; 256 CLR 137 at [6] and [10].

86    In Sparks v Hobson [2018] NSWCA 29; 361 ALR 115 at [35]-[38], Basten JA explained that the reasons for the decision of an intermediate appellate court that is reversed on appeal to the High Court are no longer dispositive of the case, and are analogous to a dissenting judgment. Basten JA cited the reasons of Kirby J in Garcia v National Australia Bank Ltd [1998] HCA 48; 194 CLR 395, who stated at [56] (inter alia) –

It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order. Thus, the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be. Judicial remarks of a general character upon tangential questions or issues not necessary to the decision are likewise discarded, however persuasive the reasoning may appear. In this sense, the rules governing the ascertainment of binding precedent observe principles which are at once majoritarian and precise. …

(Citations omitted)

87    Basten JA then stated at [36]-[39] (inter alia) –

36    When the decision of an intermediate court of appeal is overturned by the High Court, the reasoning of the majority is no longer dispositive, even if the High Court does not directly reject it, as it did not with respect to the interpretation of s 5O [of the Civil Liability Act 2002 (NSW)] in [Hunter and New England Local Health District v McKenna [2014] HCA 44; 253 CLR 270], having determined the appeal on a different point.

37    There is some irony in the fact that the primary support for this conclusion is often sourced to a brief statement by Aickin J in dissent in Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [(1981) 146 CLR 336 at 410] stating:

I should add that there is no basis on which one point in the judgment of a primary court should be regarded as authoritative where the judgment is reversed on other grounds.

38    Given that the reasons of the intermediate court in a case where the decision has been reversed are no longer dispositive, they are analogous to the reasoning of a dissenting judge. Allsop P explained in Holmes (a court) v Papaconstuntinos [[2011] NSWCA 59 at [3]] that dissenting judgments “may contain valuable discussions of legal principle”, but that is “a different thing to being taken as an exposition of the common law to be applied.” The same proposition applies with respect to discussion of statutes.

39    The position would, of course, be quite different if the High Court, despite reversing the decision in this Court in McKenna, had approved the reasoning with respect to s 5O. The reasoning would not then form part of the ratio, but it would clearly obtain the authority of dicta of the High Court. …

88    In Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [61]-[62], Jessup J (Allsop CJ at [3], and White J at [140] not deciding) cautioned against the two-stage enquiry approach of North and Bromberg JJ in Quest, stating that it functioned to “deflect attention from the central question, whether the person concerned is an employee or not; or, perhaps as Mason J put it in Stevens v Brodribb (1986) 160 CLR 16 at 28, to ‘shift the focus of attention’ to a no less problematic question.” Further, Jessup J at [62] held that the adoption of the two-stage enquiry approach in Quest was in obiter.

89    The authorities were considered by White J in Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 at [78], by Thawley J in Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 at [126], and by O’Callaghan J in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 at [152]-[155]. White J, Thawley J, and O’Callaghan J each cited with approval the reasoning of Jessup J in Tattsbet v Morrow, and did not follow the two-stage enquiry approach referred to in Quest. In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, O’Callaghan J stated at [153] that “it is inconsistent with the multi-factorial assessment to say that the absence of one factor [whether the worker is running his or her own business] (or the presence of it, for that matter), should for practical purposes dictate a result.” I shall follow the reasoning of Jessup J, White J, Thawley J, and O’Callaghan J on this issue, with which I respectfully agree.

90    Therefore, consistently with the way in which the parties put their cases in this appeal, I have structured my reasons around particular indicia that may reasonably inform the assessment of the totality of the parties’ relationship. This is not to be seen as a checklist, but as a reference to relevant factors that may inform the overall assessment. While I have not adopted the two-stage enquiry referred to in Quest, or elevated the indicium of whether the appellants were running their own businesses to being determinative, I nevertheless find that the consideration of that indicium in the present case to be a relevant feature of the broader multi-factorial assessment. That is because the question whether a worker was operating his or her own trade or business is a relevant question to ask, as the dictum of Windeyer J in Marshall v Whittaker’s Building Supply Company at 217, and its citation in Hollis v Vabu Pty Ltd at [40], indicate.

The appellants’ leading indicia

91    At the hearing of the appeal, counsel for the appellants made a submission that the most important indicia which indicated that the parties were in an employment relationship, and which should be given particular weight, were in the following order. First, personal service, that the appellants were required personally to perform their work for the respondent. Second, representation, that the appellants worked as representatives of the respondent. Third, control, that the respondent controlled the work of the appellants. And fourth, the mode of remuneration, that the appellants were paid by the respondent for each rehearsal or performance on a monthly frequency, and that the appellants were not exposed to any prospect of profit or risk of loss from their engagement with the respondent.

92    The respondent did not make submissions in response to the appellants’ proposed most important indicia, other than to submit that the respondent supported every aspect of the primary judge’s decision. Nor did the respondent proffer its own set of most important indicia in support of its case that the appellants were engaged as independent contractors, and not as employees of the respondent.

93    I consider the appellants’ proposed most important indicia, and other indicia that inform the evaluation of the parties’ relationship, in the sections below.

Personal service

94    A defining feature of an employment relationship is that the employee personally performs the work for his or her employer. Buchanan J (with whom Lander J and Robertson J agreed) in ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; 209 FCR 146 at [25] summarised the principle that personal service is required in an employment contract as follows –

Contracts of employment (contracts of service traditionally so-called) are contracts for personal service. Benefits and obligations of contracts of individual service of this kind are not unilaterally assignable by either party (Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 at 1018-1019, 1024, 1026, 1029, 2048; Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 at 14, 15 (Mersey Docks); Denham Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 at 443 (Denham)). The requirement for personal service has the effect that a contract which truly permits discharge in another fashion or by another person, is not a contract of employment.

95    Therefore, if a worker has the capacity to delegate his or her work, that is a strong indicator that the worker is not an employee. Mason J in Stevens v Brodribb [1986] HCA 1; 160 CLR 16 at 26 emphasised this point. His Honour cited the opinion of the Privy Council in Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 391, in which the Board stated –

In the present case there appears to be nothing in the written agreement to prevent the respondent from delegating the whole performance of his work to one or more sub-agents. In the opinion of their Lordships this power of unlimited delegation is almost conclusive against the contract being a contract of service … The unlimited extent of the power of delegation is one of consequence of the striking absence of any express obligation upon the respondent to perform any particular duties, or to work any particular hours, or indeed to do any work at all on behalf of the Society.

96    For the reasons stated above in considering the appellants’ ground 6 in relation to delegation, I have found that the appellants were required to provide personal service and could not delegate their work for the respondent.

97    I consider that the indicium of personal service is indicative of an employment relationship, but in the circumstances of this case I place little weight on it. The authorities show that if a worker can delegate the performance of the work, that is a strong indicator that the worker is not an employee. The inverse situation does not carry equal force. That is, the fact that a worker cannot delegate the performance of the work is not necessarily a strong indicator that the worker is not an independent contractor. In my view, that is especially the case in circumstances where the worker has been chosen for the engagement because of his or her own artistic skills. On the present facts, the respondent engaged the appellants as actors on the basis of their particular acting skills and experience. In those circumstances, it is unsurprising that the respondent did not grant the appellants the right to delegate the performance of their roles, given that such delegation could have been to actors that the respondent had not vetted, or approved, or auditioned, to perform the ANZAC Roadshow.

Representation

98    The indicium of representation is well-established in the authorities. In Colonial Mutual Life Assurance Society Ltd v Producers and Citizen Co-operative Assurance Company of Australia Ltd [1931] HCA 53; 46 CLR 41 at 48, Dixon J distinguished between an independent contractor who “carries out work, not as a representative but as a principal” and an employee who is a “representative (of the employer) standing in his place and, therefore, identified with him”. The majority in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [40] referred approvingly to this statement of Dixon J and stated –

This statement merits close attention. It indicates that employees and independent contractors perform work for the benefit of their employers and principals respectively. Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person is question cannot be a sufficient indication that this person is an employee. However, Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor. These notions later were expressed positively by Windeyer J in Marshall v Whittaker’s Building Supply Co. His Honour said that the distinction between an employee 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 carried on a trade or business of his own”.

99    On the facts in Hollis v Vabu Pty Ltd, the majority at [50] found that the couriers “presented to the public” as emanations of Vabu Pty Ltd. The majority noted that the couriers wore uniforms bearing the company’s logo and that the contract by which they were engaged included a term expressly stating that the couriers were a “direct representation of the company”.

100    In the present case, the appellants were contractually obliged to, and did in fact, represent and promote the respondent’s business. The appellants were the public face of the respondent and identified with it. As detailed at [8(6)] above, the appellants’ contracts with the respondent required them to make themselves available for promotional performances at no cost; to acknowledge verbally the respondent at the conclusion of all performances; to display the respondent’s signage at all performances, when supplied; and to carry the respondent’s business cards. The appellants did not wear the respondent’s uniforms, because they were engaged as actors and wore costumes, but in practical effect, they were required to, and did, everything else to appear as emanations of the respondent.

101    However, while the appellants represented the respondent and made clear that the respondent was responsible for putting on the ANZAC Roadshow, the appellants also represented themselves as actors. During each performance, the actors demonstrated their own acting skills and, at least to some degree, they could be identified as actors possessing those skills. In that respect, they may have obtained some goodwill or reputational benefit from their involvement in the ANZAC Roadshow, which they could seek to leverage in future auditions for acting work.

102    On balance, I consider that the indicium of representation is in the circumstances of these appeals indicative of an employment relationship.

Control

103    While control is no longer the sole criterion in determining the independent contractor-employee distinction, it remains an important indicium in applying the multi-factorial approach: Stevens v Brodribb [1986] HCA 1; 160 CLR 16 at 36 (Wilson and Dawson JJ); ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; 209 FCR 146 at [103] (Buchanan J). It is the employer or principal’s power to control the manner in which the independent contractor employee performs the work, rather than necessarily the actual exercise of control, that is important: Federal Commissioner of Taxation v J Walter Thompson (Australia) Pty Ltd [1944] HCA 23; 69 CLR 227 at 231 (Latham CJ); Zuijs v Wirth Bros Pty Ltd [1955] HCA 73; 93 CLR 561 at 571 (Dixon CJ, Williams, Webb and Taylor JJ). A lack of “real independence of action or true independence of organisation” in the performance of work is suggestive of an employment relationship: ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; 209 FCR 146 at [148] (Buchanan J).

104    In the present case, the respondent exercised a high level of control over what, when, where, and how the appellants performed the work. At the start of the appellants’ engagement by the respondent, the appellants attended rehearsals at the respondent’s premises. Those rehearsals were held under the supervision and control of two employees of the respondent, Mr Montgomery, the production manager and director, and Ms Suris, the script writer. I accept that the appellants had some input into the iterative creative process of developing the show, and to that extent, the respondent ceded some control over the appellants’ work and the show. However, the evidence indicates that the appellants’ input was limited and that the respondent, through Mr Montgomery and Ms Suris, had the final say over the script and how it was to be performed. This form of control over what the appellants said and how they said it is comparable to findings on the indicium of control in other cases, such as the control exercised by a Weight Watchers franchisee over its employee lecturers (Narich Pty Ltd v Commissioner of Pay-Roll Tax [1983] 2 NSWLR 597 at 605-6), and a market research company over its employee interviewers (Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; 184 FCR 448 at [36]-[37]). Throughout the ANZAC Roadshow performance tour, the respondent maintained a high level of control over the appellants’ work. Mr Montgomery attended, supervised and directed the performances. The appellants and Mr Montgomery travelled to and from the respondent’s premises, in the respondent’s van, to attend the performance venues. Under the direction of Mr Montgomery, the appellants would bump (carry) in and out all of the equipment required for the show. The performances were put on when and where the respondent directed, according to the requirements of the respondent’s client.

105    Viewed as a whole, I consider that the respondent effectively controlled nearly every aspect of the manner in which the appellants rehearsed and performed the ANZAC Roadshow over the duration of the appellants’ engagement with the respondent. However, I consider that the weight to be placed on the indicium of control must be attenuated in circumstances where control, in the sense of strict adherence to a prescribed manner of work, is inherent in the nature of the work. The appellants were performing together in a theatrical production. They could hardly choose their own times at which to commence work. Actors in scripted performances are, as a general rule, required to stick to the script. That will be true whether those actors are independent contractors or employees, on the basis of the overall multi-factorial assessment. Therefore, I place little weight on the facts that the respondent had final say over the content of the script for the ANZAC Roadshow, or that the appellants were required to stick to the script in performing the show. On balance, though, the indicium of control in the present case may tend to favour an employment relationship.

Mode of remuneration

106    As outlined above in considering ground 4 of the appellants’ grounds of appeal, the appellants made three specific submissions to support the proposition that the respondent’s mode of remunerating them was strongly supportive of an employment relationship.

107    First, the appellants conceded that payment on submission of an invoice was suggestive of an independent contracting relationship, but submitted that it should not be attributed any weight in circumstances where they only rendered invoices to comply with the detailed requirements in their contracts so as to ensure that they were paid. The respondent simply submitted that payment on invoice was indicative of independent contracting. I consider that the fact that the appellants rendered invoices to the respondent was a consequence of the parties’ own characterisation of their relationship as being of independent contractor and principal. This was expressed in the characterisation term in the contracts and also reflected in other consequential indicia. I shall address the parties’ own characterisation of their relationship and the consequential indicia (invoicing, payment without deducting income tax, and the non-provision of leave), below.

108    Second, the appellants submitted that the fact that they were paid monthly for the days that they worked, rather than being paid irregularly for the completion of particular tasks, pointed to employment. To support this submission, the appellants noted that the manner in which they were paid complied with the requirement in s 323 of the Fair Work Act that employers pay their employees on at least a monthly frequency. This submission was made up of two separate components – first, the nature of the respondent’s remuneration of the appellants, and second, the regularity of that remuneration.

109    In relation to the nature of the remuneration, I accept that independent contractors tend to be paid for the performance of a particular task or production of a particular result, whereas employees, and in particular casual employees, tend to be paid for the hours that they work, but these trends are not hard rules: On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 336; 214 FCR 82 at [276]-[282] (Bromberg J). On the present facts, there is limited relevant distinction because the majority of the respondent’s payments to the appellants, as evidenced in the appellants’ invoices to the respondent, were for the daily rate payable for a day in which the appellants performed a single show. Such payments can be characterised as either for time (a day) or for a product (the performance). However, other payments that were provided for in the contracts and received by the appellants are indicative of an employment relationship. First, payments for rehearsals were made on a pro-rated hourly rate. Second, where the appellants undertook two performances in one day, they still received their daily performance rate, rather than two performance fees. Third, the appellants received an additional payment of $25.00 per hour for extra hours over 10 hours and up to 14 hours on a performance day. The appellants described such payments as “overtime” in their invoices. On the basis of the general trend identified above, all of these payments provide some limited support for an employment relationship characterisation, and consequently I find this indicium of the nature of the respondent’s remuneration of the appellants, on balance, to favour characterisation of an employment relationship.

110    In relation to the regularity of the respondent’s remuneration of the appellants, clause 7.2 of the contracts provided that the respondent would pay the appellants on a monthly basis. I do not find the fact that the respondents paid the appellants on a regular monthly basis to be of assistance in determining the independent contractor-employee distinction. A principal may wish to pay his, her or its independent contractors on a regular monthly basis for book-keeping or administrative purposes, and the parallel to compliance with the Fair Work Act requirement that employers pay their employees on at least a monthly frequency may be coincidental. I find the indicium of the regularity of the respondent’s payment of the appellants to be a neutral factor.

111    Third, the appellants submitted that the fact that they took on no prospect of making a profit, or risk of making a loss, pointed to an employment relationship. To support this submission, the appellants contended that independent contractors operating their own business take on the prospect of making a profit and the risk of making a loss, whereas employees do not. I accept that exposure to profit or loss is a relevant indicium in assessing the independent contractor-employee distinction. Bromberg J in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 336; 214 FCR 82 at [213]-[214] addressed the relevance of this indicium as follows –

The risk profile of a personal services business is very different to that of an employee. By its very nature, a genuine commercial enterprise is an undertaking which involves risk. Business risk is a product of a need for a business to invest (either in physical assets, time or effort) at a cost and without any certainty of assurance of that cost being recovered and any profit being made. Unlike an employee who generally seeks security, and is not risk-tolerant, a personal services business is prepared to invest time, money and effort with little or no certainty that such investment will be rewarded with a financial return. All of that is done in the hope of making a profit. It is in that sense, that an entrepreneur operating a personal services business seeks profit and not simply remuneration, for the personal services provided.

A genuine independent contractor providing personal services will typically be: autonomous rather than subservient in its decision-making; financially self-reliant rather than economically dependent upon the business of another; and (as I have said) chasing profit (that is a return on risk) rather than simply a payment for the time, skill and effort provided.

112    I also accept that, in the present case, the appellants did not take on any prospect of making a profit beyond earning their prescribed rates, or risk of incurring a loss beyond the time they devoted to their work for the respondent, in their engagements with the respondent. The appellants were paid prescribed rates, as detailed above, and did not incur any direct expenses. The appellants were paid their prescribed rates irrespective of any potential cost overruns or revenue shortfalls, and irrespective of the number of attendees at their performances. At this level of analysis, focussing only on the appellants’ engagements with the respondent, the appellants’ non-exposure to profit or loss is indicative of an employment relationship. However, in my view and on the present facts, the indicium of exposure to profit or risk of loss provides greater insight into the totality of the parties’ relationship when considered at a higher level of analysis that focusses on the appellants’ broader businesses as freelance professional actors and not only their particular engagements with the respondent. At that higher level, I find that the appellants took on the prospect of profit and risk of loss in pursuing their acting careers by running their own businesses as freelance actors. I consider this further in the following section where I address the indicium of whether the appellants were running their own businesses.

Running their own businesses

113    As stated at [85] above, leading authorities have identified that the distinction between an employee 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”: Marshall v Whittaker’s Building Supply Company at 217 (Windeyer J). As discussed above, this distinction has been referred to as posing the “ultimate question”: Stevens v Brodribb Sawmilling Company Pty Ltd at 35 (Wilson and Dawson JJ). While I have not adopted the two-stage enquiry referred to in Quest, for the reasons stated at [85] above, I nonetheless consider the indicium of whether the appellants were running their own businesses to be a relevant and valuable means by which to assess the totality of the parties’ relationship in this case.

114    Recent authorities have clarified that for a worker to work in the business of another is not inconsistent with that worker also running a business on his or her own account. In ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; 209 FCR 146, Buchanan J at [40] (Lander J and Robertson J agreeing) undertook a detailed review of the authorities and stated that “working in the business of another is not inconsistent with working a business of one’s own.” In Tattsbet Ltd v Morrow [2015] FCAFC 62; 23 FCR 46, Jessup J (Allsop CJ and White JJ agreeing) endorsed that approach. At [61], Jessup J stated that “if the putative employee’s circumstances exhibit the characteristics of a business, that will undoubtedly be a matter proper to be taken into account”. On the present facts, I consider that the relevant enquiry in considering this indicium is whether the appellants were running their own businesses as professional freelance actors, while noting that they were working in the respondent’s business by performing in the ANZAC Roadshow. At [216], the primary judge referred to the appellants’ work as inherently freelance in nature in support of his Honour’s characterisation of the parties’ relationship.

115    The question whether a person is running, or carrying on, a business, like the question whether a person is an independent contractor or an employee, requires an evaluative assessment of a range of relevant facts. The “word ‘business’ is notorious for taking its colour and its content from its surroundings”: Re Australian Industrial Relations Commission; ex parte Australian Transport Officers Federation [1990] HCA 52; 171 CLR 216 at 226 (Mason CJ, Gaudron and McHugh JJ). The authorities have distilled some principles for guidance, which were referred to in the primary judge’s reasons, for considering whether a person is carrying on a business. The conduct of a commercial business will usually involve the use of both tangible and intangible in the pursuit of profit: Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; 222 CLR 194 at [39] (Gleeson CJ, Hayne, Callinan and Heydon JJ). The common intangible assets of a business include its name, brand, reputation or goodwill, and it is not possible exhaustively to enumerate the facts and circumstances which would support the conclusion that a particular course of activity comprised of a business: On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 336; 214 FCR 82 at [211]-[212] (Bromberg J), citing London Australia Investment Company Ltd v Federal Commissioner of Taxation [1977] HCA 50; 138 CLR 106 at 129 (Jacobs J). The particular indicia that will assist in considering whether a person is conducting a business will vary and be tied to the facts of the particular case. In this case, the primary judge at [183]-[184] gave weight to the fact that the appellants, as actors, had their own goodwill.

116    I agree with the conclusion of the primary judge that the appellants operated as professional freelance actors. The appellants, to varying degrees, were skilled and experienced in their trade of acting, and sought to make their living in that way. They were professionals. The appellants gave evidence that it was difficult to make a living as an actor. They sought out acting opportunities but, in addition and to varying degrees, they also performed work other than as actors to support themselves. For example, Mr Jensen gave evidence that acting was a “tough business” and that he “sought out as many options as possible for performing opportunities.” Mr Jensen also explained that to supplement his acting work, he worked as an employee giving tours of the Old Melbourne Goal. Nonetheless, the appellants were committed to developing their freelance acting careers and they went about doing that in a businesslike manner. Two of the appellants, Mr Palframan and Ms Goodwin, gave evidence that they engaged agents to represent and promote them as freelance actors available to be engaged. In the case of Ms Goodwin, she involved her agent in her dealings with the respondent in relation to her engagement for the performance of the ANZAC Roadshow. Ms Goodwin’s agent negotiated the terms of her contract, which included some different provisions than those of the other appellants, including a term of two years rather than one year. Ms Goodwin’s agent also issued invoices to, and received payment from, the respondent on her behalf, and took a fee from Ms Goodwin’s earnings from the respondent. During the course of argument on the appeals, counsel for the appellants accepted that the involvement of Ms Goodwin’s agent in settling the terms of the contract was consistent with the idea that Ms Goodwin was operating a business. Further, and consistently with the primary judge’s findings, I infer that the appellants sought to generate goodwill in their acting businesses so that they could win future acting engagements. Mr Jensen and Mr Palframan obtained their roles with the respondent in the ANZAC Roadshow as a result of existing goodwill that inhered in their acting businesses. They both gave evidence that they were engaged to play their roles without undertaking an audition because the production manager and director, Mr Montgomery, was familiar with their work. During examination-in-chief, Mr Palframan stated that there were “countless ways” in which he found work as an actor and explained, “this work came to me due to my prior work”, with which Mr Montgomery was familiar. Further, during the period of his engagements with the respondent, Mr Jensen continued to operate as a freelance actor by seeking out other paid acting opportunities. Mr Jensen gave evidence that on one occasion, he notified the respondent that he could not perform one of the scheduled ANZAC Roadshow performances because he was attending a “big audition” for another acting engagement. The actors were able to use their experience performing the ANZAC Roadshow, and any goodwill that it generated for their freelance acting businesses, in seeking out their next acting engagements. That is how their freelance acting businesses operated, moving from one acting engagement to the next.

117    In my view, as freelance actors, the appellants were running their own acting businesses. For that purpose, two of the three appellants engaged agents, and their work for the respondent formed part of those businesses. I find this indicium to be indicative of an independent contracting relationship.

Casual employment indicia

118    As considered in addressing ground 1 above, the appellants submitted that certain indicia that are regularly used by courts in assessing the independent contractor-employee distinction must be given less or no weight in the context of assessing an independent contractor-casual employee distinction. My assessment of the four relevant indicia, below, relies on and applies my reasoning in addressing ground 1, above.

119    First, the fact that the appellants were not contractually obliged to, and did not in fact, exclusively serve the respondent may give slight support to an independent contracting relationship. As explained at [44] above, while I acknowledge that non-exclusive service may be a characteristic of both independent contracting and casual employment, I consider that it may nonetheless inform the evaluation of the independent contractor-employee distinction on the particular facts. In this case, the appellants were not contractually obliged to serve the respondent exclusively, and each of them performed work for other entities during the period of their engagement with the respondent, variously as contractors or employees, and as actors or in other industries. To the extent that the appellants were performing other work as actors, I consider that this supports finding an independent contracting relationship because it supports a finding that the appellants were in the market as freelance actors, including in their engagement with the respondent. Further, as stated above, the appellants were seeking out new acting engagements, as evidenced by Mr Jensen missing a performance of the ANZAC Roadshow to attend a big audition for future work.

120    Second, for the reasons given at [45] above, I consider the fact that the appellants did not receive paid leave entitlements to be neutral in determining the independent contractor-casual employee distinction.

121    Third, for the reasons given at [46] above, I consider that the fact that the respondent did not have a contractual right to terminate the appellants’ engagement on short notice, or for misconduct, to be neutral in determining the independent contractor-casual employee distinction. The respondent was not obliged to offer work to the appellants in the same way as an employer is not obliged to offer work to a casual employee, so the respondent had little need for a reserved right to terminate the appellants.

122    Fourth, I consider that the fact that neither the respondent nor the appellants had an obligation to provide or perform work, respectively, to be neutral in determining the independent contractor-casual employee distinction. The absence of a firm commitment to provide or perform work is the essence of casual employment: WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [153] and [159] (Tracey, Bromberg and Rangiah JJ). Therefore, it cannot be contra-indicative of an employment relationship or, put the other way, indicative of an independent contracting relationship. To the extent that the absence of an obligation on the appellants to perform work for the respondent granted them the flexibility to miss ANZAC Roadshow performances to attend other engagements to promote their freelance acting business, I have considered that above.

The characterisation term and consequential indicia

123    As I mentioned earlier, the parties’ own characterisation of their relationship, as expressed in the terms of their contracts, is not determinative. However, if as a result of applying the multi-factorial approach, the correct characterisation is finely balanced, then the parties’ agreed characterisation of their relationship may, depending on the particular circumstances, tip the scales.

124    The present case is one in which the proper characterisation of the parties’ relationship is open to different views. The indicia point in different directions and there is no manifestly clear conclusion. In those circumstances, I consider the parties’ agreement as to the nature of their relationship to be informative. In the language of Lord Denning MR in Massey v Crown Life Insurance Co extracted at [75] above, in a situation which is in doubt or which is ambiguous, so that it can be brought under one form of relationship or the other, it is open to the parties by agreement to stipulate what the legal situation between them should be. However, such a term would be ineffective for the purposes of a statute such as the Fair Work Act to change the reality, or the truth of the relationship.

125    The appellants each entered into written contracts with the respondent that stated that their relationship was “of principal and independent contractor and not that of employer and employee” (clause 1.5 of the contracts). Further, those contracts provided that the parties would deal with each other as independent contractors and principal, including by the appellants submitting for payment on invoice, the respondent not withholding income tax, and the appellants not receiving leave entitlements. I have considered those matters as a group under the following section relating to consequential indicia. This is not a case in which the characterisation term contained in the parties’ contracts does not reflect the real intention of the parties in entering the engagement: cf. Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [66] (Jessup J). There is no allegation that the appellants subjectively did not understand the distinction between being an independent contractor and an employee. On the contrary, Mr Jensen gave evidence that he had an Australian Business Number prior to his engagement with the respondent, and he had previously been engaged as an actor as both an independent contractor and an employee. Nor was there any allegation that the respondent did not clearly explain the terms of their engagement. Those terms were set out in written contracts.

126    In circumstances where I consider that the correct characterisation of the parties’ relationship is not manifestly clear, and where the parties understood and agreed to a particular characterisation of their relationship, I find the parties’ own characterisation to be instructive. In the circumstances of this case, the parties’ own declaration and agreement as to their relationship is indicative of an independent contracting relationship.

Consequential indicia

127    There are other common indicia, such as whether the worker submits for payment on invoice, whether the principal or employer withholds income tax on payment, and whether the worker receives leave entitlements, which generally reflect the parties’ own characterisation of their relationship. If the parties characterise their relationship as being of independent contractor and principal, then it is likely that the worker will submit for payment on invoice, the principal will not withhold income tax on payment, and the worker will not receive leave entitlements. Those indicia are reflective, or consequential, of the parties’ own characterisation of their relationship and do not have independent force. In ACE Insurance Ltd v Trifunovski [2013] FCA 3; 209 FCR 146 at [37], Buchanan J (with whom Lander J and Robertson J agreed) cautioned against giving much independent weight to consequential indicia –

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 declaration by the parties in their contract (from which they often proceed). They may be taken into account but are not conclusive.

128    In On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 336; 214 FCR 82 at [219], Bromberg J addressed the same issue and cautioned against the circularity of reasoning involved in giving independent weight to such consequential indicia –

Whether or not income tax has been withheld and whether annual, long service or sick leave is afforded are often also used as relevant indicators: Stevens v Brodribb at 37; Yaraka Holdings at [44]-[48]. It is not incorrect to have regard to these factors, but there are differing views as to the inference which should be drawn from such arrangements: Wesfarmers Federation Insurance at [40]-[42]. Reliance on these factors may involve circularity of reasoning particularly where these factors are based upon the self-assessed and objectively incorrect label that the parties have attached to their relations: see Hollis at [37] and Owens and Riley (p 140). Further, it is necessary to appreciate that casual employees are not ordinarily entitled to leave or sick pay: Sgobino at 293 and 308; Yaraka Holdings at [50].

129    In this case, I do not regard the consequential indicia of the appellants submitting for payment on invoice, the respondent making payment to the appellants without deducting income tax, and the appellants not receiving paid leave entitlements (apart from the independent contractor-casual employee issue discussed above) as carrying much weight that is additional to the parties’ own characterisation of the legal nature of their relationship. Rather, those matters emphasise that the parties understood and agreed to their relationship being as independent contractors and principal, and to that limited degree, I find the consequential indicia to be supportive of an independent contracting relationship.

Overall appraisal – appellants working in the respondent’s business

130    The indicia used to assess the whether the appellants were employees under the multi-factorial approach are not to be deployed as a checklist: Lopez v Deputy Commissioner of Taxation [2005] FCAFC 157; 43 FCR 574 at [82] (Ryan, Lander and Crennan JJ). The multi-factorial approach requires the Court to assess the totality of the parties’ relationship. This involves consideration of particular indicia of the parties’ relationship and also an evaluation of the overall appraisal of their relationship. In Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944, in a passage which has been cited many times, Mummery J stated –

The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.

131    In the present case, the appellants have not persuaded me that they were employees of the respondent and therefore that the primary judge’s conclusion was in error. As stated above, the present case is one in which the proper characterisation of the parties’ relationship is open to different views. The indicia point in different directions and there is no manifestly clear conclusion. While there are a number of indicia which point towards an employment characterisation, my overall appraisal of the totality of the parties’ relationship is that the appellants were independent contractors of the respondent, which was a principal. To adopt the language of the majority of the High Court in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [47], “viewed as a practical matter” the appellants were independent contractors “running their own business or enterprise” as professional freelance actors, who had agreed with the respondent that their work in performing the ANZAC Roadshow would be undertaken as independent contractors, and the parties arranged their affairs accordingly.

Conclusion

132    For the above reasons, in considering the question that was before the primary judge for myself, I have reached the same conclusion, namely that at all material times, the appellants and the respondent were in a relationship of independent contractor and principal. There was therefore no error in the primary judge’s conclusion.

133    Therefore, the appeals will be dismissed. Unless any party submits otherwise, in accordance with s 570 of the Fair Work Act, there will be no order as to costs.

Associate:    

Dated:    19 March 2020