Federal Court of Australia

Commissioner of Taxation v Hatfield Plumbing Pty Ltd (Trustee) [2025] FCA 182

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to: “Hatfield Plumbing Pty Ltd as Trustee for the Peter Hatfield Trust”.

2.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Some three years ago, a Mr Hargreaves complained to officers of the Australian Taxation Office that the respondent, Corporate Trustee for the Peter Hatfield Trust, had, over a period of about a decade, not made superannuation contributions on his behalf. The obligation to make such contributions would only have arisen if, in terms of s 12 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (the Act), Mr Hargreaves was, in terms of that section, an employee.

2    Materially, s 12 provides:

Interpretation: employee, employer

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

(a)    expand the meaning of those terms; and

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

(2)    A person who is entitled to payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate is, in relation to those duties, an employee of the body corporate.

(3)    If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.

…

3    Officers of the Australian Taxation Office investigated Mr Hargreaves’ complaint. They sought and obtained from him a completed standard form, “Status of the Worker Questionnaire”. A like questionnaire was directed to the corporate trustee. The upshot was that the present applicant, the Commissioner of Taxation, by his officers, formed the view that Mr Hargreaves was, in terms of s 12 of the Act, an employee.

4    The corporate trustee was therefore assessed to a superannuation guarantee charge which, including interest thereon, was in the amount of $123,521.77. The corporate trustee objected to that assessment, and the Commissioner decided to disallow the objection.

5    In turn, the corporate trustee sought the review of that objection decision by the then Administrative Appeals Tribunal (Tribunal) on 16 December 2022. The Tribunal handed down its decision on 26 September 2024. For reasons given in writing that day, the Tribunal (Senior Member D.K. Grigg) set aside the objection decision and substituted for it a decision that Mr Hargreaves was not an employee of the corporate trustee “under the extended definition contained in section 12(3) of the Act.” The effect of that decision was that the corporate trustee did not have a liability to make superannuation contributions in respect of Mr Hargreaves for the quarterly periods in question (1 January 2010 to 30 September 2020).

6    The Commissioner has now invoked the statutory right of appeal on a question of law to this Court.

7    The questions of law, as stated in the notice of appeal, are these:

1.    Whether the Tribunal erred in law in its interpretation and construction of the expanded definition of ‘employee’ in section 12(3) of the SGAA by applying principles applicable to determining the ordinary, common law meaning of ‘employee’ and by having regarding to irrelevant considerations; and

2.    Whether the Tribunal erred in law in its application of the statutory test required by section 12(3) of the SGAA in deciding that, on the facts as found by the Tribunal and the evidence, the Worker was not an ‘employee’ of the Respondent within the meaning of section 12(3) of the SGAA.

8    The grounds of appeal as stated in the notice are prolix, but the essence thereof is whether the Tribunal, in construing and applying s 12(3) of the Act, impermissibly conflated the test at common law for determining whether an individual was or was not an employee with that stated in s 12(3).

9    More particularly, it was put that the Tribunal had, in construing and applying s 12(3), impermissibly applied, as part of that determination, considerations of control in respect of Mr Hargreaves. Yet further, it was put that it was not open to the Tribunal on the evidence to have concluded that the corporate trustee’s engagement of Mr Hargreaves was one for the production of results in respect of particular plumbing jobs.

10    A feature of the Tribunal’s reasons is the Tribunal’s conclusion that Mr Hargreaves gave inaccurate answers in the worker questionnaire (see [52] through to and including [55]).

11    The Tribunal recited, at [91] through to [102], particular agreed facts:

Agreed Facts

91.    The following facts are not disputed.

92.    During the Relevant Periods the Applicant, as corporate trustee for the Peter Hatfield Trust carried on a plumbing business in Queensland.

93.    Mr Peter Hatfield is the sole director of the Applicant and its principal employee.

94.     Mr Hatfield was a maintenance plumber.

95.    Although this matter is concerned with the Relevant Periods only, the parties acknowledge that:

(a)    during the mid-1990s Mr Hargreaves was an “employee” of the Applicant;

(b)    operated and traded under his own business before and during the Relevant Periods.

96.    Mr Hargreaves was engaged as a QBCC Licenced Trade Contractor for Plumber & Drainage, Gasfitter, Fire Protection (install and maintain) and Backflow. Mr Hargreaves could not have performed the plumbing services without appropriate qualifications and a QBCC licence.

97.     The Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”) requires plumbing work to be carried out by Licenced Plumbers only.

98.    Mr Hargreaves commenced working for the Applicant again in 2010 as a maintenance plumber under a verbal agreement.

99.     There was no written contract.

100.     Mr Hargreaves:

(a)    worked for the Applicant in his own name under an ABN;

(b)    the ABN used was the same ABN used by Mr Hargreaves’ plumbing services business;

(c)    claimed GST from the Applicant;

(d)    was engaged by the Applicant under his QBCC Licence to undertake plumbing drainage and gas fitting work on a “do and charge basis”.

(e)    was engaged when the Applicant was unable to do the work;

(f)    would be offered a job (f) which Mr Hargreaves could either accept or reject;

(g)    was not required to and did not quote on jobs;

(h)    charged the Applicant for the time spent on each job at a fixed hourly rate;

(i)    was also paid if he attended a home to complete a job and the owner was not home;

(j)    usually sent the Applicant invoices on a weekly basis (with his timesheets and job sheets attached)

(k)    charged the Applicant if he had to purchase any necessary materials to complete a job;

(1)    used his own tools and work vehicle to undertake the work; and

(m)    claimed any expenses against his business earnings under his ABN.

101.    The jobs accepted by Mr Hargreaves were mainly small jobs lasting from one hour to a few days to complete.

102.    The Applicant paid the invoices by deposit into Mr Hargreaves’ bank account.

[footnote references omitted – emphasis in original]

12    The Tribunal also confronted, at [103] to [109], particular disputed facts:

103.    The Full Court in JMC said (at [45]) the fact that a person is paid by the hour may not be a strong indicator either way in the circumstances of the case. That is, whether paid by the hour or paid for a result, the mode of payment is not “inherently incompatible with either an employment relationship, or an independent contractor relationship, and minds can reasonably differ as to the relationship with which it better aligns”.

104.    The parties do not agree who set the hourly rate of pay. Mr Hargreaves has given two different answers to this question. One answer was the Applicant set the rate; the other was that the rate was negotiated. The Applicant states that Mr Hargreaves set the rate.

105.    Initially, Mr Hargreaves sought to dispute whether the rate changed once or several times over the Relevant Periods. At the hearing he accepted it had varied and that it was based on discussions he had with Mr Hatfield.

106.    Invoices before the Tribunal indicate the rate payable did increase several times during the Relevant Periods and those invoices were paid.

107.    The hourly rates were significantly above award rates and were clearly agreed to by both parties. Mr Hatfield explained why the Applicant paid higher than award rates:

Why is that?—Well, it was to compensate for his superannuation.

Just explain what you mean by that?—Well, in the - in the plumbing industry, you subcontract plumbers, and then why they’re paid over the rate is to - what they do with their own money, because that’s what ---

I see. Because you’re not providing that to them?---That’s it. That’s it.

So is that pretty common, is it, in the industry ---?---It would be. Yes.

--- that, if you’re subcontracting, you pay them higher than you would at employee

rate?—That’s right.

108.    The hourly rate of pay changed as reflected in the invoices. The increased rates were accepted by the Applicant as evidenced by the payment of Mr Hargreaves’ invoices.

109.    The Tribunal considers that the most likely scenario (remembering that the contract was entered into some 14 years ago and recollections may not be entirely accurate) is that Mr Hargreaves suggested an hourly price and the Applicant accepted it.

[footnote references omitted – emphasis in original]

13    Ultimately, at [110] to [111], the Tribunal concluded:

110.    Mr Hargreaves was not simply paid by the hour for his time. He was paid for each job completed. The hourly rate was simply an effective measure by which to charge for each job. All invoices set out the hours spent on each job, and he was paid for those jobs accordingly.

111.    The parties agreed Mr Hargreaves was engaged on a “do and charge” basis. This is a common practice in the trade industry. That is, Mr Hargreaves was paid for time spent on each job, rather than on a fixed fee per job. No quotes were given. This structure is common in situations where the exact cost is unknown (as was explained by Mr Hatfield). It is implied that the amount charged will be reasonable, The parties trusted each other having known each other for some time.

[footnote reference omitted – emphasis in original]

14    The Tribunal observed at [112] that Mr Hargreaves’ invoices “do not show any claim for tools as an expense, but some invoices provide for plant used in jobs.”

15    The Tribunal then directed attention to these subjects: Supervision and Control; Right to Delegate; Engaged to Produce a Result. The Tribunal drew the considerations mentioned together at [136] to [148]:

136.    Although some weight may be given to the intention of the parties, how the parties decide to deal with one another is not decisive. One cannot contract out of statutory obligations.

137.    The degree of control that may be exercised over a worker is a “prominent factor” in determining the nature of the relationship. As a skilled, licensed plumber Mr Hargreaves was expected to perform the task at his discretion without supervision.

138.    Mr Hargreaves advertised his services outside of his relationship with the Applicant. The evidence indicates Mr Hargreaves was operating his own business.

139.    There is evidence Mr Hargreaves performed work for others independently of the Applicant.

140.     Mr Hargreaves could refuse to do work. The rate of pay was negotiated and nearly double award rates.

141.    Mr Hargreaves lodged BAS for his business and claimed expenses he incurred while performing jobs for the Applicant through his business.

142.    As here, the contract in Efex was wholly oral with limited agreed details. The Full Court said in such circumstances that inferences of parties’ legal rights must instead be drawn from the evidence of the parties’ conduct.

143.    The Court noted that two factors are often determinative of the characterisation of the relationship ([13]):

(a)    the extent to which the putative employer has the right to control how, when and where the putative employee performs the work; and

(b)    the extent to which the putative employee can be seen to be working in their own business as distinct from the putative employer’s business.

144.    As in Efex, the following factors weigh in favour of a finding that Mr Hargreaves is an independent contractor:-

(a)    Mr Hargreaves:

(i)    had the “freedom’’ to refuse a job;

(ii)    had the freedom as to how he completed an accepted job;

(iii)    did not have to devote his entire time to the Applicant’s business;

(iv)    provided his own vehicle, telephone and essential tools; and

(b)    there were no contractual provisions concerning leave, termination or prohibiting delegation.

145.    In addition, it was agreed by the parties (either by verbal agreement or implied) that Mr Hargreaves would:

(a)    set his hourly rate;

(b)    hold his own insurance;

(c)    work on a “do and charge" basis;

(d)    invoice the Applicant at the completion of each job for his labour and materials used plus GST;

(e)    could decide whether to accept a job if he was requested to do so given his other commitments (including attending to his own clients, working as a stuntman, and travelling interstate);

(f)    would provide his own vehicle, tools, equipment and pay his own operating costs under an ABN and business entity;

(g)    was unsupervised on a job; and

(h)    would choose how to perform the work, what materials, and/or equipment to use and the hours he took to do so.

146.    It was understood Mr Hargreaves had to complete each job he was engaged to perform. That is, Mr Hargreaves was engaged to obtain a result.

147.    The fact that Mr Hargreaves may have presented himself at a job as a representative of the Applicant is not incompatible with Mr Hargreaves being an independent contractor.

148.    The Applicant carried the onus of establishing that the relationship with Mr Hargreaves did not fall within s 12(3) of the SGAA. The Tribunal finds the Applicant has discharged its onus of proving that its “contracts” with Mr Hargreaves were not wholly or principally for the labour of Mr Hargreaves. The contracts were for the provision of plumbing services to complete specified plumbing jobs, not principally for the labour of Mr Hargreaves.

[footnote references omitted – emphasis in original]

16    Having so done, the Tribunal concluded that the corporate trustee had discharged its onus of proving that it was not the employer of Mr Hargreaves within the meaning of s 12(3) of the Act.

17    It will be readily apparent from the Tribunal’s reference to “Supervision and Control” that the Tribunal considered it was apt to look to such a consideration in determining whether or not s 12(3) was applicable. This, submitted the Commissioner, was something one could not do. It was submitted that this was indicative of the conflation of the statutory provision with the ordinary meaning at common law of employee.

18    An immediate difficulty about that submission is that if one looks, as the Tribunal did, at the High Court’s judgment in Queensland Stations Pty Ltd v Federal Commissioner of Taxation (Cth) (1945) 70 CLR 539 (Queensland Stations), one finds this statement at p 545, per Latham CJ as his Honour then was:

An independent contractor undertakes to produce a given result, but is not, in the actual execution of the work, under the order or control of the person for whom he does it.

19    In citing that authority, the Tribunal observed, as is apparent from [114] already quoted, that the determination in that case involved a consideration of the difference between a contract “for” services and a contract “of” services.

20    In turn, if one goes to the most recent cases decided at intermediate appellate level in respect of s 12(3), one finds these statements in respect of the meaning of s 12(3). In Jamsek v ZG Operations Australia Pty Ltd (No 3) (2023) 296 FCR 336 (Jamsek (No 3)), at [49] through to and including [60], the following:

The “for” element not satisfied

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

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

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

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

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

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

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

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

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

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

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

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

21    One factor considered pertinent in determining whether or not a contract was wholly or principally “for” the labour of a person was, as [52] of the Full Court’s judgment attests, whether the contract was one undertaken to produce a given result. Queensland Stations was not, of course, a case in any way concerned with s 12(3) of the Act, but the Tribunal’s citation of that case is nothing more than an unremarkable recognition of the position that a contract to produce a given result is not a contract required wholly or principally “for” a person’s labour.

22    That example nicely highlights the correctness of the submission made on behalf of the respondent corporate trustee that there is no bright line to be drawn between factors which are pertinent to the determination at common law as to whether or not a given person is or is not an employee, and whether or not in terms of s 12(3) of the Act, that person is or is not an employee. The word “for” in the subsection connotes a purposive test, as Jamsek (No 3) highlights in the passage quoted.

23    In determining factors to which one might look in determining whether or not the person was an employee the characterisation of a contract as one for the provision of an end result, and not for labour, can be highly relevant in relation both to the common law test, as well as the test in s 12(3) of the Act. A very long line of cases, indeed, bear this out. They are cited by the Full Court, at [36], of Jamsek (No 3):

36    Section 12(3) is not satisfied where a contract is properly characterised as being for the provision of a result and not for labour: Neale at 425; World Book (Australia) Pty Ltd v Federal Commissioner of Taxation (1992) 27 NSWLR 377 at 382, 385-386; JMC Pty Ltd v Federal Commissioner of Taxation (2022) 114 ATR 795 at [31], [195]; Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537 at 542; 96 ATC 4898 at 4903, special leave refused: Federal Commissioner of Taxation v Vabu Pty Ltd (1997) 35 ATR 340; Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Hollis v Vabu) at [68], although no s 12(3) issue arose there, see Hollis v Vabu at [20].

24    Another case recently decided at intermediate appellate level is JMC Pty Ltd v Federal Commissioner of Taxation (2023) 297 FCR 600 (JMC). It is helpful to consider that case because of the feature of the present case that Mr Hargreaves was paid on invoices which charged at an hourly rate.

25    It might be thought, and it seems from the Commissioner’s submissions that it was thought within the Australian Taxation Office, that that feature, having regard to Jamsek (No 3), at [56], told against the contract here being other than one wholly or principally for Mr Hargreaves’ labour. Yet, in JMC, under the heading, “Mode and Manner of Remuneration”, the Full Court stated, at [44] and [45]:

44    The primary judge found that Mr Harrison was contracted to provide teaching services to JMC for an hourly rate, not to produce a result or product, which militated towards characterising the relationship as one of employer and employee.

45    While JMC challenges this conclusion and the Commissioner defends it, taken alone it is not a strong indicator either way in the circumstances of this case, even accepting that the payment as a whole was not payment for a result. The mode of payment was not inherently incompatible with either an employment relationship or an independent contractor relationship, and minds can reasonably differ as to the relationship with which it better aligns.

26    Later in JMC, at [104], the Full Court returned, by way of confirmation of views earlier expressed in the passage cited, to the subject of remuneration, stating:

As mentioned earlier, the mode and manner of Mr Harrison’s remuneration does not point strongly either way, although we would incline to it favouring an independent contractor relationship.

27    The reference in Jamsek (No 3) to provision for payment by time spent being inconsistent with contracts being for a result, needs to be approached, with respect, with caution, and read in the context of the overall facts of that case. In truth, the position is as stated by the Full Court in the passages cited in JMC. The manner of remuneration is but part of an overall factual matrix. One needs to be careful in not elevating factors which, in an overall factual context, were influential in the reaching of a conclusion in a particular case as to what a contract was “for” into statutory prescriptions.

28    In deciding this case, both within the Australian Taxation Office and on external merits review, the Commissioner and his officers, and in succession the Tribunal, were confronted with a not unusual circumstance in small business. That is, the relationship between the corporate trustee and Mr Hargreaves, notwithstanding its lengthy duration, was formed without any formal written contractual agreement. Unremarkably, though, the relationship was contractual, another necessary element in relation to s 12(3) of the Act’s application.

29    The Tribunal approached the subject of the determination of the relationship between Mr Hargreaves and the corporate trustee in an orthodox way by looking to conduct of the parties. As to this, the Tribunal cited, at [124], the following passage from the judgment of Kennett J in Chiodo v Silk Contract Logistics [2023] FCA 1047:

8    … where the contract is not written and its terms are to be inferred in whole or in part from the parties’ conduct. The terms of an oral contract may not be limited to express terms; terms may be inferred from the circumstances, including a course of dealing between the parties, or implied where necessary for business efficacy: Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678 at [21]–[22] (Kiefel CJ and Gageler J).

9    Where there is no written contract and no evidence of a particular conversation in which a contract was formed orally, evidence of the parties’ conduct must necessarily be considered in order to draw inferences as to whether the meeting of minds necessary to create a contract has occurred and what obligations they have thereby undertaken (see Personnel Contracting at [177] (Gordon J, Steward J agreeing)).

30    The Tribunal also made reference, at [125], to the statement by the Full Court in EFEX Group Pty Ltd v Bennett [2024] FCAFC 35, at [9], to the effect that inferences as to the terms of an oral contract may come:

... from the circumstances including in whole or in part from the parties’ conduct or a course of dealing between the or implied where necessary for business efficacy. (Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115, at [21]-[22], per Kiefel CJ and Gageler J)

31    I adopted a similar approach to resolving the terms of a relationship between the parties, and whether or not it was one of employment, in Hallam v Tancred [2024] FCA 837.

32    There was no error, given the Tribunal’s reference to these cases, in the way in which the Tribunal went about finding the existence of a contract between Mr Hargreaves and the corporate trustee and its terms. It was open to the Tribunal on the evidence to conclude that the contract was one for the production of end results.

33    It is not without irony, but certainly not determinative, that in the course of considering the subject of “Engaged to Produce a Result” the Tribunal cited, at [129], Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd [1924] 1 KB 762, in which, in that case, amongst others, the court referred to Blake v Woolf (1898) 2 QB 426, in which it was held that a plumber engaged by a property owner to repair a cistern was an independent contractor. The point of that is not in any way that it is determinative of the present case. It just exemplifies a case where a person engaged to produce a result was regarded as an independent contractor. It might also be regarded as a case which exemplified a contract which was not wholly or principally for that person’s labour.

34    There are other features of the present case which make the outcome in the Tribunal, as the Tribunal appreciated, unremarkable. Mr Hargreaves supplied, maintained and insured his own vehicle. He supplied tools of trade, although, as the Tribunal found, not for all jobs. There were some where additional plant was needed and obtained from the disposal of the corporate trustee.

35    The result, then, is one where the Tribunal was well aware of, and sought to decide the case by reference to the observations made by the Full Court in Jamsek (No 3). It was not obliged, having found that there was payment by an hourly rate, to conclude that the contract was one wholly or principally for Mr Hargreaves’ labour. As JMC highlights, that particular feature can, in particular circumstances, tell one way, but tell in another way in other circumstances.

36    So much really was accepted in the course of submissions by senior counsel for the Commissioner in acknowledging that a solicitor who was, for example, retained to advise in respect of the meaning and effect of s 12(3) of the Act, even if that solicitor were, as not uncommon, for better or for worse in the legal profession, rewarded by time costing, a person who was engaged to produce an end result, rather than a person engaged wholly or principally for their labour.

37    A salutary reminder was offered by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 of a need not to read Tribunal reasons narrowly and with an eye for error.

38    At first blush, it does seem a little odd that the Tribunal made reference to “control” in determining the meaning, effect and application of s 12(3), but the more one looks into authorities concerning that provision, the more one comes to appreciate the existence of an overlap in factors which can be relevant.

39    This Tribunal was well aware that it was the statutory provision, s 12(3), which was controversial. It looked to the correct authorities and applied a correct understanding of them. It likewise looked to the correct authorities in determining whether there was a contract, and if so, its terms. The result was particular findings of fact which exhibit no legal error and an unremarkable application of settled law to those facts.

40    Mr Hargreaves was engaged to produce a result, time and time again. That is what the Tribunal found. Had the Tribunal, having made that finding, concluded other than s 12(3) had no application, it would have committed an error of law. But it did not do that. For these reasons, the appeal is dismissed.

Associate:    

Dated:    12 March 2025