Ayse Balcilar v Bay City Cabs [1995] IRCA 257

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INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 1605 of 1994

B E T W E E N :

AYSE BALCILAR

Applicant

AND

BAY CITY CABS

Respondent

Before: Judicial Registrar Fleming

Place: Melbourne

Date: 22 May 1995

REASONS FOR JUDGMENT

(Ex Tempore - Revised from Transcript)

The applicant sought to adjourn today’s proceeding on the basis of an appeal to the Legal Aid Commission in relation to funding of this action and also in order to organise witnesses. No documentation was presented to the Court in support of the adjournment application. Mr Burnett for the respondent opposed the application.

The application was filed on 14 September 1994. At the initial Directions Hearing on 14 October 1994, the applicant was represented by solicitors, Slater & Gordon. Two conciliation conferences were scheduled, one on 6 November 1994, and one on 28 March 1995. Both conferences were cancelled by the applicant. The proceeding was referred to the Court for a further Directions Hearing on 2 May 1995. Judicial Registrar Ryan ordered the trial of this proceeding be fixed for 22 May 1995.

The applicant gave evidence that she had received legal advice from solicitors, Slater & Gordon, and Maurice Blackburn & Co. and a solicitor who she did not name but who gave her telephone advice. The applicant also gave evidence that she had obtained advice from Mr Conway of the TWU and from Ms Flint at Job Watch.

I do not propose to grant the adjournment application. This Court is not convinced that the applicant would be in any better position to proceed on a later occasion and, furthermore, no material has been provided to the Court to support the applicant’s submission that there is currently an appeal to the Legal Aid Commission in relation to funding. However, even if such documentary evidence was provided, this Court would not grant an adjournment. Any further delay would be contrary to the spirit of the Act.

The applicant gave sworn evidence that she signed the Driver Leasing Agreement on 9 May 1994 (Exhibit R1). This document refers to the applicant as a lessee and to the respondent as a lessor.

The applicant gave sworn evidence that her terms and conditions of employment did not include holiday pay, sick pay or superannuation and that she was responsible for her own taxation.

The applicant commenced with the respondent on 13 May 1994 and ceased with the respondent on 30 August 1994.

The applicant leased a vehicle from the respondent and the applicant was entitled to use that vehicle as desired. At the end of the period of driving, the applicant would receive a gross taking. She would pay 50% of that taking in rent to the lessor. The arrangement was that, if she did not work, she would not get paid.

In the applicant’s affidavit affirmed on 14 September 1994, the applicant has described herself as a sub-contractor.

I accept the submissions of Mr Burnett that the applicant is not an employee under Division 3 of the Industrial Relations Act and, accordingly, I dismiss her application.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the application be dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.

Associate:

Dated:

Applicant in person

Solicitors for the Respondent: Mr Eric Faulkner

Counsel for the Respondent: Mr D Burnett

Date of hearing: 22 May 1995

Date of judgment: 22 May 1995

C A T C H W O R D S

INDUSTRIAL LAW - JURISDICTION Lessor employee/employer or lessor/lessee

Industrial Relations Act 1988 ss.170

Dillon v Gange 1941 64 CLR 253

Stevens v Broderick 160 CLR 16

AYSE BALCILAR -v- BAY CITY CABS

No. VI 1605 of 1994