BSA Ltd v Victorian WorkCover Authority
[2018] VSC 46
•13 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT & INDUSTRIAL LIST
S CI 2015 04703
| BSA LIMITED (ACN 088 412 748) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY (and others according to the schedule) | Defendants |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 and 7 December 2017 |
DATE OF JUDGMENT: | 13 February 2018 |
CASE MAY BE CITED AS: | BSA Ltd v Victorian Workcover Authority & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 46 |
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WORKCOVER – Deemed employer – Deemed worker – Third defendant not carrying on an independent trade or business in the provision of services to the plaintiff – Plaintiff deemed to be the employer of the second defendant – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 4(3), sch 1 cl 9.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P H Solomon QC with Ms C Harris SC | Aitken Partners |
| For the First Defendant | Mr M F Fleming QC with Ms A Robertson | Maddocks |
| For the Second Defendant | Mr A Klotz | Lardners Solicitors |
| For the Third Defendant | No Appearance |
HIS HONOUR:
Introduction
On 22 December 2014 Mr Yoresh was injured whilst performing work for Cloudless Vision Pty Ltd (‘CV’) in respect of a contract entered into between CV and BSA Limited (‘BSA’) on 12 June 2012 (‘the 2012 contract’). CV had contracted with BSA to install and upgrade satellite television communication equipment for Foxtel’s end-users.
In December 2014 CV was a registered employer under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’). It had been issued a certificate of insurance by Allianz Australia Workers Compensation (Vic) Ltd (‘Allianz’) for the period 1 July 2014 to 30 June 2015.
As at 22 December 2014 Mr Yoresh was a director and the sole employee of CV. After his injury Mr Yoresh completed and lodged a worker’s injury claim with Allianz, against the policy of CV. By letter dated 21 January 2015, that claim was rejected by Allianz as the agent of the first defendant (‘VWA’).
Mr Yoresh subsequently lodged a further claim with Allianz against the workcover policy of BSA. By letter dated 11 February 2015, Allianz on behalf of the VWA notified Mr Yoresh that it had accepted this claim. It did so on the basis that Mr Yoresh was deemed to be a worker of BSA on 22 December 2014.
On 6 March 2015, BSA requested reasons for this determination, which were provided on 2 April 2015. BSA subsequently objected pursuant to s 79 of the Act to the acceptance of the claim against it.
On 13 July 2015 VWA made a written determination, as provided for by s 84 of the Act, that Mr Yoresh was a ‘deemed worker’ of BSA and BSA was the correct employer of Mr Yoresh. VWA determined that sch 1, cls 9(1) and (5) of the Act, dealing with the circumstances in which an individual is deemed to be a worker and the principal is deemed to be the individual’s employer, applied. VWA determined that cl 9(2), which provides that the deeming provisions of cl 9(1) do not apply if the contractor is carrying on an independent trade or business, was not applicable.
By a further amended originating motion dated 11 August 2017 BSA appeals against the determination of VWA. It seeks an order that the decision of the VWA that Mr Yoresh is a deemed worker of BSA and that BSA was the correct employer of Mr Yoresh, be set aside.
The primary issue for determination in the current proceeding is whether, in providing services to BSA, CV was carrying on an independent trade or business within the meaning of cl 9(2) of sch 1 of the Act. BSA accepts that if CV was not carrying on an independent trade or business the criteria prescribed by cl 9(1) were otherwise satisfied and its appeal must be dismissed. I have concluded that CV was not carrying on an independent trade or business within the meaning of cl 9(2). BSA’s appeal must be dismissed.
Background
The background to the current proceeding is largely uncontroversial. A significant volume of affidavit material was filed in advance of the hearing and was tendered without any cross-examination. Mr Yoresh was the only witness who gave viva voce evidence.
CV was incorporated in 2004. Mr Yoresh and his wife conducted a business between 2004 and 2007 through the vehicle of CV, selling cosmetics and toys from short term leased premises in shopping centres. In 2007 Mr Yoresh became aware via a friend that BSA was looking to engage contractors to undertake satellite installation services on behalf of Foxtel. He attended a briefing session and then enrolled in a two day cabling course at Swinburne University of Technology. Thereafter he was required to undertake four weeks of on the job training with an existing BSA contractor.
BSA required all of its contractors to be incorporated.[1] Between 2007 and 2011 Mr Yoresh as an employee of CV, worked solely for BSA. CV did not provide services to any other company. In 2011 Mr Yoresh travelled to Israel and remained there for approximately 12 months. Upon his return to Australia in 2012 he approached BSA about resuming satellite installation work. On 12 June 2012 CV entered into a cable works and satellite works contractor services agreement with BSA.
[1]Transcript of Proceedings, BSA Ltd v Victorian Workcover Authority & Ors (Supreme Court of Victoria, S CI 2015 04703, McDonald J, 6 November 2017) T73 LL16–18, T74 LL15–17.
The 2012 contract operated until replaced by a new agreement executed on 18 May 2015. That contract operated until October 2016 at which point CV ceased providing services to BSA. This followed the loss of BSA’s contract with Foxtel.
The 2012 contract was operative at the time of Mr Yoresh’s injury on 22 December 2014. There was no negotiation between Mr Yoresh and BSA regarding the terms of the 2012 contract. It was presented to him by BSA as ‘take it or leave it’.[2]
[2]Ibid T75 LL7–12.
Throughout the period the 2012 contract was operative CV worked exclusively for BSA undertaking Foxtel installation. Each evening at 6.00 pm Mr Yoresh would log onto the BSA website and receive his allocated work for the following day.[3]
[3]Ibid T79 LL15–19.
CV was required to provide BSA with details of its availability to undertake work three months in advance of doing so. Mr Yoresh gave evidence:
When I go in to the web page, to the site, to get my jobs, for example, it would pop up three months in advance and you could not proceed until you would fill that whole month. So it wouldn’t be for half of December. I would have to give all of December.[4]
He was also required to be available to undertake weekend work once per fortnight.
[4]Ibid T78 LL9–14.
There was never an occasion when Mr Yoresh logged onto the BSA site and did not have work allocated for the following day.[5] The volume of work fluctuated but on average it was seven and a half to eight hours per day.[6] On average he was allocated five to six jobs per day.[7] The ‘expectation’ under the 2012 contract was that Mr Yoresh, as the only employee of CV, would be available to provide services over a ten day fortnight, including every second weekend.[8]
[5]Ibid T80 LL28–30.
[6]Ibid T81 LL10–12.
[7]Ibid T80 LL8–11, T81 LL7–8.
[8]Ibid T77 LL3–9.
There was some flexibility regarding the allocation of work, such as if a family member fell ill and he was required to stay at home.[9] However, it was ‘not really’ an option to refuse to do work allocated. Mr Yoresh could contact one of his state managers or the senior quality assurance supervisor and could ask for more or less work.[10] Also, when entering his availability for work into BSA’s system he was able to block out time for holidays. There was no direction from BSA as to the amount of holidays he could or could not take.[11]
[9]Ibid T67 LL28–31.
[10]Ibid T83 LL21–24.
[11]Ibid T78 LL15–23.
CV was required to provide its own means of transport. The vehicle Mr Yoresh used had no branding on it.[12] He wore a Foxtel t-shirt which had a BSA badge on it.[13] Each job allocated had a discrete code. Payment for these jobs was fixed by BSA. There was no negotiation. It was ‘take it or leave it’.[14] The only occasion when payment was not fixed was for non-standard work which had not been allocated a code. In such circumstances Mr Yoresh would provide BSA with a quote based on an hourly rate which BSA would pass on to the customer. He would undertake 15 to 20 non-standard jobs per year.[15]
[12]Ibid T61 L7.
[13]Ibid T61 LL10–14.
[14]Ibid T67 LL10–14.
[15]Ibid T64 L28 – T65 L16.
CV did not render accounts to BSA for the services which it provided. Rather, invoices were automatically generated by BSA’s computer system once Mr Yoresh closed off a job by entering the job code via BSA’s website.[16] CV had no financial dealings with Foxtel’s customers.[17] CV would be paid every 14 days by BSA.[18] BSA would deduct from the fortnightly payment the cost of items of stock which CV had acquired from BSA in order to undertake satellite installation work. These items included satellite dishes, cables, cleats, connectors and dish mounts.[19] In a fortnightly period CV could purchase $1,000 to $4,000 of stock from BSA which CV would then claim as a business expense for taxation purposes.[20]
[16]Ibid T89 LL1–4.
[17]Ibid T90 LL3–4.
[18]Ibid T90 LL15–16.
[19]Ibid T63 L30 – T64 L1.
[20]Ibid T64 LL10–20.
When arriving at the premises of a Foxtel customer Mr Yoresh always introduced himself as being from Foxtel. He never made any mention of CV.[21]
[21]Ibid T84 LL17–23.
A BSA quality assurance employee would check that the work which Mr Yoresh undertook had been done properly and that he had entered the correct payment code into BSA’s system.[22] There were ‘plenty of times’ when BSA personnel would arrive at a Foxtel customer’s home whilst Mr Yoresh was undertaking installation work. This happened at least once a month.[23]
[22]Ibid T89 LL14–17.
[23]Ibid T103 LL18–22.
Mr Yoresh gave evidence that, as regards the market for satellite installations services, ‘Foxtel is it’.[24] During the period CV provided services to BSA there were five companies which had contracted with Foxtel to provide satellite installation services: BSA, ISGM Pty Ltd, Downer EDI, Visionstream and Servicestream.[25] Each of these companies provided services to Foxtel via incorporated contractors and all paid ‘pretty much the same’ as BSA.[26] In addition to satellite installation services Mr Yoresh was qualified to undertake cabling services. The potential market for these services was comprised of Telstra, NBN and Optus.[27]
[24]Ibid T104 LL5–6.
[25]Ibid T136 LL11–19.
[26]Ibid T137 LL13–25.
[27]Ibid T81 L29 – T82 L5.
Mr Yoresh never undertook cabling work for anybody other than BSA because there was not enough time and he could not plan ahead; i.e. because he was already committed three months in advance by reason of the scheduling arrangements in place with BSA.[28] Mr Yoresh never advertised CV as a provider of satellite installation services.[29]
[28]Ibid T81 LL17–19.
[29]Ibid T69 L22–23.
Legislative framework
Section 4(3) of the Act states:
Part 1 of Schedule 1 provides that, for the purposes of this Act, certain persons are deemed to be workers or employers.
Clause 9 of sch 1 relevantly states:
9 Contractors
(1) This clause applies if—
(a)an entity (the principal), in the course of, and for the purposes of, a trade or business carried on by the entity, enters into a contractual arrangement with another entity (the contractor) for the provision by the contractor of services (not being transport services within the meaning of clause 8) to the principal for reward in respect of a relevant period; and
(b)the provision of the services by the contractor under the contractual arrangement is not ancillary to the provision of materials or equipment by the contractor to the principal under the contractual arrangement; and
(c)at least 80 per cent of those services are, or are to be, pursuant to the contractual arrangement, provided by the same individual (the individual) being—
(i) the contractor; or
(ii)if the contractor is a partnership, an individual member of the partnership; or
(iii)if the contractor is a body corporate—a member, director, shareholder or employee of the body corporate; or
(iv)if the contractor is the trustee of a trust—a person who may benefit under that trust or is an employee of the trustee; and
(d)the gross income of the contractor that is, or is to be, derived from the provision of the services pursuant to the contractual arrangement is, or is to be, at least 80 per cent of the total gross income of the contractor earned from services of the same class provided by or on behalf of the contractor in the relevant period.
(2)This clause does not apply in respect of a contractual arrangement if the Authority determines that, in providing services to the principal, the contractor is carrying on an independent trade or business.
(3)The Authority may make guidelines as to the circumstances in which it may determine that a contractor, in providing services to a principal, is carrying on an independent trade or business.
(4)The Authority must ensure that guidelines made under subclause (3) are published and are generally available.
(5) If subclause (1) applies—
(a)the individual is deemed to be a worker in respect of the relevant period; and
(b)the principal is deemed to be the employer of the individual in respect of the relevant period; and
(c)the total amount paid or payable by the principal to the contractor under the contractual arrangement, less—
(i) the applicable prescribed
percentage (if any); or
(ii)if there is no applicable prescribed percentage, the part of that total amount not attributable to the provision of labour—
is deemed to be remuneration.
(6) In this clause—
principal includes a group, or one or more members of a group, within the meaning of section 431;
relevant period, in relation to services provided under a contractual arrangement referred to in subclause (1), means—
(a)the financial year in which those services are, or are to be, provided; or
(b)if those services are, or are to be, provided in 2 consecutive financial years—
(i)the 12 month period beginning on the date on which those services are first provided pursuant to the contractual arrangement; or
(ii)the 12 month period ending on the date on which those services cease, or are to cease, to be provided;
services includes results (whether goods or services) of work performed.
What was the ‘relevant period’ for the independent trade or business exception in cl 9(2)?
There were a series of contracts entered into between BSA and CV from April 2007 until the 2012 contract which was in force at the time of Mr Yoresh’s injury. A further contract was executed on 18 May 2015 and operated until October 2016 when CV ceased providing services to BSA. Each contract constituted a different ‘contractual arrangement’ within the meaning of cls 9(1), (2), (5) and (6).
Mr Solomon QC, who appeared with Ms Harris SC for BSA, submitted that the point in time for considering the application of cl 9, including the definition of ‘relevant period’ in cl 9(6), is the date of Mr Yoresh’s injury, or possibly, his claim for compensation.[30] BSA submits that the relevant period in relation to the services provided under the 2012 contract is that prescribed by cl 9(6)(a), namely, the financial year in which those services were to be provided: 1 July 2014 to 30 June 2015. BSA submits that for the purposes of the exclusion in cl 9(2) it is necessary to consider whether CV was carrying on an independent trade or business during the period 1 July 2014 to 30 June 2015.
[30]Plaintiff’s ‘Outline of Submissions’, dated 15 September 2017 [15].
VWA accepts that in considering the definition of relevant period in cl 9(6), the starting point is the position as at the date of injury on 22 December 2014. However, Mr Fleming QC, who appeared with Ms Robertson for VWA, submitted that as CV provided services to BSA under the 2012 contract in two consecutive financial years, the definition of relevant period is governed by cl 9(6)(b). Mr Fleming submitted that the relevant period is 19 May 2014 to 18 May 2015, being the 12 month period ending on the date on which services ceased to be provided under the 2012 contract.
There is not a great deal of temporal difference between the respective positions of the two parties. BSA submits the relevant period is the 12 month period concluding 30 June 2015. VWA submits that the relevant period is the 12 month period ceasing 18 May 2015. The difference is approximately 6 weeks.
Whether the relevant period concludes on 18 May 2015 or 30 June 2015 does not alter my conclusion that CV was not carrying on an independent business when providing services to BSA under the 2012 contract. However, I consider the better view is that the relevant period is the financial year 1 July 2014 to 30 June 2015. I accept Mr Solomon’s submission that the definition of relevant period in cl 9(6)(b) is not engaged in the present case because under the 2012 contract services were to be provided in more than two consecutive financial years. It would have been a simple matter for the legislature to have included the words ‘or more’ in the chapeau of cl 9(6)(b) such that the definition would be engaged where ‘services are, or are to be, provided in 2 or more consecutive financial years’. As enacted, the definition in cl 9(6)(b) is confined to a contractual arrangement where services are provided within a period of 24 months. If the services are provided during a period exceeding 24 months, the definition in cl 9(6)(a) applies. Where a contractual arrangement extends over a number of years the relevant period is the financial year in which the injury giving rise to a claim for compensation has occurred.
As defined, relevant period means ‘relevant period, in relation to services provided under a contractual arrangement’ referred to in sub-cl (1). The relevant contractual arrangement is the 2012 contract. CV ceased providing services to BSA under that contract on 18 May 2015. Although the relevant period is the financial year ending 30 June 2015, when considering the potential application of cl 9(2) the court determines whether, in providing services to BSA under the 2012 contract between 1 July 2014 and 18 May 2015, CV was carrying on an independent trade or business.
During the period 19 May 2015 to 30 June 2015, CV provided services to BSA under a different contractual arrangement, namely, the contract entered into on 18 May 2015. The 18 May 2015 contract gave rise to a different relevant period for the purposes of cl 9. Nevertheless, whilst the period post 18 May 2015 relates to a different contractual arrangement, the manner in which CV carried on business during the period 18 May 2015 to October 2016 may be relevant to the question of whether it was carrying on an independent business prior to 18 May 2015. CV engaged a contractor, Ready Set Connect Pty Ltd, to undertake satellite installation work for BSA on or about 20 May 2015. This contract was entered into after the 2012 contract had come to an end. Nevertheless, the fact that CV had the capacity to enter into a contract with another contractor to undertake work for BSA, and derived income from that contractual arrangement, is relevant to whether CV was carrying on an independent trade or business prior to that contract being entered into.
Was CV carrying on an independent trade or business in providing services to BSA?
There is no issue between the parties that, absent the application of the independent trade or business exception in cl 9(2), BSA was properly deemed to be Mr Yoresh’s employer. BSA accepts that the criteria in cls 9(1)(a), (b), (c)(iii) and (d) were all satisfied by the 2012 contract:
(a)BSA entered into a contractual arrangement with CV for the provision by CV of services to BSA in respect of a relevant period;
(b)The provision of the services by CV under the 2012 contract was not ancillary to the provision of materials or equipment by CV under the 2012 contract;
(c)At least 80% of the services provided under the 2012 contract were provided by Mr Yoresh, a director and employee of CV; and
(d)The gross income of CV from the provision of services to BSA under the 2012 contract represented at least 80% of the total gross income of CV derived from satellite installation services during the relevant period.
Mr Yoresh gave unchallenged evidence that the business conducted by CV under the 2012 contract was ‘a satellite installation business’. Mr Fleming accepted that Mr Yoresh was conducting a satellite installation business. However, he submitted that the business was not independent.
The phrase ‘independent trade or business’ is not defined in the Act. The meaning of ‘independent trade or business’ involves a question of statutory construction. The correct approach to the interpretation of statutory provisions was considered by the Court of Appeal in Treasurer of Victoria v Tabcorp Holdings Ltd.[31] Maxwell P, Beach JA and McMillan AJA stated:
Interpreting a particular provision requires consideration of the legislative context and — where relevant — the legislative history. But if the words are clear and unambiguous, and can be intelligibly applied to the subject-matter, the provision must be given its ordinary and grammatical meaning, even if the result may seem inconvenient or unjust [Cooper Brookes (Wollongong) Pty ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305 (Cooper Brookes)].[32]
Neither the context nor purpose of cl 9 provides any justification for departing from the ordinary and natural meaning of the phrase ‘independent trade or business’ in cl 9(2). The statutory purpose of cls 9(1) and (5) is to extend the obligation to pay workcover premiums to a principal who enters into a contractual arrangement with a contractor in circumstances which satisfy the criteria in cls 9(1)(a)–(d). Clauses 9(1) and (5) operate to deem the principal to be the employer of an individual providing at least 80% of the contractor’s services to the principal pursuant to the contractual arrangement. Clause 9(2) constitutes an exception to the deeming of a principal as the employer of the contractor. Where, notwithstanding a contractor has entered into a contractual arrangement with a principal in conformity with cls 9(1)(a)–(d), the contractor is carrying on an independent trade or business in providing services to the principal, the principal is relieved of the obligation to pay premiums in respect of the contractor. Conversely, if the contractor in providing services to the principal is not carrying on an independent trade or business, the principal is liable to pay premiums.
[31][2014] VSCA 143.
[32]Ibid [2].
The word ‘independent’ has a clear meaning which can be intelligibly applied to the subject matter of ‘trade or business’. The Oxford English Dictionary, 2nd edition, defines independent as:
Not depending upon the authority of another, not in a position of subordination or subjection; not subject to external control or rule; self-governing, autonomous.
Not depending on something else for its existence, validity, efficiency, operation or some other attribute; not contingent on or conditioned by anything else.
The Macquarie Dictionary, 5th edition, defines independent as:
Not influenced by others in matters of opinion, conduct, etc; thinking or acting for oneself; an independent person.
Not subject to another’s authority or jurisdiction; autonomous; free.
Not influenced by the thought or action of others; independent research.
Not dependent; not depending or contingent on something for its existence.
Of particular relevance in the current proceeding are the following parts of the definitions set out above:
·Not in a position of subordination or subjection
·Not subject to external control or rule
·Not dependent on something else for its existence.
Applying the ordinary meaning of ‘independent’ in the phrase ‘independent trade or business’, I have concluded that in providing services to BSA, CV was not carrying on an independent business of satellite installation.
Throughout the 2015 financial year when providing satellite installation services to BSA under the terms of the 2012 contract, CV was totally dependent upon BSA. BSA was CV’s sole source of income during this period. CV never advertised its services to other potential customers: Downer EDI, ISGM, Visionstream or Servicestream. It did not present to the world at large as having any independent existence from BSA. Foxtel customers who received the benefit of the satellite installations carried out by CV were oblivious to its existence. CV’s van had no signage. Mr Yoresh introduced himself to customers as being from Foxtel. He wore a Foxtel T-shirt with BSA insignia. CV was subject to significant external control by BSA.
Relevant provisions of the 2012 contract
The provisions of the 2012 contract set out below are extensive. The provisions regulate every conceivable aspect of the satellite installation business conducted by CV. Many of the provisions are expressed in mandatory terms. These provisions have been highlighted in the extracts set out below. The highly prescriptive nature of the 2012 contract weighs heavily against a finding that CV was conducting an independent trade or business.
3. PERSONNEL
3.6The Contracting Company shall not use in the provision of the services any Personnel whom BSA have notified the Contracting Company is not acceptable to BSA, acting reasonably and having regarding to the Services to be performed and the interests of Customers, Foxtel and BSA.
3.7Any Personnel who are objectionable, unacceptable or unsatisfactory to BSA, acting reasonably and having regard to the Services to be performed and the interests of customers, Foxtel and BSA shall, at the cost of the contracting company, be replaced by Personnel satisfactory to BSA.
3.8Personnel may be deemed objectionable, unacceptable or unsatisfactory to BSA, without limitation, if and when such Personnel:
(a)make a derogatory comment or harmful or threatening statement (whether written or oral) to the detriment of a Customer, Foxtel or BSA employee or otherwise denigrate or threaten a Customer, Foxtel or BSA employee in any way or by any means;
(b)induce a third party to make a derogatory comment or harmful or threatening statement (whether written or oral), to the detriment of a customer, Foxtel, BSA or BSA employee or otherwise denigrate or threaten a customer, Foxtel, BSA or BSA employee in any way or by any means.
5. PERFORMANCE
5.2Where the Services require the use of specific equipment, parts or other materials, the Contracting Company will only use equipment, parts and other materials as reasonably nominated by BSA. Only genuine Foxtel Equipment and Approved Parts may be installed.
5.7The Contracting Company must provide and maintain its own vehicles and all necessary tools to perform the services.
6. FAILURE TO MEET SERVICE LEVELS
6.1The Contracting Company shall at all times achieve the Service Levels as set out Schedule 4.
6.2Subject to the terms and conditions of this agreement, if the contracting company fails to meet any Service Level, the Contracting Company must promptly, at the Contracting Company’s expense:
(a)investigate the failure to meet the Service Level (the Service Failure) to identify its cause; and
(b)do all it can reasonably do to remedy the Service Failure as soon as reasonably practicable in order to minimise the impact of the Service Failure and resume meeting the Service Levels; and
(c)advice BSA in writing of the Service Failure and the remedial efforts being undertaken; and
(d)take all reasonable action to prevent any recurrence of such Service Failure and certify to BSA that all reasonable action has been taken to prevent such recurrence.
6.4In the event that the Contracting Company fails to meet the Service Levels, BSA may impose Remedial Reductions in accordance with Schedule 4.
8. WORK ORDER
8.3(Availability of Services) The Contracting Company acknowledges that due to the nature of Services to be provided and the requirements of Customers for Saturday and Sunday installations, that Business Days are a reference to Sundays through to Saturdays of each week. The Contracting Company acknowledges that it has entered into this Agreement on that basis.
8.4(Contractor Availability Period) The Contracting Company will notify BSA at least three (3) months before the beginning of each month of the time that the Contracting Company will have Personnel available to perform the Services (‘Contractor Availability Period’). The Contracting Company acknowledges and agrees that due to the nature of the services and the requirements of customers, including being present at the Customer Premises when services are performed, the Services are to be performed on agreed weekends and certain agreed public holidays. Subject to other or alternate times negotiated and agreed by the Parties acting reasonably, the Contracting Company hereby agrees that the Contractor Availability Period may include up to two Saturdays and up to two Sundays in each month as nominated by the Contracting Company under consultation with BSA. The Contractor Availability Period will also include certain public holidays if those public holidays are negotiated and agreed. The Contracting Company agrees to use all reasonable endeavours to ensure its personnel are available during the Contractor Availability Period to undertake Work Orders issued during that period. The parties acknowledge and agree that the Contracting Company will be available to provide other services to other companies under other Contractor Services Agreements, and the parties enter into this agreement on this basis.
8.5(Issuing Work Orders) BSA does not guarantee that the Contracting Company will be issued any minimum or specific number of Work Orders under this Agreement.
8.6(Schedule of Rates) Prior to commencing work under this Agreement, BSA will provide the Contracting Company with the applicable Schedule of Rates. The Schedule or Rates will apply for the Term of this Agreement, regardless of volume of work. Notwithstanding the Schedule of Rates will be reviewed on an annual basis and may be adjusted to take into account price movements during the previous financial year.
20. SUPPLY OF EQUIPMENT
20.1(Supply of Contractor Equipment) The Contracting Company must provide the Contractor Equipment at its own cost. To ensure the services are provided in accordance with the requirements and specifications as set out in the Schedules in this Agreement, it is recommended that such equipment be obtained from the suppliers detailed in the IPL, which is posted on the BSA Web Page. The Contracting Company may obtain the Contractor Equipment from other suppliers where BSA, acting reasonably and having regard to the requirements and specifications contained in the Schedules, has first agreed in writing to alternate supply.
23. WORKFLOW, CUSTOMERS AND PRESENTATION
23.1The Contracting Company warrants that as at the commencement date it does not, directly or indirectly, have any contract or relationship with Foxtel or any competitor of BSA without prior written consent.
23.2The Contracting Company agrees and acknowledges that during the Term the Contracting Company shall not, directly or through any interposed entity, provide to Foxtel, or related body corporate of Foxtel, services that in the reasonable opinion of BSA are similar to the Services without first seeking the prior agreement of BSA which shall not be unreasonably withheld.
23.3Subject to clause 23.2 above, the Contracting Company may provide Services similar to the Services to any entity provided that the Contracting Company must continue to provide the Services in accordance with this Agreement, including in a timely and professional manner in accordance with the schedules and attachments to this Agreement and must comply with obligations in relation to Confidential Information.
23.4The Contracting Company must not display, use or distribute any printed material or any BSA or Foxtel branded matter, clothing or signage when carrying out work for other persons. The Contracting Company must not display, use or distribute any printed material, clothing, signage or other matter bearing the brands or trademarks of other telecommunications carriers or competitors of Foxtel or BSA when performing the services.
23.5Subject to clauses 23.2, 23.3 and 23.4, the contractual relationship between the parties to this agreement shall not be exclusive as between them and either Party shall be at liberty to contract with and carry out works for and with other persons or corporations in competition with the other Party.
SCHEDULE 2 – PROVISION OF SERVICES
1. SERVICES
1.1 Customer Contact Requirements
The Contracting Company must ensure that its Personnel:
a)attend to all Work Orders within the allocated timeframe;
b)attend all Customer Premises, call all contact numbers and leave appropriate documentation to show the Customer they attended the property within the allocated timeframe;
c)gain the customer's agreement to the installation and payment method prior to commencing any services at the customer's premises;
d)are clean, neatly presented, appropriately dressed in company uniforms and carrying and displaying identification;
e)are of an open and friendly manner at all times.
1.2 Service Delivery Requirements
a)If Contracting Company Personnel are required to attend a customer's premises, it must be done within the appointment timeframe.
b)The Contracting Company Personnel must provide the services that are in line with BSA and FOXTEL core values in delivering a Competitive, Contemporary and Consistent Customer Experience that:
A.Provides an uninterrupted viewing experience
B. Personalise it for me
While the customer service experience and its delivery principles are:
A. Make it simple for me
B. Don't surprise me
C.Let me choose how to interact with you
c)BSA needs to be advised of Work Orders in Jeopardy when Contracting Company's Personnel and / or field supervisors are on the customer's premises.
d)BSA must authorise any changes to a Work Order before any activity is carried out.
e)The Contracting Company must ensure the issue of FOXTEL welcome packs and program guides by its Personnel to customers after the Services are completed where applicable.
f)The Contracting Company must make sure that its Personnel distribute the correct month's program guide where applicable.
g)BSA expects a compliance rate to its quality installations procedures to be at 100%.
h)All Contracting Company's Personnel assigned to provide the Services must carry their own equipment enabling them to carry out all required activities.
Schedule 4 defines service levels as being either ‘critical service level’ or ‘key measurements’. A failure by CV to comply with a critical service level exposes it to liability for a ‘remedial deduction’. Examples are as follows:
·$65 for each work order not attended to in its allocated timeslot;
·$65 for any defective work found not complying with the FOXTEL DIM manual and relevant scope of works;
·The cost of a service call payment where a technician incorrectly notified BSA/Foxtel of a network fault;
·The cost of a service call for each set top unit returned to the repair centre that is found not to have a fault;
·$25 for each occasion a contractor is on site with more than one work order.
Non-compliance with some key measurement indicators also exposes CV to financial penalties:
·$65 for every work order not completed that does not meet a completion rate of 87% over a period of a month;
·A $35 administration charge for requesting information in respect of invoices, payments and any query over two months old.
Schedule 5, Operational Procedures, is also highly prescriptive. Many of the provisions are expressed in mandatory terms. In the table set out below these provisions appear in bold type.
CLAUSE DIRECTIVE Introduction (page 65) All work carried out by the Contracting Company should be completed in accordance with BSA’s standards and specifications and must in no way impede or effect any further work orders or activities from being completed at that same property at a later date.
1 General Contracting Company Responsibilities The Contracting Company shall be responsible for the following tasks:
(a) Submission of capacity up to three (3) months in advance.
(b) Perform the required Services under each Work Order...
(c) For all Field Work, the Contracting Company must follow the installation practices detailed in the FOXTEL Domestic Installation Manual.
(d) Except where the method of the work has been specifically nominated or by subsequent written instruction issued by BSA it shall be the responsibility of the Contracting Company to decide how to execute all aspects of the work pertaining to the provision of Field Work, while satisfying the requirements of the Customer and BSA.
(e) Measurement Window where Connect, Service Move, Service Adds, Service Call and Disconnect can be schedule within 7am-10am, 10am-2pm, 2pm-5pm & 5pm-7pm.
(f) Gaining approval from BSA for all work practices, tools, materials, equipment and accreditation requirements.
(g) Upon receipt of work, complete all scheduled work in the methods detailed later in this document.
(h) Upon completion of each Work Order, the Contracting Company must contact FOXTEL or BSA office Personnel to have the Work Order closed and the FOXTEL Service activated. In most cases the order will occur via PDA or mobility device.
(i) Where any Work Order cannot be completed fully on the Due Date or Alternative Due Date as the case may be, BSA office Personnel must be contacted immediately to report the issue preventing the successful completion.
(j) Ensuring that when notified by BSA of any change to work practices or processes that the Contracting Company’s Personnel is notified of the change and complies with these changes.
(k) Notifying BSA immediately of any ‘hazardous Lead-in Cable downs’ that come to their attention.
(l) Notifying BSA immediately of any ‘Network cable downs’ that come to their attention.
(m) To manage all ‘hazards’ (that fall outside the responsibility of the Customer or Telstra) encountered as part of installing or maintaining the FOXTEL Service.
(n) To manage and resolve all complaints relating to the field work that they carry out for FOXTEL.
(o) Liaise with the relevant operational contacts to manage day to day operational issues.
2 BSA Call Centre Jeopardy Team:
The Contracting Company must contact BSA Jeopardy when the following circumstances occur:
· When Jeopardy falls outside the responsibility of the Contracting Company;
· Work Order/Job Code/Grounded Status discrepancies are discovered;
Broadband System signal issues (RF track system logging).
BSA Inventory Management Team:
The Contracting Company should contact BSA Inventory Management Team in the following circumstances:
· Stock-take management
· Notification of lost, damaged, stolen inventory.
Warehouse:
The Contracting Company should contact BSA Warehouse in the following circumstances:
· Stock distribution and volumes; and
· Work Order and stationary procurement.
3 Telstra Operational Contacts – Homes Passed Group The Contracting Company must contact the Homes Passed Group in the following circumstances:
· To request the location of HFC network taps where required;
· To explore network tap upgrades;
· To verify whether a HFC Network Tap has been used in error by another CST;
· To verify method of installation for all MDU New Service Connections (unless work order is a Connect Line Ready); and
· To ascertain location of HFC Network Tap on all MDU Service Calls.
5 Contractor Availability Period
(b) The Contracting Company will notify BSA at least three (3) months before the beginning of each month of the times that the Contracting Company will have Personnel available to perform the Services ("Contractor Availability Period"). The Contracting Company acknowledges and agrees that due to the nature of the Services, and the requirements of Customers, including being present at the Customer Premises when Services are performed, the Services are to be provided on agreed weekends and certain agreed public holidays.
(d) The BSA Contracting Company availability/quota form on the BSA Web Page must be completed stating which days the Contracting Company wishes to provide the Services in accordance with this Agreement and how many Work Orders the Contracting Company is able to complete on that particular day. This form is to be completed three months in advance. Any adjustments are to be completed on the BSA Web Page with fourteen (14) Business Days’ notice.
6 Work Order allocation (a) The Contracting Company must access Work Orders from the BSA Web Page. This can be done only the night prior to the scheduled date. The work details are available each evening from 6.00pm onwards. CONTRACTING COMPANIES MUST NOT DOWNLOAD THEIR WORK ORDERS PRIOR TO THIS TIME.
(b) It is recommended that the BSA Web Page is re-checked again in the morning of the scheduled date for any changes that may have occurred overnight. The Contracting Company is to accept changes within reason. Any disputes are to be escalated to BSA.
(c) All Contracting Companies are required to be online to operate with BSA.
If a Contracting Company has any concerns regarding the Work Orders received then it should immediately contact either the BSA Call Centre or State Manager.
8 Contacting Customers and Attending Appointments
(a) It is the responsibility of the Contracting Company to ensure that the Contracting Company will arrive at the Customer’s Premises within the scheduled Appointment Window on all occasions.
The assigned Contracting Company must call all Customers the night before (prior to 9pm). It is important that the Contracting Company does not give a specific time as this may give the Customer an unrealistic expectation.
After the Contracting Company Personnel has closed their current job they must call the next Customer and provide an estimated arrival timeframe inside of 1 hour If the Contracting Company attends and the Customer is then ‘not in attendance’, the Work Order is placed in Jeopardy and the Contracting Company should call the next Customer and inform them that they are en-route.
The Contracting Company must always try all Customer contact numbers and should avoid leaving voicemail or message bank messages.
(b) If the Customer cannot be contacted before arrival at the scheduled appointment the Contracting Company MUST attend the Customer Premises in all circumstances.
(c) During any pre-appointment call, should a Customer request a change to their appointment time the Contracting Company must contact the BSA Call Centre. Changes should only occur as a result of a Customer's request and not the Contracting Company.
(d) No calls should be made to any Customers (unless specifically requested by the Customer) before 7 am or after 9 pm local time.
9 Appointments Running late
(a) It is the Contracting Company’s responsibility to ensure that all appointments are attended on time and that the BSA Call Centre is kept informed of the day’s happenings.
· BSA expects all installers to be on site for their first AM appointment by no later than 7.30am
· Midday jobs started (on Site) between 10.00am – 2.00pm for Connection Orders and Service Adds and Change Orders
· PM jobs started (on Site) between 2.00pm – 5.00pm for Connection Orders and Service Adds and Change Orders
· Trouble Ticket timeslot between 7.00am - 10.00am, 10.00am - 2.00pm, 2.00pm - 5.00pm
(b) If for any unforeseen circumstance the Contracting Company is running late to an AM, Midday or PM job, the BSA Call Centre must immediately be advised of the situation. The BSA Call Centre must be notified by 9.00am of all AM jobs running late and 1.00pm of all Midday jobs that may run late and by 4.00pm of all PM jobs that may run late.
(c) BSA will discuss the possibility of another Contracting Company to complete the job if the original Contracting Company is unable to meet the commitment. The original Contracting Company must notify the BSA Call Centre immediately of the situation. This will allow BSA the opportunity to find an alternative Contracting Company to complete the job within the scheduled timeslot.
10 Commencing Work
(a) Upon attending the Customer Premises the Contracting Company must confirm the following:
(i) that the person present is over the age of 18 and will be in attendance for the duration of the scheduled appointment;
(ii) If the person on Site is not the Customer, then the person present is authorised by the Customer to act on their behalf and are willing to sign the Work Order;
(iii) that the Customer’s equipment is present and in working order (e.g. TV, Video, DVD, telephone connection (if a Return Path is required);
(iv) customer type (FOXTEL, Telstra, other Contracting Company, etc.);
(v) whether the Customer has FOXTEL Equipment to be used at installation (i.e. transfers);
(vi) if the Customer’s Premises is heritage listed, the appropriate approvals have been received;
(vii) if Field Work is required on council land, the appropriate approvals have been received; and/or
(viii) if a Return Path is being installed, whether the Customer has a security/monitored alarm connected.
(b) Before commencing any Field Work, the Contracting Company should:
(i) assess the Customer Premises (including areas where the lead in, isolation box or dish is to be installed, the location of the TV, etc.) and advise the Customer of any concerns or existing damage to the Customer’s Premises;
(ii) discuss with the Customer any specific preferences or requests in respect to the Field Work being completed;
(iii) explain the details and method of the work to be carried out, and gain agreement to commence. Under no circumstances should work be carried out on the Customer’s Premises without the consent of the Customer or their designated representative (at least 18 years of age); and verify that the Work Order information supplied by BSA is an accurate reflection of the work to be carried out. If the information is not correct, the Contracting Company should notify BSA Call Centre immediately to have the correct information updated.
(c) Network cabling, Lead-in and Grounded Status discrepancies (cable work only):
(i) To ensure the Homes Passed Systems Database integrity, the Contracting Company must have details of the Lead-in Cable location of each Work Order (this represents the physical location, underground or aerial, of the Broadband System in the street) and the Grounded Status (where appropriate).
(ii) When attending the Customer Premises, the Contracting Company must verify the Lead-in Cable location and Grounded Status, and record the details, i.e. whether the Lead-in Cable is installed underground or aerial and the Grounded Status correct as shown on the Work Order.
(iii) Where the actual Lead-in Cable location or Grounded Status is different to that provided against each Work Order, the Contracting Company shall immediately contact the BSA Call Centre to report their findings. The BSA Quality Assurance Supervisor must contact the FOXTEL Installation Solutions Supervisor to have the reported discrepancy investigated.
(d) FOXTEL Ready connections discrepancies:
Where the Job Code on a Work Order is shown as "FOXTEL Ready" but in reality the Lead-in Cable, or dish, LNB and cabling is found to be missing or has never been installed, the Contracting Company Personnel shall contact the BSA Call Centre to report and request their findings be investigated by BSA and the Job Code upgraded as required.
11 Neighbouring Properties (a) Crossing Neighbour’s Property
· In the event that the neighbour will not allow the Lead-in Cable to cross their property, another method must be found.
12 Preferred Materials, Tools and Test Equipment
(a) FOXTEL have identified preferred materials, tools and test equipment to be used by the Contracting Company in carrying out all Field Work. All parts are to comply with the FOXTEL Domestic Installation Manual and Installer Parts List (IPL). The IPL incorporates all Telstra Approved Parts for use during Cable Work and is provided on the BSA Web Page. Any other materials that the Contracting Company may wish to substitute for the IPL will require BSA’s prior consent.
13 Standard Installations A standard New Service Connection and Connect Line Ready installation must be provided for all Customer Premises in a manner that is:
(a) in line with the Scope of Works, Schedule 3;
(b) conforms with the FOXTEL Domestic Installation Manual; and,
(c) meets all reasonable Customer requests.
14 Non Standard Installations In the event that a Standard Installation method cannot be agreed with the Customer the Contracting Company must contact the BSA Call Centre to provide details of the work involved.
(a) Quote Details
The Contracting Company must contact the BSA Call Centre to advise that a quote can proceed whilst the Contracting Company is on site. The BSA Call Centre representative will confirm with the Customer that they accept additional charges. The Contracting Company is to provide the BSA Call Centre with a detailed quotation, while Contracting Company remain at the Customer Premises, outlining the following details:
(i) Work Order details;
(ii) detailed explanation as to the Standard Installation methods that were offered;
(iii) specific details of the Customer's requests that are outside the Standard Installation method offered;
(iv) itemised additional parts required to meet specific non-standard Customer's requests; and/or
(v) additional labour required to meet specific non-standard Customer requests.
(vi) other details of work to be completed as required.
15 Escalated Service Calls It is the responsibility of the Contracting Company to ensure that all Service Calls are carried out in accordance with the Scope of Work requirements detailed in Schedule 3; to rectify the fault and carry out any preventative work necessary to eliminate further Service Calls.
16 Jeopardy It is the responsibility of the Contracting Company to ensure that all Field Work is able to be completed on the day of the scheduled appointment and that the Contracting Company Personnel are adequately equipped, trained and supported to carry out the work required.
Jeopardy occurs when scheduled work cannot be completed within the allocated Appointment Window. If any situation occurs that will result in the scheduled appointment being jeopardised, the Contracting Company must contact BSA immediately. All Jeopardy types are to be actioned by the Contracting Company within the allocated Appointment Window on the Due Date.16 Jeopardy – Customer Jeopardy (a) in any situation where the Customer is not in attendance upon arrival at the Customer Premises the Contracting Company must call all Customer contact numbers from the Customer Premises. The Contracting Company Personnel must wait on Site for a minimum of 10 minutes and must leave the appropriate “Not in Attendance Card” in a suitable location noting the time of arrival and departure. BSA Call Centre must be notified prior to the Contracting Company leaving the Customer Premises. A BSA Call Centre representative will call the Customer immediately to confirm.
(b) Under no circumstances should work be carried out on the Customer’s Premises without the consent of the Customer or their designated representative (refer to Clause 10 - Commencing Work - of these Operational Procedures). A person over the age of 18 is to be present for the duration of the appointment for a Work Order to proceed.
16 Jeopardy – Technical Jeopardy Prior to jeopardising an appointment for technical reasons the Contracting Company Personnel should consult with the BSA Quality Assurance Supervisor to assist in resolving the technical issue the Contracting Company is facing. The Contracting Company should contact the BSA Quality Assurance Supervisor from the Customer Premises.
(a) Site Survey Requirements
In the event that it is not convenient for the Customer to have the BSA Quality Assurance Supervisor attend on the day, an appointment must be made for a future date at a time requested by the Customer. The Contracting Company must contact BSA Call Centre and advise the date and time of the appointment. BSA Call Centre representative will confirm this information with the Customer.
(b) MDU Backbone requirements (Satellite Only)
The Contracting Company must ensure that BSA Call Centre is advised immediately of any appointment that cannot be completed due to a Backbone Cabling fault to enable immediate escalation. The Contracting Company must also contact the BSA Quality Assurance Supervisor immediately.
(c) Carry over Jeopardy requirements
i. An appointment that has commenced may need to be carried over to the next day as a result of the following reasons:
ii. weather conditions make it unsafe to complete work required;
iii. work required takes longer than expected and there is insufficient daylight to complete work required; and/or
iv. Customer cannot remain on Site.
Where an appointment could not be completed for the reasons listed above, the Contracting Company must contact the BSA Call Centre immediately from the premises to arrange for the Contracting Company to complete the remaining work on the following day. Under no circumstances should any FOXTEL Equipment or inventory be left at the property until the job is ready for completion.
If the following day is not convenient for the Customer, the BSA Call Centre will arrange an alternate date with the Customer.
16 Jeopardy - Foxtel Jeopardy (a) Dirty Ticket requirements
It is the Contracting Company’s responsibility to ensure that all Work Order details are confirmed prior to any work commencing at the Customer Premises (refer to Clause 8 - Contracting Customers and Attending Appointments - and Clause 10 - Commencing Work - of these Operational Procedures). This includes confirmation of the work required with the Customer. Where a Work Order is found to be incorrect as listed above, the Contracting Company Personnel must contact the BSA Call Centre immediately from the Customer Premises.
BSA Call Centre will take all steps appropriate to rectify the error and where required will confirm with the Customer. Every effort must be made by the Contracting Company to ensure that the Work Order is completed on the day.
(a) Weather Jeopardy Requirements
Where adverse weather conditions affect the completion of a scheduled appointment BSA accept that the appointment may not be met within the scheduled time slot. Appointments that fall within this category must be managed following the correct Jeopardy procedures. The Contracting Company shall make every effort to complete the Work Order on the same day.
In adverse weather conditions, the Contracting Company will contact the Customer to check the weather conditions at the Customer’s premises. If the Customer confirms the weather conditions will prevent the appointment proceeding, it is then at the Contracting Company’s discretion as to whether the Contracting Company attends the Customer’s Premises. In the event that the weather clears and the Contracting Company can still complete the appointment (including travel time) within the original time slot, the Contracting Company will attend the Customer Premises.
All Connect Line Ready and similar MDU wired to the wall plate connections, Adds Moves and Changes (except relocate dish), Service Calls and disconnections should still be attended irrespective of weather conditions and an assessment made as to whether the appointment can proceed.
If the Contracting Company initiates the Jeopardy, they will contact the BSA Call Centre to notify that the appointment cannot proceed due to weather conditions. The BSA Call Centre representative may question the Contracting Company's to confirm and validate the situation and ask the Contracting Company's to proceed to the Customer’s Premises. If the BSA Call Centre representative accepts the Jeopardy situation, they will transact the Jeopardy in BSA’s CMS and contact the Customer to reschedule the appointment.
16 Jeopardy - Cable Work Jeopardy (a) Locating HFC Network Taps
Where Contracting Company Personnel are unable to locate the HFC Network Tap, they must call Telstra’s National Contract Management Centre (NCMC) to have their query referred to the Homes Passed Group via SmartTik.
The Homes Passed Group shall access SmartTik, accept the query and locate the relevant plan. They shall then contact the Contracting Company Personnel and direct them to the correct HFC network tap. A sequence number is supplied to the Contracting Company Personnel at this time. The Contracting Company Personnel should note this sequence number for future reference.
(b) Upgrading HFC network taps
In instances where the Homes Passed Group verifies that a HFC Network Tap upgrade may be required, the Contracting Company Personnel shall report this information to BSA QA Supervisor.
(c) HFC Network Tap Used in Error
Where Contracting Company discover that a HFC Network Tap has been used in error, they must contact the NCMC to have their issue referred to the Homes Passed Group via SmartTik.
Where it is verified that a HFC Network Tap has been used in error on a previous New Service Connection the Contracting Company must call BSQ Quality Assurance Supervisor to report their findings. All details must be supplied to BSA Call Centre at this time.
(d) No Signal at Tap
Where Contracting Company attend a Customer’s Premises to connect the FOXTEL Service (or attend a Service Call Work Order on an existing service), they must first locate the HFC Network Tap to check the RF signal quality with a calibrated signal meter. If the RF signal quality is found to be outside the standard, the Contracting Company shall contact BSA Quality Assurance Supervisor to relay the readings as well as all other relevant information.
The Contracting Company must provide FOXTEL with the following information:
i. BSA Quality Assurance Supervisor's Name
ii. reason why the Work Order was referred to MCC? (I.e. faulty picture, pixilisation, no pictures, network damage, HFC Network Tap damaged etc.)
iii. recorded RF signal quality from the HFC Network Tap and wallplate which must be recorded using dBmV measures.
iv. type of equipment used to verify the fault? (I.e. a calibrated signal meter).
v. whether the isolator has been checked for damage, old or faulty? If so, has it been replaced?
vi. is the fault on all wallplate outlets?
vii. is the fault on all channels? If not specify which channels are affected.
viii. have all F-Connectors been checked? If so have they been replaced?
ix. has a slave Lead-in Cable been run from HFC Network Tap to the STU?
x. has the STU been swapped?
xi. what time did the Contracting Company arrive on site?
xii. Network Topology, Headend, Node Hub and DA.
(e) Damaged Pits
On occasion the pit to be used for a New Service Connection may be found to be damaged. If the damage is such that the installation can still proceed, the Contracting Company must erect guards where necessary and contact Telstra by phone on 132203 to report the damaged pit at the time of the New Service Connection.
Where the damage is such that the New Service Connection cannot proceed, the Contracting Company shall make the area in the immediate vicinity of the pit safe (erecting guards where applicable) and contact Telstra by phone on 132203 to report the damaged network pit. They shall then advise BSA of the need to reschedule the appointment until such time as the network pit has been replaced.
(f) Network Extensions
Where the Contracting Company arrives at a Customer’s Premises and discovers the Broadband System does not extend up to the home, they must call the NCMC to have their issue referred to the Homes Passed Group for investigation via SmartTik.
(g) Missing / Not Accessible Link Pipes
Where the Contracting Company discovers Link Pipe is missing, the Contracting Company must contact the Homes Passed Group for assistance. The Homes Passed Group shall locate the relevant plan to determine whether the Link Pipe is shown on the plan.
If it is verified that a Link Pipe is missing, the Contracting Company shall replace the missing Link Pipe prior to completing the New Service Connection.
Where a Link Pipe is found to be blocked or damaged the Contracting Company must replace the Link Pipe prior to completing the New Service Connection.
(h) Aerial Lead-In Cable Height Clearance Issue
Where a Contracting Company discovers that the minimum Lead-in Cable height clearance cannot be achieved on an aerial New Service Connection they must report the issue to their BSA QA Supervisor.
(i) Locating Plant Prior to Excavating/MOCS
A plant location should be sought sufficiently in advance of construction activities by contacting "Dial Before You Dig" on phone 1100 to the extent necessary for performance of the Cable Work where it operates. MOCS plans identify the location of Telstra’s network facilities and any other services (e.g. gas, water or electricity) and shall be provided free of charge upon request and the Contracting Company shall undertake manual exposure i.e. pot-holing when excavating or working closer to Telstra’s plant than the following approach distances: …
(j) Competitor Cable
Contracting Company must not use or remove any cable or equipment that has been installed by a person other than BSA.
Other Contracting Company's cabling or the MDU’s free to air cabling must not to be used as part of the FOXTEL infrastructure.
(k) Hazards/Waste Management
The responsibility for clearing hazards depends on the type of hazard and where the hazard is situated. The table below defines the areas of responsibility.
Contracting Company: is responsible for clearing the following hazards, some of which require notification to BSA QA or Telstra:
· Vermin
· Gas
· Asbestos
· Needles/sharps
· Broken Telstra Plant
· Customer Premises Electrical Incidents
· Proven network Electrical Incidents
(l) Water in Pits and Manholes
During the course of cable work, where the Contracting Company discovers a pit or manhole contains water that prevents the Cable Work being completed or is believed to be the cause of a fault, they must report the matter to BSA Call Centre.
(m) Network Electrical Incidents
The Contracting Company must provide FOXTEL Installation Solutions Supervisor with a written report detailing the relevant incident.
All other electrical incidents must be resolved by the Contracting Company and notified to BSA in accordance with OHS policies.
(n) Road Crossings - Traffic Management
The Contracting Company shall comply with all the requirements of any Government Body having jurisdiction in relation to the traffic arrangements in the vicinity of that Field Work.
It will be Contracting Company's responsibility to develop appropriate traffic management plans in Work Order to meet any Statutory Requirements and applicable legislation.
(o) Heritage Listed Properties
Where a property is ‘Heritage Listed’ the Lead-in Cable from the HFC Network Tap to the Isolation Box must always be installed underground, even if the New Service Connection method would be aerial.
Details regarding the proposed New Service Connection must be entered into NNACS and a notice completed. The notice shall then be sent, together with any other pertinent information to the DEH for approval. Ten (10) Business Days shall be allowed for an answer to be received.
(p) Cables Limited Service Life Poles
Where an aerial Lead-in Cable requires connection to a Limited Life Pole or Condemned Pole, the FOXTEL Installation Solutions Supervisor must be contacted by the Contracting Company and provided with the pole details. This will ensure a quick pole determination time frame. The required details are: …
(q) MDU Replan Required
Where a Work Order is issued to a Contracting Company to connect a Customer in an MDU, but on arrival it is discovered there is no Backbone Cabling even though the street may have been provisioned, the Contracting Company must call the NCMC to refer the issue to the Homes Passed Group for verification via SmartTik. The Homes Passed Group shall locate the relevant plan and call the Contracting Company to notify the outcome of their investigation. Where the Contracting Company’s findings are verified, the Contracting Company shall report the issue to FOXTEL Installation Solutions Supervisor via BSA Quality Assurance Supervisor.
17 Cable Additional Works (a) The Contracting Company shall contact the BSA Call Centre for advice if a situation arises where they believe additional payment is warranted.
If the required work falls into the reasonable expectations for that job, the request for additional payment will be rejected and the work will be carried out as necessary under the standard Scope of Work.
(c) If the required work falls into the reasonable expectations for that job, the request for additional payment will be rejected and the work will be carried out as necessary under the standard Scope of Work.
(d) If deemed by the Installation Solutions Supervisor that additional works is required, the Contracting Company shall submit (via email) a quote to BSA request for additional payment.
(e) The Contracting Company shall provide quote details on the BSA quote template provided and shall be itemized and as a minimum, include:
· Labour
· Materials
· Special Equipment
· GST component
(f) All cable additional works quotes must be approved by FOXTEL and BSA prior to the commencement of work. FOXTEL or BSA may at its sole discretion, accept or reject the quotation. If accepted, the Contracting Company shall carry out the additional works as per the agreed quotation.
18 Recovery of Equipment (b) For transfer Customers, the Work Order indicates the Customer is moving from one premises to another and reconnecting, and therefore having FOXTEL Equipment.
i. The Contracting Company must ask the Customer to locate their existing equipment for use during the New Service Connection or Connect Line Ready Work Order.
ii. If the Customer presents equipment which belongs to a different platform (i.e. switching from Satellite Service to Broadband Service or vice versa), the Contracting Company must recover and return this equipment to the BSA warehouse.
iii. If the Customer is unable to locate the equipment, the Contracting Company shall record the information, including the reason why the Customer couldn’t locate it and supply this information to BSA immediately.
(c) During the performance of Satellite Service disconnections where the weather conditions do not allow the satellite dish, upon the owner’s request, to be recovered, the Contracting Company is required to attend and recover FOXTEL Equipment as per the Scope of Works in Schedule 3. The Contracting Company should contact BSA Call Centre via PDA or mobility device advising the appropriate changes to the Work Order.
19 Successful Completion of Work Order (a) Once a scheduled Work Order has been Completed, the Contracting Company must ensure it has conducted the pre-activation technical checks as outlined in the DIM.
(b) The Contracting Company must ensure that the correct Work Order form is used depending on Account Type (e.g. FOXTEL, TELSTRA or other Retail Provider). The Contracting Company is required to complete the Work Order form with the following details: …
(c) The Contracting Company will explain the purpose of the Work Order Form to the Customer. The following details must be discussed; …
(d) The Contracting Company will then ask the Customer to sign and date the Work Order Form.
(e) When the appointment has been completed, the Contracting Company will activate the Customer's Service via FOXTEL’s IVR system or by PDA or mobility device. The Contracting Company must remain at the Customer Premises ensuring that the Work Order closed and all service activated and showing picture if applicable. In most cases the activation/closure occurs via PDA however at times may include a BSA Call Centre representative. The Contracting Company will have the Work Order Form details at hand. All relevant details of the work carried out (including, but not limited to the details outlined above) must be provided. Any additional information should be recorded under comments on the PDA or mobility device.
(f) The Contracting Company must guarantee that the information provided to BSA is accurate and complete.
(g) The Contracting Company must close and Complete all Work Orders from the Customer’s Premises.
(h) The Contracting Company Personnel must provide the Customer with any marketing material when required.
(i) The Contracting Company Personnel must complete the channel outputs on the relevant card and explain to the Customer.
(j) The Contracting Company Personnel must educate the Customer on all aspects of the FOXTEL Service such that the Customer is fully able to use all FOXTEL Equipment and is able to enjoy their FOXTEL without needing further assistance. …
(k) As part of Customer education, the Contracting Company Personnel should provide the Customer the opportunity to use the FOXTEL functions while in attendance.
20 Complaints Process (a) The Contracting Company is responsible for the management, investigation, resolution and compensation of all Complaints relating to the work that they carry out for BSA. …
(c) The Contracting Company needs to understand the seriousness of damage Complaints and to consider the Customer and their homes.
(d) The Contracting Company is required to be active in the resolution of Complaints.
All costs of reinstatement / repair / compensation associated with resolution of a complaint will be borne by the Contracting Company.
If BSA considers that a Contracting Company is not actively working with BSA and the Customer to resolve a complaint, BSA will take control and arrange whatever repairs or actions are necessary to resolve the complaint. In this instance the Contracting Company will bear all costs incurred by BSA including the cost of reinstatement / repair / compensation.
Priority 1 Complaint
· Response Time: The Contracting Company must respond to a Priority 1 Complaint within ONE hour including advice of the planned assessment/resolution.
· Remedy/Resolution: The Contracting Company must assess the nature of the Complaint and take immediate action to attend the property and make the area safe where required. The Contracting Company will notify BSA of this resolution within the agreed deadline. BSA may choose to take control of a Priority 1 damage as outlined in Schedule 4 D1.
Priority 2 Complaint
· Response Time: The Contracting Company must respond to a Priority 2 Complaint within 24 hours including advice of the planned assessment/resolution.
· Remedy/Resolution: The Contracting Company will arrange within 24 hours a resolution for all Priority 2 Complaints sent by BSA. The Contracting Company will notify BSA of the resolution arrangements within 24 hours. Upon resolution of the Complaint the Contracting Company will advise BSA of the outcome.
Priority 3 Complaint
· Response Time: The Contracting Company must respond to a Priority 2 Complaint within 48 hours including advice of the planned assessment/resolution.
· Remedy/Resolution: The Contracting Company will arrange within 48 hours a resolution for all Priority 3 Complaints sent by BSA. The Contracting Company will notify BSA of the resolution arrangements within 48 hours. Upon resolution of the Complaint the Contracting Company will advise BSA of the outcome.
(c) Initial Customer contact must be made by the Contracting Company or the BSA QA Supervisor. All Complaints relating to work carried out and/or physical damage must be investigated and assessed by a BSA Quality Assurance Supervisor attending the premises to investigate the Complaint.
(d) The Contracting Company will notify BSA of the result of these Complaints by the deadlines stated above. The Contracting Company will document the following details on their resolution report: ….
(g) It is the Contracting Company’s responsibility to ensure Complaint resolution occurs within required timeframes. BSA will not accept delays due to issues with Insurance Companies, Contracting Company resources availability or third party repairs as a reason for delayed resolution. Any third party quotes need to be sourced by the Contracting Company and at no stage is this to become the Customer’s responsibility unless requested by the Customer. The Contracting Company cannot further delay the resolution due to the disfavor of the Customer’s quotes.
In the event that an insurance claim is pending and may delay resolution of a Complaint, the Contracting Company will take all necessary steps, including financial restitution, in order to provide the appropriate remedy for the Customer. BSA reserves the right to assume management of a damage compliant that remains unresolved after the required timeframe. In this case the Contracting Company will bear any costs associated with resolution, including remedial deductions, as outlined in Schedule 4.
(h) The Contracting Company is to ensure that all resolved Complaints have a Customer’s signature on an indemnity form. The form states that Customer is happy with the end result and is happy to close the damage Complaint. These records are to be kept for future reference if required.
(i) In situations where the Complaint has been investigated by a BSA Quality Assurance Supervisor and denied, BSA are responsible for providing a detailed description to FOXTEL and the Customer of why it was denied. The Contracting Company cannot offer a cash settlement to the Customer once a Complaint has been denied. BSA reserves the right to deny a denial and to take all necessary actions to resolve the Complaint on the Customer’s behalf. The Contracting Company cannot deny a Complaint based on grounds that a Customer has taken the necessary measures to have the Complaint rectified.
(j) BSA does not accept liability for a fault rectified by a telephony carrier unless written evidence is provided by the Customer from their carrier confirming that BSA or its Contracting Company caused the damage. In this case the Contracting Company will be expected to financially compensate the Customer and / or BSA if either party is invoiced by the Telecommunications Contractor.
21 Inventory Management and Distribution of FOXTEL Equipment (b) It is a requirement that the Contracting Company manages their field operations with sufficient inventory, including stock in vans and ensures sufficient stock levels as not to jeopardize the completion of Work Orders.
(c) It is the Contracting Company’s responsibility to have sufficient stock to perform the activities required by BSA.
(d) If a Contracting Company attends a Customer’s Premises and does not have the appropriate items to complete the Services it is the responsibility of the Contracting Company to arrange delivery of the relevant equipment and not delay the job.
(e) The Contracting Company is required to ensure that all return FOXTEL Equipment is dispatched to the required BSA warehouse within 7 days of retrieval. All returned STU’s, iQ’s and Digipaths must have a completed fault tag as provided by BSA affixed to the inventory item.
(f) The Contracting Company will ensure safe and efficient handling of all FOXTEL Equipment. This applies from the point of receipt, to installation at the Customer’s Premises; the removal from Customer’s Premises, to return to the BSA designated warehouse.
The Contracting Company is required to suitably package the FOXTEL STU’s for transportation in the same manner as they were received from BSA. Prior to leaving the Customer’s Premises, before placing into cartons the STU must be wrapped in individual plastic bags. The STU’s are then to be individually packed into appropriate cartons. All power supplies, power cables and remote controls must be returned with each STU.
When returning smartcards the Contracting Company is required to separate by analogue and digital type.
The return delivery of smartcards should be clean of any adhesives or markings on the smartcards prior to return. All smartcards should be bundled with the smartcards facing the same direction.
The Contracting Company will ensure that all return smartcards are returned on a weekly basis.
(i) It is the Contracting Company’s responsibility to ensure that issues relating to items contained in this report are resolved prior to invoicing. Items classified as “Good stock” should be used through the FIFO methodology or returned back to the BSA warehouse whilst items classified as “Return stock” should be returned to BSA’s nominated warehouse. Any discrepancies where an investigation is required by BSA should be forwarded promptly as to allow time for these to be resolved prior to invoicing.
(j) It is a mandatory requirement that any consumables sourced by the Contracting Company from BSA must only be used for FOXTEL work. Any known non-compliance will result in the Contracting Company retrieving the FOXTEL consumables at no cost to BSA.
It is a critical operational requirement that dishes supplied by Hills Industries MUST only be used in NSW, Victoria, ACT, SA and dishes supplied by JONSA Archsat MUST only be used in QLD and WA. Any non-compliance will result in Contracting Company revisiting Customers' Premises at their own cost to rectify the non-conformance.
22 Field Quality The Contracting Company shall, to the extent that they relate to the performance of Field Work and unless otherwise directed by BSA, comply with the following procedures and guidelines (as varied from time to time) and any other procedures and guidelines in relation to quality documents including the DIM, notified by BSA from time to time to the Contracting Company.
Documentation
(b) Changes to the DIM and IPL – Domestic will be placed on the BSA Web Page for download. Contracting Companies are responsible to ensure all copies of the DIM and IPL are current and up to date within five (5) Business Days of information release.
(c) All Contracting Companies are to comply with the latest version of the DIM.
Quality Plan
(a) BSA shall provide to the Contracting Company a Quality Plan with which the Contracting Company shall be required to comply. The Quality Plan shall include, but not be limited to: …
(b) If requested by BSA, the Contracting Company shall make available to BSA its quality system documents and records of compliance or non compliance. BSA may audit any aspect of the Contracting Company’s quality system and records kept at any reasonable time, provided reasonable prior notice is given to the Contracting Company.
(c) The Contracting Company shall rectify any practice or procedure which causes, or is likely to cause, the Contracting Company to fail to perform its obligations under this Agreement (and the documents and Schedules incorporated by reference therein).
(d) Without limiting paragraph (c) above, the Contracting Company shall:
i. take immediate steps to rectify a Defective Service identified by BSA; and
ii. within 2 working days following receipt of the notice, provide BSA with a written Remedial Plan under which the Contracting Company proposes to rectify any Defective Service which may have occurred, but has not yet been discovered.
(e) BSA may, in writing, either approve or reject the Contracting Company’s Remedial Plan. Where the plan is rejected, amendments to make it compliant shall be provided by BSA. The Contracting Company shall make any amendments to the Remedial Plan as reasonably required by BSA and promptly carry out the requirements of the approved plan. The remedies in the approved plan shall be incorporated into the Quality Plan.
(f) the Contracting Company shall at all times comply with the Quality Plan.
Faults, Defective Services and Quality Assurance
(c) All Faults that are determined (acting reasonably) by BSA to be Defective Services shall be rectified in accordance with this Agreement (and the documents and Schedules incorporated by reference therein).
(e) Repair of Substandard Work
i. Unless otherwise directed by BSA, the Contracting Company shall take all necessary steps to remedy the Defective Service. Any Defective Work identified during an audit must be rectified by the Contracting Company at no cost to BSA.
23 Recruitment, Training and Accreditation Requirements Recruitment and Selection
(a) Recruitment and selection of their Personnel is the responsibility of the Contracting Company. Contracting Companies must ensure all Personnel are selected based on projected competency for the role. Suggested competencies may include but is not limited to performing; a police background check, confirmation of ACMA license (where required). The Contracting Company must also ensure that Personnel are not hired if they have been terminated due to fraudulent activities or quality issues by other industry Contracting Companies.
(b) The Contracting Company is to ensure Personnel have the appropriate registrations, tools and van to complete Field Work. Personnel must display identification when performing the Services. Personnel once accredited must wear during all jobs a photo identification tag with their technician code and photo clearly printed.
(c) Notwithstanding (a) and (b) above all Contracting Company Personnel shall be subject to the approval of BSA in accordance with the terms of the Agreement.
Training and Accreditation (New Contracting Company)
(a) New Contracting Company Personnel must pass the relevant industry training course by registered training organisations.
(c) The Contracting Company must ensure that it complies with all reasonable directions by BSA regarding:
i. any work practices where they are likely to materially, adversely impact on the performance of a Broadband System;
ii. training for Contracting Company Personnel whose work practices are likely to materially, adversely impact on the performance of a Broadband System; and
iii. Any accreditation requirements of Personnel working on Broadband System.
(d) BSA will provide Contracting Companies with a buddy-up period in the field with an existing BSA Contracting Company. During this phase each Contracting Company must complete the on-site practical assessment conducted by a BSA Quality Assurance Supervisor.
Training and Accreditation (Existing Contracting Company)
(a) Accredited Contracting Company Personnel must periodically demonstrate their compliance to updates and technical changes; it is the Contracting Company's responsibility to remain current with any industry and regulatory changes.
(b) Contracting Company's Personnel must complete a regular theory and practical assessment as required to validate existing knowledge. Contracting Company Personnel falling below the competency benchmark will be required to complete further training and testing in order to provide evidence of competency.
Programs and Approval
(a) The Contracting Company shall provide BSA with details of its training programs where applicable and provide BSA with the opportunity to attend and review training sessions for the purpose of accreditation of the training program as being appropriate for the accreditation of Contracting Company Personnel.
ACMA Requirements
In addition to BSA’s requirements, as set out in these Operational Procedures, where appropriate, all Field Work completed by the Contracting Company must also be in strict accordance with the specifications and guidelines nominated by ACMA in the ACMA Manual or successor documents as updated from time to time. If any conflict exists between the above-mentioned documents, the Contracting Company shall seek advice and direction from BSA in writing. BSA shall then issue a direction to the Contracting Company to address the conflict. The Contracting Company must comply with the direction unless it is inconsistent with the Statutory Requirements and any legislation relating to occupational health and safety and environment.
Contracting Company Personnel working on ACMA approved cabling shall be appropriately certified to carry out such work. It is the Contracting Company’s responsibility to ensure that it is aware of the latest ACMA publications and that the Field Work is completed to those requirements. It is also the Contracting Company's responsibility to provide and keep on hand copies of the ACMA manual and any updates for reference while carrying out the requirements of these Operational Procedures.
The procedures set out in sch 5 regulate every aspect of:
·The work to be undertaken by CV;
·Obligations upon CV to communicate with BSA, particularly the matters set out in cl 16 in respect of ‘customer jeopardy’, ‘technical jeopardy’, ‘Foxtel jeopardy’ and ‘cable work jeopardy’;
·Inventory management;
·Recruitment and selection;
·Complaints procedures.
Clause 20 of sch 5 provides that CV is responsible for the management, investigation, resolution and compensation of all complaints relating to the work carried out for BSA. However, it is clear from the terms of cl 20 that BSA retains the right to classify complaints received from customers. Complaints are categorised as either a priority 1, priority 2 or priority 3 complaint. A priority 1 complaint is a complaint requiring urgent and immediate action. CV is obliged to respond to such a complaint within one hour, including advice of the planned assessment/resolution. A priority 2 complaint is a complaint requiring immediate action. CV is required to respond to such a complaint within 24 hours including advice of the planned assessment/resolution. A priority 3 complaint is a complaint requiring attention within 48 hours. CV is required to respond within 48 hours including advice of the planned assessment/resolution.
If BSA considers that CV is not actively working with BSA and the customer to resolve the complaint, BSA retains the power to take control and arrange whatever repairs or actions are considered necessary to resolve the complaint. All complaints are investigated by a BSA QA supervisor. If a BSA QA supervisor denies the complaint, BSA is responsible for providing a detailed description to Foxtel and the customer of why it was denied. In these circumstances CV is precluded from making an offer of a cash settlement to the customer once the complaint has been denied.
Earlier in this judgment I have set out the terms of cl 23 of the 2012 contract. Clause 23.5 provides that:
Subject to clause 23.2, 23.3 and 23.4, the contractual relationship between the parties to this agreement shall not be exclusive as between them and either Party shall be at liberty to contract with and carry out works for and with other persons or corporations in competition with the other Party.
The proviso ‘subject to clauses 23.2, 23.3 and 23.4’ is significant. Clause 23.2 precludes CV from providing to Foxtel any services ‘that in the reasonable opinion of BSA are similar to the Services without first seeking the prior agreement of BSA which shall not be unreasonably withheld’. Save for BSA, the market for CV’s satellite installation services was comprised of four other companies contracted to provide satellite installation services to Foxtel. The effect of cl 23.2 is that, absent the agreement of BSA, CV was precluded from providing any services to Foxtel via those four companies.
Clause 23.3 provides that CV ‘may provide services similar to the Services to any entity provided that the contracting company must continue to provide the Services in accordance with this agreement’.
Clause 5(b) of sch 5 – Operational Procedures provides, in part:
The Contracting Company will notify BSA at least three (3) months before the beginning of each month of the times that the Contracting Company will have Personnel available to perform the services (“Contractor Availability Period”).
When cl 23.3 is read in conjunction with the obligation to comply with the contractor availability period, the effect is to preclude CV from providing any services to any other entity which would impact upon compliance with the three month availability period.
Clause 23.4 precludes CV from displaying or distributing any Foxtel branded matter, clothing or signage when carrying out work for other persons. The practical effect of the cl is to prevent CV from undertaking any work for Downer EDI, ISGM, Visionstream or Servicestream. Each of those companies provides services to Foxtel. I infer that each would require contractors engaged by them to wear Foxtel branded clothing as was the case with BSA.
In addition to the contractual provisions referred to above, the practical position was that it was simply impossible for Mr Yoresh to undertake work for anyone other than BSA during the period the 2012 contract was in operation. In truth, the relationship between CV and BSA was exclusive. There was no practical capacity for CV to undertake satellite installation services for a competitor of BSA whilst the 2012 contract was operative. Apart from the contractor availability period of three months, there was the practical consideration that Mr Yoresh was advised of the work allocated to him at 6.00 pm on the previous day. Having been allocated work he was fully occupied. He worked an average of 7.5 to 8 hours each day. The injury claim form which he completed on 6 January 2015 states that Mr Yoresh’s ordinary hours of work were 7.30 am to 16.30 pm five days per week. The injury claim form also states that Mr Yoresh worked 45.5 hours per week. These work practices left no capacity for Mr Yoresh to undertake work for any other party.
Mr Solomon placed weight on the following matters as supporting a finding that CV was carrying on an independent business when providing services to BSA in respect of the 2012 contract:
(i)The requirement for CV to invest in significant capital assets such as a van, meter tester, ladders and power tools;
(ii)The requirement for CV to have stock on hand, some of which Mr Yoresh could source independently of BSA;
(iii)The provision of services being largely unsupervised;
(iv)CV had the capacity to earn additional income by engaging other contractors to do work for BSA. This in fact occurred on 20 May 2015 when CV contracted with Ready Set Connect Pty Ltd and retained 35% of the revenue generated by that company for satellite installation services provided to BSA.
The matters set out above support a finding that CV was conducting a satellite installation business during the period the 2012 contract was in operation. However, the question for determination in the current proceeding is whether that business was independent of the business of BSA. The weight of evidence strongly supports the conclusion that it was not.
I accept that the majority of the work undertaken by Mr Yoresh was not subject to direct supervision by BSA. Nevertheless, it is clear from the contractual provisions, particularly those contained in schs 4 and 5 referred to above, that CV was subject to significant levels of control and direction by BSA.
During the period June 2012 to 18 May 2015 Mr Yoresh was the sole employee of CV. The contract between CV and Ready Set Connect Pty Ltd pursuant to which Mr Sean Brown provided satellite installation services was entered into on 20 May 2015, by which time CV had entered into a new contract with BSA. Therefore, in carrying on a satellite installation business during the period the 2012 contract was operative, CV had the capacity to engage other personnel but had not done so. I accept that the fact CV had the capacity to engage other personnel under the 2012 contract is relevant to the question of whether it was carrying on an independent business. However, the existence of the right to engage other personnel, when weighed against the many other considerations consistent with dependence by CV upon the business of BSA, does not support a finding that CV was conducting an independent business. Further, it is significant that had CV sought to engage personnel whilst the 2012 contract was operative, BSA retained a right of veto over who could be engaged. The existence of this right is inconsistent with CV carrying on an independent business under the terms of the 2012 contract. An unfettered right to hire and fire is a hallmark of an independent business.
Mr Solomon submitted that the question to be determined under cl 9(2) is whether the business carried on by CV was independent of the business of BSA. He submitted that at any relevant time CV was not dependent upon BSA, but rather upon Foxtel. He submitted that ‘The true dependence is on Foxtel and the dependence is an economic dependence. If Foxtel stops installing satellites, your Honour would conclude that an installation of satellite business would cease’.[33]
[33]Transcript of Proceedings, BSA Ltd v Victorian Workcover Authority & Ors (Supreme Court of Victoria, S CI 2015 04703, McDonald J, 6 November 2017) T198 LL9–12.
I accept Mr Solomon’s submission that CV’s satellite installation business was dependent upon Foxtel. Mr Yoresh’s unchallenged evidence was that Foxtel was ‘it’ in terms of the satellite installation business market. When BSA’s contract for the provision of services to Foxtel ceased in October 2016, CV immediately entered into a contract with ISGM, one of the four other companies contracted to Foxtel.
The fact that CV was dependent upon Foxtel to generate demand for satellite installation services does not mandate a finding that in providing services to BSA, CV was carrying on an independent business. CV was dependent upon Foxtel to generate demand for satellite installation services. CV was also dependent upon BSA in carrying on its satellite installation business. BSA was the sole source of work and income for CV during the period the 2012 contract was operative. During this period CV did not hold itself out to the world at large as conducting a satellite installation business. It had no reason to do so because it was fully occupied in providing services to BSA. The customers of BSA/Foxtel were oblivious to CV having an independent existence. All of these matters point strongly to the conclusion that in providing services to BSA, CV was not carrying on an independent business.
Both parties submitted that they had been unable to find any Victorian authority which has directly considered the meaning of the phrase ‘independent trade or business’ in the Act. My own researches have been similarly unproductive. Nevertheless, the judgment of Dixon J in Humberstone v Northern Timber Mills[34] provides useful guidance regarding the matters to be taken into account in determining whether a party is carrying on an independent trade or business. In Humberstone the High Court considered the question of whether a cartage contractor was deemed to be an employee under s 3(6) of the Workers’ Compensation Act 1928 (Vic). Section 3(6) provided:
Notwithstanding anything in this Act or any law where any person (in this sub-section referred to as ‘the principal’) in the course of and for the purposes of his trade or business enters into a contract with any other person (in this sub-section referred to as ‘the contractor’) – (a) under or by which the contractor agrees to perform any work not being work incidental to a trade or business regularly carried on by the contractor in his own name or under a firm or business name; and (b) in the performance of which the contractor does not either sublet the contract or employ workers or although employing workers actually performs some part of the work himself – then for the purposes of this Act the contractor shall be deemed to be working under a contract of service with an employer and the principal shall be deemed to be that employer.
[34](1949) 79 CLR 389 (‘Humberstone’).
The phrase ‘independent trade or business’ does not appear in s 3(6). Nevertheless, Dixon J, in the course of a judgment in which he concluded that Mr Humberstone was an independent contractor rather than an employee, stated:
Clearly enough at the time of the accident the deceased was not conducting an independent trade or business and was not holding himself out as ready to carry goods for anyone but the respondents and it was very many years since he had done so.[35]
[35]Ibid 402.
The findings of fact which underpinned Dixon J’s conclusion that Mr Humberstone was not conducting an independent trade or business were as follows:
The deceased was licensed under s 14 of the Carriers and Inn keepers Act 1928 (Vict.) to carry on business as a carrier. He owned a two-ton truck the off-side door of which appears to have borne the inscription “K Humberstone Carrier 118 Blyth Street tare L.C. 17 cwt.” The name was that of the deceased and L.C. means licensed carrier. Many years before he had displayed a sign at 118 Blyth Street and apparently he had carried goods for anybody who hired him. But for a very long time, perhaps twenty-five years, his work had been substantially confined to carrying logs, timber and boxes for the respondents, the Northern Timber Mills. There had been probably a few occasions in that period when he did some particular job in the course of a return journey; but there was evidence that he had asked whether the respondents minded his taking a back load from one of their customers. No longer did he hold himself out as a carrier ready and willing to lift the goods of others. He had no telephone and he exhibited no business sign or advertisement. He attended at the premises of the respondents about half-past seven in the morning of every working day except Saturday. He took whatever load he was requested and delivered it at the destination to which it was consigned, though for a time he did not carry logs because he found the work too heavy for him. He was paid at a rate calculated upon the weight of the load and the distance it was carried. The amount due to him was made up weekly by the respondents from their records. He bore the cost of the petrol, though he obtained it from the respondents’ pumps, and he paid for the upkeep and licensing of his vehicle.[36]
[36]Ibid 400–401.
Although Dixon J did not expressly record a finding as to the meaning of the phrase ‘independent trade or business’, his Honour concluded that Mr Humberstone was not conducting an independent trade or business in circumstances where:
(i)He owned his own truck and bore the cost of petrol, maintenance and licensing of the vehicle;
(ii)He was paid at a rate calculated upon the weight of the load and the distance it was carried;
(iii)On a few occasions he earned income from a source other than Northern Timber Mills by doing cartage work on a return trip for a customer of Northern Timber Mills;
(iv)He did not hold himself out as a carrier ready to work for the world at large;
(v)He attended Northern Timber Mills premises every working day at 7.30 am;
(vi)He took whatever load he was requested to; and
(vii)He exhibited no business sign or advertisement, except for ‘K Humberstone Carrier 118 Blyth Street tare LC 17 cwt’ on the off-side door of his truck.
In concluding that Mr Humberstone was not conducting an independent trade or business Dixon J placed weight upon the fact that Mr Humberstone worked almost exclusively for Northern Timber Mills and did not hold himself out as being available to provide cartage services to anyone else. These considerations apply equally in the present case.
As regards the failure of CV to advertise its services to the world at large, I have taken into consideration the fact that the pool of potential customers was limited to the four other companies who provided satellite installation services to Foxtel. Plainly, the market for CV’s satellite installation services was much narrower than the potential market for a cartage contractor such as Mr Humberstone. Nevertheless, the four other companies who provided services to Foxtel were potential customers. The failure of CV to make any approach to these companies during the period it exclusively provided services to BSA, supports a finding that it was not conducting a business independent of BSA. The practical effect of the three month contractor availability period, combined with notice of work only being given at 6.00 pm on the previous evening, was to require exclusivity as between CV and BSA.
In Humberstone, the capital investment in a truck and the costs incurred in its upkeep were all matters which underpinned the court’s finding that Mr Humberstone was an independent contractor rather than an employee. However, those matters did not support a finding that, as an independent contractor, Mr Humberstone was carrying on a business which was independent of the business of Northern Timber Mills. The same observation may be made in respect of the capital investment which Mr Yoresh was required to undertake as a condition of providing services to BSA. That investment supports a finding that CV was conducting a satellite installation business. However, the capital investment does not, of itself or in combination with other evidence, support a finding that in providing services to BSA, CV was carrying on an independent trade or business.
Conclusion
In providing services to BSA pursuant to the 2012 contract CV was not carrying on an independent trade or business. BSA’s appeal must be dismissed. I shall provide the parties with the opportunity to make submissions on the costs of the proceeding.
SCHEDULE OF PARTIES
| No. S CI 2015 04703 | |
| BETWEEN: | |
| BSA LIMITED (ACN 088 412 748) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| TAL YORESH | Second Defendant |
| CLOUDLESS VISION PTY LTD (ACN 110 660 252) | Third Defendant |
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