Coyne v Ansett Transport Industries

[1996] IRCA 448

DECISION NO: 448/96

IN THE INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )      No. WI 96/1348
WESTERN AUSTRALIA DISTRICT REGISTRY)

ON APPEAL FROM A SINGLE JUDGE OF THE
          INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN:  COLLEEN HAYDEN

Applicant

AND:VICKI BROND

Respondent

CORAM:    WILCOX CJ, RYAN and MOORE JJ
PLACE:    SYDNEY (HEARD BY VIDEO-LINK WITH PERTH)
DATE:     2 SEPTEMBER 1996

EXTEMPORE REASONS FOR JUDGMENT

WILCOX CJ:   This is an appeal from a decision of Madgwick J.  He held that it had not been established that there was a relationship of employee and employer between the applicant, Colleen Hayden, and the respondent, Vicki Brond.  His Honour analysed the evidence as to the way in which the applicant came to be involved in selling copies of the "Sunday Times" each Saturday night, as to the work that she did and as to the role played by Ms Brond.  I do not wish to repeat that analysis.  It seems to me inescapable that his Honour was correct in holding that there was no satisfactory proof of an employee/employer relationship.  If Ms Hayden was employed by anybody, it was probably by the "Sunday Times"; but it may be that the true position is that she was an independent contractor for the "Sunday Times".  It is not necessary to determine that matter because the only material question for us is whether she was an employee of Ms Brond. 

I think it is significant that the "Sunday Times" was involved in arrangements.  It appears that anybody who wished to become a paper seller normally contacted the "Sunday Times'" circulation department.  Officers of that department determined whether there was an available vacancy and, no doubt in conjunction with the relevant area supervisor, determined whether to fill the vacancy and, if so, whether by a particular applicant.  Ms Brond was an area supervisor.  His Honour said in his judgment that the parties "seem to agree" that ultimately staff in the circulation department of the "Sunday Times" determined who might be a paper seller.  As I understand what we were told today that statement remains true. 

It is also significant, in my opinion, that Ms Brond was not carrying on an enterprise on her own account.  She was simply paid a specific dollar sum, rather than a sum calculated by reference to the number of papers sold, in respect of the work she did.  This work involved supervising the distribution of papers to the sellers in her area every Saturday night and their return of unsold papers and the proceeds of sale, less their fee of 25 cents per paper.  Ms Brond returned the unsold papers to the "Sunday Times" and paid to the newspaper by money order the whole of the amount she had collected from the paper sellers in her area, less her agreed fee. 

I think the true analysis of the matter is that the "Sunday Times" was ultimately responsible for the distribution of the paper; but, as a matter of administrative convenience, it employed people in the position of Ms Brond to supervise selling in particular areas.  As I say, it is not necessary to determine what was the correct legal analysis of the relationship between the applicant and the "Sunday Times"; it appears to be quite clear, on what we have been told, that there was no relationship of employer and employee between the present parties.

Accordingly, I think the primary judge was correct in holding that the applicant must fail.  In saying that, I emphasise that his Honour did not go into the merits of the claim brought by the applicant, in the sense of whether or not she was harshly treated or there was any justification for the termination of her relationship.  His Honour did not need to deal with those matters.  It is obvious, from what he said, that he had some sympathy with the applicant in relation to the termination of the relationship, for reasons that were given.  Likewise, I do not need to go into that matter.  I say nothing about the merits.  We are concerned with a purely legal question, and a fairly technical one at that, on which, in my opinion, the applicant must fail.

In my view, the primary judge was correct in dismissing the application.  I would dismiss the appeal. 

RYAN J:   I agree that there are several matters which point to Ms Hayden having been an independent contractor, despite a degree of control having been exercised by Mr and Ms Brond or through them by the "Sunday Times".  That degree of control I regard as directed only to ensuring an effective and harmonious distribution of the relevant sales territory between the various sellers.  One potent indicator that Ms Hayden was not an employee of Mr and Ms Brond is that when her son gave up the former seller's stand which he had been allocated, his mother was able to take up the substitute stand in his place without reference to, or obtaining any approval from, Mr and Ms Brond.  For these reasons, as well as those explained by the Chief Justice, I would dismiss the appeal.

MOORE J: I also would dismiss the appeal. I do so on a slightly narrower basis. The proceedings were brought under s. 170EA of the Industrial Relations Act.  The applicant, Ms Hayden, commenced the proceedings against Ms Brond only.  It is necessary for Ms Hayden to establish that there was, between her and the party against whom the proceedings were brought, a relationship which sustains the conclusion that Ms Brond was her employer.  The facts that colour the relationship between them are, at best, obscure to the extent that there is any material pointing to the identity of the relationship between Ms Hayden and Ms Brond.  In my view, for the reasons given both by the Chief Justice and Ryan J, they tend to point to the relationship being one of independent contractor and not that of employee and employer. 

In my view, the trial judge was correct in reaching the conclusion he did, namely, that the application should be dismissed.  Accordingly, I would dismiss the appeal.

WILCOX CJ:  The order of the court will be that the appeal be dismissed.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of the members of the Court.

Associate:

Dated:     2 September 1996

APPEARANCES

Both parties appeared in person

Date of hearing:  2 September 1996