Dupuy v Pearcedale Plant Hire Group Pty Ltd
[2023] VMC 16
•10 October 2023
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISIONCase No. L11748788
ANTHONY DUPUY Plaintiff v VICTORIAN WORKCOVER AUTHORITY First Defendant & PEARCEDALE PLANT HIRE GROUP PTY LTD Third Defendant
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MAGISTRATE:
Magistrate M A Hoare
WHERE HELD:
Melbourne
DATE OF HEARING:
8 & 11 September 2023
DATE OF DECISION:
10 October 2023
CASE MAY BE CITED AS:
Dupuy v Pearcedale Plant Hire Group Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:
[2023] VMC 16
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RULING
WORKERS COMPENSATION – ‘Worker’ – ‘Deemed worker’ – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3(1), cl 9 of Sched 1.
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APPEARANCES:
COUNSEL SOLICITORS For the Plaintiff Mr G. Pierorazio Arnold Thomas & Becker For the First Defendant Mr P. Trigar TG Legal + Technology For the Third Defendant Mr B. McKenzie Minter Ellison HER HONOUR:
Introduction
1Mr Dupuy, the plaintiff, now aged 56 years, has worked at different stages as a truck driver, a tow-truck driver and an owner/driver of tow-trucks and also in casual work such as security.
2In late 2015, Mr Dupuy and Pearcedale Plant Hire Group Pty Ltd (PPH), the third defendant, entered into an arrangement, via Mr Hender as the owner/director of PPH, involving Mr Dupuy performing work for PPH as a truck driver commencing in early 2016. He did that work for a period of about four months finishing up on 19 April 2016 (the work with PPH).
3Between 2011 and late 2013, Mr Dupuy had been employed as a tow-truck driver with AT Nominees Pty Ltd (now de-registered) (AT Nominees).
4The proceeding is brought in respect of the work with PPH under the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA) and/or his employment with AT Nominees under the Accident Compensation Act 1985 (ACA).[1]
[1]At an earlier stage, Mr Dupuy had discontinued his proceeding against Buchan Towing Pty Ltd (Buchan), the Second Defendant.
5As at the date of the hearing, by way of his Third Further Amended Statement of Claim dated 1 April 2022, Mr Dupuy sought declarations of liability for claimed permanent impairment benefits (IB) with respect to bilateral knee, neck and back conditions.[2]
[2]Additionally, as part of the proceeding, Mr Dupuy sought acceptance of liability against the First Defendant for total right hip replacement surgery.
6Firstly, Mr Dupuy seeks a declaration against the Victorian Workcover Authority (VWA)[3] with respect to liability pursuant to s 98C of the ACA for injury to the right knee arising out of or in the course of employment with AT Nominees.
[3]The VWA admits that it is liable for any liability of AT Nominees Pty Ltd (now de-registered) by reason of s 24 of the ACA and/or s 16 of the WIRCA.
7Secondly, Mr Dupuy seeks a declaration against PPH with respect to liability pursuant to s 211 of the WIRCA also for injury to the right knee as well as the left knee, back and neck arising out of or in the course of employment with PPH.
8However, in addition to denying any compensable injury, PPH also denied liability on the grounds that Mr Dupuy, when performing work for PPH, was not a worker nor a deemed worker within the meaning of the WIRCA.
9After discussions with Counsel, it was determined that the most convenient way for the hearing to proceed was for the ‘worker’/deemed worker question as against PPH to be the subject of a preliminary hearing and ruling.
10Mr Dupuy gave oral evidence on the preliminary issue as did two lay witnesses for PPH, the owner/director, Mr Hender and the office manager, Ms Harris (also the wife of Mr Hender).
Factual Background
11I will start by setting out matters not in dispute before turning to the evidence on contentious issues.
12Mr Dupuy has a registered ABN.[4] He has, at different times, worked as an employee under a contract of service and at other times as a contractor to a principal for the provision of services.
[4]Australian Business Name.
13Between 25 May 2015 and about 19 July 2015, Mr Dupuy had performed work as a tow-truck driver for Buchan. Whilst performing work for Buchan, he rendered invoices for work by the hour under the heading ‘Anthony Dupuy A.B.N. 22 353 017 628’ at a rate of $30 per hour.
14After finishing with Buchan, he acquired his own tow-truck (which was subject to finance). Between about mid-July and late 2015, he was a tow-truck owner/driver engaged by different entities. He rendered invoices using his ABN for work performed for various entities including: CSA Specialised Services (CSA) and UTA. Sometimes, invoices were provided in his own name ‘Anthony Dupuy’ and sometimes in the name ‘Towing Solutions’ although the ABN was the same and the business address was the same.
15Eventually, sometime in late 2015, he surrendered ownership of his tow-truck because of finance repayments being too onerous.
16PPH was in the business of building demolition and land-clearing.
17Via his work as a tow-truck driver, Mr Dupuy came to know Mr Hender (and Ms Harris). All three were in agreement they had a friendly or semi-social relationship extending over some years. That was both before and after the period of work with PPH in 2016.
18On a date towards the end of 2015, Mr Dupuy called into the PPH depot (which was also the residence of Mr Hender and Ms Harris) and chatted with Mr Hender about doing some work for PPH (the 2015 discussion). As it was almost the Christmas break, it was agreed he would start in the new year which he did on around 4 January 2016.
19From 4 January 2016, Mr Dupuy completed weekly time-sheets for each day of work in a book in the PPH office at the request of Ms Harris. The time-sheets recorded each day worked including the job-site and the start and finish times (the time-sheets).
20From 23 February 2016, also at the request of Ms Harris, Mr Dupuy started providing invoices to PPH (with a description of ‘Labour Hire’) under the heading ‘Anthony Dupuy A.B.N. 22 353 017 628’. They were invoices for work performed on dates from 17 February 2016 onwards (the PPH invoices).
Lodgement of the IB claim on PPH
21Some five years later, Mr Dupuy lodged on PPH an IB claim form dated 13 June 2021 which he had signed (the form having been completed by his solicitor). The form stated that the full duties performed for PPH were: ‘Driving a truck, getting in and out of a truck, using steps, opening and closing gates at the rear of the tip truck’.
22On 13 July 2021, text messages were exchanged between Mr Dupuy and Ms Harris (the text exchange) which commenced at 5:03 pm with Mr Dupuy writing: ‘Hi I told them no it is not happening I told them to pull the pin on I also told them I was a sub-contractor so it’s all good sorry about the phone call I got confused with what they where [sic] saying so sorry’.
23Ms Harris sent a very lengthy reply by text the same evening in which she expressed herself to be absolutely stunned and astounded by the claim against PPH and commenced: ‘There was no confusing that conversation with your solicitor…he said he will add our company to your claim…’.
Mr Dupuy’s Evidence
24When he was tow-truck driving for Buchan, he was driving their tow-trucks and paid an hourly rate of $30 based on his invoices.
25The 2015 discussion came about because Mr Dupuy was under financial stress and sick of never being paid, and so he asked Mr Hender whether PPH were looking for drivers.
26Under cross-examination, Mr Dupuy agreed the 2015 discussion included no mention of him being an employee of PPH. He had no awareness that PPH had about ten employees and three sub-contractors of which (it was put to him) he was one. There was no mention in the 2015 discussion regarding how long the arrangement would last.
27As for the work with PPH, Mr Dupuy’s evidence about that was as follows:
a.The agreed rate of pay was $30 an hour. That was the rate Mr Hender proposed and he had no input into that. There were no entitlements such as sick leave or annual leave. Mr Dupuy was responsible for paying income tax and superannuation contributions. He never received a pay-slip from PPH.
b.The work Mr Hender directed him to do was driving trucks to deliver and collect skips from building demolition sites and sometimes machinery such as bob-cats. He generally drove a skip-truck and sometimes a semi-trailer. The trucks he drove all had PPH signage.
c.Mr Dupuy was required to do the work allocated to him and he did not think he could have asked anybody else to do it.
d.He thought he was employed by PPH.
e.He did not think he could knock back or refuse work.
f.He did not think he could go and work elsewhere although that was never actually discussed. Under cross-examination, he agreed he probably could have worked elsewhere if time allowed.
g.As for the hours, the jobs were allocated by Mr Hender on the morning or sometimes by text message the night before. If he did not know where he was to go, he would turn up at the depot around 6:00 or 6:30 am and work until the job was done.
h.As for how he got paid, at the end of the day, he would fill out the time-sheet book in the office in which all staff wrote up their hours and where they had worked.
i.No uniform was provided by PPH and Mr Dupuy supplied his own ‘high-viz’ gear and boots.
28Under cross-examination, Mr Dupuy agreed that the first of the PPH invoices was described as ‘Invoice No 010’. However, he could not say to whom the previous nine invoices were provided nor as to work he was doing between the start of 2016 and 16 February 2016.
29As for why he began providing PPH with invoices for work from 17 February 2016, even though time-sheets showed he worked for PPH from 4 January 2016, it was because the work went on for longer. Up until then he had been just helping out.
30Also, in cross-examination regarding the PPH invoices, Mr Dupuy agreed the first of these (No 010) included GST and the rest did not. He initially did not recall, and then disagreed, that the reason just the first PPH invoice included GST was because Ms Harris checked and told him he was not in fact registered for GST.
31Under cross-examination, he agreed that the PPH invoices were consistent with him being a sub-contractor. He also agreed, under cross-examination, that he was providing truck-driving services for PPH and had also provided truck-driving services for prior employers and entities.
32As for the text exchange, under cross-examination, Mr Dupuy agreed he had stated he saw himself as a sub-contractor, however he later changed his view about that. He did consider himself as an employee of PPH because they paid him every week.
33Under cross-examination, in his individual tax return for financial year ending 30 June 2016 (FY16) Mr Dupuy agreed that he had declared his main salary or wage occupation as ‘truck-owner driver’. He had no idea as to the identity of the nominated payer’s ABN (90296467627) with respect to wages declared of $11,296 as he left all that up to his accountant. Additionally, he could not explain why the income from PPH was not declared in his FY16 tax return. He agreed his declared gross business income was $71,593.
34As for bank statements for FY16 (which were joint bank statements held with his wife), under cross-examination, Mr Dupuy could not explain some internet deposit amounts including some described as ‘internet wages’ although these were probably drawings from the Towing Solutions bank account. Deposits from Coles Supermarkets were his wife’s wages. He had previously explained everything to his lawyer or his wife (who did all the banking) could give exact details.
35The reason he ceased with PPH was because of increasing bilateral knee pain.
36Under cross-examination, Mr Dupuy agreed that after he finished up with PPH, he continued truck-driving including tow-truck driving for other entities and also did other types of work.
37The reasons Mr Dupuy had been reluctant to pursue an IB claim against PPH were: they had given him a job when he needed one; he was already injured; and pursuing the claim would be blaming them for the injury.
38As for the ‘security service’ work performed for Viplus, under cross-examination, that was casual work involving standing at the gate of the premises.
Ms Harris’ Evidence
39Ms Harris had been PPH’s office manager for over 20 years and had responsibility for payroll.
40In early 2016, PPH engaged both employees and sub-contractors. The same time-sheets were filled out by both employees and sub-contractors at her desk. She hand-wrote calculations on the time-sheets after they were filled in. The reason time-sheets were needed by PPH for both employees and sub-contractors was because the employees were also paid based on hours and an hourly rate.
41The employees’ pays were processed through a payroll software system which generated pay-slips setting out wages, tax deductions, leave accruals and so on.
42Mr Dupuy was never given a pay-slip by PPH because he was a sub-contractor. The sub-contractors such as Mr Dupuy were paid a flat hourly rate.
43She pointed out to Mr Dupuy after he submitted his first invoice that he was not actually registered for GST after she checked this herself. After that he had not included GST.
44Under cross-examination, Ms Harris agreed she was confused and upset by Mr Dupuy lodging the IB claim on PPH because he was not injured with PPH.
45Under cross-examination, Ms Harris agreed that between 4 January 2016 and 16 February 2016, PPH paid Mr Dupuy even though no invoices were provided. She asked Mr Dupuy for invoices after about six weeks because it started out informally to help out Mr Dupuy, however that could not continue without invoices.
46Under cross-examination, when it was put to Ms Harris that between 4 January 2016 and 16 February 2016 Mr Dupuy was an employee, she said she did not know what the arrangement was between her husband and Mr Dupuy.
47PPH generally had multiple demolition jobs on the go including those involving asbestos removal. Jobs needed to be sequenced with asbestos removal occurring before the demolition work could begin.
48The employees of PPH were either trained and registered asbestos removalists or licenced demolishers or both. Truck-drivers were generally sub-contractors and were used according to the location and number of jobs on the go.
Mr Hender’s Evidence
49Mr Hender had been the owner/director of PPH for over twenty years. He had nothing to do with payroll matters and left all that to his wife.
50As for the 2015 discussion, after Mr Dupuy asked for work as he had no money to support his family, Mr Hender offered him casual work to help him out. He could not recall the details of what was discussed such as the hourly rate. He was taken on as a ‘subbie’ on short notice just to help him out and was originally ‘off the books’. Then after a time invoices were needed as the arrangement was going on too long.
51As for the hourly rate of $30, that’s what PPH paid all their subbies at that time.
52In cross-examination, Mr Hender said that he would have told Mr Dupuy the rate which he accepted. Had Mr Dupuy tried to negotiate a higher rate, Mr Hender would have said they were only paying $30 because he decided the rate.
53As for the time-sheets, on the first date which was 4 January 2016, the hand-written entry for ‘Job Site’ was: ‘Tooradin. Mulch. In shed.’ That likely referred to Mr Dupuy being asked to repair the mulcher in the shed on PPH’s premises.
54As for what services Mr Dupuy was asked to provide, as a contractor he would do whatever he was asked to do on any given day. Most of the time he drove the skip-truck. Texts were sent out the night before, e.g., to be at this or that place. If Mr Dupuy did not want to do the job, PPH would put another driver into the truck. If there was no job for him, he was free to work for others or do what he liked.
55Very limited additional direction was given because Mr Dupuy was an experienced and professional truck driver.
56Under cross-examination, he agreed that any driver who was experienced would be given limited instructions. There was still someone from PPH onsite providing supervision of the work. He expected Mr Dupuy to turn up at 6:00 or 6:30 am the same as any other subbie if a text was sent the night before. Mr Dupuy could not get anybody else to do the work because it was him being asked to drive PPH’s trucks.
Analysis
57Regarding the work with PPH, Mr Dupuy had the burden of proof to establish that he was either a ‘worker’ within the meaning of the WIRCA or, alternatively, was a deemed worker for statutory purposes.
58It is convenient to deal firstly with the ‘worker’ question and to secondly consider the application of the deeming provisions.
Whether Mr Dupuy was a ‘worker’
59 Section 3 defines ‘worker’ to mean an individual –
(a) who—
(i) performs work for an employer; or
(ii) agrees with an employer to perform work — at the employer's direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise; or
(b) who is deemed to be a worker under this Act.
60 A corresponding definition in s 3 of ‘employer’ includes—
(a)a person—
(i)for whom a worker works; or
(ii)with whom a worker agrees to perform work— at the person's direction, instruction or request, whether under a contract of employment (whether express, implied oral or in writing) or otherwise; and
(b)a person who is deemed to be an employer under this Act; …
61I shall deal with submissions on behalf of the parties in the order in which they were presented.
(a) The case on behalf of PPH
62Mr Dupuy was not a ‘worker’ in accordance with common law indicia as set out in Elazac Pty Ltd v Shirreff (Elazac)[5] being:
[5][2011] VSCA 405 (‘Elazac’).
a.the degree of control;
b. whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
c. whether or not the person engaged can set their own hours of work;
d. the method of payment (and, in particular, whether payment is determined by hours of service or output or production);
e. whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
f. whether or not the person engaged employs employees and/or conducts his business in partnership;
g. whether or not there is a power to delegate (send someone else to perform the work); and
h. whether or not the person engaged considered the relationship as one of independent contractor.[6]
[6]Ibid [30].
63It was plain on the evidence, including contemporaneous documentary evidence, that the arrangements chosen by Mr Dupuy and PPH were that Mr Dupuy was not an employee of PPH.
64Although PPH required that time-sheets be completed by both its employees and sub-contractors, there was still a plain distinction in how the two classes of individuals were dealt with by PPH.
65Ms Harris’ evidence was that formal pay-slips were provided to employees setting out details of ‘wages’ and ‘holiday leave accruals’ as well as deductions for tax and superannuation. That contrasted with the PPH invoices provided by Mr Dupuy for work by the hour between 17 February 2016 and 19 April 2023 at the flat rate of $30 per hour.
66If the plaintiff sought to rely on the fact that he could not delegate the work to others, Mr Hender’s explanation about that was compelling. He said he would not be okay with, say, Mr Dupuy’s friend driving high-value trucks belonging to PPH, rather he was engaging Mr Dupuy as an experienced truck driver.
67As for the ‘control’ test, to the extent that Mr Hender did give direction to Mr Dupuy, such direction extended only to a basic instruction on where the job was to be carried out. That accorded with PPH’s need to sequence its operations as explained by Ms Harris in her evidence.
68In that regard, Counsel relied on what was said by the Court of Appeal about the ‘control’ test in Eastern Van Services Pty Ltd v Victorian Workcover Authority (Eastern Van)[7] as follows (citation omitted):
Although a measure of control is the hallmark of an employment relationship, it does not follow that principals are not able to maintain control over independent contractors without the contractual relationship becoming one of employment.[8]
[7][2020] VSCA 154 (‘Eastern Van’).
[8]Ibid [102].
69Mr Dupuy was quite free not to work if he chose and that was apparent from the time-sheets in which Mr Dupuy himself wrote ‘sick’ against some dates. There were dates on the time-sheets left blank which, according to Mr Hender, meant no work available.
70Similarly, Mr Dupuy gave evidence he was precluded from working for others apparently due to time constraints, however Mr Hender’s evidence should be preferred that Mr Dupuy had the option to work for others had he wanted to do so.
71That is consistent with a conclusion that Mr Dupuy was operating his own trade or business.
72The text message exchanges between Mr Dupuy and Ms Harris were highly significant as compelling evidence reflecting how the parties themselves regarded the arrangement. That is one of the indicia referred to in Elazac at paragraph (h).[9]
[9]Elazac [2011] VSCA 405 [30].
73Mr Dupuy’s assertion, at hearing, of not understanding the nature of the arrangement was implausible. That was evidence manufactured retrospectively in order to suit his case.
74Similarly, the way in which the plaintiff put his case shifted in the course of running his case. Initially, the case was opened on the basis that Mr Dupuy was employed from 17 February 2016 then it transpired the plaintiff relied on 4 January 2016 as being the first date of employment. That was apparently based on the time-sheets commencing on 4 January 2016 and PPH making payments into his bank account from 6 January 2016. Yet Mr Dupuy did not provide an invoice until 23 February 2016.
75Both Ms Harris and Mr Hender explained openly that the discrepancy was due to the engagement of Mr Dupuy expected to be short-term to help him out but, once it became more protracted, invoices were required.
76What is important was that at no stage was Mr Dupuy provided with pay-slips as PPH’s employees were.
77For these reasons, it was submitted Mr Dupuy failed to establish he was a worker in the common law sense.
(b) The case on behalf of Mr Dupuy
78It was telling that Mr Hender in evidence referred to offering Mr Dupuy ‘casual work’ rather than sub-contracting. Also, whilst it was acknowledged Mr Dupuy had in the text exchange with Ms Harris maintained he was a sub-contractor, his evidence should be accepted that he ultimately considered himself an employee of PPH.
79As for the weight to be given to how parties to an arrangement describe their relationship, that issue was considered recently by the High Court in CFMMEU v Personnel Contracting Pty Ltd (Personnel Contracting).[10] The plurality put it this way: ‘…that the parties have described their relationship a certain way cannot change the character of the relationship established by their rights and obligations’.[11]
[10][2022] HCA 1 (‘Personnel Contracting’).
[11]Ibid [79].
80It was the role of the Court to objectively evaluate all of the factors.
81In considering the evidence according to the Elazac indicia, it was accepted that the parties’ arrangement regarding Mr Dupuy taking care of his own tax and superannuation deductions was relevant, however that was only one of the factors to be considered.
82Of compelling significance in this case of the various Elazac indicia was: (b) whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services).
83The evidence supported the conclusion that Mr Dupuy was providing ‘work and skill’ as a truck-driver as opposed to supplying and operating equipment such as a tow-truck. Additionally, it was significant that, on Mr Hender’s evidence, Mr Dupuy performed tasks at the direction of Mr Hender that were ancillary to truck-driving such as mechanical repairs to a mulching machine, filling of skips and so on. Mr Dupuy did not employ others nor, on Mr Hender’s own evidence, could have delegated the work to others.
84Next, as for setting of hours, it was apparent on the evidence of the consistent start time (generally 6:30 am save for a few dates when he starts at 5:00 am according to the invoices) that Mr Dupuy was not free to pick and choose his own hours. Whilst the finish time was variable, the days were consistently of ten or more hours and work continued until such time the job was complete.
85Such was the blurring of lines regarding individuals hired by PPH that Ms Harris, on her own evidence, asked both employees and sub-contractors to complete time-sheets in precisely the same way.
86To the extent that Counsel for PPH relied on Eastern Van, the facts of that case, in which the totality of the agreement was in writing, reflected a wholly different scenario to this case and it was therefore distinguishable.
Consideration
87 In the present case, the arrangement between the parties arose out of a verbal chat at PPH’s depot yard between Mr Dupuy and Mr Hender in circumstances in which Mr Dupuy needed work and he was known to PPH, via Mr Hender, as an experienced truck-driver.
88 The facts of this case are, of course, quite different to the factual scenarios in either Eastern Van or Personnel Contracting. In each of those cases, parties had committed their relationships to a written contract. Nevertheless, both Counsel referred to the guidance in those cases provided by the Court of Appeal and the High Court respectively.
89 For the reasons that follow, I have concluded that Mr Dupuy was a ‘worker’ within the meaning of s 3 of the WIRCA during the period of the work with PPH. I have arrived at that conclusion for the following reasons, which are not set out in order of importance or significance.
90 Whilst not a determinative factor of itself, it is clear that the degree or extent of control remains an important consideration in an evaluation of the facts and circumstances.
91 In Eastern Van, the Court of Appeal, in observing that identifying ‘a bright line test' did not serve in deciding which side of the line a given set of facts fall, then went on to say (omitting citations):
It is perhaps useful to articulate in a broad sense the different nature of the two relationships. In a passage later endorsed by a majority of the High Court in Hollis v Vabu Pty Ltd, Windeyer J encapsulated that difference. He said that the distinction between an employee and an independent contractor is ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own’. [12]
[12]Eastern Van [2020] VSCA 154 [29].
92 In Personnel Contracting, in their joint judgement, Gageler and Gleeson JJ put it this way (omitting citations):
Where a continual relationship under which work is done by an individual in exchange for remuneration in fact exists, the characterisation of that relationship as one of employment or service, on the one hand, or as one of hirer and independent contractor, on the other hand, has long been understood to turn on one or other or both of two main overlapping considerations. The first is the extent of the control that the putative employer can be seen to have over how, where and when the putative employee does the work. The second is the extent to which the putative employee can be seen to work in his or her own business as distinct from the business of the putative employer. Factors relevant to that second consideration have been said to include, but not to be limited to, "the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee". A third consideration sometimes identified is perhaps little more than a variation of the second consideration: it is the extent to which the work done by the putative employee can be seen to be integrated into the business of the putative employer.[13]
[13]Personnel Contracting [2022] HCA 1 [113].
93 In my view, the weight of evidence in this case establishes that PPH, via Mr Hender, had the authority to give commands to Mr Dupuy over ‘how, where and when’ he was to do the work day to day including: where he was to go; and whether he was driving trucks or doing some ancillary task. For example, Mr Dupuy began the work for PPH on 4 January 2016 and on that date, according to Mr Hender’s evidence, he was directed to work in the shed fixing a mulcher. The evidence was that Mr Dupuy mostly drove skip-trucks but sometimes semi-trailers. Mr Hender himself said if help was needed onsite to fill a skip, he would do that.
94 Additionally, although limited direction about the task of truck-driving was required because he was an experienced truck driver, Mr Hender’s evidence was also clear that there was someone from PPH at all sites supervising the work overall.
95 On the types of tasks, Mr Hender’s evidence was that Mr Dupuy, ‘as a contractor’, did ‘whatever he was asked to do’. Whilst his evidence about Mr Dupuy doing whatever he was asked to do ‘as a contractor’ might have been somewhat self-serving, I find that Mr Dupuy did do whatever he was asked to do by PPH, via Mr Hender, with only limited autonomy.
96 The evidence was that Mr Hender would send Mr Dupuy a text message either on the morning or the evening before about where to go. Moreover, Mr Dupuy’s unchallenged evidence was that he would ‘just turn up at the depot’ at around 6:00 am unless there was a prior instruction to go somewhere else.
97 Counsel for PPH contended in submissions that there was no requirement to attend each day rather Mr Dupuy turned up for his own reasons which was because he wanted the work. It does not follow that because Mr Dupuy wanted to work, there was not an expectation on the part of PPH that he would come to work either at the depot or as directed to some other site.
98 To my mind, that there was, in large part, such an expectation on the part of both Mr Dupuy and PPH is borne out by the contemporaneous evidence of the time-sheets.
99 For the weeks from Monday 4 January 2016 to Tuesday 19 April 2016, Mr Dupuy worked ten or eleven hour days with PPH almost every weekday. Only very few weekdays are left blank or without any notation.
100 In January, a line is drawn through the Australia Day long weekend dates of Monday 25 and Tuesday 26 January. Otherwise there were only two dates left blank in January: Thursday 7, Monday 11.
101 In February, Mr Dupuy recorded work hours for PPH every weekday.
102 In March, on 1st March he notes ‘away’, the Labour Day public holiday is noted as ‘PH’ and the Easter public holidays for that year (Friday 25 and Monday 28). Otherwise Mr Dupuy worked every weekday except for three dates (9th to 11th) on which he records ‘away sick’.
103 In April, Mr Dupuy worked every weekday until his last date of work.
104 Contrary to the submission of Counsel for PPH, it seems to me that the very fact of recording of being sick and of public holidays points to the conclusion of a mutual expectation that Mr Dupuy would work for PPH unless specifically arranged or designated otherwise.
105 Next, as Counsel for Mr Dupuy submitted, what was being supplied by Mr Dupuy to PPH was his work and skill, as opposed to the supply of equipment (such a tow-truck or other truck) which he would drive or operate. The provision of work and skill, as opposed to the supplying of equipment or its performance, is a factor indicating the existence of an employer/employee relationship. That was notably in contrast to past arrangements Mr Dupuy had engaged in previously with other entities in the relevant period such as CSA and UTA.
106 I find that Mr Dupuy did not set his own hours of work to any real extent. Whilst there is some variation as to the precise start time, I also accept that it was implicit that PPH, via Mr Hender, expected Mr Dupuy to commence work most weekdays at around 6:30 am and to work all day until the work was completed. Whilst as I have observed, there were weekdays when he did not work for PPH, on almost every such day there was an explanation given. Moreover, the very nature of casual employment is that employees are rostered when required.
107 Certainly, there was no evidence that Mr Dupuy worked for any other entity during the period of work with PPH. Of course, in the modern work environment, exclusivity is not a compelling consideration against a conclusion that an employer/employee relationship existed. The High Court recognised that in Personnel Contracting, stating that it is ‘commonplace that casual employees do not work exclusively for one employer’.[14]
[14]Ibid [84].
108 With respect to the method of payment, the evidence was that Mr Dupuy was paid on time-sheets for hours of labour performed at a flat rate by the hour. That was the situation even after the invoices began to be provided at PPH’s request (and completion of time-sheets was still required). That was also how the invoices were prepared, being for ‘labour hire’, and how PPH paid him.
109 Payment was not calculated by any other method such as output, for example, per delivery in contrast to the earlier invoices provided to CSA, UTA etc (a matter to which I will return). In my opinion, that factor also points to the conclusion that Mr Dupuy was working in the business of PPH rather than in his own business. In other words, it points to an employer/employee relationship rather than to Mr Dupuy being a contractor.
110 On the other hand, as Counsel for PPH emphasised in submissions against a finding that Mr Dupuy was a worker, Mr Dupuy had responsibility for his own income tax and superannuation. There was no accrual of entitlements accrued. I accept the evidence of Ms Harris that this contrasted to other individuals who worked for PPH who were issued with payslips setting out tax deductions, leave accrual and superannuation payments.
111 However, that aspect is only one factor and not, of itself, conclusive of an arrangement being a contract for services rather than a contract of employment.
112 Additionally, in this case, there was another explanation regarding the two classes of individuals, those considered by PPH to be employees and those not. According to Ms Harris, the employees given payslips were specialised individuals holding licences and registration for asbestos removal and/or demolition.
113 Again, it is a matter of weighing the whole of the evidence. To my mind, Ms Harris’ evidence that he was a sub-contractor rather than an employee (because employees were given pay-slips and he was not) is not conclusive of itself. It does not mean that Mr Dupuy was nevertheless, objectively considered, an employee albeit a casual one.
114 Another matter of evidence was the inclusion of GST in the first PPH invoice (until Ms Harris pointed out that he was not registered) and that Mr Dupuy had similarly provided such invoices to other entities or principals such as Buchan prior to starting with PPH. Mr Dupuy made various concessions under cross-examination to that effect including that the PPH invoices were ‘consistent’ with him being a sub-contractor.
115 Pausing here, I found Mr Dupuy to be a credible and honest although unsophisticated witness who, as I have said, made numerous concessions against interest and generally answered questions directly and without embellishment. Whilst it is true he was vague and not particularly cooperative when questioned with rigor about his bank statements, I accept his explanation that it was a joint statement and he relied on his wife to do much of the banking. Indeed, his dismay regarding to the potential impact of his IB claim upon PPH, via Ms Harris and Mr Hender with whom he had enjoyed friendly relations, over some years, struck me as being entirely genuine.
116 It is convenient to also state here that I also found Ms Harris and Mr Hender to be credible and cooperative witnesses. Ms Harris’ confusion in response to Mr Dupuy’s IB claim being lodged in June 2021 was similarly genuine. Nevertheless, when it was put to her in cross-examination that Mr Dupuy was an employee, at least between 4 January and 16 February 2016 and in spite of the heated text exchange, she conceded she did not know what the arrangement was between Mr Dupuy and her husband.
117 Next, it is a matter of significance that Mr Dupuy did not employ others. Additionally, on the evidence of both Mr Dupuy and Mr Hender, there was no power to delegate (that is, for Mr Dupuy to arrange for somebody else to drive PPH’s trucks). Counsel for PPH submitted the reasoning for that related to the trucks being valuable assets of PPH. Mr Hender was adamant that Mr Dupuy could not arrange for ‘a friend’ to drive PPH’s trucks.
118 The final factor (h) listed in Elazac – whether or not the person engaged considered the relationship as one of independent contractor – is one relied upon by PPH given the content of the text exchange.
119 As Counsel pointed out, the High Court recently considered in Personnel Contracting the significance of the ‘label’ that parties choose to describe their relationships although that was, as I have stated, in the context of written contracts.[15] Whilst the facts of this case are, I have said, quite distinct to either that case or Eastern Van, the authorities are clear that the task of determining the legal character of a relationship is a matter for the court.
[15]Ibid [63]–[66].
120 In Personnel Contracting, Kiefel, Keane and Edelman JJ had this to say:
As a matter of principle, however, it is difficult to see how the expression by the parties of their opinion as to the character of their relationship can assist the court, whose task it is to characterise their relationship by reference to their rights and duties. Generally speaking, the opinion of the parties on a matter of law is irrelevant. Even if it be accepted that there may be cases where descriptive language chosen by the parties can shed light on the objective understanding of the operative provisions of their contract, the cases where the parties' description of their status or relationship will be helpful to the court in ascertaining their rights and duties will be rare.[16]
[16]Ibid [66].
121 To my mind, the parties descriptions are not helpful.
122 Pausing here, I have already referred to the dismay expressed on both sides in the text exchange and the guileless assertion by Mr Dupuy that he had ‘told them [his lawyers] he was a subcontractor’.
123Finally, in characterising the relationship and in applying the ‘multi-factorial test’, Kiefel CJ, Keane and Edelman referred to the need to ‘avoid the injustice of a mechanistic checklist approach’ and emphasised the ‘value of the "own business/employer's business" dichotomy in determining whether a person engaged to undertake work for another is an employee of that other’.[17]
[17]Ibid [34]–[36].
124To my mind, based on the weight of the matters of evidence to which I have referred, I conclude that Mr Dupuy was for the whole period of the work for PPH (from 4 January 2016 to 19 April 2016) engaged in serving in the business of, and performing work in the service of, PPH rather than in his own business carrying on a trade or business of his own.
125Weighing the whole of the evidence, I am satisfied that Mr Dupuy, in providing services to PPH, was not carrying on an independent trade or business for these reasons:
a.He had surrendered the tow-truck to a finance company and came to PPH, via Mr Hender, offering himself as a truck-driver.
b.There was no evidence of him advertising his services or offering his services to any other principal or entity after October 2015 and certainly during the period of work with PPH.
c.Even after 16 February 2016 when Mr Dupuy was invoicing PPH for ‘labour hire’ on an hourly basis, he was undertaking work in a way in which he was serving or integrated into the operations of PPH and ‘subject to the control or subordination’ by PPH, via Mr Hender (in the words of MacLeish JA) at his direction and under supervision on sites.
d.He employed nobody else and could not delegate the work to anybody else.
e.He was integrated into the business of PPH to the extent that: he would record to explain that he was sick or away; he drove PPH owned and identified trucks; and he ‘would just turn up’ at the depot every morning unless otherwise instructed.
126In my opinion that did not change in any substantive sense after 16 February 2023 when he started providing invoices at Ms Harris’ request.
127For these reasons, I conclude that Mr Dupuy was, pursuant to s 3 of the WIRCA, a worker throughout the period of the work for PPH.
128 Having made that finding, it is not strictly necessary to address the deeming provisions, however I shall do so briefly for completeness.
Whether Mr Dupuy was deemed ‘worker’
129The applicable provisions are contained in clause (cl) 9 of Schedule (Sched) 1 of the WIRCA. Cl 9 provides that if a contractor enters into a contractual arrangement with a principal for the provision of services is deemed to be an employee of the principal if:
a)The provisions of the services is not ancillary to the provision of materials or equipment; and
b)At least 80 per cent of the services are, or are to be provided by the same individual being, if the contractor is a body corporate, a director or employee of the body corporate; and
c)The gross income of the contract that is, or is to be, derived from the provision of the services is at least 80 per cent of the total gross income the contractor earned from the services of the same class provided by the contractor in the relevant period; and
d)In providing services to the principal, the contractor is not carrying on an independent trade or business.
130 Given the period of work with PPH fell within January to April 2016, there was consensus between Counsel that the ‘relevant period’ for the purposes of cl 9 was the full financial year in which the services were provided (FY16). That was based on the definition of ‘relevant period’ set out in cl 9(6)(a).
131 There was also no suggestion by either party that Mr Dupuy had provided ‘materials or equipment’ within the meaning of cl 9(1)(a).
132 I shall briefly outline with submissions of the parties.
(a)The case on behalf of PPH
133Other than the PPH invoices, Mr Dupuy’s pattern of invoicing for services performed under his ABN was the same as with PPH. If the plaintiff tried to contend that when driving tow-trucks, he invoiced under Towing Solutions (rather than Mr Dupuy) that did not explain his invoices under the name of Mr Dupuy when working for Buchan.
134Mr Dupuy gave vague and unsatisfactory evidence under cross-examination about matters such as deposits into his bank account claiming he ‘could not say’ what many of them were.
135As for calculations, Mr Dupuy fell well short of satisfying the 80/20 test on total business income of $71,593 for the relevant period. That was either whether the period of work with PPH was: for 04 January to 19 April 2016 (PPH gross income of $20,250) or 17 February 2016 to 19 April 2016 (PPH gross income of $9,390).
136Further, any contention for Mr Dupuy that his other gross income was not ‘earned from services of the same class…’ would be contrary to the evidence. Both Mr Dupuy and Mr Hender said the work with PPH was that of a truck-driver (skip-trucks and semi-trailers). Mr Dupuy might have done ancillary tasks like loading bins onsite. However, such activities did not take the work out of the ‘same class’ as the truck-driving performed for entities including Buchan, CSA, UTA and others.
137As for the Viplus invoices, casual security service work was of the ‘same class’ overall as other casual labour such as truck-driving.
138 Mr Dupuy therefore failed to satisfy the ‘deemed worker’ test.
(b)The case on behalf of Mr Dupuy
139It was clear that, when engaged by entities as a tow-truck driver in the period from mid-July to late 2015, Mr Dupuy was both providing and operating the tow-truck. Those services were of a quite different ‘class’ of services to that for PPH in which he turns up to drive their trucks and perform labour such as machinery repairs and so on.
140Additionally, the services for Viplus being ‘security service’ were plainly not of the same ‘class’ of services as truck-driving. The nature of the work needed to be considered and those two activities were entirely distinct.
141It followed that, on the evidence, 100 per cent of the ‘same class’ of services (truck-driving) performed in the ‘relevant period’ of FY16 was truck-driving for PPH whether that was 04 January 2016 to 19 April 2016 (gross income of $20,250) or 17 February 2016 to 19 April 2016 (gross income of $9,390).
142Cl 9 applied given the incontrovertible conclusion that Mr Dupuy was not carrying on an independent trade or business within the meaning of sub-clause (2).
143Accordingly, if the court did not find that Mr Dupuy was a worker in the common law sense, he satisfied the requirements of cl 9 and was a deemed worker.
Consideration
144As I have already concluded, the contractual arrangement between PPH, via Mr Hender, and Mr Dupuy was that he would drive, as directed, the trucks owned and operated by PPH in the course of its demolition and asbestos removal business.
145Based on the matters of evidence previously outlined that support my findings on the ‘worker’ question, I state again my conclusion that, as regards the contractual arrangement with PPH, Mr Dupuy was not ‘carrying on an independent trade or business’ under cl 9(2). Cl 9 therefore applies should Mr Dupuy be found to meet the other criteria.
146The evidence was that Mr Dupuy was the ‘same individual’ being the contractor performing services in the relevant period of FY16 irrespective of whether the invoices nominated Mr Dupuy or Towing Solutions. On that basis, there is no doubt in my opinion that in the relevant period at least 80 per cent of the services were provided by Mr Dupuy.
147In any event, I find that the work performed with PPH was not of the ‘same class’ as that of the provision of services as a tow-truck owner/driver under the business name of ‘Towing Solutions’ based on these reasons:
a. As a tow-truck owner/driver, he was both providing and driving the vehicle being the tow-truck and the specialist nature of operating a tow-truck which requires certification.
b. The invoices provided to most of the principals (other than Buchan) such as UTA, Thomson Civil and others were not by the hour, but rather for the job undertaken, for example:
·For CSA: ‘15/7/15 Picked up CSA13 5 tonne excavator and deliver 17 Hartnet Dr Seaford’; ‘19/8/15 Order No. 1993 Picked up shipping container from Royal wolf in Sunshine and delivered to Pascall Rd Seaford’.
·For UTA: ‘10/8/15 delivery of 2 trailers to Toowoomba from Melbourne’.
·for Thomson Civil: on 4/10/15, ‘Pick up and delivery of 20 foot container, from Clayton to Yea and return’.
148Additionally, I agree with the submission of Mr Dupuy’s Counsel that his provision of security services to Viplus was of a quite distinct nature to the work performed for PPH both in terms of the task and also the engagement. On one of the Viplus invoices, Mr Dupuy invoiced Viplus for two persons. I therefore prefer the submissions of Counsel for Mr Dupuy on this question.
149The work with Buchan was closest to being of the ‘same class of services’ in the sense that he was a driver of trucks owned by the principal. However, on balance I find it was not of the ‘same class of services’. First, he was driving and operating tow-trucks which I have found is of a different nature to other trucks. Secondly, the Buchan invoices, whilst calculated based on an hourly rate, importantly in my view, describe invoicing the principal for specific jobs, deliveries and services (unlike for PPH which simply state ‘labour hire’).
150In any event, even if I am wrong about the Buchan work not being of the ‘same class of services’, there was no evidence of jobs performed for Buchan within the relevant period beyond 19 July 2016. That amounts to less than three weeks.
151Accordingly, for these reasons, it follows that Mr Dupuy satisfies the 80/20 test for income based on the earnings from PPH.
Conclusion
152 Accordingly, the plaintiff is successful with respect to the preliminary question as against PPH. He has discharged the burden of proof in relation to being a worker within the meaning of the WIRCA. In the alternative, he also established he would otherwise be deemed as a worker under cl 9.
153 I shall hear from the parties as to proposed orders regarding conduct of the balance of the proceeding or any ancillary orders.
MAGISTRATE HOARE
10 October 2023
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