Hazell v Sewell

[2020] FCCA 2446

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAZELL v SEWELL

[2020] FCCA 2446

Catchwords:

INDUSTRIAL LAW –Whether a DJ is an employee or an independent contractor – where the Applicant is found to be a casual employee of the respondent – where the applicant’s employment is not covered by the Live Performance Award 2010.

Legislation:

Fair Work Act 2009 (Cth), ss.46, 47, 48

Live Performance Award 2010 [MA000081], cls.4.1, 24.6, 28.2, B.7.2, B.9.3.

Cases cited:

Abdalla v Viewdaze Pty Ltd t/as Malta Travel [2003] 53 ATR 30; 122 IR 215

ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532

ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146

Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385

Climaze Holding Pty Ltd v Dyson (1995) 13 WAR 487

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806

Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696

Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201

Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621

Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346

Federal Commissioner of Taxation v Barrett [1973] HCA 49; (1973) 129 CLR 395

Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939

Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21

Humberstone v Northern Timber Mills (1949) 79 CLR 389

Jensen v Cultural Infusion (Int) Pty Ltd [2018] FCCA 2137; (2018) 337 FLR 191

Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307; (2011) 215 IR 235

Kucks v CSR Limited (1996) 66 IR 182

Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200

Massey v Crown Life Insurance Co [1978] 2 All ER 576

Media, Entertainment and Arts Alliance [2010] FWAFB 299

Moffet v Dental Corporation Pty Ltd [2019] FCA 344; (2019) 286 IR 21

On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) [2011] FCA 366; (2011) 214 FCR 82

Queensland Stations v Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539

Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16

Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46

Transport Workers Union of Australia v Linfox Pty Limited [2014] FCA 829

Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934

Zuijs v Wirth Bros Pty Ltd [1955] HCA 73; (1955) 93 CLR 561

Applicant:

JULIAN HAZELL

Respondent:

ANTHONY JAMES SEWELL

File Number:

SYG 335 of 2019

Judgment of:

Judge Altobelli

Hearing date:

11 August 2020

Date of Last Submission:

11 August 2020

Delivered at:

Wollongong

Delivered on:

11 September 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams videoconference

Solicitors for the Respondent:

Sparke Helmore Lawyers

ORDERS

(1)     The Application and Statement of Claim filed 15 February 2019 be dismissed.

(2)     All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

1. FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT Wollongong

SYG 335 of 2019

Julian Hazell

Applicant

And

Anthony James Sewell

Respondent

REASONS FOR JUDGMENT

Introduction

1.      These Reasons for Judgment explain the Orders that the Court has made in a dispute between the Applicant and the Respondent that arose in the following circumstances.  The Applicant worked as a DJ (or ‘disc jockey’) for the Respondent, in the Respondent’s business known as Mobile Millennium DJs, in the period 2 October 2010 to 29 September 2018.  The Applicant contends that he was engaged as a casual DJ pursuant to the provisions of the Live Performance Award 2010 [MA000081] (hereafter also referred to as ‘the Award’) under the classification of Live Performance Employee level 9 - Performer Category 2. The Respondent contends that at all relevant times the Applicant was engaged as an independent contractor. The Applicant seeks financial remedies for the underpayment of wages and civil penalties for breaches of the Fair Work Act 2009 (Cth) (hereafter referred to as ‘the Act’). The Respondent denies that any such payments are due to the Applicant.

2.      Pursuant to consent Orders made on 13 May 2019, the parties and the Court agreed that the proceedings would be dealt with in two stages.  In the first stage, that is covered by the present Judgment, the Court would adjudicate on whether the Applicant was an employee, or an independent contractor.  If the Court found that the Applicant was an employee, the Court would determine whether his employment was covered by the Live Performance Award 2010.  The second stage of the proceedings would only arise if the Court found that the Live Performance Award 2010 applied, and the Court would then determine the issue of any entitlement of the Applicant. It must follow that if the Court finds that the Applicant’s employment was not covered by the Award, his claim as presently pleaded would be dismissed.

3.      These Reasons for Judgment set out the Court’s reasons for determining that the Applicant was an employee of the Respondent, but his employment was not covered by the Live Performance Award 2010.

Background

4.      These background facts are non-contentious.  Since 2000 or 2001, the Respondent, as a sole trader, operated a small business known as Mobile Millennium DJs, a mobile disc jockey business that operated in the Newcastle and Hunter region.  The business provides mobile DJ services, and other related services such as provision of a Master of Ceremonies and lighting and photo booths, at a range of different events including weddings, engagement parties, school formals, and parties.  There was an issue in evidence, to be discussed below, about whether the business also provided services to members of the public.

5.      It was not until 2018 that the Applicant first alleged that he was an employee of the Respondent, and not an independent contractor.

The evidence before the Court

6.      In the Applicant’s case, he relied on the following documents:

a)        Application – Fair Work Division filed 15 February 2019;

b)        Statement of Claim filed 15 February 2019;

c)        Affidavit of Julian Lyle Hazell affirmed and filed 6 December 2019;

d)        Affidavit of Julian Lyle Hazell affirmed 10 October 2019 and filed 11 October 2019;

e)        Case outline document received 13 March 2020.

f)        Updated written submissions received 7 August 2020; and

7.      In the Respondent’s case, he relied on the following documents:

a)        Response filed 4 April 2019;

b)        Defence filed 4 April 2019;

c)        Affidavit of Anthony James Sewell filed affirmed 14 November 2019 and filed 15 November 2019;

d)        Affidavit of Anthony James Sewell (medical) affirmed 14 November 2019 and filed 15 November 2019; and

e)        Case outline document filed 13 March 2020.

The applicable law

8.      The Applicant accepted the statement of relevant legal principles as set out in paragraphs 9-11 of the Respondent’s Case Outline document filed 13 February 2020.  The Court agrees that it is a helpful, succinct statement of the relevant legal principles.  Paragraphs 9-11 are reproduced:

[9] There is no single test to apply to determine whether a relationship is one of employment. Formerly, the law looked to the question of “control”. Now, a “multi-factorial” approach is adopted, requiring an assessment of the totality of the relationship. The existence of control, whilst significant, is now not the sole criterion by which to gauge whether a relationship is one of employment. Other relevant matters or indicia include, but are not 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, the delegation of work by the person engaged, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged, work involving a profession, trade or distinct calling on the part of the person engaged, the provision by the person engaged of their own equipment, the creation of goodwill or saleable assets in the course of the person’s work and the payment by the person engaged from their remuneration of business expenses of any significant proportion: Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 (Brodribb) per Mason at 24 and per Wilson and Dawson JJ at 36-37 (approved by the majority in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 (Hollis v Vabu) at 41). In addition to the indicia provided in Brodribb above, the Australian Industrial Relations Commission in Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 at 228-231 reviewed the authorities and provided a summary of the relevant principles and indicia.

[10] This “modern approach” of assessing the totality of the relationship is not without its difficulties. The question is not to be resolved by a mechanical reference or application of a “check list” of considerations: Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 per Mummery J at 944. In other words, it is not a box-checking exercise: Moffet v Dental Corporation Pty Ltd [2019] FCA 344; (2019) 286 IR 21 (Moffet) per Flick J at [10]. Not all of the accepted indicia provide a relevant test in all circumstances, none of the indicia is conclusive on its own and the relevance and weight of the indicia vary according to the circumstances: Brodribb per Wilson and Dawson JJ at 35.

[11] The principal question is not to force a person into one category or another but rather to determine whether the person is an “employee” or not: Moffet per Flick J at [10].

The Hearing

9.      The Hearing took place on 11 August 2020 following a number of unfortunate delays primarily attributable to the workload of the Court.  The Applicant represented himself.  He presented as a highly intelligent and articulate person.  It is likely that he had the benefit of legal assistance in preparation for the Hearing.  He was represented at an earlier stage in the proceedings and his Statement of Claim was prepared by Counsel.

10.    The Respondent was represented by his solicitor, Mr Burke.  The Applicant was cross-examined by Mr Burke.  The Respondent was cross-examined by the Applicant.

11.    There are no relevant credit issues in this case.  Both parties gave their evidence to the best of their ability, without embellishment, and honestly.  In the cross-examination of the Respondent it became apparent that a number of statements in his Affidavit were incorrect.  The Court is satisfied, however, that these were innocent mistakes on his part.

Was the Applicant an employee or an independent contractor?

12.    The submissions made in the Applicant’s case on this issue are succinctly stated in section 4 of his case outline document.  The Court can do no better than to reproduce these submissions.  They commence at page 2 of the case outline document and conclude at page 8 (footnotes included):

Indicators that Hazell was an employee of Sewell’s:

A - Hazell was not operating a DJ business separate to MMDJs

•         Hazell had not worked as a DJ before;

•         Hazell did not have any qualifications or skills relating to DJ work or operating a business;

•         Hazell’s ABN was registered to provide different services;

•         Sewell provided an invoice template to use;

•         Sewell edited invoices and paid Hazell the changed amount;

•         Hazell did not have a registered business name;

•         Hazell did not advertise DJ services;

•         Hazell did not own the necessary equipment, music, DJ software, licenses or insurance to provide the same DJ services directly to customers;

B - Hazell operated in the MMDJs business as a representative of MMDJs

•         The DJ services and optional extras which Hazell provided are the primary function of MMDJs;

•         MMDJs hired multiple DJs under the same terms as Hazell and the rates of pay were standard across the business;

•         Hazell’s engagement to provide DJ services for MMDJs was an ongoing working relationship with rostering occurring months in advance over an eight year period;

•         MMDJs determined what services and additional extras were available to customers and the price for each of these services;

•         The customers Hazell provided DJ services for were customers of MMDJs and not Hazell;

•         Customers were given a login to the MMDJs website to complete all their planning forms and request lists;

•         Customer reviews of services provided by Hazell were done through the client’s MMDJs website login. The completed surveys are displayed on the MMDJs website publicly with Hazell listed as ‘Event Staff’;

•         Posts on the MMDJs Facebook page represented Hazell as an emanation of the MMDJs business;

•         All customer complaints were made to MMDJs not to Hazell;

•         Hazell was required to give out MMDJs business cards at events;

•         Hazell collected money on behalf of MMDJs from clients in an MMDJs branded envelop.

C - Sewell had the right to and exercised significant control over where and when Hazell worked

•         Sewell rostered Hazell to events at specific locations and specific times;

•         Sewell would change Hazell’s assignment to events without notice and had the right to remove Hazell from events entirely;

•         Hazell was required to attend the MMDJs storage sheds to collect and return equipment for each event;

•         Hazell was directed by Sewell to arrive at events one hour before the designated music start time;

•         Hazell was required to submit time-off requests into Ewebmin when he did not want to work;

•         Sewell decided whether to approve these requests or not;

•         On occasion Sewell ignored already approved time-off requests and rostered Hazell to work;

•         When Sewell did not approve the requests, Hazell worked at the events personally.

D - Sewell had the right to and exercised significant control over how Hazell performed the work

•         Sewell trained Hazell in how to provide DJ services including additional instructions on how to interact with guests/venue staff and what to wear to events. Many of these instructions were made again via email;

•         Sewell provided the planning forms and song request lists to Hazell for each event;

•         Sewell directed Hazell to collect money from customers on behalf of MMDJs and instructed him on how to do this;

•         Sewell directed Hazell to train other DJs for MMDJs and instructed Hazell to do this in the same manner he had trained Hazell;

•         Sewell directed Hazell to provide MC services and provided a how to MC guide;

•         Sewell directed Hazell to setup additional lighting/effect fixtures at events and trained Hazell in their use; and

•         As per point B above, Sewell decided what services and additional extras were available for purchase by the customers that Hazell would provide.

E - Sewell provided all necessary DJ equipment, DJ software and music for Hazell to perform the work

•         From October 2010 to October 2012, Sewell provided all equipment necessary for every event Hazell worked as a DJ;

•         Sewell was responsible for the maintenance and replacement of any equipment of his Hazell used;

•         Sewell provided the equipment necessary to provide any additional services booked (eg. Uplights, Gobo projectors, and other addon’s);

•         Hazell was not required to purchase or provide any DJ equipment to work as a DJ for MMDJs and did not receive more pay for doing so;

•         When Hazell did provide some DJ equipment (a DJ controller and laptop from October 2012), Sewell ensured all necessary equipment was still available for Hazell to use;

•         Hazell was only able to use his DJ Controller and laptop at events because Sewell provided a copy of the DJ software and his music database to Hazell’s laptop;

•         When Hazell’s equipment failed at an event, Sewell attended the event and provided replacements;

•         Hazell did not need to repair or replace his faulty equipment to continue his DJ work for MMDJs.

F - Hazell was required to perform work personally and could not subcontract or delegate the work

•         The job ad and ‘application for employment’ form both contained questions about personal availability and personal qualities;

•         Hazell was required to attend an interview and training to determine his personal suitability for the role;

•         Sewell sent emails to Hazell reiterating the expectation that he perform the work personally;

•         Hazell performed all the events he was rostered to for MMDJs personally including all occasions when his time-off requests were not approved or were ignored by Sewell.

G – Hazell did not require a profession, trade or distinct calling to perform the work

•         Hazell was not required to have (and did not have) any qualifications, distinct skills or prior experience related to DJ work;

H – All goodwill generated by Hazell’s work for MMDJs was attributed to MMDJs

•         As per point C above, Hazell was presented to customers, potential customers and the general public as a representative of MMDJs;

•         Hazell gave out MMDJs business cards or referred people to the MMDJs website at events to anyone enquiring about DJ services;

•         Positive customer reviews received for Hazell’s work were published on the MMDJs website (a total of 67 as of 10/10/2019);

•         MMDJs used Hazell’s work to advertise the business on their Facebook page;

•         MMDJs received awards from the Australian Bridal Industry Awards (ABIA) during the period Hazell worked at weddings for MMDJs and used these to promote the business;

•         As per point A above, Hazell did not advertise his services or own a registered business name to attach any goodwill to;

I – Hazell did not spend a significant portion of his remuneration on business expenses

•         From 2013-2017, Hazell did not claim any business expenses in his annual tax returns;

•         2017-2018, Hazell claimed only $305 as business expenses;⁵²

•         Hazell did not claim any expenses related to the use of his car as it was owned prior to working for MMDJs and used primarily for personal use;

•         Where Hazell was required to drive significant distances, he received additional pay to cover the cost of fuel;

Neutral indicators that do not indicate whether Hazell was an employee of Sewell’s or a contractor:

A – Some of Hazell’s remuneration was made with reference to time worked while some was made with reference to completion of tasks

•         Hazell was paid a fixed fee for up to 5 hour events (or 4 hours for school formals) with additional pay for time spent beyond this. This coincides with the structure of payment in the Award for performers with a fixed rate for up to a 3 hour performance and a half hourly rate for longer performances;

•         Hazell was paid with reference to completion of tasks for other additional extras (MC work and uplighting), however, these additional extras were added later (2012 and 2016 respectively), Hazell did not initially receive additional pay for MC work and the pay for uplighting was determined by an estimate of the amount of time it took to set up the differing amounts of lights;

•         In the modern economy where many employees are paid with reference to completion of tasks (such as commissions) and many contractors are paid based on the time they work, this point has reduced relevance;

Indicators that Hazell was an independent contractor:

A – both parties recognised the engagement as an independent contracting arrangement

•         It has been recognised and well established in relevant case law that parties cannot alter the true nature of their relationship by putting a different label on it;

•         If, after considering all other indicia/matters, the relationship is still ambiguous, then the parties can remove the ambiguity through the agreement they made.  As such, this indicator should only be considered if it is still unclear once all other indicators have been considered.

B – Hazell submitted invoices and quoted an ABN to receive payment

•         This is a direct result of point A above and is an indicator of the parties’ understandings not an indicator of the relationship itself;

•         Hazell provided invoices and quoted his ABN, using an invoice template provided by Sewell, because he was told to do so by Sewell;

C – Sewell did not withhold tax from any payments to Hazell

•         This is a direct result of point A above and is an indicator of the parties’ understandings not an indicator of the relationship itself;

•         Hazell earnt less than the tax-free threshold at all times he worked for Sewell such that tax would not have been withheld even if Hazell was classified as an employee.

D – Sewell did not pay Hazell any other entitlements (sick leave, annual leave, etc.)

•         This is a direct result of point A above and is an indicator of the parties’ understandings not an indicator of the relationship itself;

•         Since Hazell was engaged on a casual basis, he would not have been entitled to these payments even if he was classified as an employee.

E – Hazell was entitled to work for others

•         Hazell was engaged casually by MMDJs. Casual employees are free to work for multiple employers, including within the same industry, which many casual employees do;

•         While entitled to do so, Hazell’s right to work for others was restricted by needing to submit time-off requests to Sewell which Sewell could choose not to approve;^{25, 26, 27,28}

•         When Hazell worked for others (for Bogan Bingo Entertainment from March 2018), he submitted time-off requests through Ewebmin and waited for Sewell to approve them before accepting the work;

•         The job ad highlighted the importance of availability on weekend nights (Fri-Sun). Had Hazell already been working as a DJ for others, it would have reduced his availability and made him a less ideal candidate for the role.

13.    The Court makes the following observations about these submissions, having regard to the evidence.

14.    Whilst the Applicant did not have his own equipment when he first started with the Respondent, he subsequently did acquire his own equipment and used the same.

15.    The Applicant contends that he could not subcontract or delegate the work, but in fact never asked or in fact sought to subcontract or delegate.

16.    The Court notes that even the Applicant has, quite correctly, recognised that at inception the parties described their arrangement as an independent contract.

17.    The submissions made on behalf of the Respondent on this issue are found at paragraphs 13-43 of the Respondent’s case outline.  These submissions are reproduced below:

Intention of parties

[13] In addressing that ultimate question, it is always important to pay close regard to the way in which the parties have characterised their relationship. The ‘label’ which the parties themselves place on their relationship is relevant but not conclusive. The parties cannot deem the character of their relationship to be something it is not. However, when the competing indicia are reasonably evenly balanced, the parties’ own understanding of their relationship may be decisive: Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 per White J at [75]; Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 389. If the parties’ relationship is ambiguous and is capable of being one or the other, then the parties can remove that ambiguity, by the very agreement itself which they make with one another: Massey v Crown Life Insurance Co [1978] 2 All ER 576 per Denning LJ at 679.

[14] It is accepted by both parties that, while there was no written document covering the terms of the engagement (AS at [28]; JH1 at [14]), prior to September 2018 it was their mutual understanding that Mr Hazell was engaged as an independent contractor of MMDJs: AS at [25] and [27]; JH1 at [187]. This is supported by the fact that Mr Hazell was required to hold an ABN and submit tax invoices for services he provided: AS at [26], [28] and [30]; JH1 at [46] and [135]. The Respondent submits that in the event the nature of the relationship between Mr Hazell and Mr Sewell is ambiguous after all the relevant indicia are considered, then the mutual understanding of the parties and their agreement at commencement of their relationship provides clear evidence of their intention to enter into a relationship of principal and contractor.

Control – when work is performed

[15] The importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it: Zuijs v Wirth Bros Pty Ltd [1955] HCA 73; (1955) 93 CLR 561 at 571; Federal Commissioner of Taxation v Barrett [1973] HCA 49 (1973) 129 CLR 395 at 402; Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404. Generally expressed obligations to co-operate, to turn up for work at a nominated hour, and to work safely, competently and diligently, do not vest in the principal a right to control or direct the way in which particular work is carried out from time to time or to obey any other lawful orders: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2019] FCA 1806 (CFMMEU v Personnel) at [137].

[16] Mr Hazell had ultimate control over when he was available to provide services and he had a genuine and practical entitlement to perform work for, and provide services to, others during his engagement with MMDJ, which he exercised: AS at [79]. When Mr Hazell was unavailable, he was requested to notify Mr Sewell of such periods, so he wouldn’t be rostered to events for that period: AS at [34]; JH1 at [108]. As a sole trader running a small business, Mr Sewell on infrequent occasions had to ask Mr Hazell to provide services at events he had been rostered on to and was later unavailable on or on days he had advised he was unavailable in order to manage customers’ booked events: JH1 at [115]-[117]. Mr Sewell disputes that Mr Hazell could not refuse to provide services on any particular shift or refuse to show another person how he provided services at an event: AS at [34]; Affidavit of Julian Hazell affirmed 6 December 2019 (JH2) at [19]. The Respondent submits that Mr Hazell had a significant and practical amount of control and flexibility regarding his availability, and when he was unable to provide services, and did and did not provide service. The small amount of occasions where Mr Hazell was required to work a rostered shift should not change the overall nature of his control. This factor weighs against a finding that Mr Hazell is an employee, however the Respondent accepts that casual employees also have a higher degree of flexibility.

Control – how work is performed

[17] Mr Hazell was not supervised or directed by Mr Sewell while he was providing DJ services as he attended events on his own: AS at [37]. What songs were to be played during an event were in the control of Mr Hazell subject to the customer making requests for particular songs: AS at [41]; JH1 at [52] and [56]. Mr Hazell accepts that picking what songs to play was a substantial part of the services he provided and it was within his control what was played and when at an event: JH1 at [55] and [57]. Further, Mr Hazell accepts that he had overall control at an event to perform as a DJ to provide the best overall experience for the customer and event guests: JH1 at [54]. The Respondent submits that this consideration strongly weighs against a finding that Mr Hazell is an employee.

Mode of remuneration

[18] Independent contractors tend to be paid for the performance of a task or the production of a particular identifiable result, and employees tend to be paid for the hours they work: Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at 463, [42].

[19] Mr Hazell’s fee was calculated based on a maximum allocated time period for an event and varied depending on the day and type of event. If the event went over the allocated hours the Applicant was paid a further hourly rate. In addition to the fixed fee, the Applicant was paid an additional amount:

(d) to cover the cost of fuel where the event was in the Hunter Valley area; and

(e) where extra services were provided by Mr Hazell such as MC and uplighting: AS at [46]-[48]; JC1 at [137], [144]-[146], [148], [153] and [157]; JH1 at [60], [62], [149]).

[20] Mr Hazell was not paid where he did not provide DJ services at an event: JH1 at [163].

[21] The Respondent submits that the above points to a reward for Mr Hazell largely producing a result, rather than time spent/labour and this factor weighs against Mr Hazell being an employee.

Basis of remuneration

[22] Further to the mode of remuneration, the rendering of invoices is quite foreign to an ordinary employment relationship: Climaze Holding Pty Ltd v Dyson (1995) 13 WAR 487 per Steytler J 495 and 497 (Malcolm CJ and Rowland J agreeing). The parties accept that Mr Hazell issued tax invoices throughout his engagement with MMDJs: AS at [49]; JH1 at [133]. The Respondent submits that this factor weighs against a finding that Mr Hazell is an employee.

Taxation and superannuation

[23] Whether income tax is deducted from remuneration paid to the worker is a relevant indicia identified in the authorities: Brodribb per Mason J at p. 24.6; Wilson and Dawson JJ at p. 37.2 and Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307; (2011) 215 IR 235 (French Accent) at [30]. The tax treatment of payments as sought and made provides “an important and contemporaneous insight into what the parties’ intended and understood about this relationship”: ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 (ACE Insurance No 1) per Perram J at [90]. In Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 (Tattsbet), the Full Court held at [70]-[71] that the voluntary adoption of a taxation regime weighed in favour of a conclusion that the parties relationship was that of independent contractor and principal.

[24] Mr Hazell submitted tax invoices to Mr Sewell following events where he provided DJ services at: AS at [51]; JH1 at [133]. Mr Sewell did not withhold any taxation from money paid to Mr Hazell: AS at [51]. Mr Hazell has not provided any evidence to date regarding what business expenses he may have claimed as a deduction in his tax return.

[25] Mr Sewell did not make any payments to a superannuation fund on behalf of Mr Hazell: JH1 at [166]. This was because Mr Hazell was engaged as an independent contractor and was not paid wholly or substantially for his labour as he was required to provide equipment, namely a mobile phone and motor vehicle when he was first engaged (AS at [55]) and a laptop computer, DJ controller and road case from October 212 onwards (AS at [56]).

[26] The Respondent submits that the arrangement between Mr Hazell and Mr Sewell regarding taxation and superannuation, namely that Mr Hazell was responsible for his own taxation and superannuation, is consistent with the parties stated and mutual intention that Mr Sewell was engaging Mr Hazell as an independent contractor and weighs against a finding that he was an employee.

Holiday, sick leave and other entitlements

[27] Whether or not annual, long service or sick leave is afforded are often also used as relevant indicators of employment: Brodribb at 37; ACE Insurance No 1 at [92]. However, the Respondent concedes that casual employees are not ordinarily entitled to leave or sick pay: On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) [2011] FCA 366; (2011) 214 FCR 82 per Blomberg J at [219]. Mr Hazell was only paid for events where he provided services and was not paid for any periods of leave: AS at [34]; JH1 at [163]. This would weigh against a finding that Mr Hazell was an employee.

Delegation

[28] It is inherent in the nature of a contract of service that the service will be performed personally by the employee and therefore the benefits and obligations of such contracts are not unilaterally assignable: ACE Insurance Pty Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 (ACE Insurance No 2) per Buchanan J at [25]. A consequence of this principle is that where a contract allows for a party to delegate their obligations this will undermine a conclusion that the relationship is one of employment.

[29] Mr Sewell disputes the evidence of Mr Hazell that he did not have the right to delegate the services to another person: AS at [43]; JH1 at [49]. While Mr Hazell did not exercise this right during his engagement with MMDJs it was a genuine and practical entitlement. The Respondent submits that this should weigh against a finding of Mr Hazell being an employee.

Provision of tools and equipment

[30] A worker’s provision and maintenance of the tools and equipment necessary to perform the work tends to suggest the relationship is not one of employment: Queensland Stations v Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539 per Rich J at 548 and per Dixon J at 551 and Brodribb per Mason J at p.24.7. Where the worker’s investment in capital equipment is significant and greater skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary: Hollis v Vabu per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ at 41; and French Accent at [30].

[31] Throughout Mr Hazell’s engagement he was required to provide:

(a) a mobile phone, which he used to communicate with Mr Sewell; and

(b) his motor vehicle to transport himself and equipment to and from events: AS at [55]. The estimated value of Mr Hazell's motor vehicle is not known.

[32] It is noted that the Applicant's claim is in respect of the period from 15 February 2013 to 29 September 2018: Statement of Claim filed 15 February 2019 (SOC) at [55]-[56], [65] and [70]. From October 2012 onwards, Mr Hazell provided a laptop computer and DJ controller (excluding the period October 2017 to July 2018: JH1 at [106]) when providing DJ services: AS at [56]; JH1 at [87]-[88] and [96]-[97]. While Mr Sewell still made available equipment at the storage shed for use, Mr Hazell’s own evidence accepts that from October 2012 he ordinarily used his own laptop computer and DJ mixer for all events: JH1 at [97]-[98].

[33] While Mr Hazell additionally set up uplights at 14 events between 17 September 2017 and 29 September 2018: JH1 at [155], this was a supplementary service to the DJ services he provided. The lights were provided by Mr Sewell and Mr Hazell was paid additional money where he was required to set up uplights: JH1 at [157].

[34] Mr Hazell was responsible for the running costs associated with the operation of his vehicle, including registration, insurance, petrol, mechanical, upkeep and repairs. Mr Hazell was responsible for the cost of repairing or replacing the equipment: AS at [64]; JH1 at [107].

[35] The Respondent submits that Mr Hazell's provision of equipment during his engagement was a significant investment by him and the use of that equipment required a reasonable degree of skill and training. This factor would weigh strongly against a finding that he was an employee.

Running a business

[36] The hallmarks of running a business is a relevant factor in assessing whether a worker is an employee: Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 (Quest) per North and Bromberg JJ (Barker J agreeing) at [176]. However, it is inconsistent with a multi-factorial assessment to say that the absence of one factor (or the presence of it, for that matter), should for practical purposes dictate a result: CFMMEU v Personnel per O'Callaghan J at [153].

[37] It is not permissible to shift the focus of the central question, that is whether the person concerned is an employee or not, to the question of whether a person works in the business of another or in his or her own business: Tattsbet per Jessup J (Allsop CJ and White J agreeing) at [62] and Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 per Thawley J at [126]. Buchanan J in ACE Insurance No 2 at [128] observed that “[w]orking in the business of another is not inconsistent with working in a business of one’s own”: see also Tattsbet at [61]. It was not determinative of the question that the worker had no goodwill and no assets that he or she could sell upon leaving: Tattsbet at [52].

[38] The work of a DJ at events such as weddings and birthdays is personal in nature because the customers and guests interact with the individual DJ who attends the event. This creates goodwill for the person as a DJ as the person may gain a reputation and be offered new work: AS at [81]. Mr Hazell was at all time not restricted from being employed or providing services as a DJ for himself or other businesses (AS at [79]), which he in fact did when he worked for Bogan Bingo Entertainment as a MC/DJ: AS at [80]; JH1 at [199]. Mr Hazell provided evidence that between October 2018 and December 2018 he took steps to acquire equipment to carry out work as a DJ on his own, including a mobile DJ licence, performer's liability insurance, speakers, DJ lighting and speaker covers: JH1 at [205]. He also registered a trading name 'DJ Jules' on 15 November 2018: JH1 at [206]. The Respondent submits that the Applicant already owned most of the equipment required to work as a DJ (AS at [56]-[58]) and the remaining equipment, if required, could have been purchased at a small cost: AS at [59]-[66] and [81]. Accordingly, the Respondent submits that the Applicant had goodwill (i.e. the name he used when working, DJ Jules) and the assets to operate his own business prior to December 2018. The Respondent submits that this factor should weigh against the Applicant being an employee.

Profession trade or calling

[39] The circumstance that the person may be engaged to provide professional services is a matter that may just as readily be accommodated within a relationship of employee and employer as it may be in a relationship of independent contractor: Jensen v Cultural Infusion (Int) Pty Ltd [2018] FCCA 2137; (2018) 337 FLR 191 at [147]. The Respondent submits that this is a neutral factor.

Integration in the organisation

[40] It tends against a conclusion that a person was an employee where they are not “integrated” in the business, in the sense that he did not have an email address, phone, business cards, vehicle or any of the other benefits; he was not provided with and did not wear a uniform or any business branding: CFMMEU v Personnel at [164].

[41] Mr Hazell did not have a company email address, phone or vehicle. While Mr Hazell had generic business cards for MMDJs, the parties are in dispute regarding whether Mr Hazell was required to advertise these to customers: JH1 at [169]; JH2 at [23]. Mr Hazell did not directly interact with customers before and after events: JH1 at and [169] and [180]. The Respondent submits that this supports the position that he was not integrated into part of MMDJs and weighs against a finding Mr Hazell was an employee.

Right to negotiate rate increases

[42] Mr Hazell’s right to negotiate increased payment is not indicative of employment one way or another. Such a right is typically available to both employees and independent contractors: CFMMEU v Personnel at [166]. The Respondent submits this is a neutral factor.

Totality

[43] The conclusion that Mr Hazell was retained as an independent contractor is one founded upon the “totality of the relationship” (Brodribb per Mason J at 29) and a consideration of what the “reality of the situation” (Quest per North and Bromberg JJ at [143]) was between himself and Mr Sewell. Approaching the matter in a practical and realistic way, the Respondent submits that when considering the totality of the system of work and the work practices is assessed, the parties were in a relationship of independent contractor and principal. Accordingly, the Applicant’s claim should be dismissed.

18.    The Court makes the following observations in relation to these submissions.

19. A number of the submissions made could, with equal force, indicate that the relationship between the Applicant and Respondent was one between casual employee and employer. This is acknowledged, for example, at [16]. The significance of the issue became much more apparent during cross-examination. Thus, for example, in cross-examination it was suggested to the Applicant that, in effect, his willingness to be engaged as an independent contractor reflected his personal circumstances that he could not work fulltime because he was studying and flexibility was an essential aspect of the offer from the Respondent. Whilst the Respondent sought to argue that this was an indicia of independent contract, it is just as equally an indicia of casual employment. A similar issue arose in cross-examination about the number of times during the Applicant’s employment that he applied for, and was granted, time off. The evidence indicates that it was up to 200 occasions over eight years. This high degree of flexibility, once again, is as attributable to casual employment as it is to an independent contract. The training regime was equally consistent.

20.    The Respondent disputed the Applicant’s contention that he did not have the right to delegate the services to another person.  The Respondent contends that whilst the Applicant did not in fact exercise this right during his period of engagement with the Respondent, it was nonetheless a genuine and practical entitlement.  The Court finds the Respondent’s evidence in this regard implausible.  The overall impression created from the totality of the evidence is that the Respondent was very much concerned about issues of quality control, and consistency in how his business was operated by what was, at times, a large number of DJs.  But perhaps the strongest indictor of this was the document found at page 96 of the court book, being the Respondent’s email addressed to: “Hi fellow DJs,” dated 28 August 2013.  This document, the Court finds, is a prescriptive list of instructions to DJs about obviously important, but practical, issues.  The Court does not regard this communication as being a mere guideline.  The email reflects the Respondent’s desire to protect the viability and reputation of his business.  His focus on quality control, as well as the evidence about the training regime for new DJs, all strongly contraindicates the Respondent’s contention that the Applicant had the right to delegate the services to another person.

21.    The Court prefers the evidence of the Applicant, over that of the Respondent, in relation to the business cards of the business.  It is simply implausible that the Respondent would provide to the Applicant business cards, but then not expect the Applicant to display them for marketing purposes, or for the Applicant not to be involved in marketing.  This does suggest to the Court that there was a measure of the Applicant’s integration into the Respondent’s business.

Discussion

22.    The Court accepts that it must have regard to all of the evidence, and form a view based on the totality of the relationship by considering the reality of the situation of the parties to this case.

23.    This is a finely balanced case.  There are factors that point towards the Applicant being an independent contractor, such as the parties’ recognition of this, the submission of invoices, the absence of any tax withholding, the absence of other employment type entitlements, and the Applicant providing some of his own equipment.

24.    There are equally factors that contraindicate the existence of an independent contract, and instead point towards the existence of casual employment.  There was no right to delegate services to another person.  The Applicant was merely the agent of the Respondent in the collection of fees for the services rendered by the Respondent.  The Court accepts from the evidence that the Respondent ultimately had the opportunity to override any request by the Applicant for time off.  It seems implausible that a Respondent operating what was at the time a growing mobile DJ business would engage as an independent contractor someone who had never undertaken DJ work before.  The Court finds it interesting that even the Respondent admitted in evidence that the Applicant underwent training, and subsequently at the Respondent’s request provided training to new DJs.  It was not described as an induction period, but as a training period, thus indicating a low level of knowledge and experience, which contraindicates an independent contract.  It is clear from the evidence that neither the Applicant, nor the subsequent workers who the Applicant trained, were “independent” enough to be able to do the work of a disc jockey without training.  Moreover, the Respondent’s quite sophisticated system of rostering DJs to service the Respondent’s business’ bookings created the impression of an element of control of workers who were anything but independent.  In fact, the evidence in its totality creates the impression that the Respondent was very much dependent on his team of DJs to meet the demand of the Respondent’s clients, whose requirements were inflexible, more often than not, as to date, time and place of an event.  The rostering arrangement, and the mode in which the Respondent carried on his business, are more consistent with casual employment, than an independent contract.

Conclusion – casual employment

25.    The Court finds that in substance and in reality the totality of the relationship between the Applicant and the Respondent was as between casual employee and employer.

Was the Applicant covered by the Live Performance Award 2010?

26.    The Court is satisfied that the Respondent, in its Case Outline document, accurately sets out the correct approach to coverage of an Award, and the legal principles relating to interpretation of industrial instruments.  Accordingly paragraphs 45-54 inclusive of the case outline are reproduced:

Approach to coverage

[45] The Award is one of 122 modern award that commenced operation on 1 January 2010 under Part 2-3 of the FW Act and replaced the more than 1,500 previous State and Federal Awards that existed. Modern awards set minimum terms and conditions for employees in particular industries or occupations.

[46] To determine whether an employee is covered by the Award the starting point is s 46 of the FW Act which provides as follows:

“The significance of a modern award applying to a person

(1) A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.

(2) A modern award does not give a person an entitlement unless the award applies to the person.”

[47] The phrase of present relevance is that in s 46(2) of the FW Act, namely “the award applies to the person”. That phrase is expanded upon in s 47 of the FW Act.

[48] Section 47 of the FW Act provides in part as follows:

“When a modern award applies to an employee, employer, organisation or outworker entity

(1) A modern award applies to an employee, employer, organisation or outworker entity if:

(a) the modern award covers the employee, employer, organisation or outworker entity; and

(b) the modern award is in operation; and

(c) no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.

…

(3) A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.”

[49] The phrases of present relevance in s 47 of the FW Act are the “award covers the employee” and “particular employment”. The former phrase is expanded upon in s 48.

[50] Section 48(1) of the FW Act provides as follows:

“When a modern award covers an employer, employee, organisation or outworker entity

(1) A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.”

[51] Clause 4.1 of the Award expresses the coverage of the Award as follows:

"This industry award covers employers throughout Australia in the live performance industry and their employees in the classifications set out in this award to the exclusion of any other modern award."

[52] The Respondent submits that in order for an employee to be covered by the Award there are two matters that must be determined:

(a) firstly, the employee's employer must be in the live performance industry (see [55]-[61] below); and

(b) secondly, the employee must be employed in a classification set out in the Award (see [62]-[77] below).

Legal principles relating to interpretation of industrial instruments

[53] The general approach to the interpretation of industrial instruments was summarised by Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”

[54] In Transport Workers Union of Australia v Linfox Pty Limited [2014] FCA 829 Tracey J observed at [34]:

“Guidance as to the construction of industrial instruments may also be obtained by reference to principles which courts apply to the construction of commercial contracts. Commercial contracts should, as Kirby J held in Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 20; (2000) 170 ALR 579 at 584 “be construed practically, so as to give effect to their presumed commercial purposes and so as not to defeat the achievement of such purposes by an excessively narrow and artificially restricted construction.” An interpretation which accords with business common sense will be preferred to one which does not: see Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 at 4.”

Was the Respondent’s business in, or part of, the live performance industry?

27.    The Applicant submits that the Respondent is principally concerned with performance of work in the live entertainment industry.  The Respondent denies this.

28.    The starting point is the definition of live performance industry which is found in clause 3.1 of the Award:

live performance industry means producing, including pre-production and post-production, staging, lighting, audio and audio/visual, presenting, performing, administration, programming, workshops, set and prop manufacture, or otherwise undertaking live theatrical, performance art, operatic, orchestral, dance, erotic, variety, revue, comedy, multi-media, choral, or musical performances, productions, presentations, workshops, rehearsals or concerts, including the provision, sale, service or preparation of food or drink and also including selling tickets by any means, for or in or in connection with any such performances, productions, presentations, workshops, rehearsals or concerts, and including the operation of venues or other facilities, whether permanent or temporary, utilised for such performances, productions, presentations, workshops, rehearsals or concerts are performed or presented in the presence of an audience, or are recorded by any means.

29.    The term “performance” is defined in clause 3.1 of the Award to mean:

performance means a performance given by employees which is open to the general public on payment of an admission charge and/or for which the employer receives payment or other benefit.

30.    The Court is satisfied that the Respondent’s business is captured by the definition of live performance industry.  The activities that are usually undertaken by a DJ were described at several points in the evidence.  From the Court’s perspective, the Respondent’s business involved producing audio, and occasionally audio/visual in the form of lighting, arguably also multi-media performances.

31.    The Respondent contended that, on the facts of this case, there was no “performance” because there was no performance open to the general public. The Applicant contended that the Respondent’s business did involve a performance because clause 3.1 defines performance to mean a performance given by an employee for which the employer receives payment or other benefit.  Thus, whereas the Respondent contends that a performance had to be open to the general public, the Applicant contends that that is not so.

32.    The Court does not accept the Applicant’s submissions that the definition of performance in clause 3.1 is not limited by reference to the words “which is open to the general public…” because of the words “and/or” preceding the words “for which the employer receives payment or other benefit.” This interpretation goes a step too far.

33.    In cross-examination the Respondent conceded that there were occasions, probably in the minority, where the event was in fact open to the general public.  On those occasions, the Court is satisfied that there was a performance, as part of the live performance industry.  It does not necessarily follow, however, that the Respondent was otherwise engaged in the live performance industry because these events were clearly atypical and were not a major or substantial part of the business conducted by the Respondent.

34.    The Court has considered interpreting the words “open to the public” as meaning, in this context, “open to a section of the public”, namely those members of the public who choose to attend. Such an interpretation would in this Court’s view be consistent with the principles of interpretation articulated above. It would have regard to the obvious intention evidenced in the Award that it have broad coverage in a diverse industry. It is not necessary to decide this issue, however. It would not change the outcome of this case because, as it turns out the Court will find that the Applicant’s work was not covered by the classification contended for.

Classification issue

35.    The Applicant contends that he was classified under the Award as a live Performance Employee level 9 – Performer Category 2.  The Respondent disputes this.

36.    The main basis of the Respondent’s case is that firstly, DJs are not covered by the classifications under the Award, and secondly, even if DJs were covered, the Applicant’s work as a DJ was not covered by the classification.

37.    On the first point, the Respondent contended at paragraphs 65-68 as follows:

Disc jockeys’ coverage

[65] In the decision Re Media, Entertainment and Arts Alliance [2010] FWAFB 299, the Full Bench of Fair Work Australia refused an application by the Media, Entertainment and Arts Alliance (MEAA) to vary the Award to insert a new part into the award to include new classifications and wages and conditions of employment for bingo callers and disc jockeys (DJs). In the decision the Full Bench observed that:

[2] As noted in the MEAA submission, there are no classifications for bingo callers or disc jockeys in any existing award, federal or state and none in any modern award. The MEAA application is not supported by any substantive submissions which would enable us to determine whether the pay rates proposed would be properly fixed minimum rates and suitable for inclusion in a modern award. Similarly there is no indication of the basis for the conditions of employment proposed for persons who might be employed in the classifications.

[3] We would not grant an application of this type at this stage of the award modernisation process, given the absence of specific award coverage in the past. We do not rule out the possibility that specific award regulation will be required for the classifications concerned at some time in the future, but the case has not been made out on this occasion.

(Emphasis added.)

[66] There has been no subsequent application made to vary the Award to include a classification for disc jockeys. The subsequent applications that have been made since 1 January 2010 to vary the Award deal with entirely separate issues: see [2011] FWA 230; PR514179; [2011] FWA 329.

[67] The Respondent observes that the Award has been subject to a 4 yearly review of modern awards by the Fair Work Commission (the FWC) in which interested parties have made claims for substantive and/or technical and drafting variations to the Award. The current exposure draft for the Award that was published on the FWC's website on 29 January 2020 does not include any variations to include DJs in the Award.

[68] Consequently, the Respondent submits that the legal position of whether DJs are covered by the Award remains the same as it was at the time of the Full Bench decision in Re Media, Entertainment and Arts Alliance [2010] FWAFB 299, that there is no award coverage for DJs. There was no coverage for DJs in any state, federal or modern award, including the Award, then and there has been no subsequent amendment since to change this position. Therefore, the Respondent submits that the Award cannot cover the Applicant because he performed work as a DJ, and there is no part of the Award that deals with classifications and wages and conditions of employment for DJs.

38.    The Applicant contends that he was a performer, as defined in the Award.  The Award defines performer as:

…an employee who takes part in a performance and includes an actor, singer, dancer, musician, understudy/swing performer, puppeteer, compere, comedian or any other type of performer.

The Court accepts that as a DJ the Applicant was captured by the phrase: “any other type of performer” but as previously noted he was not taking part in “performance” as defined and thus does not fall within the Award definition of performer.

39.    The Applicant contends that his classification was Live Performance Employee level 9, Performer Category 2, which is described at B.9.3 of the Award.

B.9.3 - Performer Category 2

(a) A performer who is employed as an act or part of an act in theatrical/live entertainment performances and who is responsible for the primary development of the work to be performed.

(b) Indicative tasks are:

(i) as per Category 1;and

(ii) tasks relating to the development of the work to be performed,such as but not limited to:

●developing the script and concept for the performance;

●selecting the music;and

●generally determining the content and presentation of the performance.

40.    He contends, in effect, that he was a performer who was employed as an act or part of an act in a theatrical/live entertainment performance, who was responsible for the primary development of the work to be performed, and whose indicative tasks included selecting the music, and generally determining the content and presentation of the performance.  The Applicant contends, and the evidence confirms, that he selected the music to be played; determined the presentation of the music including deciding how and when to transition or mix between songs, and controlling volume levels; determined the presentation of the lighting; and decided when to speak on the microphone and what to say, especially when tasked with providing Master of Ceremony services.

41.    The Respondent contends that the classification of Performer Category 2 mandatorily requires the indicative tasks to include those tasks described in Category 1, the preceding classification because of B.9.3(b)(i).  In other words, the classification for Performer Category 2 is not independent of Category 1, but in fact is cumulative to Category 1. 

42.    The classification of Performer Category 1 is found at B.7.2 which states:

B.7.2 Performer Category 1 Grade 1

(a) A performer with less than three years’ experience in the entertainment industry who is employed in theatrical productions performing as directed to an existing script or score choreography and who is required to exercise their artistic skills to a professional standard as required. An employee at this level will have appropriate qualifications or be able to demonstrate they possess skills of an equivalent standard.

(b) Indicative tasks:

(i) acting;

(ii) singing;

(iii) dancing;

(iv) skating;

(v) aquatic performing;

(vi) understudying; and

(vii) any other type of performing.

43.    The Applicant contends that he is captured by vii) “any other type of performing.” The difficulty with this however, is that it depends on his being a performer (which he is in the non-Award sense) conducting a performance (which he is not) because most of his work was not open to the general public.

44.    The Respondent’s submissions on this issue, are found in his case outline at paragraph 73-78:

[73] Historically, the question whether a particular award classification is appropriate and thus applicable to the work performed by an employee has been resolved by the application of the principle of “major and substantial employment”.

[74] Logan J discussed and summarised the principle in Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696 at [38]–[39] as follows (emphasis added):

“[38] More recently, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 68-73 (Logan v Otis Elevator) Moore J collected and discussed many of the plethora of cases in which courts or the industrial commission have had to confront the phenomenon of an employee whose position required the undertaking of multiple duties only some of which were mentioned in a particular classification in an industrial instrument or, as the case may be, were disparately stated in different industrial instruments. Like Moore J in that case, I consider that a judgement given by Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 offers assistance. Also like Moore J, I do not consider that the observations made by Sheldon J are to be confined just to a case where it is necessary to choose as between which of two industrial instruments applies to particular employment. That circumstance merely provided the context in which observations of pervasive relevance came to be made by Sheldon J. What Sheldon J observed was this (as set out in Logan v Otis Elevator at 68):

The finding of the Chief Industrial Magistrate raises two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.

It seems to me that this is clearly a case to which this principle is applicable. This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which have taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.

[39] A pithy way of putting the same proposition is that both quality and quantity are relevant when it comes to employee classification, subject always to the language employed in the particular industrial instrument.”

[75] Although this interpretive principal is often applied to determine which of two competing classifications in two competing awards is the appropriate or applicable classification, as Moore J stated in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 67 the principle is also applied in determining whether a particular award classification regulates employment of a particular character. To that authority the observations of Besank J at [25] in Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 are relevant:

“… Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect (Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18; Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 at [77]).”

[78] The Respondent submits that the major and substantial employment of the Applicant is not appropriately classified as a Performer Category 2, or any classification, under the Award.

45.    The Court accepts the Respondent’s submissions in this regard though not without hesitation and regret. The evidence indicates that the principal or major or substantial aspect of the Applicant’s employment did not involve a public performance and thus he was not conducting a performance as defined in the Award. The Applicant was performing to a section of the public, i.e. those members of the public invited to an event, but that does not suffice for present purposes. The meaning of words ‘the public’ and whether this includes a section of the public, was discussed by the plurality of the High Court in Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201.

46.    It seems anomalous that DJs are not covered by the Live Performance Award 2010 despite its obvious intent to provide broad coverage in the field. The drafting on the Award provisions is complex – perhaps unnecessarily so. Nonetheless, and consistent with prevailing norms of Award interpretation, on the evidence before the Court, the Applicant is not a Performer Category 2, and is thus not covered by the Award. It must follow that his case fails and his Statement of Claim must be dismissed. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date: 11 September 2020