Howard v Merdaval Pty Ltd T/As North Essendon Auto Spares

[2019] FCCA 1127

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWARD v MERDAVAL PTY LTD T/AS NORTH ESSENDON AUTO SPARES [2019] FCCA 1127

Catchwords:
INDUSTRIAL LAW – Fair work – whether relationship was that of an employee or independent contractor – awards – entitlements – notice periods – application dismissed.

Legislation:

Fair Work Act 2009, pt.3-1, s.357(1).

Road Transport Distribution Award 2010

Vehicle Manufacturing, Repaid, Services and Retail Award 2010

Applicant: ROBYN HOWARD

Respondent : MERDAVAL PTY LTD T/AS NORTH ESSENDON AUTO SPARES

File Number: MLG 1454 of 2015

Judgment of: Judge Riethmuller

Hearing date: 15, 16, 17, 18 & 19 October 2018

Date of Last Submission: 27 March 2019

Delivered at: Melbourne

Delivered on: 30 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Irving QC

Solicitors for the Applicant: McDonald Murholme Solicitors

Counsel for the Respondent : Ms Bingham

Solicitors for the Respondent : LSG Legal

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1454 of 2015

ROBYN HOWARD

Applicant

And

MERDAVAL PTY LTD T/AS NORTH ESSENDON AUTO SPARES

Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to Part 3-1 of the Fair Work Act 2009 (‘the Act’). The Applicant was engaged by the Respondent as a contract courier (as a driver with her own vehicle) on an hourly rate.  The Applicant’s primary case is that she was an employee and not a contractor. As a result she claims various entitlements pursuant to the relevant award over many years. The Applicant also alleged that the Respondent misrepresented the relationship of the Applicant to the Respondent as one of an independent contractor rather than one of employment.

2. As an employee the Applicant submits that she was employed from 1 January 2010 and subject to the Road Transport Distribution Award 2010, or alternatively, the Vehicle Manufacturing, Repaid, Services and Retail Award 2010 (the awards). Under the awards she would have received superannuation entitlements; leave entitlements; overtime rates; a travel allowance and reasonable notice of termination to her employment.

3. The Applicant initially contended that the employer misrepresented the relationship, thereby contravening s 357(1) of the Act. The Applicant sought pecuniary penalties. As the case progressed it became apparent that the nature of the relationship between the Applicant and the employer was not one where the employer could be found to have breached the section. The arrangement between the parties commenced when the Applicant worked for a different company who provided her as a contractor for the Respondent. When this arrangement ended there was a restraint of trade clause preventing the Respondent from engaging the Applicant directly, so she made arrangements to be contracted through a trucking company operated by a friend. Once the restraint period ended, the Applicant contracted directly with the Respondent. The Respondent paid the trucking company (and subsequently the Applicant direct) the same rates it had paid the company initially providing the Applicant as a contract delivery driver.

4. The significant issue that arises in the case is whether the proper characterisation of her engagement is one of a contractor or one of employment.  In the event that she is a contractor, she also makes an alternative claim that she was entitled to reasonable notice of the termination of the contractor arrangement and had not been given sufficient notice.

5. In determining whether the Applicant was a contractor or employee is a difficult task. There is no simple test or particular aspect of an arrangement that will be determinative in each case.  The determination is one that must be made holistically, considering all of the circumstances of, and particular arrangements between, the parties in a given case.  Counsel for the Applicant provided a very detailed written outline (in terms similar to a textbook chapter) addressing this very point.  Even when considering cases that have a factual resemblance, it quickly becomes apparent that each case nonetheless has unique factual circumstances.  Reliance upon specific factually similar cases presents the danger of being distracted from a holistic consideration of the circumstances of the particular case to be decided.  When considering the authorities it quickly becomes apparent that whilst the cases provide instructive examples, each factual scenario must be considered in its individual details.  Whilst there are many factors that are commonly relevant, this does not mean that one should limit the consideration of the individual circumstances of a particular case to a checklist of common considerations. 

6. Unfortunately the matter took some time to reach a hearing, in part due to pressure of work in the court and in part the conduct of the Applicant.  The matter was originally sent to mediation with a Registrar.  This was not successful, and unfortunately no trial directions were made at the end of that process.  The first directions hearing before me was in 2016, when the matter was given hearing dates in June 2017.  These dates were then vacated on the application of the Applicant who needed time to put her case in order.  I was not prepared to provide priority to this matter over other cases already listed, in circumstances where the 2017 hearing was vacated at the request of the Applicant, and thus the late 2018 trial dates were then set.

Background

1. Between 2004 and 2015 the Respondent operated a wholesale and retail business ‘Drive Auto Parts’, which supplied spare parts and fittings to automotive workshops and also operated a retail store, ‘Auto One’, selling automotive accessories. The business arranged delivery of auto spare parts to automotive workshops and dealerships around metropolitan Melbourne when parts were ordered.

2. At the commencement of the Applicant’s period of providing services to the Respondent, she was engaged by Ontime Couriers who contracted her services to the Respondent.  Later, even when the Applicant was dealing directly with the Respondent, Ontime Couriers continued to provide courier drivers to the Respondent as contractors, for example, a driver referred to in the evidence as ‘Raffy’.  The Respondent also had employees who undertook courier work using vehicles supplied by the Respondent (for example one referred to as Cathy, although after 2010, she moved to another part of the business). 

3. In or around July 2002, well before dealing directly with the Respondent, the Applicant had acquired an Australian Business Number (ABN) when she started to obtain contract work from Ontime Couriers.

4. Between 2004 and March 2014, the Applicant was engaged to perform deliveries for the Respondent from Monday to Friday each week, up to a maximum of 40 hours. From April 2014 to January 2015, the Applicant was engaged by the Respondent to perform work for up to 24 hours per week.

5. The Applicant’s tasks were the delivery of auto spare parts from the Respondent’s wholesale business to the Respondent’s clients, and collection of parts if they were to be returned to the Respondent.

6. The hourly rate paid by the Respondent to the Applicant was $23.00 per hour from 2004 to 2008, and $27.00 per hour from 2008 onwards. Prior to 2011, the Respondent paid for any CityLink tolls directly, then from May 2011, the Applicant was reimbursed by the Respondent for her CityLink toll costs incurred when performing delivery work.

7. The Applicant, upon submission of a tax invoice, which included her ABN, was paid in arrears for the work she performed. She submitted a tax invoice to the Respondent weekly, which was paid within 7 days of being rendered.

8. The Applicant utilised her own vehicle for deliveries.  When she started to provide courier services through Ontime Couriers, she had a 1 tonne vehicle.  Later she drove her Toyota Echo from 2004 to 2013, and then a Toyota Corolla she bought in 2013. There was no signage on the vehicles. She provided her own invoice books and stationary, even with respect to Cash on Delivery invoices (preferring not to use that supplied by the Respondent). 

9. The Applicant advised the Respondent of dates she would be absent by completing a leave application form (although no approval was required), and when she was sick she advised the Respondent orally that she would be unavailable.

10. The Applicant did not undertake delivery work for the Respondent after 28 October 2014. On or about 27 January 2015 she came to the Respondent seeking delivery work, but they informed her that they did not have any available.

11. On or about 29 January 2015 the Applicant requested a letter from the Respondent to provide to Centrelink, which the Respondent soon after provided by way of a separation certificate.

Mrs Howard’s Evidence

Overview

1. Mrs Howard gave evidence as the Applicant in the proceedings. On the whole, the Applicant presented well as a witness in Examination-in-Chief, giving her evidence in a firm, confident and careful fashion.  In cross-examination, this changed to a witness who was somewhat oppositional to Counsel, leaving the impression that she was not prepared to be open and frank during cross-examination.

2. In cross-examination, the Applicant was somewhat oppositional.  This was a distinct contrast from her appearance in the witness box in evidence-in-chief where she presented as a genuine and careful witness.

3. Mrs Howard explained that she commenced undertaking work for the Respondent in 2002, couriering parts from their retail and trade auto parts and accessories business to customers. Most of the courier work was to business customers, mechanics and workshops. The Respondent’s business was operated from one location until 2010, when they moved address. 

4. The Respondent had around a dozen employees and was directed by Mr Luca, and a Deputy Manager referred to as Abbie. Other members of Mr Luca’s family worked in the business, including his wife, sons and daughter-in-law. 

5. The Applicant’s standard hours were from 8.30am to 5.00 pm (a 40-hour week) with half an hour for lunch.  In the last nine months that she was undertaking work for the Respondent, from March 2014, she only undertook work three days per week: Tuesday, Wednesday and Friday.

History of engagement with the Respondent

1. The history of her work arrangements is complex. She commenced working for Ontime Couriers (a different entity unrelated to any of the parties in the proceedings) as a contractor and whilst engaged by them, undertook work for the Respondent starting at 8.45am and finishing at 4.45pm.  She was also instructed to take a lunch break during that period.

2. The Applicant has had a significant history of contracting as a courier for different courier companies, including Fastway Couriers, Golden Messenger, Allied Messenger, TNT, and Ansett.  She said that she had first commenced work as a driver when she drove a taxi in 1969 and then commenced courier work in 1971.  In the intervening period, she had operated a milk bar.  She noted that this was the only engagement she had had where she had set hours.

OnTime Couriers

1. At this time, the Respondent would pay an hourly rate to Ontime Couriers, from which they would then pay the Applicant an hourly rate.  It appears that Ontime Couriers engaged the Applicant as a contractor and contracted her courier services for a rate greater than that which they paid the Applicant and their other drivers.  The Respondent continued to rely upon Ontime Couriers from time to time to provide contract couriers to undertake the same work as that undertaken by the Applicant.

2. It is clear that Ontime Couriers did not contribute to fuel or vehicle expenses for the Applicant, nor did they provide superannuation or other benefits.  It transpired in cross-examination that Ontime Couriers had required an ABN number from the Applicant, although the precise details of the arrangement between her and Ontime Couriers was not able to be clarified on the evidence before me. There was not a copy of the agreement with Ontime Couriers, which is not surprising given how long ago that arrangement was entered into.

3. During her engagement with Ontime Couriers, the Applicant had a one-tonne van which ultimately suffered mechanical problems due to age and use.  She replaced it with a small Toyota Echo in July 2004.

4. There were no delivery signs or livery for the motor vehicle such as magnetised logos for the side of the car when she was engaged with Ontime Couriers. 

5. At that point, she said that Ontime Couriers terminated their arrangement with her on the basis that her vehicle was too small for the fleet of vehicles that Ontime Couriers offered their clients. 

6. She had said that she had earlier checked with Mr Luca about whether or not she could buy a small car to which he said it was fine by him (although I prefer Mr Luca’s evidence that this was a decision the Applicant made on her own). The courier work undertaken for the Respondent did not require a 1 tonne vehicle. However, it does not appear that this was acceptable to Ontime Couriers, who terminated their arrangement with the Applicant simply because she no longer had a 1 tonne vehicle.  It is curious that Ontime Couriers would conclude that her vehicle was too small for their fleet, given that she was contracted by them continuously to the Respondent at that time, and she was only a contractor and not an employee of Ontime Couriers.  Whether the change from a commercial vehicle (1 tonne) to a passenger vehicle was seen as an indicia of employment by Ontime Couriers is unknown. Ontime Couriers were not a party and no evidence was led from anyone who operated Ontime Couriers.

Tasmanian Trucking arrangement

1. Following the termination of her arrangement with Ontime Couriers, she was advised that the Respondent could not contract with her directly as a result of what appears to have been a restraint of trade clause.  She said she looked for some other jobs and was unable to find work.  Ultimately she entered in to an arrangement with a company called Tasmanian Trucking (operated by her neighbour) for her services to be contracted by that company to the Respondent.

2. In substance, the Tasmanian Trucking arrangement was very similar to that undertaken by Ontime Couriers, save that: firstly, all of the fees charged to the Respondent were paid on to the Applicant by Tasmanian Trucking, who retained none of the money; and secondly, there was no requirement for a 1 tonne vehicle to be provided by the Applicant – simply a motor vehicle. 

3. Whether the Tasmanian Trucking arrangement was sought out by the Applicant at the request of the Respondent, or on her own part so as to return to undertake work for the Respondent, is not clear, although the Applicant is of the view the Respondent had asked her if she could find a way to return to work for the Respondent.

4. At one point in cross-examination, she said that Mr Luca had been encouraging her to come back to undertake work for him and saying that he did not know how she could do it, but that she should.  It seems more likely that being faced with the advice that Mr Luca could not engage her directly as a result of the agreement with Ontime Couriers that she sought out a methodology of avoiding that difficulty.

5. The Applicant said that Mr Luca suggested that she continue to work directly for the Respondent when the period of contract facilitation by Tasmanian Trucking came to an end.  She denied that he asked her if she had an ABN and denies that he asked about GST, although later said that she told him that she did not need to be registered for GST purposes, but then said she did not know how that came up.  Her evidence in this regard was unconvincing and appears unlikely.

6. In the nature of the conversation that was being engaged in, it seems far more likely that Mr Luca would have asked her about her her ABN and GST status in order to put the appropriate accounting arrangements in place for her to be engaged as a contractor.  It is not a case where there was any doubt as to the status that the parties intended the Applicant to have when engaged directly rather than through Tasmanian Trucking.

7. Because the hourly rate that was being paid to Ontime Couriers was then paid to Tasmanian Trucking who passed on the total payment to the Applicant, this effectively resulted in the Applicant receiving a greater hourly rate, as Tasmanian Trucking were not retaining any portion of the fee in the way that Ontime Couriers had.  The hourly rate was set by reference to the rate that Ontime Couriers had been charging, as advised by Mr Luca.  After two years of the Tasmanian Trucking arrangements, the Respondent and the Applicant entered into an arrangement directly, continuing at the same hourly rate.  That hourly rate was $23.00 per hour.

The Respondent arrangements

Payment, costs and taxes

1. Four years later, the hourly rate was increased to $27.00 per hour by agreement.  She said that there had been a period leading up to that where the Respondent had paid an extra $50 per week for nine or 10 months as petrol had become quite expensive, although this was disputed by the Respondent whose accounting system had no record of the alleged payments. 

2. When negotiating a new rate, the Applicant said that Mr Luca had asked her what amount she sought and she suggested the reviewed rate, to which he agreed, but the Respondent no longer contributed the additional $50 per week for fuel. 

3. From 2011, she was able to submit toll charges that she incurred undertaking the work which were reimbursed by the company.

4. The Applicant never charged GST as her earnings were under the GST threshold.  Her tax returns were completed on the basis that she was a contractor. 

5. In her tax returns very substantial deductions were claimed for depreciation and operating costs for the motor vehicle she used in the arrangement.

6. Each week, the Applicant submitted an invoice and it was paid a day or so later. If she did not work on a particular day, she was not paid, whether she took that day off as sick leave or holidays.  She was required to fill in forms when taking holidays to give notice, which appear to have been approved when requested. Sick leave was simply notified as and when it occurred.

Nature of the Applicant’s work

Hours

1. The Applicant said that she started at 8.30am as the business opened at 8.00am and by 8.30am there were deliveries ready to be undertaken from telephone orders earlier in the morning. She continued to undertake deliveries throughout the day until 5.00pm. She said that if she finished deliveries before 5.00pm, she would undertake other work such as sweeping, tidying the kitchen or the like.

2. The Applicant was paid an hourly rate, although provided services for 40 hours per week to the Respondent. 

Tasks

1. The work process was described in fairly simple terms.  The Applicant would see orders on various shelves, ready for delivery.  The business had one major client of high profile who always received their deliveries first.  Otherwise the deliveries tended to be grouped into three areas: airport west; an area referred to as ‘HTR’ (in the direction of Deer Park); and an area referred to as ‘Leo’s’ (in the direction of Highpoint in Maribyrnong). Various clients required urgent deliveries from time to time, which would be prioritised over the standard delivery runs through the three separate areas.

Control

1. The Applicant says that during her work period she was told where to deliver goods, which jobs to do in what order, and had set start and finish times on set days.

2. The Applicant said that she would always check with the Manager about which run should be undertaken next, although this was disputed by the Respondent’s Manager. When undertaking a run, the Applicant would look through all of the items to be delivered and create a delivery sheet and then determine the order of delivery based upon delivery to the nearest recipient first and the furthest recipient last. This was only departed from if there was an urgent delivery that had to be prioritised.  She would write the delivery order and locations on a whiteboard before leaving, providing some information as to where she would be.

1. The Applicant was clear in her statement that she would always confirm which route to undertake first for a delivery with Mr Luca or Abbie. Most of the goods to be delivered were small enough that she was able to load them into her car herself, although occasionally there were larger items such as a car battery and one of the employees of the Respondent would load that into the car for her.  There was also a trolley available for her use which she would utilise if an item was too heavy to carry, but not too heavy to load onto the trolley. 

2. As part of the delivery run, on occasions there were cash on delivery payments to be collected which the Applicant estimated would have been at three to four per week, the rest of the deliveries being on account.  She would obtain the payment on cash on delivery and issue a receipt in the name of the Respondent and then hand over the money and the paperwork when returning after her run.  She said that sometimes she would do deliveries later in the day, but then start later the next morning.  It seems that her hours had some degree of flexibility in this regard.

3. From time to time, a client would require a part to be collected and returned which she would do as part of her courier run and provide them with a credit note on sheets that were provided by the Respondent. The Applicant explained that on only one occasion was she ever asked to courier products from a company other than the Respondent’s; when one of the purchasers of the Respondent ’s products asked her to courier an item on her way back to the Respondent ’s premises.

4. On one occasion, another business offered her $10 for such a task, which she declined, but was pressed to take the money “for lunch money”, which she did.  She does not have a clear recollection of the particular occasion and it appears that it was a one-off event that she undertook more as a favour to the other business than anything.

5. If there was an error in deliveries – which it seems was a rare event – the Applicant would rectify this by collecting and redelivering the products.  On one occasion, some products went missing and it seems this was as a result of a mechanic stealing them from the place that they were originally delivered to. She was not required to recompense the Respondent for the loss of that product.

6. Her lunch period with the Respondent was not a fixed time and would occur somewhere between 11.30am and 2.00pm and last for 30 minutes.  She said that Abbie would determine when she took her lunch break, although it seems more likely that this was related more to whether deliveries were waiting, than any specific direction.

7. There was no livery upon her vehicle, nor any CB radio installed or maintained, nor any tracker or black box.  The only contact that she had with the Respondent when carrying out couriering duties was by her telephone number.

Run sheets

1. She was cross-examined about the run sheets that had been developed.  She denied that she had asked for a run sheet to be developed and denied that she had provided an example of a run sheet from which the running sheets used in the business were derived.

2. Mr Luca’s evidence was that she had sought that and that he recognised it as a good process and developed the computer formatted running sheet based upon a handwritten example developed by her in consultation with him.  This running sheet enabled invoice numbers to be attached to job locations, and those receiving COD goods to sign, and space for the courier to identify the route that they would be taking.

Distances travelled

1. There was extensive travel involved in undertaking the work. For example, the Toyota Echo that she owned for nine and a half years ended up with more than 560,000 kilometres on its odometer.

2. It was difficult to ascertain the precise distances that she travelled during the course of her carrying out work for the Respondent.  She undertook a repeat of the driving of two weeks of work with a running sheet, noting her odometer readings, which is at page 1524 of the court book.  From this evidence, she seeks to extrapolate out an average distance travelled in her motor vehicle.  A different methodology was undertaken by the Respondent which is discussed below.

3. In a case of this nature, if some estimate of the distance travelled must be reached, it seems pragmatic for it to be based upon a sampling of the running sheets.  It is not practicable for the parties to calculate the amount with precision over 500 running sheets. 

Workplace involvement

1. Over the first 18 months that she undertook work for the Respondent, she said that she attended workplace meetings each two to three months that were in the evenings, somewhere between 5.30pm and 6.00pm or later, where employees discussed how to improve the business and management provided pizzas for dinner.  She said she was required to attend and these were unpaid. 

2. She always attended the work Christmas parties for staff. 

Autonomy

1. The Applicant conceded that she was often slightly late to commence work, which she said was five minutes or so, although it was said by Mr Luca to be around 15 minutes. She said that she made up for this at other times and occasionally would undertake courier work after her nominal finishing time at 5pm. 

2. It seems that neither her nor the Respondent were troubled by this degree of flexibility that she took in her hours.  She also conceded that she had attended to personal matters occasionally, although the extent of this is in dispute. She denied that she had ever stopped to see her grandchildren during periods of time when she was engaged to undertake courier duties by the Respondent.

3. She did accept that she had occasionally seen Mrs Luca at the bank or shops, saying that it was less than a half dozen times and that it may have been for matters related to work.  Given the type of work she was undertaking I don’t accept that she would have been in a shopping centre for work related matters.  She was certainly never reprimanded for this, as would be expected if she were an employee.

4. The Applicant had no clients other than the Respondent. She did not have business cards nor undertake any advertising.  She does not appear to have sought to develop a business that would require other drivers or other clients.  She clearly had no business which was saleable, as such, as she only had one contract.  However, the Respondent continued to use contract drivers from Ontime Couriers as well as the Applicant.  The Applicant never sought to provide additional drivers to the Respondent on a similar basis to Ontime Couriers.

5. She did not purchase or arrange her own public liability insurance, although her vehicle insurance may have covered public liability when she was driving.  Other than driving, her tasks gave rise to little risk of liability to others.

6. The Applicant never sought to become an employee of the Respondent, although the Respondent had employed drivers as well as using Ontime Courier contract drivers.  The Applicant explained in evidence that the contract arrangement allowed her to use a vehicle that better suited her.  She said that:

   The cars that [the Respondent] had in the fleet, with all due respect, were fairly ordinary cars. One of them didn’t have – I believe didn’t have airbags. They were mostly manual, and when you’re driving for eight hours a day it gets pretty tiring when you’re driving a manual. I used to drive a manual taxi and it was pretty tiring. Some didn’t have – I believe some didn’t have air conditioning earlier on. So there were a few things that – that went against being a company driver that - - -

7. The company cars, used by employee drivers, were locked up at the company premises at night, and not available for personal use by the drivers.

8. For the couple of days that her son undertook the work on her behalf, however she still billed the work as usual.  Although she did not pay her son, this was unremarkable as it was clearly a family arrangement between her and her son.  It is unsurprising that she could have her son stand in for her, given that the Respondent continued to use contract couriers from Ontime Couriers to also carry out the delivery work required for its business.

Melbourne Pathology

1. Whilst she carried out work full-time during the week for the Respondent, she also worked on Saturdays for Melbourne Pathology undertaking seven hours work which was paid as five hours standard time and an hour and a half as overtime, apparently in accordance with a Saturday award for that type of work.  She said she needed to work Saturdays as she needed more money.  When working for Melbourne Pathology, she was an employee and supplied with a vehicle by the employer for her delivery tasks.

Work Materials

1. The Applicant provided her own receipt books as she preferred receipt books that had carbonised paper, rather than the old-style receipt books which had separate slips of carbon paper to be inserted between the pages.  The Respondent only supplied the old style of receipt books which she found annoying, and therefore, she chose to purchase her own receipt books instead. She was not challenged in her use of her own receipt books or directed that she must use the receipt books provided by the Respondent.

2. The telephone account with Optus was established as a business account by the Applicant at the time when she commenced her engagement with Ontime couriers, as is evidenced by the formatting of the Applicant’s name on the accounts. She maintained her own mobile phone, from which she was in telephone contact from time to time throughout the day as required, although on some days not requiring any telephone contact with the Respondent whilst she was on her courier runs.  She claimed tax deductions for her business and telephone use.

Uniform

1. The Applicant had been given various promotional caps and jackets and shirts some bearing the Respondent’s logos and others with the livery of suppliers on them.  She was first given clothes in 2006, although was not required to wear them.  She said she liked wearing the shirt with the Respondent’s logo on it as she was representing the Respondent’s company and the fabric and size of the shirts suited her.  When delivering, she said that she usually wore one uniform which showed the business name used by the Respondent, although this does not appear to have been a requirement of the Respondent.

Company logo

1. The Applicant explained that the bulk of the deliveries were wholesale (or probably more correctly trade orders) rather than retail orders. It appears clear that the employees working in the retail section of the premises wore uniforms including button-down shirts. She was never supplied with a button-down shirt, nor requested to wear one, nor was she supplied with trousers with a logo, although she explained this on the basis it was difficult to find trousers to fit her.

2. She agreed that the caps which were produced in the Court (baseball style caps with logos upon them) were for personal use. It was unclear what the status was that she placed upon the Castrol jacket, although it seems that it was not part of the uniform for any of the staff. Similarly, clothing from Fuchs appears to have been purely promotional clothing. She said she had never asked for an Auto One jacket but that uniforms went to all the staff.  She denied that the polo shirts were promotional shirts rather than a uniform.

3. She did agree, however, that whilst staff were given clothing, they were not required to wear the clothing (save for the staff in the retail store) but she chose to do so as it was comfortable. 

4. One of advantages that the Applicant saw in being a contractor was that she had her own car which she found a nicer vehicle to drive than the vehicles that were provided to employees who worked as couriers, including that her own vehicle being an automatic transmission rather than a manual transmission. She also said that she had personal use of her own car; whereas, cars supplied to employees remained at the premises after hours.

5. Whilst there were no signs or logos on her vehicle (in either temporary or permanent form), she did have a courier sign in the back of her car so as to enable her to park in loading zones.

Toll Arrangements

1. The Applicant said that she did not tell the Respondent she would not be using toll roads as she was not prepared to pay tolls; although clearly an issue arose at some point and the Respondent agreed to pay tolls when she provided an invoice. A system was put in place where she would provide the invoice from the tollway company with the tolls relevant to her courier activities highlighted, from which the accounts department would prepare a schedule and then pay her the amount owing after she had provided an invoice for the toll amount and GST separately.

2. She said she only started billing for tolls from 2011 onwards and that it was drawn in the method instructed by the Respondent. It is not clear how it came about that she would charge GST when she was not registered to pay GST, and therefore would not have had an input credit.

3. She was unclear in her evidence about whether she had had a discussion with Mr Luca about purchasing the Corolla after the Toyota Echo.  It is clear that on at least one occasion (or perhaps for a short period on the evidence of Mr Luca), she used a BMW that she owned for her own personal use at a time when her van was not working properly.  She also said that occasionally when she had vehicle issues, she had used a vehicle owned by the Respondent.

Fuel contributions

1. The Applicant’s evidence with respect to being paid $50 a week towards fuel was somewhat lacking in detail. She said it occurred for a period of 10 months, but was quite unclear as to what the process was for claiming and receiving the payment. It seems unlikely that a cash payment would be made without business records as each of these payments would be tax deductable by the business.  The business was of a size where detailed accounting systems were in place. 

2. The cash arrangement is denied by Mr Luca, whose evidence I prefer on this point. 

3. She agreed that an increased rate for her services was set by reference to the rate the Respondent was paying Ontime Couriers when they continued to obtain couriers from Ontime Couriers from time to time.  This was of no disadvantage to the Respondent who would have to pay that rate to Ontime Couriers for an alternative courier; for the Applicant it was a slightly better rate than she would have received from Ontiem Couriers had she continued in the arrangement as one of their contract drivers as Ontime Couriers.

Leave

1. Whilst formal applications were made from time to time for holidays, it appears that this was more in the form of notification than a request for leave, in that she would notify the Respondent, and was never told that she could not take the time. 

2. For example, when she was travelling to Canada, she booked her fares before filling in the relevant form.  On one occasion, she said that Mrs Luca was opposed to her having time off but that Mr Luca came outside and told her that there was no difficulty. 

3. In re-examination, the Applicant said that she was unsure whether she made the booking before or after the leave application when travelling to Canada.  Thereafter, she did recount another occasion where she obtained very inexpensive return fares to Darwin so she bought the tickets and sought the time off after that.

4. She never provided a medical certificate when off on sick leave and agreed that she occasionally predetermined when she was going to take leave.

5. The leave forms – or at least some of them, by way of examples – were tendered into evidence (see p.1881 of the court book).  She said that the requirement for such forms to request leave was advised to her by Mrs Luca and the forms were lodged in the office.  However, it does not appear that permission was required, simply notice (although there was one incident where Mr Luca corrected Mrs Luca in this regard).

6. She was not paid for public holidays or time off, nor were any superannuation contributions made on her behalf.

Superannuation

1. After she had commenced these proceedings, she also made a complaint to the ATO about superannuation, although it does not appear to me to be of assistance in determining these proceedings that she either made the complaint, nor the view taken by the Tax Office.  After she finished with the Respondent, she continued to work with Melbourne Pathology one day a week as a courier driver and would have taken more courier work if it were available to her. 

2. She did not actively seek out employment through job interviews, believing that it was very unlikely she would gain employment given her age (67 years of age at that time).  She did not seek to obtain contracting work as a courier.

Tax Returns

1. Her tax returns were prepared by her long-term accountant Mr Anderson to whom she supplied all of the relevant documents. He would prepare the return, mail it to her, and she would sign it.  She said she did not read it and simply trusted him. 

2. The accountant was aware that she was a contractor and had estimated 10 per cent private use for her motor vehicle for the purpose of the preparation of her returns.  She said that she gave the accountant everything to do with the business, and when asked about the claims for stationery and printing, and protective clothing, she explained that she from time to time had to purchase receipt books and other stationery, and that various items of clothing were purchased, for example, she required a hi-vis vest when entering the premises of Caterpillar, and she believes the figures from her tax returns are from her receipts.

Injury and transition

1. In early 2014, she injured her finger when undertaking work for Melbourne Pathology on a Saturday, resulting in a WorkCover claim.  She underwent surgery in October 2014 and sometime after that, discovered that her finger was infected. She received a number of Workers Compensation certificates, fortnight by fortnight, whilst her finger healed.  She ceased carryout deliveries for the Respondent.

2. Around 10 December she contacted the Respondent to say she was hoping to return to work in around a fortnight.  She said that she was advised that it was a quiet time and that she should call again in January.  She called again after Christmas, following her return to the Melbourne Pathology work on 27 December. 

3. She said at this time Mr Luca said that he was negotiating with business partners, but asked her if she was prepared to do other work and suggested she call back later in January.  She did call back in January but was told that there was no further work available for her. When the Applicant attended at Centrelink, she was advised she needed a termination letter which she sought from the Respondent, who provided a separation certificate.  The separation certificate prepared by the Respondent appears at court book p.1079 and sets out that she was engaged as a contractor. 

4. She said that she told Mr Luca in late October 2014 that she required surgery on her finger.  The surgery appears to have taken place on 28 October 2014. It was difficult to ascertain precisely what the course of discussions were on her evidence from this point forward.

5. She denied that she had told Mr Luca that she would be back after the operation and that he said they could survive for a couple of days without her. It does not appear she produced a medical certificate, although she said she did not recall when asked about that. It is certainly clear that Mr Luca never asked for a medical certificate.

6. She denied that she did not tell Mr Luca of her extended leave requirements until 18 November, although she was not sure of the date, and denies that she told him that she would be back on 28 November.  Some light is shed upon this from some text messages she sent to Adele, the daughter-in-law of Mr Luca with whom she was friends.  Having regard to the text messages that appear in the Court books it seems that she spoke to Mr Luca on 18 November and indicated that she would not return to work until 28 November.  Whilst the text message does not say she will specifically return on 28 November, it is in a form that invites such a conclusion, the text message stating, “I’ve got an appoint with the specialist on Fri 28 & I’m sure he will ok me returning to work immediately!”

1. She said that she was given a Christmas party invitation on 26 November 2014, and she was going to attend although ultimately didn’t feel up to going to the party. She was not aware of whether or not Raffy, a driver from Ontime Couriers, was present, nor was she aware of whether or not clients and suppliers were also invited. This seems unlikely given that she was a courier driver for the business.

2. She denied that her WorkCover insurer was pressuring her after her accident when working for Melbourne Pathology, although in one of her text messages said that she gave them a date to “get them off her back”.  I am not persuaded that she is an accurate historian about this period of time, nor that she kept the Respondent clearly updated on her capacity to recommence courier work.

3. On 27 January, she said she went to see Mr Luca and was told there was no work and that she asked for a letter and a separation certificate was arranged, setting out that she had finished working for the Respondent and noting on the face of it that she had been engaged as a contractor.

Applicant’s son’s evidence

1. The Applicant’s son Mr Howard was called to give evidence.  He is a police officer and gave evidence that on two occasions he undertook the delivery work for a day at the Respondent’s business on behalf of his Mother.  The days were not consecutive. He drove the Applicant’s car (the Toyota Echo).

2. On the first occasion, the Respondent was operating from its previous premises, and on the second occasion the current premises.  He was only asked to fill in the week before, and he had met Mr Luca and other staff at the Respondent’s business on previous occasions.

3. On the days that he worked, he only had one or two urgent deliveries. He did not need training as he had visited the Applicant at work before and was aware of the arrangements that were in place. 

4. Mr Howard presented as a genuine and frank witness, and I have no difficulty accepting his evidence.

Mr Luca’s Evidence

1. Mr Luca was called on behalf of the Respondent.  He had been a Director of the Respondent from 1984 to 2000 and then in 2015 to 2016.  He has been a Managing Director and General Manager of the business over the years.  He presented as a fairly open witness in the witness box.  I formed the view that he was a reliable and honest witness.  I generally accept his evidence.

2. The business supplies parts to trade repairers and has a retail business.  He confirmed that in 2010 the business moved premises.  The wholesale or trade part of the business was the majority of the delivery work. He worked in the wholesale area and was a significant part of the sales team. 

3. He confirmed that the system of work was largely as set out by Ms Howard in her evidence.  He confirmed that there were one to two drivers who were employees on award wages using motor vehicles supplied by the Respondent until around 2016.  

4. In 2001, the contract drivers were obtained from Ontime Couriers, and the Applicant was assigned by Ontime Couriers in 2002.  The initial rate was $23 per hour provided there was a minimum of 38 hours provided per week.  He understood that the rate would be higher if less than 38 hours were required.

5. I accept that there were employee drivers of the Respondent and contractors engaged by the Respondent (initially through Ontime Couriers). I also accept that the reason for the use of contract drivers was based around the business needs and uncertainties. Mr Luca explained that the Respondent wished to grow its business but faced business uncertainties and the setup time and capital expenses of purchasing vehicles for employee drivers.  This led to the use of Ontime Courier contract drivers for some of the work, even though the hourly cost was considered a little more expensive.  I accept that there was a legitimate business purpose underpinning the use of both employed and contract drivers in the context of this particular case.

Use of Ontime Couriers

1. He said that in 2004, he was told by Pat Ordini that the Applicant had changed type of car (when she disposed of her van and bought the Toyota Echo) and that therefore she no longer met Ontime Couriers’ criteria for their fleet and would not be made available in future from Ontime Couriers.

2. He explained that the business commenced using couriers from Ontime Couriers as they wished to grow their business but did not want the immediate expense of purchasing motor vehicles and obtaining staff.  He said that he had had no real discussions with the Applicant about what sort of vehicle she should obtain and not spoken to her about her purchase of a Toyota Echo. He explained that had he had a choice he would have suggested a commercial vehicle rather than Toyota Echo or a Corolla.  It was clear he had no discussions with the Applicant about her Corolla. 

3. He noted that other Ontime Couriers had vans who were able to cover if her Corolla was too small a vehicle on occasions, and so in the context of the business, the Corolla did not present any real difficulties.

Applicant’s engagement

1. Mr Luca said that he did not contact the Applicant after she changed vehicles and was terminated by Ontime Couriers, as Ontime supplied another driver.  He said that she came back to see him and that she had located Tasmanian Trucking. It was certainly clear that she located Tasmanian Trucking, as she said that it was her neighbour’s trucking company. There were no specific discussions about holidays and sick pay and so on, although during the course of the evidence he said that it was a rolled-up rate, referring to the rate for the vehicle and labour provided by the Applicant.

Tasmanian Trucking arrangement

1. When Ontime Couriers terminated the Applicant’s arrangement, he spoke to the Applicant because she said she was looking for work.  He said that he explained that under his contract with Ontime Couriers, they were unable to provide work to the Applicant directly for the next 12 months.

2. He said he told the Applicant if she found another way, he would consider engaging her services. He explained that the Applicant then contacted him and advised that a friend of hers operated Tasmania Trucking Proprietary Limited and could supply her to do couriering work.  Mr Luca said that they set the rate and conditions based upon the arrangement that had been in place with Ontime Couriers, which is consistent with the evidence given by Ms Howard.  Tasmanian Trucking was used for two years, and then the Applicant told Mr Luca that she could not continue with Tasmanian Trucking and asked him if he would engage her directly. He said he believed she was operating a business and asked for the ABN and GST registration, and she told him that she was not registered for GST but was told by her (and he was unsure whether it was immediately or later) that she was not required to register for GST.  He accepted her advice in this regard.

3. The Respondent never contributed to vehicle maintenance, although did start contributing to tolls in either 2009 or 2010.  It appears that by this time they were also paying for tolls with Ontime Courier drivers.

Contract and terms

1. There was no specific written contract in place between the Applicant and Respondent, only the informal oral contract that had continued on in substantially the same terms as when the Applicant had been a sub-contractor with Ontime Couriers and with Tasmanian Trucking: the supply of a vehicle and driver (not simply for a driver) at an hourly rate with a minimum engagement per week.

2. It appears that from 2008, Ontime imposed a fuel levy around $50 or $60 per week for Ontime drivers, and this was not paid to the Applicant.  Unfortunately, the Ontime contracts for the relevant periods were no longer available through discovery as the periods were so long ago (it appears neither party subpoenaed Ontime Couriers).  However, a more recent contract was placed in evidence. It is not clear whether the terms were identical, although substantially similar terms appear to have been in place.

3. The Ontime contract provided for a minimum of 38 hours under flat hourly rate for vehicle and driver.  The more recent Ontime contract offer provided for a minimum engagement period of one year, which may have been the provision in the past. The Ontime arrangements also provided that the minimum vehicle would be an Onetime commercial vehicle. The reasons for that are unclear. It is possible that this may have been (in part) a condition imposed by Ontime to strengthen the position of Ontime that drivers were on contract and not employees.

4. I accept that the ‘parts interpreters’ (the staff who took orders and advised on the equivalent replica part for a given genuine vehicle part) could not effectively direct the drivers, as they would only know which were their most recent orders.  At best, if drivers were leaving, they could ask drivers to wait a moment so that they could bundle up their most recent order.

5. The Respondent approached the arrangement on the basis that it was a contract.  They kept no leave records for the Applicant, they paid the Applicant through their invoice accounting system (not through their wages system). Mr Luca was not even aware that there were leave forms ever filled in by the Applicant.

Invoicing method

1. He explained that invoicing for whole days was convenient as, although there was a small amount of downtime, there was also some give and take by the contractors.  He did not think there was an alternative convenient method for calculating rates for the contractors.  He had no tracking devices or other basis for calculating payments.

2. He said that he never discussed the routes that the Applicant should take with her although assumed that she would take the most efficient route, which on evidence it appears that she did.

Melbourne Pathology arrangement

1. Mr Luca found out at one point that the Applicant was working for Melbourne Pathology on Saturday mornings, and assumed that she was working there as a contractor as well. She never sought consent, nor does it seem that he expected that his consent would be relevant.

Shift arrangements

1. Mr Luca was clear that the Applicant rarely arrived at work before 8.45 am and that she left at 5 pm (usually), although last deliveries were normally by 4.30.  He said she would often stay until 5 pm waiting to finish.  He did not formally direct her about breaks although preferred staff that are employed by the business to take breaks.

2. He said that the business sees employees as family members, although it is unclear where that takes either case in these proceedings.

3. When the Applicant was unavailable, she would telephone him usually at very short notice, but he confirmed that he had never reprimanded or pulled her up about such conduct.  She never billed for a day that she was not providing a service. Mr Luca recollected the Applicant’s son driving twice, as the son gave evidence, but thought there was at least one other occasion where for two weeks the Applicant had not driven.  He was unclear as to this, and it is difficult to place much weight on this particular part of his evidence.

4. He stated that he did not really mind who drove the vehicle as his interest was simply in having a courier.  As it transpired, aside from the Applicant’s son occasionally driving, no other person was provided as a courier driver by the Applicant, and the extent to which the arrangement about supply of drivers was flexible it was never tested on a practical level. 

Run sheet

1. Mr Luca’s evidence with respect to the run sheet was that it had been designed by the Respondent based upon the Applicant’s suggestion, and a handwritten sheet she created. He explained that generally drivers sorted out which route they would take unless there were more than one urgent deliveries in which case they would ask.  Whilst Abbie (an employee mentioned in the evidence) might have given indications, he confirmed that Abbie was an employee and not the second in charge in the business and had no formal authority to direct the couriers.  There were no set deliveries each day, nor set runs.

Uniform

1. Mr Luca explained that in the retail side of the business there was a compulsory uniform with button-down shirts, but that in the trade side of the business there was no uniform required and even today no uniform is required in that part of their business.

2. He confirmed that the polo shirts were a promotional shirt and obtained at a time when Auto One operated a drag racing car.  He said that shirts were given to staff and to some customers. He noted that the Fuchs promotional clothing must be very old as they had not dealt with Fuchs for 12 years, and similarly that the Castrol jackets were promotional jackets provided by Castrol and not uniforms of the business.  There is a photo in the Court book showing a storeroom with a large amount of promotional clothing of the type commonly seen in the auto industry.

3. Mr Luca said that the Applicant had asked for a jacket so they provided her one, but she was never formally required to wear it. 

Applicant’s injury

1. Mr Luca recalls the Applicant finishing on 28 October.  He said that he had spoken to the Applicant in the week before the Melbourne Cup and that until then he was unaware of her injury to her finger.  He said that she told him that she would be back after the Melbourne Cup day or a week after that and that this did not trouble him as many of the drivers had the long weekend off and work was slow at that time.  He did, however, expect her to be returning within one to one and a half weeks of that telephone conversation.

2. He said that she did not contact him again then until the end of November.  He explained that he had not followed her up by telephone as he took the view that it was up to her to contact him to advise what she was doing.  He said that he then spoke to her before Christmas and she advised that she could not come back as she was on workers’ compensation.  He said that she should let them know when she wanted to resume arrangements and that he would see what the business could do.

3. Over Christmas the business closed its Heidelberg store but did not retrench all of its staff as it was thought that it would keep customers in the area and would be able to relocate the staff into their main store.  One of the employee drivers at Heidelberg came to the main store at that time.  In January, when the Applicant spoke to the Respondent by telephone, he said he told her that he needed a few weeks to sort out stuff and thereafter that they did not require her additional courier services. 

Return to work discussions

1. The evidence as to telephone calls in November 2014 through to January 2015 of both Mr Luca and the Applicant is less than consistent, and not well reflected by the text messages in general.  I prefer, firstly the text messages.  In substance, it seems to be that the Applicant rang to say that she was not well enough to work and on WorkCover, but expected to be back early in November.  She did not call until late November, but then only to say that she was still not able to return to work.

2. In January she did call back in two to three weeks.  Whilst Mr Luca says she didn’t call back, that seems unlikely.  Mr Luca’s evidence was not clear at first, although when pressed it seems clear that there would not have been a position to offer her work in January, in any event, given the other business arrangements that had been entered into following closing a store and reassigning employees within the stores that were still operating.  In short, the arrangement could not simply restart, at least from the Respondent’s point of view.

Current business arrangements

1. Mr Luca explained that at present there was one Ontime Courier driver, one fulltime employed driver and two part-time employees who were driving for the company. He confirmed that there were around 200 trade customers of the company, and that most orders were taken over the telephone by the three or four ‘parts interpreters’ who would then immediately obtain the parts and place them on the shelves with the invoice.  As a result, the telephone ‘parts interpreters’ (those identifying the correct replacement parts from the original parts descriptions) would not have the knowledge to direct the drivers as to their most efficient runs.

2. He estimated that there would be 40 to 50 jobs per day for delivery, and that the principal business was that of selling replica parts to trade buyers.  He confirmed that one customer was a priority customer (others were from time to time) as he was a good customer.  Whilst he didn’t instruct the drivers, he expected them to pick the most efficient route, although sometimes they would be asked to change route as there had been a delivery error or there was an error in the parts that had been provided that needed to be rectified. He said that he never instructed drivers to change routes in order to reprioritise deliveries although he was of the view that he had the capacity to direct a driver to deliver to one location before another, although he never exercised that capacity.

Mrs Luca’s Evidence

1. Mrs Luca gave evidence that she was the office manager and confirmed the fees that were based upon Ontime rates.  She said that there was a period when Ontime weren’t used to provide a driver in the lead up to the change of rates with the Applicant to $27 per hour.  She confirmed that the staff were paid under the motor vehicles award, which had now reached around $20 per hour.  This appears to have been the appropriate award for the business.

2. She confirmed that the business had various vehicles from Charades and a Toyota Yaris through to Proton Utes, operating at different times.  These vehicles were used by employees carrying out work tasks, including courier tasks.

3. She also confirmed that the Applicant did not arrive at work on some days until 8.45 or 9 am and that some days she would go home after the last delivery. She also said she had seen the Applicant’s car parked at the shops during the working day.  

4. She confirmed that the accounting system used for the Applicant’s invoices was that used for creditors and not the employee system.

Uniform and expenses

1. Mrs Luca said that the drivers generally wore comfortable clothes, and that there was no uniform requirement for drivers. An e-Tag was supplied, although when it became apparent that there was some double-charging (as both the business and Applicant’s E-Tags were in the car at the same time), an arrangement was entered into for the Applicant to invoice the charges on her personal E-Tag, which the business would pay. 

2. She did not believe that the Applicant was paid for fuel at any point, and there were no fuel receipts kept by the Respondent.

Leave arrangements

1. She said that prior to there being forms for leave, notification by the Applicant occurred when the Applicant placed her name on a board or whiteboard that had a schedule of unavailabilities.  Whilst the Applicant never provided a medical certificate, it was the business practice to seek medical certificates from employees when they were ill.

2. Mrs Luca confirmed that the Applicant decided to reduce her availability to three days per week in 2014.  There does not appear to be any evidence of any notice period provided for that unilateral change in availability.

3. She confirmed that the Applicant was invited to the Christmas party as the Applicant had been working with the company for a long time.  She believed that all of the staff, their family members and the Ontime drivers were at the Christmas party.

4. She said that she overheard the conversation in the lunchroom when Mr Luca asked the Applicant to give him two to three weeks, whilst the business was being rearranged. 

5. During cross-examination, Mrs Luca said that she did not believe that the Applicant had said that she would do other work for the business if that was available in the conversation that she overheard in mid-January.  She did hear the comment that there was not enough work at that stage being voiced by Mr Luca.  She didn’t make an offer of work to the Applicant.

1. I generally accept her evidence.

Adele’s Evidence

1. Mr and Mrs Luca’s daughter-in-law, Adele, was called to give evidence.  She was working three days per week in the office, having come to the business with a Bachelor of Commerce degree and membership of the Institute of Chartered Accountants.

2. She gave evidence that she only became aware of the Applicant’s injury when she was told in October 2014. She confirmed she sent out the Christmas Party notices and that they went to work colleagues, good customers, family and friends and the contract drivers.

3. She said that the Applicant telephoned her an hour before the Christmas party to say that she could not come, and that she had recently met with her specialist. Adele told the Applicant she would need to speak to Mr Luca, and did not engage in discussions about the work arrangements with the Applicant. She believes this was on the second Saturday in December in 2014. She also saw the Applicant in the tea room in January, and engaged with the Applicant with some texts around toll reimbursements, which she arranged as pay as part of her role in the office to ensure that the Applicant was paid for the invoices.  There were no disputes as to these amounts.

4. She was the person who made inquiries of Centrelink to identify the correct form for a separation certificate and prepared that form as requested by the Applicant.  She said that she had seen the Applicant from time to time since then at the shops and at a restaurant that they both frequent from time to time on Fridays. 

5. Adele presented as an impressive witness.  I have no hesitation in accepting her evidence.

Conclusions

1. This case concerns dealings between the parties over many years.  The relationship commenced when the Applicant was assigned to the Respondent by Ontime Couriers as a contract courier.  At that time she operated a 1 tonne vehicle.  She had her own ABN.  She had been involved in the transport industry for many years in various positions.  The full details of her relationship with Ontime Couriers is not the subject of evidence (although clearly it was that of a contractor), and Ontime’s dealings with the Respondent was for the provision of contract courier drivers.  The Respondent’s business needs were for contractors, due to the uncertainties of their business needs and the costs of establishing an employed driver in their relatively small business.  

2. When the Applicant’s 1 tonne vehicle had to be replaced she chose to purchase a smaller vehicle.  The contracting work she was doing for the Respondent did not necessitate a large vehicle.  She was paid a flat hourly rate from Ontime Couriers. 

3. The Applicant made no enquiries with Ontime Couriers before replacing her vehicle with a smaller one, and they refused to continue to use her as a contractor on the basis that her vehicle was too small for their fleet.  It was at this point she made arrangements with a neighbour to be engaged by his company (Tasmanian Trucking) who would then contract her services to the Respondent.  This appears to have been required due to a restraint of trade clause in the contract between Ontime Couriers and the Respondent. 

4. I am not persuaded that the Respondent actively sought to have the Applicant put in place arrangements to overcome the restraint.  She had not found other work, and was seeking to continue to provide services to the Respondent.  She located the intermediary (Tasmanian Trucking) and made her own arrangements with that company.  The effect of those arrangements was for her to receive the total of the payments made by the Respondent (set by reference to the amount previously paid to Ontime Couriers).  As the rate was set by reference to the rate paid to Ontime Couriers, the arrangement was slightly more remunerative for the Applicant, as Ontime Couriers did not receive part of the funds paid, and she operated a smaller vehicle.  Over time, the restraint clause ended, although it seems that eventually arrangements changed as a result of Tasmanian Trucking no longer wanting to be involved.  Thereafter the Applicant contracted directly with the Respondent, still, it appears, on terms reflecting what the Respondent would have had to pay Ontime Couriers for alternative contractors. 

5. I accept that the parties clearly intended their relationship to be one of independent contracting rather than a relationship of employment. 

6. Throughout the relevant periods the Respondent also used Ontime Couriers contractors from time to time, and the Respondent also had employee drivers.  This is not a case of an employer simply setting out to avoid standard employer’s obligations.  The Respondent had employed drivers and had a legitimate business need for contractors.  The Applicant started working with the Respondent as a contractor.  Over time the arrangements with the Applicant became more favourable to her than the arrangements she had with Ontime Couriers, with regard to the vehicle requirements and the proportion of the payment rate she received.

7. The Applicant did not wish to be an employee of the Respondent, primarily because she would not have been able to choose the type of vehicle she would have to drive for deliveries, nor have private use of the delivery vehicle.  She also enjoyed some small flexibilities not likely to be available to employees.  These differences were important to her.

8. The nature of the work did not require any significant induction, training or direction.  Goods ready for delivery were placed upon shelves and the deliveries made in runs to purchases located in similar geographic areas.  Some planning was required to take an efficient route to make the deliveries.  The Applicant developed the ‘run sheets’ used for the work by all of the drivers: although not a novel innovation, it nonetheless reflected her particular skills and experience in the courier industry.  Similarly, the requirement to prioritise a certain customer (sometimes others) was an incidence of the courier work available.  It is not unusual for a contractor to meet the need for priority deliveries, differently from standard deliveries.

9. The Applicant did not adhere strictly to the hours of work of employees, nor employee requirements for medical certificates or prior approval for holidays. She booked fares on occasions before notifying the Respondent she was taking leave.  She chose not to use the invoice books provided by the Respondent as she preferred those that she purchased.  She chose her own motor vehicle based upon her preferences for the type of car she liked: she disliked manual vehicles in particular.  She was not required to have any livery or signage on her vehicle which she used for her private purposes as well as for courier work.  She was occasionally seen at shops during the day, a liberty an employee may have been cautioned about, without adverse comment.  In total the arrangement provided a number of small liberties beyond that ordinarily expected by an employee in addition to the opportunity to choose her own motor vehicle, a liberty that was unlikely to be extended to a driver, and to have the private use of the vehicle. 

10. The Applicant worked as an employee with Melbourne Pathology during much of the period.  It is not uncommon for people to have more than one source of income.  That she worked as an employed delivery driver on the weekends does not seem inconsistent with either being a contractor or employee during the week.  It would, however, have highlighted the difference in the nature of the arrangements she had with the Respondent. 

11. The Applicant did not have public liability insurance.  There is no evidence as to the terms of her motor vehicle insurance, although all cars have at least compulsory third party personal injury insurance.  The nature of the activities was such that a car accident was the major risk.  It does not seem that this is a significant factor in the context of this case.

12. Whilst she chose to use industry clothing (both the Respondent’s and that of manufacturer’s) that was her personal choice as only the Respondent’s retail store employees were required to wear a staff uniform. She attended some afterhours staff meetings when the Respondent was reviewing its business.  I am not persuaded that she was directed or required to do so: her attendance was consistent with maintaining good contracting arrangement and being aware of what services the Respondent may need into the future.  She was invited to the Christmas parties, however it seems that the invitees were a broad group, even including some clients. 

13. The parties clearly intended their arrangement to be one of contractors and not an employer and employee relationship.  The Applicant issued invoices each week and was paid as a contractor.  She lodged her tax returns, prepared by her accountant, on this basis, claiming various deductions consistent with being a contractor.  She had made the arrangements with Tasmanian Trucking to continue as a contractor.  Whist the Respondent had employed drivers the Applicant never sought employment in such a position, as she did not wish to be an employee.  I am satisfied that she would have had no concerns about asking to be changed to an employment arrangement if she had wanted to be become an employee.  Both Applicant and Respondent continued over many years content with the nature of the arrangement being one of contractors. 

14. The arrangement with the Respondent cannot be said to have resulted in the Applicant having a saleable business. It was a single contract.  Whilst it appears that it was transferable (for example her son drove a few times), she did not seek to have anyone else perform the driving.  The preparedness of the Respondent to have different drivers can be seen from their ongoing use of Ontime Couriers to provide contractors as required.  There was nothing to stop the Applicant developing a business similar to Ontime Couriers: she did not chose to attempt to do so, and there is no evidence that the Respondent would have declined to contract additional drivers through her rather than Ontime Couriers.

15. On the Applicant’s evidence she had been involved in various businesses in the courier industry over many years: she was not a person with no skills other than driving a vehicle.  Clearly Ontime Couriers have sustained a business using the rates involved in this case.  The rates paid were above the basic hourly driver rate in the award: as Counsel for the Respondent submitted, the rates paid were between $23 and $27 per hour when the rates under the award were between $15.89 and $18.63 an hour.

16. When stepping back to look at the arrangements of these particular parties as a whole it appears that in the particular circumstances of this case that the Applicant was a contractor, as the parties intended and not an employee of the Respondent.

Termination of the contract

1. The Applicant says that on 8 February 2014 she injured her finger while working for Melbourne Pathology, an injury for which she underwent surgery on 28 October 2014, and was readmitted to hospital on 8 November 2014. She said that she contacted the Respondent after mid-December about the prospect of her return to work. She was informed that she would not be needed, and asked to call again in January 2015.  It appears that in December she also made a complaint to the tax office about superannuation.  In early January 2015 the Applicant contacted the Respondent and was informed there was still no work and to call in a week or two. On about 21 January the Applicant said she met with Mr Luca who informed her there would be no work for her.     

2. The Respondent points out that in or around late October 2014 the Applicant advised the Respondent that she was unable to provide delivery or courier services until 5 November 2015. She did not resume services then, and only offered to continue to again provide services in December, but the Respondent rejected this offer. The Respondent submits the Applicant’s engagement as an independent contractor was repudiated by the Applicant and the repudiation was accepted by the Respondent.  The Respondent did not pursue the Applicant to provide services when she did not return in November.

3. The Respondent submits that even if the Applicant could discharge the onus placed on her to prove that the contract for services contained a reasonable notice provision, one weeks’ notice would be more than adequate for the Applicant and Respondent to bring their affairs to an end.

4. Counsel for the Respondent submitted that the arrangement ended in January, as a result of the Applicant’s request for a termination certificate from the Respondent.  This followed a period when the Applicant had reduced her contracting time to three days per week for a period, and had then not offered to provide any services for a couple of months due to her ill health.  The Respondent had no work for her at that time, but said there may be work in the future; it transpired in January that there was not.

Conclusions

1. The Applicant had failed to provide courier services for at least two months (due to her ill health).  As a contractor, she was thus in breach by failing to provide any services.  The Respondent had ceased making payments during the period when the Applicant had ceased to provide services.  If the agreement was for fixed weekly services the Applicant was in breach in failing to provide the services.  Even if the Respondent waived compliance with the contract for the period she said she would be off with her injury, she did not contact the Respondent in early November to negotiate an extension of that period.  The Applicant ultimately offered to remedy the breach by resuming services in December.  The Respondent appears to have been prepared to consider waiving the breach but needed time to assess whether it could make arrangements to recommence providing the Applicant work over the next two to three weeks.  Such arrangements were not available as the Respondent had closed a store and was reallocating employees. If there was an agreement on foot in January, the Respondent terminated it. 

2. If the agreement between them was for the provision of weekly courier services (reduced earlier in 2014 to three days per week) then the Applicant had failed to provide services.  To the extent this was waived by the Respondent for her initially advised period of absence, there was no agreement to waive the breach from early November. The Respondent considered whether there was contract work (or indeed other work) available, but could offer none. 

3. However, it seems more likely that the agreement had changed from one where minimum hours were required on the part of either party to engagement at will.  Thus, the Respondent was not in breach in failing to immediately provide work as soon as the Applicant again offered to provide services on the terms that they had agreed.

4. In the particular circumstances of this case it does not appear that the Respondent was in breach of the agreement and no period of notice was required by the Respondent to the Applicant.

5. I therefore dismiss the application.

I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 30 April 2019