Jensen v Cultural Infusion (Int) Pty Ltd
[2018] FCCA 2137
•15 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JENSEN v CULTURAL INFUSION (INT) PTY LTD | [2018] FCCA 2137 |
| Catchwords: INDUSTRIAL LAW – Whether relationship between professional actor and sponsor of ANZAC production is that of independent contractor and principal or employee and employer – nature of the parties’ contractual relationship – whether sham arrangement – particular indicia of relevance to present application – applicant used ABN and invoiced respondent – consideration of control – applicant signed contract acknowledging relationship to be that of independent contractor and principal – no reserved right to dismiss applicant – whether actor able to delegate responsibilities – consideration of no PAYG instalments – respondent’s provision of equipment considered less significant – applicant incurred minimal expenditure considered less significant – applicant retained autonomy – economic benefit given neutral consideration – applicant not required to wear uniform – no leave entitlements provided in contract – parties in relationship of independent contractor and principal. |
| Legislation: Evidence Act 1995 (Cth), s.140 Fair Work Act 2009, ss.357, 358, 548, 564, 565, 569 |
| Cases cited: ACE Insurance Pty Ltd v Trifunovski (2011) 200 FCR 532 AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd& Anor [2006] VSCA 173 Australian Air Express Pty Ltd v Langford (2005) 147 IR 240 Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288 Commission of Pay-roll Tax v Mary Kay Cosmetics Pty Ltd [1982] VR 871 Zujis v Wirth Brothers Pty Ltd (1955) 93 CLR 561 Macken’s Law of Employment 8th Ed (2016) |
| Applicant: | SOREN JENSEN |
| Respondent: | CULTURAL INFUSION (INT) PTY LTD |
| File Number: | MLG 2698 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 19 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2018 |
REPRESENTATION
| Representative for the Applicant: | Ms Mbugua |
| Media, Entertainment And Arts Alliance |
| Representative for the Respondent: | Mr Hamilton Live Performance Australia | |
| Representative for the Fair Work Ombudsman: | Mr Finnegan | |
THE COURT ORDERS AND DECLARES
Declare that at all material times the applicant and respondent stood in the relationship of independent contractor and principal and not in the relationship of employee and employer.
By 4.00pm on 22 August 2018, the parties file and serve a submission (not exceeding 2 pages), together with short minutes as to the further orders or directions that are appropriate to be made upon the determination of the proceedings.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2698 of 2017
| SOREN JENSEN |
Applicant
And
| CULTURAL INFUSION (INT) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain why I have concluded that the applicant, who is a professional actor, was at no material times an employee of, but provided his services as an independent contractor to, the respondent, Cultural Infusion (Int) Pty Ltd (Cultural Infusion).
Applications were brought against Cultural Infusion by three actors, each of whom had signed a contract that was largely in common form. The claims for relief sought in this Court were brought pursuant to the small claims procedures under the Fair Work Act 2009 (Cth) (Act).
The claims arose out of the engagement by Cultural Infusion of the applicants to participate in a series of performances called the ANZAC Centenary Roadshow: Victoria’s Journey of Remembrance (ANZAC Roadshow). The ANZAC Roadshow was underwritten by the Victorian Department of Premier and Cabinet and performed throughout Victoria at venues such as the Returned Services League and various schools.
In the circumstances described below, a hearing was conducted upon a preliminary issue whether the applicants were employees of, or stood in the relation of independent contractors to, Cultural Infusion.
Procedural History
On 11 December 2017, the applicants each filed an application electing for their proceeding to be dealt with under the Court’s small claims procedures in accordance with Ch 4 of the Act. Each applicant filed a Form 5 setting out the details of their claim.
The applicants claimed that they were entitled to compensation from Cultural Infusion by reason of alleged failures to pay certain minimum entitlements respecting wages, loading, rehearsal hours and cancelation of performances of the ANZAC Roadshow. The claims were grounded upon alleged contraventions of the Live Performance Award 2010 (Award), being a Modern Award within the meaning of the Act.
The applicants contended that they fell within the classification of a Live Performance Employee Level 9 under the Award and that they were causal employees within the meaning of that Award.
Each application was listed for hearing on 23 March 2018. Affidavits of service showed that service of the applications on Cultural Infusion had been affected on 15 March 2018. On 21 March 2018, Cultural Infusion filed an Application in a Case in each proceeding seeking an adjournment of the matter and an affidavit in support.
On 23 March 2018, the applications were listed in the small claims list. In the course of a directions hearing conducted in each application, the applicants contended that the contracts which they had signed contravened the sham arrangement provisions of Ch 3, Part 3.3, Div 6 of the Act by representing that the contract of employment under which they had been employed was a contract for services under which they were to perform work as independent contractors.
A common issue presented by the sham arrangement allegations, and each of the alleged Award contraventions upon which the applicants relied, was whether they were employees or independent contractors. In those circumstances, I concluded that the three applications might be most efficiently addressed by the conduct of a hearing to determine as a preliminary issue whether the applicants were properly to be regarded as employees or independent contractors. The parties were agreed in the adoption of that approach.
Orders were made in each proceeding that Cultural Infusion file a Response, for all parties to file submissions and to prepare a Court Book containing documents on which they relied. The parties are to be commended on the manner in which they co-operated in that regard.
By its Response, Cultural Infusion claimed that it was in the business of providing educational and school performances and that it engaged independent contractors for all of the programs and events which it undertook including the ANZAC Roadshow, an event that it described as being an initiative of, and funded by, the Victorian Government. It also contended that the Government had direct involvement in the content and development of the script and controlled the schedule of the performance of all events.
By its Response, Cultural Infusion described the ANZAC Roadshow as being different from its usual engagements (which were of comparatively brief duration, ranging from 50 minutes to two weeks). Contrastingly, Cultural Infusion was engaged to provide the performance of the ANZAC Roadshow for a period for 12 months.
By its Response, Cultural Infusion further contended that before being engaged the applicants well knew the nature of its engagement by the Victorian Government and that they had auditioned for or been engaged as actors. It contended that it was common practice for actors to be engaged as independent contractors rather than as employees. It also contended that the applicants had not signed any contracts (as no signed contract could be located in its offices) and that each of the applicants were free to engage in other work throughout the period of their engagement. Cultural Infusion further contended that the applicants worked autonomously in undertaking the performances and that they each invoiced Cultural Infusion on a monthly basis for the services which they provided, utilising their respective Australian Business Numbers (ABNs) in doing so.
At the hearing held on 18-19 June 2018, each of the applicants gave evidence. Cultural Infusion led no evidence. I accordingly disregard its contention that it was common practice for actors to be engaged as independent contractors rather than as employees.
Each of the applicants endeavoured to give their evidence in an honest and forthright way. While they were perhaps understandably invested in the success of their applications, on occasions their evidence was given in a conclusory way, often volunteering that their work had been performed under the direction and supervision of Cultural Infusion. Without intending any disrespect, their evidence appeared at times to be rehearsed. Without leave, Mr Palframan and Ms Goodwin each gave their evidence by reference to prepared notes. Once this became apparent, they desisted from doing so. It is not unimportant that their evidence was not contradicted by another witness.
Generally, I was impressed by the manner in which each of the witnesses gave evidence. The findings which I make on the evidence adduced before me and the inferences which I draw are set out below.
The Actors
Each applicant is a professional actor. They have differing levels of experience. Mr Jensen, Mr Palframan and Ms Goodwin’s respective careers as professional actors began in 2002 until quite recently. They range in age from mid-twenty to late thirty.
The actors agreed that they were engaged in a skilled profession. Mr Palframan and Ms Jensen gave evidence that in seeking to generate business for themselves, they were represented by film and television or theatrical agents. They also said that they sought to generate opportunities for themselves using social media such as Facebook. For example, Mr Palframan said that there were countless ways in which he found work. Ms Goodwin also engaged a theatrical agent.
Engagement
Mr Jensen gave evidence as to how he was engaged to do a theatre and educational show for the commemoration of the ANZAC Centenary. He described it as a Government program to inform students and to encourage them to engage in the ANZAC history.
Mr Jensen became involved in the ANZAC Roadshow when he responded to an advertisement on Facebook. Although Cultural Infusion called for expressions of interest for auditions, Mr Jensen and Mr Palframan both said that the production manager of the ANZAC Roadshow, Mr Doug Montgomery, knew their work and that they did not need to audition for a role. Mr Jensen’s role in the performance was that of narrator.
Mr Palframan also pitched for his role on 11 July 2014 by sending Mr Montgomery a CD recording of a similar production in which he had been involved for the Department of Veterans Affairs.
The three applicants comprised the cast of the ANZAC Roadshow performance.
The actors conducted rehearsals of the ANZAC Roadshow over a two-week period. Rehearsals were overseen by Mr Montgomery together with the script writer, Sophia Suris. Mr Jensen described Ms Suris as being Mr Montgomery’s supervisor. Mr Jensen believed that the script had been approved by the Government.
Rehearsals were conducted in a basement area at the premises of Cultural Infusion. Mr Palframan characterised the rehearsals as constituting training that was undertaken by Cultural Infusion.
Ms Goodwin said that there was also a dress rehearsal at which the whole of the Cultural Infusion team had been present. She also said that because the rehearsal space was effectively located in the centre of Cultural Infusion’s premises ‘people were dropping in all the time’.
Contracts
Mid-way though their two-week rehearsal schedule, the actors were given a contract by Mr Montgomery.
Mr Jensen said Mr Montgomery had stated that he was negotiating with Cultural Infusion on their behalf and that the contract represented the best offer that he could get.
Mr Jensen said that Mr Montgomery wanted the actors to sign the contracts on the day that they were given to them. Mr Jensen and Mr Palframan each said that they had been placed under pressure to sign the contracts. Mr Jensen said that he would not have been able to undertake the performances of the ANZAC Roadshow if he had not signed the contract. Mr Palframan said that he had signed the contract as he felt that he had no other choice.
Unlike Mr Jensen, both Mr Palframan and Ms Goodwin said that the contracts had been presented to them at a meeting held at Cultural Infusion. Mr Palframan described a meeting attended by each of the actors with Mr Montgomery, Ms Suris and a person named Francis McDonald. Ms Goodwin agreed that the contracts had been provided to the actors at a meeting as described by Mr Palframan, but made no mention of a Mr McDonald or anyone other than Mr Montgomery being in attendance.
Mr Palframan said that he signed the contract immediately at that time. He could not recall whether the contract which he signed contained various deletions which were made from the original document.
While Mr Montgomery had wanted the contract signed that day, Mr Jensen had taken the contract away, considered it overnight and signed it the following day. Mr Jensen said that he had signed the contract on about 15 July 2014 and that he returned it to Cultural Infusion, adding that he had been given a copy.
Although she had been absent when the other witnesses gave their evidence, Ms Goodwin said that her circumstances in relation to the contract were a little different to those of Mr Jensen and Mr Palframan. Ms Goodwin said that she had provided the contract for consideration by her agent. At this point in her evidence, it emerged that this was the first occasion, since graduating in 2013, that Ms Goodwin had been offered a professional engagement as an actor. She also said that the contract was provided to the actors on the second or third day of rehearsals and that they were instructed to sign the document.
Ms Goodwin was given a copy of the contract by Cultural Infusion as an attachment to an email. She sent it on to her agent, Anne Corrigan, of Kubler Auckland Management. From an email chain tendered in evidence, it is apparent that Ms Corrigan and Mr Montgomery negotiated over certain terms of the draft contract over the two-day period of 16-17 July 2014. In particular, Ms Corrigan raised concerns in relation to cll 1, 7.9, 7.13 and 9 of the contract. As concerned cl 7.13 of the draft contract, Ms Corrigan’s email stated:
Section 7.13 – that Jean would be expected to acknowledge that SHE is responsible for any injury, loss or damage caused to any person(s) or property arising from a performance – she will be getting public liability insurance and we will be giving you confirmation of that.
(emphasis added)
Ms Corrigan’s email also addressed the circumstance that Ms Goodwin was also to be covered by WorkCover insurance.
Mr Montgomery then sent a redraft of the contract to Ms Corrigan on the morning of 17 July 2014. Some seven hours later, at 5.03pm, Ms Corrigan sent Mr Montgomery an email in reply stating:
I have checked over the contract and I’m fine for Jean to sign it.
Although the negotiations between Ms Corrigan and Mr Montgomery provided that Ms Goodwin’s contract should be amended so as to be for a one year term, it does not appear that this amendment was made.
As the applications had been made as small claims, I allowed the applicants the opportunity to tender a copy of the signed contract after they had given evidence, but in the event none was located.
Terms of the contracts
Each of the applicants tendered in evidence an unsigned contract expressed to be made between Cultural Infusion and ACT. It is not unimportant that each of the three contracts tendered in evidence were documents produced by the applicant’s representative organisation, Media Entertainment & Arts Alliance (MEAA). The Response filed by Cultural Infusion was that it could not locate the contracts. I note that MEAA had exercised statutory rights of entry upon the premises of Cultural Infusion in relation to suspected contraventions of the Act.
The applicants conducted their cases on the basis that the contracts tendered in evidence had been signed by them. The contracts were drafted in a somewhat rudimentary form. For example, one of the longest terms related to the consequences of events of force majeure and appeared to have been cut and pasted from some other agreement. Having regard to their form, I consider the contracts should be construed against the matrix of mutually known facts which underpinned the production of the ANZAC Roadshow and as two honest businessmen would understand their terms: Cohen & Co v Ockerby & Co Ltd(1917) 24 CLR 288 at 300 (Isaacs J); AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173, [80] (Nettle JA, Maxwell P and Bongiorno AJA agreeing).
A feature of the contracts was that various clauses had been deleted and in place of the deletion appeared in italics a statement such as [Deleted by Doug – 15072014]: see e.g., cll 2.1, 2.2, 4.4, 4.6, 4.8, 4.9, 4.17, 6.1, 7.11, 9.1.1 and 9.1.2. Mr Jensen said that the typed reference Deleted by Doug was a reference to Mr Montgomery and that it was he who had deleted the particular clause. He said that the reference to 15072014 was a reference to 15 July 2014. How Mr Jensen knew that Mr Montgomery had deleted the clauses in question was not explained by his evidence.
Mr Jensen agreed that those clauses had been deleted in the contract which he had signed and said that the contract was in that form when it had first been provided to the actors for signature. When it was pointed out that some of the deletions were marked as having been deleted:
a)on 15 July 2015, Mr Jensen suggested that this had been a mistake by Mr Montgomery;
b)on 17 July 2014, Mr Jensen suggested that this deletion had been made by Mr Montgomery after the contract had been signed.
The preamble of the contracts recited that, for the purposes of that document, relevantly in the case of Mr Jensen, the acronym ACT represented Mr Jensen for and on behalf of ACT. Otherwise ACT was not defined. Having regard to the principles referred to in [39] above, I construe the reference in the preamble to ACT as meaning Mr Jensen.
Clause 1 of the contract was titled Considerations. By cl 1.1 of the contracts, the conditions in the contract were expressed to be legal and binding. Mr Jensen and Mr Palframan’s contracts were expressed to be for a period not less than one year from the date accompanying the signatures. Clause 1.1 stated that the contract could only be varied by written consent of both parties. Contrastingly, while Ms Goodwin’s contract was expressed to operate for a term of two years, I note from the email exchange referred to at [34] above, that Cultural Infusion and Ms Goodwin’s agent had also agreed to a one year contract term.
Somewhat curiously, cl 1.4 provided that the named representative of ACT (as manager/contact) was authorised to act on behalf of ACT and would undertake the several obligations expressed in sub-cll 1.4.1 to 1.4.6. By cll 1.4.5 and 1.4.6 of the contact, ACT was proscribed from engaging performers without first notifying Cultural Infusion or from sub-contracting other performers to perform in place of ACT under any circumstances. Mr Palframan said that he understood these obligations to bind him. Those provisions should, however, be read with cl 4.9.1 which provided that performers suggested by ACT as replacement performers must be approved by Cultural Infusion.
Clause 1.5 was expressed in ambulatory terms and provided that the relationship between Cultural Infusion and ACT was “that of independent contractor and not that of employer and employee unless otherwise specified.” From my examination of the contract, there is no other part of the contract in which the relationship between the actors and Cultural Infusion was otherwise specified. Mr Jensen agreed that he had had the opportunity to make changes to the contract and also agreed that he had not sought to negotiate on the terms of cl 1.5.
The contract contemplated that if the actor was unable to provide his or her services, Cultural Infusion reserved the right to pass the performance to other artists: see e.g. cll 2.4, 2.5, 4.5, 4.12, 4.13. The contract expressly provided that Cultural Infusion could not guarantee or determine how much work would be available: cl 4.18.
Clause 3, which concerned publicity, included provisions obliging an actor to: (a) be available, at no cost, for two publicity or promotional performances; (b) allow Cultural Infusion to arrange publicity photographs; (c) acknowledge Cultural Infusion as sponsor. The actors were required, in one way or another, to acknowledge Cultural Infusion as the sponsor of the ANZAC Roadshow and to display its signage and to carry its business cards.
The contract provided that performers would be responsible for their own public liability and WorkCover insurance and that they would be responsible for any loss, injury or damage caused by the actor: cll 1.6, 7.9, 7.13.
By cl 4.1 of the contract, the actors agreed to undertake rehearsals for the fee specified in cl 7.8. The fee was specified by reference to “the current MEEA award equity rate”.
By cl 5.1 of the contract, Cultural Infusion agreed to pay the actor the fee prescribed in Item 2 of the Schedule. Clause 5.2 provided that such fee was inclusive of Goods and Services Tax (GST) and obliged the actor to provide an invoice for the fee and any expenses.
Clause 7.5 of the contract provided that if the actor was unable to provide an ABN, Cultural Infusion would be obliged to withhold 48.5% of the fee otherwise payable to the actor.
Clause 7 of the contract provided in detail for the manner in which an actor would invoice Cultural Infusion for performances.
Schedule 1 of the contracts prescribed the actors’ rates of pay and allowances. By Item 2 of Sch 1, the daily rate payable to Mr Jensen was $246.80. Allowances were specified in the schedule for extra hours, tour and overnight stay and living away from home. Mr Jensen said that cl 4.10 of the contract which related to the payment of cancellation fees was inserted in the contract at some stage after it had been signed. He explained that the actors had become concerned about non-payment on occasions where a scheduled performance had been cancelled and that Cultural Infusion had agreed to this variation.
The contract contained no provision which entitled Cultural Infusion to summarily dismiss or terminate the actor: cf cll 7.10-7.12. It did not expressly reserve in any detail the manner in which Cultural Infusion would retain control over any particular aspect of the performances. Nor did it confer any express entitlement to holiday pay, sick pay or annual leave.
The Award
Clause 10.4(a) of the Award defined Casual employment as:
. . . an employee engaged as such and paid by the hour. An employer when engaging a causal must inform the employee that they are employed as a casual, stating by whom the employee is employed, their hours of work, their classification level and their rate of pay.
By cl 13.2 of the Award, the minimum weekly rate payable for a Level 9 Live Performance employee was prescribed at $927.50. By cl 24.6 of the Award, casual employees were entitled to be paid 16.7% of the applicable weekly rate for each performance plus a loading of 25%. This clause further provided that the maximum length of each performance would be three hours (and less for dancers).
Upon a calculation made at 16.75% of $927.50 plus a loading of 25%, a person who was a casual employee would be entitled to a payment of $193.65 per performance. Under the contract, the actors were to be paid a daily rate of $246.80 plus other allowances as set out in Schedule 1.
Performances
The actors requested four weeks’ notice of the schedule of the performances and this notice was provided in the first instance by the Government. Based upon the Government’s requirements, Mr Montgomery prepared and emailed to the actors, a monthly roster of the performances of the dates on which they were scheduled and indicating where they were to be undertaken.
From the whole of their evidence, I infer that they had requested this notice for the purposes of enabling them to give priority to their obligations to perform in the ANZAC Roadshow and to assist them in co-ordinating their other work opportunities and commitments.
Mr Palframan, in particular, said that the scheduling of performances was set by the Department of Premier and Cabinet and that he requested more than a months’ notice because he considered himself obliged to give priority to the work with Cultural Infusion over other work opportunities. He said that the amount of notice for scheduled performances that he received was in fact irregular.
Ms Goodwin said that she was given, on average, about four weeks’ notice of each scheduled performance.
Mr Montgomery attended every performance. In addition to being the production manager, Mr Montgomery was also described as being the technical operator who ran the lighting, videos and music during each performance.
Mr Jensen said that there was about 15-16 weeks in the 52 week term of the contract for which no work was scheduled at all. Mr Palframan said that once 15 weeks were taken out for annual school holidays, he believed that the actors presented the ANZAC Roadshow to 120 venues over 100 days.
The actors were agreed that for the remainder of the period, the volume of work fluctuated from week to week. On some weeks there would be three or four days’ work per week; on other occasions it was less busy.
Mr Jensen was asked to explain how much influence or constructive criticism he and other actors had in relation to the presentation of the ANZAC Roadshow. He said that, as a skilled artisan, he had his own thoughts on how the performance should be portrayed to the target audience and that he conveyed those thoughts to those present during rehearsals and at other times.
Mr Jensen accepted that he had influence in how he delivered the text of the script of his part in the performance. Asked whether he had just done as he was told, Mr Jensen said that the guidance and governance from the Victorian Government and Cultural Infusion had been fairly strict inasmuch that there was to be no deviation from the script.
Ms Goodwin volunteered that the actors had been given no freedom and no personal choice as to how they were to perform the show. As she saw the matter, Cultural Infusion made all the decisions, adding that people from the Department of Veterans Affairs came regularly to make sure that the actors were performing to the standard at which the ANZAC Roadshow had originally been presented. Ms Goodwin was less certain whether the Department of Premier and Cabinet was also involved, however, she added that the Chairman, Mr Baillieu, had also been quite interested and ‘very present’.
Asked as to the extent of collaboration in the script, Mr Jensen and Mr Palframan each accepted that the actors would make contributions by way of suggested changes to the script from time to time. For example, if during a rehearsal it emerged that particular text was jarring, one of the actors, the production manager or script writer would suggest an alternative, the suggested alternative would pass through a series of iterations and the final version would be written up by the script writer. As Mr Palframan saw it, collaboration in the script was a very important and normal part of the artistic process. He stated:
As part of the creative team. As with all we work under the same branch or tree of the director. The director has the final call. So as an actor, you – my body and my voice is my tool, an implement to be used so therefore some things that come out of my mouth in the rehearsal period may have made it into the script. I had little control over whether or not that was the case, but as an actor, I would offer. I would make suggestions, I would make offering as part of a creative team. . . . That’s part of every creative process and every script development, every new work I’ve been involved in in my career . . .
Ms Goodwin agreed that she brought her artistic bent in contributing to the process of developing the ANZAC Roadshow during rehearsals.
The actors would then perform to the script, as amended.
The performances were presented predominantly at schools and at RSLs. The designated location for any performance was scheduled by the Government, which gave four weeks’ notice of the performances.
Cultural Infusion provided a van for the use of the actors to travel to and from each destination. The actors were accompanied by the production manager, Mr Montgomery. Upon arrival, the actors together with Mr Montgomery would ‘bump’ (or carry) in the various props, lighting and other items required for the performance.
The actors described the costumes and equipment that was used in the performance, all of which was provided by Cultural Infusion. Each of them identified the particular items of costume that they wore during the performances.
The actors presented the performance up to two-three times per day. The performances were of about 50 minutes duration.
Mr Jensen said that Mr Montgomery and Ms Suris ‘communicated’ to the actors how the work was to be performed, but did not explain what that meant.
At the end of a performance, the actors would engage in a discussion with the students and teachers. To this end, Cultural Infusion provided them with a suggested set of topics, in bullet point form. Mr Palframan and Ms Goodwin each said that they would also stand in front of Cultural Infusion banners and have their photos taken.
Asked whether they were required to promote the business of Cultural Infusion, Mr Jensen said, without elaboration, that the actors were at the performances to represent Cultural Infusion.
At the end of their daily schedule the actors packed, or ‘bumped’, their props and equipment into the van and returned to Cultural Infusion, where they would log their hours and leave the van overnight. Mr Palframan said that he observed Mr Montgomery making a note in a daily report with extensive details of the actors’ start and finish times and anything that had occurred during the particular day.
Invoicing
Each of the actors had their own ABN and invoiced Cultural Infusion for their work on a monthly basis.
Mr Jensen tendered in evidence, 11 invoices that he had rendered to Cultural Infusion for the provision of his services over the period July 2014 – July 2015 inclusive. The invoices detailed whether the amounts being claimed by Mr Jensen were for rehearsals, performances, travel or included claims for other allowances. Mr Jensen said that Cultural Infusion had queried his invoices on one or two occasions in relation to the amount of overtime that he had charged for. Each of his invoices included his ABN and was marked as being ‘GST Free.’
Mr Palframan also produced 11 invoices for the charges that he made for his services over the same period. Each of his invoices included his ABN and was marked as being ‘GST Free.’
Ms Goodwin produced 12 invoices; however, her invoices had been issued by her agent, Kubler Auckland Management. Each of her invoices included her ABN and had been marked ‘There is no GST on this invoice.’
Cultural Infusion did not deduct personal income tax from the amounts claimed by Mr Jensen in his invoices.
No actor suggested that any of their invoices had not been paid.
I infer that Cultural Infusion paid the amounts claimed by each of the actors for their services.
Other matters
The actors said that they incurred no personal expenses in relation to the performance of the shows. They also said that they incurred no personal risk in relation to the performances. The accommodation costs of staying in country Victoria were met by Cultural Infusion.
The actors said that they were not able to hire or delegate other performers to perform in their place. However, after about six months, a view was taken that the schedule placed an unreasonable burden upon the actors and arrangements were made for understudies to be engaged.
The actors said that they were not able to sell their ‘personal business’ at the performances. Mr Palframan said that when asked whether he could provide his services directly, he responded that he could not. He said his reply was to say that ‘today’ he worked for Cultural Infusion.
Mr Jensen said that he had other work throughout the period of the contract providing his services as an actor and doing other work. He knew he would not be working full time for Cultural Infusion and said that this explained why he was paid on an agreed daily rate.
Mr Jensen agreed that at no stage had Cultural Infusion instructed him that he could not undertake other work. Mr Jensen also agreed that as an actor he sought work from the Melbourne Theatre Company, Malthouse and like venues. He said that he used his ABN and invoiced for the work on the occasions in which he performed as a sole trader. In short, Mr Jensen invoiced for his work on some occasions and on other occasions he provided his tax file number.
Each of the actors said that they were required to give first priority to their obligation to perform the ANZAC Roadshow over other work which they might obtain. Mr Jensen said that there were occasions when there were ‘interruptions as to [his] availability’ and that, where possible, he gave Mr Montgomery notice of his unavailability.
When Mr Jensen was unavailable, the understudy provided by Cultural Infusion would perform the role. While he had not engaged the understudy, Mr Jensen said that he had made suggestions to Cultural Infusion as to the persons he considered might be suitable for the role.
Mr Jensen agreed that he did not apply for sick leave because there was no entitlement under the contract for such leave.
Mr Palframan also undertook such other work as he was able to obtain. He explained that he performed corporate street theatre and also worked as an employee at Museums Victoria and at Science Works.
Ms Goodwin also had other work as a casual employee during the period that she was performing in the ANZAC Roadshow.
On 3 February 2015, Mr Montgomery sent an email to each of the actors and Ms Souris in relation to an issue that had escalated to the point where an official report had been made by the Department of Premier and Cabinet concerning the need for the actors to maintain a high degree of professionalism at all times before, during and following the performance of the ANZAC Roadshow. In this email, Mr Montgomery underscored the need for the actors to take seriously their professional obligations and assured the actors that he had vouched for each of them. Mr Jensen said that the incident did not concern the quality of the performance but that the comradery of the actors may have been too relaxed during the preparation for a particular performance. The matter was not pursued further with any witness.
I have referred above to the negotiations with Ms Goodwin’s agent pursuant to which Cultural Infusion was to provide WorkCover for the actor and Ms Goodwin was to provide proof that she held public liability insurance cover for her involvement in the performances.
Contract renewal
Mr Jensen said that he knew the contract ended on 30 June 2015.
In about March 2015, Mr Jensen became involved in negotiations to secure contract renewal for a further term of one year. He was hopeful that the contract would be renewed but said that negotiations for renewal failed once the actors had adopted the stance that they should be employees rather than independent contractors.
In about March 2015, Mr Palframan conducted some research via the website of the Australian Taxation Office and concluded that his role was more akin to that of an employee than that of independent contractor. He said that Mr Jensen and Ms Goodwin conducted other enquiries at about the same time.
Thereafter, the actors engaged MEAA to represent them.
In the period, May – August 2015, the parties and their representative organisations negotiated in relation to the prospect of an agreement for an extension of the initial term of the contract (I put to one side that Ms Goodwin’s contract was expressed to be for a term of two years).
On 16 August 2015, MEAA wrote to Cultural Infusion giving notice of the exercise of a right of entry to its premises respecting suspected contraventions of the Act. The right of entry was exercised by Ms Mbugua, a national industrial officer of MEAA, together with Mr Jake Wishart, a senior organiser with MEAA.
When the negotiations for renewal of the contract term failed, the next step had been to report the matter to the Fair Work Ombudsman.
On 3 January 2017, the Fair Work Ombudsman sent Cultural Infusion a letter entitled Letter of Caution in which it outlined its position in relation to allegations made by the applicants and as to sham arrangements. The Fair Work Ombudsman’s letter issued a formal caution, stating that, if it became aware of further allegations of a contravention of the Act, it would take the sending of its letter into account in considering whether to institute proceedings against Cultural Infusion. Its letter identified factors which it considered to be indicative of a conclusion that the actors stood in the relation with Cultural Infusion as employees, not independent contractors.
On 5 January 2017, the Fair Work Ombudsman wrote to the actors a letter titled Outcome of Investigation, recommending that any claim should be pursed as a small claim under the Act.
Applicable principles
Sham contracting – s 357 FWA
By s 357 of the Act, an employer is prohibited from misrepresenting to an employee that the employee performs work as an independent contractor. Section 357 lies within Div 6 of Part 3-1 of the Act, one object of which is to protect workplace rights. One workplace right under the Act includes the benefits to which a person is entitled as an employee under a workplace instrument or the National Employment Standards that are set out in Part 2-2 of the Act.
In substance, the prohibited representation that is proscribed by s 357 concerns the character of the contract which exists or would exist between an employer and employee and under which the employee performs or would perform work. “The content of the prohibited representation is that the contract of employment is or would be a contract for services under which the employee performs or would perform work as an independent contractor”: Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 256 CLR 137, [14]. As the reasoning in Quest South Perth makes clear, liability may attach under s 357 where a prohibited representation is made to an employee. Conversely, if the parties are not in the relationship of employee and employer, s 357 is not engaged.
Section 357 is a civil remedy provision within the meaning of Part 4-4 of the Act, the contravention of which may give rise to civil proceedings. The applicants pursue a small claim under the Act, Ch 4 of which concerns the subjects Compliance and Enforcement, and comprises ss 537 – 572. The guide to Chapter 4 explains that civil remedies may be sought in relation to contraventions of civil remedy provisions and how applications may be made for orders respecting non-payment of safety net contractual entitlements: see s 537.
Division 3 of Part 4-1 in Chapter 4 provides a small claims procedure. Sub-section 548(1) prescribes the circumstances in which proceedings may be dealt with as a small claim. By force of sub-s 548(3), in the conduct of a small claims proceeding, the Court is not bound by rules of evidence or procedure. Moreover, it is entitled to act in an informal manner and without regard to legal forms or technicalities.
Upon those principles it seemed to me in the interests of all parties that the conduct of a hearing of a preliminary issue as to whether the applicants were engaged as employees or independent contractors was desirable. It was of assistance to the Court and in my view to the parties that evidence in one claim could be given and used as evidence in each of the other claims.
Independent contractor or employee?
The applicants’ claims turn upon the question of whether Cultural Infusion engaged them respectively as an employee under a contract of service, or as an independent contractor under a contract for services.
For the purposes of Ch 4 of the Act, the expressions employee and employer have their ordinary meanings: s 538. In Jiang Shen Cai (t/as French Connection) v Michael Anthony Do Rozario [2011] FWAFB 8307 at [25], a Full Bench of the Fair Work Commission stated:
. . . the FW Act imposes obligations on employers in relation to their ‘employees’ and confers benefits and rights on ‘employees’ without identifying when a worker is an employee as distinct from an independent contractor. The definition of employee leaves it to the general law to supply that distinction.
See also Nash v Carroll [2018] FCCA 186, [50] (Mercuri, J).
The question whether the parties’ relationship is one of employment or independent contract may be relevant for a variety of reasons including as to vicarious liability and, in statutory liability, for matters such as payroll tax or accident compensation levies and, in the present case, for alleged contraventions of s 357 of the Act: cf ACE Insurance Pty Ltd v Trifunovski (2011) 200 FCR 532, [25]-[26], (Perram J).
A question of fact, or law or mixed fact and law
Different approaches have been taken to the determination of whether the parties’ relationship was that of employee and employer or independent contractor and principal, and may depend on the sufficiency of the evidence led at trial and the nature of their contract.
In Queensland Stations Pty Ltd v Federal Commissioner for Taxation (1945) 70 CLR 539 at 552, Dixon J observed that whether the relationship between a drover and his client was that of employee and employer, was a question which must depend on the facts.
In Zujis v Wirth Brothers Pty Ltd (1955) 93 CLR 561, when the respondent’s counsel submitted that the appeal presented a pure question of law, discussion ensued with Dixon CJ whether the distinction between a contract of service and a contract for services posed a question of fact that could not be interfered with on appeal unless there was no evidence to support the finding. In the event, the plurality reversed the decision below on the basis of error of law, being satisfied that there was no evidence to support the decision: 564-5, 569.
In Connelly v Wells [1994) 55 IR 73 at 74, Gleeson CJ held that where the parties’ contract was in writing, their relationship was to be determined by reference to the terms of their contract judged in light of the circumstances which surrounded its making. The Chief Justice further held that although a different approach was required where the contract was not in writing, evidence from the parties as to their subjective belief concerning the nature of their relations to be generally unhelpful and legally irrelevant to the issue: citing Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 550; cf Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, [22] (per curiam).
In Roy Morgan Research Centre Pty Ltd v Commission of State Revenue (1997) 37 ATR 528, Winneke P, Phillips and Kenny JJA held at 533 that the question was one of mixed fact and law which required the trial judge to assess and evaluate the evidence of the purposes of identifying and isolating the factors or indicia which were capable of pointing in one direction or the other, and then weighing or balancing those factors: citing Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374, 384; Green v Victorian WorkCover Authority [1997] 1 VR 364, 375; Commission of Pay-roll Tax v Mary Kay Cosmetics Pty Ltd [1982] VR 871, 879. The Court of Appeal further held that none of the factors relevant to the issue were conclusive and that the question was one of fact and degree in respect of which views might legitimately differ.
The Court of Appeal’s reasoning was endorsed by the Full Federal Court in Roy Morgan Research Centre Pty Ltd v Federal Commissioner of Taxation (2010) 184 FCR 448, [33]-[34].
Primary focus
Focus on the nature of the parties’ relationship is of fundamental importance to the consideration whether it is one of employment or independent contract: cf The Federal Commissioner for Taxation v J Walter Thompson (Australia) Pty Ltd (1944) 69 CLR 227 (Latham CJ).
It was submitted for the applicants that there is no intermediate legal character of persons who provide personal services – persons who so provide their services are either independent contractors or employees. As a general proposition this may be accepted; however, I note that in Connelly v Wells (1994) 55 IR 73, Gleeson CJ considered the case to be unusual inasmuch as the appellant had defended the claim on the basis that the parties’ relationship was one of partnership. As the learned authors of Macken’s Law of Employment (Macken) 8th Ed (2016) observe at [2.130] on pp. 31-32: (1) employees provide their personal services in a more highly regulated and subordinated relationship and are subject to direction and control by the employer; (2) conversely, independent contractors are regarded as free actors, operating their own businesses with high levels of autonomy and equal bargaining power; (3) tradespersons and professionals form the two largest groups of independent contractors; (4) the status of independent contractor may provide benefits not available to an employee; (5) such status may also entail many disadvantages. These general observations may be seen to inform the development of the applicable legal principles.
There has been a progressive shift in emphasis to be applied to particular factors as a response to the changing way in which work is organised: ACE Insurance Pty Ltd v Trifunovski (2013) 209 FCR 146 at [38] (Buchanan J, Lander and Robertson JJ agreeing).
Control
The concept of control has evolved in its application to a determination whether a person is an employee or independent contractor.
Historically, the test generally to be applied lay in an examination of the nature and degree of detailed control over the person in determining whether they were an employee or independent contractor: J Walter Thompson (1944) 69 CLR 227, 231 per Latham J citing Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd (1924) 1 KB 762, 767 (McCardie J). There Lathan CJ stated:
The distinction between a servant and an independent contractor is generally explained by stating that in the case of a servant the employer has power, not only to direct what work the servant is to do, but also to direct the manner in which the work is to be done.
Latham CJ considered that control over rehearsals was a significant consideration in that case, which concerned performers on radio plays. The Chief Justice at 232 noted the many features of the case in which it was “impossible for the artists to be left to themselves” and that they worked co-operatively, under the control of a producer, holding that the real character of the parties’ relations was what fell to be determined. It was the detailed control and supervision of the radio play which supported a conclusion that the performers were employees and it was not determinative that they were employed on a causal basis. Instead what was regarded as being decisive in that appeal was “the extent of the control which, by the agreement, the master may exercise over the details of the work” (see at 232-233, emphasis added).
Zujis v Wirth Brothers Pty Ltd (1955) 93 CLR 561 is an instructive case if only for the purpose of illustrating the diverse results as demonstrated by the myriad decisions to which the plurality made reference. The appeal arose from a claim for workers compensation consequent upon an accident involving two acrobats who had fallen from a trapeze. A notable feature of the appeal was that the evidence had been presented with “an unfortunate economy of detail”. All that was known on the evidence was the following: “Here is a man engaged indefinitely at so much a week, by the proprietors of a circus that goes from place to place, to give with a companion an acrobatic act at every performance and to appear in the grand parade.” It was the paucity of evidence which prompted the plurality to ask: “What is there in it that points to an independent contract?” (see at 567, 573).
The plurality contrasted a series of decisions in which the parties’ relationship had variously been characterised as a contract of service or as a contract for services. Amongst the decisions considered were cases involving: a boxer engaged as a preliminary fighter; a wrestling instructor; a professional boxer who also performed the service of usher; a chorus girl; a nurse; a teacher; a shipowner and certified captain. Their Honours recognised that the distinguishing feature in cases of this kind was that the activity undertaken consisted in “the display or use of an individual act and therefore amounted to work which did not lend itself to the control by the employer”: at 569. The plurality held that some cases had applied a false criterion inasmuch as a finding that there was an absence of control was thought to require a conclusion that the relation was one of independent contract: at 570. The plurality also observed that many specialised functions were undertaken by persons having particular knowledge and skill but performed their functions under a contract of employment: at 572.
In a statement that would echo in later cases, Dixon CJ, William, Webb and Taylor JJ underscored that the test of control was not deployed so as to ascertain whether the work that was to be done was susceptible of control and direction by the employer. Rather, said their Honours, a test of control was applied so as to “ascertain whether a relation exists”: at 571. Their Honours held at 571 that it was not to the point whether there was little room for direction or control:
What matters is lawful authority to command as far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters.
The employer had no ability to interfere in the actual technique of the acrobatic performance, yet no reason appeared why the acrobats were not subject to the employer’s direction in all other respects: at 571.
On the limited evidence, the factors which militated in favour of a conclusion that the relationship was one of employment, the plurality focused upon: (1) the power of selecting the employee; (2) the remuneration took the form of wages – payment was made on a weekly rate; (3) the respondent retained a right of suspension or dismissal; (4) a right to superintend and control the work existed to some degree; (5) the work was performed within a larger undertaking – namely, the entire circus performance itself; (6) the respondent retained a large measure of control of the overall circus performance; (7) subsidiary matters which also called for control included: (a) the choice where the acrobatic performance occurred in the circus event; (b) measures of safety; (c) the number, time and manner of rehearsals; (d) the provision of costumes; (e) the acrobats conduct before the audience. Assessed as a whole, the plurality considered that the respondent held significant control of the undertaking apart from the acrobatic performance itself: at 572. Those matters notwithstanding the plurality accepted at 572 that:
No doubt, it might all be dealt with by a contract for services but unless the express terms of the contract of engagement specified the obligations of the performers in great detail in order to avoid reserving an extensive power of control, it would be likely to be treated as a contract of service . . .
See also Queensland Stations Pty Ltd v Federal Commissioner for Taxation (1945) 70 CLR 539 at 552 (Dixon J).
Their Honours endorsed the reasoning in Stagecraft Ltd v Minister of National Insurance (1952) SC 288 that, irrespective of direction and control, individuality and personality merely marked a person out as an artist. Lord Thompson had said at 297:
An artisan may be an independent contractor while the most highly skilled technician is a servant. A skilled craftsman may have highly individual gifts yet be under a contract of service.
The plurality held at 573 that the character of the performance provided no foundation for the conclusion that the appellant was an independent contractor and that the paucity of other evidence did not do so. The holding that the appellant was an independent contractor was set aside as an error of law by reason that there was no evidence to support it.
In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29, Mason J, with whom Brennan and Deane JJ agreed, observed that the earlier application of the control test (which placed emphasis on the actual exercise of control) had shifted in modern times to a focus upon the right to exercise control, and also held that control was no longer regarded as the only relevant factor. To similar effect, Wilson and Dawson JJ at 36 considered that while the control test remained appropriate as a test to be applied in the first instance as providing the surest guide to whether a person was contracting independently or serving as an employee, it was no longer a sufficient or exclusive test on the question. Their Honours endorsed statements that the right to control rather than the actual exercise of it was what mattered most and also accepted that it may be a mistake in some circumstances to regard the right to control as being decisive on the question, identifying other indicia of the relationship as being available: at 36-37. Their Honours emphasised that no exhaustive list of criteria was appropriate.
While the right to exercise control over the performance of work may be a useful guide, “the reservation of such a right cannot transform into a contract of service what is in essence a contract for service”: Lopez v Deputy Commissioner of Taxation (2005) 143 FCR 574, [68] per Ryan, Lander and Crennan JJ citing Queensland Stations (1945) 70 CLR 539; Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395 at 401. In Queensland Stations, Dixon J explained that the reservation of a power of dismissal was significant to an evaluation of the relationship because it demonstrated the power of control retained by an employer to terminate the contract: see at 552-3.
Again, in ACE Insurance (2011) 200 FCR 532 at [2], Perram J considered that despite the elaborate manner in which the relations between insurance agents and the applicant were organised, the agents were quite unable to work for any other insurer and so remained under the practical control of the applicant. His Honour considered it clear that the business model, which had been the concept of the applicant, was dependent upon the pyramid structure which it had designed and under which it exercised direct control at each level of operations so as to be suggestive of a command relationship: [62]-[79]. The decision was confirmed on appeal: (2013) 209 FCR 146.
The learned authors of Macken consider that where the putative employer exercises detailed control over what the worker does and how it is to be done, controls remains a strong, but not determinative, factor in the determination of the question: Macken at [2-140], [2.220].
Modern approach
The parties were agreed that the criterion of control as the test for the determination whether a person was an employee or an independent contractor has been replaced by a multifactorial test.
In Hollis v VabuPty Ltd (2001) 207 CLR 21, the plurality observed at [24] that:
[T]he relationship between the parties . . . is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing “the totality of the relationship” between the parties; it is this which is to be considered (citations omitted).
It is settled that the substance or reality of the relationship is what is now treated as being of significance. Four threshold observations are apposite. First, no single factor will be determinative in the resolution of the questions whether the relationship is one of employment or independent contract. Secondly, the many factors which may call for consideration are not to be employed in the manner of a checklist. Thirdly, the application of these principles is necessarily evaluative and can be difficult: cf ACE Insurance (2013) 209 FCR 146, [9] (Lander J) citing Federal Commissioner for Taxation v Barrett (1973) 129 CLR 395, 400 (Stephen J), [80] (Buchanan J) citing Vabu Pty LtdvFederal Commissioner for Taxation (1996) 33 ATR 537, 538 (Meagher JA). Fourthly, the overarching objective is to form a qualitative appreciation from the detail of the whole of the facts and circumstances of the individual case: cf Hall (Inspector of Taxes) v Lorimer [1992] 1 LWR 939, 944; Roy Morgan Research Centre Pty Ltd v Commission of State Revenue (1997) 37 ATR 528, 533; On Call Interpreters and Translators Agency Pty Ltd v Commissioner for Taxation (No 3) (2011) 214 FCR 82, [204]; Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034, [42].
The multifactorial considerations which may be of relevance in a particular case were distilled in ACE Insurance (2011) 200 FCR 532. Perram J stated at [29]:
With that in mind one can at least say this: first, the distinction between an employee and an independent contractor is ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own’; secondly, the answers to that question are to be determined by reference to the ‘totality’ of the relationship; thirdly, a number of indicia have accreted over time in the authorities which are thought to throw light to varying degrees on the outcome without being determinative: the terms of the contract; the intention of the parties; whether tax is deducted; whether sub-contracting is permitted; whether uniforms are worn; whether tools are supplied; whether holidays permitted; the extent of control of, or the right to control, the putative employee whether actual or de jure; whether wages are paid or instead whether there exists a commission structure; what is disclosed in the tax returns; whether one party ‘represents’ the other; for the benefit of whom does the goodwill in the business inure; how ‘business-like’ is the alleged business of the putative employee – are there systems, manuals and invoices; and so on – the list is neither exhaustive nor short. It will be necessary to refer to some of these factors later in these reasons and the authorities upon which they rest. (citations omitted)
In dismissing an appeal from this judgment, Buchanan J, (with whom Lander and Robertson JJ agreed) undertook a detailed analysis of the applicable authorities: (2013) 209 FCR 146, [23]-[101]; see also Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346, [178] (North, Barker and Bromberg JJ).
On modern authority, it is necessary to assess in their totality, the system of work and the work practices and to approach the matter in a practical and realistic way: Fair Work Ombudsman v Ecosway Pty Ltd (2016) 348 FCR 296, [72] (White J); On Call Interpreters (2011) 214 FCR 82, at [188]-[193]. In the latter case, Bromberg J suggested that this broad evaluative process entitled the Court to consider whether its overall conclusion was intuitively sound: cf Hollis at [48]. So, for example, in Sweeney v Boylan Nominees, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ considered the facts of that case to be entirely distinguishable from those of Hollis, stating at [32]:
The mechanic, or if it were the case, his company, was engaged from time to time as a contractor to perform maintenance work for the respondent. Unlike the principal in Hollis the respondent did not control the way in which the mechanic worked. The mechanic supplied his own tools and equipment as well as bring his skills to bear upon the work that was to be done. And unlike the case in Hollis the mechanic was not presented to the public as an emanation of the respondent.
In Tattsbet Ltd v Morrow (2015) 233 FCR 46, Allsop CJ held that the “statutory and factual context will always be critical in a multifactorial process of characterisation of a legal and human relationship: employment.” The Chief Justice illustrated that proposition by reference to Lehigh Valley Coal Co v Yensavage 218 Fed 547 (1914 2nd CCA) in which a coal mine operator was not to be heard to contend that the ‘helper’ of an independent contractor was not an employee of the coalmine itself. The foundation of the imposition of liability was that the issue arose “in the context of a statute dealing with the responsibility to provide a safe system of work”: at [4].
Thus, it is clear that no single indicium is determinative of the nature of the parties’ relationship. The statutory and factual context will always be critical in the multifactorial process of the proper characterisation of the parties’ legal and human relationship; that is, employment: Tattsbet 233 FCR 46, [5] (Allsop CJ); see also Jessup J at [61] (White J agreeing at [140]).
Further, it is accepted that from the range of available indicia, some may afford more assistance in a particular case than another and for that reason alone, a multifactorial approach was warranted.
The ultimate question turns on the nature of the relationship and in this context, the contract made between the parties will be of importance to the consideration of that relationship: Putland v Royans Wagga Pty Ltd [2017] FCA 910. There (Bromwich J) held at [19]:
Assessment of the existence and extent of any right of control assists in guiding and advancing the inquiry, rather than necessarily providing a conclusive answer on its own as to the nature of the legal relationship. The nature of the relationship is the ultimate issue.
Consideration
Upon this review of authority it is convenient to consider the relevance of particular factors that were exposed by the evidence.
The analytical principles identified above are to be used as tools in the evaluation of whether the underlying relationship is that of employee and employer, or independent contractor and principal. They are used to measure and assess the nature of the relationship and not deployed as a checklist or determinative criterion to the exclusion of any other.
Profession trade or calling[1]
[1] See generally, Macken at [2.320]
On the authorities examined above, 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. I agree in the view expressed by Macken that this is a neutral factor.
Factual matrix
The factual matrix upon which the actors were offered and accepted contracts by Cultural Infusion was grounded upon a Government initiative to stage the ANZAC Roadshow across the State of Victoria at particular locations of the Governments choosing.
Although I had some misgivings about the veracity of the contracts which were tendered in evidence, I conclude that those documents were the repository of the written agreement which they had signed. This was the basis on which those contracts were adduced in evidence.
I find that each of the applicants had signed the contracts which were proffered to them by Cultural Infusion at the end of the first week of their rehearsals for the ANZAC Roadshow. Contrary to their submissions, I find that they were not made to sign those contracts on the date that they were given to them (although Mr Palframan did so). I also reject the suggestion that the actors had been placed under any improper form of pressure to sign the contracts.
I attach no weight to the suggestion that two of the actors gave their contracts little or no attention before signing them. At least in the case of Ms Goodwin, she preferred, for good reason, to leave consideration of the proposed terms of the contract to her agent. As events turned out, her agent did propose certain changes to the terms of the contract and some of her suggestions were accepted. Otherwise, Ms Goodwin’s agent indicated her contentment with the terms of the contract and it was duly executed. Mr Jensen, perhaps the most experienced of the actors, took the contract away overnight before signing it the following day. Only Mr Palframan signed the contract on the day it was provided and apparently did so without paying much attention to its terms.
Of significance is that the contracts were signed. The parties cannot now be said to say that they are not bound by their terms: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, [33].
Control
To the extent that each of the actors so readily ascribed complete control and direction of the performance to Cultural Infusion I found their evidence unpersuasive. Each of them, to varying extents accepted that in the nature of the rehearsal process, the process was iterative. If, for example, a particular section of the script sounded jarring the actors would ‘workshop’ an alternative approach until a better formulation was identified. The script writer would then assume responsibility for writing out the amendments to the script and so the rehearsal process continued until an acceptable script was obtained. It was clear that the actors contributed their individual skills and experience to the process of working on the script for the performance.
Insofar as the actors used default expressions to refer to the control, direction and instruction which, they said, was exerted, given or received as the case requires, I regarded their evidence as addressing the ultimate issue and not being determinative of the type of control which would suffice to establish an employment relationship.
The parties’ subjective views upon such issues, as distinct from their evidence in relation to them, was legally irrelevant: Connelly v Wells (1994) 55 IR 73.
Terms of the contract
I have examined at [38]-[54], the several terms of the contract which bear upon the issue under consideration. I consider that the following features of the contract are of particular significance.
First, the parties were agreed that the contract was in writing.
Secondly, the contract did not reserve to Cultural Infusion a right to terminate the actors’ engagements. The absence of an express reservation of such a right contra-indicates a high degree of control in the parties’ relationship.
Thirdly, the contracts did not proscribe the applicant’s roles from being delegated to an understudy. While the parties clearly intended that the actors would have the primary opportunity to perform their roles, what is of present significance is that they were agreed their roles could be delegated. And so the actors were not fixed with an obligation to render their services personally in all cases.
Fourthly, the contracts contained an express declaration that the parties’ relationship was that of independent contractor and principal (see below).
Fifthly, the parties agreed to arrange their financial and taxation affairs on the basis that the actors would render invoices for their services together with an ABN and thereby not require that the invoices be subject to withholding tax or that PAYG instalments would be deducted.
Sixthly, the parties agreed upon the basis on which liability for particular risks would be allocated and what insurance each would be required to carry.
Seventhly, Cultural Infusion did not have the exclusive right to the applicants’ services. It was clear that each of them held other engagements. So much seemed inherent in the nature of their callings.
Eighthly, the contract did not purport to and was not structured in a way as to reserve to Cultural Infusion the goodwill which inhered in either the ANZAC Roadshow or the actors’ personal reputations.
In limited circumstances, the Court may attach some weight to the fact that the parties were united in agreeing to delete certain terms of their agreement: cf Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 352-3 (Mason J). In the present case, it is clear that certain terms were deleted from each of the contracts. Whether or not those deletions may be employed to confirm the objective meaning of their contracts, I do consider the fact that the parties were agreed in so deleting those terms as forming part of the matrix in which the actors executed their contracts, leaving untouched other provisions with which they did not take issue.
I attach particular weight to the nature of the parties’ contracts and the context in which why were made. The basis on which the actors were to be paid was clearly geared to the amount of work which the Government required of Cultural Infusion from time to time. The substance or reality of the relationship was that the actors were paid for each day of performances. When regard is had to the nature of their work, it is clear that the actors considered themselves to be professional actors. Each of them had quite deliberately set up a system for issuing invoices to Cultural Infusion for the performances which they undertook. Their evidence confirmed that they took other work from other sources during the period that they provided their services to Cultural Infusion. The actors variously worked as employees or as independent contractors in those other roles.
Express declaration of intent[2]
[2] See generally, Macken at [2.350]
Freedom of contract allows that parties may agree that their relationship is that of independent contractor and principal.
While parties to a written agreement will commonly include a provision which expressly characterises the nature of the relationship, it is trite that the question whether a person is an employee or independent contractor is not to be answered by reference to the label which the parties attribute to it. What is required is consideration of the inherent character of their relationship: Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17, 25 (Isaacs J). Yet, this is not to suggest that the terms upon which the parties have agreed for the performance of a service is irrelevant. To the contrary it may be particularly useful as “an important and contemporary insight into what the parties intended and understood about [their] relationship”: ACE Insurance, 200 FCR 532, [90].
In Hollis, the plurality held that it was because the substance and reality of the parties’ relationship needed to be identified that the terms agreed between the parties could not be determinative – parties cannot deem their relationship to be something it is not: at [58]. Put slightly differently, it should be recognised that the terms employee and independent contractor respectively each express a conclusion without exposing the underlying reasoning which supports it: cf Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at [13], [19], [30]-[32].
While parties are free to acknowledge the nature of their relationship, their agreement to that effect is not determinative: ACE Insurance (2013) 209 FCR 146, [11] (Lander J). However, Buchanan J concluded that features which may tend strongly against a conclusion that the relationship was one of employment included where the parties’ contract contained express terms which denied a relationship of employee and employer or conversely, which contained affirmative indications that the relationship was one of independent contractor and principal: see at [102] and [122].
Again, in Tattsbet, the Full Court considered a clause in the parties’ contract which confirmed their agreement that their relationship was one of independent contractor and principal: 233 FCR 46 at [66]. A feature of that case was that the contract recording that clause was the fourth such agreement that the parties had executed (see below).
As stated above, I consider it is of significance that the parties’ contract expressly recorded that the nature of their relationship was that of independent contractors and principal.
Right of suspension or dismissal[3]
[3] See generally, Macken at [2.300]
The express reservation of a right to dismiss will be a significant factor which weighs in favour of a conclusion that the parties stand in the relations of employee and employer: Queensland Stations 70 CLR 539 at 552; Zujis 93 CLR 561 at 572.
In the present case, the parties agreement did not provide that Cultural Infusion had reserved to itself to suspend or dismiss an actor, whether for misconduct or otherwise. In the nature of the contract, Cultural Infusion was unable to guarantee a constant supply of work.
Business on own account[4]
[4] See generally, Macken at [2.210]
Whether a person owns and operates their own business is another way in which to consider the distinction between employment and that of independent contracting: ACE Insurance (2012) 200 FCR 146, [93] citing Hollis, 207 CLR 21, [39]-[40]; see also ACE Insurance (2013) 209 FCR 532, [121]-[123], [129]; On Call Interpreters [217]-[218]. The conclusion in ACE Insurance that the insurance agents were quite unable to work for any other insurer, meant also that they had no business of their own: see, on appeal, 200 FCR 532 at [129].
Where a person has become an integral part of the business of another and as part of its organisation, this will be indicative of an employment relationship as distinct from that of an “independently functioning contractor”: Victorian WorkCover Authority v Game (2007) 16 VR 393 at [48] (Ashley AJ, Maxwell ACJ and Nettle JA agreeing).
To carry on a business is to conduct a commercial enterprise as a going concern: Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd(2005) 222 CLR 194 at [83]. The conduct of a business will involve the use of both tangible and intangible assets in the pursuit of profit: see Gribbles Radiology at [39]. In On Call Interpreters, Bromberg J recognised that common intangible assets of a business included its name, brand, reputation or goodwill and held that it was not possible to exhaustively enumerate the facts and circumstances which would support the conclusion that a particular course of activity comprised a business: see at [210]-[211], citing London Australia Investment Company Ltd v Federal Commissioner of Taxation (1977) 138 CLR 106 at 129 (Jacobs J).
The question whether a business is being carried on by the service provider may be critical to the proper characterisation of the parties’ relationship. Equally, as Allsop CJ stated in Tattsbet Ltd v Morrow (2015) 233 FCR 46, at [5]:
It may not, however, lessen the importance in another case of an arrangement for the provision of labour by someone who is a sole trader who wishes, or is prepared to bargain for, or accept, a sufficient degree of independence that tends to deny a characterisation of employment in all the circumstances, including the relevant statute.
In Tattsbet, Jessup J (with whom Allsop CJ and White JJ agreed) considered it not unimportant that the respondent could be absent from their place of work, including without the appellant’s leave: see at [40]. The appeal in Tattsbet was significant in relation to the question whether it was necessary for a person to be conducting a business on their own account to be characterised as an independent contractor. It was not determinative of the question that the respondent had no goodwill and no asset that she could sell upon leaving the agency: at [52].
Jessup J endorsed the analysis of Buchanan J in ACE Insurance that for a person to work in the business of another was not inconsistent with working in a business on one’s own account. Jessup J held it to be distracting from the relevant inquiry to analyse whether the person was an entrepreneur at [61]: “The question is not whether the person is an entrepreneur: it is whether he or she is an employee”. While the respondent was clearly working in the appellant’s business, and operating its specialised premises and equipment, other features of the relationship were considered to be of greater significance in the final evaluation whether the respondent was an employee or independent contractor: at [62]-[64]. Principal amongst those considerations was the express acknowledgment in the parties’ contract that their relationship was one of independent contractor and principal: at [65]-[66]. In assigning weight to that consideration, Jessup J stated:
It is important to distinguish this case from one in which an acknowledgement of the kind contained in cl 2 of the agency agreement does not reflect the real intentions of the putative employee.
The particular indicia which will assist in relation to the consideration whether a particular undertaking comprises a business will vary from case to case. There will also be cases, of which Tattsbet and the present are examples, where focus upon whether a person performed a business in their own right may not be of particular assistance.
Here, Cultural Infusion had secured the rights to produce the ANZAC Roadshow. From the description given in cl 3.4 of the contract, Cultural Infusion was described as the sponsor of that roadshow. While it may be possible to say that the actors were not carrying out a business on their own account, on another view of the evidence, it is plain that at least some of the actors provided their services to other organisations as independent contractors and that they did so during the term of their contracts with Cultural Infusion.
One impression that could be gained from Mr Jensen’s evidence was that he did not mind whether he provided his services as an actor by way of independent contract or as an employee – he would take such work as and when he could find it. In my opinion, to approach the present matter by reference to the criterion of competing businesses is inapposite. In the present case, I consider that it is of greater use to an analysis of the proper legal characterisation of the parties’ relationship to recognise that the natural individuality of their personalities and skills marked the applicants out as actors. It was their inherent ability as actors which provided the opportunity for them to gain a reputation and to be offered new work as those opportunities arose.
For the same reasons, the present cases require recognition that while goodwill may have attached to Cultural Infusion as a producer of performances such as the ANZAC Roadshow, so too, the opportunity existed for the reputation of the individual actors to grow depending upon the quality of the performances which they provided. A prospective producer intent on securing the provision of services of a particular actor would be disinterested in whether the actor was providing services to Cultural Infusion (save, perhaps, as to restrictions on availability). Depending upon the nature of the scope of the obligations to Cultural Infusion, the actor might be secured immediately for other work or be engaged only at the end of the current performance program of ANZAC Roadshow. What matters is recognition of the fact that the actors had their own goodwill.[5]
Delegation[6]
[5] See generally, Macken at [2.330]
[6] See generally, Macken at [2.260]
Inherent in the nature of a contract of service is that the service will be performed personally. For that reason, the benefits and obligations of such contracts are not unilaterally assignable: ACE Insurance Pty Ltd v Trifunovski (2013) 209 FCR 146, [25] (Buchanan J). 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. In ACE Insurance 209 FCR 146 at [37], Buchanan J considered the adoption by the parties of obligations which were inconsistent with an employment relationship – such as the ability to delegate and the degree of control exercised over performance of the work – as being of greater importance than the incidence of taxation.
However, the ability to delegate will not be decisive. In Fair Work Ombudsman v Ecosway Pty Ltd (2016) 348 FCR 296, White J at [139] cited Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [4], and the reliance on Lehigh Valley Coal Co as an illustration of where delegation would not deny a finding of a relationship of employment.
Equally, on the facts of Tattsbet, a decisive consideration was that the respondent was not required to perform all of the work that was required to be undertaken at the agency: at [64], [67]: see also Stevensv Brodribb 160 CLR at 24-26 and 38; Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 at 425, 428; Yaraka Holdings Pty Ltd v Ante Giljevic (2006) 149 IR 339 at [41] (Crispin P and Gray J).
It is clear from the terms of the contracts that the actors were able to put forward persons who might be an understudy for their role. As the actors explained in the course of their evidence, after some months it became apparent that the demands of their roles was such that the use of an understudy was considered to be warranted. Insofar as it was submitted that the actors were unable to sub-contract their role under any circumstances, I consider that this overstated the position. Moreover, the contract expressly reserved to Cultural Infusion a right to select and appoint other persons to perform a part in the performance where the contracted party was unavailable: see at [46] above.
Basis of remuneration[7]
[7] See generally, Macken at [2.290]
The rendering of invoices is quite foreign to an ordinary employment relationship: Climaze Holding Pty Ltd v Dyson (1995) 13 WAR 487, 495, 497 per Steytler J, (Malcolm CJ and Rowland J agreeing).
The actors were not to be paid for each week that they provided their services. Instead they were to be remunerated according to the number of days that they worked (together with the other agreed allowances).
In the present case, the contract provided extensively for a regime by which the actors would invoice Cultural Infusion for their services.
Taxation[8]
[8] See generally, Macken at [2.280]
Whether or not income tax has been withheld is a relevant indicator.
Older cases recognised the inherent conflict in a person recouping the taxation benefits of being an independent contractor for the period that may have suited them and the later adoption of a stance that the true relationship was one of employment: Barro Group Pty Ltd v Fraser [1985] VR 577, 580 (Kaye, McGarvie and Marks JJ).
Allied to the incidence of taxation is the use of an Australian Business Number and whether a person is registered for the payment of Goods and Services Tax: cf Stevens v Brodribb 160 CLR 16 at 37 (Wilson and Dawson JJ); Yaraka Holdings (2006) 149 IR 339 at [44]-[48] (Crispin P and Gray J); Vabu Pty LtdvFederal Commissioner for Taxation (1996) 33 ATR 537 (Meagher JA); Australian Air Express Pty Ltd v Langford (2005) 147 IR 240 at [54] (McColl JA, Ipp and Tobias JJA agreeing); Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 87 at 185 (Gray J).
There are differing views as to the inference which should be drawn from such arrangements: Wesfarmers Federation Insurance Ltd v Wells [2008] NSWCA 186 at [40]-[42] (Hodgson JA, Basten JA and Handley AJA). It has been suggested that reliance on taxation as a relevant factor may involve circularity of reasoning, particularly where it is based upon a self-assessed and objectively incorrect label that the parties have attached to their relations: On Call Interpreters, [219], citing Hollis at [37]; see also ACE Insurance 200 FCR 532 at [90]-[91]; and on appeal (2013) 209 FCR 146, [37]. Contrastingly, it has been observed that 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 200 FCR 532. There, Perram J said at [90]:
. . . there is little reason to doubt that the tax treatment of the payments provides an important and contemporaneous insight into what the parties intended and understood about this relationship. And, equally, there is no question but that the parties’ intention is an important, although by no means determinative, matter.
So in Tattsbet, the evidence established that the appellant conducted agencies, some of which were operated by independent contractors while others were conducted by employees: 233 FCR 46 at [48]-[51].
In 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.
Here, each of the actors rendered invoices on a monthly basis. No PAYG instalments of tax were deducted from the amounts which they claimed as fees payable to them under the contract and by which they agreed that they were independent contractors. It may be taken that the retention of amounts which would otherwise have been deducted as PAYG instalments was one attraction of the parties’ contracts.
Holiday, sick leave and other entitlements[9]
[9] See generally, Macken at [2.310]
Whether or not annual, long service or sick leave is afforded are often also used as relevant indicators: Stevens v Brodribb 160 CLR at 37; Yaraka Holdings at [44]-[48]; ACE Insurance 200 FCR 532, [92]. However, it is necessary to appreciate that casual employees are not ordinarily entitled to leave or sick pay: On Call Interpreters at [219].
In the present case, although no entitlements to such leave were provided for by the contract, I regard this consideration as being of lesser significance than the matters addressed above.
Provision of equipment[10]
[10] See generally, Macken at [2.250]
The provision of equipment can be a relevant consideration. In many cases it will also be relevant to consider whether such equipment is also amenable to personal use: ACE Insurance 200 FCR 532 at [88], citing Roy Morgan Research (2010) 184 FCR 448, [41].
Again, although it is clear that Cultural Infusion provided all equipment for the performances, including transport, I also regard this consideration as being of lesser significance than the above matters.
Expenditure[11]
[11] See generally, Macken at [2.340]
In many circumstances, a person who provides their services as independent contractor will incur significant expense in doing so.
The present is not such a case and I attach little weight to the fact that the actors incurred minimal expenditure in providing their services.
Assumption of risk
It has been accepted that the risk profile of a personal services business is very different to that of an employee: On Call Interpreters at [213].
The allocation of risk in this case was addressed by the express terms of the contract. In some cases, the risk and a correlative obligation to provide insurance was borne by Cultural Infusion. In other cases, it was expressly agreed that the actors would do so: see at [48] above.
Autonomy
In On Call Interpreters, Bromberg J stated at [214] that:
The risk profile of a personal services business is very different to that of an employee. By its very nature, a genuine commercial enterprise is an undertaking which involves risk. Business risk is a product of a need for a business to invest (either in physical assets, time or effort) at a cost and without any certainty or assurance of that cost being recovered and any profit being made. Unlike an employee who generally seeks security, and is not risk-tolerant, a personal services business is prepared to invest time, money and effort with little or no certainty that such investment will be rewarded with a financial return. All of that is done in the hope of making a profit. It is in that sense, that an entrepreneur operating a personal services business seeks profit and not simply remuneration, for the personal services provided.
In the present case the actors were performing skilled and professional activities. They were not simply carrying out work as and when directed to do so by Cultural Infusion. The actors retained a degree of autonomy and were not superintended by Cultural Infusion in the presentation of their performances: cf J Walter Thompson 69 CLR at 232; Hollis 207 CLR 21 at [48]-[58]; Sweeney v Boylan Nominees Pty Ltd 226 CLR 161, [30]. In reaching this conclusion I do not overlook that the actors travelled with Mr Montgomery and that together they ‘bumped’ in and ‘bumped’ out equipment at the beginning and end of each performance. To my mind the actors were relatively autonomous in the presentation of ANZAC Roadshow performances across Victoria.
In this case, I consider that each of Cultural Infusion and the actors retained a degree of autonomy in the manner in which they pursued their respective interests. While Cultural Infusion was in the business of providing educational and school performances, it is equally clear that the actors searched for engagement opportunities as and where they could be found. In particular, each of them pursued leads by advertising their services on social media sites such as Facebook.
Economic benefit
It may be relevant to identify the party to whom the economic benefit of the work enures and whether any goodwill inheres in that work. It has been said that while exclusivity in the provision of services is suggestive of an employment relationship, this principle may be applied with less force in the case of persons who provide their services on a causal basis: On Call Interpreters at [21] citing Barrett 129 CLR 395 at 407; Yaraka Holdings 149 IR 339 at [34] and [36]; Sgobino v State of South Australia (1987) 46 SASR 292 at 308.
As concerns the economic benefit of the ANZAC Roadshow and any goodwill which inhered in that work, I consider this to be a neutral factor. While it is true that Cultural Infusion could be identified as the party which produced the performance, it is equally true that each of the actors was distinctly identifiable as the actor of a particular part. The lure and attraction of the individual actor and their professional reputation did not inhere in Cultural Infusion.
Representation as part of employer’s business[12]
[12] See generally, Macken at [2.270]
There may be cases where the engagement requires the worker to present to the public as if they were part of the organisation: cf Hollis v Vabu 207 CLR 21 at [50]; ACE Insurance 200 FCR 523 at [82]. This is a factor which it may be legitimate to take into account.
There is no suggestion in the present case that the actors were required to wear uniforms which identified them as representatives of Cultural Infusion. While I accept that the actors were required to carry the business cards of Cultural Infusion, the express terms of the contract only required that the actors acknowledge Cultural Infusion as the sponsor of the ANZAC Roadshow: cf cl 3.4 of the contracts.
Other factors[13]
[13] See generally, Macken at [2.370]
There are a range of other factors which may have relevance in the consideration of a particular case (e.g. performance of work for others[14], separate places of work[15] and incorporation[16]). In my opinion, it is not necessary to consider them for the purposes of this case. As noted, the list of factors should not be employed as a checklist and the particular weight which should be attached to an individual factor may well vary from case to case: On Call Interpreters at [220] citing Lopez v Deputy Commissioner of Taxation[2005] FCAFC 157 at [82].
[14] See generally, Macken at [2.230]
[15] See generally, Macken at [2.240]
[16] See generally, Macken at [2.360]-[2.370].
Conclusion
As Allsop CJ stated in Tattsbet 233 FCR 46 at [4], the statutory and factual context will always be critical in the multifactorial process of the proper characterisation of the parties’ legal and human relationship. In the present case, the applicant’s claim arises in the statutory context of the Fair Work Act. By their applications, the actors seek that Cultural Infusion will be held liable for contraventions of s 357 for alleged misrepresentation in relation to sham contracting arrangements. In evaluating the evidence, I do not overlook the gravity of those allegations: s 140(2)(c) Evidence Act 1995 (Cth).
While I have not approached the determination of the preliminary issue on an assumption that the answer must be the same in each case, however, the similarity of the applicants’ circumstances and the fact that they were engaged at the same time, in relation to the performance of the same event, the ANZAC Roadshow and on the same contractual terms, suggest that some particular distinguishing feature would be necessary in order for the result in one case to differ from another.
In my opinion, the parties’ relationship was one in which Cultural Infusion offered the actors project work during a one-year term as and when it was required to provide performances as directed by the Government. Like so many professional persons, their work was inherently freelance in nature. The actors promoted their services on websites and, through their agents, made themselves available for other work which might become available. The actors brought their individual skill and expertise to the ANZAC Roadshow performance.
Approaching the matter in a practical and realistic way, I consider that when the totality of the system of work and the work practices is assessed, the parties stood in the relationship of independent contractors and principal. There is nothing which I have identified upon a review of the matter overall which warrants the conclusion that this result is not intuitively sound. The circumstance that the actors may have held some expectation that term of their contract might be extended cannot change the nature of their relationship: Gibbins v Vickers [2018] FCCA 327, [26] (Smith J).
For the reasons above, I have concluded that a declaration should be made in each of the proceedings that at all material times the applicant and respondent stood in the relationship of independent contractor and principal and not in the relation of employee and employer.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 15 August 2018
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