Joanne Gaw v Bambini Child Care Services
[2013] FWC 3326
•30 MAY 2013
[2013] FWC 3326 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joanne Gaw
v
Bambini Child Care Services
(U2012/15957)
COMMISSIONER CRIBB | MELBOURNE, 30 MAY 2013 |
Application for unfair dismissal remedy - jurisdiction objections - application dismissed.
Introduction
[1] This decision concerns the jurisdictional objections, made by Bambini Child Care Services (the respondent, Bambini), to the application, made under section 394 of the Fair Work Act 2009 (the Act), by Ms Joanne Gaw (the applicant) for an unfair dismissal remedy in relation to her dismissal by the respondent.
[2] Bambini has lodged jurisdictional objections concerning, firstly, the lodgement of the application out of time, secondly, on the basis that Ms Gaw was not a national system employee but a contractor and thirdly, that there was no dismissal as Ms Gaw was employed under a contract for a specified time which terminated with the effluxion of time. 1
[3] At the hearing of the jurisdictional objections, on 1 March 2013, Ms Gaw gave evidence. Witness statements from Ms C Gaw and Ms K Briggs were tendered in support of the applicant. On behalf of the respondent, Ms L Lewis, Contracts Manager and Licensee and Ms C Fraser, Coordinator, gave evidence.
[4] Written final submissions were provided, on behalf of the respondent, on 28 March 2013 and by Ms Gaw on 4 April 2013. On 12 April 2013, the respondent advised that they did not wish to make any submissions in reply which were due to be filed on 26 April 2013.
[5] Ms Gaw represented herself at the hearing whilst the respondent was represented by Mr J R M Tracey, of Counsel.
The jurisdictional objections
[6] As indicated above, Bambini’s jurisdictional objections concerned the out of time lodgement of the application, the contention that Ms Gaw was a contractor and not a national system employee and that Ms Gaw had been employed under a contract for a specified period of time which had terminated at the end of the period (26 October 2012). 2
[7] The question of whether Ms Gaw was an employee of Bambini or a contractor will be determined in the first instance.
Employee or contractor
[8] It was submitted on behalf of Bambini that there were two highly relevant authorities which the Commission needed to take account of. 3 The first one was the case of Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (Do Rozario case)4. The second was the Full Bench decision in Municipal Association of Victoria and Ors (Council case).5 The respondent argued that the Do Rozario case sets out the principles governing the determination of whether a person is a national system employee or a contractor. It was stated that there was one distinguishing feature between Do Rozario and the present case which was that Mr Do Rozario had performed his work at the respondent’s premises.6 Further, the respondent relied on the Council case as that decision was said to have dealt with very similar factual circumstances to the present case. It was argued that, in the Council case, there seemed to be more control over an educator or carer’s work than is evident in the present case.7
[9] The Full Bench decision in the Do Rozario case is the current authority on the principles for determining whether a person is a national system employee or a contractor. I adopt these principles and propose to apply them to the facts in this matter. I will address the Council case in due course.
[10] There was a great deal of evidence regarding the work that Ms Gaw performed and the nature of her relationship with Bambini. The evidence will be dealt with in the context of each of the Do Rozario case principles. It should be noted that, all of the material before me has been carefully considered, even if reference to it does not appear in the decision.
[11] The Full Bench in the Do Rozario case summarised the approach to distinguishing between employees and independent contractors as follows:
“(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.
(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.
(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.
(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:
- Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.
Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.
“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” “[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”
- Whether the worker performs work for others (or has a genuine and practical entitlement to do so).
The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.
- Whether the worker has a separate place of work and or advertises his or her services to the world at large.
- Whether the worker provides and maintains significant tools or equipment.
Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.
- Whether the work can be delegated or subcontracted.
If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.
- Whether the putative employer has the right to suspend or dismiss the person engaged.
- Whether the putative employer presents the worker to the world at large as an emanation of the business.
Typically, this will arise because the worker is required to wear the livery of the putative employer.
- Whether income tax is deducted from remuneration paid to the worker.
- Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.
Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.
- Whether the worker is provided with paid holidays or sick leave.
- Whether the work involves a profession, trade or distinct calling on the part of the person engaged.
- Whether the worker creates goodwill or saleable assets in the course of his or her work.
Such persons tend to be engaged as independent contractors rather than as employees.
- Whether the worker spends a significant portion of his remuneration on business expenses.
It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.
(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.
(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.” 8
(footnotes omitted)
I will deal with each of these in turn.
1. Was Ms Gaw was conducting a business of her own?
Respondent
[12] It was contended by Bambini that Ms Gaw operated a business whereby she contracted with parents to provide care of their children in her own home on her own account. Ms Gaw was said to have negotiated the fee for this service directly with the parents which was recorded in a contract between Ms Gaw and the parents. The amount of child care, the times at which this occurred and which children she cared for were all determined by Ms Gaw in discussion with the parents. 9
[13] The respondent submitted that Ms Gaw, in business on her own account, had contracted with Bambini to enable the parents to receive government benefits. The respondent provided a service to Ms Gaw for which she paid an administration levy. The service provided by Bambini was described as including remitting government childcare benefit payments and assisting Ms Gaw to comply with the statutory requirements and quality standards. 10
[14] Further, it was contended that Ms Gaw used her own business name, logo and ABN and provided her house as the location where she cared for the children. As well, the respondent argued that Ms Gaw provided her own car and the majority of the necessary equipment. It was stated that Ms Gaw had self-insured against the risks associated with her work. 11
[15] With respect to the issue of commercial risk, Bambini submitted that Ms Gaw bore this when a parent did not pay her for her services. It was said to have been Ms Gaw’s responsibility to seek the payment of outstanding accounts from parents. It was acknowledged that Bambini had provided assistance and guidance to Ms Gaw in this regard. 12
Ms Gaw
[16] It was submitted by Ms Gaw that she was an integral part of Bambini’s business and that educators were listed as part of the business in Bambini’s Policies and Procedures Handbook. Ms Gaw argued that, if it was not for the educators, Bambini would not exist. She said that the respondent made a profit from her working as an educator for their scheme and that Bambini would have suffered financial loss as a result of her dismissal. It was argued that Bambini had engaged educators just as any business would engage employees. Bambini, as with any other business, was said to have monitored and supervised its educators and taken disciplinary action if necessary. Further, Bambini was also said to have held Christmas parties and celebrated personal events through Bambini staff member dinner functions. 13
[17] In addition, Ms Gaw argued that the Australian Children’s Education and Care Quality Authority (ACECQA) Regulations did not dictate that the de-registration or dismissal of an educator was required to follow federal employment law. These policies, as contained in the Policies and Procedures Handbook, could therefore not be followed legally as contractors do not fall under federal employment law. Further, it was stated that, although the contract and the Policies and Procedures Handbook provided for this, the relationship was described as being far more complex. The policies were stated to be masking Bambini’s true intention in regards to educators which was to force the educator to follow their policies and procedures, some of which were said to be in breach of the law. 14
[18] It was Ms Gaw’s evidence that it was her decision what rates she charged the parents for the care of their children. 15 She also invoiced the parents directly for her fees with the email attaching the invoice stating that she was “educator/owner Happy Kids Family Day Care” and also “Licensee Bambini Day Care Services”.16 Further, Ms Gaw stated that she decided the number of hours she was able to work and which children she would care for, albeit, with ramifications and annoyance from Bambini.17
[19] Ms Gaw indicated that she could terminate the agreement with the parent for the care of their child, in accordance with the terms of the agreement. 18
[20] With respect to the issue of exposure to commercial risk, Ms Gaw argued that Bambini was exposed to commercial or financial risk if she failed to comply with the ACECQA Regulations. 19 In addition, she explained that Bambini had offered to recover a debt from a parent and had written a letter requesting payment.20
2. The nature of the work performed and the manner in which it is performed
[21] It was common ground that Ms Gaw provided care for children in her own home.
[22] Ms Fraser gave evidence, on behalf of the respondent, that a large proportion of the Policies and Procedures Handbook for educators is required by the Regulations. Further, the Handbook also contained guidelines regarding best practice in terms of quality as the service was required to participate in a quality system. 21
[23] Bambini submitted that the manner in which Ms Gaw worked was governed by the Education and Care Services National Law Act 2010 (National Law Act), the Education and Care Service National Regulations 2011 (National Regulations) and the National Quality Standard (NQS). In addition, Ms Gaw was provided with guidance in this regard by the respondent. 22
[24] Ms Gaw agreed that all family day schemes needed to follow the National Regulations and that the approved schemes have to enforce educators to follow them. 23 However, she argued that Bambini had their own regulations and policies which were not required by the National Regulations. She stated that, in her case, it had nothing to do with the National Regulations. This was because it was an internal staff problem.24
3. The terms of the contract
[25] The respondent argued that the contract indicated that the relationship between the parties was one of principal and contractor. It was said that this was an accurate description which was confirmed by the evidence. 25 It was submitted that the contract allowed Ms Gaw full scope to run her business as a principal in her own right. Bambini contended that the only significant agreed limitations on their conduct reflected the statutory regulatory regime to which both the respondent, as an approved service, and Ms Gaw, as an educator, were subject.26
[26] It was confirmed in Ms Fraser’s evidence that Ms Gaw had signed an initial probationary contract (5 months) and then a new 12 month contract in 2011. 27
[27] Ms Gaw gave evidence that she signed the last contract with Bambini on 26 October 2011. 28 She agreed that the contract said that she was engaged as a contractor and not as an employee.29 It was stated by Ms Gaw that she had not expected to receive annual leave etc but had expected Bambini to follow their policies and procedures.30
4. The indicia of an employment relationship:
(a) Whether Bambini exercises, or has the right to exercise, control over the manner in which the applicant’s work is performed, place of work, hours of work and the like
Respondent
[28] The evidence of Ms Lewis was that Bambini’s Policy number 1.1, regarding the educator actively working towards submitting 100 hours per week, was a guideline which Bambini could elect to either implement or not implement. She said that the guideline was established for commercial reasons - to ensure the ongoing financial viability of the business. It was stated that it was a Bambini policy which was not dictated by the Department of Education, Employment and Workplace Relations (DEEWR) or the National Regulations. 31
[29] Ms Lewis also said that the hours specified in the parent agreement were only a guideline and that they were the most frequently used hours. It was stated that Ms Gaw could request/had the right to change the hours. 32 Ms Lewis acknowledged that this was not in the Policies and Procedures Handbook but said that it was part of the training for educators and that it would have been communicated by the field officers.33
[30] It was stated by Ms Lewis that Bambini does not control when Ms Gaw has to work the hours. Rather, it was said that Ms Gaw advised Bambini as to which hours she would be available and which children she was caring for. 34 Ms Gaw set her own fees and agreed them, independently of Bambini, with the parents. These were then recorded in the parent agreement which was negotiated and agreed directly between Ms Gaw and the parents.35 Ms Lewis also referred to an email from Ms Gaw to Bambini stating that she was raising her hourly rate and that she had advised the families.36
[31] Ms Lewis also indicated that Ms Gaw could work for another family day scheme outside of the hours she had elected to provide through Bambini. 37 Ms Fraser’s evidence on this issue was in a similar vein. Ms Fraser stated that Bambini’s policies and procedures did not prevent an educator working with another service on non Bambini contracted days.38 Further, it was explained that Ms Gaw was able to take the children to another approved service if the families gave Bambini notice. Ms Fraser indicated that Bambini could not do anything about it as Ms Gaw did not work for Bambini.39
[32] With respect to the policy regarding private care arrangements (Bambini Policy number 1.1), it was Ms Fraser’s evidence that this policy reflected a requirement of the National Regulations (117(1)) and was not a Bambini requirement per se. 40
[33] The Bambini policy requirements regarding the watching of TV and DVD’s (Policy number 3.4) was said, by Ms Fraser, to be a guideline and was not nor was intended to be, a direction. She explained that it was Bambini’s role to guide Ms Gaw on what was considered to be best practice to ensure that she was meeting the minimum standards set out in the National Quality System (NQS). Quality area 1 of the NQS was said to refer to educational programmes. 41
[34] Ms Fraser stated that Bambini did not provide the educator with the training that was necessary to become an educator. This was said to be the responsibility of the educator and at their cost. 42 Rather, Bambini was required to provide access to a professional development programme as set out in the Child Care Services Handbook 2012 - 2013 (section 6.7). Ms Fraser explained that Bambini made the decision about what training would be delivered and the educators chose the training and registered and paid for it themselves.43
[35] In terms of the provision of equipment by Bambini, it was stated by Ms Fraser that it was a minimal top up service to assist educators whilst they put in place a long term plan to purchase such items. She said that Bambini did not provide all of the furniture or equipment, or the car, required to do the job. It was indicated that there was a toy library as well. 44 Ms Fraser said that the Policy and Procedures Handbook did not state that Bambini provided all of the arts and crafts material. She agreed that Bambini provided access to them but it was not on an on-going basis nor sufficient to maintain programmes or curriculum. She agreed that the Handbook did not say that the provision of arts and crafts was on a one-off basis.45
[36] Ms Fraser stated that it was stipulated by the Department of Education and Early Childhood Development (DEECD), in accordance with the National Law Act, that Bambini can give notices to suspend education and care by a family day care educator. 46 In situations where an educator does not meet a minimum standard of conduct and performance, Ms Fraser indicated that Policy number 1.2 provided that Bambini may take appropriate corrective action to ensure that educators are meeting the minimum standards as set by the National Regulations and the NQS. This was said to not be controlling Ms Gaw’s work but ensuring that the minimum statutory regulatory requirements were met.47
[37] Further, Ms Fraser’s evidence was that Bambini does not request an educator to change or cancel their plans so that a field officer can visit. It was explained that educators must provide access to DEECD and their approved services. However, support visits can be done at any location where the educator is caring for/educating children. 48
[38] With respect to the requirement for Bambini approval for any weekend work, overnight care or 24 hour care, it was stated by Ms Fraser that this was a DEEWR requirement regarding 24 hour care. With respect to weekend care, this was said to be in accordance with best practice. 49
[39] In terms of Ms Gaw’s contention that she worked at places directed by Bambini, Ms Fraser stated that family day care is provided in the home the educator requests Bambini to assess for suitability. She indicated that Ms Gaw had changed the location at which she provided her service by informing Bambini of the new location. She said that, wherever the location, Ms Gaw was responsible for ensuring that she provided her home in a manner that meet the occupational health and safety requirements. 50
[40] It was the evidence of both Ms Fraser and Ms Lewis that Ms Gaw promoted her own service “Happy Kids” with its own logo and ABN on the Care for Kids website. It was also stated that Ms Gaw had provided promotional material to Bambini. 51
[41] With regard to the parent agreement, it was Ms Lewis’ evidence that, part of the service Bambini provided, was a parent agreement template. She said that the template contained standard notice provisions which were common within the family day care sector. It was stated that the agreement was between Ms Gaw and the parent and that both parties can and do make changes to the template agreement. 52
[42] Ms Lewis also gave evidence that any financial loss relating to unpaid or late fees was borne by Ms Gaw and that she was at greater financial risk than Bambini. Bambini’s commercial risk was said to relate to the administration levy which Ms Gaw was charged and the government subsidy the service received. Therefore, it was argued that the commercial and financial risk for Bambini regarding Ms Gaw was very small. 53 It was confirmed by Ms Lewis that Bambini had sent a letter to a parent requesting payment to Ms Gaw of the outstanding balance. She said that the money was owed to Ms Gaw as per the agreement between Ms Gaw and the parent. Bambini had been prepared to write a letter to the parent to facilitate payment to Ms Gaw.54
[43] It was denied by Ms Lewis that Bambini had ever paid Ms Gaw “wages”. Ms Lewis explained that the documents Ms Gaw described as “payslips” were Payment Advices which provided a detailed breakdown, by child, of the Child Care Benefit and any other government fee reductions received on behalf of the parent. One of the columns on the Payment Advice is headed “Parent to Pay”. This was said to be clear evidence that Ms Gaw is paid by the parents and not by Bambini. 55 It was stated that Ms Gaw’s income was therefore derived from two sources - directly from the parents (having been invoiced by Ms Gaw and not by Bambini) or via the Child Care Benefit (CCB) or other government fee reductions.56
[44] Finally, it was submitted, on behalf of Bambini, that Ms Gaw exercised control over the manner in which she performed her work, she chose the location for that work, the hours she worked and the way in which she looked after the children. Bambini stated that this was all subject to the National Regulations and the NQS. It was argued that the respondent occasionally audited Ms Gaw’s work for the purpose of monitoring and ensuring that Ms Gaw was meeting all of the requirements which were mandated by statute but not by Bambini. It was submitted that the extent to which Bambini had the right to exercise control or did so over Ms Gaw’s work was said to have been within the regulatory context. 57
Ms Gaw
[45] Ms Gaw argued that Bambini controlled the way she performed her work. She stated that she was not allowed to make private care arrangements during Bambini care hours and/or with Bambini enrolled children. It was explained that, when providing back up care for another educator who is not registered with Bambini, that family is required to register with Bambini before backup care can commence. 58
[46] As well, Ms Gaw contended that clause 13 of the Contractor Agreement provided that she was not free to work with any other family day care schemes whilst registered with Bambini. 59 She recounted that she had been told verbally by Bambini staff that she was not allowed to work with other schemes whilst registered with Bambini.60 It was stated that each family day care scheme had their own set of policies and procedures and contracts which were different. Therefore, it was said to be impossible to work for more than one scheme.61
[47] In addition, it was contended by Ms Gaw that, under Policy number 1.1 of Bambini’s Policies and Procedures Handbook, Bambini reserved the right to end an educator’s contract if that person was not actively working towards submitting a minimum of 100 hours per week. Ms Gaw said that she was obliged to follow this policy. 62 In addition, Ms Gaw stated that Bambini required its approval for any weekend work, overnight care or 24 hour care.63
[48] Ms Gaw argued that there were also policies which controlled her working day on a day to day basis. These included that a long period of watching TV was not appropriate and that she was required to carefully choose DVD’s and Videos so that they enhanced children’s development (Policy number 3.4). 64
[49] With respect to Policy number 3.5, Ms Gaw stated that it provided that educators must be available by phone and for visits during their working week. She indicated that the National Regulations required all educators to take a working mobile with them when they left the house. The policy was also said to provide that educators who could not be contacted during working hours, after several attempts, may receive a written warning. Educators who refused entry to their house during care hours may be suspended or terminated. Ms Gaw argued that the ACECQA Regulations did not dictate to Bambini that educators were to be given written warnings or suspension or termination. She said that ACECQA does not have knowledge of each individual scheme so could not stipulate a course of action when dealing with this scenario. It was stated that, in this regard, Bambini was following employment law. 65
[50] Ms Gaw indicated that, as an educator, she was not allowed to cancel a Bambini field officer visit. She contended that this was not contained in the ACECQA Regulations but rather was a direct instruction from Bambini. 66 In addition, it was explained that, when a field officer had conducted a visit, the field officer had made suggestions and given her specific directions on how to carry out her duties. These were documented and signed by the field officer and herself. Ms Gaw referred to the complaint she had made to Bambini about the conduct of Ms Wood.67 It was stated by Ms Gaw that many of the directions she was given by the field officers were not because she was not working within the guidelines. Rather, they were said to be because the field officer wanted her to work in a particular way.68
[51] It was stated by Ms Gaw that Bambini also advised her that she must work out of her own home and that she could not work in a residence that was not her primary place of residence. 69
[52] With regard to the parent agreement, 70 it was argued by Ms Gaw that Bambini nominated the agreed termination time and the agreed notice for holidays (both the parent’s and Ms Gaw’s). Ms Gaw stated that she was obliged to follow Bambini’s parent agreement. However, it was said that the ACECQA Regulations did not dictate to Bambini the holiday notice period to be used.71
[53] As well, Ms Gaw stated that all payroll inquiries regarding her payslip were directed to Bambini and that her payslips showed that the respondent was the regulated nominated controller of her income, less what the parent was required to pay. 72
[54] Further, Ms Gaw argued that Bambini had reimbursed, or offered to reimburse her, for specific items such as training and had also provided equipment that she used in her work. She referred to an email from Bambini regarding reimbursement for attendance at a “My Home My Business” training course. 73 Ms Gaw also highlighted Bambini’s Policy number 1.6 where it set out the services provided to educators. These included the provision of resources including toys, books, puzzles and art material.74 In addition, it was stated that Bambini hired out equipment such as port a cots, high chairs etc. It was Ms Gaw’s view that, without this equipment, she could not do her work.75
[55] In terms of the recruitment of educators, Ms Gaw contended that there was nothing in the ACECQA Regulations which set out how Bambini should engage their educators. It was argued that when Bambini did so, it was a decision made by the business. Bambini’s recruitment policies were said to have been sourced from the Australian Human Rights Commission. 76
[56] Ms Gaw also submitted that she was unable to delegate her work to any other person for any reason at any time during the day (Bambini Policy number 3.2). 77
(b) Whether Ms Gaw works for others (or has a genuine and practical entitlement to do so)
[57] It was submitted by Bambini that Ms Gaw was not required to contract exclusively with the respondent. Bambini argued that Ms Gaw had a genuine and practical entitlement to work for others when not providing childcare which was covered by her contract with Bambini. 78 Ms Fraser’s evidence was to the same effect - that Ms Gaw could work for another service on non-Bambini contracted days.79
[58] On the other hand, Ms Gaw contended that she had been told verbally that she was not to work for other family day care schemes other than Bambini. 80 Further, it was stated that there was no written evidence to suggest that she was free to work with other family day care schemes whilst registered with Bambini. Ms Gaw argued that each scheme has their own sets of policies, procedures and contracts so that it would be impossible to work for more than one scheme.81
(c) Whether Ms Gaw has a separate place of work and/or advertises her services to the world at large?
[59] Bambini submitted that Ms Gaw worked at her home which was a separate place of work from the respondent’s place of work. 82
[60] Ms Gaw confirmed that she had always provided care from her own home and that she paid the utility bills for which she claimed a tax deduction. 83 She also indicated that she had advertised her business ‘Happy Kids Family Day Care’ on the ‘Care for Kids’ website and that it included the Bambini logo. Ms Gaw also said that she could have provided family day care without a connection to an approved service (Bambini) but that the available child care rebate for the parents would be limited. It was stated that she had an ABN and that she maintained her own public liability insurance.84
[61] In her written submissions, Ms Gaw stated that Bambini had advised that a family day care educator must work out of their own home and was not allowed to work in a residence that was not her primary residence. 85
(d) Whether Ms Gaw provides or maintain significant tools or equipment
[62] Ms Fraser gave evidence of an equipment hire service which was designed as a top up of the educator’s own equipment until they were able to purchase their own. 86 She said that Bambini did not provide all of the necessary furniture or equipment, or the car.87
[63] It was submitted on behalf of the respondent that Ms Gaw provided virtually all of the equipment required for performing her child care services. Her investment in this equipment, including the car, was described as substantial. 88
[64] It was Ms Gaw’s evidence that she provided the furniture, toilets, TV and other facilities and equipment necessary to provide care for the children. 89 It was stated that Bambini did not provide her with a car which was used to transport children.90 She said that she had hired car seats and port a cots from Bambini.91 Ms Gaw stated in her written submissions that Bambini provided her with the tools, equipment and other assets necessary to do her work. She indicated that Bambini hired out equipment and that she had Bambini equipment at her house, without which, she would not have been able to do her work.92
(e) Whether the work can be delegated or subcontracted
[65] Bambini submitted that Ms Gaw could not delegate her childcare work to other carers only because the National Regulations prevented her from doing so. 93
[66] It was Ms Gaw’s written contention that she could not delegate any of her work under Bambini’s policy (3.2). 94
(f) Did Bambini have the right to suspend or dismiss Ms Gaw?
[67] The respondent submitted that, as this right was a statutory right mandated by legislation (section 178 of the National Law Act), this indicium was neutral. 95
[68] It was agreed by Ms Gaw that Bambini, as an approved service, was required by the legislation to have the capacity to suspend or terminate her services in the event of an adverse event involving her conduct with the children in her care. 96 Ms Gaw also stated in her written submissions that, under Bambini’s Policy number 1.2, she could be subject to written warnings, probation and dismissal if the minimum standard of conduct and performance was not met. Further, gross misconduct could lead to instant dismissal.97
(g) Did Bambini present Ms Gaw to the world at large as an emanation of the business?
[69] Bambini submitted that, although Ms Gaw was required to use the respondent’s logo in her advertising, this did not amount to Bambini presenting Ms Gaw as an emanation of its business. It was stated that the respondent’s business was entirely different in character to Ms Gaw’s business. Bambini remitted government funds to educators and provided other services to them and had a legislatively mandated monitoring role over the educators. Ms Gaw’s business was said to be caring for children. Therefore, Ms Gaw’s business could not be said to be an emanation of the respondent’s business. 98
[70] It was the evidence of Ms Gaw that, if she wanted to advertise to parents that they could receive the child care benefit and rebate, she needed to be registered with an approved service. She said that she could work independently (without that connection) but that there were limits on the child care benefits that could be claimed by the parents. When advertising ‘Happy Kids’ Ms Gaw indicated that she was aware that she was required to show that she was connected with an approved service (through use of the Bambini logo on promotional material). 99
(h) Was income tax deducted from remuneration paid to Ms Gaw?
[71] It was common ground that no income tax was deducted by Bambini from payments made to Ms Gaw. 100
(i) Was Ms Gaw paid a periodic wage or salary or by reference to completion of tasks?
[72] Ms Lewis gave evidence that Bambini, as an approved care provider, processed the time sheets relating to the number of hours of care and submitted them to DEEWR fortnightly. It was stated that the Payment Advices received by Ms Gaw were not wages or salary. Rather, they were records of the transfer of CCB funds and other fee reductions, which were remitted to Bambini by DEEWR, on behalf of the families, which were then passed on to Ms Gaw. Bambini’s administration levy, which Bambini charged Ms Gaw for the services it provided, was deducted from these payments. 101
[73] It was submitted on behalf of the respondent that Ms Gaw’s payments varied and that they were for the completion of tasks and not wages or salary. It was argued that Ms Gaw had a separate agreement with parents which set out the fees to be paid to Ms Gaw by the parent. The fortnightly payment schedule was said to be dictated by the National Regulations. 102
[74] It was Ms Gaw’s evidence that the payments she received from Bambini varied over time and depended on the number of children she educated/cared for. 103 In her written submissions, Ms Gaw stated that she submitted time sheets every fortnight which set out her hours of work, the number of children in care and any absences of her or any of the children. She was then paid the CCB/Rebate less Bambini’s administration levy. She indicated that she was paid regularly, every two weeks, and all payroll queries were directed to Bambini.104
(j) Was Ms Gaw provided with paid holidays or sick leave?
[75] It was common ground that Ms Gaw was not provided with paid holidays or sick leave. 105
(k) Did the work performed by Ms Gaw involve a profession, trade or distinct calling?
[76] The respondent stated that Ms Gaw worked as an educator and had cared for children in that role for 6 years. It was said that Ms Gaw had a distinct calling in that regard. 106
(l) Whether Ms Gaw created goodwill or saleable assets in the course of her work
[77] Bambini argued that Ms Gaw had created her own goodwill as she operated her own business named ‘Happy Kids’. It was stated that it was the quality of her work and her reputation in the marketplace that enabled Ms Gaw to set her own fees and market her services. This was said to have given Ms Gaw the potential to create goodwill for her own business. 107
(m) Whether Ms Gaw spent a significant proportion of her remuneration on business expenses
[78] It was contended by the respondent that the evidence was that Ms Gaw had spent money on her work premises and facilities in connection with caring for children. It was stated that there was no evidence from Ms Gaw about what proportion of the payments from the respondent was used to fund such items. The respondent indicated that it could be inferred that some of those payments were used for that purpose. 108
SUMMARY OF THE INDICIA
[79] When assessing the evidence set out in paragraphs 12 to 78 against each of the indicia, it would appear that:
(a) Factors supporting Ms Gaw’s contention that she was an employee of Bambini:
● Ms Gaw was subject to the Bambini Policies and Procedures Handbook.
● Ms Gaw was unable to provide weekend, 24 hour or overnight care without Bambini’s approval. (The requirement for Bambini to approve 24 hour care was a DEEWR requirement. Bambini approval for weekend care was said to be best practice).
● Ms Gaw was not allowed to make private care arrangements during Bambini care hours and/or with Bambini enrolled children. (This was a statutory requirement).
● Bambini’s policy whereby Bambini reserved the right to end a contract where the educator was not actively working towards submitting a minimum of 100 hours per week. (It was conceded by Bambini that this was not a regulatory or legal requirement but a business decision made by Bambini).
● Ms Gaw could not delegate her work to others. Relief care was provided by Bambini to educators if required. (This was a statutory requirement).
● Number 1.2 of Bambini’s Policies and Procedures Handbook sets out the disciplinary process, leading to suspension or deregistration, to be followed when an educator is not meeting the minimum standard of conduct and performance.
● Ms Gaw was visited by Bambini field officers who gave her directions about the way she performed her work.
● Ms Gaw was required (by the National Law Act and National Regulations) to use Bambini’s logo in her advertising and refer to Bambini as the approved provider and ensure the parents were registered with Bambini.
● Bambini wrote, on Ms Gaw’s behalf, to a parent seeking payment to Ms Gaw of the outstanding balance.
● Bambini provided access to (and paid for) training programmes. (Bambini was required to provide access to professional development for the educators).
(b) Factors supporting the contention of Bambini that Ms Gaw was an independent contractor:
● Ms Gaw conducted her own business “Happy Kids” with her own logo and ABN.
● She promoted “Happy Kids” including on the Care for Kids website. The Bambini logo was required to indicate to prospective parents that they were able to receive child care benefits.
● Ms Gaw entered into parent agreements with the parents of the children she provided care for and set the rates she charged the parents. She reached agreement directly with the parents regarding the children she would care for, when she would provide the care and the fee per hour for her service.
● Ms Gaw invoiced the parents directly for her fees.
● Ms Gaw entered into a contractor agreement with Bambini which stated that she was an independent contractor and not an employee.
● Ms Gaw provided her place of work (her home) and the majority of the equipment required, including a car.
● Ms Gaw paid an administration levy to Bambini for the services she was provided by Bambini. These included processing child care benefits for her families and assisting and supporting Ms Gaw comply with the statutory regulatory requirements and quality standards.
● Ms Gaw did not receive a salary from Bambini. Her income sources were the fees paid directly to her by the parents and the government benefits received by the parents.
● Ms Gaw was not given paid annual leave or sick leave. No superannuation was paid on her behalf and Ms Gaw was not subject to PAYG taxation. Ms Gaw was responsible for her own insurance.
● Ms Gaw was able to work for other family day care schemes or in other positions on the days she was not registered to provide care through Bambini.
● In order for the parents to be able to access the CCB and other government fee reductions, Ms Gaw was required to be contracted with an approved service (Bambini).
● Ms Gaw provided a service to the families and children she cared for/educated and not to Bambini.
[80] The Full Bench in Abdalla v Viewdaze 109 provided guidance when the indicia point both ways, in the following terms:
“If the indicia point both ways and do not yield a clear result the determination should be guided primarily by whether it can be said that, viewed as a practical matter, the individual in question was or was not running his or her own business or enterprise with independence in the conduct of his or her operations as distinct from operating as a representative of another business with little or no independence in the conduct of his or her operations.” 110
[81] In looking at whether Ms Gaw was running her own business independently or whether she was operating as a representative of Bambini with little or no independence, on balance, the answer is that she was running her own business independently. On the surface, it may appear that, through the vehicle of Bambini’s Policies and Procedures Handbook, Ms Gaw was operating as an employee of Bambini. This is due to the manner in which she worked being controlled by these policies and procedures. However, two factors need to be remembered. Firstly, Bambini was required to ensure that Ms Gaw complied with the various statutory legislative requirements including the NQS. This was done by the provision of support and mentoring to Ms Gaw. Bambini’s Policies and Procedures Handbook sets out the legislative and statutory requirements regarding how an educator (Ms Gaw) performs her work. It also contains quality/best practice guidelines as Bambini is required to participate in a quality scheme. Therefore, while it may seem that Bambini was controlling the work of Ms Gaw, it is accepted that Bambini was simply ensuring that Ms Gaw met the mandatory statutory requirements and the NQS. It was the applicable legislative requirements including quality best practice which controlled the way in which Ms Gaw performed her work.
[82] Secondly, Ms Gaw did not invoice Bambini for anything. Rather, she invoiced the parents with whom she had a parent agreement which set out the agreed fees, amount of care and the children to be cared for - all of which was negotiated between Ms Gaw and the parents, without any involvement by Bambini. The parents then paid Ms Gaw directly. The funds that were the subject of the Payment Advices received by Ms Gaw were not a wage or salary paid to Ms Gaw by Bambini. Rather, they were government family assistance payments.
[83] Further, Ms Gaw, in fact, paid Bambini an administration levy for the services Bambini provided to her.
[84] With respect to Ms Gaw’s contention that Bambini’s Policies and Procedures Handbook contained directions that went beyond the various statutory requirements (eg. the disciplinary procedure in Policy 1.2 - Deregistration), I accept Ms Fraser’s evidence that the Handbook sets out both the mandatory statutory requirements and best practice quality guidelines, as Bambini is also required to participate in a quality system. Bambini is required to have the ability to suspend a family day care educator and is also required to ensure compliance with the statutory regulatory regime and that Ms Gaw’s work meets best practice quality standards. It is my view that this particular policy provides a best practice method whereby an educator’s performance can be improved (and the consequences if this does not occur).
[85] In addition, Ms Gaw seems to have argued that another indication that Bambini was her employer was that she believed that the directions given to her by the field officers were not the result of her working outside the guidelines but rather reflected the way that that particular person believed that that task etc needed to be performed. It is acknowledged that this was Ms Gaw’s clear view. However, even if this was the case, when balanced against the other indicia, it is doubtful whether it would outweigh the other factors that point to Ms Gaw being an independent contractor and not an employee of Bambini.
[86] In reaching the conclusion that Ms Gaw is a contractor and not a national system employee, I have taken account of the Full Bench decision in the Council case 111. In this case, the Full Bench found that the nature of the relationship between care providers and Councils was not one of employment. I concur with Mr Tracey’s observation that this decision dealt with very similar factual circumstances, except that there was evidence of possibly more control over an educator’s work in the Council case, than is evident in this matter.112
[87] Accordingly, as I have found that Ms Gaw was an independent contractor and not an employee of Bambini Child Care Services, Ms Gaw is not a national system employee for the purposes of Section 13 of the Act. Therefore, Ms Gaw does not fall within the scope of Part 3-2 of the Act.
[88] The Respondent’s jurisdictional objection is upheld and Ms Gaw’s application is dismissed.
[89] An order 113 to this effect will be issued separately.
COMMISSIONER
Appearances:
Ms J Gaw represented herself
Mr J R M Tracey of Counsel for the Respondent
Hearing details:
2013.
Melbourne:
March 1.
Final written submissions:
Respondent, 28 March 2013
Applicant, 4 April 2013
1 Exhibit R1 at paragraph 1 and Transcript PN 316
2 Ibid and ibid
3 Exhibit R1 at paragraph 25 - 26 and Further written submissions of the respondent on jurisdiction, dated 28 March 2013, at
paragraphs 14 - 19
4 [2011] FWAFB 8307
5 Print J7218, 5 April 1991
6 Further written submissions of the respondent on jurisdiction, dated 28 March 2013, at paragraph 19
7 Exhibit R1 at paragraphs 25 - 26
8 [2011] FWAFB 8307 at paragraph [30]
9 Exhibit R1 at paragraph 18 and Further written submissions of the respondent on jurisdiction, dated 28 March 2013, at
paragraph 20
10 Ibid at paragraphs 4 and 20 and ibid
11 Exhibit R1 at paragraph 22
12 Ibid at paragraph 23
13 Exhibit A2
14 Ibid and Transcript PN 1155 - 1162
15 Ibid PN 1083 - 1099
16 Ibid PN 1094 - 1107
17 Ibid PN 1123 - 1127
18 Ibid PN 1130 - 1132
19 Exhibit A2
20 Ibid and Exhibit R2 at paragraphs 20 - 22
21 Transcript PN 495 - 509 and Exhibit R4 at paragraph 4.16
22 Further written submissions of the respondent on jurisdiction, dated 28 March 2013, at paragraph 20
23 Transcript PN 448, 900 and 903
24 Ibid PN 903
25 Further written submissions of the respondent on jurisdiction, dated 28 March 2013, at paragraph 20
26 Ibid at paragraph 21
27 Transcript PN 491 - 493
28 Ibid PN 1140 - 1142 and Exhibit R3
29 Ibid PN 1147
30 Ibid PN 1148 - 1149
31 Ibid PN 427 - 429 and Exhibit R2 at paragraphs 2 and 5
32 Ibid PN 432, 434 - 435
33 Ibid PN 433 - 434
34 Exhibit R2 at paragraph 6
35 Ibid at paragraphs 8, 13 and 16
36 Ibid at paragraph 6 and Exhibit R3 at Attachment 4
37 Ibid at paragraph 7
38 Transcript PN 535 - 539 and Exhibit R4 at paragraphs 4.2 and 4.3
39 Ibid PN 541 - 543 and 545 - 546
40 Exhibit R4 at paragraph 4.1
41 Ibid at paragraph 4.4
42 Ibid at paragraph 4.7
43 Ibid at paragraph 4.7 and Transcript PN 578 - 580
44 Ibid at paragraph 4.11 and ibid PN 581 - 582 and 588
45 Ibid PN 584 - 585
46 Exhibit R4 at paragraph 4.5
47 Ibid at paragraph 4.14
48 Ibid at paragraph 4.6
49 Ibid at paragraph 4.10
50 Ibid at paragraphs 4.9 and 4.11
51 Ibid at paragraph 4.11, Exhibit R2 at paragraph 16 and Transcript PN 441
52 Exhibit R2 at paragraph 8
53 Ibid at paragraphs 16 - 19
54 Ibid at paragraphs 20 - 21 and Transcript PN 458 - 464
55 Ibid at paragraphs 23 - 25
56 Ibid at paragraphs 33 - 34
57 Further written submissions of the respondent on Jurisdiction, dated 28 March 2013, at paragraph 20
58 Exhibit A2
59 Ibid and Exhibit R3
60 Ibid
61 Ibid
62 Ibid
63 Ibid
64 Ibid and Exhibit A1 at Attachment 1
65 Ibid
66 Ibid
67 Ibid,Exhibit A1 at Attachment 6and Final submissions by the applicant, dated 4 April 2013.
68 Exhibit A2
69 Ibid
70 Exhibit R3 at Attachment 3
71 Exhibit A2
72 Ibid and Exhibit A1
73 Ibid and ibid
74 Exhibit A2
75 Ibid
76 Ibid and Exhibit A1 at Attachment 1
77 Ibid and ibid
78 Ibid
79 Exhibit R4 at paragraph 4.3 and Transcript PN 537
80 Ibid PN 923 - 924 and 926 - 927
81 Exhibit A2
82 Further written submissions of the respondent on Jurisdiction, dated 28 March 2013, at paragraph 20
83 Transcript PN 1023 and 1046 - 1047
84 Ibid PN 437, 1060 - 1064, 1071 and 1133 - 1134
85 Exhibit A2
86 Transcript PN 581 - 582 and Exhibit R4 at paragraph 4.11
87 Ibid PN 582 - 583
88 Further written submissions of the respondent on Jurisdiction, dated 28 March 2013, at paragraph 20
89 Transcript PN 1044 - 1045
90 Ibid PN 1053 - 1054
91 Ibid PN 1048 - 1050
92 Exhibit A2
93 Further written submissions of the respondent on Jurisdiction, dated 28 March 2013, at paragraph 20
94 Exhibit A2
95 Further written submissions of the respondent on Jurisdiction, dated 28 March 2013, at paragraph 20 and Exhibit R4 at
paragraphs 4.8 and 4.14
96 Transcript PN 1010
97 Exhibit A2
98 Further written submissions of the respondent on Jurisdiction, dated 28 March 2013, at paragraph 20
99 Transcript PN 1061 - 1071
100 Ibid PN 1136, Exhibit R2 at paragraph 26 and Further written submissions of the respondent on Jurisdiction, dated 28
March 2013, at paragraph 20
101 Ibid PN 357 - 380 and 382 - 388 and Exhibit R2 at paragraphs 23 - 25
102 Further written submissions of the respondent on Jurisdiction, dated 28 March 2013, at paragraph 20
103 Transcript PN 1139
104 Exhibit A2
105 Further written submissions of the respondent on Jurisdiction, dated 28 March 2013, at paragraph 20, Exhibit R2 at
paragraph 26 and Transcript PN 1138
106 Further written submissions of the respondent on Jurisdiction, dated 28 March 2013, at paragraph 20
107 Ibid
108 Ibid
109 (2003) 121 IR 215
110 Ibid at paragraph 34(5)
111 Print J7218, 5 April 1991
112 Exhibit R1 at paragraph 25
113 PR537370
Printed by authority of the Commonwealth Government Printer
<Price code C, PR537260>
0
1
0