Johns Perry Hayward Pty Ltd v Greaves
[1990] TASSC 73
•20 December 1990
Serial NO 72/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Johns Perry Hayward Pty Ltd v Greaves [1990] TASSC 73; A72/1990
PARTIES: JOHNS PERRY HAYWARD PTY LTD
v
GREAVES
FILE NO/S: LCA 67/2990
DELIVERED ON: 20 December 1990
JUDGMENT OF: Crawford J
Judgment Number: A71/1990
Number of paragraphs: 37
Serial No 72/1990
List "A"
File No LCA 62/1990
JOHNS PERRY HAYWARD PTY LTD v GREAVES
REASONS FOR JUDGMENT CRAWFORD J
20 December 1990
This is an appeal under s63 of the Workers Compensation Act 1988 from a determination by the Workers Compensation Commissioner that the respondent was a "worker" within the meaning of that word in the Act and therefore entitled to be paid compensation. The appellant argued that the Commissioner should have found that the respondent's undoubted injuries occurred at a time when he was working pursuant to a contract for services with the appellant, or in other words that he was an independent contractor at the relevant time. The respondent sought to uphold the determination of the Commissioner on the evidence before him, but also argued that the appeal cannot be entertained by this Court because it is not an appeal from a determination of the Commissioner in point of law.
The sole ground of appeal is expressed to be that the learned Commissioner "erred in law in finding that the Respondent was a 'worker'". The right of appeal is granted by s63(1) of the Act in the following terms:
"If any party to a proceeding before the Commissioner is aggrieved by any determination, order, ruling, or direction of the Commissioner in point of law, that party may appeal to the Supreme Court".
It is provided by s25 that if in any employment a worker suffers an injury arising out of and in the course of his employment, his employer is liable to pay compensation in accordance with the Act. The meaning of the word "worker" is provided in s3(1):
"'worker' means any person who has entered into, or works under, a contract of service or contract of training with an employer, whether by way of manual labour, clerical work, or otherwise, and whether the contract is express or implied, or is oral or in writing ...".
The word "employer" has the following meaning:
"'employer' means the person with whom a worker has entered into a contract of service or contract of training, notwithstanding that that person may have temporarily lent, or let on hire, the services of that worker to some person ...".
In his reasons for his determination the learned Commissioner set forth his findings of primary facts on the evidence before him. He briefly stated the principle or test he intended to apply in determining whether the master and servant relationship existed. He then applied that test to his findings of fact and came to his ultimate determination that the respondent was a worker employed by the appellant. This process of reasoning involved the three stage process referred to by C T Emery and B Smythe in their article "Error of Law in Administrative Law" (1984) 100 LQR 612 at p614 as (i) fact–finding; (ii) rule–stating; (iii) rule application. The categories of facts found in the first stage (the primary facts) and the third stage (the ultimate facts) were also highlighted by Fullagar J in Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at p51:
"The distinction between the two classes of question" [that is, questions of fact and questions of law] "is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The 'facts' referred to by Lord Parker in the passage quoted are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally – so far as I can see, always – be a question of law."
In that passage Fullagar J was referring to the statement of Lord Parker of Waddington in Farmer v Cotton's Trustee [1915] AC 922 at p932:
"The views from time to time expressed in this House have been far from unanimous, but in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only."
I doubt that the learned Commissioner did fully find all the material facts. My reading of his reasons is that he only stated those findings which he considered sufficient for him to express his conclusion that the respondent was a worker. Having stated that conclusion he said that all the circumstances of the case must be taken into account and that they were fully canvassed during the hearing. He added that a great deal of evidence was placed before him which he did not find it necessary to repeat.
There are persuasive authorities which suggest that the cited statement of Fullagar J in Hayes v Federal Commissioner of Taxation (supra) is not correct. Before turning to them I make a brief reference to the judgment of Mason J (with whom Gibbs, Stephen and Aickin JJ agreed) in Hope v Bathurst City Council (1980) 144 CLR 1 where at p7, without stating whether he agreed with Fullagar J or Lord Parker, his Honour stated that different considerations apply when a court is confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within those words. After referring to NSW Associated Blue Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 309 per Kitto J at pp511–512 and Brutus v Cozens [1973] AC 854, he said that if that be the case the critical issue for decision, so far as a question of law is concerned, is whether the evidential material reasonably admits of different conclusions on the ultimate factual question. Mason J seemed to accept that if the finding of the ultimate fact was one reasonably open on the evidence then the question of law would be answered and only a question of fact was thereafter involved in the decision making process.
Considerable difficulties may confront an appellate court if there is to be drawn a distinction between a case where the relevant words in a statute are to be given their commonly understood meaning and on the other hand a case where the words are to be given a special meaning not commonly understood. This can be demonstrated by way of example only with the circumstances which arose in Hope v Bathurst City Council (supra) where Mason J, in the course of interpreting the statutory expression "carrying on one or more of the businesses ... of grazing", said that the word "business" was "used in its ordinary meaning" that being "closest to" the last and nineteenth meaning given by the Shorter Oxford Dictionary. Of course Mason J went on to say that it was the popular meaning of the word as used in the expression "carrying on a business" rather than the popular meaning of the word itself, which was enshrined in the statutory definition he was considering.
Some words may have a special statutory meaning which is capable of being expressed simply in commonly understood language while others may require lengthy explanation in terms difficult even for lawyers to understand. An example of the latter is the concept and meaning of "murder" in the Criminal Code. It frequently needs lengthy and careful explanation to a jury in a murder trial. But without regard to authority, I would hold the view that whether the evidence established guilt of murder beyond reasonable doubt would be a question of fact and not of law, notwithstanding that the word "murder" has a special and difficult to understand meaning.
The English courts have resolved what is a point or question of law in a way contrary to the statement I have cited of Lord Parker in Farmer v Cotton's Trustees (supra). In Edwards v Bairstow [1956] AC 14 at p36 it was said by Lord Radcliffe, with whom Lord Tucker and Lord Somervell of Harrow agreed, that if no misconception of the law appears on the face of the decision, it may still result in an error in point of law if "the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal". His Lordship continued:
"I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur."
In O'Kelly v Trusthouse Forte PLC [1983] 3 WLR 605 the question arose whether the applicants were "employees" under a "contract of employment" within the meaning of legislation or whether they were independent contractors. An appeal lay only on a "question of law". Fox L.J. at p630 said that the appeal tribunal was not entitled to interfere with the decision of the tribunal of first instance "unless that tribunal misdirected itself in law or its decision was one which no tribunal, properly instructed, could have reached on the facts". Sir John Donaldson M.R. at p631 said that unless there was an express misdirection of law the appellate court can only intervene "if, in its opinion, no reasonable tribunal, properly directing itself on the relevant questions of law, could have reached the conclusion under appeal. This is a heavy burden on an appellant. I would have thought that all this was trite law but if it is not, it is set out with the greatest possible clarity in Edwards v Bairstow [1957] AC 14."
Another English case, involving a question of whether certain workers were employed under a "contract of service" within the meaning of legislation, was Global Plant Ltd v Secretary of State for Social Services [1972] 1 QB 139 where, on an appeal which could only lie on a point of law, Lord Widgery C.J. said at p155:
"All that I have to ask myself is whether the conclusion which he has reached is one that no person acting judicially and properly instructed as to the relevant law could have come to in this determination".
In New South Wales the Court of Appeal has come to a similar conclusion. Concerning whether an appeal may lie "in point of law" from an ultimate finding of fact (which expression I have referred to earlier) Glass JA (with whom Samuels JA agreed) said in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at p156 that an ultimate finding of fact, even in the absence of a misdirection of law, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made. Glass JA continued:
"Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the course of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer–General (at 138;55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found."
This statement of principle was amplified in Mahoney v Industrial Registrar of New South Wales (1987) 8 NSWLR 1. Hope JA at p3 said:
"Another line of authority, which operates as it were as an exception to the dominant rule, applies in relation to decisions of fact in relation to the application of a statutory description. In these cases there may be an error of law if the decision on the facts is one which could not be reasonably entertained or supported if the tribunal had properly understood the true construction of the relevant enactment: R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574; Hope v Bathurst City Council (1980) 144 CLR 1. This test may be put in other ways as, for example, there may be an error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made: Azzopardi (at 156); Australian Gas Light Co v Valuer–General (1940) 40 SR (NSW) 126 at 138; 57 WN (NSW) 53 at 55."
Samuels JA considered this question again in Haines v Leves (1987) 8 NSWLR 442 where at p476 he plainly agreed with what Hope JA said in Mahoney v Industrial Registrar of New South Wales (supra) and described the two ways in which Hope JA expressed the doctrine as being "alternative".
In Edelsten v Ward(No 1) (1989) 63 ALJR 345 Brennan J, when refusing special leave to appeal, said that "(a)s at present advised, the majority decision in Azzopardi seems to be right ...".
I find the decisions in England and New South Wales compelling authorities for what is a question of law in a case such as this. But they are contrary to what was said by Fullagar J in Hayes v Federal Commissioner of Taxation (supra) which was cited without disapproval by Mason J in Hope v Bathurst City Council (supra), although he apparently limited the effect of what was said by Fullagar J to a case where the words of the relevant statute are not to be given a meaning in accordance with their common understanding.
It is arguable that the expression "a contract of service" in the definition of "worker" in the Workers Compensation Act 1988 s3(1) has a commonly understood meaning. Certainly in the vast majority of situations of people working for reward for another it is a simple matter to decide whether they are working under a contract of service or a contract for services. It is only in rare situations that difficulty is experienced in placing a person in the correct category and that those acting judicially have found it necessary to propound tests for the determination of the issue.
Ultimately I have come to the conclusion that it is unnecessary to resolve the question as it applies to this case. I am satisfied that the decision of the learned Commissioner that the respondent was a "worker" within the meaning of the Workers' Compensation Act 1988 was reasonably open to him on the evidence and on his findings of fact. Not only this I am satisfied that the decision was a correct one.
As already mentioned, the learned Commissioner stated his findings of primary facts. Those findings are not contested by the appellant. They were as follows. The respondent worked as a rigger, which is a skilled occupation in the building industry. He first commenced to work for the appellant in January 1989. He was engaged by the appellant's construction manager on the recommendation of the respondent's father–in–law who was at the time working as a rigger for the company. The method of his engagement was particularly informal. He was engaged on the same terms as were applicable to his father–in–law. The period of the engagement was limited to each particular construction job. He was to be paid a flat rate of pay of $20 an hour plus $14 an hour for travelling time, with no entitlement to cost of living adjustments. No overtime or penalty rates were to be paid, nor was he to be entitled to holidays, sick pay, superannuation, long service leave or rostered leisure days. He was to be paid fortnightly. He was to submit weekly an account of hours worked. Tax was to be deducted under the prescribed payment system, designed for taxation of payments to independent contractors, and not under the scale applicable to an employee under a contract of service.
There was to be no tool allowance paid. It was agreed that he would not be covered by workers compensation but would be responsible for his own insurance.
The learned Commissioner specifically found that there was an understanding that the respondent was an independent contractor and was not an employee.
The respondent worked alongside acknowledged employees of the company and worked the same hours. If work with the company was unavailable he could (and did) work for others. He worked fairly regularly for the company. However he received unemployment benefits for the period 30 June 1989 to 20 September 1989 and he worked for a fortnight with another principal (or employer).
On 2 January 1990 the respondent applied in writing to the Department of Labour and Industry for a learner's permit as a rigger. A statement supporting it and signed on behalf of the appellant undertook that if:
"the applicant continues in my employment I will arrange for him to receive, within 12 months of the issue of the permit –
(b)At least 4 months' experience under the direct supervision of a competent person in rigging/scaffolding of the type in which a certificate of competency is sought together with such other experience in rigging/scaffolding as may be approved by an inspector".
It should be kept in mind that the respondent had been engaged by the appellant twelve months before that application was made. However the learned Commissioner found that he did receive training and supervision by the appellant as a rigger pursuant to the terms of the learner's permit (which I presume by implication was found to have been issued).
The learned Commissioner concluded that rigging is a skilled occupation. The appellant acknowledged the need to supervise his work as a trainee rigger, and through its employers it could and did exercise supervision and control over his work. The need for supervision and control was no mere formality. If he had been a qualified rigger, the need for supervision and control may well have been either minimal or non existent.
The circumstances leading up to the accident were that the appellant contracted with a third party to supply two cranes, two drivers and a rigger to accomplish a specific task. The drivers were acknowledged employees of the appellant and the rigger was the respondent. At the time of the accident he regarded himself as a trainee rigger subordinate to the crane driver operating the crane. He was subject to the driver's direction and supervision. The Commissioner found that "a kerb side spectator watching him work would have regarded him as subject to the control of his fellow employees on the day of the accident and as a subordinate employee."
Having found that the respondent had been engaged on the express understanding that he was an independent contractor, the Commissioner said:
"However in my opinion that does not finally determine the question before me in this case. Parties cannot contract out of their rights and liabilities under the Workers Compensation Act by agreement alone. If the Act permitted this, then in many cases employers would no doubt use their superior bargaining position with prospective employees in order to absolve themselves of their liabilities under the Act. Parties to a contract cannot disguise their true relationship by agreement between themselves. On the other hand, the fact that the parties have reached an agreement that they regard themselves as principal and independent contractor is undoubtedly one of the circumstances which must be taken into account in order to determine their true relationship. I discussed this matter at greater length in a previous decision, (number 69 of 1989), and I do not propose to repeat what I said in that decision. I still hold the same views."
The appellant's counsel did not submit that there was any error of law in this passage and he referred to two authorities, Ferguson v Dawson & Partners [1976] 1 WLR 1213 and Global Plant Ltd v Secretary of State for Social Services [1972] 1 QB 139. Both those cases support what was said by the learned Commissioner.
When approaching the ultimate question to be decided by him, that is whether the respondent was a "worker", the learned Commissioner said as follows:
"In some of my previous decisions I have discussed the so called 'control test' for determining the existence of the master and servant relationship. In spite of the difficulties surrounding the test, it has been described as the 'surest guide', and the 'most prominent factor' but not the 'sole criterion' for determining whether the relationship exists.
See Stevens v Brodribb Sawmilling Co Pty Ltd 1986 63 ALR 513.
In this case I have come to the conclusion that the claimant was to all intents and purposes a casual employee, working job by job and subject at all times to the direction and control of his employer. I am well aware that in the building industry skilled tradesmen are engaged to perform specific tasks. They may be independent contractors or they may be employees depending upon the terms of their contract. The answer in each case will depend upon its own circumstances, though I can appreciate that the need, and the right, to exercise control over a qualified tradesman may not exist after the task is shown to him.
In this case the alleged independent contractor was a trainee rigger and acknowledged as such. A kerbside spectator watching him work would have regarded him as subject to the control of his fellow employees on the day of the accident and as a subordinate employee.
Of course all the circumstances of the case must be taken into account. They were fully canvassed before me during the hearing. A great deal of evidence was placed before me which I do not find it necessary to repeat.
I distinguish my decision in case number 69 of 1989. My finding there was that the builder alleged to be the employer had given the carpenter who assisted him on jobs a large sum of money to take out his own accident insurance. An analysis of the hours worked by the claimant carpenter discloses that he worked as he pleased. Certainly he was subject to direction and control by his principal while he was on the job, but he could come and go as he pleased. It was really an engagement on the terms that work was paid for by the hour with the right to either party to terminate the relationship at will. This was a far cry from the present case, where in my judgment the claimant had the contractual obligation to work for the duration of a particular job. The builder/carpenter relationship was one man to another. The relationship of the claimant in this case to the company was such that he was an integral part of his employer's business pending the completion of a job. As a trainee rigger he was in a very real sense more of an employee than the employee crane driver with whom he was working on the day of the accident.
I wish to add that there is no question that the company and its insurers have at all times acted in complete good faith in this case. I accept the evidence given by the witnesses called by the company. The only criticism I make is directed at the credibility of the claimant for the reasons I have stated. Nevertheless I find the claimant was a worker within the meaning of the Act at the time he suffered his unfortunate injuries. He did not successfully contract out of his rights as a worker under the Act."
I summarise my understanding of the submissions made by counsel for the appellant. There is no dispute with the findings of primary facts nor with any statement of law. The dispute relates to the application of those facts to the ultimate factual question which is whether the respondent was a "worker". Important findings were that there was an express understanding that the respondent would be an independent contractor and he arranged his own personal injury insurance until allowing it to lapse because of cost.
The intention of the parties was highly relevant. There was no finding that the agreement was a sham, it being acted upon in all regards. There was evidence that the company was unaware that the respondent was only a learner rigger until after the agreement was entered into, when he approached the company to assist him in renewing his learner's permit. The Commissioner placed considerable and excessive reliance, so it was argued, on the contents of the form of application for the learner's permit, whereas he should not have placed reliance on it, particularly as it did not come into existence until a year after the "employment" commenced and it could not be argued that it effected any change in the nature of the employment. In any event the same form would have been used whether the respondent was employed under a contract for service or a contract of services. The form was irrelevant. Nothing changed because of it and nothing was effected by it relevant to the issue whether the respondent was a "worker". Further, the form only stated that the company would arrange for the respondent to receive supervision and not that the company would itself perform the supervision.
It was further submitted for the appellant that the "control test" involves a consideration, not of whether control was in fact exercised, but whether there was a right to exercise control. "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". Dixon J in Humberstone v Northern Timber Mills (1949) 79 CLR 389 at p404. "Even the most independent of independent contractors is subject to some direction in the performance of his work ...". Wilson and Dawson JJ in Stevens v BrodribbSawmilling CoPty Ltd (1986) 160 CLR 16 at pp37–38. It was conceded that the learned Commissioner correctly found that in fact control was exercised by the appellant over the respondent but it was argued that the Commissioner was wrong to elevate the actual exercise of control to a right to exercise control. It was argued that there was no evidence that the appellant had the right to control the respondent. Finally it was submitted that where the work requires co–ordination of effort so that the job can be performed, the "control test" is of little effect.
There is no error of law appearing on the face of the Commissioner's reasons for his decision. I cannot agree that considerable or excessive reliance was placed on the form of application for the learner's permit. Reference was made to the difference which existed between the parties as to the significance of the form, but I cannot find that excessive reliance was placed on that form in the reasons given for the respondent being a worker.
The learned Commissioner accepted the evidence given by the witnesses for the appellant. He acknowledged that all the circumstances of the case must be taken into account, adding that they had been fully canvassed during the hearing and he did not find it necessary to repeat a great deal of evidence. One passage of evidence not referred to by him was significant. It was given by Mr Bruce Dean, the appellant's construction manager. He was asked if there was a rigger employed on a casual basis (under a contract of service) and another employed as a contractor whether one would be instructed differently than the other in how to do a job, assuming that they were both working in the one group. Mr Dean's response was that generally they were working as a team and more than likely a foreman would direct the whole job. They each would be treated exactly the same in relation to control. A man considered by the company to be a contractor and a man considered to be an employee would not be treated any differently in relation to the allocation of work and their being told how to do their work. The question was asked:
"They've got exactly the same level of supervision and direction over them as what the permanent employees have?"
His answer was:
"Yes that's right".
Further to this he said that where there was a job that the company could not handle it might engage a contractor to do it, but it would seem from Mr Dean's evidence that this did not apply to the respondent. Mr Dean said:
"No well Kevin's – more – was used as – in a team situation and he was treated the same as the other guys. He did his work as a team – as a team member".
This passage of evidence accorded with the evidence of the respondent which was to the effect that he was subject to the control and direction of employees of the appellant.
So far as concerned the performance by the respondent of his work, the evidence showed that he was on the same footing as an acknowledged employee of the appellant. He was required to work the same hours and had the same meal and tea breaks. He was subject to the same supervision and control and both parties appeared to acknowledge that the appellant had the right to control him in the same way as it did with an acknowledged employee. That the respondent was employed under a contract of service was strongly supported by such evidence. That he usually worked as a member of a team, rather than on an individual task on his own, suggests it. It was not open on the evidence to find that he had freedom to go about a particular task as or when he chose. Other team members usually included acknowledged employees of the appellant. He was not entitled to come and go as he pleased. It was clear on the evidence that if he did not turn up for work he was liable to lose his employment. It does not appear to have been contemplated that he could sub–contract any of his work to other persons.
Evidence presented by the appellant established that the work force of the appellant consisted of a mixture of full time employees, casual employees and persons engaged on a basis similar to that of the respondent. On site all were treated the same and were subjected to the same degree of control with the appellant not distinguishing between them so far as concerned that control.
The evidence relating to the provision of clothes and tools was of no real support for the appellants case. The only factors suggestive of a contract for services rather than a contract of service in the nature of casual employment, were that the parties had an understanding that the respondent was an independent contractor without the benefit of workers' compensation cover provided by the appellant and that he was paid twice a month at a fixed hourly rate on presentation of a claim, with no provision for overtime or paid leave and with income tax being deducted from his earnings under the prescribed payment system.
In Global Plant Ltd v Secretary of State for Social Services (supra) at p152 Lord Widgery CJ stated that the intention of the parties that the relationship should be that of an independent contractor must not be overlooked and although the parties cannot by intention make a transaction into something which it is not, yet it is recognised that such intention is a factor for consideration. In Ferguson v John Dawson & Partners (Contractors) Ltd (supra) at p1220 Megaw LJ considered that an express declaration by the parties that the relationship of an independent contractor existed ought to be wholly disregarded if the remainder of the contractual terms, governing the realities of the relationship, showed the relationship of employer and employee. He found difficulty in accepting that the parties, by a mere expression of intention as to what the legal relationship should be, can in any way influence the conclusion as to what the relationship is. He also stated that it would be contrary to the public interest "that the parties, by their own whim, by the use of a verbal formula, unrelated to the reality of the relationship, could influence the decision on whom the responsibility for the safety of workmen ... should rest".
What the parties agreed or understood cannot be ignored and in a particular case it may well tip the ultimate conclusion to one side of the scales rather than the other. But in this case I am satisfied that the evidence established that the respondent was a "worker" for whilst at work he was clearly acknowledged by both parties as subject to the same degree of control by the appellant as any other employee. He was not "independent" in the sense that that word is commonly understood in the expression "independent contractor". My conclusion is that the understanding between the parties and the terms of the contract relied on by the appellant for establishing that the respondent was an independent contractor are outweighed by the other matters referred to by the learned Commissioner and by me. The appeal will be dismissed.
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