Marino v C and G Brown Holdings

[2014] FCCA 1776

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARINO v C & G BROWN HOLDINGS [2014] FCCA 1776

Catchwords:
INDUSTRIAL LAW – Alleged contravention of a general protection – whether employee or independent contractor – necessity for proper proof.

PRACTICE AND PROCEDURE – Failure to comply with court orders – failure to appear.

Legislation:

Fair Work Act 2009 (Cth)

Federal Circuit Court Rules 2001 (Cth) rr.13.03B(1)(a) and 13.03C(1)(c)

Damevski v Giudice & Ors (2003) 133 FCR 438; [2003] FCAFC 252
Gaskin Bros v McGowan [1941] AR (NSW) 645
Hollis v Vabu Pty Limited (2001) 207 CLR 21; [2001] HCA 44
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

J Riley, Employee Protection at Common Law (Sydney: Federation Press, 2005)

Applicant: SHARON JULIE MARINO

Respondent: C & G BROWN HOLDINGS T/A QUALITY TOWING AND TILT TRAY SERVICES

File Number: PEG 239 of 2013

Judgment of: Judge Antoni Lucev

Hearing date: 4 August 2014

Date of Last Submission: 4 August 2014

Delivered at: Perth

Delivered on: 4 August 2014

REPRESENTATION

Counsel for the Applicant: No appearance.

Counsel for the Respondent: Mr W Milward

Solicitors for the Respondent: WA Workplace Law Pty Ltd

ORDERS

1. Pursuant to rr.13.03B(1)(a) and 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 239 of 2013

SHARON JULIE MARINO

Applicant

And

C & G BROWN HOLDINGS T/A QUALITY TOWING AND TILT TRAY SERVICES

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Almost 11 months ago on 5 September 2013, the applicant filed an application and Form 2 claim under the Fair Work Act 2009 (Cth) (“Fair Work Act”), alleging dismissal and contravention of a general protection. The response, opposing the claim, was filed on 20 September 2013, the same day as there was a first directions hearing at which the matter was referred to mediation.

2. It would appear that there was mediation on 5 November 2013. There was then a second directions hearing on 9 December 2013 at which relevant orders were made in the following terms:

   1.The applicant file and serve any affidavits to be relied on at the hearing by 29 March 2014.

   2.The respondent file and serve any affidavits to be relied on at the hearing by 31 May 2014.

   3.The applicant file and serve any affidavits in reply by 28 June 2014.

   4.The applicant file and serve an outline of submissions by 5 July 2014.

   5.…

   6.Evidence at the hearing to be by way of affidavit except by leave of the court.

   7.The matter to be listed for hearing at 10.15 am on 4 and 5 August 2014.

   8.…

   9.…

3. There was further mediation of the matter on 15 January 2014 at which time the mediation was terminated. On 7 March 2014, the applicant filed an application in a case in which the applicant sought leave to file and serve an amended application and claim. In the affidavit in support, the applicant referred to the need to obtain legal assistance. When the matter came before the Court for directions on 20 March 2014, the Court made orders providing for the applicant to file and serve any amended application and claim Form 2, and for the respondent to file and serve any amended response and affidavits to be relied upon at hearing by certain dates. In so doing, the Court made it plain, four and a half months before the listed hearing, that the applicant would have to proceed today, even if not able to obtain legal representation and that many applicants in this Court appeared self-represented.

4. On 1 May 2014, the applicant filed an affidavit of service of the application in a case which had been heard on 20 March 2014. No other steps have been taken in this litigation by either party since then and there is, on the part of the applicant, no affidavits in chief to form the basis for her evidence in these proceedings and no affidavits in reply – bearing in mind that there have been no affidavits filed by the respondent – and no outline of submissions filed by the applicant.

5. There is no explanation before the Court as to why the applicant has failed to file any papers in the matter and the Court notes, the matter having been called outside today, that the applicant has failed to appear. The respondent says that it has filed nothing because it has had nothing to respond to in terms of either affidavits or an outline of submissions.

6. The issues which arise in this case on the application and Form 2 as originally filed and amended are as follows, in essence:

   a)whether the applicant was an employee or independent contractor; and

   b)whether, if the applicant was an employee she was:

   i)dismissed for making a complaint to her employer; and

   ii)paid wages that she was owed and superannuation that she was owed and whether authorised deductions were made from those payments.

7. The issues can be seen from the applicant’s original Form 2 at Part G where she says as follows:

   On the evening of 12 June 2013, I handed Glenda my first letter demanding the unauthorised deductions from my pays.

   The Court notes that it is not indicated who Glenda is but she appears to be a person engaged by the respondent. The Court draws that inference. Continuing the quote:

   This letter also demanded that I be provided with payslips for previous pays received.  Glenda became very upset and claimed the deductions were for “stupid accidents” I had whilst on the job.  Glenda then opened up a folder and showed me repairers invoices.  Glenda said I owed her a lot of money.  I reminded Glenda that she also owed me superannuation and hadn’t withheld taxes either.  She claimed that I was a contractor, not an employee.  Glenda said quite clearly that “it doesn’t matter anyway because you’ve lost your licence”.  I said, “Pardon”  Again, Glenda was very clear when she told me that I had lost my licence for too many demerit points and then said, “No licence,  no job”.  I was shocked and stunned.  Glenda then helped me to clear out the truck of my personal belongings.  I then gave the keys back to Glenda.  The next morning I called Glenda and informed her that I had not lost my licence.  Glenda then said, “So what does that mean?  Did you want to come back here and work?”  I said “Well, I was hoping to”.  Glenda then said “no” and then said that she had “already started filling the form saying inappropriate licence”.

8. There are then certain facts set out in relation to who allegedly owned the truck, who maintained the truck, who paid insurances on the truck, where and how the truck was provided and who provided the customers, who made out the invoices and how pays were calculated. The Court also notes that the respondent filed a response on 20 September 2013, opposing the orders sought and taking issue with the various alleged facts set out by the applicant. The Court also notes that the applicant sought various orders including, relevantly, an order for compensation in the sum of $300,000.

9. The question of whether a person is an independent contractor or employee is one which has bedevilled the modern law of industrial and employment relations. A respected commentator has written that:

   In contemporary Australian society, the distinction between the two types of arrangement has become particularly blurred, not the least because distinct legal treatment has created incentives for people engaging workers to prefer the independent contract model.  When entitlements under workers compensation legislation or unfair dismissal legislation are an issue, it is enormously important to know whether the worker is an employee or not.

   See: J. Riley, Employee Protection at Common Law, (Sydney: Federation Press, 2005), page 39.

10. The difficulties in distinguishing between an independent contractor and an employee have been recognised in modern Australian cases such as Hollis v Vabu Pty Limited (2001) 207 CLR 21; [2001] HCA 44 (“Hollis”) by the High Court and Damevski v Giudice & Ors (2003) 133 FCR 438; [2003] FCAFC 252 by the Full Court of the Federal Court. The determination of whether a person is an independent contractor or an employee is dependent in Australia upon the application of a multi-factorial or multiple indicia test as set out by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (“Brodribb Sawmilling”) and also in Hollis.

11. In Brodribb Sawmilling, it was said at page 24 by Mason J that:

    But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment.  The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v Federal Commissioner of Taxation [(1945) 70 CLR 539 at 552]; Zuijis Case [(1955) 93 CLR 561]; Federal Commissioner of Taxation v Barrett[(1973) 129 CLR 395 at 401]; Marshall v Whittaker’s Building Supply Co [(1963) 109 CLR 210 at 218] Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax, and the delegation of work by the putative employee.

12. In Gaskin Bros v McGowan (1941) AR (NSW) 645 at 648, it was said:

    A sub-contractor who enters into a contract for portion of the work contracted for may in some cases do the work himself or he may employ labour to do that work … In every case, however, such an arrangement between a contractor and a sub-contractor must be scrutinised very carefully, in order to see whether the man taking the contract is in reality, an independent contractor and not merely an employee who does the work by himself, or with other men, and under the guise of such an arrangement is paid less than award rates, in order that the work may be done at a cheaper price.

13. That level of scrutiny is unable to be applied in this case because, by reason of the failure of the applicant to file affidavits, there is no evidence of the matters adverted to by way of the multi-factorial test in Brodribb Sawmilling. In the absence of affidavits or even an outline of submissions, it is also not appropriate to conduct a trial such as this orally, were that possible if the applicant had appeared, which she has not. So in those circumstances, the matter can, in the Court’s view, only be proven by proper documentation or possibly by proper proof of a lack of relevant documentation. That cannot occur here because nothing has been filed and now the applicant does not appear. Nor should, in the circumstances, the respondent have been required to meet an oral case without notice of what the case was. That now does not arise because the applicant has not appeared.

14. Another small example of why the hearing could not, in any event, run arises from the claim for compensation. $300,000 was claimed in compensation. No evidence as to what the applicant, employed as a tow truck operator/driver, earned for the period of employment from July 2012 to June 2013 or the basis upon which the applicant was paid or remunerated appears in the papers. It is not attached to the Form 2, requesting details of how much compensation is claimed, although it is specified in the application but, more importantly, there is no detail of the requested calculation of how the amount has been calculated.

15. The applicant is plainly in default. No issue arises here as to whether the proceedings ought to be adjourned because the applicant has not appeared to make that application or to put any case with respect to the issue of an adjournment. As the Court has indicated earlier, the applicant clearly is in default by the failure to file affidavits indicating what her evidence is in chief and also in reply, and an outline of submissions. The default arises in circumstances where there have been two directions hearings. The applicant has been allowed to file an amended claim and any amended affidavits. It is eight months since the directions were first made, setting this matter down for trial. It is four and a half months since the directions were made with respect to the amended claim and no reason has been tendered today as to why the applicant has not taken the steps required of her. The applicant therefore remains in default by reason of her own conduct and in a fundamental way referred to above in terms of the conduct of the case.

16. In the circumstances, it is appropriate under r.13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) that the application be dismissed and there will be an order to that effect. Further, given the applicant has not attended today’s hearing there ought to be an order dismissing the application pursuant to r.13.03C(1)(c) of the FCC Rules.

17. In those circumstances then, there simply will be an order that, pursuant to rr.13.03B(1)(a) and 13.03C(1)(c) of the FCC Rules, the application be dismissed and a copy of that order and the reasons will be forthcoming in due course.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 11 August 2014