Mr Glenn Miller v McColl's Transport Pty Ltd T/A McColl's Transport

[2012] FWA 4809

[2012] FWA 4809

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s. 394 - Application for unfair dismissal remedy

Mr Glenn Miller
v
McColl’s Transport Pty Ltd T/A McColl’s Transport
(U2012/4851)

Mr Tom Gale
v
McColl’s Transport Pty Ltd T/A McColl’s Transport

(U2012/4852

Mr Brendan Speed
v
McColl’s Transport Pty Ltd T/A McColl’s Transport

(U2012/4853)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 22 JUNE 2012

Application for unfair dismissal remedy - jurisdictional questions - Whether an employee or contractor- Fair Work Act 2009 ss 382, 386, 394

[1] This decision arises from three unfair dismissal applications lodged pursuant to section 394 of the Fair Work Act 2009 (the Act) by Mr Glenn Miller, Mr Tom Gale and Mr Brendan Speed. The respondent to all three applications is McColl’s Transport Pty Ltd t/a McColl’s Transport (McColl’s).

[2] I heard all three applications on 27 April 2012 in Sydney. Mr Paul Tilbury, Director and Principal Consultant of HR Genie Pty Ltd, appeared for the applicants. Mr Martin Reid, Solicitor of Coulter Roache Lawyers, appeared for McColl’s.

[3] Each applicant worked pursuant to arrangements governed by contracts with McColl’s (the Agreement/Agreements).

[4] Each of the applicants contended that they were employees and that insufficient work, the reason provided by McColl’s for the cessation of their working arrangements, was a sham.

[5] McColl’s objected to all three applications on the basis that Mr Miller, Mr Gale and Mr Speed were not, and never had been, employees of McColl’s. McColls’ submission was that all three applicants had only ever been engaged as independent contractors and therefore could not be persons protected from unfair dismissal pursuant to s.382 of the Act.

[6] There was no dispute between the parties regarding the principles to be applied to the determination of the parties’ relationship. In Abdalla v Viewdaze Pty Ltd t/a Malta Travel 1 (Abdalla) a Full Bench of the Australian Industrial Relations Commission discussed the legal principles applicable to a determination of whether or not a person is an employee or an independent contractor. These principles were further considered by a Full Bench of Fair Work Australia in Jiang Shen Cai trading as French Accent v Do Rozario.2

“(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.




Such persons tend to be engaged as independent contractors rather than as employees.

• Whether the worker creates goodwill or saleable assets in the course of his or her work.



• 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.” (References omitted).

[7] The Full Bench highlighted the difficulty in categorising all employment relationships into either employee or independent contractor arrangements :

“The FW Act imposes obligations on employers in relation to their “employees” and confers benefits and rights on “employees” without defining when a worker is an employee as distinct from an independent contractor. The definition of “employee” leaves it to the general law to supply that distinction. The nature of the established general law approach to distinguishing between employees and independent contractors may be seen as contributing to the problem precisely because the nature of the general law test is such that it does not admit a clear answer in every case. Once one adopts the position, as the general law has done, that the distinction is rooted in the objective character of the work relationship two things follow. First, the infinite variety of human affairs means that work relationships present as a spectrum, some of which are clearly relationships of employment and others of which are clearly relationships of independent contract but some of which are less clear cut. Secondly, that character of a work relationship is what it is and cannot be changed simply because the parties agree to label it differently (unless, of course, the relationship is sufficiently ambiguous that a clear determination is not possible, the situation addressed by the Massey proposition). That is a matter clearly recognised by the courts and tribunals.”

Facts Relevant to Each Applicant

Mr Glenn Miller

The Agreement

[8] Mr Miller is the Director, owner and sole employee of Gills Haulage Pty Ltd (Gills Haulage) which company has a registered business address, separate from McColl’s, in Wangaratta, Victoria. From August 2009 Gills Haulage had an ongoing agreement with McColl’s to provide a vehicle for hire, together with the service of driving the vehicle and the related business activity of transporting goods.

Right to delegate

[9] Mr Miller accepted that, subject to McColls’ approval, Gills Haulage had a right to employ additional drivers to perform services under the Agreement, and that it had done so on one occasion to enable Mr Miller to take leave.

Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

[10] Gills Haulage did not perform any service for any other company during the life of the Agreement. Mr Miller’s evidence was that, due to the weekly hours that Gills Haulage was engaged by McColl’s, it was impossible to perform work elsewhere. This was due to legislative limitations on hours and the limitations imposed by McColls’ Basic Fatigue Management and Driving Hours Policy and Procedures. Mr Miller said that it was not feasible or practicable to offer the services of Gills Haulage to any other company and that he had not done so. However, Mr Miller conceded that there was nothing in the Agreement that prevented Gills Haulage from providing services to others.

Control over the place of work, hours of work and the like.

[11] Mr Miller gave evidence that Mr Ken Dok, McColls’ Allocation Manager, had directed him to be “on-call 24/7”. Mr Miller said that the question was never, “Can you do this job?”, it was always “You’re to work on this job and travel from this point to that point, in this timeframe.” Mr Miller felt obligated to take the work because he feared that his workload would be reduced if he did not. Mr Miller gave the example of his grandson’s christening. He had told Mr Dok that he was unavailable but Mr Dok told him that the truck was on-call 24/7 and it had to be available for a run on that day. At the time, Mr Miller was the sole employee of Gills Haulage. Mr Miller made himself available to take the run as he feared his workload would be reduced if he took leave to attend the christening.

Whether the worker provides and maintains significant tools or equipment.

[12] Although Gills Haulage had previously owned two prime movers, it owned one prime mover worth approximately $205,000 at the time the relationship was brought to an end. This prime mover was made available to McColl’s pursuant to the contractual relationship. Gills Haulage was responsible for all running costs associated with the business such as insurance payments, rental payments, registration and mechanical upkeep of the prime mover. The only exception was petrol, which was part subsidised by McColl’s on a monthly basis.

Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks?

[13] Mr Miller accepted that McColl’s did not pay him, or his casual employee Mr Aitken, any salary, leave entitlements or superannuation contributions. Instead, McColl’s paid Gills Haulage a gross amount (including GST) corresponding to kilometres travelled and a petrol subsidy, which was raised by Gills Haulage on a running sheet each month. Gills Haulage grossed approximately $200,000 per annum of which $140,000 went to running the business. The balance was paid by Gills Haulage to Mr Miller and Mr Aitken to cover remuneration and associated employee costs such as superannuation contributions and leave entitlements. Mr Miller’s wife took care of Gills Haulage’s tax obligations by completing a BAS.

Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

[14] Mr Miller accepted that the work of a truck driver contained inherent risks and, in that regard, required a high degree of skill in the manner that work was performed.

Whether the putative employer presents the worker to the world at large as an emanation of the business?

[15] McColl’s required an owner driver’s truck to be painted white. In addition, each owner driver was given a shirt with “McColl’s Transport” livery displayed on it at the commencement of their engagement. The requirement to wear the shirt was not strictly enforced.

Right to dismiss

[16] On 1 February 2012 Mr Miller said that he had received a telephone call from Mr Mulraney, the General Manager of the Bulk Food Grade Division, McColl’s, terminating the Agreement with notice, due to an alleged reduction in workload.

Mr Tom Gale

The Agreement

[17] Mr Gale is the Director, owner and sole employee of TIG & Sons Haulage Pty Ltd (TIG) which company has a registered business address separate to McColl’s in Glenmore Park, New South Wales. Mr Gale said that he had identified the opportunity to work for McColl’s by responding to an advertisement McColl’s had placed in a trucking magazine for two “tow operators”. From September 2009 TIG had an Agreement with McColl’s to provide a vehicle for hire, together with the service of driving the vehicle and the related business activity of transporting goods. Mr Gale gave evidence that he had won the contract with McColl’s because his company owned a prime mover. McColl’s had never offered him direct employment as a driver.

Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

[18] TIG did not perform services for any other company during its engagement with McColl’s. Mr Gale said that due to the amount of hours that TIG was engaged by McColl’s it was impossible to perform work elsewhere. This was due to legislative limitations on hours and the limitations imposed by McColls’ Basic Fatigue Management and Driving Hours Policy and Procedures. Mr Miller said that it was not feasible or practicable to offer the services of Gills Haulage to any other company and that it had not done so. Mr Gale conceded that there was nothing in the Agreement that prevented TIG from providing services to others.

Control over the place of work, hours of work and the like.

[19] Mr Gale stated that Mr Ken Dok, McColls’ Allocation Manager, had directed him to obtain a voicemail service on his mobile phone and be on-call 24/7. Mr Gale said that he felt McColl’s had 100 percent control of his prime mover and the hours that he worked. He felt obligated to take the work because if he did not he feared that his workload would be reduced. As an example he gave evidence of an occasion when he had taken leave from driving his truck to attend a funeral in support of a work colleague who had lost a family member. Subsequently TIG’s work allocation had been reduced. Mr Gale gave evidence that this reduction had come about as a direct result of his taking the day off to attend the funeral. At that time he was the sole driver for TIG.

Right to delegate

[20] Subject to clause 2.8 of the Agreement TIG had a contractual right to delegate work to another driver in the performance of its obligations. Despite this entitlement, Mr Gale said that he was told at interview that no other drivers were allowed to drive his truck and, in subsequent conversations with Mr Dok, he was told “If you put someone else on, you’d have to park it.” Because of these conversations he had not engaged another employee. On my enquiry he advised that he had not exercised his right under the Agreement’s Dispute Resolution Procedure to clarify the operation of clause 2.8.

Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks?

[21] Mr Gale's arrangement was exactly the same as that of Mr Miller in this respect.

Whether the worker provides and maintains significant tools or equipment.

[22] TIG currently owns one prime mover worth approximately $268,000. This prime mover was made available pursuant to the contractual arrangement with McColl’s. TIG was responsible for all running costs associated with the business such as insurance payments, rental payments, registration and mechanical upkeep of the prime mover. The only exception was petrol which was part subsidised by McColl’s on a monthly basis.

Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

[23] Mr Gale accepted that the work of a truck driver contained inherent risks and, in that regard, required a high degree of skill in the manner that work was performed.

[24] Whether the putative employer presents the worker to the world at large as an emanation of the business?

[25] Mr Gale did not provide any evidence as to this factor.

Right to dismiss

[26] On 1 February 2012 Mr Gale said that he had received a telephone call from Mr Mulraney terminating the Agreement, with notice, due to an alleged reduction in workload.

Mr Brendan Speed

The Agreement

[27] Mr Speed is the Director, owner and sole employee of Anakie Haulage Pty Ltd (Anakie) which company has a registered business address separate to McColl’s in Lara, Victoria. From August 2008 Anakie had an Agreement with McColl’s to provide a vehicle for hire, together with the service of driving the vehicle and the business of transporting goods. Mr Speed conceded that he was free to accept or reject McColls’ offer of engagement. Previous to its engagement with McColl’s Anakie had provided services to another company under similar terms. Mr Speed accepted that he was an employee of Anakie and that he had understood that he had been asked to drive his truck on behalf of Anakie when entering into the Agreement.

Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

[28] Anakie did not perform services for any other company during its engagement with McColl’s. Mr Speed’s evidence was that due to the weekly hours that Anakie was engaged by McColl’s, it was impossible to perform work elsewhere. This was due to legislative limitations on hours and the limitations imposed by McColls’ Basic Fatigue Management and Driving Hours Policy and Procedures. Mr Speed said that it was not feasible or practicable to offer the services of Anakie to any other company and that it had not done so. Mr Speed conceded that there was nothing in the Agreement that prevented Anakie from providing services to others.

Control over the place of work, hours of work and the like.

[29] Mr Speed said that he was expected to be on-call 24/7. He felt McColl’s had 100 percent control of his time and the hours that he worked. He had felt obligated to take the work because he feared that his workload would be reduced if he did not. Mr Speed said that his company had no control over pick-up or drop-off times. Although Mr Speed conceded that there was nothing in the contract that prevented his company from rejecting work or performing services for another he said ”......I mean, what's in that contract and what was done through the course of employment, two totally different things”.  3

Whether the worker provides and maintains significant tools or equipment.

[30] Similar to Gills Haulage and TIG, Anakie currently owns one prime mover worth approximately $200,000. This prime mover was made available to McColl’s pursuant to the contractual relationship. Anakie was responsible for all running costs associated with the business such as insurance payments, rental payments, registration and mechanical upkeep of the prime mover. The only exception was petrol, which was part subsidised by McColl’s on a monthly basis.

Right to delegate

[31] Anakie had employed a relief driver on one occasion for two weeks so that Mr Speed could take leave. Mr Speed gave evidence regarding a verbal exchange with Mr Dok, during which Mr Dok stated, “Owner. Driver. That’s it”. He had not exercised his rights under the Agreement’s Dispute Resolution Clause to contest Mr Dok’s statement.

Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks?

[32] Mr Speed’s arrangement was exactly the same as that of Mr Miller and Mr Gale in this respect.

Whether the putative employer presents the worker to the world at large as an emanation of the business?

[33] Mr Speed did not provide any evidence as to this factor.

Right to dismiss

[34] On 1 February 2012 Mr Speed said that he had received a telephone call from Mr Mulraney terminating the Agreement, with notice, due to an alleged reduction in workload.

Respondent’s Evidence

Mr Mulraney

[35] Mr Mulraney is the General Manager of the Bulk Food Grade Division, McColl’s. He coordinates the owner-drivers. Mr Mulraney gave evidence that McColl’s did not have a contractual relationship with the applicants as individuals. All payments in respect of services performed were paid into the bank account of Gills Haulage, TIG and Anakie. Mr Miller, Mr Gale and Mr Speed did not receive any wages, superannuation or other benefit. McColls’ contractors and employee drivers were both subject to the same mode of remuneration on the basis of total kilometres travelled, but the contract drivers were paid an additional premium. Mr Mulraney’s evidence was that the additional premium paid to owner drivers was paid to compensate them for the investment and risk that each brought to the relationship.

[36] To the best of Mr Mulraney's knowledge McColl’s had had the exclusive benefit of the service of Gills Haulage,TIG and Anakie.

[37] Mr Mulraney gave evidence that the McColls’ Basic Fatigue Management and Driving Hours Policy and Procedures was a product of legislative, not management, control. The degree of control exercised was necessary to manage the stability of the contractual relationship between the parties. The first step was to call each owner driver to see when they were available to take on work, typically one or two days before allocation took place. McColl’s then nominated the pick-up and delivery points and the load to be carried. From there on in it was at the discretion of each owner driver as to how work was performed.

[38] McColl’s relied on owner drivers to provide a prime mover. Some owner drivers had provided two prime movers to perform services under their Agreements.

[39] Each owner driver was entitled to engage suitably qualified relief drivers subject to McColls’ approval and after completion of McColls’ induction program. Mr Mulraney said that McColl’s method of operating clause 2.8 was simply a means of ensuring that McColl's knew who was representing them.

[40] In cross-examination, Mr Mulraney said that a number of owner drivers did not have “McColl’s Transport Pty Ltd” signage on their truck. Typically, their truck would bear the name of its owner’s corporate entity. McColl’s has a fleet of 50 trucks of which 10 to 12 had not been painted white.

Submissions of the Three Applicants

[41] Mr Tilbury submitted that the terms of the contract did not represent the totality of the relationship. The practical reality of the relationship between McColl’s and Gills Haulage, TIG and Anakie represented an employment arrangement for the following reasons:

• McColl’s had complete control of the allocation of work and the manner in which work was performed;



• Gills Haulage, TIC and Anakie did not have a genuine and practical entitlement to perform services for another;



• The contractual right to delegate or subcontract work was discouraged and, in any event, was subject to McColls’ approval;



• Gills Haulage, TIC and Anakie were required to display McColls’ corporate entity signage on their trucks and the applicants were required to wear a shirt with McColls’ livery.

McColl’s submissions

[42] Mr Reid submitted that each individual applicant was an independent contractor under an Agreement and therefore there was no jurisdiction in Fair Work Australia to hear these three applications. None of the three applicants was an employee as defined in the Act. None of the applicants was a person protected from unfair dismissal.

[43] Mr Reid submitted that each applicant carried on an owner driver business with a corresponding corporate entity. Those corporate entities had been engaged by McColl’s under a contract for services. That contract for services had a termination clause which McColl’s had exercised legally.

[44] Mr Reid submitted that McColl’s had a right to direct each contractor from one destination to the next, otherwise they were free to come and go and do as they pleased. Such a limited degree of control was not inconsistent with the applicants being independent contractors taking into account the work performed, the high level of risk involved in transporting goods and the high level of skill each of the applicants possessed by driving a truck.

[45] Each applicant had made a significant investment in the relationship. Each owner driver business bore its own costs associated with the performance of its contractual obligations under the Agreement.

Conclusion

[46] McColl’s arrangements were consistent with a relationship between the parties of principal and contractor. There was no evidence put to me by the applicants that persuaded me that the relationship was one of employment.

[47] The evidence was that McColl’s had offered each of the applicants a business venture of a kind that is unremarkable in the transport industry, and that each of the applicants had accepted the arrangement on the terms on which it was offered - that is, a principal and contractor relationship.

[48] Taxation, remuneration and leave arrangements were not organised on the basis that any of the applicants were employed. Although the mode of remuneration was the same for employees and owner-drivers and was based on task completion (kilometres travelled), all three applicants were aware that they received a premium rate above that of employed drivers. There was no evidence to contradict the evidence of Mr Mulraney that this payment was made to compensate the applicants for their substantial investment and shared commercial risk. This is indicative of a principal and contractor relationship.

[49] Clause 3.2 of the Agreements provides that contractors received a minimum payment based on a weekly period of 38 hours. Mr Mulraney’s evidence was that this was inserted into the Agreements to satisfy the requirements of the Contractors Act (Vic) and that the clause had been included in all McColls’ contracts nationwide as a sign of goodwill to its contract drivers. The applicants adduced no evidence contrary to this proposition. Further, the practical operation of clause 3.2, as applied to the applicants’ situation, was that the minimum payment only arose if the applicants had not found work elsewhere. They were free to come and go as they pleased and to provide services to others.

[50] I am not satisfied that Clause 3.2 was inserted by McColl’s to retain the exclusive services of the applicants. On either version of the facts McColl’s exercised a high degree of control over the work and hours of work of the applicants, particularly in respect to the setting of pick-up and drop-off times. The applicants relied on this factor to characterise the relationship as being one of employment. However, this level of control is equally consistent with a principal and contractor relationship.

[51] The applicants made much of the restrictive use of the Basic Fatigue Management and Driving Hours Policy and Procedures as limiting their ability to build goodwill and perform services for others. I am not persuaded by this submission. The number of hours that a driver can work within the law is limited. If the applicants performed work for the legal maximum number of hours with McColl’s then they could not perform work for others. That is the natural operation of the legislation. I accept McColls’ evidence that the Basic Fatigue Management and Driving Hours Policy and Procedures arose from legislative requirements.

[52] There was no evidence called to contradict the evidence of the applicants regarding the system of work allocation by Mr Dok. The uncontradicted evidence was that Mr Dok allocated work to the three applicants in an unfair fashion and inconsistently with the plain terms of the Agreements. Mr Dok was said to put limitations on the right to delegate work to a relief driver. The evidence was that he did so unreasonably. However this conduct does not convert the relationship into one of employment. The applicants could have sought redress through the Dispute Resolution Procedure of the Agreement regarding the operation of clause 2.8, which provided a clear contractual right of delegation.

[53] Each applicant brought a prime mover to the contractual arrangement that had previously been used in their respective businesses. This was a substantial capital investment that bore a significant risk. I regard this to be a highly persuasive factor which points to the relationship being one of principal and contractor. I attribute significant weight to this arrangement.

[54] Much of the applicants’ evidence was given as if they believed that McColl’s had an employment arrangement with their corporate entities and that this could be interpreted as creating an employment relationship with them as individuals. This is a misguided approach.

[55] The overwhelming weight of the evidence before me was in favour of a relationship of principal and contractor between McColl’s and Gills Haulage, TIG and Anakie. I am satisfied that there was such a relationship and that there was no employment relationship between McColl’s and Mr Miller, Mr Gale and Mr Speed.

[56] The jurisdictional objection of McColl’s is upheld. The applications are dismissed.

SENIOR DEPUTY PRESIDENT

 1   Lawler VP, Hamilton DP, Bacon C - PR927971

 2   Lawler VP, O’Callaghan SDP, McKenna C - PR517359

 3   Transcript PN1031

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