Mr Mark Jones v Batman Courier Services Pty Ltd T/A Batman Courier Services

[2011] FWA 1948

[2011] FWA 1948

FAIR WORK AUSTRALIA

DECISION

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

Mr Mark Jones
v
Batman Courier Services Pty Ltd T/A Batman Courier Services
(U2010/14645)

Mrs Debra Jones
v
Batman Courier Services Pty Ltd T/A Batman Courier Services
(U2010/14655)

COMMISSIONER CRIBB MELBOURNE, 16 MAY 2011

Termination of employment – jurisdiction - not employees.

[1] This decision concerns two applications which have been lodged respectively, by Mr Mark Jones (applicant) and Mrs Debra Jones (applicant) in relation to the termination of their employment by Batman Courier Services Pty Ltd (the respondent).

[2] The applications were made pursuant to section 394 of the Fair Work Act 2009 (the Act) on the grounds that their dismissals were harsh, unjust or unreasonable.

[3] Batman Courier Services Pty Ltd (Batman) has lodged a jurisdictional objection to Fair Work Australia dealing with the applications on the grounds that the applicants were not employees or national system employees within the meaning of the Act. The Company sought determination of the jurisdictional objection prior to the applications being referred for conciliation.

[4] A hearing of the respondent’s jurisdictional objection was held on Friday 18 February 2011 and on Wednesday 23 February 2011. Mr R Richardson of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) represented the applicants. Mr J McKenna, of counsel, represented the company. Mr C Munting, Director of Batman gave evidence as did Mr and Mrs Jones.

EVIDENCE

RESPONDENT

Mr Munting

[5] Mr Munting gave evidence that he employed 60 - 70 subcontractors and stated that Australia Post was aware that they were subcontractors. This was said to be because one of the interview questions for the contract was whether they were using subcontractors or employees. 1

[6] Regarding the Mordialloc parcel delivery contract, it was confirmed that Mr Jones did the primary sort for it. Mr Munting said that, as part of the agreement regarding the vans, Mr Jones had agreed to do the primary sort for no payment. 2 He stated that it took 2 - 3 hours each day and that Mr and Mrs Jones were paid more than all the other contractors at the Braeside Delivery Centre.3 He indicated that he was required, under the contract, to deliver all parcels that were received each day. He therefore divided the delivery area into runs and engaged a subcontractor to do each of the runs. For new drivers, Mr Munting said that he made a run order to get them started.4

[7] Mr Munting stated that he had put the Joneses off because of issues with the delivery procedures as he wanted to retain his contracts. 5 He said that he had not received a notice from Australia Post regarding a breach of the delivery procedures.6 He recalled that he had received a breach notice from Australia Post regarding Mr Jones in September 2008.7 Mr Munting recounted that Australia Post spoke to Mr Jones and the other driver involved and said that they were very close to losing their authority to deliver mail for Australia Post.8 It was explained that Mr and Mrs Jones had been dismissed because they were not following particular delivery procedures - were not doing their job.9 He said that he had issued warning letters to both of them three times - in May, October and on 24 November 2010.10

[8] Mr Munting stated that he did not view Mr Jones as a supervisor. He said that the person he now calls a supervisor is prepared to come back to Mordialloc in the late afternoon and help him deliver the remaining parcels. However, Mr Jones was said to never be prepared to do this. 11

[9] Mr Munting recounted that, in about June 2003, Mr Jones had approached him and offered his services as a subcontractor on the Mordialloc parcel delivery contract. He said that he made it clear to Mr Jones that he would be an independent subcontractor. Mr Jones had agreed and he then performed work under this contract for Batman together with his own contract - the Braeside Depot bag contract. He said that Mrs Jones was not present during this conversation. Mr Munting confirmed that Mr Jones had told him, then and subsequently, that he would give him 12 months notice. He said that he had not responded to that nor agreed that he would give Mr Jones 12 months notice. 12 It was stated that Mr Jones used his own van for both contracts. Mr Jones also undertook the primary sort of parcels for the Mordialloc parcel delivery contract.13

[10] It was stated that Mr Jones had re-tendered successfully for the Braeside Depot bag contract in 2004. In January 2005, a verbal agreement was reached, whereby Mr Jones agreed to assign the contract to Batman. Mr Munting said that Mr Jones had told him that he did not want the paperwork and extra costs involved with having his own contract with Australia Post nor having to find replacement drivers if he was unavailable. 14 The re-assignment was approved by Australia Post. Mr Munting stated that Mr Jones had then become a subcontractor to him. Mr and Mrs Jones continued to deliver parcels under the Mordialloc parcel delivery contract.15 In November 2005, Mr Munting said that Mr and Mrs Jones were allocated separate delivery areas under the Mordialloc parcel delivery contract. The company was said to have also engaged another driver to help with deliveries on busy days.16 It was Mr Munting’s recollection that, between July 2003 and November 2005, Mr Jones would get his wife to deliver certain parts of his round.17

[11] In 2006, Mr Munting said that the company re-tendered successfully for the Mordialloc parcel delivery contract. However, there was a new Australia Post stipulation of white delivery vans. A verbal agreement was said to have been reached with Mr Jones that Batman would buy Mr Jones’ old van and that, if the Joneses continued to drive for Batman for the term of the contract (5 years), Mr Munting would transfer ownership of the 2 ‘new’ vans to them in June 2011. 18 Mr Munting said that he did not have such an agreement with any of his other drivers. He had done this so that he could maintain the staff he already had at the beginning of the contract.19

[12] Mr Munting recalled that, in June 2009, Batman unsuccessfully re-tendered for the Braeside Depot bag contract which was awarded to Elektra Pty Ltd (Elektra). After being advised of this, it was recalled by Mr Munting that Mr Jones had asked him to attend a meeting with Elektra. Mr Munting said that he was told by Mr Jones that he had an agreement with Elektra to continue to service the Braeside Depot bag contract. Mr Jones had asked if he could use the Batman vans to perform the contract for Elektra. Mr Munting recounted that he had agreed on the basis that he was paid 7 cents per depot bag delivered by Mr Jones. It was stated that Mr Jones had also agreed that his work for Elektra (Braeside Depot bag contract) would not interfere with his work for Batman. 20 Further, Mr Munting stated that the Joneses had agreed that Australia Post would provide him with the monthly depot bags report to facilitate payment to Mr Munting for use of his vans. However, it was stated that no money had been received from the Joneses whilst they had continued use of his vans.21

[13] It was stated by Mr Munting that he had tentatively agreed that Batman would assist in covering the Braeside Depot bag contract (Elektra’s contract) in the Joneses’ absence. However, after the Joneses were away in July 2009, it was recalled by Mr Munting that he decided that it was inappropriate for Batman to do this and he informed the Joneses accordingly. 22

[14] Mr Munting stated that Batman imposed very few requirements on drivers in addition to those of Australia Post. He said that drivers were free to perform their work when and how they saw fit. 23 It was also Mr Munting’s evidence that the company had little control over how and when the Joneses performed their work. They did not seek instruction or clarification regarding their work from Batman.24 He explained that the Joneses were required to wear particular clothing by Australia Post who also provided it. Further, Mr Munting said that the Joneses were not required to “report” to anyone from the company. Any instructions regarding the Joneses work were said to be discussions about Australia Post’s requirements. Mr Munting also stated that the Joneses had no fixed hours of work and were able to arrange their work as they saw fit. When back-up drivers were required, they were said to have been paid by the company but were generally organised by the Joneses.25 As well, Australia Post did not allow the company’s name or logo to be displayed.

[15] With respect to taking holidays, it was stated by Mr Munting that the Joneses did discuss with them when they wanted to take holidays. However, they would arrange replacement drivers and would apply directly to Australia Post for an Authority to Convey Mail for the new driver(s). Mr Munting also indicated that the Joneses were able to delegate their work to others e.g. Australia Post posties. When this occurred, Mr Munting would pay the posties directly. Following the postal strike in December 2009, it was stated that Mr Jones had paid the posties directly and that he had repaid him. 26

[16] In terms of the intentions of the parties, Mr Munting said that he had always described the Joneses as subcontractors or independent contractors in his discussions with him and they also with him. Mr Jones had also called himself a contractor in a number of documents. Mr Munting also stated that the invoicing and taxation arrangements reflected a contractor relationship. Initially, it was said that the Joneses had issued an invoice/statement specifying the gross amount payable including GST. In 2005, the invoices included an Australian Business Number and were for both the Mordialloc and Braeside contracts. However, Mr Munting indicated that, since January 2009, Mr and Mrs Jones had refused to issue invoices. He stated that the Joneses were only paid for the parcels they delivered. 27

[17] Mr Munting recounted that, until mid 2006, Mr and Mrs Jones used their own vehicles. However, with a contract change by Australia Post, Mr and Mrs Jones used vehicles owned by the company. It was stated that the Joneses had full use of the vans except when they went on holidays when the vans would be returned for use by the relief drivers. Mr and Mrs Jones were said to have supplied their own boots as it was an Australia Post requirement that persons entering the Delivery Centres wore steel capped boots. 28 Finally, Mr Munting stated that the Joneses were not required to work exclusively for the company. He pointed out that, when the Joneses began working for Batman, they had their own contract with Australia Post. Further, Mr Munting indicated that the Joneses worked for Elektra and not Batman when the latter lost the Braeside Depot bag contract.29

[18] In his written statement 30, Mr Munting set out the Australia Post requirements which must be complied with for each contract. They included:

• An Authority to Convey Mail must be obtained by each driver from Australia Post. The process included induction training by Australia Post with other training later, by Australia Post, as required. Batman did not conduct any such training. 31



• Australia Post would issue Managers’ Information Bulletins and all drivers would be required to attend tool box discussions conducted by Australia Post. 32



• Each driver is issued with a Delivery Guide which is to be carried with them in the van. If there are any queries about the Delivery Guide, the driver is to speak to the Delivery Manager. The Delivery Centre Manager is responsible for the conduct and behaviour of all personnel, including contractors. 33



• The Dock Manager at each Delivery Centre oversees the sorting and collection of parcels by drivers. 34



• Australia Post stipulates the times at which mail can be delivered and when business premises can be “carded” etc. These General Conditions of Contract are enforced by Australia Post against Batman, its subcontractors and individual drivers. Australia Post may issue a Notice of Breach and take action against an individual driver including cancelling their Authority to Convey Mail. 35

APPLICANTS

Mrs Jones

[19] Mrs Jones gave evidence that:

• She was an employee of Australia Post from 1990 - June 1999. 36



• Whilst employed by Australia Post, Mrs Jones:




• Had an Authority to Convey Mail from Australia Post which she was required to wear around her neck. 37

• Was required to comply with Australia Post’s requirements regarding the delivery of mail. 38

• She and her husband had resigned from Australia Post in 2000 prior to tendering for the Braeside Depot bag contract. 39

• She and her husband obtained the contract and worked together to service it through their own business. 40



• A family partnership in the name of Mark D and Debra J Jones trading as MD and DJ Jones was established in 2000. The business had an ABN. 41



• She was aware that her husband had a conversation in 2003 with Mr Munting about the Mordialloc parcel delivery contract. Mr Munting had approached her husband. She had not been present at the initial meeting and so did not know what was said. 42



• The MD and DJ Jones business partnership registered for GST. 43



• Between June 2003 and mid 2004, Ms Jones and her husband worked under their own Braeside Depot bag contract and for Batman under the Mordialloc parcel delivery contract. 44



• They had their own vehicle for both contracts and were required to comply with Australia Post requirements when performing both jobs. 45



• Kane’s Couriers Pty Ltd (Kane’s) was registered in July 2004 with Ms Jones and her husband as shareholders.



• They successfully re-tendered for the Braeside Depot bag contract in 2004 through Kane’s. 46



• Six months after re-obtaining the Braeside Depot bag contract, Kane’s assigned the contract to Batman, she and Mr Jones continued to perform the Braeside Depot bag contract for Batman from 2005 to 2009 in the same way they had done when they held the contract. 47



• At the same time, she and Mr Jones continued to perform the Mordialloc parcel delivery contract for Batman. 48



• They used their own vehicles to perform work for both contracts until September 2006. 49



• Mrs Jones denied that she and her husband shared one delivery run for the Mordialloc parcel delivery contract. She said that Mr Munting had given her the Aspendale run. 50



• It was confirmed that Batman re-tendered (successfully) for the Mordialloc parcel delivery contract in 2006 and that one of the tender conditions was the provision of new vans. Mrs Jones stated that the van and vehicle that they were driving would not satisfy Australia Post’s requirements. 51



• She was present when agreement was reached with Mr Munting regarding the provision of new vans. The agreement was said to be that Batman would buy Mr Jones’ old van for $10,000 and that, if he continued to work for Batman for 5 years, the vans would be theirs. Mrs Jones confirmed that they took the vans home at the end of the day but were required to leave them for someone else to use when they went on holiday. 52



• Mrs Jones confirmed that Batman lost the Braeside Depot bag contract in June 2009 and that they were keen to retain the work. 53



• There was a meeting at their house and it was agreed by Mr Munting that they could continue to use Batman’s vans in undertaking their work for Elektra. They were to pay Mr Munting 7 cents per depot bag. It was also agreed that this work would not interfere with their Mordialloc parcel delivery contract work for Mr Munting. Mrs Jones acknowledged that Mr Munting would not have been able to impose this requirement if they had not been using Batman’s vans for the other contract. 54



• Mrs Jones confirmed that Australia Post were aware of this agreement and that they were providing the depot bag figures to Batman. 55



• Mrs Jones stated that since 2000, with respect to the Braeside Depot bag contract, they had been performing the same work with the same arrangements, through the family partnership, Kane’s, when Batman held the contract and now Elektra. 56



• She indicated that they were still doing the Braeside Depot Bag work for Elektra. Mrs Jones stated that they did not invoice Elektra and that Elektra did not tax their payments but that they did declare GST on the amounts they received. She said that she and Mr Jones assumed they were employees of Elektra. 57



• With respect to payment for the use of the vans for the Elektra contract, in July 2009, Mr Munting had taken the 7 cents per bag out of their pay. They had not agreed to that. Since then, they had not paid Mr Munting and still had possession of the vans. 58



• Mrs Jones confirmed that they were paid by Batman at a per parcel and a per bag rate on the basis of invoices submitted. The invoice dated June 2003 had been issued by their family partnership and an amount for GST was recorded. This continued to be the situation through to December 2008. The invoices showed a breakdown of the work under the 2 different contracts and for each of them separately. Mrs Jones agreed that Batman paid them into one account with both their payments made together. 59



• Mrs Jones agreed that for their work for Batman, they were responsible for their own GST and taxation. However, she said that Mr Munting had not described her as an independent or subcontractor in their discussions or meetings with him. She did not understand herself to have been engaged as a subcontractor by Mr Munting. 60



• It was denied by Mrs Jones that she had fabricated Mr Munting’s agreement to give them 12 months notice. She said that Mr Munting had agreed and that it was because Mr Jones wanted job security. 61 She stated that, whenever Mr Jones had said that they would give each other 12 months notice, Mr Munting had always agreed.62



• Mrs Jones indicated that she was required, by Australia Post, to comply with the Delivery Guide. She also agreed that the work she had performed through Kane’s, Batman and Elektra was overseen and co-ordinated by Australia Post’s Delivery Centre Manager. Mrs Jones confirmed that the Delivery Centre Manager would investigate incidents or complaints directly with the drivers. 63



• It was also acknowledged that the Dock Manager (an Australia Post employee) oversaw the sorting and collection of parcels, signed them off before Mrs Jones left the delivery centre and was responsible for occupational health and safety. 64



• Mrs Jones confirmed that it was an Australia Post requirement that she performed the work between 7:00 am and 5:00 pm. She said that she could do her work at any time within those hours and that Batman had not directed when or how she performed that work. She was required to comply with Australia Post Standards. 65



• It was indicated by Mrs Jones that it had been agreed with Mr Munting that on Mondays, a driver did her Aspendale run so that she could assist her husband. Mrs Jones said that she would suggest as to who could do the Monday run and had arranged directly with Australia Post for that person’s Authority to Convey Mail. She said that Mr Munting was advised about these arrangements. 66 Mrs Jones stated that, apart from on Mondays, she would only help Mr Jones by dropping off 1 or 2 parcels. She indicated that, in the past, if she needed a hand to get her deliveries finished by 5:00 pm, there was the option of using a postie. She said that, if a postie wanted to be paid on the spot, Mr Jones would ask Mr Munting if he wanted him to pay the postie and Mr Munting could pay him later.67 Mrs Jones denied that she or her husband used posties to cover their runs without advising Mr Munting.68 Prior to approaching a postie, Mrs Jones indicated that she could delegate some of her deliveries to a floater driver.69



• It was confirmed by Mrs Jones that between August 2009 and November 2010, about 37.5% of their income came from the Elektra work. 70

• Mrs Jones agreed that, when doing deliveries for Australia Post, whether through their family partnership, Kane’s, Batman or Elektra, she was required to wear safety shirts which indicated she was an Australia Post contractor. She stated that she was provided with the shirt by Batman and that she wore the same shirt whether performing work for Batman or for the Braeside Depot bag contract (Elektra). Mrs Jones also said that there was nothing on her shirt or van to indicate she was a representative of Batman. She confirmed that she was required to wear safety boots in the delivery centre and that she provided them herself. 71

Mr Jones

[20] Mr Jones gave evidence that, in 2003, Mr Munting had approached him about the parcel deliveries. 72 He recalled responding to Mr Munting that he would do them as long as they had a 12 month notice agreement because he had a mortgage to pay and was about to start a business.73 Mr Jones said that Mr Munting was happy to agree to that as long as he was given 12 month notice too. He recalled that the 12 months notice issue was discussed again in 2005, 2006 and 2010.74

[21] With respect to the arrangement about the vans, Mr Jones explained that Mr Munting bought his old van and they agreed that Mr Munting would give the Joneses the 2 new vans in 5 years time if he did not accept the sorting rate of $3.00 cash per day/$200.00 per week. Mr Jones stated that he had accepted this as the depot bag contract and the parcel delivery contract overlapped. 75

[22] When Batman lost the Braeside Depot bag contract to Elektra, Mr Jones recalled that Mr Munting had asked him whether he was going to continue with the depot bags. Mr Jones had responded that he could not do the depot bags unless Mr Munting agreed to the use of his vans for this contract for the next 2 years. He had offered to pay Mr Munting 7 cents per bag for use of the vans for the period ending 30 June 2011. He had agreed that the depot bags would not interfere with his work for Batman or the Mordialloc parcel delivery contract. 76

[23] It was stated by Mr Jones that, prior to going on workers compensation on 13 April 2010, his role had been that of supervisor for the Mordialloc parcel delivery contract for which he had been paid $1.00 per parcel more than the others. He recalled that he was authorised by Mr Munting to provide assistance when someone was overloaded with parcels. Mr Jones stated that he would then arrange for posties to lighten the load. 77 It was Mr Jones’ evidence that he was never recalled by Mr Munting to do parcels at Mordialloc as there were never any left over. Secondly, he said that he had his own run in any event and that the new supervisor has a different run.78

[24] It was confirmed by Mr Jones that Mr Munting had received a breach concerning him in September 2008. He indicated that Australia Post had asked him what had happened and that that was the last he had heard of it. 79

[25] Mr Jones stated that he was offered the Braeside Depot bag contract in early 2000 by Australia Post and that he had resigned as an employee to take on the contract. 80 He indicated that he and Mrs Jones established a business partnership but was unsure of the details as his wife did all the paperwork.81

[26] It was confirmed by Mr Jones that, at least until mid 2006, both he and his wife used their own vehicles to do the work both under the Braeside Depot bag contract and the work they did with Batman under the Mordialloc parcel delivery contact. 82

[27] With respect to his assigning the Braeside Depot bag contract to Batman in January 2005, it was Mr Jones’ recollection that Mr Munting had approached him about whether he would be interested in signing over the contract to him. Mr Jones stated that they had negotiated an agreement which was favourable to both of them. He confirmed that it was agreed that he would receive the same per parcel rate from Batman as he had got from Australia Post. Mr Jones said that the contract had been agreed that way to make it look as if Batman was taking more money. This would result in getting van vehicles to supply drivers. 83 Mr Jones added that Mr Munting had later reneged on the agreement that he would be paid the full amount of the depot bag contract.84

[28] Mr Jones confirmed that, between 2005 and 2009, he worked under the Braeside Depot bag contract and the Mordialloc parcel delivery contract (both Batman contracts). 85

[29] It was recounted by Mr Jones that in 2006, Batman re-tendered for the Mordialloc parcel delivery contract. A requirement for new vans then arose and Mr Jones stated that an agreement was negotiated between himself and Mr Munting with Mrs Jones present. Mr Jones believed that the agreement reached was that Batman would buy his old van for $10,000 and that the ownership of the vans would be transferred to him and his wife after 5 years of sorting the parcels at Braeside. 86 It was confirmed by Mr Jones that at the end of each day’s work, they would take the vans home.87 He agreed that, when they were away, the vans were left for use under the Batman contract by others. It was Mr Jones’ evidence that, if the vans were used in this situation, they were used sparingly.88

[30] Mr Jones agreed that, in June 2009, Batman lost the Braeside Depot bag contract to Elektra. Once he became aware of this, Mr Jones contacted Mr Maher from Elektra and arranged a meeting at his house with Mr Munting also invited. 89 Mr Jones stated that he realised that he needed permission from Mr Munting to use Batman Courier’s vans if he was to perform the work for Elektra. He confirmed that that was the agreement that he negotiated with Mr Munting. He stated that, as soon as this arrangement had been made, he advised Australia Post’s Delivery Centre Manager.90 Further, Mr Jones recounted that the agreement included that he would pay Mr Munting 7 cents per depot bag and that his work for Elektra (Braeside Depot bag contract) would not interfere with his work for Batman (Mordialloc parcel delivery contract).91 It was indicated by Mr Jones that it was agreed between he and Mr Munting that the payment of 7 cents per depot would be on 30 June 2011 when the vans would be transferred to the Joneses. Mr Jones recounted that Mr Munting, contrary to this agreement, had taken out a payment of 7 cents per depot bag at the end of the first month in July 2009. He said that it had been taken out without their authority and that it was not due to Mr Munting until 30 June 2011.92

[31] In regard to the depot bag deliveries under the Elektra contract, Mr Jones agreed that they were performed in the exact same way as he did when this contract was held by his family partnership, Kane’s and then Batman. He indicated that, if Elektra was unsuccessful in re-tendering for the contract, he would approach the new contract holder and make his services available to them. Similarly, if Batman lost the Mordialloc parcel delivery contract, he would approach the successful contractor. 93 In terms of his work with Elektra, Mr Jones indicated that he was being paid per depot bag and that PAYG tax was not being deducted. He confirmed that he and Mrs Jones paid the GST through their family partnership and that Elektra paid his workers compensation insurance.94

[32] With respect to his work with Batman, Mr Jones stated that he was paid a higher per parcel rate than the other drivers because he was a supervisor. He indicated that his wife was paid the same per parcel rate as he was. Mr Jones confirmed that he issued invoices to Batman which reflected the payment of GST and his ABN. 95

[33] Mr Jones agreed that when he left Australia Post in 2000, he set up a business providing services to Australia Post as a contractor. He said that, in 2004, he stopped running the business. 96 Mr Jones stated that he then became an employee of Batman and currently, also an employee of Elektra. He stated that there was no written contract with Elektra but a verbal agreement.97 It was agreed by Mr Jones that, between August 2009 and December 2010, approximately 37% of their income came from the Elektra contract.98

[34] Mr Jones also agreed that he understood the difference between being an independent contractor and an employee. 99 He said that, between 2000 and mid 2003, he was a contractor to Australia Post and not an employee of anyone.100 However, in mid to late 2010, he would not have described himself as a contractor.101

[35] Mr Jones confirmed that, in June 2003, he had discussions with Mr Munting during which, Mr Munting had made it clear that he would be paid a per parcel rate. He denied that Mr Munting had told him that he would continue as a subcontractor. 102

[36] With regard to his worker’s compensation claim form, Mr Jones stated that his wife had filled it in. He confirmed that Mrs Jones had ticked the contractor box. He stated that Mrs Jones had not been present at the initial meeting between himself and Mr Munting. 103

[37] It was confirmed by Mr Jones that any customer complaints might be brought to his attention by Australia Post’s Delivery Centre Manager who also has the power to investigate incidents. 104 He agreed that the incident in September 2008 had been investigated by the Delivery Centre Manager. He confirmed that no sanction had been imposed on him by Australia Post. Mr Jones acknowledged that they had the power to cancel his Authority to Convey Mail. Mr Jones agreed that, in making his deliveries, he was required to comply with Australia Post’s delivery guidelines and requirements.105 It was agreed that the direction he received from Batman was limited to ensuring his compliance with Australia Post’s procedures. He stated that Mr Munting would make sure that the parcels were delivered every day on time with no carryover.106 He agreed that these were Mr Munting’s requirements because they were part of his contract with Australia Post. Mr Jones confirmed that, aside from Australia Post’s requirements, Mr Munting had not imposed additional requirements and ways that he needed to perform his job.107

[38] With respect to the Mordialloc parcel delivery contract, Mr Jones confirmed that, for the majority of the time, he had performed the primary sort which needed to be done by
6:00 am. 108 He agreed that he was the first driver to begin their run. He stated that he started early because he was allowed to deliver his run at any time as long as he complied with the card drop obligations and the requirements that the run had to be completed by 5:00 pm.109 Mr Jones stated that Mr Munting had told him that he could do his deliveries whenever he wanted to as long as they were done on the day.110 Further, Mr Jones stated that Mr Munting had not told him how to arrange his run. He said that his run was organised on the basis of when the factories were going to be open in the morning.111

[39] It was recounted by Mr Jones that, in 2006, the arrangement was that he would do his sorting and deliveries to all of his factories Monday to Friday except for a Malcolm Road section on a Monday which Mrs Jones did. He stated that when he could not card a business which was not open prior to 9:00 am, he would return and finish his deliveries after his bag run. He said that he had never given Mrs Jones a parcel to deliver. Mr Jones indicated that it had been agreed with Mr Munting that only Mrs Jones would cover him and only on a Monday. 112 He was emphatic that, except for Mrs Jones on Mondays, nobody covered his work.113 With respect to the cover for Mrs Jones’ run on Mondays, it was indicated that he and Mrs Jones and through Mr Munting, had arranged a friend who had got an Authority to Convey Mail security pass to do Monday deliveries only.114 Mr Jones confirmed that, with Mr Munting’s permission, drivers were arranged by Mr Jones to cover Mrs Jones’ work on Fridays and on Mondays, when people were away and when there was a heavy day in terms of the number of parcels to be delivered. He stated that, after the 2009 postal strike, he had arranged for help from posties with Mr Munting’s permission.115

[40] In terms of the Braeside parcel delivery contract, Mr Jones stated that he was Mr Munting’s supervisor at Braeside for 5 years. Mr Jones stated that Mr Munting did not want to come to Braeside and do parcel deliveries. Mr Jones said that he was giving directions because he had managerial experience. Posties at Braeside were asked to help on heavy days as he was the supervisor and knew what was going on there. 116 He denied the suggestion that he was never told or asked to perform a managerial role.117

[41] With respect to whether or not Mrs Jones had her own run, it was Mr Jones’ evidence that his wife had her own run in 2004. 118

[42] In terms of the uniform, Mr Jones indicated that it did not matter who one was working for as the uniform has “Australia Post contractor” on it. He stated that the same applied to the van. He confirmed that Batman had given him a shirt with “Australia Post contractor” on it and that he did not change his shirt when working for Elektra. 119

SUBMISSIONS

RESPONDENT

[43] On behalf of the company, Mr McKenna submitted that the relevant authority regarding the law on distinguishing an employee from an independent contractor is Abdalla v Viewdaze 120 (Abdalla).121 It was argued that the various indicia indicated that the applicants were independent contractors.

[44] Mr McKenna addressed the first four factors followed by the indicia set out in the summary of the law in Abdalla.

Own trade or business

[45] The first factor was said to be the question of whether Mr and Mrs Jones are carrying on a trade or business of their own. 122 It was argued that, in 2000, Mr Jones ceased his employment with Australia Post and started a business. Mr and Mrs Jones set up a family partnership through which it was said they have conducted a business from 2000 until the present time. Between June 2004 and January 2005, part of the business was conducted through a company, Kane’s, which held the Braeside Depot bag contract. Mr McKenna argued that the Joneses’ business provided specialist courier services to Australia Post. There were no additional requirements imposed on the Joneses in addition to Australia Post’s requirements. Batman was said to have engaged the Joneses to perform a service under its contract with Australia Post and that is what they and their business were doing.123

[46] It was contended that a number of business transactions had taken place between the Joneses’ business and Mr Munting’s - Batman. The first was described as the assignment of the Braeside Depot bag contract from Kane’s to Batman. Mr McKenna stated that the Joneses’ went from performing their work through their own corporate entity to performing it for Batman. Initially, the Joneses were said to have received the same amount of money for their services without the additional responsibility of being the name principal contractor with Australia Post. 124

[47] The second business transaction was argued to be the acquisition of the new vans which was said to not be indicative of an employment relationship. It was contended that the agreement the Joneses reached was part of their broader business of providing delivery services to Australia Post. 125

[48] The third business negotiation was said to be regarding the Joneses performing work under the Elektra contract. It was argued that Mr Jones had negotiated arrangements that would allow him, as part of the Joneses’ business, to continue to perform services for Australia Post in the form of the Braeside Depot bag contract work alongside continuing to perform work for Batman (Mordialloc parcel delivery contract). Mr McKenna contended that the terms of the agreement and the way in which it was negotiated was inconsistent with an employment relationship. 126

Nature of the work and the manner in which it is performed

[49] Mr McKenna submitted that the Tribunal needed to assess each of the criteria and indicia and determine this matter on its own particular facts. 127

Terminology of the contract

[50] The third factor identified by the Full Bench was that of the terms and terminology of the contract. The respondent contended that it was common ground that the contract was oral. However, there was said to be a dispute in the evidence about the basis of the initial engagement. It was stated that Mr Munting’s evidence was that he made it clear to Mr Jones that he was being engaged as an independent contractor or subcontractor. This was disputed by Mr Jones. Mr McKenna argued that, as Mr Munting’s evidence had not been tested on this issue, his evidence should be preferred over Mr Jones’. Therefore, it was argued that the Tribunal could accept that the initial contract or engagement contained an express term that Mr Jones was being engaged as an independent subcontractor. 128

Fourth Factor - indicia

* Control

[51] Mr McKenna stated that there was a degree of control exercised by Batman, as, in order to terminate the Joneses’ contract, there must have been some degree of control. However, it was submitted that the ultimate control was exercised by Australia Post. The respondent contended that the only directions given by it were - to comply with Australia Post’s requirements. Further, in accordance with its Delivery Guide, Australia Post retains the power to cancel the Authority to Convey Mail and has the power to discipline drivers, whether contractors or employees. Mr and Mrs Jones were subject to the day-to-day control of Australia Post’s Delivery Centre Manager who could investigate complaints. They were also under the control of the Dock Manager who oversees occupational health and safety and signs off on their delivery counts before they leave the delivery centre. 129

* Performs work for others or has a genuine and practical entitlement to do so

[52] Mr McKenna argued that it was not disputed that the Joneses performed work for others. It was stated that, during the time they were engaged by Batman, they also performed work under their own contract and, from June 2009, for Elektra. Mr McKenna contended that neither Mr nor Mrs Jones seriously questioned the calculation of about 37.5% of their incoming coming from Elektra and the Braeside Depot bag contract. 130

[53] It was submitted that the Joneses had performed a significant amount of work for another entity - a competitor of Batman’s. Mr McKenna submitted that this was highly consistent with the Joneses conducting their own business - being able to provide services through their family partnerships to different competitors who had delivery contracts with Australia Post. 131

* Separate place of work and/or advertises his/her services to the world at large

[54] It was argued that this was a moot point in this case as the work is required, by Australia Post, to be done out of its Delivery Centres. Mr McKenna contended that the Joneses’ client is Australia Post who knows them. Further, it was pointed out that Mr Jones had actively sought out Elektra who had won the contract from Batman. 132

* Provides own tools/equipment

[55] Mr McKenna noted that it was only their steel capped boots that the Joneses provided during their relationship with Batman. It was said to have been the Joneses’ evidence that, up until 2006, they had provided and used their own vehicles to do deliveries. After that time, Mr McKenna indicated that an unusual situation had been negotiated. Whilst the Joneses were not using their own vans, it was also a fact that they had an interest in the vans as they were to become theirs at the end of June 2011. 133

* Work can be delegated/subcontracted

[56] Reference was made to Mrs Jones’ evidence, which was categorically refuted by Mr Jones, that she would do some deliveries where he was unable to card a delivery. Further, it was contended that the Joneses had accepted, to a degree, that they were able to use posties to do deliveries. Mr McKenna argued that this was sometimes with Mr Munting’s express knowledge. Mr Jones’ evidence was highlighted where he said that, ultimately, if the Delivery Centre Manager did not have a problem with it, then it was ok. It was also argued that Batman really did not care who was performing the work - as long as it was done every day and in accordance with Australia Post’s requirements. Finally, the respondent submitted that the Joneses would themselves make arrangements for people to be approved by Australia post. The evidence of Mrs Jones was referred to in this regard. 134

* Right to suspend/dismiss

[57] Mr McKenna submitted that not much emphasis could be placed on this indicium. It was stated that there was no evidence before the Tribunal in relation to the power to suspend. With respect to the power to dismiss, it was argued that it was a natural term of every contract. 135

* Presented to the world as an emanation of the business

[58] In this case, it was contended that the Joneses were presented to the world as Australia Post contractors. Mr McKenna stated that the respondent was prohibited from putting any signage on the Joneses which would suggest they were engaged by Batman. It was stated that their uniform did not change whether they were performing the work through Batman, Elektra or their own company. 136

* Income tax deducted

[59] Mr McKenna stated that it was common ground that income tax was not deducted and that an amount for GST was included in the invoices. At a subsequent time, the invoices contained the ABN of the Joneses’ family partnership. 137

* Remunerated by periodic wages or salaries or for the completion of tasks

[60] It was said to be common ground that the Joneses were paid by delivery of a parcel or depot bag - a per parcel or per depot bag rate. 138

* Provided with paid holidays or sick leave

[61] Mr McKenna submitted that the Joneses were not given holiday pay or paid sick leave. 139

* Work involves a profession, trade or distinct calling

[62] It was submitted that for Mr Jones, having worked for Australia Post since the age of 14, it may suggest a distinct calling on his behalf. 140

* The person creates goodwill or saleable assets

[63] Mr McKenna acknowledged that the work they were doing for Batman was not something the Joneses could on-sell. However, Mr Jones had developed a reputation with Australia Post as one of the best drivers which would enable them, it was argued, to obtain contracts with Australia Post directly or further work with other contractors, through their family partnership. 141

* Spends a significant portion of remuneration on business expenses

[64] It was stated that it was accepted that this is not the case in this matter. 142

[65] In summary, Mr McKenna submitted that, with respect to whether the Joneses were running their own business with independence in terms of the conduct of their operations or were operating as a representative of another business with little or no independence in their operations, it was the former situation that applied. He stated that the Joneses’ work was performed almost completely independently from Batman. Requirements were imposed on them by Australia Post who oversaw and enforced them. 143 Mr McKenna also addressed the final factor - that of the doctrine of vicarious liability. It was argued that, as the Joneses were representing Australia Post at all times (and not Batman), Australia Post would be the party found to be vicariously liable.144

APPLICANTS

[66] On behalf of Mr and Mrs Jones, Mr Richardson also addressed the indicia which were summarised in the Abdalla decision.

* Control

[67] The applicants argued that, within Australia Post’s parameters, Mr Munting (Batman):

• Decided what vehicle would be purchased and the age of those vehicles.



• Administered parts of the Mordialloc parcel delivery contract during the Joneses’ absences.



• Engaged back up drivers.



• Discussed with the Joneses when they wanted to take holidays.



• Would directly pay the relievers who assisted the Joneses.



• Only paid the Joneses for deliveries done by them.



• Was asked for permission by the Joneses prior to them taking certain actions.



• In his letter to Mr Jones of 24 November 2010, exercised control over him by changing his delivery route and ceasing his primary sort of the parcels for the Mordialloc parcel delivery contract.



• In his letters of dismissal to the applicants, exercises control over them. It was argued that, with respect to Mr Jones, if he was a subcontractor, it would be Australia Post who was enforcing its delivery procedures. 145

* Performs work for others or has a genuine and practical entitlement to do so

[68] Mr Richardson submitted that the only work that Mr Jones performed outside the daily round was the Braeside Depot bag contract. This was held for a proportion of the time by Batman after it was assigned to the respondent by Mr Jones. When the respondent lost the contract, Mr Jones sought permission to continue doing the contract. Mr Munting had agreed on the basis that it would not interfere with his Batman Courier work. The use of the vans was said to not be an issue as Mr Munting’s evidence was that the Joneses had full use of them. It was stated that Mr Jones did no other paid work. 146

* Separate place of work and/or advertises his/her services to the world at large

[69] It was contended that Mr Jones performed part of his duties at Australia Post premises and the rest of them from inside his van. It was stated that the van was supplied by Batman. Mr Richardson indicated that Mr Jones did not advertise his services to the world at large. 147

* Provides own tools/equipment

[70] Mr Richardson argued that the respondent provided the vans (and paid all the running costs), the personal data terminals and shirts. Workers compensation was also paid for by Batman. However, the applicants provided their own safety boots. 148

* Work can be delegated/subcontracted

[71] The applicants contended that they had no authority to delegate the work as Mr Munting engaged the back-up drivers. 149

* Right to suspend/dismiss

[72] Mr Richardson submitted that Mr Munting believed he had the right as per his actions of 29 November 2010. 150

* Presented to the world as an emanation of the business

[73] It was argued that, as the Joneses were required to wear a shirt common to Batman employees, they were therefore recognisable as Batman employees. 151

* Income tax deducted

[74] Income tax was not deducted. 152

* Remunerated by periodic wages or salaries or for the completion of tasks

[75] Mr Richardson submitted that the Joneses were paid monthly on the basis of the number of parcels delivered (piece work). 153

* Provided with paid holidays or sick leave

[76] It was stated that the Joneses were not given paid holidays or sick leave. 154

* Work involves a profession, trade or distinct calling

[77] The delivery of parcels was said to not meet these criteria. 155

* The person creates goodwill or saleable assets

[78] Mr Munting’s evidence was stated to be that the reputation of Batman and maintaining the contracts he held was legitimate. 156

* Spends a significant portion of remuneration on business expenses

[79] Mr Richardson indicated that the Joneses bought their own safety boots but stated that it was not a significant portion of their remuneration from the respondent. 157

[80] With respect to the situation where the indicia point both ways and do not yield a clear result, Mr Richardson highlighted the view set out in Abdalla that the determination should be guided by whether the applicants were or were not running their own independent business or acting as a representative of another business with little or no independence. 158 It was argued on behalf of the applicants that all of the decisions were either made or authorised by Mr Munting.159 Mr Richardson pointed to Mr Munting:

• Making the decision that there would be new vehicles following Australia Post’s new tender requirements.



• Administering parts of the Mordialloc parcel delivery contract during the applicant’s absence.



• Discussing with the Joneses when they wanted to go on holidays.



• Directly paid the relievers and back-up drivers who assisted the applicants at times. 160



• Supplied the scanners and the applicants’ uniforms. 161



• Divided the runs into areas which were given to the subcontractors. 162

[81] Further, it was argued by Mr Richardson that Mr Munting’s statement that all of the 60 - 70 people engaged by the respondent were subcontractors was not supported by any documentary evidence. He stated that there was no paperwork showing that Mr Munting had informed Australia Post that he was subcontracting the work in his contracts. 163

[82] Mr Richardson also highlighted Mr Munting’s evidence where he said that he had not received anything in writing from Australia Post regarding their concerns about Mr Jones’ breach of delivery. It was recounted that Mr Munting had stated that he had made the decision to terminate the applicants because he wanted to retain his contracts. 164 Mr Richardson further referred to Mr Munting’s statement that he had issued 3 warnings to Mr and Mrs Jones.165

[83] It was also contended on behalf of the applicants that it was Mr Munting’s evidence that the only difference between Mr Jones’ role and that of Mr Munting’s now supervisor was that the supervisor was prepared to return at the end of the day if there were deliveries still to be done. 166

[84] Mr Richardson indicated that it was common ground that there was nothing in writing between the parties which set out the nature of their relationship. 167 In addition, it was argued that the hours that the applicants worked and starting and finishing times were directed by the respondent’s contract with Australia Post. The Joneses were said to be required to perform their roles in accordance with Australia Post’s operating procedures.168 Further, it was argued that Mr Jones had assigned the Braeside Depot bag delivery contract to the respondent because he no longer wanted the paperwork and extra costs that came with having his own contract with Australia Post. Mr Richardson contended that it was unrealistic to think that the Joneses would then enter into a new contractual arrangement with Batman.169

[85] It was also contended by Mr Richardson that, if Australia Post believed that Mr Jones was a subcontractor in 2008, it would have given him the breach notice, rather than Mr Munting. 170

[86] In conclusion, Mr Richardson submitted that, when looked at in totality, it was clear that it was only Mr Munting who was exercising any control in the relationship. It was contended that Mr Munting made all the decisions or authorised them after that were brought to his attention and before they had been actioned. 171 Accordingly, the Tribunal was urged to determine that the Joneses were employees.172

SUBMISSIONS IN REPLY - RESPONDENT

[87] In his submissions in reply, Mr McKenna submitted that there was a contract between the respondent and Australia Post which contained mechanisms to cancel it and the issuing of breach notices. Secondly, the Joneses’ evidence was said to be that they were aware of Australia Posts’ Delivery Guide and of the control that can be exercised over them by the Delivery Centre Manager. Thirdly, it was stated that Mr Jones had accepted that his Authority to Convey Mail may have been cancelled. 173

[88] Finally, Mr McKenna submitted that Mr Munting’s evidence was that Australia Post was fully aware that he was servicing each of his contracts with subcontractors. He said that he had told the Delivery Centre Manager in every interview he had had when he was tendering for the contracts. 174

CONCLUSIONS

[89] The approach to the determination of whether a person is an independent contractor or an employee has been considered by the Courts and Tribunals on numerous occasions. In Abdalla a Full Bench of the Australian Industrial Relations Commission set out the common law approach to determining whether a person is an employee or independent contractor and provided a summary of the law. It was common ground between the parties that this decision set out the approach to be followed in these matters. I adopt the approach taken by the Full Bench.

1. Were Mr and Mrs Jones conducting a business of their own?

[90] It was the evidence of Mr and Mrs Jones that they established a family partnership (Mark D and Debra J Jones trading as MD and DJ Jones) in 2000. An ABN was obtained for the family partnership and it was registered for GST. Mr Jones stated that, when he left Australia Post in 2000 and successfully tendered for the Braeside Depot bag contract, he had set up a business providing services to Australia Post. He also said that, between 2000 and 2003, he was a contractor to Australia Post. In 2003, the MD and DJ Jones family partnership commenced performing work for Batman under Batman’s Mordialloc parcel delivery contract with Australia Post. This was in addition to their own contract with Australia Post - the Braeside Depot bag contract. Therefore, in 2003, the family partnership was performing work under 2 contracts - the Braeside Depot bag contract which they held from Australia Post and the Mordialloc parcel delivery contract which was held by Batman.

[91] In July 2004, the Joneses’ registered a company, Kane’s Couriers Pty Ltd (Kane’s) with both of them as shareholders. In 2004, they successfully re-tendered for the Braeside Depot bag contract through Kane’s. Six months after re-obtaining the Braeside Depot bag contract, Kane’s assigned the contract to Batman. Between 2005 and 2009, the Joneses were performing work under the 2 contracts (Braeside Depot bag and Mordialloc parcel delivery) both of which were now held by Batman.

[92] In June 2009, Batman lost the Braeside Depot bag contract to Elektra and agreement was reached between the Joneses and Elektra that they would continue to perform the work for this contract. Therefore, as at the date of the termination of their services (29 November 2010), Mr and Mrs Jones were performing work for Batman under the Mordialloc parcel delivery contract and for Elektra under the Braeside Depot bag contract.

[93] It was contended by the respondent that a number of business transactions had taken place between the Joneses’ business and Batman. These were said to be the assignment of the Braeside Depot bag contract from Kane’s to Batman; the acquisition of the new vans which was part of the Joneses’ business strategy of providing delivery services to Australia Post and the agreement reached with Batman that Mr Jones could use Batman’s vans to perform work under Elektra’s contract with Australia Post.

[94] The applicants submitted that they were not running their own independent business as Mr Munting either made or authorised all of the decisions. Examples of this were said to be that Mr Munting decided that new vans needed to be purchased; administered parts of the Mordialloc parcel delivery contract during the applicants’ absence; directly paid relievers and back-up drivers; discussed with the Joneses when they wanted to go on holidays and divided the runs into areas which were given to the subcontractors.

[95] It would appear from the evidence that, during the time Mr and Mrs Jones were engaged by Batman, they were conducting their own business. During the approximately 7 years of the relationship between the Joneses and Batman, the Joneses worked either for themselves (2003 - 2005) or for another contractor (2009 - 2010) in addition to performing work for Batman. Both the applicants gave evidence that nothing had changed regarding the way they performed the work from 2000, when they held the Braeside Depot bag delivery contract as a family partnership and then Kane’s through to 2010, when Batman held the contract and then when they were performing that work for Elektra. Mr Jones also stated that if Elektra lost the Braeside Depot bag delivery contract, he would approach the new contract holder and make his services available - and similarly, if Batman lost the Mordialloc parcel delivery contract. The Joneses established a family partnership in 2000 and registered a company in 2004. During the majority of the time with Batman, the family partnership invoiced Batman for the deliveries undertaken each month. GST was included on the invoice. No PAYG tax was deducted from the payments to the Joneses by Batman.

2. The nature of the work performed and the manner in which it is performed

[96] On the basis of the material before me, it would appear that the nature of the work performed by Mr and Mrs Jones was that of the delivery of depot bags and parcels in accordance with Australia Post’s delivery guidelines. Australia Post stipulated the times within which the deliveries had to be made together with other conditions. The evidence of Mr Munting and Mr Jones was that, within the delivery guidelines, the Joneses were free to decide when and how they would do the deliveries.

[97] It was also contended by Mr Jones that, up until 13 April 2010 when he went on Workcover, he had performed the role of supervisor for the Mordialloc parcel delivery contract for which he (and his wife), were paid a higher per parcel rate than the other drivers. Mr Munting disputed that Mr Jones was a supervisor and said that he did not see him as a supervisor. He also stated that the person he now called a supervisor was prepared to return to Mordialloc to help deliver remaining parcels. It was Mr Munting’s recollection that Mr Jones was never prepared to do this.

[98] Having considered all of the evidence on this issue, I find that it is more probable that Mr Jones was performing the role of supervisor for the Mordialloc parcel delivery contract. I accept Mr Jones’ description of his work and role and find that it is consistent with that of a supervisor.

[99] Therefore, it can be concluded that the Joneses performed postal delivery services in accordance with Australia Post’s delivery guidelines and that in addition, Mr Jones performed the role of supervisor (and was paid a higher rate) for the Mordialloc parcel delivery contract. The manner in which the work was performed was at the discretion of the Joneses subject to it being in accordance with Australia Post’s guidelines.

3. The terms of the contract

[100] It was common ground that there was no written contract of any sort between Mr and Mrs Jones and Mr Munting. The contract was oral and there is a dispute between the parties about the basis on which Mr and Mrs Jones engaged with Mr Munting.

[101] On the one hand, Mr and Mrs Jones stated that when they agreed to perform work for Mr Munting under his Mordialloc parcel delivery contact, it was as an employee and not as a subcontractor. Mr Jones said that he was a contractor to Australia Post between 2000 and 2003 but that he became an employee of Batman in mid 2003 when agreement was reached that he and Mrs Jones would perform work under Mr Munting’s Mordialloc parcel delivery contract. He denied that Mr Munting had told he and his wife that they were subcontractors.

[102] On the other hand, it was Mr Munting’s evidence that he made it clear to Mr Jones in June 2003, that his engagement with Batman would be as an independent subcontractor and that he would be paid a per parcel rate. At the time agreement was reached that Mr Jones would assign his Braeside delivery bag contract to Batman (June 2005) Mr Munting recalled Mr Jones saying that he did not want the paperwork and extra costs associated with having his own contract with Australia Post. Further, Mr Munting said that, in all of his discussions with Mr and Mrs Jones about their engagement, he had always described them as subcontractors or independent contractors.

[103] As can be seen from the summary above, Mr Munting and Mr Jones have completely different recollections of what was said between them regarding the basis of their working relationship. It is also clear that both parties genuinely believe that they were employees (the Joneses) or subcontractors (Mr Munting). Looking at the tenor and the content of the conversations/negotiations that took place between Mr Munting and Mr Jones between 2003 and 2010, it is most probable that the exact nature of the relationship was never explicitly discussed. Therefore, I am not able to determine the intentions of the parties at the time agreement was reached regarding the Mordialloc parcel delivery contract and subsequently, the re-assignment of the Braeside Depot bag delivery contract.

[104] Therefore, in the absence of a written contract, I am unable to reach a conclusion about the intentions of the parties at the relevant times as it is most probable that the parties did not have a fully articulated discussion about whether the Joneses were employees or subcontractors.

4. The indicia of an employment relationship

(a) Whether Batman exercises, or has the right to exercise, control over the manner in which the applicants’ work is performed, place of work, hours of work and the like

[105] It was Mr Munting’s evidence that a term of his contract with Australia Post was that all parcels must be delivered on the day they are received. To this end, the contract area was split into runs at the beginning of the contract and a subcontractor engaged to do each of the runs. 175 For new drivers, Mr Munting said that he drew up the route for the driver to follow.176 Mr Munting’s evidence also, was that the work under a contract must strictly comply with Australia Post requirements, policies and procedures.177 To this end, Mr Munting stated that, aside from Australia Post’s requirements and the need for drivers to co-ordinate with each other “... Batman imposes very few additional requirements and drivers are free to perform their work when and how they see fit.”178

[106] Mr Jones’ evidence was similar to that of Mr Munting’s in that he confirmed that he was required to comply with Australia Post’s delivery procedures. 179 He also said that the direction he received from Mr Munting was limited to ensuring his compliance with those procedures.180 He stated that, aside from Australia Post’s requirements, Mr Munting had not imposed additional requirements on the way that he performed his job.181 Mr Jones agreed that Australia Post had the power to cancel his Authority to Convey Mail; that the Delivery Centre Manager oversaw everything that occurred within the Delivery Centre and had the power to investigate incidents, and that any issues about delivery procedures might be brought to his attention by the Australia Post Delivery Centre Manager.182 Further, it was agreed that the Dock Manager was also responsible for occupational health and safety within the delivery centre including with respect to Mr Jones.183

[107] For her part, Mrs Jones acknowledged that she was required to comply with Australia Post’s Delivery Guide and that the Australia Post Delivery Centre Manager co-ordinated and oversaw what happened in the centre. 184 She also agreed that the Delivery Centre Manager was responsible for investigating incidents, complaints or breach notices and that the Delivery Centre Manager might speak directly to her if required.185 Mrs Jones’ evidence was also that Australia Post’s Dock Manager oversaw the sorting and collection of parcels and signed off the parcels before she left the Delivery Centre. She said that in addition the Dock Manager was responsible for occupational health and safety in the centre.186 Mrs Jones stated that there was no direction from Batman regarding when or how she performed her work. All she had to do was comply with Australia Post’s requirements, for example, that deliveries were done between 7:00 am and 5:00 pm. She said that she could undertake her work at any time between those hours.187

[108] It was argued by the respondent that Australia Post exercised ultimate control over Mr and Mrs Jones as the only direction given by Batman was to comply with Australia Post’s requirements. The capacity of Australia Post to cancel the Authority to Convey Mail, its power to discipline drivers and the day to day control of Mr and Mrs Jones by Australia Post’s Delivery Centre Manager and the Dock Manager were highlighted.

[109] On the other hand, the Union contended that Mr Munting had exercised control over Mr and Mrs Jones by:

• Deciding which type of van would be purchased and the age of those vehicles.



• Discussed with the Joneses when they wanted to take holidays and administered parts of the Mordialloc parcel delivery contract when they were away.



• Engaging back-up drivers and would directly pay the relievers who assisted the Joneses.



• The Joneses asked for Mr Munting’s permission before taking certain actions.



• Changing Mr Jones’ delivery route and ceasing his primary sort of parcels (Mordialloc parcel delivery contract).



• Only paying them for deliveries done by them.



• Dismissing the Joneses.

[110] It is clear from all of the witness evidence that it was Australia Post, through its delivery guidelines, who determined the parameters within which the work was performed by Mr and Mrs Jones. Australia Post also provided authorisation to drivers through its Authority to Convey Mail and had the power to cancel that Authority. Any incidents, complaints or breaches of the procedures regarding Mr and Mrs Jones would be investigated by Australia Post’s Delivery Centre Manager who may deal directly with either of them if required. Further, the Australia Post Dock Manager oversaw occupational health and safety in the centre and signed off on the applicants’ deliveries.

[111] It was also common ground between the parties that, beyond ensuring compliance with Australia Post’s requirements (which was a term of Mr Munting’s contract with Australia Post), Batman did not impose any additional requirements on Mr and Mrs Jones. Therefore, it would appear that Australia Post had the ultimate control over the Joneses through its ability to cancel their Authority to Convey Mail. Within the delivery guidelines set by Australia Post, the Joneses could determine when and how they performed the work. There would seem that Mr Munting exercised little or any control over the Joneses. That is not to say that there was not communication and co-ordination between Mr Munting and the Joneses. Clearly there was but, in my view, it did not amount to control.

(b) Whether the applicants work for others (or have a genuine and practical entitlement to do so)

[112] It was common ground that, at the time of the Joneses’ termination, they were performing work for Batman under the Mordialloc parcel delivery contract and since June 2009, for another company, Elektra, under the Braeside Depot bag delivery contract. It was the applicants’ contention however that they sought permission from Mr Munting to continue to work under the Braeside Depot bag delivery contract whilst still working under Batman’s Mordialloc parcel delivery contract. It was also undisputed that, in June 2003, when agreement was reached between the Joneses and Mr Munting that they would perform work under the Mordialloc parcel delivery contract, the Joneses also held their own contract with Australia Post for the delivery of Braeside Depot bags. This situation, whereby the Joneses performed work under their own contract and also for Batman’s contract, continued until January 2005 when the Joneses assigned their contract to Batman.

[113] Therefore, for two separate periods during the time the Joneses performed work for Batman, they also worked for others - themselves and then Elektra. The Joneses performed work for themselves, from 2003 to January 2005, in addition to work for Batman. From June 2009 to November 2010, the Joneses were also performing work for Elektra, a competitor of Batman’s (Braeside Depot bag contract) in addition to work for Batman. Accordingly, the Joneses were able to, and did, work for others.

(c) Do the Joneses have a separate place of work and/or advertise their services to the world at large?

[114] The respondent submitted that this was a moot point as Australia Post required the work to be done out of its Delivery Centres. It was said that the Joneses’ client - Australia Post - knew them and that the Joneses were able to find out who had won the contract from Batman and they had then approached Elektra.

[115] The applicants contended that the Joneses performed part of their duties at Australia Post’s Delivery Centres and from their vans which were supplied by Batman. It was said that the Joneses did not advertise their services to the world at large.

[116] It is apparent from the evidence that the Joneses did not advertise their services to the world at large. Their place of work was not Batman’s office as they worked out of Australia Post’s Delivery Centres and their vans.

(d) Whether the Joneses provide or maintain significant tools or equipment

[117] It was common ground that the Joneses provided their own steel capped boots and that Batman provided the uniforms which had “Australia Post contractor” on them. The personal data terminals (scanners) were provided by Australia Post to Batman and then to the Joneses. What is in dispute are the vans which were purchased by Batman in 2006 following a change in Australia Post’s contract requirements and which were used by the Joneses. It was undisputed that, up until 2006, the Joneses had used their own vans to perform the deliveries for the two contracts. When Australia Post changed its van requirements, it seems that agreement was reached between Mr Munting and the Joneses that Mr Munting would purchase two new vans. They agreed that ownership of the vans would be transferred to the Joneses at the end of June 2011. The terms of the agreement appear to be the purchase of the Joneses’ old vans by Mr Munting and the transfer of ownership of the new vans to the Joneses if they continued to perform the Braeside Depot delivery contract work for Batman for 5 years (the term of the contract).

[118] For completeness, it should be noted that a further agreement was reached between the Joneses and Mr Munting regarding the vans in 2009. This was when Elektra won the Braeside Depot bag delivery contract from Batman. As it was necessary for Mr Jones to use Batman’s vans to perform the Elektra work, he came to an agreement with Mr Munting regarding use of the vans for this purpose. The terms of the agreement are disputed. For the purposes of these matters, it is not necessary to make findings of fact about the terms.

[119] It was submitted by the respondent that, up until 2006, the Joneses had provided their own vehicles to do their deliveries. In 2006, it was said that agreement had been reached with Mr Munting that ownership of the new vans would be transferred to them in June 2011. This meant that the Joneses had an interest in the vans.

[120] The applicants contended that the vans were supplied and run and maintained by Batman.

[121] It would appear to be undisputed that, up until 2006, the Joneses provided their own vans which they used for the parcel and depot bag deliveries. With the change in Australia Post’s contract requirements, agreement was reached with Mr Munting that Batman would buy new vans and that, as long as the Joneses remained with Batman for the term of the contract, ownership of the vans would be signed over to them in June 2011.

[122] Regardless of the arrangement about the vans at the end of the contract, Batman did purchase the vans which the Joneses used for their deliveries. As well, when they went on holidays, the Joneses were required to leave their vans at Batman for others to use. Therefore, although the Joneses had an interest in the vans from 2006, Batman provided the Joneses with the vans - they did not provide them themselves. Prior to 2006, the Joneses provided their own vans.

(e) Whether the work can be delegated or subcontracted

[123] There was a deal of evidence about the arrangements for back-up drivers and for posties who assisted on heavy parcel delivery days.

[124] The respondent argued that the Joneses, to a degree, had accepted that they were able to use posties to do deliveries. It was said that this was sometimes with Mr Munting’s express knowledge. Further, it was contended that the Joneses would themselves make arrangements for people to be approved by Australia Post to convey mail.

[125] For the applicants’ part, it was submitted that they had no authority to delegate their work as Mr Munting engaged the back-up drivers.

[126] It was Mr Munting’s evidence that Batman paid the back-up drivers but that they were generally organised and co-ordinated by the Joneses. He said that the Joneses would arrange replacement drivers for when they went on holiday and that they would apply directly to Australia Post for an Authority to Convey Mail for the replacement drivers. Mr Munting also stated that the Joneses were able to delegate their work to others e.g. posties and that he would pay the posties directly. He recalled that, after the 2009 postal strike, Mr Jones had paid the posties directly and he had repaid him. This was corroborated by Mr Jones.

[127] The evidence of the Joneses differed between each other over whether Mrs Jones would do some deliveries for Mr Jones when he was unable to card a delivery. Mrs Jones stated that, by agreement with Mr Munting, a driver did her Aspendale run on a Monday so that she could assist her husband. She said that she had suggested who could do the Monday run and had arranged their Authority to Convey Mail directly with Australia Post. This was corroborated by Mr Jones. Mrs Jones also indicated that, prior to approaching a postie, she could delegate some of her deliveries to a floater driver. However, if she needed a hand to get her deliveries done by 5:00 pm, there was the option of using a postie.

[128] Mr Jones stated that, as supervisor for the Mordialloc parcel delivery contract, he was authorised by Mr Munting to arrange for posties to assist drivers who were overloaded with parcels or away. This included covering Mrs Jones on a Friday and on Monday. He recounted that it had been agreed with Mr Munting that only Mrs Jones would cover him and only on a Monday.

[129] It would appear from the evidence that the Joneses were able to delegate their work to either a replacement driver or to a postie. Mr Munting was aware when this was done, either before or after the event, as Batman either paid the person directly or re-paid Mr Jones if a postie had wanted to be paid on the spot. The Joneses also arranged for Australia Post to issue an Authority to Convey Mail to their replacement drivers.

(f) Did Batman have the right to suspend or dismiss the persons engaged?

[130] The respondent contended that there was no evidence regarding the power to suspend. In terms of the power to dismiss, it was stated that it was a natural term of every contract. It was Mr Munting’s evidence that he could unilaterally terminate the verbal contract with the Joneses on the basis that they were not doing their job.

[131] On the other hand, the applicants submitted that Mr Munting believed that he had the right to dismiss the applicants as demonstrated by his actions on 29 November 2010.

[132] On the basis of the evidence, it appears that Batman did not have the right to suspend the Joneses but did have the right to dismiss them.

(g) Did Batman present the Joneses to the world at large as an emanation of the business?

[133] It was undisputed in the evidence that the Joneses’ uniforms and the vans were signed “Australia Post contractor”. It was the Joneses’ evidence that they had worn the same uniform whether they were performing the Braeside Depot bag delivery work through their own contract with Australia Post, for Batman or for Elektra. Mr Munting gave evidence that Australia Post did not allow Batman’s name or logo to be displayed.

[134] It was the respondent’s contention that the Joneses were presented to the world as Australia Post contractors. For the applicants, it was submitted that, as the Joneses were required to wear a shirt common to other Batman employees, they were recognisable as Batman employees.

[135] Having considered all of the material before me, there is no evidence before me that the Joneses were presented to the world at large as emanations of Batman Couriers Pty Ltd. Rather, they were presented as Australia Post contractors.

(h) Was income tax deducted from remuneration paid to the Joneses?

[136] From the evidence, it is common ground that income tax was not deducted and that GST was included in the Joneses’ invoices to Batman. The invoices contained an ABN and were issued by the Joneses’ family partnership to Batman.

(i) Were the Joneses paid a periodic wage or salary or by reference to completion of tasks?

[137] It was common ground in the evidence that the Joneses were paid a per parcel or per bag rate i.e. paid for the number of parcels or depot bags that they delivered.

(j)Were the Joneses provided with paid holidays or sick leave?

[138] It was undisputed between the parties that the Joneses were not provided with paid holidays or sick leave.

(k) Did the work performed by the Joneses involve a profession, trade or distinct calling on the part of the persons engaged?

[139] It was the respondent’s submission that, given that Mr Jones started working for Australia Post at the age of 14 ½, this may suggest a distinct calling on his behalf.

[140] The applicants, by contrast contended that the delivery of parcels did not meet this indicium.

[141] The long connection between Mr Jones and Australia Post is recognised. However, it does not seem that the criteria set out in this indicium has been met.

(l) Whether the Joneses created goodwill saleable assets in the course of their work

[142] The respondent argued that Mr Jones had developed a reputation with Australia Post as one of the best drivers which would enable him to obtain contracts with Australia Post either directly or through other contractors.

[143] On the basis of the evidence, it would appear that the Joneses created goodwill for their family partnership in the course of their work. Mr Jones has, over the course of his performing delivery work for Australia Post, either through his own contract or others, developed a very good reputation as a driver. This was relied on when he approached the new contractor for the Braeside depot bag delivery contract seeking to maintain this work.

(m) Whether the Joneses spend a significant proportion of their remuneration on business expenses

[144] It seems from the evidence and the submissions of the parties that the Joneses do not spend a significant proportion of their remuneration on business expenses.

Summary of the indicia

[145] On the basis of the assessment of the evidence against each of the indicia set out in the paragraphs above, it would appear that:

(a) Factors supporting the contentions of the applicants that they were employees of Batman:

• Batman paid for back-up drivers/posties to assist with the Joneses’ deliveries.



• The Joneses discussed with Mr Munting when they wanted to take holidays.



• Mr Munting dismissing the Joneses.



• Batman’s purchase in 2006 of the vans used by the Joneses (albeit to be transferred to the Joneses in June 2011).

(b) Factors supporting the contention of Batman that the Joneses were independent contractors:

• The Joneses were conducting their own business (a family partnership and company with an ABN).



• The Joneses submitted invoices to Batman and charged Batman GST.



• The Joneses were not subject to PAYG taxation.



• The Joneses were paid according to the number of depot bags or parcels they delivered.



• The Joneses were not given paid annual leave or sick leave.



• Within Australia Post’s delivery guidelines, the Joneses determined their own hours.



• No additional requirements or little if any control was imposed on the Joneses by Batman other than to follow Australia Post’s delivery guidelines.



• The Joneses were able to, and did, work for others other than Batman.



• The Joneses used their own vans for their deliveries until 2006.



• The Joneses generated goodwill for the family partnership.



• The Joneses were able to delegate their work to posties and replacement drivers which they arranged, generally with Mr Munting’s knowledge.

[146] Where the indicia point both ways, the Full Bench in Abdalla provided the following guidance:

“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.” 188

[147] In looking at whether the Joneses were running their own business with independence in the conduct of their operations or whether they were operating as a representative of Batman with little or no independence in their operations, on the balance, the answer is the former. On the one hand, the Joneses operated as a business through their family partnership and they invoiced Batman and charged Batman GST. Within the delivery guidelines set by Australia Post, the Joneses decided how and when they would do their delivery work. This was undertaken without direction from Batman who imposed no additional requirements on them other than those set by Australia Post. On the other hand, there is no evidence before me to support an argument that the Joneses operated as representatives of Batman with little or no independence in their operations. As indicated above, the evidence points to the Joneses operating independently in terms of their operations.

[148] What makes cases such as these ones difficult is that, in addition to what is set out in the paragraph above, there are other issues which also need to be considered. These include the finding that Mr Jones performed the role of supervisor for Batman for the Mordialloc parcel delivery contract, Mr Munting being aware, either before or after, of the back-up drivers and posties which were arranged by the Joneses and discussing with Mr Munting when they wanted to take holidays. It could be assumed that all of these factors indicate that the relationship is an employment one. However, when viewed in the context of all of the indicia, that is not necessarily so. Mr and Mrs Jones were amongst a number of drivers who performed work for Batman. Communication between the drivers and with Mr Munting would be a daily necessity, whether the drivers were employees or independent contractors. Also, the fact that Mr Jones was a supervisor does not automatically mean he was an employee. He was paid a higher rate for his role. Supervisors can be contractors, i.e. they are specifically contracted to do that role. Finally, as Batman paid the back-up drivers and posties, not the Joneses, it would be necessary for Mr Munting to be informed so that they could be paid.

[149] Therefore, in summary, applying the test set out in Abdalla, when the indicia point both ways, I have concluded, on the balance, that the Joneses were running their own business with independence in the conduct of their operations.

[150] As I have found that the Joneses were independent contractors and not employees of Batman Courier Services Pty Ltd, Mr and Mrs Jones are not employees or national system employees for the purposes of the Fair Work Act 2009. Therefore, they do not fall within the scope of Part 3-2 of the Act.

[151] The respondent’s jurisdictional objection is therefore upheld and the applications by Mr and Mrs Jones are dismissed.

[152] An order to this effect will be issued separately.

COMMISSIONER

 1   Transcript PN 142 - 144

 2   Ibid PN 130 - 131

 3   Ibid PN 150 - 152

 4   Ibid PN 155 - 156

 5   Ibid PN 160 and 162

 6   Ibid PN 161

 7   Ibid PN 164 - 168 and 201 - 203

 8   Ibid PN 203

 9   Ibid PN 175 - 176

 10   Ibid PN 173 - 174

 11   Ibid PN 193 - 195

 12   Ibid PN 122 - 124, 128 - 129 and 169

 13   Exhibit A1 at paragraphs 50 - 51

 14   Transcript PN 190 - 199 and Exhibit A1 at paragraph 53

 15   Exhibit A1 at paragraphs 52 - 53

 16   Ibid at paragraph 54

 17   Transcript PN 124 - 126

 18   Exhibit A1 at paragraphs 55 - 56

 19   Transcript PN 177 - 180 and 185

 20   Exhibit A1 at paragraph 57

 21   Ibid at paragraph 57 - 59 and Transcript PN 137, 186 - 190

 22   Exhibit A1 at paragraph 58

 23   Ibid at paragraph 31

 24   Ibid at paragraphs 62 - 63

 25   Ibid at paragraphs 64 - 68 and Transcript PN 191 - 192

 26   Exhibit A1 at paragraphs 70 - 73

 27   Ibid at paragraphs 74 - 80

 28   Ibid at paragraphs 82 - 84

 29   Ibid at paragraph 85

 30   Exhibit A1

 31   Exhibit A1 at paragraph 16

 32   Ibid at paragraph 17

 33   Ibid at paragraphs 19 - 20

 34   Ibid at paragraph 21

 35   Ibid at paragraphs 25 - 30

 36   Transcript PN 241 - 242, 268 and 275 and Exhibit R1 at paragraphs 2 - 3

 37   Transcript PN 271 - 272

 38   Ibid PN 273 - 274

 39   Ibid PN 276 - 277 and 279 - 280 and Exhibit R1 at paragraph 3

 40   Exhibit R1 at paragraph 3

 41   Transcript PN 283 - 286

 42   Ibid PN 290 - 292 and Exhibit R1 at paragraph 4

 43   Transcript PN 296 - 303

 44   Ibid PN 304 - 308

 45   Ibid PN 307 - 309

 46   Ibid PN 313 - 316

 47   Ibid PN 318 - 324

 48   Ibid PN 325

 49   Ibid PN 326

 50   Ibid PN 327 - 331

 51   Ibid PN 332 - 335

 52   Ibid PN 336 - 345

 53   Ibid PN 347 - 353

 54   Ibid PN 354 - 361

 55   Ibid PN 362 - 363

 56   Ibid PN 365 - 370

 57   Ibid PN 374 - 387

 58   Ibid PN 388 - 392

 59   Ibid PN 393 - 418

 60   Ibid PN 438 - 453

 61   Ibid PN 454 - 456

 62   Ibid PN 620

 63   Ibid PN 456 - 471

 64   Ibid PN 481 - 485

 65   Ibid PN 491 - 499

 66   Ibid PN 511 - 525

 67   Ibid PN 566

 68   Ibid PN 569 - 570

 69   Ibid PN 527 - 539

 70   Ibid PN 590 - 601

 71   Ibid PN 602 - 616

 72   Ibid PN 638 and Exhibit R2

 73   Ibid PN 638 - 639 and ibid at paragraph 5

 74   Transcript PN 640 - 641

 75   Ibid PN 642 and Exhibit R2 at paragraph 11

 76   Ibid PN 643 - 646 and ibid at paragraphs 12 - 13

 77   Transcript PN 677

 78   Ibid PN 678

 79   Ibid PN 681 - 682

 80   Ibid PN 692 - 694

 81   Ibid PN 692 - 705

 82   Ibid PN 706 and 724

 83   Ibid PN 709 - 719

 84   Ibid PN 723

 85   Ibid PN 720

 86   Ibid PN 734 - 738

 87   Ibid PN 739 - 750

 88   Ibid PN 751 - 754

 89   Ibid PN 755 - 762

 90   Ibid PN 772

 91   Ibid PN 755 - 771

 92   Ibid PN 789 - 813

 93   Ibid PN 780 - 785

 94   Ibid PN 814 - 819

 95   Ibid PN 820 - 829

 96   Ibid PN 830 - 839

 97   Ibid PN 831 - 843

 98   Ibid PN 846 -866

 99   Ibid PN 867 - 868

 100   Ibid PN 869 - 870 and 874

 101   Ibid PN 875

 102   Ibid PN 871 - 873 and 890

 103   Ibid PN 887 - 889

 104   Ibid PN 903 - 912

 105   Ibid PN 913 - 924

 106   Ibid PN 925 - 931

 107   Ibid PN 933

 108   Ibid PN 934 - 943

 109   Ibid PN 937 - 940

 110   Ibid PN 949

 111   Ibid PN 956 - 957

 112   Ibid PN 966 - 973

 113   Ibid PN 978

 114   Ibid PN 974 - 975

 115   Ibid PN 979 - 985

 116   Ibid PN 986 - 989

 117   Ibid PN 990

 118   Ibid PN 998 - 1008

 119   Ibid PN 1010 - 1016

 120 (2003) 121 IR 215

 121   Exhibit A3 at paragraph 4 and Transcript PN 1057

 122   Transcript PN 1057

 123   Ibid PN 1057 - 1058

 124   Ibid PN 1060

 125   Ibid PN 1061

 126   Ibid PN 1062

 127   Ibid PN 1063 - 1065

 128   Ibid PN 1065 and Exhibit A3 at paragraphs 20 - 21

 129   Ibid PN 1066 - 1067 and ibid at paragraphs 24 - 26

 130   Ibid PN 1068

 131   Ibid PN 1069 and Exhibit A3 at paragraph 22

 132   Transcript PN 1070

 133   Ibid PN 1071 and Exhibit A3 at paragraphs 43 - 45

 134   Ibid PN 1072 - 1074 and ibid at paragraphs 33 - 37

 135   Transcript PN 1075

 136   Ibid PN 1076

 137   Ibid

 138   Ibid PN 1077 and Exhibit A3 at paragraph 38

 139   Ibid and ibid at paragraph 42

 140   Transcript PN 1077

 141   Ibid PN 1078

 142   Ibid PN 1079

 143   Ibid PN 1079

 144   Ibid PN 1080 - 1082

 145   Exhibit R3 at paragraph 7

 146   Ibid at paragraph 8

 147   Ibid at paragraph 9

 148   Ibid at paragraph 10

 149   Ibid at paragraph 11

 150   Ibid at paragraph12

 151   Ibid at paragraph 13

 152   Ibid at paragraph 14

 153   Ibid at paragraph 15

 154   Ibid at paragraph 16

 155   Ibid at paragraph 17

 156   Ibid at paragraph 18

 157   Ibid at paragraph 19

 158 (2003) 121 IR 215 at paragraph 34 and Transcript PN 1091 - 1094

 159   Exhibit R3 at paragraph 21

 160   Transcript PN 1095 and 1114 - 1115

 161   Exhibit R3 at paragraph 21

 162   Transcript PN 1104 - 1107

 163   Ibid PN 1098 - 1099

 164   Ibid PN 1109 - 1112

 165   Ibid PN 1113

 166   Ibid PN 1118

 167   Exhibit R3 at paragraph 22

 168   Ibid at paragraph 21

 169   Ibid at paragraph 24

 170   Transcript PN 1121

 171   Ibid PN 1122

 172   Exhibit R3 at paragraph 25

 173   Transcript PN 1124

 174   Ibid PN 1126

 175   Ibid PN 156

 176   Ibid PN 155

 177   Exhibit A1 at paragraphs 16 and 25

 178   Ibid at paragraph 31

 179   Transcript PN 923 - 924

 180   Ibid PN 925 - 928

 181   Ibid PN 933

 182   Ibid PN 899 - 919

 183   Ibid PN 921 - 922

 184   Ibid PN 466 - 469

 185   Ibid PN 470 - 471

 186   Ibid PN 482 - 485

 187   Ibid PN 491 - 499

 188 (2003) 121 IR 215 at paragraph 34(5)

Printed by authority of the Commonwealth Government Printer

<Price code G, PR507983>