Mr Murray Coulston v The Blind Factory

[2013] FWC 7370

[2013] FWC 7370

FAIR WORK COMMISSION

DECISION

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

Mr Murray Coulston
v
The Blind Factory
(U2013/1495)

DEPUTY PRESIDENT SMITH MELBOURNE, 25 SEPTEMBER 2013

Application for relief from unfair dismissal—jurisdiction—employee or not?

Introduction

[1] Mr M Coulston has lodged an application under s.394 of the Fair Work Act 2009 (the Act) in relation to what he alleges was his termination of employment by The Blind Factory (Australia) Pty. Ltd (the Blind Factory).

[2] The Blind Factory raises a jurisdictional objection to the application. It argues that Mr Coulson was not a person protected from unfair dismissal as he was not an employee but a subcontractor. Given the provisions of s.396 of the Act this is a matter which must be determined before consideration of the merits. The matter was heard on Friday, 20 September 2013.

[3] Both parties were represented, by permission, by paid agents.

The Objection

[4] Against the backround of the decision in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario [(2011) FWAFB 8307] and Hollis v Vabu Pty Ltd (Vabu)[(2001) 207 CLR 21] both parties sought to characterise the nature of the relationship.

[5] Evidence was called from Mr Coulston (Exhibits D1 and D2) and Mr B Thomas (Exhibit I1) the owner of the business.

[6] Mr Coulston’s evidence and submissions was that:

● he was engaged by the Blind factory to install blinds and shutters,

● he was under the control and direction of the Blind Factory in the performance of his duties,

● he wore identifying clothing supplied by the Blind Factory,

● he worked exclusively for the Blind Factory,

● his van carried the signage of the Blind Factory,

● he did not delegate the work, and

● he did not create any goodwill.

[7] During cross-examination of Mr Coulston it was clear that he performed work other than for the Blind Factory for which he invoiced the client. This was not a large amount of work but tax returns also indicated a difference between the amount invoiced to the Blind Factory and the level of income declared. It was also clear the Blind Factory did not seek to inhibit Mr Coulston from performing other work.

[8] The evidence of Mr Thomas was that Mr Coulston:

● could determine his own hours of work. Work was often completed within a short period of time and there was no requirement to perform any other duties,

● could and did refuse work offered to him,

● was not required to wear company supplied clothes but it was beneficial to the company if he did,

● owned his own van,

● was paid to put company signage on his van but other contractors did not put such signage,

● did not have tax deducted and payment was made on a job-by-job basis,

● provided his own tools, and

● submitted tax invoices for the work undertaken on the basis of a schedule of costs determined by the Blind Factory.

Conclusion

[9] It is true that the Blind Factory expected certain standards of installation and the conduct by persons it called subcontractors. That in itself is not surprising and doesn’t constitute the same type of control that would apply to an employee. Mr Coulston was advised of a job and it was up to him to contact the client and make arrangements for the installation. Mr Coulston could refuse work and did on the basis that it was not financially beneficial for him.

[10] The evidence from Mr Thomas demonstrated that he had direct employees and then a series of subcontractors who he used flexibly to carry out installation work. These contractors (see exhibit I3) had a variety of business operations. Whilst there are two documents which, on one view, indicate that the Blind Factory treated Mr Coulston as an employee, I am satisfied with the explanation of Mr Thomas that he didn’t originate one of the documents and administratively made an error with the other.

[11] In Vabu the Court asked whether or not “viewed as a practical matter” the person was running their own business? Given the totality of the evidence, I am satisfied that Mr Coulston was running his own business. In applying the decisions referred to earlier against which the parties presented argument, I uphold the jurisdictional objection and find that Mr Coulston is not a person protected from unfair dismissal.

DEPUTY PRESIDENT

Appearances:

A. Dircks for Murray Coulston.

B. Ironmonger with B. Thomas on behalf of The Blind Factory.

Hearing details:

2013.

Melbourne:

September, 20.

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