Ms Sally Gregory v Cape Byron Imports & Wholesale Pty Limited T/A Cape Byron Imports & Wholesale (CBI)

[2011] FWA 750

[2011] FWA 750

FAIR WORK AUSTRALIA

DECISION

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

Ms Sally Gregory
v
Cape Byron Imports & Wholesale Pty Limited T/A Cape Byron Imports & Wholesale (CBI)
(U2009/15040)

DEPUTY PRESIDENT SWAN BRISBANE, 15 FEBRUARY 2011

[1] This application has been made pursuant to s.394 Fair Work Act 2009 (“FWA”). The Applicant, Ms Sally Gregory, said that she had been unfairly dismissed from her employment by the Respondent, Cape Byron Imports & Wholesale Pty Limited T/AS Cape Byron Imports & Wholesale (the Respondent/CBI).

[2] The Respondent has raised a jurisdictional issue stating that it had no contract with the Applicant but with a company set up by the Applicant named DIML Pty Ltd [DIML].

[3] The Respondent’s business

• The Respondent is a constitutional corporation which conducts the business of import and wholesale of swim, surf and dive equipment. The Respondent’s head office is situated in Byron Bay, New South Wales.



• At the relevant time [24 November 2009] for the purpose of this decision, the Respondent employed in excess of fifteen employees. Accordingly, the Respondent was not a ‘small business employer’ within sections 23 and 383(a) FWA.

[4] Brief overview of events from 1990-2009

• The parties agree that the Applicant had commenced employment with the Respondent as State Sales Manager in March 1990.



• In June 1999, the Applicant says that the Respondent’s Managing Director at that time, Mr Hultgren, required her to commence performing work for the Respondent through a company.



• The company was DIML.



• There were various Agency Agreements entered into between the Respondent and DIML between 1 July 1999 and June 2010.



• On 24 November 2009, the Applicant says that Mr Preston, the Respondent’s Managing Director at that time, gave her oral notice of termination of the engagement followed by written notice on 25 December 2009.

[5] Notwithstanding the history of the arrangement between the Applicant and the Respondent (which is not irrelevant), the specific question to be answered is whether as at 24 November 2009 the arrangement between the Applicant and the Respondent was one of an employer/employee relationship.

[6] Applicant’s original and amended claim

(a) The Respondent stated that the Applicant’s original case 1 had proceeded on the basis that:

(i) “CBI was asserting that the relationship between the Applicant and the Respondent was one of principal and contractor;

(ii) the Applicant and the Respondent had entered into Sales Agency Agreements covering the period between 1 July 1999 and 30 June 2010;

(iii) the Sales Agreements were employment agreements between the Applicant and CBI; and

(iv) the Applicant was, accordingly, an employee of the Respondent and entitled to prosecute the proceedings. 2

(b) The Respondent claims that those submissions were abandoned by the Applicant after the Respondent, in its final written submissions, highlighted that the Applicant was not a party to the Agency Agreements as those Agreements were between the Respondent and DIML.

(c) There was a reference, in the Applicant’s final submissions, that Agency Agreements had been entered into between the Applicant and the Respondent. However, at the commencement of the hearing, the Applicant had said that:

“It is submitted that the evidence will disclose further indicators that an implied contract existed between the Respondent and the Applicant personally and that such contract was in the nature of an employment contract. For example, the evidence will show that the Applicant was financially practically entirely dependent upon the Respondent. Further, DIML did not provide the services of any other workers to the Respondent. 3

…..

It is submitted that the evidence will demonstrate that in effect DIML did nothing more than perform an administrative function in accounting for the various expenses and paying the Applicant on behalf of the Respondent.” 4

(d) The Applicant says that, after objectively having regard to the entire factual matrix, the real nature of the relationship between the Applicant, Respondent and DIML was as follows:

(a) “The Applicant worked for the Respondent as an employee pursuant to a new contract of employment implied to exist between them;

(b) DIML Pty Ltd performed an administrative function (and possibly acted as an agent for the Respondent) in accounting for expenses and paying the Applicant.

Alternatively, having regard to the reasoning of Merkel J in Damevski, a new contract of employment was entered into between the Applicant and the Respondent, through the agency of DIML Pty Ltd.” 5

• The Applicant had stated, prior to submitting her amended submission, that “There is no evidence of an employment relationship between the Applicant and DIML Pty Ltd” 6

• That being stated initially, the Applicant qualifies that by saying:

“Even if the Applicant was an employee of DIML Pty Ltd, that would not prevent the Applicant from having a contract of employment with the Respondent [on the basis that] the Court in Damevski accepted in principle that a situation of ‘dual appointment’ could occur.”

[7] Respondent’s claim that the Applicant was an employee of DIML

[8] The Respondent claims that at 24 November 2009, the Applicant was employed by DIML. The Applicant, during the course of her evidence also stated that she was at all times an employee of DIML 7 contrary to her aforementioned claim that there had never been an employment relationship between herself and DIML.

[9] The Respondent set out the indicia which it says confirms that the Applicant was an employee of DIML as follows:

• The most recent Agency Agreement [2009-2010] governs the relationship between the various parties as at November 2009.

• The Agreement is signed by the Applicant but not on her own behalf.

• The Agreement is signed on behalf of DIML. This Agreement identifies the Applicant as acting on behalf of “ABN 16070 401 722” which is DIML’s Australian Business Number [ABN].

• The Agreement is not an employment agreement, but a licence agreement granting DIML an exclusive agency by CBI to DIML.

• Payment under the agreement is made not by reference to hours worked, but solely on commission.

• The agreement assumes that DIML will employ its own staff.

• The Agreement requires DIML to obtain, at its own cost, all licences and permits which may be required.

• The Agreement requires DIML to obtain, at its cost, all insurance (including Workers Compensation insurance for DIML’s employees) which may be required.

• The Agreement includes a “non-competition” clause and gives DIML a right of assignment.

• The Agreement declares that the relationship between the Respondent and DIML be that of “principal and contractor”.

[10] The Respondent states that none of the above matters point to any contractual relationship between the Respondent and the Applicant and none points to the existence of an employment relationship.

[11] The Applicant was the sole director of DIML. DIML was in a contractual relationship with the Respondent for the supply of swim, surf and dive equipment.

[12] The Respondent asserts that DIML was an operating business. The Applicant’s evidence was that income was derived from approximately eight sources [the Respondent says eleven] inclusive of the Respondent’s business and that the majority of the income was derived from the Respondent’s interaction with DIML.

[13] DIML incurred costs on promotion of its business. The business owned a motor boat and a motor vehicle which were used for work purposes. These factors were not challenged by the Applicant.

[14] The Applicant had on occasions advanced money to DIML.

[15] The annual contracts gave DIML exclusivity for a number of shops.

[16] What is challenged by the Applicant is the degree to which these events impacted upon the type of work performed for the Respondent. The Applicant says:

“It is submitted that in this case it is particularly relevant that the expenses were almost exclusively incurred in relation to the Applicant performing work for the Respondent, rather than in respect of the Applicant performing work for other parties or in advertising or in respect of carrying out a business generally”. 8⁹

[17] In determining the true nature of the arrangement in existence, the principles outlined in Abdallah v Viewdaze Pty Ltd. 10 have been considered and applied.

[18] The preamble to a consideration of those principles is found in the following comments of the Full Bench:

“… it should be borne in mind that parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: that is, the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.” 11

Whether the putative employer exercised or has the right to exercise control over the manner in which work is performed including the place of work, hours of work and similar matters

[19] The various Agency Agreements (and relevantly the 2009-2010 Agreement) state that the relationship between the parties was that of “principal and contractor”. 12

• The Applicant claims that the Respondent both exercised and had the right to exercise control over the manner in which work was to be performed.

• The Applicant said that she was required to work from 9am to 5pm Monday to Friday.

• The Applicant’s duties were the same irrespective of whether she was an “employee” or “contractor”.

• The Applicant was required to contact five customers each week day.

• The Respondent determined which products the Applicant could sell and the Applicant was not permitted to sell some products from other suppliers.

• The 2009 – 2010 Agreement provided that:

(1)“Representatives shall keep accurate and separate records and accounts in

respect of the Agency, and:

(i) in accordance with good accounting practise and custom;

(ii) provide copies to CBI when reasonably requested so to do by CBI:

(iii) keep them for not less than three (3) years;

(iv) make available for inspection by CBI and/or its representatives said accounts at all reasonable times on reasonable notice in writing from CBI”

(2) to comply with and follow all and any reasonable directions, suggestions, request and notices issued by or received from CBI which are in any way related to the Agency”.

(3) The relevant Agreement provides:

(i) “Representative agrees to adhere to key performance standards as outlined in schedule 6”

Schedule 6 Call Frequency

(ii) To maintain a minimum average call frequency of 5 nominated accounts per day for each month”

…

To maintain a minimum call frequency of 5 accounts per 4 day for each working week across nominated accounts, unless otherwise formally agreed with CBI.”

[20] Further, the Applicant was required to submit weekly call sheets amongst other things under the standards set out in the Respondent’s State Sales Managers Standards.  13 Failure to produce the weekly call sheet, could result in the Respondent withholding commissions.14

[21] The Respondent submits that all times the Applicant regarded her relationship with CBI as that of a contractor.

[22] The Respondent made reference to correspondence sent by the Applicant to CBI after CBI had made comment on the Applicant “not working most Mondays”. The Applicant responded by stating “I don’t believe I need to highlight that the arrangement between CBI and DIML is that of a commission agent and not of an employee. As a business owner, manager & strategic partner of CBI, I spend 1 day each week to address administration and finance matter. This arrangement has been in place since the formation of DIML and the change to the business relationship between CBI and me in July 1999”. 15

[23] This issue was further pursued during cross-examination by the Respondent and showed that the Applicant believed then and still believed that a contract relationship with the Respondent represented the true nature of the relationship. 16

[24] The evidence suggests that while CBI had the right to exercise some degree of control over the Applicant, the reality was that the Applicant regarded herself as a contractor and pressed the point in stating that she would not be working on a Monday, by way of example.

[25] The evidence does not show that there were any repercussions from CBI when the Applicant took this stance.

[26] In this respect, in a real sense, while CBI did not exert control over when the Applicant worked it did retain a right, according to the 2009-2010 Agreement to ensure that the Applicant “made at least 5 calls per day in each month”. The Respondent stated that the requisite number of calls could have been made at any time on any day as long as the equivalent of 5 calls per day were made within the month. This clearly was the case as the Applicant did not work on a Monday for example.

Whether the Applicant works for others (or has a genuine and practical entitlement to do so

[27] The Applicant states that she performed some work for eight (the Respondent says eleven) bodies other than CBI but that the bulk of monies received came from her engagement with CBI.

[28] The 2009-2010 Agreement stated that the Applicant could not have any involvement with any products and/or services which the Respondent, acting reasonably, could determine to be competitive with CBI.

[29] It followed, there was no embargo on the Applicant selling products which were not in direct competition to the products imported or wholesaled by CBI.

Does the Applicant have a separate place of work and/or advertises his or her services to the world at large

[30] Primarily, the Applicant did not have a separate place of work. She performed most of her administrative work from her home. Other than that, she was required to undertake travel to sell products.

[31] The Applicant states that she did not advertise her services to the world at large.

[32] However, there is unchallenged evidence that the Applicant did perform work for between eight and eleven other bodies apart from CBI.

Whether the Applicant provides or maintains significant tools or equipment

[33] DIML owned/leased a motor vehicle. DIML also owned and used a boat in its business. The Respondent stated that the High Court in Hollis v Vabu Pty Ltd “took the view that while a person who incurs the cost of running a motor vehicle or motor cycle may be in business for himself and thus a independent contractor, the relatively low expenditure involved in purchasing and maintaining a push bike meant it was less likely that the person was in business for himself”. 17

[34] The Respondent says that in the circumstances of this case, DIML was using motor vehicles and a boat which it either owned/leased and expended a reasonable amount of money in doing so.

Whether the work can be delegated or subcontracted

[35] The Applicant says that she was unable to effectively delegate or subcontract her work from CBI. The current Agency Agreement states that:

“Representative acknowledges that the rights and duties created by this Agreement are personal to the Representative and that CBI has granted the Agency and the Licence in reliance upon the individual or collective character, skill, aptitude, business ability and financial capacity of Representative and/or its owners. Representative shall not without the consent of CBI which shall be granted or withheld in the absolute and unfettered discretion of CBI:

(i) Propose or purport to effect any Sales, Transfer, Assignment, Sub-Licence, Declaration or Trust or any other legal or equitable disposition of the Agency and/or the Licence”.

[36] However, the Respondent points out that the Agreement assumes that DIML will employ its own staff. 18 The relevant clause is as follows:

“to ensure that all staff retained or employed by Representative shall at all times be aware of and agree to the obligations of representative as set out in this Agreement”

[37] Further, the Respondent points out that Exhibit SFG-18, page 8 clause 15 permits DIML a right of assignment.

[38] The work performed by the Applicant was able to be performed by employees and there was a right of assignment on the part of DIML.

Did the Respondent have the right to suspend or dismiss the person engaged

[39] The 2009-2010 Agreement had the following term:

“13.1 CBI may terminate this Agreement in its absolute and unfettered discretion on the giving of not less than seven (7) days written notice to Representative in the following circumstances:

(ii) Representative fails to meet Minimum Monthly Sales Amount noted in Schedule 4 for two (2) consecutive months at any time during the term of this Agreement;

(iii) Representative fails to diligently operate Agency and/or Licence and/or represent CBI as required pursuant to the terms and conditions of this Agreement.

(iv) Representative breaches the terms and conditions of this Agreement whether or not a notice of any alleged breach is served on Representative by CBI.

Further clauses relate to circumstances whereby the contract would be severed – for example, the conviction for a serious criminal offence etc.

Did the Respondent present the Applicant to the world at large as an emanation of the business

[40] The Applicant asserts that she was required to comply with the Respondent’s dress code. The Applicant was also required to wear a name badge bearing the Respondent’s logo, attend trade shows on behalf of the Respondent, attend the Respondent’s annual general meeting, attend the bi-annual Mares dealer conference and was provided with Respondent business cards which identified the Applicant as a Sales Manager.

[41] Evidence around this point was given by Mr Patrick Dillon who was a former employee of CBI. Mr Dillon’s evidence was that he had been asked to become a contractor for CBI on more than one occasion and had declined the offers without any recriminations from CBI.

[42] Whilst Mr Dillon had been given a CBI name badge to wear, he had declined to do so without any repercussions from CBI.

[43] During his period of employment with CBI, Mr Dillon stated that the dress requirement for CBI was “neat dress sort of code, really”. 19

[44] On the question of attendance at trade shows, Mr Preston stated that attendance was not compulsory and that some people had elected not to attend. [PN 710] The Applicant stated that it was not compulsory to attend trade shows but she chose to attend them because as “a professional sales person” she should be there. 20

[45] The last shirts which had been worn by the Applicant did not have CBI’s name on them but the name of “Mares”. 21

[46] On that point, the Applicant had agreed that since 2006 she had not been required to wear a CBI shirt as part of her arrangement with CBI. 22

[47] I have found that the Applicant was not required to either wear a name badge other than for common sense purposes at a trade show, by way of example, or comply with a dress code which she says the Respondent demanded. I have also found that the Applicant was not required to attend trade shows, but that she made the decision as to whether she attended or not. That she did determine to respond positively to requests from CBI to do such things, says more about her desire to present as a professional sales person than any requirement on CBI’s part for her to do so.

Was income tax deducted from remuneration paid to the Applicant

[48] All payments of commission were made to DIML and not to the Applicant personally. Payments were made upon the provision of invoices by DIML to CBI.

[49] The invoices displayed the ABN Number for DIML and charged GST.

[50] The Respondent stated that there were two ways by which DIML earned commissions. These were though orders placed directly with DIML and through orders placed over the telephone with CBI. DIML would not know about these telephone orders unless they were advised by CBI. Consequently, the Respondent says that it “is no assistance to the Applicant in the fact that CBI advised DIML of the amounts to be invoiced and does not connote any type of sham arrangement.” 23

[51] The Respondent says that relevant Taxation returns (although the taxation returns for the previous year were not available), show that the Applicant identified herself as employed by DIML and likewise DIML treated the Applicant as its employee.

[52] Further, the Respondent states that taxation arrangements were not organised by the “employer” under the PAYE system. What was in place was more indicative of a contractor relationship.

[53] The manner by which the Applicant received monies for work performed bears no resemblance to monies which would be received through an employment arrangement.

Was the Applicant paid a periodic wage or salary or by reference to completion of tasks

[54] The current Agency Agreement provided that payment of commission was subject to receiving monthly call reports.

[55] The claims for commission included a component for GST which the Respondent says does not apply to employer/employee relationships.

[56] The Applicant was paid by results by way of commission, and not by the hour as per general employment contracts.

[57] The Respondent asserts that the Applicant’s wages were determined by DIML and not by CBI. Further, the payment of wages by DIML were not merely administrative – ie, DIML did not just hand to the Applicant monies received from CBI. Rather, the Applicant’s wages were determined by DIML. The amount paid was determined by the Applicant’s accountant for the purpose of making the most beneficial payment to the Applicant.

Was the Applicant provided with paid holidays or sick leave

[58] The current Agency Agreement stated that four weeks each calendar year could be taken as leave with sales commissions continuing to be paid. The timing of the leave needed to be approved by CBI. The Agreement also stated that up to five days each calendar year could be taken as sick leave. If more sick leave was required, then CBI was entitled to ask the representative for either a “stand in support” person to perform the duties (the cost of which would be borne by the representative) or sales commission would not be paid during the period of sick leave.

[59] Did the work performed by the Applicant involve a profession, trade or distinct calling on the part of the person engaged

[60] The Applicant’s duties primarily involved performing the role of a sales representative. That work would not normally be classified as work involving a profession or trade.

Whether the Applicant created goodwill or saleable assets in the course of his or her work

[61] The current Agency Agreement prohibited the Applicant from “proposing or purporting to effect any sales, transfer, assignment, sub-licence, declaration or trust or any other legal or equitable disposition of the agency and/or the licence or from altering the effective control of the Applicant’s company DIML without the Respondent’s consent”.

[62] Consequently, the Applicant submits that because the Respondent could grant or withhold its consent in its “absolute and unfettered discretion”, the Applicant did not have a genuine ability or legitimate basis to create goodwill or saleable assets in the course of her work. 24

[63] However, the Respondent points out that while the Agreement includes a “non competition clause” (Exhibit SFG 18 – page 5, clause 9) DIML has a right of assignment. 25

Whether the Applicant spends a significant proportion of his remuneration on business expenses

[64] The Applicant states that various business expenses were incurred, which included motor vehicle expenses, travel and accommodation expenses, computer expenses, printing and stationery and telephone expenses. 26

[65] The Applicant states that the expenses were mostly incurred in relation to her performing work for the Respondent rather than in respect of her performing work for other parties or in advertising or in respect of carrying out a business general. 27

[66] The Respondent, however states that the Applicant’s expended considerable costs on the promotion of his own business. 28

Respondent’s claim that the Applicant was an employee of DIML

[67] The Respondent claims that various Applicant documents support its claim that the Applicant was an employee of DIML. These included:

• The Applicant declaring to the Australian Taxation Office that her employer was DIML  29

• While DIML taxation records and profit and loss records do not name the Applicant as an employee, the Applicant had agreed that the reference to an “employee” in the notes to DIML’s Financial Statements for 2009 records itself as the employer of the Applicant 30

• The Applicant had also agreed that references in DIML’s Profit & Loss accounts to wages and superannuation (among other things) were references to wages and superannuation paid to her 31

• Applicant’s wages were paid by DMIL and determined by reference to an accountant

• Applicant received superannuation from DIML

• Applicant received her travel allowances from DIML

• Wages, superannuation and travel allowance paid to the Applicant by DIML set by herself as a Director of DIML based upon an accountant’s advice.

• Documents detailing travel expenses for Applicant were not given to the Respondent, but were given to her accountant 32

• DIML operated a business with multiple sources of income; incurred costs on promotion of its business; owned a motor boat which it used in its business; owned a motor vehicle used in work and the Applicant advanced money to DIML

• The annual contracts gave DIML exclusivity for the shops identified

• The arrangements for the Applicant after 1999 were completely different to when she had been an employee of CBI

• The Applicant admits that the true nature of the relationship between the parties after 1999 was not that of employer/employee and she confirms that is still her view

• The Applicant wore whatever shirts she liked

• The Applicant attended trade shows because of her own perceptions – she was not obliged to attend trade shows by the Respondent [PN 427-428]

• The Applicant acknowledged that other contractors may not attend trade shows because they had other commercial interests to which they were committed.

Whether the Applicant had no option but to become a “contractor” with CBI

[68] The Applicant has asserted that she had no option but to accept CBI’s demand in 1999 that she relinquish her formal position as ‘employee’ to become a ‘contractor’ of CBI.

[69] The Respondent queried why it had taken the Applicant some ten years of her engagement as a contractor with CBI to challenge the point.

[70] Mr Hultgren denied that he had demanded that the Applicant cease being an employee of CBI and that she take on the role of “contractor”.

[71] This position is supported by Mr Dillon. Mr Dillon was asked on more than one occasion to become a ‘contractor’ with CBI but on each occasion he declined the offer. Mr Dillon suffered no ramifications as a consequence of the position he had adopted.

[72] Within the ten year period of being a ‘contractor’ with CBI, the Applicant had asserted, in 2006, her belief that she was indeed a contractor and not subject to any control by CBI.

[73] In my view, the Applicant had agreed to become a contractor of CBI and there was no coercion evident on the part of CBI to bring about this result.

The Applicant’s submission regarding “Dual Employment”

[74] The Applicant relied upon Damevski v Giudice 33 to support its submission that a person may be concurrently employed by two separate and distinct employers in relation to the same work.

[75] The Applicant made reference to a number of cases where the general commentary from the various Tribunal Benches was to the effect that the concept of joint employment has not been adopted by any Australian Court. 34 35 36

[76] As a consequence of the decision I have made in this matter, there is no requirement to further explore the submissions made by the Applicant around this point specifically as they relate to the alternative position adopted by the Applicant.

[77] I respectfully accept and adopt the views expressed in the aforementioned cases that the concept of dual employment has not been adopted by Australian Courts.

CONCLUSION

[78] The list of considerations point to the conclusion that the Applicant was in a contractual relationship with the Respondent.

[79] I have accepted the Respondent’s submissions that DIML was in fact the employer of the Applicant for the factual reasons set out in this decision. I have also accepted that the Respondent’s agreement with DIML was not an employment agreement, but a licence granting DIML the exclusive agency to sell CBI goods.

[80] It is often the case that there is no clear dividing line between employment and independent contractor 37 however, in this case, while there are some elements of the arrangement which could indicate an employment relationship, the strength of the evidence falls in favour of the Respondent’s jurisdictional challenge.

[81] While the facts speak for themselves, it should also be said that the contractual arrangement into which the Applicant entered with CBI, in my view, was not forced upon her. The Applicant had, in fact, stridently reminded CBI of this fact some years into the arrangement.

[82] The Respondent’s jurisdictional challenge is granted.

DEPUTY PRESIDENT

Appearances:

K Garner on behalf of the Applicant

T Rogers on behalf of the Respondent

Hearing details:

2010:

Brisbane.

20, 21 and 22 July 2010.

 1   Applicant’s submissions 3 June 2010 paragraph 21

 2   Respondent’s Final Submissions point 31

 3   Transcript dated 20 July 2010 at PN 43.

 4   Transcript dated 20 July 2010 at PN 44.

 5   Applicant’s submissions in reply in relation to jurisdictional issue – points 43 and 44

 6   Applicant’s original submissions in reply 16 July 2010 – para 39

 7   Transcript dated 20 July-2010 PN 103-108

 8   Applicant’s Outline of Submissions in relation to jurisdictional issues” – point 100

⁹ Hollis v Vabu (2001) 207 CLR 21

 10   Abdallah v Viewdaze Pty Ltd op. cit. at paragraphs 65-67

 11   Abdallah v Viewdaze op cit at paragraph 34(3)

 12   Exhibits SFG9 to SFG 18

 13   Exhibit SFG20

 14   Exhibits SFG25, SFG26’

 15   Annexure ADP-2 to Exhibit 5 – Affidavit of Mr Preston of 6 July 2010

 16   Transcript dated 20 July 2010 PN 249-250; PN 254-255

 17   Respondent’s submissions – 9.12

 18   Exhibit SFG-18, page 4 – clause 7(ix)

 19   Transcript dated 20 July 2010 PN 609

 20   Transcript dated 20 July 2010 PN 427

 21   Transcript dated 20 July 2010 PN 403

 22   .Transcript dated 20 July 2010 PN 406

 23   Respondent’s final submissions- point 10.4 and 5

 24   Applicant’s submissions – point 94 and 95

 25  Exhibit SFG 18-clause 15

 26   Applicant’s affidavit paras 6-8 Exhibit SFG3

 27   Applicant’s submissions - point 100

 28   Transcript dated 20 July 2010 PN 121-140

 29   Exhibit 10, Tabs 36 and 40

 30   Exhibit 10 Tab 38

 31   Transcript dated 20 July 2010 PN 148-153 – evidence of Applicant

 32   Exhibit SFG 24

 33 Damevski v Giudice [2003] FCAFC 252

 34   Arcadia v Accenture Australia [2008] AIRC 108 at (7); [Damevski]

 35 Morgan v Kittochside Nominees Pty Ltd (2002) 117 IR 152

 36   Oanh Nguyen and ANT Control Packers Pty Ltd [2003] NSWIRC Comm 1066

 37   Abdallah v Viewdaze op cit at [49]

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