Nash v CARROLL

[2018] FCCA 186

FEDERAL CIRCUIT COURT OF AUSTRALIA

NASH v CARROLL & ANOR [2018] FCCA 186

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – Social, community, home care and disability services industry award 2010 – independent contractor or employee – live in carer – payment of entitlements – nature of contractual relationship – industrial award.

Legislation:

Fair Work Act 2009, s.548

Fair Work Regulations 2009, reg.4.01
Social, Community, Home Care & Disability Services Industry Award 2010

Cases cited:

ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146; [2013] FCAFC 3; 295 ALR 407; 235 IR 115

Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario (C2011/4659) [2011] FWAFB 8307
Lehigh Valley Coal Co v Yensavage 218 Fed 547 (1914 2^nd CCA)
Tattsbet Limited v Morrow [2015] FCAFC 62; 233 FCR 46; 321 ALR 305; 249 IR 440

Workplace Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; 228 FCR 346; 321 ALR 404; 249 IR 256

Zujis v Wirth Brothers Pty Ltd [1955] HCA 73; 93 CLR 561; (1956) ALR 123

Applicant: LYNETTE NASH

First Respondent: JANE CARROLL

Second Respondent: GAVIN CARROLL

File Number: MLG 1770 of 2017

Judgment of: Judge Mercuri

Hearing dates: 27 October 2017 & 27 November 2017

Date of Last Submission: 27 November 2017

Delivered at: Melbourne

Delivered on: 1 February 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: In person

Solicitors for the first respondent: None

Advocate for the second respondent: In person

Solicitors for the second respondent: None

ORDERS

1. The application filed in this proceeding is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1770 of 2017

LYNETTE NASH

Applicant

And

JANE CARROLL

First Respondent

GAVIN CARROLL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by Ms Nash under the Fair Work Act 2009

   
   

   (“FW Act”). The application is brought under the small claims provisions of the FW Act.[1]

   [1] Section 548 of the FW Act and regulation 4.01 of the

2. In essence, the applicant claims that:

   a)she was engaged as an employee by the respondents to care for the first respondent’s aged mother, Ms Kathleen Dorothy Goff (“Ms Goff”) as a live in carer;

   b)

   as such she ought to have been paid under the

   
   Social, Community, Home Care & Disability Services Industry Award 2010

   (“SCHCDS Award”); and

   c)the respondents failed to pay her entitlements under the SCHCDS Award.

3. The applicant seeks payment of her outstanding entitlements in the sum of $19,887.19.

4. The respondents oppose the orders sought by the applicant on the following grounds:

   a)there is no contractual relationship at all between the applicant and the second respondent and therefore the claim against the second respondent ought to be dismissed; and

   b)moreover, to the extent that there was any contractual relationship between the applicant and the first respondent, the applicant was at all relevant times engaged as an independent contractor and not an employee and therefore was not entitled to the benefits of the SCHCDS Award or indeed any other industrial award.

5. The first respondent also argued that to the extent that she engaged the applicant to provide services to her mother Ms Goff, she did so on behalf of her mother and not in her personal capacity.

Summary

1. For the reasons set out below, I find that:

   a)the proceedings against the second respondent ought to be dismissed on the grounds that he had no contractual relationship with the applicant at all; and

   b)

   the proceedings against the first respondent ought be dismissed on the grounds that the services provided by the applicant to

   
   

   Ms Goff were provided under a contract for services (i.e. an independent contractor relationship) not a contract of service (i.e. an employer/employee relationship). As such the

   
   

   SCHCDS Award does not apply to that relationship.

Background

1. The background to this matter is not largely in dispute.

2. Ms Goff, at the relevant time, was a 91 year old widow. 

3. At all relevant times:

   a)the first respondent held an Enduring Power of Attorney (Financial) from her mother, Ms Goff, jointly and severally with her brother, Robert Terence Goff; and[2]

   b)Ms Goff suffers from vascular dementia and in 2014, when the incidents which gave rise to this claim occurred, she was 91 years of age, lived at the Retirement Village Mornington (“RVM”) and was assisted by a range of carers, including the respondents.

   [2] First respondent’s affidavit sworn 23 October 2017 at annexure JC-1.

4. The second respondent is the first respondent’s husband. He does not hold any legal authority to act on behalf of Ms Goff but has deposed to the fact that he has provided emotional support for the first respondent in caring for Ms Goff and assisted the first respondent in managing

   
   

   Ms Goff’s finances. To this end, he kept financial records in relation to carers engaged to assist Ms Goff and made arrangements for their payment. Such payments were made to the carers, including the applicant from Ms Goff’s account.

5. The second respondent has deposed to the fact that in about 2013, the RVM applied to the Victorian Civil and Administrative Tribunal (“VCAT”) to appoint the Office of Public Advocate (“OPA”) as guardian for Ms Goff.[3]

   [3] First respondent’s affidavit sworn 23 October 2017 at annexure JC-2.

6. On 6 February 2014, VCAT ordered that the OPA be appointed as a limited guardian for Ms Goff with powers and duties to make decisions concerning her accommodation and access to services.[4]

   [4] First respondent’s affidavit sworn 23 October 2017 at annexure JC-2.

7. The first respondent gave evidence that she had engaged a range of carers for Ms Goff from 2013 including both privately funded carers and government funded carers with the express aim of assisting her mother to continue living independently in her unit.

8. The OPA’s delegate, Ms Colleen Dixon in her report to VCAT notes that:[5]

   a)Ms Goff wished to continue living in her unit at the retirement village;

   b)Ms Goff did require the presence of carers or family members during the day and at night to allow her to remain in her unit; and

   c)there was, at times, tension between the management at RVM and the first respondent about Ms Goff’s care and related issues.

   [5] First respondent’s affidavit sworn 23 October 2017 at annexure JC-2. 

9. It was against this background that the first respondent placed an advertisement in the Leader Mornington News on or about

   
   

   2 September 2014. The advertisement relevantly provided:[6]

   [6]First respondent’s affidavit sworn 23 October 2017 at annexure JC-5.

   Care giver

   Wanted for delightful elderly lady. Position is short-term, live in, 7 days on, 7 days off in Mornington. Assist with personal care, cooking, light duties and drives. Must have car, be mature, honest, kind, sense of humour and exp in dementia care. Includes board and accom $1000 per week. (sic)

10. The applicant contacted the first respondent in response to this advertisement. On 4 September 2014, the applicant met with Ms Goff and the first respondent to determine whether there was an appropriate level of compatibility between the applicant and Ms Goff.

11. The first respondent then sent the applicant an email on

    
    

    5 September 2014 which attached:

    a)a draft document headed Care Duty Guidelines (“guidelines”) in respect of which the first respondent commented in the covering email:[7]

    … As Kath’s needs change, I have not had time to edit properly… but this attachment is a draft and will give you an understanding of the basics; and

    b)

    a roster which showed the Arcare Activity Schedule, i.e. the times and dates on which the government funded carers attended on

    
    

    Ms Goff (“Arcare Schedule”). [8] 

    [7]Applicant’s affidavit sworn 23 October 2017 at annexure 3.

    [8]Applicant’s affidavit sworn 23 October 2017 at annexure 2.

12. There is a dispute between the parties as to the relevance of the

    
    

    Arcare Schedule. The applicant maintains that following her first meeting with the first respondent and Ms Goff, she asked for a roster which showed her hours of work and that the Arcare Schedule was provided in response to that request. The first respondent maintains that she provided the Arcare Schedule to the applicant to show her the times and hours when other care, either through Arcare or through one of the activity groups that Ms Goff attended, was available for Ms Goff and therefore the times during the week where the applicant could have some uninterrupted time to herself. 

13. The first respondent also stated in the covering email of

    
    

    5 September 2014, ‘Employment agreement – will forward tonight if you don’t mind.’[9]

    [9] Applicant’s affidavit sworn 23 October 2017 at annexure 3.

14. On or about 6 September 2014, there was a further meeting between the first respondent, the applicant and Ms Goff’s other carer, Ms Sherryn Dales, who had been engaged some months prior. There is some dispute between the parties about exactly what was discussed at this meeting although there is broad agreement that the carer role was discussed.

15. On 7 September 2014, the first respondent sent an email to the applicant setting out, among other things, the terms and conditions of the carer role (“terms and conditions”).[10] In addition, the covering email confirmed that the start date for the role was 15 September 2014. The email also stated that the respondents would be ‘returning to stay with Kath 26 October 26 (sic) for a week.’[11]

    [10] First respondent’s affidavit sworn 23 October 2017 at annexure JC-5. .

    [11] First respondent’s affidavit sworn 23 October 2017 at annexure JC-5.

16. Of particular note in the terms and conditions[12] is the first point which states: ‘position is for 7 days on 7 days off.’ The second dot point then states: ‘payment is $1000 per each 7 days on ($140 per week day and $150 per weekend day).’

    [12]First respondent’s affidavit sworn 23 October 2017 at annexure JC-5 and applicant’s affidavit sworn 23 October 2017 at annexure 4.

17. Although it could be said that the initial advertisement was unclear as to whether payment would be made only for time worked, the terms and conditions made this clear. I note the terms and conditions were provided to the applicant before she commenced in the role. The terms and conditions also provided that:

    a)payment would be made at the end of each calendar month;

    b)out-of-pocket expenses would be reimbursed; and

    c)a further $50 per week would be paid for transport costs to ‘take Kath on drives give her pleasurable times out and having fun.’

18. In addition, the terms and conditions contained the following clauses:

    There is flexibility with changing days with the other independent caregiver. Sherryn Dales with a mutual agreement or if you have an important function/appointment. Please just inform me of the outcome when you have negotiated the change between both of you…

    Time off: during the weekdays is based on Arcare Care Client Activity schedule, 12.5 hrs weekly. AK Day activity group and Mornington Com Health Centre activity group with the exception of their holidays and time off.

    All other times Kath must be in your care, (MRV are very strict on this issue) e.g. On no account is Kath permitted to attend the MRV centre or walk around outside on her own.

    One full calendar month’s notice is to be given if you wish to leave which will enable me to ensure Kath is fully cared for by another independent caregiver. (Trial period until 26 October).

19. Later that evening, also on 7 September 2014, the applicant sent an email to the respondents.[13] It is apparent from this email that the applicant was aware that the contract was due to commence on

    
    

    15 September 2014. In this email, the applicant said she would contact the alternate carer to ‘spend as much time as I can with her this week to learn the ropes.’

    [13] First respondent’s affidavit sworn 23 October 2017 at annexure JC-5.

20. The applicant also sent the first respondent an email on

    
    

    8 September 2014 in which the applicant indicated that she was planning to see the alternate carer again on Wednesday, but that she might ‘pop in tomorrow p.m. as well as I don’t feel as if I know anything at the moment.’ There is no suggestion in the applicant’s material that she considered this to amount to her commencing in the carer role, nor did she seek payment for any of this time.

21. In her email of 8 September 2014, the applicant goes on to say: ‘Sharon suggested I start Thursday to keep the routine with our rosters… Is that okay with you?’[14]

    [14] First Respondent’s affidavit sworn 23 October 2017 at annexure JC-5.

22. Prior to the applicant commencing, it was agreed that the two carers would swap Thursdays in their respective weeks so they had a break of a complete day and night during their 7 days on. At the hearing the applicant argued that this was not a “swap” rather, that her “roster” was such that she worked 6 days in the first week and one day in the second week (i.e. Thursday). The respondents maintained that the applicant was engaged for 7 days on 7 days off and that this arrangement was varied by agreement between the two carers to provide a break to each carer.

23. In any event and notwithstanding this change, the respondents continued to pay each carer for 7 consecutive days.

24. The first respondent emailed the applicant the following morning relevantly stating that, she was unaware that Ms Dales wanted to start Thursday changeover that week. She went on to say however, ‘I think it may be a good idea to get the gist of tasks and getting to know Kath before the full week – having one day this week with her… that is if OK with you…’[15]

    [15] First Respondent’s affidavit sworn 23 October 2017 at annexure JC-5.

25. It is clear from the email correspondence between the parties on
    9 September 2014 that an issue of concern for the respondents was to ensure that the management at the RVM did not have any basis on which to take issue with the applicant staying in Ms Goff’s unit. The respondents were concerned to ensure that the applicant complied with RVM’s requirements in this regard, including having a police check. The respondents say and I accept that it is in this context that the applicant sought clarification on whether she should attend Ms Goff’s home on 11 September 2014 as she had not yet received her police check, although she had submitted her application.

26. The email correspondence revealed that the respondents agreed that the applicant could stay over as she had submitted her request for a police check.

27. The applicant pointed to this email correspondence as evidence that she commenced working on 11 September 2014 but was not paid for that day’s work. The applicant concedes, however, that she was paid the following week at the full rate even though she did not work 7 consecutive days as the alternate carer worked on the Thursday in that week.

28. On 25 September 2014, the first respondent sent an email to the applicant and the alternate carer, Ms Dales in which she confirmed that she and the second respondent would be staying with

    
    

    Ms Goff from 26 October 2014 to 3 November 2014 and that:

    …alternate weeks halt when we stay and recommence on departure i.e. take over from Sherryn 26 (approx 6pm) and

    
    

    Lyn take over from us on Mon Nov 3

    hope that’s OK with both of you. 

    Once again if you have any issues with dates and want to change days or weeks to suit please chat to each other and workout and let me know outcome.[16]

    [16] Applicant’s affidavit sworn 23 October 2017 at annexure 8.

29. On 30 October 2014, the applicant met with the first respondent at which the applicant raised some concerns about the role. There is some dispute between the parties as to exactly what was discussed although it is common ground that the rate of pay and the frequency of payment was raised by the applicant.

30. In response to some of the issues the applicant raised with the

    
    

    first respondent at the meeting on 30 October 2014, it was agreed that the applicant would be paid fortnightly instead of monthly. No other changes to the arrangement were agreed. 

31. The applicant spoke to the first respondent by telephone on

    
    

    19 November 2014. Although there is some dispute about the precise contents of this telephone call, it is common ground that, the applicant was dissatisfied with the terms of her engagement and that she indicated that she would no longer continue as one of Ms Goff’s carers. Also, on 19 November 2014, the applicant sent an email to the respondents in which she expressed her concerns about the length of her shifts and the “hourly rate” which she was being paid. 

32. There were various email exchanges between the applicant and the

    
    

    first respondent between 19 November and 27 November 2014 regarding the applicant’s engagement, one of which confirmed that she would cease providing services to Ms Goff on 29 November 2014.[17]

    [17] First respondent’s affidavit sworn 23 October 2017 at annexure JC-5.

33. In response to a request from the applicant for ‘a payment summary of my wages for tax purposes,’ the second respondent sent the applicant an email on 30 November 2014 confirming that her payment for November had been processed and enclosing a record of payments made to her during her engagement from Ms Goff’s account.[18]

    [18]Applicant’s affidavit sworn 23 October 2017 at annexure 12.

34. On 30 November 2014, the applicant again emailed the second respondent and indicated that she had not been paid for the work she did on 11 September 2014. The second respondent replied by saying that Ms Goff had paid for the care she received on 11 September 2014 and that any adjustment that was required ought to be worked out between the applicant and the alternate carer.[19] Further email exchanges ensued between the applicant and the second respondent regarding the issue of payment for 11 September 2014.[20]

    [19]Applicant’s affidavit sworn 23 October 2017 at annexure 13.

    [20]Applicant’s affidavit sworn 23 October 2017 at annexure 14.

35. It is common ground that, as part of her duties, the applicant took

    
    

    Ms Goff on various outings like shopping and that she used her own car for this purpose. She provided the car, paid for car insurance and petrol. The respondents paid her an allowance of $50 towards her travel costs. 

36. It is not disputed that early in 2015, Ms Goff moved out of the retirement village and into a nursing home.

Issues in dispute

1. The key issues in dispute in this claim are as follows:

   a)the proper legal characterisation of the contractual arrangement between the applicant and the respondents, or either of them. In particular, whether the applicant was engaged as an independent contractor or an employee;

   b)who are the parties to any such contractual arrangement with the applicant?; and

   c)if she was an employee, what are her entitlements under the SCHCDS Award or any other applicable award?

2. I will deal with each of these issues in turn.

Nature of the relationship

1. It is clear that the applicant was engaged to provide care to Ms Goff.  The primary issue is whether she was engaged to provide those services as an independent contractor or as an employee. 

2. In the Full Court of the Federal Court decision in

   
   ACE Insurance Ltd v Trifunovski

   ,[21] Buchanan J, with whom

   
   

   Lander and Robertson JJ agreed, reviewed the authorities which have considered the approach taken by courts to determine whether a person providing personal services to another for reward, does so in the capacity as an employee or an independent contractor. 

   [21] (2013) 209 FCR 146.

3. It is clear from those cases that, in considering whether a person is properly characterised as an employee or an independent contractor, no single factor will be determinative on its own but rather that the court applies a multifactorial test.

4. Importantly, any express characterisation of the nature of the relationship will not be determinative, although that will be one of the factors to which regard must be had.

1. In addition to any expressly stated intention of the parties, the other factors which are relevant in determining the true nature of the relationship include, but are not limited to:

   a)the extent to which the putative employer has control over the work performed;[22]

   b)mode of remuneration;

   c)provision and maintenance of equipment;

   d)hours of work;

   e)provision of leave;

   f)deduction of tax and provision of superannuation;

   g)obligation to work; and

   h)ability of the putative employee to delegate their duties.

   [22] This includes the right to control so far as there is scope for it: Zujis v Wirth Bros Pty Ltd (1955) 93 CLR 561 at CLR 571-2.

2. As noted by the Full Bench of Fair Work Australia as it then was in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario:

   …the FW Act imposes obligations on employers in relation to their ‘employees’ and confers benefits and rights on ‘employees’ without defining when a worker is an employee as distinct from an independent contractor. The definition of ‘employee’ leaves it to the general law to supply that distinction. [23]

   [23] [2011] FWAFB 8307 at paragraph 25.

3. In some cases, there has been reference to whether the putative employee runs his or her own business or is engaged intrinsically in the business of the putative employer. Leaving aside the benefits of considering this as a separate factor,[24] in any event in this case, the work provided by the applicant was provided to an individual, namely Ms Goff. Any focus on whether the work performed by the applicant constituted a business in its own right or formed part of any business conducted by the respondents or either of them (on their own behalf or on behalf of another) is not of assistance in determining the true nature of the relationship in this case. 

   [24] See comments of Jessup J in Tattsbet Limited v Morrow [2015] FCAFC 62 at paragraph 62; when commenting on the full court decision in Workplace Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCFCA 37.

4. The respondents did not, either on their own account or on behalf of Ms Goff, run a business. Rather, they were acting altruistically in engaging support for Ms Goff to allow her to remain living as independently as she was able in her unit at the retirement village.

5. I will now turn to address each of the other factors in turn.  

Parties’ intention

1. Much evidence was given by the parties about their intention when they entered into the arrangement.

2. The applicant stated that there was no discussion about whether she was to be engaged under an independent contractor arrangement at either meeting on 4 or 7 September 2014. In addition, the applicant says, she was only provided with the terms and conditions of engagement after her meeting with the first respondent on

   
   

   7 September 2014. She stated that, on the basis of the advertisement, that she responded to, the discussions she had with the first respondent and the email of 5 September 2014 which referred to an

   
   

   ‘employment agreement’, it was her understanding that she was entering into an employment arrangement and at no stage did the first respondent explain that what was being offered was an independent contractor arrangement.

3. The applicant further stated that, she responded to an advertisement for a job, was interviewed and engaged and that this is consistent, in her view, with the establishment of an employment relationship. She gave evidence that at no stage until she queried the provision of pay slips (towards the end of or after the engagement had come to an end) did the respondents indicate that they did not consider themselves to be her employer, rather, that she was an independent contractor.

4. The respondents gave evidence that it was never their intention to employ the applicant. The first respondent says they she was simply engaging the services of a carer as an independent contractor on behalf of Ms Goff. The respondents state that the contract with the applicant was partly oral, partly in writing and partly to be implied.

5. To the extent that it was oral, the first respondent gave evidence that when she met with the applicant on 7 September 2014, she explained her mother’s financial circumstances and that there was a budget for the provision of care and that it was within the context of that budget that the contract position was being offered.

6. To the extent that it was in writing, the first respondent points to:

   a)the terms and conditions, which she provided to the applicant on 7 September 2014 providing:

   ‘working terms and conditions for an independent contractor live in care giver to Kathleen Goff.’ (emphasis added);

   …

   Payment is $1000 for each 7 days on …(no tax or super is taken out); and

   There is flexibility with changing days and with the other independent caregiver.  Sherryn Dales with a mutual agreement or if you have an important function/appointment…’ and

   b)the applicant’s email in response on 7 September 2014, in which she says ‘thanks for all the information and meeting with me.  I think it will all work out wonderfully.’

7. The applicant gave evidence that, she had previously provided services as an independent contractor to BHP. It is apparent from her evidence therefore that she had an understanding of the distinction between an employment relationship and an independent contractor relationship, even if this was only at a rudimentary level. Irrespective of any confusion which she says she may have had arising from the terms of the advertisement or from her interview with the first respondent on

   
   

   7 September 2014, it is clear from the terms and conditions provided to her by email on 7 September 2014, that the respondents’ intention was to offer a contract position with payment only being made for the

   
   

   7 days that the carer worked with no superannuation to be paid or tax deducted. 

8. I find that, there is insufficient evidence on which to conclude that the parties had a common intention as to the nature of the engagement of the applicant. I do find that for her part, the first respondent’s intention was to engage someone as a contractor to provide care for her mother. She sought to make this clear in the terms and conditions she provided to the applicant. I also find that the applicant did not challenge this at any time until she gave notice of her intention to bring the relationship to an end or shortly before that.

Degree of control

1. The applicant points to the care duties guidelines document (“guidelines”) as evidence of the level of control that the

   
   

   first respondent exercised over the manner in which she performed her role. 

2. The first respondent denied that she exercised control over the manner in which the applicant undertook her duties when caring for Ms Goff. She stated that the guidelines simply outlined the various tasks which needed to be performed in caring for Ms Goff. Having regard to the fact that Ms Goff was a 91 year old woman with various medical conditions, I am not satisfied that the guidelines were evidence of control over the manner in which the applicant was to perform her duties. Indeed, I note that the guidelines were not confined to the tasks which the applicant (or the alternate carer) were to perform but also addressed those tasks which the Arcare workers performed as well.

3. The first respondent also gave evidence, which was conceded by the applicant, that the applicant delegated some of the tasks which she (and the alternate carer) had been undertaking to the Arcare workers.  The first respondent pointed to this as evidence both as to the lack of control that she exercised over the work performed by the applicant and as to the power to delegate, which I deal with below.

4. The first respondent also gave evidence that the applicant had significant flexibility in so far as determining what activities Ms Goff engaged in or what outings she arranged for Ms Goff whilst she was in the applicant’s care.

5. Having regard to the manner in which the respondents organised care for Ms Goff and in particular, the increasing tensions with the RVM, it appears that the respondents’ overriding concern was for Ms Goff to have someone physically with her at all times so that she could continue to live in her home.

Mode of remuneration

1. The arrangement entered into with the applicant was that she would be paid a set rate for each 7 days worked. 

2. This arrangement, in fact did not entirely eventuate as prior to her commencing in her role, it was agreed between her, the

   
   

   first respondent and the alternate carer that rather than staying with

   
   

   Ms Goff for seven days straight without a break, the alternate carer would do Thursday (and Thursday evening) in the applicant’s week and that the applicant would do Thursday (and Thursday evening) in the alternate carer’s week. Notwithstanding this change, the respondents continued to pay the applicant as if she was working seven days on and then having seven days off without a break. 

3. Subject to this, it is also common ground that, the applicant was not paid for the period during which the respondents stayed with Ms Goff and cared for her. The first respondent advised the applicant by email on 7 September 2014, i.e. before she commenced in the role, that she and the second respondent would be returning to stay with Ms Goff for a week commencing 26 October 2014, which coincided with the end of the trial period. This was confirmed by the first respondent in an email the applicant dated 25 September 2014. 

4. It was specified in the terms and conditions document that no tax would be deducted in respect of any payments to the applicant nor would any superannuation be paid.

5. Payment was made to the applicant consistent with the terms and conditions.

Provision and maintenance of equipment

1. It is not disputed that the applicant provided her own car to transport Ms Goff to and from her appointments and activities. She received

   
   

   $50 per week towards transport costs, but otherwise was required to maintain her own car and ensure it was appropriately insured.

2. The applicant did not otherwise provide any equipment required to carry out the duties of her role. 

Hours of work

1. There is a lack of clear evidence about exactly what hours the applicant “worked”. What is apparent from the evidence is that the respondents engaged two carers, the applicant and Ms Dales. They effectively shared the responsibility to live with and care for Ms Goff largely on a week about basis (other than the Thursday as discussed above and when the respondents attended and lived with Ms Goff).

2. In addition, during each week there were times when government funded care was provided to Ms Goff (12.5 hours per week) and when she attended activities at two community based centres. 

3. With the exception of the time when Arcare staff were present or when Ms Goff attended community based activities, the applicant and the alternate carer were required to be present in the retirement village with Ms Goff. 

4. There was a significant amount of dispute between the parties about exactly what was required of the applicant whilst in attendance with Ms Goff and the extent to which she was occupied in the care of

   
   

   Ms Goff such that she could not relax and/or attend to other personal activities. 

5. In particular, the respondents each gave evidence that Ms Goff was well settled in her unit and oriented and could get around independently. Indeed that was the very reason for putting in place these arrangements, to allow her to continue to live in her own home.  The respondents each gave evidence, having themselves frequently stayed with Ms Goff in the unit and cared for her, of the “work” involved. They gave evidence that the role was largely one of companionship for Ms Goff and that there were frequent periods during the day when Ms Goff would rest or watch television, where the applicant could also have a break and if necessary attend to her personal affairs, in the same way as if she were in her own home.

6. The applicant disputed this characterisation and said that when she was at Ms Goff’s home, and other than when the Arcare workers were in attendance or Ms Goff was at a community activity, she was responsible for Ms Goff’s wellbeing and was actively engaged in her care. 

7. The applicant particularly stated that because of Ms Goff’s condition, she was repeatedly up during the night when she slept over at

   
   

   Ms Goff’s unit and that she had a duty of care to be up and check on Ms Goff.

8. The first respondent stated that, she had told the applicant that unless Ms Goff called out to her during the night, she should sleep and not be concerned about Ms Goff as she was well settled in her unit. The

   
   

   first respondent did indicate that Ms Goff did sometimes wake during the night and walk around the unit but that was not of any concern.  She gave evidence that she told the applicant that if the applicant was up at night she could check on Ms Goff but that she was not required to get up each time Ms Goff woke up. I note that the guidelines do not specify any particular care to be provided at night time. 

Leave, taxation and superannuation

1. It is common ground that, the applicant was not provided with leave or superannuation, nor was tax deducted from her pay. 

Obligation to work and ability to delegate

1. The applicant stated that other than when the Arcare staff were in attendance with Ms Goff or when Ms Goff was at one of the community activities, she was required to perform her duties and that she did not have the ability to delegate her functions.

2. The applicant pointed to the screening process that she went through before being appointed to the role and put to the first respondent that she was not permitted to simply delegate her carer role to someone else. 

3. The first respondent disputed this and made the following points:

   a)the applicant was free to swap times with the alternate carer and indeed did so from time to time. She pointed to the terms and conditions which relevantly state:

   There is flexibility with changing days with the other independent caregiver Sherryn Dales with a mutual agreement or if you have an important function/appointment.  Please just inform me of the outcome when you have negotiated the change between both of you;

   b)the applicant herself gave evidence that on one occasion, she had to attend to a personal matter – someone was coming to her home to collect some tyres that she had sold – and she arranged for Ms Dales to come and stay with Ms Goff over lunch time to allow her to do so;

   c)the applicant was free to, and in fact did, delegate some of the care roles to the Arcare staff; and

   d)if the applicant wanted to delegate any part of her role to a third party, the first respondent gave evidence that she would be amenable to that, provided she had the opportunity to screen that person to ensure that he or she had an appropriate rapport with Ms Goff.

4. In response, the applicant said that the reference in the terms and conditions document to swapping with the other carer only related to circumstances where either of them had an ‘important function/appointment,’ and that it was not a general power to “swap.”

5. I do not accept this interpretation of the terms and conditions document.  It is clear on the face of that document that its intention was for there to be flexibility between the carers to swap days provided there is mutual agreement. The existence of an important function or appointment is but one example of a circumstance where such an agreement may be reached.

6. Moreover, it is clear from the applicant’s own evidence that she in fact did call upon the alternate carer to step in for her on occasion. The fact that on her evidence this was only for an hour or so is inconsequential. 

Other factors

1. As stated above, the list of factors identified above is not exhaustive.  Another relevant factor in this particular case is the circumstances in which the engagement was entered into and the fact that it was intended to be of a short, albeit undefined duration. 

2. As stated above, the need for the respondents to engage a live in carer arose because of the growing tension with management at the RVM where Ms Goff was living. This resulted in an application by the RVM to VCAT seeking the appointment of the OPA as Ms Goff’s guardian. The OPA expressed the following view in her report to VCAT dated 9 July 2014:

   I formed the view, there are many personal benefits to Kathleen Goff remaining in her unit.  It would seem to me if she relocated at this stage to residential care against her wish, she would experience a significant loss of independence and would mourn her dog. …

   I believe, that Kathleen Goff does require carers or family members to be with her during the day and at night and if this did not occur then due to short term memory loss, some disorientation and confusion she would be at significant risk living alone.

   As delegated guardian, I made a decision that currently because Kathleen Goff does have carers or family members staying with her during the day and at night, she is suitably placed at Mornington Retirement Village.  I understand that if Kathleen Goff had a serious fall for example this accommodation decision may need to change.[25]

   [25] First respondent’s affidavit sworn 23 October 2017 at annexure JC-2.

3. It was against this background that the advertisement was placed in the local paper for a short term live in carer for Ms Goff to which the applicant responded. 

Conclusion regarding status of the relationship

1. As is evident from the authorities referred to above, no one indicia is determinative of the nature of the relationship. Rather, as was noted by his Honour Chief Justice Allsop in Tattsbet Limited v Morrow[26] after referring to the reasoning in Lehigh:[27]

   The statutory and factual context will always be critical in a multifactorial process of characterisation of a legal and human relationship: employment. Whose business or enterprise is being carried on may be critical. It was important in Lehigh.  It may not, however, lessen the importance in another case of an arrangement for the provision of labour by someone who is a sole trader who wishes, or is prepared to bargain for, or accept, a sufficient degree of independence that tends to deny a characterisation of employment in all the circumstances, including the relevant statute.

   [26][2014] FCAFC 62 at paragraph 5; 233 FCR 46; 321 ALR 305; 249 IR 440.

   [27]Lehigh Valley Coal Co v Yensavage 218 Fed 547 (1914 2^nd CCA).

2. On balance, having regard to all the relevant factors identified above,

   
   

   I find that the relationship between the applicant and the

   
   

   first respondent (acting on behalf of Ms Goff) was one of principal and independent contractor. I have had particular regard to the following:

   a)the flexibility which the applicant had in determining the manner in which she performed her duties;

   b)the applicant’s capacity to delegate her duties to the alternate carer, which she did from time to time; and

   c)the express terms of the terms and conditions which was provided to the applicant on 7 September 2014 and which, by her conduct, she accepted.

3. Although there was general guidance given regarding the aspects of care Ms Goff required on the guidelines, these tasks did not need to be performed by the applicant (or the alternate carer). To that extent, the guidelines document is not evidence of the direction and control that the applicant was subject to. The absence of control in this sense is a significant indicator of an independent contract relationship.

4. Other factors which support a finding of an independent contract relationship include the fact that the applicant could delegate her duties both to the Arcare workers and the alternate carer and indeed did so as discussed above.

5. In addition, the documentation provided to the applicant at the outset was consistent with an independent contract arrangement, as was the fact that no tax was deducted and no leave or superannuation provided.

Who are the parties to any such contractual arrangement with the applicant?

1. I also find on the basis of the evidence before this court that the contract entered into was between the applicant and the first respondent. There is no evidence that any negotiations were conducted by the second respondent. To the extent that the second respondent paid the applicant for her services, he did so at the request and direction of the first respondent.

If she was an employee, what are her entitlements under the SCHCDS Award?

1. Having come to the conclusions set out above in relation to the nature of the relationship, it follows that as the applicant was not an employee, she has no entitlements under the SCHCDS Award. 

Conclusion

1. For the reasons set out in this judgment I shall make an order that the application filed in this proceeding is dismissed.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date:  1 February 2018

Fair Work Regulations 2009
(“FW Regulations”).