Paterson v State of South Australia
[1996] IRCA 380
•19 Jul 1996
DECISION NO: 380/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether the relationship between the parties was of an employer and employee or principal and contractor
INDUSTRIAL RELATIONS ACT 1988, s.170EA
PATERSON V STATE OF SOUTH AUSTRALIA
No.SA95/1733
JUDICIAL REGISTRAR : LJ FARRELL
PLACE : ADELAIDE
DATE : 19 JULY 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.SA95/1733
B E T W E E N
BARRY WILLIAM PATERSON
Applicant
AND
STATE OF SOUTH AUSTRALIA
Respondent
MINUTES OF ORDER
BEFORE : JUDICIAL REGISTRAR LJ FARRELL
PLACE : ADELAIDE
DATE : 19 JULY 1996
THE COURT ORDERS THAT:
This Application be set down for hearing on the substantive issue at the earliest possible time.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No.SA95/1733
B E T W E E N
BARRY WILLIAM PATERSON
Applicant
AND
STATE OF SOUTH AUSTRALIA
Respondent
BEFORE : JUDICIAL REGISTRAR LJ FARRELL
PLACE : ADELAIDE
DATE : 19 JULY 1996
REASONS FOR JUDGMENT
This is an application pursuant to S170EA of the Industrial Relations Act. The parties have requested that I determine the preliminary issue of whether the Applicant is an employee for the purposes of Part VIA, Division 3 of the Act. The Respondent contends that the Applicant is an independent contractor and therefore excluded from the protection of the Act.
The facts in this matter are as follows;
The Applicant operated a business as a self employed truck driver prior to the relationship commencing with the Respondent.
The Applicant’s relationship with the Respondent commenced in 1978 soon after he approached an employee of the Respondent seeking work. The relationship continued without a break (other than the usual breaks of the road gang or because of illness of the Applicant) until late in 1995.
2
Initially the Applicant’s duties mostly involved driving his truck to assist with various road building projects around Adelaide. Over the years the Applicant was required to perform labouring duties for the Respondent. There is some discrepancy between the Applicant’s evidence and that of Mr Vogelsang, his supervisor, as to the actual amount of labouring work. However it is clear that by 1995 the amount of labouring work being performed by the Applicant was in the vicinity of fifty percent of his duties.
The Applicant was paid an hourly rate regardless of what duties he performed as well as a daily variable amount for mileage.
The hourly rate he was paid was more than double that of labourers engaged on the road gangs.
The Applicant could be sent home after 2 hours if there was no work.
He was not paid sick leave or annual leave.
He was provided with some safety equipment.
He used his own truck whilst performing carting duties but used the Respondent’s equipment when performing labouring duties.
He paid insurance premiums on his truck. He did not self insure his labour.
Taxation deductions were made from his pay in accordance with the Prescribed Payments System.
He was covered by the Respondent, at least since the introduction of the Workers Rehabilitation and Compensation Act (1985), for any compensable injury.
He held himself out to the Australian Taxation Office as an independent contractor operating a business and claimed deductions for expenses that were very much higher than what would be expected for an employee.
The Applicant worked the same hours that the road gangs worked, he did not work when the gangs were on a rostered day off.
The Applicant owned a number of trucks, however at any given time he only used one truck in performing his duties for the Respondent.
The Applicant was subject to the control of the supervisor of the road gang.
There was a difference between what the Applicant actually did, and what he was required by the Respondent to do. He worked for no one except the Respondent, but the Respondent did not require it of him. He did not (except briefly in the early
3
years) operate as a partnership, although the Respondent was indifferent as to whether he did. He did not send anyone to work in his place if he was sick or unavailable, although the Respondent has allowed that to occur in relation to other truck drivers.
Much of the evidence put before me to suggest that the Applicant was an employee of the Respondent did not actually go towards proving anything about the relationship between the Respondent and the Applicant.
It is clear on the evidence before me that the Applicant and other truck drivers like him were engaged on a very different basis to that of the labourers employed on the road gangs.
However it seems to me that the following factors determine the issue here.
The way in which road works are conducted.
The lack of breaks and the length of the relationship between the Respondent and the Applicant.
The regular, close and consistent nature of the relationship between the Respondent, through its roads supervisor, and the Applicant.
In my view these factors point to a relationship that was more akin to a relationship of employee and employer than principal and contractor.
In my view the preliminary issue must be determined in favour of the Applicant. I therefore order that this matter be set down for hearing on the substantive issue at the earliest possible time.
I certify that this and the preceding two pages are a true copy of my Reasons for Judgment.
DATES OF HEARING : 16 & 17 MAY, 14 & 19 JUNE 1996
FOR THE APPLICANT : MS M KAUKAS
FOR THE RESPONDENT : MR J HANKIN
0
0
0