Price, Leonard Charles v Grant Industries Pty Ltd

CATCWiO3DS

Indus t r ia l l aw

- Breach of award - Right to hol iday pay

Employee o r independenz conLractor

- Remuneration t o be

earned by supplying work and skill o r producmg an end

- Conci l ia t ion and Arbi t ra t ion

Act

19OL s.119

Leonard Charles Price v.

Grant Industr ies Pty.

Ltd.

! .

V No. 7 o f 1978

Coram: Smithers,

Evatt

and

Keely

JJ.

10 August 1978

Melbourne

’

I N	T H E	FEDERAL COURT OF AUSTRALIA	)
)

I N D U S T R I A L D I V I S I O Y	)	V	N o .	7	of	1978
)

V I C T O R I A

D I S T R I C T

R E G I S T R Y

I N THE

MATTER

THE

CONCILIATION

AND ARBITRATION

ACT

1904

B E T W E E N :

LEONARD

CHARLES

P R I C E

C l a i m a n t

AND

GRANT INDUSTRIES

PTY.

LTD.

R e s p o n d e n t

O R D E R

JUDGES MAKING ORDER:

SMITHERS,

EVATT

and KEELY JJ.

DATE:

10 A u g i x t 1978

WHERE

MADE:

M e l b o u r n e

THE COURT

ORDERS

THAT:

The

s u m m o n s herein be

d i s m i s s e d .

I N THE FEDERAL COURT OF A U S T W I A )

I N D U S T R I A L

D I V I S I O N

No.

7 of 1978

V I C T O R I A D I S T R I C T R E G I S T R Y

I N THE MATTER OF THE CONCILIATION

AND ARBITRATION ACT 1904

< \

B E T W E E N :

LEONARD CHARLES	PRICE
C l a i m a n t
A N D

GRANT INDUSTRIES PTY. LTD.

R e s p o n d e n t

CORAM:

S m i t h e r s , Evatt

and K e e l y JJ.

10 A u g u s t 1978

I	FZASONS FOR JUDGNENT

This is the return of

a summons brought pursuant to

s.119 of the Conciliation and Arbitration Act

L904 (the Act) by

Leonard Charles Price seeking

an order that

a penalty be imposed

upon the respondent Grant Industries Pty. Limited

n hat the

respondent on 23 December 1977 at Nunawading

in the State of

Victoria committed

a breach of the F'urnlshing Trades (Con-

solidated) Award 1975 by failing to pay to the claimant

pursuant to

c1.28(e)(ii)

of the said Award the appropriate rate

of wages as prescribed by

c1.28(h)

and (i) in respect of thP

period of the claiqant's annual leave commencing	on 23
December 1977.

It was conceded that the respondent company, being at

all relevant times

a member of the Victorian Chamber of

Manufactures, a party to the Award, was bound by the said

Award. The claimant alleged that

at all material times

he was

a member of the Federated Furnishing Trade Society of

Australasia (the organization) an organization of employees

registered under the Act, that the organization was

a party

to the Award and that he was employed by the respondent. The

respondent denied the employment and further contended that 'the

claimant was not entitled to be	a member of the organization.
C1.4 of the Award reads:

"4. PARTIES BOUND

This award shall be binding upon the Federated Furnishing Trade Society of Australasia and on the members thereof and upon the organisations of employers and the members thereof and the persons, firms and companies whose names are

set out

in Schedule "Bb1 to this award

in respect

of the mployment by them in the States of South

Australia, Victoria

m d Tasmania of all their

employees, whether members of the said Society

r not"

For a number o€ years there has been

in existence a

contract between the claimant and the respondent (Grants)

' .

pursuant to which the claimant has

earned and recelved

remuneration from Grants

m respect

of tasks performed

him in and about transporting from Grants' factory to various

locations pre-fabricated parts

of wardrobes and assembling

such parts at such locations and carrying out certain other

related activities.

The problem

in this case is to ascertain whether at the

end of December 1977 the relationship between the claimant and

Grants arising out of that contract was one

of employer and

employee or of llemployer" (hereinafter called llentrepreneurll) and

independent contractor. The proper characterisation of the

relationship is determined as

a matter of

law once the relevant

provisions of the contract are ascertained. Those provisions

may be express

o r implied from circumstances including the conduct

of the parties in the implementation of the contract.

It is

legitimate for the parties to expressly declare that their

contract is one of service

or one €or services, and provided

that that declaration is not

in conflict with other provisions

of the contract

it will determine the character of the relation-

ship, see

a recent decision of the Privy Council

A.M.P. Society

v. Chaplin e( Ors (1978) 18 A.L.R.

385. It would appear

that the essence

of a contract which creates the relationshlp

of employer and employee

is that it is

a contract for the

supply of work and skill of

a man.

On the other hand the essence

of a contract which creates the relationship of entrepreneur

and independent contractor is that it is a contract under which

the contractor performs his obligatlons not by the performance

of work but by producing

an end result, albeit the end result

is a consequence of the performance of

work, and that such

performance was something contemplated

by the parties.

The	phrase Ilcontract of service" expresses clearly

enough

the c r i t i ca l e l emen t

cont rac t

so descr ibed,

namely

that what is t o be supplied

i s serv ice .

But t o speak of

cont rac t for se rv ices does not wi th the

same

c l a r i t y i n d i c a t e

t h a t what

t o be supplied

i s no t s e rv i ce pe r s e bu t t he

end r e s u l t of

some a c t i v i t y .

It was

s a i d by Latham C.J .

i n Humberstone v. Northern Timber	Mills	(1945)	79	C.L.X.
389 a t 396:-

"If the work done by one person f o r another is done

sub jec t t o the con t ro l and d i r e c t i o n of t h e l a t t e r

person as t o t h e

manner

i n which it i s t o be done

the worker

is a

servant and not an independent

cont rac tor .

If, however,

the

person

doing

the

work

agrees only to produce

g i v e n r e s u l t b u t

i s no t

subjec t

t o c o n t r o l

i n t h e

actual execut ion of the

work he i s an independent cont rac tor .

i s worth

noting thar. i n t h i s e x p o s i t i o n

his Honour

refers t o t h e

status of servant

as that which

e x i s t s where

work

is done by

one person for another ,

and t o t h e s t a t u s

o f independent contractor

as tha t which

e x i s t s i n a

s i t u a t i o n i n which work

i s done not pursuant

t o a promise

t o do work,

bu t pu r suan t t o

a promise t o produce a given

r e s u l t .

In this l a t t e r s i t ua t ion r emunera t ion

will

payable not

f o r work

b u t f o r t h e g i v e n r e s u l t .

t h e

same c a s e a t page /to4 Dixon J. as he then

was said:-

"The

quest ion i s not whether

i n p rac t i ce the

work was

i n f a c t done

s u b j e c t t o

d i r e c t i o n and

cont ro l

exercised by an

ac tua l superv is ion

o r whether an actuai

supervis ion

was

possible but whether ul t imate

author i ty over the

man

i n t h e performance of

h i s

work res ided in the employer

so t h a t h e

was

s u b j e c t t o t h e l a t t e r ' s o r d e r s

and

d i rec t ions ."

His

Honour

pointed out

that

the cont rac t

i n t h a t c a s e

was

cont rac t

the deceased to provide not merely his

own

labour but the use of heavy mechanical transport driven

power which

he maintained and fuel led for that purpose

and

that

the most

s i g n i f i c a n t p a r t

t h e work

t o be performed

his

ovm

l abour cons i s t ed in the ope ra t ion

h i s own

motor t ruck and tha t the essent ia l par t o f the serv ice for

which the

respondent contracted

was

the

t r anspor t a t ion

i t s goods by the

mechanical

means he

thus

supplied.

He addsd:-

"The essence of

a contract of service

i s the supply of

the work and s k i l l of

a man. But t h e emphasis i n t h e

case of

t he p re sen t con t r ac t

i s upon

mechanical

t rac t ion . This

was

t o be

done

h i s

ovm

property

i n h i s

own

possession and control. There

i s no

ground

f o r imputing t o t h e p a r t i e s

common

i n t e n t i o n t h a t

i n a l l t h e management

and control of

h i s ovm vehic le ,

i n a l l t h e ways

he used

it f o r

the purpose of carrying

t h e n goods,he should

sub ' ec t t o t he	commands	of the respondentst1.(79CLR	a t 404-
405 3

u s e f u l t o n o t e t h a t

i n tha t ca se the

llr*~orkerfl

had

o r ig ina l ly been

c a r r i e r p r e p a r e d t o c a r r y

goods

f o r

anybody who sought

his

services.

Since

1924

however,

had

ca r r i ed goods

so l e ly fo r t he r e sponden t

firm,

except

i n a

few instances

i n which,

a f t e r hav ing de l ive red the

respondent 's

goods

t o i t s

customers, he carried back loads

a t their

request .

mentioned to

the

respondent

tha t

was

doing s o ,

but he

d id not account for any

moneys

t h a t

might

have

received

account of

the

back

loads.

his work

f o r the respondent he used his

ovm

motor truck

and he bore the cost

i ts

maintenance, including the cost

p e t r o l consumed.

took out

a ca r r i e r ' s

l i cence annua l ly

i n h i s own name

and had painted

on h i s t r u c k h i s

own name

wi th

the descr ip t ion Varr ie r l ' .

each

working

day

at tended a t the respondent 's premises

a t t h e same

time and

worked

s u b s t a n t i a l l y t h e

same

hours,

but

t he re was

evidence that he

was bound t o do so.

He was paid weekly

weight and mileage basis.

The

f a c t s i n the instant case have

some

f e a t u r e s i n

common

with

those of Humberstone's Case (supra)

but

i n t h i s c a s e

t h e

added

fea ture

ex is t s

that

i n a d d i t i o n

t o

t r a n s p o r t i n g

thepre-fabricated wardrobe parts the claimant undertook

t o assemble

them

and ca r ry ou t o the r r e l a t ed ac t iv i t i e s .

The

facts i n th i s case

a l s o have

f e a t u r e s similar

t o

those in Ho i s t Re ta i l e r s P ty .

Ltd .

Cragg

(1964-65)

N.S.W.R.

1363

That was a case i n which the

defendant

agreed

wi th a householder

supply,

assemble

and

instal

c lo thes

h o i s t

a t h e r home.

The

a c t u a l i n s t a l l a t i o n

was

ca r r i ed

out

person engaged

t h e d e f e n d a n t t o i n s t a l h o i s t s

ordered by

customers. That person had his

own

vehicle and pa id

the running cos ts thereof , p rovided h is

own

tools , had

n o

fixed hours of work,

was

pa id

f ixed amount

f o r each instal l -

a t ion and was pa ld on a monthly basis.

No tax deductions were

made	from payments and no worker's compensation policy relating

t o him had

been

obtained

the

defendant.

Completed

i n s t a l l a t i o n s

were

inspected

number

occasions

by the

-defendant

and

the

instal ler

vrould

sen t back

t o r e c t i f y

any

in s t ance o f f au l ty

workmanship.

The

h o i s t h a v i n g f a l l e n

t h e

plaintiff

severe ly ln jur ing her ,

she sued the defendant for

damages

fo r pe r sona l i n ju ry a l l eg ing

that t h e i n s t a l l e r

was

negligent and

was

servant of the

defendant

and no t an independent contractor.

The

ac t ion

was

t r i e d b e f o r e

Judge

and

jury.

The Judge l e f t t o

the jury the ques t ion

t o whether the defendant

exercised

suyficient . measure of control over the instal ler

i n the doing of his

work

t o c o n s t i t u t e t h e i n s t a l l e r a n

employeeof the defendant.

The

jury

re turned a ve rd ic t

f o r t h e p l a i n t i f f .

Upon

appeal

it was

contended

t h a t t h e r e

was

i n s u f f i c i e n t e v i d e n c e t o j u s t i f y

f i n d i n g t h a t t h e i n s t a l l e r

was an employee of the defendant .

It was he ld by t h e Full Court

of t h e Supreme Court of

New South Wales t h a t on the evidence

was

open

t o t h e j u r y t o f i n d

that

t h e i n s t a l l e r

was

the

employee of the-defendant.

i s t o be no ted tha t i n the

judgment of Herron

C.J.

( a t p .

1367) importance was a t tached

t o

t h e

f a c t

t h a t

t h e r e

was

good

deal

evidence

given by

The

s a l e s manager fo r t he appe lxan t t o

show

that t h e

company

retained, through him,a

measure of control which

i s

s ign i f i can t " .

f u r t h e r a p p e a l i n

this

c a s e t o t h e

High

Court

(see

(.1965))39 A.L.J.R.

120)

the

Court

dlsmissed

the

appeal.

The

majority of the Court agreed

with

Barwick

C . J .

who

s t a t e d

t h a t

hekmust

no t be

taken

accept ing

the

whole of

the reasons

o€

t h e Supreme

Court

for d i smiss ing

t h e a p p e a l t o i t , n o r t o

dec id ing tha t the i ssue

t o

employment which was presented to the jury was a critical

I	issue in theestablishment of the appellant‘s liability to the respondent for the damage resulting from the condition of the clothes hoist as installed.

It would appear that the suggestion is that the

defendant’s liability may well have arisen out of its

undertaking t o instal. the clothes hoist which would

inevitably involve

an undertaking to instal it properly.

On this basis the judgment would have gone against the

defendant whether

o r not the person who installed the

hoist was the employee of the defendant. It

is apparent

therefore that the decision

in Hoist Retailers Pty. Ltd.

Cragg (supra) is of limited significance in the present case.

’

In particular it may be noted that

in the reasons for

the judgment in the Full Court there was

no discussion of

the significance of there being

a fixed price

f o r each

installation.

. _

It is necessary to state the background and main

featuros of the contract between the claimant and Grants.

For many

years

Grants

had

carried

the business of selling to retailers, such as the by itself on the basis that such wardrobes were to be

installed as free standing units

in the premises of persons

who agreed to buy such wardrobes from the retailer at

retail prices. Business along these lines	is still being
conducted.

Grants conducts a f ac to ry a t Ihnawading a t which it

manufacturespre-fabricated

parts of wardrobes

o f

d i f f e r e n t

designs which

a r e i d e n t i f i e d

by names

and

numbers.

These

parts are manufactured by

workmen

who

a r e c l e a r l y i n a n

employer

andemployee r e l a t ionsh ip with

Grants.

It has been the pract ice

of Grants the wardrobes

that

the ope ra t ions invo lved in the de l ive ry

to the premises

o f

the purchasers thereof and

in assembling and

making them

sr;able on the floor of such

premises are carried out by persons generally referred to

Grants

as con t r ac to r s

and

so r e f e r r e d t o i n t h e s e

reasons.

The number of such contractors employed

Grants

has

var ied but normally i n recent times has been about seven.

The

pract ice has been that

be ing no t i f i ed

r e t a i l e r s

sa les to cus tomers of par t icu lar types of robes

and

or^

the

names

and addresses of those customers and perhaps details

o f

t he des i r ed da t e and t ime fo r i n s t a l l a t ion

robes

a t the i r p remises , Grants

management

would

a l l o c a t e as between

the

seven cont rac tors the task

i n s t a l l a t i o n

of those robes.

Grants

endeavoured

t o a l l o t i n s t a l l a t i o n s a c c o r d i n g t o

locat ion for the convenience of the contractors and also

to ensure tha t each cont rac tor rece ived

f a i r proport ion

of the ava i lab le

work.

endeavour was

a l s o made

to 'provide

t h a t t h e p r o f i t a b l e

and unprof i tab le ins ta l la t ions

were

f a i r ly d i s t r ibu ted .

When

t h e work

was

i n s u f f i c i e n t t o g i v e

a l l t he con t r ac to r s con t inuous

work, days off were,

equal ly as

poss ib le ,

ros te red .

The

i n s t a l l a t i o n s t o

performed by the contractors

were normally

known a day o r

two before the prefabr ica ted par t s of each wardrobe to be ins ta l led	the actual day	for	i n s t a l l a t ions . Ea r ly each	day
by

cont rac tor on t h a t day would be

p l a c e d i n a

rack

a t t h e

f a c t o r y which

was

-a l loca ted t o

that

cont rac tor

h is

rack.

With each rack of par ts

was

a yellow docket informing the

cont rac tor of

the type and co lour of

t he robe to

i n s t a l l e d

a t a

pa r t i cu la r addres s

-Logether with

n o t i f i c a t i o n of

t h e

time

a t which

i n s t a l l a t i o n was

des i red by

the purchaser .

Usual ly four

o r f ive robes

would be

a l loca ted to each

contractor each working

day.

the rack of

each contractor

would be

n o t i f i c a t i o n of

any

repairs of defect ive robes

o r

of any defec t inspec t ions

t o be made by him.

There is no

evidence of

any

express undertaking

any

cont rac tor

that

he would

r egu la r ly ca r ry ou t i n s t a l l a t ions

on working days

of the time he

was

expec ted to a r r ive

a t the f ac to ry

and load

his

t ruck on

any p a r t i c u l a r day.

appears however

that t h e p r a c t i c e

was

that a l l t h e

contractors reported regularly from working

day

t o working

day

and performed

each day the ins ta l la t tons not i f ied

t o them f o r t h a t day.

Some loaded the i r t rucks

and obtained

t h e i r p r e - k b r i c a t e d p a r t s

and

i n s t a l l a t i o n s f o r

p a r t i c u l a r

day on

the la te a f te rnoon of the preceding

day,

and

some

ob ta ined the i r s

a t mid

morning

various days. There had

t o be some c o n t r a c t o r s t o l o a d a t t h e

f l e x i b i l i t y as t h e r e was

no space

for the seven

same

time.

No	express provis ion was made as t o whether o r no t a con-

t rac tor could take days of f bu t

would have caused disruptlon

i n Grants' delivery program

i f

the atTendances of the contractor

were not regular .

If the claimant was unable to work on

-.-

any

was appears to have been understood

h is prac t ice to not i fy Grants and say

why.

day

that

unless

Grants

approved

some

change the con t r ac to r

was

r e q u i r e d t o

those

p a r t i c u l a r t a s k s

which were

a l l o t t e d t o

him

f o r a

p a r t i c u l a r

I 1

day.

was

part

of each contractor 's

work

t o c a r r y o u t

i n s t a l l a t i o n s ,

r e p a i r s

and inspec t ions a t Geelong.

This

was

an una t t rac t ive

part

t h e work

because the monetary

rewards

f o r i n s t a l l a t i o n s

a t Geelong worked

out

t h e

low side,

and

Geelong day

t h e c o n t r a c t o r s t a r t e d o u t

very ear ly

i n the morning and returned

home

l a t e i n

the evening. possible between the contractors .

Grants

allotted

the Geelong days

f a i r l y a s

The tasks performed by the contractors extended

beyond

t h e mere

del ivery, assembly and s tabi l is ing

robes

a t

purchasers '

premises.

It happened

a t

t imes

t ha t

wardrobe which had been

i n s t a l l e d was

defect ive

i n some

way.

This might nappen because

a p a r t was

cracked o r ill

f i t t i n g o r o therwise

fau l ty

o r i n o t h e r

ways

inc luding

faulty

assembly

o r

s t a b i l i s i n g .

When

de fec t s

these

k inds

had

c t i f ied

the

c t i -

f i c a t i o n

was

ca r r i ed

ou t

one

the

contractors .

Usua l ly

t he

c t i f i ca t ion

defects

was

c a r r i e d

out by the

con t r ac to r

ope ra t ing

i n

t h e

v i c i n i t y

t h e premi'ses

concerned

a t

the

a r l i e s t

conven ien t

date .

This contractor might

o r might not be

the

contractor

who

ins ta l led

the defec t ive

robe . Al leged defec ts

would

n o t i f i e d t o G r a n t s e i t h e r

the purchaser

o r t h e

r e t a i l e r .

Sometimes the

informat

ion

the na ture

t he de fec t

was

s u f f i c i e n t t o e n a b l e

con t r ac to r t o

sen t

out with any necessary replacement parts and

what

was

necessa ry

to co r rec t

t he de fec t .

other occasions

prel iminary v i s l t to

inspec t

the robe

was

necessary.

Also

on occasion,

inev i t ab ly happened

t h a t when

the con t r ac to r

ca l l ed a t t he p remises	t o	ins ta l a robe there	was
nobody a t home.

It was a condition

of engagement

as a contractor

that the contractor possessed

and

maintained a suitable

truck and used it a t h i s expense f o r transporting himself

dnd

the pre-fabricated par ts

t o the places

i n s t a l l a t i o n .

kt vas also a term

that he

provided h i s own

t o o l s a s

necessary

f o r instal l ing the wardrobes.

The procedure f o r remuneration of

the cont rac tor

was t h a t each week the cont rac tor

would submit his "account"

f o r payment

i n r e s p e c t

t he t a sks

performed

him

during

the week.

Then o r on the next

day

received a weekly

cheque calculated

according

t o a

scale

of payments.

The

sca le of payments

was

s e t o u t i n

a schedule i n which

spec i f i c

sums

were

spec i f i ed fo r pa r t i cu la r i t ems

t a sks

performed.

Mileage

was

not payable in respect

o f

t r ave l l i ng wi th in

understood

suburban limit. Outside

that limit mileage was

payable

a t a ra te which ,as las t f ixed ,

was

30$

per mile.

For c e r t a i n distant

locat ions such as

Geelong

a f ixed

allowance was provided for .

Typical

sums

s p e c i f i e d i n r e s p e c t

i n s t a l l a t i o n s

c e r t a i n named

models were:-

Madeline

and

Diploma t o 9 f ee t h igh ,

raw

$13.20

f in i shed

14.60

10 f e e t

t o

12 f e e t

raw

15.60

f in i shed

17.10

i ,

Rates i n respec t o f what were called ' Iservice callsI1

were

as f

ollovrs :

', Inspect Robe

$1 -25

Service Robe

2.70

No one home

1.25

Change over

van

and

ends.

6.00

Additional sums were payable

i n respec t of var ious

even tua l i t i e s

follows:-

respec t

f i ve robes o r

i n s t a l l e d on any one

day,	an add i t iona l 60c each

In respec t

c i t y r o b e s ,

add i t iona l $1.25

In respec t In respec t

a l l u p s t a i r s f l a t s , a n a d d i t i o n a l

$2.00

each,

a l l u p s t a i r s ' t l a i r ' ' u n i t s ,

additional $1.15

It was

t h e p r a c t i c e t h a t

i n respec t of

Grants'

robes

i n s t a l l e d by

contractor which the purchaser desired

removed

from one

loca t ion to ano the r , Gran t s

would

quote

a p r i c e f o r such work

and one

t he con t r ac to r s

would

t h e work

and be paid

by the purchaser the

amount

quoted,

t o be his remuneration f o r the

removal.

The claimant had been employed by

Grants

i n

1959/60

a s

a n

employee

i n the

f ac to ry .

was

subsequently employed. elsewhere f o r some years , bu t

hi- new

employer became unable

continue

In business.

The

1 f+

claimant then

communicated with Mr. Venn, the then

manager of Grants.

Mr. Venn gave

evidence

i n

these

proceedings.

The claimant said

that he asked

Mr.

Venn

"is

there any opening to take out pre-fabricated

wardrobes a t Grants? "During

his evidence he

was asked When you

say take them out you mean?". He said "Assemble, and take them to

the

customers and assemble

them".

The

following passage

ensued :

" Q

You said t o Mr.

Venn was

the re any

opening

with Grants?

A	Yes t o come back t o Grants	ac tua l ly .
Q	To do what?

To assemble

wardrobes.

Do you mean t o assemble them a t the

f ac to ry

o r

s i t e ?

No with my truck.

To assemble them on s i t e ?

Yes..

Vhat did

say?

By a l l means come up.

So you went

back

t o work € o r Grants,

do you

remember when t h a t was?

Between 1964 and 1965 but

the exac t da te

could not say.

Since

that

t ime have

you

worked

€or Grants

assembling wardrobes?

Ever

since

that

ime.

When you

went

back

the re

d id anyone

say

anything

about money?

No.

Did you expec t

t o ge t

some

money?

i	'
I I

I hoped sq yes.

I knew t h e s e t up of

Grants, how

they were g e t t i n g paid,

o r the

i n s t a l l e r s were

ge t t ing pa id .

t h e engagement

was

one

c rea t ing the r e l a t ionsh ip

of entrepreneur and independent contractor then

a t l e a s t

it must be each c la im for

p o s s i b l e t o i d e n t i f y t h e

end

resu l t suppor t ing

payment

i n terms of end

r e s u l t r a t h e r t h a n

work i den t i f i ed in t e rms such

done.

A s

t o i n s t a l l a t i o n t h e

end

resul t could be

lrproviding i n a

purchaser ' s

chosen location

an i n s t a l l e d and

s t a b i l i s e d wardrobe of

spec i f i c

model

assembled out of pre-fabricated parts supplied

Grantsrr .

A s

t o t h e r e p a i r s t h e

end

resu l t could be

" ident i f ied as r lprovid ing i n a

wardrobe where

t h e r e were

defec ts acknowledged by

Grants a repaired condi t ion

e f fec tua ted

the use of mater ia ls suppl ied

and

chosen

Grants

a t the genera l s tandard

assembled wardrobes

adopted by

Grantsrr.

A s t o i n s p e c t i o n s t h e

end

r e s u l t

could be "providing

a r epor t on al leged defects of

a robe

i n s t a l l e d i n s p e c i f i e d

premisesI1.

do not see any

insuperable d i f f icu l ty about adopt ing

These

somewhat

to r tuous def in i t ions of

the

end

resu l t s .

The

complexities

n o t r e f l e c t

any incongruity

with

r e a l i t y but

r a the r t he

na ture of the requirements of

Grants whlch were

themselves

determined by

i t s method o f achieving with the

utmost

economy

and convenience the delivery of fully constructed

wardrobes

a t

the residences of purchasers thereof .

ascer ta in the terms of

cont rac t it is necessary

t o

a s c e r t a i n what

were

the provis ions

with

r e s p e c t t o

which

the

p a r t i e s had formed

a common

in ten t ion .

The common mtm?tion

i s to be

ascertained by drawing such inferences as may properly

be drawn from the reievant conversations and relevant in-

cidents in the conduct of the parties relating to the

matters about which they had made their contract. The

ultimate enquiry may well be whether

it can be inferred

from those sourcc-s that the claimant was

t o be

subject to the

control of Grants in doing the work which,

on either view,

had to

be performed

in the course of the engagement,

using that

word in a neutxal sense.

The respor?dent relied, of course, on facets of

the contract of engagement such as:-

the omxship by the claimant of his

own truck

and his responsibility

for its maintenance,

fueling and registration;

the supply by the claimant of

his own tools;

the work of assembling being done away from

Grants' factory;

the large element of cartage

in the work done and that

that was done by the claimant

n his ovm truck;

the remuneration peyable to the claimant

being determined by agreed fixed lump

s for

defined items;

hours not being fixed and the absence of

a y

provision for any payment

f o r overtime;

the general discretion of the claimant to

do the work

in any order he liked save in

special cases;

1 ;

I .

I I

the absence of any actual supervision

and

inspection of any work done;

the freedom of the claimant to perform

carrying and joinery work

for private

persons;

the absence of any obligation in Grants to

supply any work at all unless sales	of wardrobes
had been made;
the absence
holidays ;

of Drovision forDavment

- -

f o r sickness or

Mr. Gray f o r the claimant contended that the issue

should be determined by what he described as the

llcontrolll

test, the l'part of the business"

test, or by balancing the

individual aspects

of the transaction which were indicative

of a contract of service

on the one hand o r of a contract

for services on the other. Thellpart of the business testllwas re-

ferred to by Lord Justice Denning as he then was

in Stevenson

Jordon & Harrison Ltd. v. Macdonald & Evans(1952) 1 TLR 101 at

111 p1her-e he said that

a feature which seems to

run through the

instances is that under

a contract of service a m a n is employeda;

part of a business, whereas under

a contract for services

his work, although done for the business, is not integrated into it but is only accessory to it. Mr. Gray said that in this

case, if

that test is applied, the work performed

o r end

result achieved by the claimant are clearly integrated	L
par-tsof the business of Grants. Of course this Test

will not necessarily

be decisive if the terms of the contract

when ascertained are seen to contain provisions which point

significantly in another direction.

I	.
I

Features which

Mr.

Gray contended were

s lgn l f l can t

as po in t ing

t o an employer and employee

r e l a t ionsh ip

were:-

( a )

t r anspor t

was

but

inc identa l

t o t he

main

t a sk

assembling the robes;

(b)

there

~ was a large

degree

of control

e.g.

how

many

t a sks were

t o be carr ied out

any

p a r t i c u l a r

day and

when

and where;

( C )

the materials u ed assembly in were those of Grants and it was f o r Grants t o specify

what mater ia l s would be assembled

i n any

particular wardrobe;

( 4

the	manner of assembling was determined by

Grants.

Therevras a r i g h t way and

wrong

way

t o assemble and

d iscre t ion in doing

-	the work was minimal;

( e >

t h e r e

was

r e a l freedom

as t o days

o f f ;

(f)

the

’’sacking”

of one of the

assemblers,

one

Coding, demonstrated the right	t o	dismiss
f o r disobedience;

(g>

the

cont rac t was

o f a

continuing

ature

pe r s i s t i ng

from week

t o week

a t l e a s t .

any

o the r view

there would be a

separate

cont rac t

for

each a l lo t ted job ,

and

t h a t

would be

incompatible with payment by

the

week

and other aspects

of? t he

engagement;

(h)

t he re was an

bsence

any

s t ipu la t ion

a s

t o the s t anda rd

completion of

an assembled

wardrobe and	defec ts were cured a t Grants’
expense ;

I	,
1	:

( i )

t h e

t r a n s f e r

t he

c l a iman t

t o

h o u r l y r a t e

when

ill

was

compatible withan employer	and employee
s i tua t ion than o therwise ;

(3 1

adjustments

vere

made i n remuneration

r a t e s when

na t iona l wages

moved;

t h e

name

"Grantsll was

pa in ted on t h e

t rucks of the contractors ;

(1)

t h e r e

was

no r ight t o

s u b s t i t u t e

performance of another

m a n ;

(m)

payment

by r e s u l t s was a recognised

method of

remuneration

of employees

and t h e award provided

that the amount o f

work

to be p rov ided fo r

employers on

p iece

work

r a t e s s h o u l d b e s u f f i c i e n t t o

guarantee award	r a t e ea rn ings	f o r any
week ;

P )

work not

completed

on any

day

was taken

back

and

someone e l s e did i t ;

( 0 )

the

c la imant

was placed by Grants on

tax

deduction terms and provlded with a group

c e r t i f i c a t e .

i s

d e s i r a b l e t o g i v e a t t e n t i o n t o e a c h

of these

items.

A s t o ( a ) t r anspor t a t ion

t h e wardrobe

p a r t s was

i n c i d e n t a l t o &e taskd installing

the

robes

a t the purchaser ' s

premises,

but it vas no t a t r i v i a l i n c i d e n t a l .

It was

I '

maJor element

i n the de l ive ry to the pu rchase r o f

the

wardrobes sold to

them and f o r which Grants

vas respohsible.

Sometimes

involved carkage for long dis tances .

It always

involved

care of the wardrobe.

As t o (b) it is no t c lear that what is said t o hdve been

cont ro l

was

not merely co-operative practlce for the

mutual

convenience of

the

parties.

A s t o ( c ) Ghat is

a l leged 1 s correc t

and

is mater ia l .

A s t o ( d )

s o fa r as

it appears the task

of assembly

did no t so much require

cont ro l as

competence

on t h e p a r t

the cabine t

maker

us ing h i s

judgment

i n f i t t i n g t h e p a r t s t o g e t h e r a c c o r d i n g t o t h e i r

shapes and sizes

and in applying the door handles

and locks

t o make

suitable wardrobe.

A s t o ( e ) t h e r e

was

express term

to the a t tendance t imes

the claimant.

does appear however,

that the claimant regarded himself

as expected t o

a t t e n d

f o r

llworklt

each

working

day and tha t

Grants expected him t o do so.

Also the claimant although

regarcling himself

e n t i t l e d t o i n t e r r u p t

h i s

a t tendance to

seek medical treatment orfor other important causes regarded

himself

as under a duty to inform

G r a n t s ,

i f poss ib le i n

advance.

Also it i s unl ike ly that Grants would have

cont inued to engage the claimant

as an assembler i f it had

no t

been

h is

p rac t i ce to a t t end r egu la r ly to unde r t ake

de l iver ing

and

assembling

the

wardrobes.

These

features

the

engagement

c e r t a i n l y i n j e c t e d i n t o

element of regular hours

A s t o ( f ) the Ilsackingl'

of Cowling i s equivocal.

If the con t r ac t provided by G r a n t s then the Itsacking"

was

one

t o t r a n s p o r t

and

i n s t a l t h e m a t e r i a l s

was merely a termination

the cont rac t

for breach .

t o

(g) ,

c l e a r l y

t h e

llengagementll of the claimant had a continuing character a t

least from week t o week.

t o ( h )

it i s t o be

observed

that

t h e work

involved i n achieving each of the postulated

end r e s u l t s i s exac t ly the

work which would

have been

required t o be performed

i f the claimant

were m euployee

employed t o do work.

There was, no

doubt,

s t i p u l a t i o n

t h a t the wardrobe

as i n s t a l l e d would be

i n t h e form of

wardrobe

r e s u l t i n g

from

the proper assembly of the

parts

supplied by

Grants the re fo r and made

s t a b l e on t h e purchaser's

f loor .

But the pract ice concerning

the corredicm of defects seems t o

have proceeded on the

basis

t h a t d e f e c t s t o

cured would be

those r e su l t i ng

from

some

defec ts i n a p a r t o r some

o her c i rcumstance for which in	any event	Grants	would	be
1

r equ i r ed

to accep t

r e spons ib i l i t y .

There

was

suggestion

i n t h e e v i d e n c e t h a t

i f

contractor carelessly broke

o r

destroyed a part that would be his r e spons ib i l i t y ,

bu-c t h e

thrust of the evidence

was that defects of

which customers

complained would be

r e c t i f i e d a t t h e

expense of

Grants

and

not of the cont rac tor	who	assembled	and	i n s t a l l e d t h e
wardrobe.

appears to

that

this

f e a t u r e p o i n t s

i n two

di rec t ions .

the con t r ac to r

was

respons ib le

for

end

r e s u l t

one might reasonably expect

that

would be

r e q u i r e d t o

make

good

those defec ts

which

r e su l t ed

from

inefficient completion of

what was

involved i n achieving a

non defect ive end resul t

with

the ma te r i a l s supp l i ed to

him.

he was

merely an atployee

there might wel l be la t i tude.

The proper inference

appears t o us

t o be t h a t t h e work

of assembling

and i n s t a l l i n g was

so much the consequence of

the shape

and s ize of

the pre-fabricated parfs that it was

unl ike ly

t ha t

competent

men

could assemble the wardrobe

wi th defec ts no t

due

to the ma te r i a l s supp l i ed

Grants.

In such a

situation

it was

i n a l l p robab i l i t y more

e f f ec t ive

and	l e s s c o s t l y f o r G r a n t s t o a d o p t t h e p r a c t i c e

r e f e r r e d t o

above f o r remedying defects

a t its expense

I	than to a rgue wi th con t rPs to r s i n ind iv idua l ca ses .

A s t o ( i )

and

(j)vJe do

not gain any assistance from

t h e t r a n s f e r

o r

the adjustments

referred

to .

A s

t o ( k )

t he ma t t e r r e fe r r ed to

o f

course

equivocal.

A s t o

(1)

rue

would draw

the i n fe rence

that no

subst i tut ion could be

made without Grants'

approval.

A s t o (m) what is a l leged

is true,

but t he re is no

evidence that any a t t e n t i o n was

ever paid

t h e p a r t i e s t o t h e

award.

A s

t o ( n )

what

is s t a t ed appea r s t o be

i n accordance

with

prac t ice .

seems t o u s however that it was

quite compatible

with t h e

engagement whether

were one of service

o r f o r s e r v i c e s .

could well reflect convenience

i n arranging f o r i n s t a l i -

a t i ons

i n su i t ab le loca t ions

between the various contractors.

A s

t o

( 0 )

it i s an important feature that Grants in about

1966

introduced a procedure whereby

it deducted tax from

the weeklysuns

earned by the claimant

and pa id it t o t h e Commonwealth on

behalf of the claimant according to

what

i s

known

a s t h e

Group

System which

i s appl icable in respec t of

a l l employer

and q b y e e s i t u a t i o n s .

obligation of Grants

introduce

such

a ystem would

e x i s t o n l y

i n respect of

wages

p a i d t o

employees.

In add i t ion

the

in t roduc t ion

t h i s

element

i n to the t r ansac t ion

between

the claimant and Grants

involved

Grants

i n a

consequent ia l f inanc ia l burden for

payro l l tax.

This burden was not

major

proportions

but was

fa r from tri ' r ial .

Why

Grants

introduced this system

i s no t s a t i s f ac to r i ly exp la ined .

it was

said f o r t h e

I	23
I
I

’

respondent that it was for the convenience of the contractors.

We are not convinced about this

and are inclined to believe

that there was some other reason, perhaps pressure from the

Income Tax or Payroll authorjties. However, this is

speculation. The claimant argues that

in introducing the

tax deductions Grants made

n admission that the claimant

and others were employees and that all ambiguities

as to

the relationship between the parties were thereby resolved. operated as an admission by Grants of the nature of the

then relationship between it and the claimant.

What was

admitted was denied in these proceedings which, of course

concern the situation

as at 23 December 1977. The admission

did not operate as an estoppel.

In relation to the penalty

proceedings brought by the claimant the Court

is concerned

to ascertain not what was

at some stage admitted by Grants

but what was the true relationship between the parties.

The

admission forms part of the material by

xvhich the Court

ascertains what the true legal position was, but the admission

does not determine the matter.

The essential issue remains

and that is, what were the terms of the contract. The

admission in itself, as such, did not constitute or change

a term of the contract. Thus notwithstanding the admission

it remained true

that it was the intention of the parties that

there was to be

no payment for overtime or for sickness or for

holidays and that remuneration was atfixed rates for specified

items.

The admission did not of itself operate to confer

upon

Grants a right of control of the manner in which the claimant or the other contractors performed the work which they necessarily had to perform to earn their remuneration

whether as remuneration for

work or for end results, cf

R.E.S.

Logging Co. Pty. Ltd. v. Bridge

(1969)

A . R . ( N . S . W . )

604

at 605-607.

But of course not only was introduction of the tax

deductions an admission.

It introduced a new term into the

contract, namely that the

ax should be deducted each week

from what had been earned by the claimant under his contract.

That term could

be formulated in terms that the claimant

agreed to Grants deducting from his remuneration the weekly

sum which would be deductible

n respect of tax if it were

that the claimant had been

an employee and applying the

same accordingly on the claimant's behalf. It was however,

but one term,

and it did

not change those other terms

which are mentioned above. It brought some benefit to

the claimant. It relieved him of controlling his finances

to provide for the very large annual payment of tax and

provisional tax.

In the result the relationship of the

parties still remains to be determined

by ascertaining

whether the claimant agreed	t o supply work and skill	or
end results.

A s

i n d i c a t e d e a r l i e r

i n th i s

judgment

the r e l evan t

end

r e su l t s can be r a t iona l ly iden t i€ i ed

and

defined, and

although it takes a l a rge number of

words t o do t h i s t h e

conception is relat ively

s j inple .

The

claimant well

understood

that

t o be pa id for an ins ta l la t ion of

wardrobe

t h a t

wardrobe

had

to be s t and ing f i rmly

The

purchaser l s

f l o o r and

t h a t any

r e p a i r h a d t o

to the gene ra l s t anda rd

Grants'

wardrobes

s o fa r as

the ma te r i a l s supp l i ed to

him would permit.

Both

p a r t i e s r e l i e d

upon

f ac to r s o the r t han those

r e f e r r e d t o

above.

It was

said f o r Grants

t h a t t h e c o n t r a c t o r s

had always been referred to

it by the term Itcontractors1' and

were a t a l l times so

regarded,by

Grants.

There

i s

evidence

t h a t t h e

claimafit had

re fer red to h imsel f on

some

occasions. Certainly

number

the contrectors

had used

the te rm cont rac tor

applicable to themselves from time

t o time.

It was sa id

tha t the con t r ac to r s had neve r

saught holiday pay

o r

s ick pay and d id not expec t to rece ive

e i ther

except on one occasion

22 November 1976 when

nine

contractors

includlng

the

claimant

forwarded

a document Labour and. lndus try:

in the fo l lowing te rms

t o t h e Department of

Il51 Holland Road,

Ringwood East,

VICTORIA,

31 35

November 22, 1976.

Referring

to:

Holiday

Pay,

Long Service Leave

Sick

Pay and

c l a r i f i c a t i o n o f

our	en t i t l ements .

Dear

S i r ,

the undersigned are employees of

G r a n t

Fu rn i tu re

Indus t r i e s ,

31 Rooks Road,

Nunavzading.

I	26
I

We	instal l Pre-fabricated wardrobes in the

metropolitan area

and

Geelong.

have

never

signed a wr i t ten cont rac t .

supply our

own

t rucks and labour.	Our years of	service	vary
from 1-14 years .

Since Ju ly 1965 we have had

Tax Installment

Deduction taken out of

OUT

wages

and a Group Cer-

t i f i c a t e

issued

each year.

The

company

employer

( a s above) has indicated

t h a t we

are not enployees

i n the sense of the

word,

but t h a t we

are sub-contractors and,

such ,

no t

en t i t l ed

t o

Long Service o r Holiday

Pay

e t c .

A s we

consider otherwise, we

a sk fo r your

r u l i n g and

f indings onthe matter.

Please

advise.

Yours

s incere ly ,

Pr ice ,

Po t t e r , M

Burrows, P. Timms, J. Smith,

E. Montgomery, B. Rapson,

McCarthy,

Harris.

N.B.

All correspondence t o be

forwarded

t o Mr.

L..Price

the

above

address.”

On t he o the r

hand it was

said on behalf of the

claimant that Grants had expressed i tself

i n

terms

a t l e a s t

equivocal

i n r e l a t i o n t o t h e

issue when

i t s management

c i r cu la r i s ed the con t r ac to r s i n the fo l lowing

terms:-

l 1

INSU ANCE

RISK

PUBLIC

Our

Insurance Brokers have brought to

our

a t ten t ion , thar : in the event of

you

being

l ega l ly de f ined

as an independent

sub-

cont rac tor ,

ra ther impor tan t tha t

you

consider insuring against your

own

l e g a l L i a b i l i t y t o

members

t he pub l i c fo r

i n j u r y o r damage

t o

t h e i r p r o p e r t y .

I n j u r y

in pa r t i cu la r t o Th i rd Pa r t i e s t h rough neg l igence , howsoever s l i gh t , can o f t en p rove to be a c o s t l y

expense

i n the event of

you

being found legally

l i a b l e .

Even law cos ts

to defend

a n

ac t ion

successfully can

run i n t o a good deal of

money

i n t h i s p r e s e n t

day

climate.

Public Risk Insurance is a-Jailable to cover

yourself against this type of liability and

feel the subject worthy of bringing to your

notice.

It is realized of course that

you may have

already made arrangements to protect yourself

I t

against such

an eventuality.

In the result it is clear

th t many of the facets

of thk arrangement between the claimant

and Grants are such

thatlthey may be accommodated without incongruity into the

relationship between the parties \?hether it was one

employer and employee or entrepreneur and independent contractor. It is oar view however, that although all of these facets

are reasonably compatible with

an existing relationship

of entrepreneur and independent contractor

at least one is

quite incompatible with that of employer

and employee and

several others sit most uncomfortably

with it.

The essence of the matter is whether according to the

terms of the transaction between Grants and the claimant,

Grants were entitled to direct the claimant

as to the manner

in which e was to perform the work

which he necessarily had to

perform so as to bring about the situation

that he had earned

the remuneration payable to him pursuant to the agreement

between him and Grants. Whether the contract was one under

which the claimant agreed to supply

his work and skill to

Grants, or one to supply

an end result, both parties contemplated

that work

and skill would be expended by the claimant

establishing the situation in which

he would be entitled to

payment.

If it appeared that Grants had the right to give

d i rec t ions as t o t h e manner

i n which

the claimant should

perform that

work,

that would ind ica t e ,

so t o speak,

that the

work was that of Grants,

t h a t it was

work r a t h e r t h a n an end

r e s u l t which the claimant

had agreed t o supply.

The r i g h t

t o d i r e c t would

f low from the fact that

what Grants

was

giving

direct ions about

was work which, so t o speak, belonged

t o it,

and it vas thus its r i g h t t o d i r e c t

and control .

on the o the r

hand t h e agreement was

t h a t the claimant was

t o be pa id for

an end r e su l t , t hen

Grants had no

s tanding to g ive

commands

as t o t h e

manner

i n which

the claimant should produce that

end r e s u l t , c i

Clothing and Allied Trades

Union of Austral ia v.

Cocks 11968) 12 F.L.R.

138 a t 139-155 (per Lhmphy and Smithers JJ.). .

But it i s to be observed

that onde a competent man was chosen

there was no need

f o r any actual control .

Consideration must be given to

what

the pos i t i on

would

have been

i f a t some time during the

work of assembly

Grants

had given any direct ions as to the

way

i n which

t h e

assembly

should be

achieved, e.g. what tool should

used fo r

some

t a s k o r what p a r t of the assembly

shoulC: be done before some

o t h e r p a r t

o r t h a t i n

par t icular case the claimant should

suspend his assembly of

t h e wardrobe i n hand and proceed

t o

assemble

one

i n some

o ther p lace

and r e t u r n l a t e r t o complete

the suspended assembly

s o tha t t he t ime

and

c o s t of

assembling

was increased.

On the evidence it could hardly be

thought

that

Grants

had the r igh t t o

insist

such directions being

obeyed.

With a lump sum

system of remuneration

it is impor tan t to the

worker

t h a t t h e

method

of doing the task to earn the

remuneration

should be his choice. Similarly

i f

Grants had directed

that

the car tage route to be takm be

one which

was

longer than

I .

”

that proposed

by the claimant

It could hardly be thought

that

such

d i r ec t ion would have been binding

t h e

claimant.

Grants

had d i rec ted tha t dur ing t ranspor t the

parts should be covered from exposure

o r packed

i n some

p a r t i c u l a r

way

d i f f i c u l t t o t h i n k t h a t t h e c l a i m a n t

would have had

t o obey,

e spec ia l ly i f it caused delay

o r

otherwise

increased

his

costs

Certainly,

i f

the

amangemem

were a cont rac t for serv ices there

was an implied term

that

t h e p a r t s

would be

t ranspor ted with

reasonable care

t o p r o t e c t

them from damage.

But

t h i s is v e r y d i f f e r e n t

from Grants

hav ing t he r i gh t t o p re sc r ibe pa r t i cu la r p recau t ions .

Grants

having

a r r anged the i r bus iness tha t con t ro l

of the cont rac tors in the sense

o f

con t ro l l i n6 the

way

The

men

ca r r i ed ou t t he i r t r anspor t ing , a s sembl ing

and repairing

was

unnecessary,

s t i p u l a t i o n t h a t

should have control

i n those

matters was unnecessary.

Add

t o t h a t t h a t c o n t r o l

i n a way

tha t increased the cos ts of the

men

would have been

qu i t e

incons is ten t

with

t h e f i x e d p r i c e s f o r t h e s p e c i f i e d i t e m s ,

and one

is a lmost forced to say tha t

it is most un l ike ly tha t

r i g h t t o c o n t r o l i n t h e r e l e v a n t s e n s e

was

r e s e r v e d t o

Grants.

Indeed

t o our minds

it i s t h i s one

aspect of

the

arrangement which

is ac tua l ly incons i s t en t w i th

and cannot

f i t t e d i n t o t h e n o t i o n t h a t t h e r e l a t i o n s h i p

was

one

employer

and

employee.

aspec ts of the

engagement which can only uncomfortably

f l t t e d i n t o t h e c o n c e p t i o n

of an employer and employee

r e l a t ionsh ip were

tha t ne i ther par ty contempla ted

payment

f o r

overtime,

and ne i ther par ty regarded

payments

f o r holidays o r

t ime lost through s ickness

elements

i n

t h e i r t r a n s a c t i o n .

Having

regard to the chances

o f

delays

long journeys, long

hours must

have

been worked on occasions.

But

increased

remuneration resulted o r was contemplated as being relevant

t o

such

long hours.

is also of

importance

that Grants was

under no obl igat ion to supply any

work to enable any

remuneration to

earned,

o r a t most

the obl iga t ion to supply

work was

contingent on orders being received from retai lers .

Transport although

i n a sense incidental

was a v i t a l element

and

loomed

l a r g e i n t h e t o t a l s e r v i c e

t o be

rendered.

It was

ca r r i ed out by

the claimant

i n h i s own

vehicle and r ea l ly ou t

of the control

Grants.

r e l a t i o n t o t h e q u e s t i o n

the imposi t ion

penal ty

i s

s u f f i c i e n t f o r t h e p u r p o s e s

th i s c a s e t o

proceed on the

assumption

that

the

claimant

would

succeed i f

the Court

were

s a t i s f i e d on t h e i s s u e s a s

a balance of probabi l i t ies

and no t beyond

reasonable

doubt.

(cf

Vehicle

Builders'

Employees'

Federation

Austral ia v.

General Motors Holden Pty.

L td .

(1977)

18 A.L.R.

654

Australian

Indus t r ia l

Cour t

and I-Iarris v. Ansett

Transport

Industries

(Operations) Pty.

Ltd .

Federal Court

Aus t ra l la

Indus t r ia l

Div is ion

June 1978.) We

f i n d it

unnecessary to

make

a concluded decislon

as to the s t anda rd

of proof required

i n such matters.

Having r ega rd to the fo regomg

a re no t

s o

s a t i s f i e d t h a t t h e r e l a t i o n s h i p

between

the claimant

and the respondent

on 23 December 1977 was tha t of

employer

and

employee.

Accordingly,

the

award was no t

appl icable .

was

argued

for the respondent tha t the c la imant ' s

membership

of the Federated Furnishing Trade Society of

Aus t ra las ia was

not es tab l i shed

and

S. 132( 1 ) (b)

and

(c )

the Act

as it was

p r i o r t o amendment by the Conci l la t ion

and Arbi t ra t ion Amendment Act (No.

3) 1977 (No.

108 of

1977)

s.12

was

r e l l e d upon.

I n view of

the

foregoing

we have no t found it necessary to determine

that i ssue .

- _..

_ _

The

summons

must therefore be dismissed.

[1978] FCA 67

10 Aug 1978