Purvis v Chiefton Management Pty Ltd

[1996] IRCA 200

DECISION NO:  200/96

CATCHWORDS

INDUSTRIAL LAW - nature of relevant relationship between applicant and respondent - applicant engaged through a partnership - evidence of taxation records of applicant - application dismissed for want of jurisdiction

Industrial Relations Act 1988 s170EA
Partnership Act 1895 (Western Australia) s13

Martin Anthony Purvis v Chiefton Management Pty Ltd (t/as Brookes Maintenance Services), Industrial Relations Court of Australia, Marshall J, 29 September 1995, as yet unreported.

No. WI 1582 of 1995

MARTIN ANTHONY PURVIS v CHIEFTON MANAGEMENT PTY LTD (T/AS BROOKES MAINTENANCE SERVICES)

Judge:            Marshall J
Place:            Perth
Date:              6 May 1996

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA  )

WESTERN AUSTRALIA DISTRICT REGISTRY  )         No. WI 1582 of 1995

BETWEEN:           MARTIN ANTHONY PURVIS

Applicant

AND:     CHIEFTON MANAGEMENT PTY LTD
  (T/AS BROOKES
  MANAGEMENT SERVICES)

Respondent

JUDGE:         Marshall J
PLACE:         Perth
DATE:           6 May 1996

ORDER

The Court orders:

1.        The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court of Australia Rules.

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA  )

WESTERN AUSTRALIA DISTRICT REGISTRY  )         No. WI 1582 of 1995

BETWEEN:           MARTIN ANTHONY PURVIS

Applicant

AND:     CHIEFTON MANAGEMENT PTY LTD
  (T/AS BROOKES
  MAINTENANCE SERVICES)

Respondent

JUDGE:         Marshall J
PLACE:         Perth
DATE:           6 May 1996

EX-TEMPORE REASONS FOR JUDGMENT
AS REVISED FROM THE TRANSCRIPT

On 29 September 1995, I delivered reasons for judgment on a preliminary issue arising in this matter.  See Martin Anthony Purvis v Chiefton Management Pty Ltd (t/as Brookes Maintenance Services), Industrial Relations Court of Australia, Marshall J, 29 September 1995, as yet unreported.  In that matter I understood that the issue to be determined was whether the applicant was employed by the respondent pursuant to a contract of service, or was personally engaged by it as an independent contractor.  I held that the applicant was employed by the respondent.  On 24 October 1995, Madgwick J granted the respondent leave to appeal against my interlocutory judgment of 29 September 1995.  On 28 February 1996 a Full Court remitted the matter back to me to deal with the merits of the applicant's claim, and also to deal with the respondent's submission that there was no relevant legal relationship between it and the applicant but rather that the relevant legal relationship was between the respondent and another entity associated with the applicant.

In his evidence before the Court today Mr Purvis conceded under cross-examination that he saw the partnership between himself and his wife as "doing the work" for the respondent.  All income earned in respect of the applicant's labour was ultimately paid into the account of the partnership and dispersed equally amongst the partners, that is the applicant and his wife.  Additionally, in respect of all moneys paid into the partnership account, the applicant caused invoices to be sent to the respondent in the name of the partnership pursuant to the applicant's request that the partnership receive such income.

In my view the inescapable conclusion, particularly having regard to the evidence of the applicant himself, is that it was M.A. and C.A. Purvis trading as Yakkamunda Australia and not the applicant who had the relevant legal relationship with the respondent.  Consequently it cannot be said that the applicant was an employee of the respondent, at least at the time of the relevant termination.  It is true that Mr Barry Englishby engaged the applicant for work as an electrician but I am in no doubt that in submitting himself to work for the respondent the applicant was so doing on behalf of a partnership, that is putting himself forward as the working member of the partnership.

The partnership having the relevant legal relationship with the respondent, at least as at the beginning of payments being made in respect of work actually performed by the applicant, was an arrangement that was entered into for taxation purposes so that the applicant was able to split his income with his wife. 

As Wilcox CJ said in the proceedings before the Full Court at page 39 of the transcript on 28 February 1996:

“One can snooker oneself by organising tax arrangements in a certain way, if you use a company structure then it might be impossible to say that you as an individual are an employee.”

In my view the same situation applies to a partnership. According to the applicant's taxation records he did not personally earn income from the respondent other than income earned from the partnership in respect of that work. See also section 13 of the Partnership Act 1895 (Western Australia) which provides:

“An act or instrument relating to the business of the firm done or executed in the firm name or in any other manner showing an intention to bind the firm by any person thereto authorised, whether a partner or not, is binding on the firm and all partners...”

It is most regrettable that the parties did not focus on the issues raised before me today prior to the conduct of the proceedings which pre-dated my decision of 29 September 1995.  In particular the relevant taxation records should have been in evidence much earlier in these proceedings.

The order of the Court is that the application be dismissed. I do not find it necessary to deal with the merits of the application under section 170EA Industrial Relations Act 1988 as the Court has no jurisdiction to do so.

I certify that the preceding 3 pages are a true copy of the Reasons for Judgment of his Honour Justice Marshall

Associate:  

Date:  6 May 1996

Representative of the applicant:               Mr C Young

Solicitor for the respondent:  Mr G Chitty

Date of hearing:  6 May 1996

Date of judgment:  6 May 1996