Putland v Royans Wagga Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Putland v Royans Wagga Pty Limited [2017] FCA 910

File number: NSD 1006 of 2015
Judge: BROMWICH J
Date of judgment: 9 August 2017
Catchwords:

INDUSTRIAL LAW – whether radio base (call centre) work performed by the applicants for respondent truck repair company was pursuant to a contract of employment or contract for services – principles on determination of employment vs independent contractor status – held: applicants were employees of the respondent for the relevant period

INDUSTRIAL LAW – determination of appropriate award, job classification and nature of employment – claimed breaches of the Fair Work Act 2009 (Cth) flowing from finding an employment relationship – breach of a modern award under s 45 – misrepresentation of employment being pursuant to a contract for services under s 357 – failure to provide pay slips under s 536 – separate claim for breach of implied term of employment contract for failure to provide notice of termination – held: breaches of ss 45, 357 and 536 made out – separate hearing to determine relief

Legislation:

Evidence Act 1995 (Cth), s 59

Fair Work Act 2009 (Cth), ss 13, 45, 46, 117, 357, 536, 545, 546

Independent Contractors Act 2006 (Cth), ss 12, 16
Cases cited:

ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; 209 FCR 146

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365

Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395

Hamzy v Tricon International Restaurants [2001] FCA 1589; 115 FCR 78

Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21

Humberstone v Northern Timber Mills (1949) 79 CLR 389

Kucks v CSR Limited (1996) 66 IR 182

Marshall v Whittaker’s Building Supply Company (1963) 109 CLR 210

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541

Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union  [2013] FWCFB 2434; 230 IR 30

Dates of hearing: 30, 31 March 2016, 29, 30, 31 August 2016, 2, 7 September 2016
Registry: New South Wales
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 343
Counsel for the Applicants: Mr N Furlan
Solicitor for the Applicants: Connect Legal
Counsel for the Respondent: Mr B Rauf
Solicitor for the Respondent: Commins Hendriks Pty Ltd
Table of Corrections
22 August 2017

The original paragraph [336]:

“Having found that the Putlands were employed by Royans Wagga within the job classification “level three call centre principal customer contact specialist” under the Clerks Award on a full-time basis, and having found that the National Employment Standards (NES) termination provisions applied by reason of that award, there does not appear to be any point in attempting to ascertain what notice period might have…

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Details
Case
[2017] FCA 910
Decision Date

CaseChat Overview and Summary

This case involved a dispute between the Putlands and Royans Wagga, a truck repair company, concerning whether the Putlands were employees or independent contractors during the period from 2001 to 2016. The Putlands, Linda and Lewis, worked for Royans Wagga in a radio base, which handled accident reporting services. They brought claims under the Fair Work Act 2009 (Cth), alleging breaches of employment law. The Federal Circuit Court had to determine the nature of the Putlands' relationship with Royans Wagga and whether the company had breached employment standards provisions.

The primary legal issue was to determine the employment status of the Putlands. The Court examined the nature of the Putlands' work, the level of control Royans Wagga exercised over them, and the degree of financial risk assumed by the Putlands. The Court applied established principles to differentiate between employment and independent contractor relationships. Additionally, the Court considered whether Royans Wagga had breached sections of the Fair Work Act, specifically sections 45, 357, and 536. The latter two sections concerned the alleged misrepresentation of the Putlands' employment status and the failure to provide pay slips, respectively.

The Court found that the Putlands were employees of Royans Wagga for the relevant period. The Court based its decision on the level of control Royans Wagga exercised over the Putlands, the integration of their work into the company's operations, and the fact that the Putlands did not bear the financial risk of operating a business. The Court found breaches of sections 45, 357, and 536 of the Fair Work Act, holding that Royans Wagga had not complied with the award provisions, misrepresented the employment status of the Putlands, and failed to provide pay slips. The Court ordered a case management hearing to determine the relief for these breaches.

The Court ordered that the matter be listed for a case management hearing to determine the relief for the breaches of the Fair Work Act. The Putlands were found to be employees, and the breaches of employment standards were acknowledged. The Court's decision highlighted the importance of correctly classifying workers to ensure compliance with employment laws. The Putlands were awarded a hearing to determine the appropriate remedy for the breaches identified.

Orders

Orders of the court

1. The matter be listed for a case management hearing at a time convenient to the parties for the purposes of making procedural orders for the hearing to determine the outstanding issues as to final relief.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties had a starkly different stance in relation to who was responsible for how the work would be carried out, itself an important feature of the legal distinction between employment contracts and independent contractor arrangements as outlined above. Much of the pleading response by Royans Wagga to the details relied upon by the Putlands, apart from rates of pay, was either denied or pleaded by way of not knowing and therefore not being able to admit the allegations.Chronology of primary evidence – documentary and from the key witnesses Much of the following chronology of key objective events was either not in dispute, or was established by evidence that was not contradicted. Considerable assistance was gained from chronologies helpfully furnished by both parties, supplemented as needed by reference to the evidence. Before the relevant period: 1944 – June 2012 The Royans business was started by Bill Andrews’ grandfather in 1944. Royans Wagga commenced operating from Copland Street, Wagga Wagga in 1980. In the period between the late 1990s and early to mid-2000s, an in-house call centre known as the radio base was in operation at the Copland Street premises. In the period between 1999 and 2001, Ms Margaret Scott (also known as Margaret Hinchcliffe) was employed by Royans Wagga as an operator of the radio base. At various times, the radio base serviced not only Royans Wagga but also other Royans businesses in Dubbo, Brisbane, Sydney and Newcastle (known as O’Reilly’s Newcastle). Nothing apparently turns on which other Royans branches received the benefit of radio base work performed by the Putlands, nor when. The work included answering telephones, monitoring police radios/scanners and dealing with sales representatives in order to provide the accident reporting service. A written record of the information received about each accident or incident was made. Margaret Scott created a “log report” template for that purpose. Ms Scott carried out some of this work from her home, particularly on weekends. In 2002, the Royans group of companies was split into separate entities with separate management structures. Mr Andrews was appointed as managing director of Royans Wagga and director of the holding company of Royans Wagga, Royans Dubbo Pty Limited. In the period from March 2001 to 10 September 2016, Brett Haberecht was employed by Royans Wagga as a sales representative, and had dealings with the Putlands. His evidence is considered below. On 4 April 2003, Ms Putland obtained an Australian Business Number (ABN) as an individual/sole trader. The ABN extract in evidence, obtained on 19 November 2015, recorded: (1)two trading names – “Linda-Lewis” from 4 April 2003 and “MPOWER PT” from 13 May 2010; (2)one business name – “TRILOGY FITNESS” from 2 March 2011; (3)a last updated date of 27 October 2013; and (4)a GST status of “Not currently registered for GST”. No business names are recorded for Mr Putland. There was no evidence of any business name being registered which was associated with the accident reporting service.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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