R Elkin & P Pinney t/as Crescent Head Tavern v Bradshaw
[2008] NSWWCCPD 142
•3 December 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | R Elkin & P Pinney t/as Crescent Head Tavern v Bradshaw [2008] NSWWCCPD 142 | |||||
| APPELLANT: | R Elkin & P Pinney t/as Crescent Head Tavern | |||||
| RESPONDENT: | Natalie Bradshaw | |||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | WCC2233-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 27 August 2008 | |||||
| DATE OF APPEAL DECISION: | 3 December 2008 | |||||
| SUBJECT MATTER OF DECISION: | Worker; section 4 of the Workplace Injury Management and Workers Compensation Act 1998 | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Mulcahy Lawyers | ||||
| Respondent: | Whitelaw McDonald | |||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 27 August 2008 is revoked and the following decision made in its place. | |||||
| (1) Award in favour of the Respondent. | ||||||
| 2. No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 22 September 2008 R Elkin & P Pinney t/as Crescent Head Tavern (‘the Appellant/the Tavern’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 August 2008.
The Respondent to the Appeal is Natalie Bradshaw (‘the Respondent/Ms Bradshaw’).
Ms Bradshaw and her husband Glen were a musical duo calling themselves “He Said She Said”. They were engaged by the “Off Beat Operations Entertainment Agency” of Coffs Harbour to perform at the Tavern on the night of the 13th February 2004. On that occasion, Ms Bradshaw tripped and fell sustaining a significant injury to her left wrist. She reported the incident to the licensee of the Tavern shortly thereafter.
She initially brought proceedings in the Commission in 2006, but those proceedings were discontinued by order dated 18 December 2006.
On 25 March 2008 Ms Bradshaw filed a fresh ‘Application to Resolve a Dispute’ (‘Application’) in the Commission seeking medical expenses and lump sum benefits pursuant to the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
On 12 August 2008 the parties attended a conciliation/arbitration hearing. The Arbitrator determined that Ms Bradshaw was a worker within the meaning of section 4 of the 1998 Act, and made the following orders for the further conduct of the proceedings:
“1.The Respondent is to pay the Applicant’s Section 60 expenses upon production of accounts and/or receipts.
2.The Applicant’s claim for Section 66 is remitted to the Registrar for referral to an AMS.
3. The documents to be referred to the AMS are as follows:
a. Application to Resolve a Dispute and attached documents
b. Reply and attached documents
c. The Applicant’s supplementary Statement of 27th March 2008
d. The Applicant’s supplementary Statement dated at the commencement 29th May 2008 and at the foot 6th June 2008
e. The supplementary Statement of Glen Bradshaw of 30th May 2008
f. Statement of Jason Paul Elkin of 14th July 2008
4.Applicant’s claim pursuant to Section 67 and the issue of costs are reserved pending the issuing of the Medical Assessment Certificate of the AMS.”
It is from this decision that the Tavern seeks leave to appeal.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard to Practice Direction No’s 1 and 6, the documents that are before me, and the detailed submissions by both parties on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, with holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
“ (a)finding the relationship between the parties to be that of employer and employee.
(b)distinguishing the facts of the present case from the decision in Davidson v Toohillt/as The Beach Hotel [2002] NSWCCR 41 (‘Davidson’).
(c)failing to have proper regard to the evidence or the weight of evidence and factual circumstances…”
THE REVIEW PROCESS
The nature of the review process has been succinctly summarised by Deputy President Roche in a number of decisions, and recently in Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87 where he said as follows [16]-[18]:
“16.The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 (2006) 4 DDCR 358 (‘Zheng’), where Bryson JA said at [38]:
‘A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.’
17. McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
18.The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler[2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:
‘28.The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30.A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.’”
These principles must be borne in mind in determining the appeal.
THE ARBITRATOR’S FINDINGS AND REASONS
After considering the question of notice and section 261 of the 1998 Act, the Arbitrator then turned to the issue of ‘worker’. Counsel for Ms Bradshaw had conceded that neither section 20 of the Workers Compensation Act 1987 (‘the 1987 Act’) nor Schedule 1.15 or Schedule 1.2 of the 1998 Act had any application to the present case.
The Tavern’s submissions were summarised at [19] - [24] of the Arbitrator’s ‘Statement of Reasons (‘Reasons’). Those submissions included an extensive list of factors the Tavern claimed were against a finding of an employer/employee relationship between the parties. The Arbitrator then turned to consider “The Factual dispute raised by the Statements of the Applicant, her husband and Mr Elkin [the licensee]” stating as follows:
“25.The Applicant’s original statement of 18th September 2006 clearly asserts that the Applicant was directed to play in the smaller lower [area] over the objections of the Applicant and her husband…
26.She also asserts that the manager directed them to play subdued music for 45 minutes with a 15 minute break rather than for an hour with half hour breaks.
27.The Applicant’s husband’s statement of 5th October 2006 sets out [that] there was a dispute with the Manager as to where they should perform…’the Manager then informed [Natalie] that he wanted us to set up in a different area where we had played before…I questioned his decision…where he had told us to set up was a very small…area… But he insisted that we use that area…I then had to go and move my vehicle to another entrance as I had parked at the usual entrance [sic] where to play…He [the manager] told me when he wanted us to start and to play for 45 minute sets (instead of our usual 1 hour sets) and to start with quite [sic] while people were still dinning[sic].After that…we were told to turn up the volume and play more danceable music. But they would instruct us if it was to [sic] loud or not loud enough. We did as we were instructed.’
28.In contrast, the licensee of the Respondent, Mr Jason Elkin, could only ‘vaguely remember’ the Applicant’s injury being bought [sic] to his attention…
29.In his later statement of 14 July 2008…he does not recall giving instructions as to the type of music to be played or the volume at which it should be played…[it] ‘was up to them’…
30.The account of the Applicant and her husband is much more vivid and convincing. They have far greater cause to remember all of the details of the night, particularly as they felt that the Applicant’s injury was due to them being directed to play (over their objection) in an area which was not suitable…
31.Accordingly, I am persuaded that the Respondent not only directed the Applicant and her husband where to perform but did so over their objections.
32.I am further persuaded that the Respondent directed the Applicant and her husband how long their sets should be and directed them that they should commence playing quiet music and then perform music for dancing later in the evening…”
The Arbitrator then embarked on a discussion distinguishing the facts of the present case from that of Davidson to which I referred earlier.
The facts of that case I have summarised from Johns CCJ’s decision at [3] – [10] as follows:
“The Applicant was a drummer in a band. The band began playing at the respondent's premises known as the Beach Hotel. The arrangement at that time was that the band would play at this venue every second Friday night. The band would play from 8:45 pm until approximately 12 midnight. The applicant received for three hours of work the sum of $90. The money was given to one of the members of the band and it was split three ways. The money was obtained from someone behind a bar which had apparently been set aside for that purpose. The applicant never personally received the money as he never went to the bar to get the full amount on any occasion. The money was signed for and then split between the three band members.
The applicant did perform other work as a drummer with other artists. He brought his own drums.. The other band members used their own instruments by way of guitars and keyboards. The PA system was supplied by the Hotel. The same sound engineer operated the system who was paid by both the band and the hotel on a 50 per cent basis. The applicant did occasional engagements at other venues with band.
The applicant never had any involvement with the financial arrangements. He never picked up or distributed the money available between the other members of the band. Arrangements in regard to the playing of music at a particular venue were organised by someone other than himself.. The applicant would be informed that there was a gig on at a certain place and as a member of the group he would go along if he was available to play. If a band member was ill they would get someone else to fill in for him. The applicant himself was in this position, although very occasionally. The applicant agreed that the proprietor of the hotel would not really have any idea who was going to turn up on the night as he left it to the band to organise. It was for the band to fulfil the right players to produce the music that was required.
The applicant held himself out to be a musician for many years. The applicant had no contact with the respondent except for the purposes of exchanging formalities. Any discussion on how or what to do, or where to do it — if indeed there was any such discussion — was never with the applicant. During the period, the applicant worked with various performers at an RSL club and may have done some casual jobs with other bands besides the previous bands mentioned. Plainly it seems he filled in with other bands over the four year period.”
Johns CCJ concluded that Mr Davidson was not a worker within the meaning of the Act stating as follows [16]:
“In the choice between the conclusion that the applicant was an employee of the respondent and a conclusion that he was a member of the band hired to play music, it is my conclusion that the more appropriate characterisation of the relationship between the parties is of the latter. I attach significance in this respect to the circumstances that it was for the band to provide the personnel, that it was they who were required to engage or provide the musicians on their own account, that they could select whomsoever they chose for however long they were required. So much is to be illustrated by the arrangements that were made when the applicant himself was on some occasions ill.”
In distinguishing the facts of that case from the present, the Arbitrator stated at [39]-[44]:
“39.In the present case the circumstances are quite different. The Applicant herself was directed by the Respondent where to set up.
40.Her husband’s objections over this were dismissed. Further directions were given by the Respondent as to what the length of sets should be and the volume at which music should be played and when.
41.In Davidson the Applicant was a member of a band who received no directions from, nor did he have any contact with, the Respondent.
42.In the present case the Applicant and her husband …were given directions by the licensee, as one would expect with a duo.
43.the Respondent gave directions to each of the members of the duo, the Applicant and her husband. Those directions were extensive and emphatic.
44.There was no evidence in Davidson of any directions given by the licensee or anybody on behalf of the Respondent…I find this situation to be more typical of the usual arrangement between a licensee and musicians. I…reject…the submission that the directions given by Mr Jason Elkin to the Applicant were typical of directions expected to be given to musicians at licensed premises.”
The Arbitrator concluded as follows [47]:
“Considering the entirety of the relationship between the parties and acknowledging that the test of control is not the sole criteria in evaluating whether the relationship of employee and employer is established, I am persuaded that the relationship of employer and employee between the Applicant and the Respondent has been established.”
The term ‘worker’ is defined in section 4 of the 1998 Act as follows:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).”
It is well established that a court must consider the totality of the relationship between the parties when considering the issue of ‘worker’. As Justice Mason (as he then was) said in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] NCA 1 (‘Stevens’) at [29]:
“...the common law has been sufficiently flexible to adapt to changing social
conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, ‘so far as there is scope for it’, even if it be ‘only in incidental or collateral matters’ (Zuijs v. Wirth Brothers Pty Ltd, at p 571).” Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered.”
In Boyalan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8 Ipp JA noted at [54]:
“The control test remains important and it is appropriate, in the first instance, to have regard to it (albeit that it is by no means conclusive) because, as Wilson and Dawson JJ said in [Stevens]
‘[I]t remains the surest guide to whether a person is contracting independently or serving as an employee.’”
Wilson and Dawson JJ also said in Stevens at [36]-[37]:
“11. The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.
12. Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.”(emphasis added)As Deputy President Roche observed in Gerob Investments Ballina Pty Ltd t/as Beach Life Homes v Compton [2007] NSWWCCPD 180 (‘Gerob’) at [38]:
“ In Australian Air Express Pty Limited v Langford [2005] NSWCA 96 Justice McColl made two important preliminary observations at [15-16] about cases of this kind:
“15.The first concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.
16.The second observation concerns the distinction between an employee and an independent contractor. That distinction has been said to be ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s business, and a person who carries on a trade or business of his own’: Marshall v Whittaker’s Building Supply Co [1963] HCA 49; (1963) 109 CLR 210 at 217 per Windeyer J. Although this statement was criticised by Wilson and Dawson JJ in Stevens (at 34) as ‘posing the ultimate question in a different way rather than offering a definition which could be applied for the purpose of providing an answer’, it was referred to with approval by the majority in Hollis (at 38 – 39 [39] – [40]).” (emphasis added)
The Court of Appeal has recently considered this issue in Wesfarmers Federation Insurance Ltd v Stephen Wells trading as Wells Plumbing [2008] NSWCA186 (‘Wesfarmers’). In that case, Mr Hubbard was injured while operating a jackhammer on a construction site at. At the time of his injury, Mr Hubbard was working for Mr Wells, the respondent, a plumbing contractor. Mr Hubbard sought damages from the respondent, who joined his insurer, Wesfarmers Federation Insurance Ltd (‘Wesfarmers’). The insurer had issued the respondent with a business liability policy covering liability with respect to independent contractors, but not employees.
Mr Hubbard brought proceedings against the respondent in the District Court on the basis that he was an independent contractor engaged by the respondent. Norrish DCJ upheld Mr Hubbard’s claim. His Honour held that the insurance policy covered this liability. Wesfarmers appealed, seeking to challenge the finding that Mr Hubbard was an independent contractor and, hence, its liability in respect of the award of damages.
The appeal was upheld, the court finding that Mr Hubbard was an employee of Mr Wells. In considering the nature of the relationship between the parties, Basten JA made the following observations at [29] – [30]:
“29.It was also accepted that the trial judge had correctly identified the relevant legal principles as those found in Stevens v Brodribb Sawmilling Company Pty Ltd[1986] HCA 1; 160 CLR 16; Hollis v Vabu Pty Ltd[2001] HCA 44; 207 CLR 21 and Boylan Nominees Pty Ltd v Sweeney[2005] NSWCA 8; Aust Torts Rep ¶81-780; 148 IR 123, to which may be added Sweeney v Boylan Nominees Pty Ltd[2006] HCA 19; 226 CLR 161 and earlier cases discussed in those authorities.
30.The trial judge correctly noted the importance of “control” as a factor in determining the nature of the relationship; he also noted that it was not the sole criterion, but one of a number of indicia which should be considered: at [10]-[11]. As explained by Mason J in Stevens at 24:
“Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”
His Honour relevantly noted at [31]:
“One criticism made of the trial judge in the present case was that he tended to elide the distinction between the exercise of control and the contractual right to control the carrying out of the work.”
He continued at [32]-[34] as follows:
“32.Where, as in the present case, there is no written contract, nor even a clear oral agreement, the nature of the relationship will need to be inferred from such facts as can be objectively determined. Indeed, even in the case of an express contract identifying the character of the relationship, extraneous circumstances may lead to a conclusion at odds with the express terms. In Queensland Stations Pty Ltd v Federal Commissioner of Taxation [1945] HCA 13; 70 CLR 539, a drover was found to be an independent contractor, despite an express requirement that he would obey all lawful instructions of the ‘employer’. Thus the right to control may not be conclusive in circumstances where there is little scope for the exercise of a lawful authority to command; on the other hand, the fact that the person performing the work is required to exercise independent skill and judgment will not preclude an employment relationship: see Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; 93 CLR 561. The distinction between a right to exercise control, on the one hand, and the matters over which control can be exercised and the extent to which it is exercised, on the other, is primarily a distinction between a legal criterion and the means of its proof. In the present case where there was little evidence of any express agreement, the very existence of a contract, to say nothing of its terms, needed to be inferred from such circumstances and facts as could be established on the evidence.
33.In Marshall v Whittaker’s Building Supply Company [1963] HCA 26; 109 CLR 210 at 217, Windeyer J noted, in a passage cited with approval in the joint judgment in Hollis v Vabu at [40], that the definition of “worker” in the Workers’ Compensation Act 1912-1960 (WA) depended upon “the distinction between a servant and an independent contractor”. His Honour continued:
“That is rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own.”
34.That fundamental difference suggests that underlying various indicia relevant to whether a person is an employee or an independent contractor is the question whether the person is in fact running his or her own business. It will be unlikely that a person is an independent contractor if he or she has not established a business or taken any of the steps required by law in that regard.”
EVIDENCE AND SUBMISSIONS
In the present case, it seems that the Arbitrator fell into the same error in that he confused the notion of a reasonable ‘direction’ for the carrying out of the Applicant’s performance with the concept of ‘control’.
No consideration seems to have been given to the “other relevant matters” referred to by Mason J in Stevens.
To be fair, there was a paucity of evidence on these matters. In her initial statement dated 18 September 2006, Ms Bradshaw said:
“On arrival at the Tavern, I was told where to set up the equipment and I was aware that it was not in the normal place…It was also under new management…
We had immediate concerns over the smallness of the area…my concerns were both in relation to the quality of performance as well as general safety for myself and patrons…
We would have preferred to play on the top section, but was[sic] directed to play in the smaller lower area. My husband Glen and I set up all of our equipment…
When we arrived at the Tavern, the Manager advised us that people were eating and that we were to play more subdued music to start with and keep the volume down…we were not to play…for one hour with a half hour break but for 45 minutes with a 15 minute break…
We varied our performance to accommodate the Manager’s direction…
The Manager…told us when to start and the appropriate music to be played at different times…
Our preferred area had more space and was far more comfortable particularly with safety concerns in mind. We expressed our opinion…but accepted that we would have to perform where we were told, as we are told to always talk to the manager or supervisor in charge to find out directions/ and to do what is asked…
The decision by management to play in this area has changed my life around…”
The balance of the statement referred to medical and related issues.
The subsequent statements dated 11 July 2007, 27 March 2008 and 6 June 2008 either addressed other issues such as the delay in making the claim or simply further emphasised the matters set out in the statement of 18 September 2006. For example, in her statement of 6 June 2008 Ms Bradshaw said:
“I was directed to play in that area in spite of our concerns. We asked the manager three times …that [sic] we did not want to set up in the area he wanted us to. As well, we had to borrow an extension lead from the manager…”
Nowhere was there any information as to the matters referred to by Mason J in Stevens as set out in paragraph 29 above. A statement made by Mr Glen Bradshaw dated 30 May 2008 similarly merely emphasised that “…we did what we were instructed to do.”
A letter in the Tavern’s Reply from Off Beat Operations Entertainment Agency (‘the Agency’) dated 7 September 2006 set out the following:
· The agency had been Ms Bradshaw’s agent for “about 14 years”
· Ms Bradshaw paid the agency 10% of performance fees
· Bookings were made on Ms Bradshaw’s behalf “approx 1 to 5 a month”
· Ms Bradshaw was booked to perform at the Tavern “approx. 9 to 10 a year…”
· Ms Bradshaw had been booked to perform at “approx 8 to 10…” other venues
· Ms Bradshaw was paid on the night by the venue and then paid the agency 10% of that fee.
This information was not referred to by the Arbitrator. Scant reference was made to the statement of Jason Elkins, the licensee of the Tavern, dated 14 July 2008 (see [29] of the Reasons). Mr Elkins said:
“10…the restaurant …was performing quite well and I told them to set up on the flat area alongside the restaurant….the other bands set up in that area on other days…the muso’s on other nights set up in the same area…I did not give them any specific directions. I certainly did not have to tell them three or four times. I told them once, they were both there.
11.I did not recall giving them any specific directions about the type of music they were to play or the volume…They were a duo not a rock band so I had no reason to believe they were going to go at it full volume. If they had I would have told them to turn it down while people were finishing up eating.
12…the length of the sets was up to them…
…14. Once I had showed them where to set up I went back to work behind the bar…
…
18.Having shown the band where to set up, I had to change that because the restaurant was doing so well. I left them to do what they had been engaged to do. I went back to work behind the bar…I never gave them any further instruction and in particular I never at any time directed them as to what type of music to play, the volume to play it at, what lengths of breaks to have…
20. …I had never seen or spoken to them prior to the 13 February 2004.”
The Arbitrator, faced with conflicting evidence on these issues, was of course entitled to accept the evidence of Ms Bradshaw and her husband for the reasons he stated. But in so doing, he has ignored his primary task which was to examine the totality of the relationship between the parties to determine the issue of ‘worker’.
The focus of the Arbitrator’s consideration of the evidence seems to me to have been the ‘safety’ issues raised by Ms Bradshaw. The ‘directions’ given by the Tavern seem to me to fall squarely into the category of, to quote Basten JA again in Wesfarmers, “…the contractual right to control the carrying out of the work.”
The duo of Ms Bradshaw and her husband was “a distinct calling” on their part. They chose their place of employment, or more specifically were ‘directed’ to a venue by the agency. They provided their own equipment: the “borrowing” of an extension lead in my view does not assist in the characterisation of the relationship as that of employer/ employee. They also created “goodwill as a saleable asset” in the course of their performances.
There is no evidence on the issue of remuneration whatsoever, other than the letter from the Agency to which I referred previously. There is certainly no evidence to suggest that the Tavern deducted any tax from Ms Bradshaw’s fee. Indeed, the evidence from Ms Bradshaw is curiously silent on this issue. Although this is not in itself the determinative factor, just like the ‘control’ test, it is of considerable significance in establishing the nature of the relationship between the parties.
Moreover, as the Tavern pointed out in its submissions, there was no evidence on issues such as holidays or sick leave, any restrictions on accepting employment elsewhere or on the distribution of any income within Ms Bradshaw’s ‘partnership’ with her husband in the musical duo.
I note also at this point a reference in the factual investigation report by North Coast Appraisals dated 11 September 2006 to “Evidence obtained from witnesses suggests the applicant operates a ‘singing school’ at her home for adults and children…” This information was not the subject of any discussion at the arbitration hearing.
One final matter worthy of comment. The Tavern made the following submission:
“…if the legislature had intended that bands hired to play where the venue is not a Registered Club or there is no cover charge to be an employer/employee relationship, a simple amendment to the legislation removing the requirement [for a fee or charge] in Schedule 1.15(1)(c) of the 1998[ Act] would have sufficed to have achieved deeming status or removal of the ‘Registered Clubs’ criteria. Clearly the legislature did not intend this.”
There is some merit in this submission. It is in effect another indicator of the nature of the relationship between the parties.
CONCLUSION
I have been guided in my review of the Arbitrator’s determination by the helpful observations of Basten JA in the recent decision of Wesfarmers. I have come to the conclusion that the true and correct view is that Ms Bradshaw and her husband were running their own business. Ms Bradshaw was clearly not a person who served the Tavern in the Tavern’s business: she was carrying on a business of her own as a member of a duo hired out to play at a venue.
As Dixon J said in Humberstone v Northern Timber Mills (1949) 79 CLR 389 although in reference to the provisions of the current Schedule 1.2 (2) (1):
“ A person conducting a business in the course of which he contracted to perform work should himself carry the risk of personal injury as one of the hazards of his business, while the man who worked under contract but only for the employer or without any general trade or business or outside his trade or business, should, like an ordinary employee, be insured by the act against the risk of injury in his work.”
Accordingly, the decision of the Arbitrator must be revoked. Ms Bradshaw’s concerns as to safety factors at the venue may ground another cause of action, but that is not for me to determine.
DECISION
The decision of the Arbitrator dated 27 August 2008 is revoked and the following decision made in its place:
(1) Award in favour of the Respondent.
COSTS
No order as to costs of the appeal.
Deborah Moore
Acting Deputy President
3 December 2008
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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