Rus and Comcare (Compensation)

[2019] AATA 4089

Rus and Comcare (Compensation) [2019] AATA 4089 (2 October 2019)

Division:GENERAL DIVISION

File Number:           2014/4611

Re:Christine Rus

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:2 October 2019

Place:Melbourne

The Tribunal decides to:

1.set aside the reviewable decision of the respondent made on 10 July 2014 affirming its earlier decision dated 15 April 2014; and

2.substitute a decision that the applicant’s late husband was an employee within the meaning of s 5 of the Safety, Rehabilitation and Compensation Act 1988.

3.

[sgd]...................................................................

S A FORGIE
Deputy President

Catchwords

COMPENSATION – whether an ‘employee’ as defined in the Safety, Rehabilitation and Compensation Act 1988 – whether engaged under an enactment – where engaged as a labourer under a contract of service – decision set aside and substituted

Legislation

Administrative Decisions (Judicial Review) Act 1977
Australian Wool Testing Authority Act 1957
Commonwealth Employees’ Compensation Act 1930-1959
Health & Other Services (Compensation) Act 1985
Safety Rehabilitation and Compensation Act 1988
Victorian Workers’ Compensation Act 1958
Wool Industry Act 1962

Cases

Australian National University v Burns [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5 ALD 67
Australian National Airlines Commission v Newman (1987) 162 CLR 466; 70 ALR 275
Christofis v Tomazos Bros Pty Ltd (1986) 83 FLR 183
Deputy Commissioner of Patents v Board of Control of Michigan Technological University [1979] FCA 84; (1979) 43 FLR 9; 28 ALR 551; 2 ALD 711
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45; (2015) 256 CLR 137; (2015) 326 ALR 470; 90 ALJR 107; 255 IR 229
General Newspapers Pty Limited and Others v Telstra Corporation [1993] FCA 473; (1993) 45 FCR 164; 117 ALR 629
Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289
Mutual Acceptance Co. Ltd v Federal Commissioner of Taxation [1944] HCA 34; (1944) 69 CLR 389; [1945] ALR 1; (1944) 7 ATD 506
Rus v Comcare [2017] FCA 239; (2017) 160 ALD 135
Scharer v New South Wales [2001] NSWCA 360; (2001) 53 NSWLR 299; 116 LGERA 217

REASONS FOR DECISION

Deputy President SA Forgie

1. In a judgment dated 10 March 2017, Bromberg J allowed an appeal from my decision in Re Rus and Comcare made on 20 January 2016.[1]  I had affirmed a reviewable decision made by Comcare affirming its earlier determination dated 15 April 2014.  It had determined that it was not liable to pay compensation to the widow of the late Mr Francis Michael Rus, Mrs Christine Rus, in respect of his death as a result of mesothelioma.  The basis of Comcare’s determination was that it was not satisfied that Mr Rus had been an “employee” as defined in s 5 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).  Therefore, it determined that it had no liability to pay compensation to Mrs Rus under s 14 of the SRC Act.  The error identified by Bromberg J was that I had incorrectly excluded Mr Rus’s statements in determining the capacity in which he had provided work at the Australian Wool Board (AWB).  He remitted the matter to the Tribunal to reconsider the question of whether Mr Rus was an employee of the AWB within the meaning of s 5 of the SRC Act.  The question was to be decided without further evidence unless proper cause be shown.

   [1] Rus v Comcare [2017] FCA 239; (2017) 160 ALD 135; Bromberg J

2. For the reasons I give below, I have decided that the late Mr Rus was an employee of the AWB for a period towards the end of 1965.

   THE FEDERAL COURT’S JUDGMENT

3. The main points made by Bromberg J in his judgment were:

   “12.     The question for the AAT was whether Mr Ruse had been an ‘employee’ of AWB.  That question was to be answered by reference to the balance of probabilities.  In circumstances where the AAT accepted that Mr Rus had worked at AWB, it was necessary for the AAT to determine what best explained that fact.  There were 3 possible explanations:

   (1)       Mr Rus was directly engaged as an employee under s 27 of the WI Act;

   (2)Mr Rus was employed by an independent contractor engaged under s 24 of the WI Act; or

   (3)Mr Rus was engaged directly under s 24 of the WI Act as an independent contractor.

   …

   24.The probative value of Mr Rus’s statements in the context of the other evidence before the Tribunal was a matter for the Tribunal.  It was open to the Tribunal to give less significance to those statements than is implicit in the observation I have just made.  However, it was wrong for the Tribunal to exclude from its consideration Mr Rus’s statements in determining the capacity in which Mr Rus provided work at AWB.

   …

   29.The Tribunal’s task was to determine whether or not it was satisfied that Mr Rus was an ‘employee’ pursuant to s 5 of the SRC Act.  That task could not have been properly performed if material important to the formation of the requisite state of satisfaction or non-satisfaction was ignored.  In the context of the material available to the Tribunal, Mr Rus’s statements were critical to the fact of employment which was the critical fact in the case.  The Tribunal’s failure to take that material into account affected the exercise of its power and resulted in an error of law.”

LEGISLATIVE BACKGROUND

Safety Rehabilitation and Compensation Act 1988

1. Section 14(1) of the SRC Act provides:

   “Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

2. Section 17 of the SRC Act applies where an injury to an employee results in death.  Subject to certain qualifications that are not relevant in this matter, s 17(3) provides that Comcare is liable to pay compensation in respect of the injury if the employee dies leaving any dependants, some or all of whom were wholly dependent on him or her at the date of his or her death.  Mrs Rus made a claim dated 13 February 2014 on the basis that she had been wholly dependent on her husband.

3. The word “employee” is defined in s 4(1) of the SRC Act by reference to the meaning given in s 5. In so far as it is relevant, s 5(1) provides:

   “employee means:

   (a)a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or

   (b)a person who is employed by a licensed corporation.”

4. Sections 5(1A) to (17) go on to qualify and refine the meaning given to the word “employee” by s 5(1). I note that s 5(4) provides:

   “A person:

   (a)who is ordinarily engaged for employment at a prearranged place at which employers engage persons for employment; and

   (b)whose last employer under an engagement at that place was the Commonwealth, a Commonwealth authority or a licensed corporation;

   shall for the purposes of this Act, be taken to be employed by the Commonwealth, that authority or that corporation, as the case may be, until the person is next engaged under such an engagement, and the person’s employment shall, for those purposes, be taken to be constituted by the person’s attendance at that place for the purpose of seeking such an engagement.”

Wool Industry Act 1962

1. The AWB was established by s 8, which is set out in Part II of the Wool Industry Act 1962 (WI Act), as a body corporate with perpetual succession.[2]  Its functions included the promotion and use of wool and wool products in Australia and overseas and to inquire into, and report to the Australian Wool Industry Conference, methods of marketing wool.[3]  In view of that, I have concluded that it was a body corporate incorporated for a public purpose by a law of the Commonwealth as set out in paragraph (a) of the definition of “Commonwealth authority” in s 4(1) of the SRC Act.  Therefore, if Mr Rus was employed by the AWB, he was employed by a Commonwealth authority and so an “employee” for the purposes of the SRC Act.

   [2] The AWB was amalgamated with the Australian Wool Commission in January 1973 to become the Australian Wool Corporation.  Later, in July 1991, the Australian Wool Corporation was divided into three: the Australian Wool Realisation Commission, the Wool Research and Development Corporation and the Australian Wool Corporation.  In December 1993, the Australian Wool Corporation merged with the Wool Research and Development Corporation to form the Australian Wool Research and Promotion Organisation.  A merger between the Australian Wool Research and Promotion Organisation merged with the International Wool Secretariat and governed as one under the control of the former.  Each of these bodies was a body corporate established, or continued in existence, by Commonwealth legislation.  With effect from 7 December 2000, the Wool Services Privatisation Act 2000 converted the Australian Wool Research and Promotion Organisation to a body registered as a public company limited by shares under the Corporations Law and known as the “Australian Wool Services Limited”.

   [3] Wool Industry Act; s 24(1)

2. Division 4 of Part II of the WI Act is entitled “Staff of the Board”.  Sections 27 to 31 of the WI Act were concerned with the AWB’s officers and employees.  Section 27 provided:

   “(1)      Subject to this Act, the Board may appoint such officers and engage such employees as it thinks necessary for the purposes of this Act.

   (2) The terms and conditions of employment of persons so appointed or engaged are such as are determined by the Board.

   (3) Salary is not payable to a person so appointed or engaged at a rate that exceeds Three thousand seven hundred and fifty pounds per annum unless the Minister has approved the payment of salary at that rate to that person and the other terms and conditions of employment applicable to him.

   (4) The last preceding sub-section does not apply in relation to the salary of a person appointed as an officer, or engaged as an employee, of the Board in pursuance of sub-section (2) of the next succeeding section, or in pursuance of sub-section (2) of section sixty-one of this Act, if the rate of the salary does not exceed the rate of salary payable to the person immediately before he was so appointed or engaged.”[4]

   [4] The reference to s 61(2) is a reference to the preservation of the rights of a person who was, before the commencement of Part III of the WI Act, an officer or a temporary or casual employee of the

3. Section 28 provided for a person who was, immediately before the establishment of the AWB, employed by the Australian Wool Bureau.  By force of s 28, such a person continued in the employment of the Board under the same conditions until either appointed as an officer, or engaged as an employee, of the Board.  Section 29 preserved the rights of a full-time member of the Board or an officer of the Board when that person had been, immediately before his or her appointment to one or other of those positions, an officer of the Public Service of the Commonwealth.

4. Section 30 provided for compensation in the following terms:

   “The Commonwealth Employees' Compensation Act 1930-1959 applies to members of the staff of the Board as if they were employees within the meaning of that Act and as if references in that Act to the Commonwealth were references to the Board.”

   Section 6 of the WI Act defined a number of terms including the following:

   “‘member of the staff of the Board’ means an officer or employee of the Board, and includes a person who is in the employment of the Board by virtue of sub-section (1) of section twenty-eight, or sub-section (1) of section sixty-one, of this Act.”

5. Section 31 set out the circumstances in which the AWB would be taken to be an approved authority for the purposes of the Superannuation Act 1922-1959.

   BACKGROUND

6. In this section of my reasons, I will set out those factual matters on which there is no dispute between the parties and that I have found on the evidence.

7. Mr Rus was born in September 1950.  At some time before 1 November 2012, he had presented to Dr James Bartlett, Respiratory Physician, with a two month history of weight loss and right-sided back pain.  He was referred to Mr Stephen Barnett, Cardiothoracic Surgeon, who first saw him at the Western Hospital on 1 November 2012.  Mr Rus’s history was reviewed by a multi-disciplinary team at the Western Hospital.  Following surgery on 8 November 2012, when a representative biopsy was taken, Mr Rus was diagnosed as suffering from mesothelioma of an epitheloid sub-type.[5]  Mr Rus died in November 2013 leaving his widow and three adult children.  He was then 63 years of age.

   [5] Report of Mr Barnett dated 13 December 2012: T documents; T3.5 at 23

8. Mr Rus commenced proceedings against Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd), Comcare and 13 Frances Ave. Pty Ltd (ACN 004 754 965), which was formerly known as Pethard Insulations Pty Ltd.  The proceedings were settled and Mr Rus executed a Deed of Release of Claim on 26 April 2013.  He did so in consideration of the three defendants to the proceeding paying him the sum of $1,000,000 inclusive of his costs and disbursements of and incidental to that proceeding and less any amounts any of the defendants were required to pay to agencies such as Medicare Australia under the Health & Other Services (Compensation) Act 1985.  In consideration of the defendants’ promise to pay, Mr Rus released the defendants from all future liability in relation to asbestos related injuries, diseases or conditions whether then present or contracted in the future.  The Deed of Release of Claim specifically excluded from its terms any claim that might be made under the SRC Act or the Victorian Workers’ Compensation Act 1958, which might be brought by a dependant of Mr Rus against the defendants.

9. By entering the settlement, cl 7 of the Deed of Release of Claim expressly stated that the defendants did not admit liability.  Comcare paid 10% of the settlement monies.  Putting aside any liability it might have to an employee or an independent contractor working on its premises, the Commonwealth has a duty of care to any person performing work in any capacity on its premises.  Whether or not Mr Rus was an employee was irrelevant to any liability that the Commonwealth incurred.

   THE EVIDENCE

Records held by Mr Rus or by the Commonwealth

1. No records such as payslips, taxation returns, superannuation records or the like showing Mr Rus receiving payment from the AWB have been produced.  Despite searches of the National Archives of Australia (Archives), the Department of Agriculture and successors of the AWB, no employment records relating to Mr Rus have been located by Comcare.

References to places in which Mr Rus worked in interview notes and medical reports

1. In the following table, I have set out the source and nature of the evidence I have regarding whether or not Mr Rus was an employee of the AWB.  In the headings in the table, I have used the neutral term of “work”.   In respect of each place of work, the first entry in the table is taken from the typed version of notes taken by Ms Suzanne Sanford, Principal Lawyer, from Mr Rus’s solicitors, Slater and Gordon.  In some instances, I have noted differences between the type version of the notes and the handwritten notes Ms Sanford took at the interview, which took place when Mr Rus was in hospital.  The notes regarding her handwritten notes appear in italics in the third column.  Interspersed in the table are references from the AWB’s Annual Report. 

Source		Place of work			Nature of work
Ms Suzanne Sanford, Principal Lawyer, Slater and Gordon Typed notes of interview with Mr Rus in hospital on 27 November 2012.[6]		Seven X Beverages 1963 (approximately 18 months)			Mr Rus’s first job was “… working on the line packing bottle and driving forklifts.”  He remained there for approximately 18 months. Note: The handwritten notes make no mention of “working” or use any other word to describe what Mr Rus did.  After identifying Seven X Beverages, the notes read: “… I was on line packing bottles driven forklift …”
Professor Richard Fox’s report dated 24 February 2013 after seeing Mr Rus on 11 February 2013[7]		“He said that he commenced work with a Company called 7Ex beverages in Sunshine who manufactured carbonated soft drinks.  He said that he worked for them for 1 to 1½ years.  He was largely loading boxes with drink bottles as well as packing in general.”
Dr Roger Woodruff’s report dated 8 April 2013		Dr Woodruff makes no mention of Seven X but begins his summary of Mr Rus’s work history with the statement: “… He left school at the age of 11 and had a variety of jobs over the following years, none of which he believes involved significant exposure to asbestos dust.  He volunteered that his memory was a little ‘fuzzy’ since he started taking oxycodone.”[8]
The AWB’s Annual Report for 1964-1965 included a passage reading: “WOOL STORES ADMINISTRATION The wool stores vested in the Board comprise a substantial commercial asset and the income from rentals has materially assisted the Board in financing its activities. The stores were vested in the Australian Wool Bureau in 1954.  They were originally purchased by the Commonwealth … It is the function of the Board to manage and maintain these assets and, if necessary develop them.  A great deal of expenditure involved in holding wool stores represents repairs, maintenance and fire watching services. The stores are basically sound but are in constant need of attention.  Some have been replaced and after a great deal of research the Board has adopted a satisfactory design for new storage units. … For the year ended June 30, 1964, gross revenue from wool stores amounted to £631,000; for the year ended June 30, 1965 the revenue was £690,381.  It is anticipated that the gross revenue for the year 1965/66 will be approximately £831,000. After paying all expenses the surplus revenue contributed £384,400 to the Board general fund and the contribution in the year 1965/66 should be approximately £512,000. …”[9] A picture next to the text is accompanied by the text: “Workmen repairing one of the several hundred wool stores in the care of the Australian Wool Board.  The sheep in the foreground are kept to eat the grass around the stores and thus reduce the fire risk.”[10] The Statement of Income and Expenditure for the year ended 30 June 1995 includes entries for fees and expenses of members of the AWB and those of the Australian Wool Industry Conference Executive. Also included is a figure of £385,560 for salaries divided among Administration, Promotion, Publicity, Technical and Other Services, Wool Statistical Service, Wool Stores and the Australian Wool Testing Authority.  The salaries for the Wool Stores are shown as £58,184 for the 1964/65 year and £48,444 for the previous year, 1963/64. “Other expenses” totalling £948,109 are shown for the same areas of the AWB’s operations.  The other expenses for the Wool Stores were £248,461 for 1964/65 and £247,774 for 1963/64. A note to the figure of and £247,774 for 1963/64 explained: “For comparative purposes the 1964 figures have been altered to include Wool Stores wages in the salaries figure.  In the 1964 accounts wages were included in ‘Other Expenses.”[11]
Ms Sanford’s typed notes		RMD Press 1965 (approximately 8 months)			“This firm made exhaust flanges, etc for Victa mowers.  I did welding there. …”
Professor Fox		“Following that he went to work for RMD Press Engineering in Wright Street, Sunshine.  He said he worked there for approximately 1 year.  He said he worked on soldering petrol tanks which were used in Victor [sic] lawn mowers. …”
Ms Sanford’s typed notes		AWB 1965 (approximately 3-4 months)			“… Somerton Road, Somerton/Brooklyn I was employed here as an assistant maintenance worker.  They wanted to train me to be the maintenance worker at one of their other sites.  I only lasted a few months there because it was such dusty work.  The work I did there was to assist in the repair of the damaged sheeting on the walls, roof and guttering of the buildings at the Australian Wool Board sites.  The walls were asbestos corrugated cement sheeting, the roof was asbestos corrugated sheeting and the guttering was asbestos sheeting.  I used a grinder to cut old sheets and I cut to size the new replacement sheeting also with a grinder.  The new sheeting came from the storage sheds on the various sites.  I don’t recall any markings to identify the sheeting manufacturer however I do have a recollection of an oval-like impression on the sheeting.  It didn’t have any colour and I don’t know what the impression said.  I recall the corrugation was a large corrugation.”[12] Note: In so far as I can read the handwritten notes, they state: “I was …  [illegible] in asset maintenance.  I ended up leaving bec too dusty I was being taught by the … [illegible] - I was to be at one of the other sites I went with him + the sites repairing the damaged sheeting on ac corrugated walls + roof + gutters on the buildings Used a grinder to cut old sheeting + cut to size the new replacement sheeting got the new stuff from the storage … [illegible] on site – was an oval like impression on sheeting – no colour don’t know what it said – it was a large corrugation - sites – Somerton + Altona Site daily exposure”[13]
Plaintiff’s Answers to Interrogatories rendered by First Defendant, AMACA Pty Ltd (formerly James Hardie & Coy Pty Ltd) to Mr Rus		Interrogatory: “On what date did you commence working for AWB?” Answer: “About August-September 1965” Interrogatory: “On what date did you cease working for AWB?” Answer: “About December 1965”[14]
Plaintiff’s Further and Better Particulars Provided in Response to  Request of the Second Defendant (AWB)		Paragraph 5 of Mr Rus’s Statement of Claim stated he was employed by AWB as a maintenance worker at its warehouses at Somerton Road, Brooklyn, and Altona.[15] Questions[16] and answers[17] as to paragraph 5: Q4: “Between what dates (or for how long) was your client employed to work at the AWB’s premises in Brooklyn?” A4. “The Plaintiff worked 3 to 4 months with responsibility for both sites so moved between them as needed.” Q5. “What was your client’s position whilst employed at the AWB’s premises in Brooklyn?” A5. “Assistant maintenance worker.” Q6. “Please detail your client’s duties whilst employed to work at the AWB’s premises in Brooklyn.” A6. “Cutting out old asbestos cement sheets with an angle grinder; cutting and fixing new asbestos cement sheets;” Q7.”Between what dates (or for how long) was your client employed to work at the AWB’s premises in Altona?” A7. “The Plaintiff worked 3 to 4 months with responsibility for both sites so moved between them as needed.” Q8. “What was your client’s position whilst employed to work at the AWB’s premises in Altona?” A8. “Assistant maintenance worker.” Q9. “Please detail your client’s duties whilst employed at the AWB’s premises in Altona.” A9. “Cutting out old asbestos cement sheets with an angle grinder; cutting and fixing new asbestos cement sheets;”
Professor Fox		“He then went to work for The Australian Wool Board at Millers Road in Altona.  He could not remember how long he worked there and he also spent some time at another site they had in Brooklyn. … He thought that his job was classified as a maintenance worker.  He said he was there for six to twelve months at about the age of 16 in about 1966.”
Dr Woodruff		“In about 1965 he worked for about eight months as a maintenance worker at the Wool Board.  He told me that his job included repairing damaged asbestos cement sheeting and that he would have had daily exposure to asbestos dust.”[18]
The AWB’s Annual Report for 1965-1966 included a passage reading: “WOOL STORES ADMINISTRATION The wool stores vested in the Board comprise a substantial commercial asset and the income from rentals has materially assisted the Board in financing its activities. Wool stores vested in the Board comprise 289, with a total of 9,424,000 square feet.  Originally purchased from funds emanating from the woolgrowing industry, these stores are leased to wool and general industry and provide a substantial contribution to the Board’s financial resources. … In considering the future of wool stores the Board approved the following policy points: «       The stores to be maintained in the best possible condition and with maximum fire protection. «       The standard of storage space to be raised wherever possible to achieve maximum earning capacity. «       The remaining life of the stores to be prolonged by a programme of improvement and redevelopment.  IN special cases new stores should be erected from reserved funds. «       … Maintenance Increasing expenditure on maintenance is now becoming necessary because of the age of the stores.  (They were erected during the second world war as temporary accommodation for the wool clip.)  Some improvement in amenities will be provided.  In the programme of redevelopment, consideration is being given to preventive maintenance in conjunction with the aim to increase revenue through improved standards. Earning Capacity … The following illustrates the progressive increases increases in revenue and the amounts so far set aside for the Board’s redevelopment programme.
Financial Year	Revenue		Expenditure	Revenue Surplus		Recladding	Allocation for Development Expenditure
New Stores & Roadways	Reserves
1963/64	$1,232,100		$632,810	$599,290		-	-	-
1964/65	$1,429,522		$618,890	$810,632		­-	$3,764	-
1965/66	$1,702,796		$669,930	$1,032,866		$23,340	$93,663	$200,000
1966/67	$2,091,300		$692,120	$1,399,180		$148,300	$85,000	$200,000
Redevelopment The Board has assessed the remaining useful life of the stores and has decided to institute a programme of redevelopment. This is necessary to maintain the compounds as a continuing investment and to perpetuate the available warehousing space for possible use by the wool industry and the Board, and also for possible future use by the Commonwealth as provided in the Wool Industry Act. A start has been made in Victoria and Queensland.           A new store was erected at Brooklyn, Victoria, during the year and is occupied under lease. …”[19]
Ms Sanford’s typed notes		Smorgen 1965-1967			“Smorgan [sic], Somerton Road, Brooklyn I worked in the paper mill on a rewinder machine – I was an assistant rewinder. …”[20]
Professor Fox		“He then went to work for Smorgen’s Paper Mill in Brooklyn for a three year period.  He worked on the paper rewinding machine. …”
Professor Fox		Omega Chemicals (1 month)			“He said he had many jobs in various chemical plants which he could not specifically remember.  He said one of these was Omega Chemicals in Brooklyn … He only worked there for one month.”
Professor Fox		Lysaght Chemicals (1 year)			“He also worked at what he said was Lysaght Chemicals in Brooklyn for a one year period. …:”
Ms Sanford’s typed notes		Deer Park Engineers 1967 (on/off for 2 years)			“I worked here as a Maintenance Fitter.  I used to go to different sites … … I recall the sites we worked at were: … At ICI, I also worked in the shot pallet area and in that area there was a lot of asbestos sheeting which I would remove … During this employment, I would say my exposure to asbestos was probably occurring on a once-a-week basis.”[21]
Professor Fox		“Following that he went to work at Deer Park Engineering in Deer Park.  He was aged 18 at this time.  He said he worked on an on and off basis over what he thought might have been 3 or 4 years although his memory was not terribly good. …”
Dr Woodruff		“From about 1967 to 1969 he worked for Deer Park Engineering as a maintenance fitter.  He told me that his job involved removing old asbestos lagging and replacing it with new.
The AWB’s Annual Report for 1966-1967 included a passage reading: “Income from wool stores vested in the Board continues supply an increasing volume of funds to help finance the Board’s activities.  The stores are being managed to achieve the maximum commercial advantage to the industry within the provisions of the Wool Industry Act. Apart from normal maintenance, a programme has been developed to raise the standards and prolong the life of the stores, each project being carefully considered so that the most economical use may be made of the Board’s wool store reserves. The wool stores policy has been pitched to provide flexibility, having in mind possible needs of any changes in the marketing system. During the year the Melbourne stores on freehold land were reclad with fire-resistant material, and gravel road-ways were replaced by bituminous cement surfaces.”[22] The Annual Report set out details of the AWB staff in 1966-1967.  The responsibilities of the Wool Stores Administration were explained to be “Administration of 289 wool stores throughout Australia, including rental and maintenance of stores. … During 1966-67, expenses, mostly comprising labour, rental and rates, were contained within a reasonable rate of increase, while income has been rising steadily.  The gross income target is $2,500,000 a year.” The number of staff in Wool Stores Administration was shown as 64 of a total of 325 staff in the AWB.[23]
Ms Sanford’s typed notes		Calsil Bricks (now Boral) 1969/1970 (approximately 1 year)			“Here I worked on the lime sand moisture mix for the brick mixture and I ran the ball mil. …”[24]
Professor Fox		Professor Fox’s report reversed the timing of Mr Rus’s working at Calsil Bricks and Pethard Insulations. “Following that [working at Pethard Insulations] he went to work for Calsal Bricks in Deer Park who manufactured a specific form of white brick. … He did this for two or three years.
Ms Sanford’s typed notes		Pethard Insulations 1970 (approximately 2 years)			“Here I was employed as a lagger.  I would take asbestos lagging in the ute for small jobs and for the larger jobs, the asbestos lagging was delivered on-site by Pethard’s.  It was sectional lagging which I cut with knives and saws generally not usually powered equipment.  The work with Pethard’s was primarily installing new asbestos lagging.  The only job I recall where I removed old lagging was at the Dow Chemicals Factory in Altona where I spent 3-4 months.  After removing the old lagging, I replaced with new sectional lagging. … I also installed lagging at a sewerage farm near Hastings …  Because it was underground, the floor was damp however I would cut the lagging up above ground and that was dusty.  I was at the site for about six months. … “[25] Note: The handwritten notes state: “I was employed as a lagger….”
Professor Fox		“Following that that [working at Deer Park Engineering] he went to work for Pethard Insulation in Richmond for 1½ years.  He was sent out to work on various sites, one of which included Dowd Chemicals. …”
Dr Woodrfuff		“From about 1970 to 1972 he worked for Pethard Insulation.  He worked as a lagger, insulating pipes and tanks. From the early 1970s he worked as a plasterer.  He told me that this involved cutting up asbestos cement sheeting on a daily basis.  …”[26]
Ms Sanford’s typed notes		Loys 1972 (approximately 6 months)			“Loys (selling drinks door-to-door)”
Professor Fox		(approximately 2 months)			“He then worked for Loys drinks working as a door to door salesman selling the drinks over a two month period.”
Ms Sanford’s typed notes		Reg Rordink Plastering Contractor 1972/1973			“I worked with him for about 18 months.  During this employment, we did demolish small extensions … generally consisting of asbestos cement sheeting … I probably did this about once a month”[27] Note: The handwritten notes record: “Reg Rordink contractor Initially worked for a guy for about 18 months.”
Professor Fox		No reference to Reg Rordink Plastering Contractor in Professor Fox’s report.
Ms Sandford’s typed notes		Hallmark Plaster 1973/4 (approximately 1 year)			“I also recall that, after I left Reg Rordink, I actually worked on my own as a subcontractor to Hallmark Plaster which subsequently sold to Brooklyn Plaster.  They not only supplied the asbestos cement sheeting but also the jobs.  I spent about a year working with them before they suggested that I should set up my own [sic].” Note: The handwritten notes make no mention of Hallmark Plaster but they do refer to Brooklyn Plaster.  Following the handwritten note I have set out in the previous box, is written: “- I was leaving + then started our business …”
Professor Fox		No reference to Hallmark Plaster in Professor Fox’s report.
Ms Sanford’s typed notes		F&C Rus Plastering (Later Doo-Rite Plasterers Pty Ltd) 1974 to 2012			“… I then started my own business …  The work I did here was similar to the work with Reg … About five years ago, I cut down on work because I had a stroke.  My wife and son now run the successor to Doo-Rite plasterers being King Homes and it has the same ABN number s Doo-Rite plastering.  Since I had the stroke five years ago, I’ve done some hands-on work.  I am employed as Site Supervisor.  My wife & I are being paid $… between the two of us. … ”[28]
Professor Fox		“He then at the age of 22, commenced in a plastering business. … he said he started this in 1972 and continued that work until he became unwell in August of last year.  He did fix boards in bathrooms in houses undergoing renovation. …”

[6] Exhibit B

[7] Professor Fox is an Honorary Consultant, Department of Clinical Haematology and Medical Oncologyat the Royal Melbourne Hospital.  His report is at Exhibit 1; T3.7 at 27-31

[8] T documents; T3.9 at 35

[9] T documents; T17 at 42

[10] T documents; T17 at 42

[11] T documents; T17 at 44

[12] Exhibit B

[13] Exhibit B.  The missing word in the second line is not “employed” for that word is clearly used under the entry for Pethard Insulations.

[14] Exhibits H and I

[15] Exhibit E

[16] Exhibit F

[17] Exhibit G

[18] T documents; T3.9 at 35

[19] T documents; T18 at 69

[20] Exhibit B

[21] Exhibit B

[22] T documents; T19 at 98

[23] T documents; T19 at 98

[24] Exhibit B

[25] Exhibit B

[26] T documents; T3.9 at 35

[27] Exhibit B

[28] Exhibit B

1. In a letter dated 4 December 2012, Mr Rus’s solicitors wrote to Mr Michael Kottek, an Occupational and Environmental Health Consultant, seeking his opinion as to the nature and level of their client’s exposure to asbestos.  In his report dated 11 December 2012, Mr Kottek confirmed the occupational history provided by Ms Sandford.  That occupational history was:

   “Mr Rus instructs he was employed as follows:

   1.1963 (18 months), with Seven X Beverages, Wright Street, Sunshine

   2.1965 (8 months), with RMD Press, Tottenham

   3.1965 (3-4 months), with Australian Wool Board, Somerton Road, Somerton/Brooklyn

   4.1965 – 1967, with Smorgan, Somerton Road, Brooklyn

   5.1967 (on-off for 2 years), with Deer Park Engineers, Ballarat Road, Deer Park

   6.1969/1970 (approx 1 year), with Calsil Bricks (now Boral), Deer Park

   7.1970 – 1972, with Pethards Insulation

   8.1972 (approx 6 months), with Loys (selling drinks door-to-door)

   9.1972/1973, with Reg Rordink Plastering Contractor

   10.1973/1974 to date, with F&C Rus Plastering (later Doo-Rite Plasterers Pty Ltd)”

1. Mr Dean Rus is Mr Rus’s son.  He was 36 years of age when his father died on 23 November 2013.  In his affidavit sworn on 13 October 2015, Mr Dean Rus recalled a conversation he had with his father in approximately 1995 when he was 17 or 18 years of age.  He set out the effect of that conversation in the following passage:

   “I said:

   ‘I’m working at Jupps on Brooklyn Road.’

   He said:

   ‘I used to work around the corner from Jupps at the Australian Wool Board.’

   I said:

   ‘What did you do there?’

   He said:

   ‘I used to do maintenance on the building there.  I repaired the asbestos cement fibro sheets.  I did not know the stuff was dangerous at the time.’

   I said:

   ‘Whenever somebody backs a car into the wall at Jupps, it cracks the panels and it has to be replaced as it’s also made of asbestos cement fibro.’

   He said:

   ‘Yeah, it’s made of the same stuff as the Australian Wool Board was.’”[29]

   [29] Exhibit A at [5]

1. Mr Dean Rus also recalled a conversation he had with his father and his wife in approximately 2000.  He said:

   “In about 2000, my wife, Anita, worked for a show bag packing company, Hunter Leisure, at the former Australian Wool Board, on Brooklyn Road.  I remember my father, Anita and I having a conversation to the following effect:

   Anita said:

   ‘I’m working at the old Australian Wool Board, packing show bags,’

   My father said:

   ‘I used to work for the Australian Wool Board.  I drove past it recently and I saw that they have changed the asbestos cement cladding on the outside of the buildings from when I used to work there.”[30]

[30] Exhibit A at [6]

1. Mr Dean Rus also recounted other conversations he had with his father:

   “Between about 2000 until about 2012 when my father got sick, we worked together performing building and plastering work.  We always drove together to whichever job site we were working on at the time, and my father always pointed out the various places around Western Victoria where had previously worked.

   About once every two months, my father and I cut through Somerville Road on the way to Altona and he pointed out the old Australian Wool Board, where he used to work.

   On many occasions during this period, my father told me he was employed by the Australian Wool Board in about 1965 as a maintenance person.

   I believe my father was employed by the Australian Wool Board in about 1965 as we spoke about it on many occasions.  He always talked about the different jobs he had and this was one of them.”[31]

   [31] Exhibit A at [7]-[10]

1. I also note that, in his report, Professor Fox made the following comment:

   “It was interesting that both he and his wife when told of the diagnosis of mesothelioma were quite surprised because they had no recollection that Mr Rus had actually worked with asbestos materials.”[32]

   [32] T documents; T3.7 at 29

2. Professor Fox’s comment is consistent with the history taken by Dr Woodruff, and recorded in his report dated 8 April 2013:

   “Mr Rus was born in Melbourne.  He left school at the age of 11 and had a variety of different jobs over the following years, none of which he believes involved significant exposure to asbestos dust.  He volunteered that his memory was a little ‘fuzzy’ since he started taking oxycodone.”[33]

   [33] T documents; T3.9 at 35

1. The other medical practitioners who have prepared reports included in the T documents have not made any reference to the AWB.  They are:

   (1)Mr Stephen Barnett; report dated 13 December 2012:

   “The patient clearly remembers throughout his career cutting asbestos sheeting in his work as a builder. …”[34]

   (2)       Dr Allan Zimet, Oncologist; report dated 10 February 2013:

   “Mr Rus was a Builder for many years.  During that time he would have had significant exposure to asbestos.

   This exposure to asbestos is the cause of his mesothelioma.”[35]

   [34] T documents; T3.5 at 23

   [35] T documents; T3.6 at 25

   CONSIDERATION

2. None of the evidence that I have includes a document such as a record of interview or notes of an interview signed by Mr Rus.  Documents such as the Statement of Claim and the Plaintiff’s Answers to Interrogatories Rendered by the AWB will have been prepared on his instructions.  I accept that Mr Dean Rus has given evidence of the conversations with his later father as he recalls them.  That said, there are discrepancies among the documents that have some relevance.  I take as an example the handwritten notes taken by Ms Sandford when Mr Rus was in hospital and the typed version.  Whether Mr Rus worked, to use a neutral word, at the AWB as an assistant maintenance worker, as the typed notes record, or in asset maintenance as would seem to be noted in the handwritten version, the word “employed” that appears in the typed notes makes no appearance at all in the handwritten notes.  It is a word used in the handwritten notes to describe Mr Rus’s status at Pethard Insulations but the way it is written in that note bears no resemblance to the word that is illegible in the notes relating to Mr Rus’s working at AWB.

3. I also note that there are other discrepancies between the notes and the evidence in, for example, the report of Professor Fox.  The typed notes refer to Mr Rus’s being employed at the AWB for three to four months in 1965 and Professor Fox’s report refers to his being a maintenance worker at the AWB at Altona and Brooklyn for six to twelve months during 1966 when he was 16 years old.  There are other examples but I do not think that they undermine the general evidence that points to Mr Rus’s working at the AWB at some time in approximately 1965.  Mr Rus’s reference to working at Brooklyn as well as at Altona is not inconsistent with the reference in the AWB’s 1965-1966 Annual Report that a new store was erected at Brooklyn, Victoria, during the year.[36]  Even if that store did not require maintenance, the reference made to in the Annual Report does not mean that it was the only wool store at Brooklyn.  The AWB’s 1966-67 Annual Report includes a photograph of 28 of the AWB’s then 289 wool stores.  The photograph shows 16 wool stores grouped in one compound with another 12 in a different compound located to the rear.  Mr Rus’s evidence that he did maintenance work at Brooklyn is consistent with there being a new wool store erected there while he was there.

   [36] T documents; T19 at 98

4. I have given examples only but, having regard to all of the evidence, including the discrepancies, I am satisfied that Mr Rus worked at the AWB in the maintenance of its wool stores.  He worked with another person, who taught him and who worked alongside him at the Altona and Brooklyn sites.  I do not need to go any further to identify the nature of the work because all that I need to do is to decide whether he was an “employee” of the AWB when undertaking that work.

5. Section 5(1)(a) of the SRC Act sets out a general definition of the word “employee” in the context of the Commonwealth or, as is relevant in this case, a Commonwealth authority.  It does so in terms of a person’s being “employed under a law of the Commonwealth or of a Territory” or “under a contract of service or apprenticeship”.  The WI Act is a law of the Commonwealth.  Division 4 of Part II of the WI Act provides for the staff of the AWB.  The staff of the AWB includes officers and employees it engages for the purposes of the WI Act.  The AWB determined the terms and conditions of employment of persons appointed as officers or engaged as employees.  Sections 27(3) and (4) determined the maximum rate of salary payable to an officer or employee.

6. Despite conducting searches for documents and records held by the AWB, none has been found to show that Mr Rus was one of its employees.  When I have regard to the AWB’s Annual Reports, to the inability to find any records of his employment and to the general nature of the work that I have accepted Mr Rus undertook, I have come to the view that he would not have been engaged as an employee under s 27 of the WI Act and would not have been appointed as an officer. 

7. Although he was being taught by another person at the wool stores, I have no evidence that Mr Rus was employed by the AWB under an apprenticeship.  That leaves in issue whether he was “employed … under a contract of service” within the meaning of paragraph (a) of the definition of “employee” in s 5(1) of the SRC Act. Comcare has submitted that this is not in issue because the WI Act limited the powers of the Board to engage employees to those under s 27. It has no power to employ a person under a contract of service or apprenticeship. I do not agree with that submission and will now set out my reasons.

8. My reasons begin with a consideration of the meaning of a “contract of service”.  In his judgment,[37] Bromberg J analysed a number of authorities directed to the identification of an employer/employee relationship.  The essence of his analysis on that subject is set out in the following passage from his Honour’s reasons for judgment:

   [37] Rus v Comcare [2017] FCA 239; (2017) 160 ALD 135

   “13.     As between the first two possibilities, both of which are founded upon an acceptance that Mr Rus was an employee, Mr Rus’s statements were clearly relevant. As Finn J said at [20] of Re C & T Grinter Transport Services Pty Ltd (In Liquidation) & Grinter Transport Pty Ltd; Ex parte Fitzgerald [2004] FCA 1148 (emphasis added):

   [20] The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following:

   (1) ...

   (2) The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44].

   (3) ...

   (4) Conversations and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford.

   (5)...

   14.Those principles were adopted by Edmonds J in Gothard, Re AFG Pty Ltd (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163 at [54] and most recently by Katzmann J in Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 at [132], where her Honour stated that the principles were settled.

   15.Although the fourth principle identified by Finn J is expressed by reference to the belief of employees, its source, Pitcher v Langford (1991) 23 NSWLR 142, actually considered the relevance and admissibility of a statement made by a putative employer about his understanding of his relationship with a worker. The understanding of the putative employer was that he was not “the true employer”. That was regarded as both relevant and admissible.

   16.Pitcher was an early adopter of the multi-factorial, reality-based approach to the determination of the nature of the legal relationship between a worker and the entity to whom that person’s work was provided. That approach, confirmed in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 and applied in cases such as On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; (2011) 214 FCR 82 and Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 focuses upon the substance and reality of the relationship by examining the totality of that relationship through a range of relevant indicia. One such indicia is the characterisation given to the relationship by the parties themselves: On Call at [218]; Quest South Perth Holdings at [148]. Whilst that characterisation is not determinative, it is nevertheless relevant. The approach was perhaps best expressed by the Privy Council in AMP Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385, where (at 389) it was observed that the characterisation made by the parties of their relationship cannot receive effect if it contradicts the effect of the agreement as a whole but, where there is ambiguity, the label provided by the parties may provide clarity.”[38]

   [38] I note that an appeal to the High Court from the judgment of the Full Court of the Federal Court in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd was allowed but not on the point for which it is cited in this passage; see Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45; (2015) 256 CLR 137; (2015) 326 ALR 470; 90 ALJR 107; 255 IR 229; 67 AILR 102-490 French CJ, Kiefel, Bell, Gageler and Nettle JJ

9. As to the evidence that was relevant, Bromberg J said that it is well established that post-contractual conduct may be relevant in deciding whether a person is an employee or an independent contractor.  He referred to a number of authorities supporting his statement.[39]  As to the multi-factorial, reality based approach to determining the nature of a legal relationship between a worker and the entity to whom the worker’s work was provided, a cross-section of factors and realities were identified by Rice J in Christofis v Tomazos Bros Pty Ltd.[40]  They were identified under the headings of control, the duration of the relationship, the nature of remuneration, working hours, acceptance of other employment, provision of tools and materials, right to sub-contract or assign and tax arrangements, holiday pay and allowances.

   [39] [2016] FCA 18 at [17]-[22]

   [40] (1986) 83 FLR 183 at 194-197

10. This is a case in which I have no direct evidence.  I do not have signed statements by Mr Rus and I have no evidence of payments in the form of payslips, taxation returns or books of account held by the AWB.  There are notes of his interview and hearsay evidence given by his son, Mr Dean Rus.  Beginning with payment, I accept that employees and officers of the AWB would have been paid a salary.  I also find that the AWB paid wages from time to time for at least some of those working the wool stores.  I make that finding on the basis of the note at the foot of the AWB’s statement of Income and Expenditure for the 1964-65 income year to the effect that, for comparative purposes, the figures for the 1963-64 income year had been altered to include the wool stores’ wages in the salary figure.  Clearly, at least some of those working in the wool stores had been regarded as receiving wages, and not salary.  That suggests a divide between those receiving salary and wages.  Salary was the subject of ss 27(2), (3) and (4) of the WI Act in respect of employees engaged and officers appointed under s 27 and ss 28 and 29 in respect of former employees of the Australian Wool Bureau and officers of the Public Service respectively.  Wages were not mentioned.

1. In Mutual Acceptance Co. Ltd v Federal Commissioner of Taxation,[41] the High Court was divided as to whether allowances paid to travelling salesmen to reimburse approximately two thirds of the expenses they incurred in using their own motor vehicles came within the meaning of “wages” as defined in s 3 of the Pay-roll Tax Assessment Act 1941-1942.  The word “wages” was defined to mean “… any wages, salary, commission, bonuses or allowances paid or payable (whether at piece work rates or otherwise and whether paid or payable in cash or in kind) to any employee as such and, without limiting the generality of the foregoing, includes …” particular payments then specified. 

[41] [1944] HCA 34; (1944) 69 CLR 389; [1945] ALR 1; (1944) 7 ATD 506; Latham CJ, Starke and Williams JJ; Rich and Dixon JJ dissenting

1. The majority held that the allowances were wages within the meaning of that definition.  Although in the minority, Rich and Dixon JJ briefly addressed the meaning of “salary” and of “wages”.  Dixon J said:

   “… In the definition of ‘wages’ the first two words ‘wages’ and ‘salary’ refer to the ordinary forms of remuneration for work done. …”[42]

   Perhaps reflecting the times, Rich J said:

   “… In ordinary parlance, wages is the term used for remuneration paid for other than ‘white-collar jobs.’  The definition clause is employed to make it clear that, where not otherwise indicated, the Act is intended to apply to all forms of remuneration for all types of services rendered under contracts of service. …”[43]

   [42] [1944] HCA 34; (1944) 69 CLR 389; [1945] 51 ALR 1; (1944) 7 ATD 506 at 403; 6; 514

   [43] [1944] HCA 34; (1944) 69 CLR 389; [1945] 51 ALR 1; (1944) 7 ATD 506 at 398; 4; 511

2. It would seem that was, and had been, the understanding of the word “wages” when the note was written to the Statement of Income and Expenditure in the AWB’s 1964-65 Annual Report.  Wages had been paid to those who supplied the labour in the wool stores.  Salaries were paid to those who were engaged as employees and appointed as members under s 27 of the WI Act.  Wool store wages were now included in salaries and not added to the figure shown against the wool stores in “Other Expenses”.  The fact that they were included in the figure shown in the accounts against “Salaries” did not change the status of those to whom they were paid.  There is nothing in the Annual Reports, and they are the only evidence I have on this subject, to suggest that those working in the wool stores who had been, and were, receiving wages had now been engaged as employees under s 27.

3. Even though they were not employees, is it possible that those to whom wages were paid by the AWB were employed under a contract of service?  Comcare submitted that the WI Act has not made provision for the AWB to employ either outside that legislation or under it in a manner that could be said to be “under a contract of service”.  The AWB submitted:

   “The Board did not have separate authority within the WI Act nor in some form of executive authority outside of the WI Act to engage employees under contracts of service.  Any such engagement would be inconsistent with the statute.  No authority of the Crown has authority to engage a servant on terms at variance with the statute: Director-General of Education v Suttling (1986-87) 162 CLR 427 at 437 and Perry [Perry v Commonwealth [2017] FCA 943; Tracey J].”[44]

   “The WI Act had made no provision to employ outside the Act or under the Act in a manner that could be said to be employment ‘under’ a contract of service rather than ‘under’ the WI Act. It if were correct that all Commonwealth employment is also employment ‘under a contract of service’, there would be no need to include in s 5(1)(a) of the SRC Act any reference to employment ‘under a law of the Commonwealth’ and it would be otiose.”[45]

   “The respondent has not been able to locate any cases from around 1965 involving any Commonwealth employer engaging maintenance workers as employees under a Commonwealth act, let alone under a contract of service.  The respondent has also not been able to locate any cases referring to the Commonwealth employing minors.  See Minns, B.A History in three acts [sic] [electronic resource]: evolution of the Public Service Act 1999, APSC website ( 2004, Chapter 4 where the author notes that in 1941:

   In an interesting, but temporary, reversal of recruitment practice, almost all appointees to the [Public] Service were minors (other than eligible returned soldiers and females).

   The respondent submits that the concept of contractual arrangements with Commonwealth employees barely developed until well after 1965 and has always had at its core the concept that the any [sic] contract must be consistent with the statute.

   The law never developed to the extent that a person could be engaged as a Commonwealth employee other than in cases where there was a specific power of engagement in a statute (regardless whether the statutory provision refers to engagement or employment by contract or otherwise), see Suttling at 437: ‘No agent of the Crown has authority to engage a servant on terms at variance with the statute.

   …

   The WI Act follows the example of other Commonwealth Acts in being a complete code in terms of engagement and terms and conditions of employment, providing no room to engage employees outside s 27(1) of the WI Act or to determine their terms and conditions of employment other than by determination under s 27(2) of the WI Act.  The fundamental nature of the relationship was statutory.’”[46]

   [44] Respondent’s Submissions at [5.19]

   [45] Respondent’s Submissions at [5.30]

   [46] Respondent’s Submissions at [5.32]-[5.37]

1. The submissions focus to some extent on historical issues.  In that context, I note that the Commonwealth Employees’ Compensation Act 1930-1959 (CEC Act) included a definition of “employee” in s 4(1).  In so far as it is relevant in this case, the definition provided:

   “‘employee’ means –

   (a)…

   (b)…

   (c)an officer or employee to whom, or included in a class of officers or employees to which, the Governor-General has declared in pursuance of that Act that the provisions of that Act shall not apply;

   (d)…

   (e)a person who has entered into or works under a contract of service or apprenticeship with the Commonwealth, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing,

   but does not include –

   (f)an outworker;

   (g)…

   (h)…”

2. The effect of s 30 of the WI Act, which I have set out at [11] above, was to treat members of staff of the AWB as if they were employees within the meaning of the CEC Act. That meant that employees engaged, and officers appointed by, the AWB were regarded as employees. This, however, was the effect only of the first part of s 30. The second part of s 30 of the WI Act was to treat references in the CEC Act to the Commonwealth as references to the AWB. It was contemplated, therefore, that a person might have had a contract of service or apprenticeship with the AWB. Whether a person did so depended, in part, on whether the AWB had power to enter such a contract of service and to do so outside the terms of s 27 of the WI Act. The definition did not require that the contract of service be made under an enactment; merely that a person had entered into a contract of service with the Commonwealth.

3. If it chose to do so, the AWB’s power to enter a contract of service is to be found in provisions of the WI Act other than s 27.  Section 5 provided:

   “(1)     The objects of this Act are –

   (a)to promote the export from Australia of wool and wool products;

   (b)to promote trade and commerce in wool and wool products among the States, between States and Territories and within the Territories;

   (c)to encourage the production, and the use, of wool and wool products in the Territories; and

   (d)to ensure the availability, when a state of war, or danger of war, exists, of wool stores for the use for the purposes of the defence of the Commonwealth,

   and this Act shall be construed and administered accordingly.

   (2)The Board, the Authority and any committee established by or under this Act shall not perform its functions or exercise its powers except for the purpose of achieving an object specified in the last preceding sub-section.”

4. Section 24 of the WI Act set out the functions and powers of the AWB:

   “(1)     The functions of the Board are –

   (a)to promote the use of wool and wool products in Australia and other countries;

   (b)to inquire into, and from time to time report to the Australian Wool Industry Conference upon, methods of marketing wool and any other matters connected with the marketing of wool; and

   (c)such other functions as are conferred on the Board by this Act or, being functions conducive to the achievements of an object of this Act, are approved by the Minister.

   (2)The Board has power to do all things necessary or convenient to be done for or in connexion with, or as incidental to, the performance of its functions and, in particular, without limiting the generality of the foregoing, may –

   (a)appoint agents, either in Australia or elsewhere;

   (b)make arrangements conducive to the performance of its functions with persons, authorities or associations in Australia or elsewhere and, with the consent of the Minister, with a State; and

   (c)use such means as it thinks fit for the purpose of promoting the use of wool and wool products, including –

   (i)the use of publicity;

   (ii)the encouraging of research in connexion with the production or use of wool; and

   (iii)the encouraging of the improvements of production of wool in Australia.”

1. When the functions given to the AWB by s 24(1) are read with the objects of the WI Act, it is apparent that one of its functions is to ensure the availability, when a state of war, or danger of war, exists, of wool stores for the use for the purposes of the defence of the Commonwealth.  One of the things that would have been incidental to the performance of that function would have been the maintenance of the wool stores the AWB made available for that purpose.  Section 24(2) gave the AWB power to do all things necessary or convenient to be done in the performance of that function.  That provision does not specify any particular means of exercising that power in the context of maintenance of the wool stores.  It could, for example, have engaged independent contractors to carry it out.  It could have engaged labourers directly.  What is apparent from the AWB’s Annual Report for 1964-65 is that a great deal of the expenditure shown in the report in relation to holding the wool stores involved repairs, maintenance and fire watching services.

1. Although coming after the dates I am looking at regarding Mr Rus’s relationship with the AWB, I note that its Annual Report for 1966-67 explained in reporting on the responsibilities of the Wool Stores Administration  that “…During 1966-67, expenses, mostly comprising labour, rental and rates, were contained within a reasonable rate of increase …”.  That the AWB engaged labour is consistent with the note in the AWB’s Annual Report for 1964-65, which precedes the period I am looking at.  That note was to the effect that the Wool Stores wages for 1963-64 had been included in the salaries figures for the 1964-65 Annual Report. 

1. I find that the AWB would have engaged people to labour on their wool stores to maintain them.  I do so for several reasons.  One focuses on the AWB’s functions and powers and particularly in so far as it was required to maintain the wool stores.  I have found that the AWB paid wages both before and after the period I am concerned with.  The payment of wages is consistent with the engagement of labour as opposed to the engagement of officers and employees under s 27 as they are paid a salary.  The AWB’s Annual Reports refer to the engagement of labour in a period starting a little after 1965 and do so in the context of the wool stores.  That statement is consistent with the caption to the picture in the AWB’s Annual Report for 1964-65 showing workmen repairing one of the several hundred wool stores in its care.

1. Engaging a person as a labourer on the wool stores would be quite distinct from engaging that person as an employee under s 27 of the WI Act.  The engagement would not be under the WI Act as such because the engagement was neither expressly nor impliedly provided for by the WI Act.  Its incidental powers given to it by s 24(2) authorised the AWB Act to engage labour but that did not mean that the engagement was made under the WI Act.  Any rights and responsibilities between the AWB and the labourer would have been determined by the terms of the engagement or contract between them and not under the WI Act. 

1. In reaching this conclusion, I rely on the principles developed in a number of cases that have considered the question in the context of ss 3 and 5 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). A decision will be reviewable under the ADJR Act if it is “… a decision of an administrative character made … under an enactment …”.[47]  An early case, Australian National University v Burns[48] (Burns), was decided by the Full Court of the Federal Court.  The Full Court considered whether a decision made by the Council of the University terminating Mr Burns’ appointment as a professor in one of its Departments was “a decision of an administrative character made … under an enactment”. It did so in the context of a decision made by the Council refusing Mr Burns’ request for reasons for his dismissal. He had made that request under s 13 of the ADJR Act on the basis that he was a person entitled to apply for its review. The University’s refusal to give him reasons led to Mr Burns’ applying to the Federal Court under s 13(4A)(b) of the ADJR Act for an order declaring that he was entitled to make the request. A single Judge of the Federal Court, Ellicott J, made an order declaring that Mr Burns was entitled to make the request. The University appealed to the Full Court and the Full Court allowed the appeal with the majority, Bowen CJ and Lockhart J concluding:

   “In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the [Australian National] University Act [1946].  Section 23 [of the University Act] empowered the council to enter into the contract on behalf of the appellant.  Even if the council, in considering the position of the appellant under the contract, might be said to be acting under section 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract.”[49]

   [47] ADJR Act; s 3(1); paragraph (a) of definition of “decision to which this Act applies”

   [48] [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5 ALD 67; Bowen CJ, Lockhart and Sheppard JJ

   [49] [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5 ALD 67 at 174; 32; 73

1. In case its conclusion be taken as a general statement of principle to the effect that decisions would be either taken under contract or taken under an enactment, Bowen CJ and Lockhart J later stressed that regard must always be had to the language and

operation of the particular enactment and contract.  They said:

“          If the making of a contract is authorized by an enactment, and such a contract, when made, in fact provides for the making of certain decisions, it does not necessarily follow that those decisions, when made, are not made under the enactment.  This must depend on the language and operation of the particular enactment and contract. …

…

It would be directly relevant to the present case if the Council of the appellant made a statute stipulating the circumstances in which professors could be dismissed, assuming this to be a valid exercise of the power conferred by s 27(1)(g) [of the University Act].  If the Council subsequently entered into a contract of engagement with a professor and either incorporated by reference the relevant provisions of the statute relating to dismissal or repeated them in the same terms in the contract itself, it may be that a decision to dismiss the professor would be made under the statute; but this would depend on the terms of both the statute and the contract.”[50]

[50] [1982] FCA 191; (1982) 64 FLR 166; 43 ALR 25; 5 ALD 67 at 175-176; 33-34; 74-75 and see also 177; 34; 75

1. Other cases applying similar principles in resolving the issue of whether a decision is made under an enactment or not had been applied in Deputy Commissioner of Patents v Board of Control of Michigan Technological University[51] (MTU case) and were later applied in Australian National Airlines Commission v Newman[52] (Newman), General Newspapers Pty Limited and Others v Telstra Corporation[53] (General Newspapers), Scharer v New South Wales[54] and Griffith University v Tang[55] (Tang).  

   [51] [1979] FCA 84; (1979) 43 FLR 9; 28 ALR 551; 2 ALD 711; Smithers, Franki and Keely JJ

   [52] (1987) 162 CLR 466; 70 ALR 275; Mason CJ, Brennan, Deane, Toohey and Gaudron JJ

   [53] [1993] FCA 473; (1993) 45 FCR 164; 117 ALR 629

   [54] [2001] NSWCA 360; (2001) 53 NSWLR 299; 116 LGERA 217; Stein and Hodges JJA and Davies A-JA

   [55] [2005] HCA 7; (2005) 221 CLR 99; 213 ALR 724; 82 ALD 289; Gleeson CJ, Gummow, Callinan and Heydon JJ; Kirby J dissenting

1. Whether or not Mr Rus was engaged as a labourer under a contract of service is not a matter on which I have evidence to which he has appended his signature or documentary evidence either from him or from the AWB.  What I do have are the interview notes written by Ms Sandford and his reminiscences as relayed by his son, Mr Dean Rus.  Although I have given a couple of examples of the inconsistencies that appear in in relation to other aspects of the evidence, they are not inconsistencies that relate to his working at the wool stores for a period towards the end of 1965 and to his being engaged in maintenance work when he was there.  In his judgment on the appeal, Bromberg J set out the principles that guide me in determining whether or not a contract of service exists.  I must look at all of the relationship between Mr Rus and the AWB.  When I do that, I have concluded that the fact that the AWB carried out maintenance work on its wool stores and that it paid wages, which would have been what it paid its workmen as opposed to the salaries it paid its employees and officers, it would have entered a contract of service with Mr Rus whom it had engaged to be one of its workmen.  The terms of that service are not something on which I can make a finding.  Whether it was day to day, week to week or month to month, I find that it was a contract of service, or a series of contracts of service, that extended over a three or four month period.

DECISION

1. For the reasons I have given, I have set aside the reviewable decision dated 10 July 2014 by Comcare affirming its earlier determination dated 15 April 2014.  In its place, I have decided that Mr Rus was an employee within the meaning of s 5 of the SRC Act.

I certify that the preceding fifty one [51] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie.

[sgd]...............................................................

Associate

Dated: 2 October 2019

Date of hearing:

Counsel for the Applicant:

15 March 2018

Mr Andrew Dimsey

Solicitors for the Applicant:

Counsel for the Respondent:

Mr Abraham Ghaleb
Slater & Gordon Lawyers

Ms Sarah Wright

Solicitor for the Respondent:

Mr Brenton Lochert
Comcare

Australian Wool Testing Authority established by the Australian Wool Testing Authority Act 1957 and replaced by the Australian Wool Testing Authority established under Part III.