Steven Angus v Taxi Council of Queensland Inc
[2011] FWA 7531
•23 DECEMBER 2011
[2011] FWA 7531 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Steven Angus
v
Taxi Council of Queensland Inc.
(U2010/15117)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 23 DECEMBER 2011 |
Application for an unfair dismissal remedy - jurisdictional objection - whether an employee - independent contractor - meaning of employee - Part 3-2 Fair Work Act 2009 - onus - control - multifaceted relationships.
[1] Fair Work Australia’s jurisdiction to hear Mr S. Angus’ application for an unfair dismissal remedy was challenged by the respondent, the Taxi Council of Queensland Inc. (“TCQ”) on the basis that Mr Angus was never employed by TCQ and was therefore not a person protected from unfair dismissal under section 382 of the Fair Work Act 2009 (“the Act”).
[2] Mr Angus had worked as a cab rank supervisor at the Brisbane airport since November 2007. He asserts that from that time, he was an employee of TCQ. TCQ contends that Mr Angus was always an independent contractor. On the basis of alleged misconduct, the arrangement, however characterized, between Mr Angus and TCQ ended on 29 November 2010 at the initiative of TCQ.
[3] A hearing was held in respect of the jurisdictional issue only on 23 June 2011, at which time TCQ was granted an adjournment. The substantive jurisdictional hearing took place in Brisbane on 24 August 2011. I granted permission for Ms J Veiga, solicitor, to appear for Mr Angus and for Mr B Warren, solicitor, to appear for TCQ.
Statutory Context and Legal Principles
[4] The relevant part of section 382 of the Act, the basis for the respondent’s jurisdictional objection, reads:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) …
[5] Being the applicant, Mr Angus bears the onus of establishing that he was an employee at the relevant time. By operation of section 380 of the Act “employee”, for the purposes of Part 3 – 2 of the Act, means a “national system employee” and “employer” means a “national system employer”. These terms are defined in sections 13 and 14 of the Act. There is no issue that TCQ is a national system employer in respect of those persons whom it employs. The issue in these proceedings is whether Mr Angus was an employee of TCQ at the time that he alleges that his employment with it was terminated. Because section 13 defines a national system employee as an individual so far as he or she is employed, or usually employed, by a national system employer, the concept imports the common law’s understanding of employment.
[6] In order to determine whether a person is an employee, regard must be had to the principles that have been enunciated by courts and tribunals over many years. Although the principles are relatively well settled, their application to the facts continues to bedevil those who have to apply them. This is largely due to new and evolving work practices 1 and the apparent necessity to try “to force new types of work arrangements into the so called employee/independent contractor ‘dichotomy’ based on medieval concepts of servitude, ...”.2
[7] The common law principles were recently reviewed and summarized in Ace Insurance Ltd v Trifunovski 3:
“...first, the distinction between an employee and an independent contractor 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’; secondly, the answers to that question are to be determined by reference to the ‘totality’ of the relationship; thirdly, a number of indicia have accreted over time in the authorities which are thought to throw light to varying degrees on the outcome without being determinative: the terms of the contract; the intention of the parties; whether tax is deducted; whether sub-contracting is permitted; whether uniforms are worn; whether tools are supplied; whether holidays permitted; the extent of control of, or the right to control, the putative employee whether actual or de jure; whether wages are paid or instead whether there exists a commission structure; what is disclosed in the tax returns; whether one party ‘represents’ the other; for the benefit of whom does the goodwill in the business inure; how ‘business-like’ is the alleged business of the putative employee – are there systems, manuals and invoices; and so on – the list is neither exhaustive nor short.” 4
[original references omitted]
[8] ACE Insurance was referred to in a recent Full Bench decision, Jiang Shen Cai trading as French Accent v Do Rozario 5 which also sought to summarize the general law approach to distinguishing between employees and independent contractors. The Full Bench referred to the judgment of the Full Court of the Federal Court in Roy Morgan Research Pty Ltd v Commissioner of Taxation6 endorsing a passage from the leading judgment in the decision of the Victorian Court of Appeal in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue7which in turn had endorsed a passage from the judgment of Mummery J in Hall (Inspector of Taxes) v Lorimer8 “which makes it clear that a consideration of the indicia:
‘...is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.’” 9
[9] The Full Bench in Do Rozario also adverted to the difficulties of attempting to shoehorn all employment relationships into the employee/independent contractor dichotomy:
“The FW Act imposes obligations on employers in relation to their “employees” and confers benefits and rights on “employees” without defining when a worker is an employee as distinct from an independent contractor. The definition of “employee” leaves it to the general law to supply that distinction. The nature of the established general law approach to distinguishing between employees and independent contractors may be seen as contributing to the problem precisely because the nature of the general law test is such that it does not admit a clear answer in every case. Once one adopts the position, as the general law has done, that the distinction is rooted in the objective character of the work relationship two things follow. First, the infinite variety of human affairs means that work relationships present as a spectrum, some of which are clearly relationships of employment and others of which are clearly relationships of independent contract but some of which are less clear cut. Secondly, that character of a work relationship is what it is and cannot be changed simply because the parties agree to label it differently (unless, of course, the relationship is sufficiently ambiguous that a clear determination is not possible, the situation addressed by the Massey Proposition). That is a matter clearly recognised by the courts and tribunals.” 10
Background to Angus Becoming a Rank Supervisor
[10] TCQ is an incorporated association under the Associations Incorporation Act 1981 (Qld). It is a not-for-profit, peak taxi industry representative body that formulates policies designed to promote and further the interests of the taxi industry in Queensland. As part of its functions it coordinates the provision, by others, of taxi rank supervision services in Queensland. 11 The Brisbane Airport Corporation (BAC) had engaged TCQ to coordinate and facilitate the provision of taxi rank supervision services at the Brisbane airport.12 Mr Angus was selected as one of many taxi drivers who could work as a rank supervisor at the airport.
[11] Prior to commencing work as a cab rank supervisor at Brisbane airport in November 2007, Mr Angus had been a taxi driver affiliated with a taxi company, Black & White Cabs. 13 It was accepted by both parties that as taxi driver he was not an employee.14
[12] Mr Angus became aware of an opportunity to work as a rank supervisor “through an announcement that was circulated via Black & White Cabs’ computer booking system in 2006”, 15 and applied for the position. The interview process was conducted at Black and White Cabs’ premises by Mr Len Martin, whom Mr Angus knew to be Black and White Cabs’ Head Road Supervisor. In cross-examination Mr Angus said that he originally applied for the position as a Black and White Cabs’ supervisor.16 Mr Angus withdrew his initial application because the person whose taxi he drove did not want Mr Angus to work as a supervisor whilst driving his cabs.17 Mr Angus, then sought out another taxi cab owner who did not object to him working as a rank supervisor whilst also driving his cabs. It was apparently desirable that rank supervisors be active and experienced taxi drivers with good customer service skills.18
[13] Sometime later Mr Angus was approached by Mr Martin who said words to the effect that TCQ had obtained a contract with BAC and that “I’ll be working for the Taxi Council on the BAC contract. Would you like to come across and do work at the BAC for [the] Taxi Council?” 19
[14] Mr Martin was apparently a small business operator in the taxi industry who traded in partnership with a Mr Per Dinesen. Mr Martin had been involved in the taxi industry for decades: as a taxi driver, taxi licence owner and operator, in marketing and rank supervision. Mr Dinesen was also a head road supervisor with Black and White Cabs. After Mr Angus commenced working as a rank supervisor, Mr Dinesen was responsible for the invoices that were sent to the BAC in respect of the services provided by rank supervisors. “At the bottom of the invoice that he would send back would often say [sic.] ‘Paid by Black and White and charged to TCQ’”. 20
[15] From the time Mr Angus commenced work as a rank supervisor he invoiced Black and White Cabs. He would ring Mr Dinesen who would prepare the invoice based on the number of hours Mr Angus had worked. 21 Under this arrangement, Mr Angus was remunerated by Black and White Cabs, who then billed TCQ which, in turn, sourced these payments from BAC. This continued up until about May 2010 when the system changed and Mr Angus started invoicing TCQ directly.22
Nature of TCQ’s Role at Brisbane Airport
[16] It is instructive to understand how TCQ became involved in the provision of rank supervision services at Brisbane airport. From approximately 2003, a security company, ISS, provided the rank supervision services. From approximately 2005 Wilson Security provided this service. When the two security companies provided the services, rank supervisors were security guards. TCQ provided limited training to the security guards. BAC was apparently dissatisfied with the service it was receiving from the security companies, at least partly because the security guards did not understand the taxi industry. 23 TCQ is also responsible for sourcing rank supervisors at taxi ranks beyond the Brisbane airport. Under contract to the Queensland government it provides rank supervision in the city and Fortitude Valley on Friday and Saturday nights. It also provides or brokers rank supervision for hotels and sporting venues.24
[17] In cross examination Mr Blair Davies, the CEO of TCQ explained how TCQ obtained its rank supervisors until midway through 2010:
“To your knowledge has the relationship of independent contractor been discussed with rank supervisors? I’m asking if you have an understanding as to - - -?---In all of my representations to the rank supervisors, it’s always been on the basis that they are engaged as experienced taxi drivers so that they are in business for themselves as a taxi driver, and that they are doing rank supervision work as an independent contractor.
You actually discuss that with them, that they are doing rank supervision work as an independent contractor? I’m wanting to know how you come to make that last statement?---Well, perhaps to understand how we come by the rank supervisors, up until probably midway through 2010 we would have somebody come to us, like the Brisbane Airport Corporation, and say, “We need rank supervision.” We would then go off to Black and White Cabs and Yellow Cabs and say, “We have this client who wants rank supervisors. Can you provide us a rank supervisor for these times?” They would have a pool of people who were trained to be rank supervisors and they would allocate those people, and from a Taxi Council point of view one of the things that we did was we made sure that we paired up supervisors from each company. They were supplied to us from each company. Up until midway through 2010 the training of the rank supervisors, any selection process associated with determining whether somebody was suitable to be a rank supervisor or not, was performed by Black and White Cabs or Yellow Cabs.
I think you’ve already stated somewhere that each rank supervisor is required to have an ABN and to enter invoices?---Absolutely.
And GST is a component of the invoice that each rank supervisor renders?
---Absolutely.” 25
“We’ll talk about Mr Martin actually. TCQ retained Mr Martin to coordinate the Brisbane Airport services. Is that correct?---Retained?
Hired, entered into contract, whatever terminology you want to use. In other words, you entered into some form of agreement with Mr Martin to coordinate the contract of the rank supervisors at the airport?---Perhaps by way of explanation, we took over rank supervision at the airport on very short notice. We then asked Yellow Cabs and Black and White Cabs to supply us a pool of rank supervisors. Originally - now, one of the things that we were concerned about was taxi drivers would not have - of one particular company or affiliated with one particular company may not have respect for rank supervisors from the other company, and so we were trying to rotate the - and get a pool of rank supervisors between the two companies that could provide the services and there was a rotation process. So there were Black and White affiliated supervisors on a rank for one week and then that same rank for the same shifts, the rank supervisors were provided by Yellow Cabs. We tried that for February and March. It really got quite messy and so in April of 2008 Mr Martin was asked to reorganise the respective pools of rank supervisors between Yellow Cabs and Black and White Cabs. He was asked to provide the coordination of the rank supervision services at the airport and focus on that and, to maintain balance, we asked Mr John Wilson from Yellow Cabs to provide a similar service for the ranks that we look after outside of the airport, on the understanding that Mr Martin would consult with Mr Wilson and Mr Wilson would consult with Mr Martin respectively.
Okay, back to my - - -?---Now, in the case of Mr Wilson, he was a full-time employee of Yellow Cabs. He did not bill Taxi Council for any of the coordination services that he provided. He only billed us where he performed rank supervision services similar to what Mr Angus would do on a rank. Mr Martin, because he’s not an employee of Black and White Cabs but is a - as his statutory declaration says, he owns a cab licence and at various times has been a cab driver. He rendered invoices to us for the coordination hours that he provided. We don’t have a written contract with Mr Martin.
Let me see if we can walk through this then?---Sure.
BAC accepts a proposal for TCQ. You start providing rank supervision services in February. You receive a payment from BAC for your administrative expenses, that being TCQ’s; correct?---We received a payment from BAC for the provision of the rank supervision services, yes.
THE SENIOR DEPUTY PRESIDENT: Is that over and beyond what you were charged by the rank supervisors?---Yes, it is.
MS VEIGA: You then enter into some sort of agreement, whether it’s contractual or not, at least as of April of 2008, with Mr Martin to coordinate those services on your behalf? That’s what your affidavit says?---Sure.
I don’t think I’m going out on a limb here?---No, I’m just trying to help. From February 2008 we started providing rank supervision services at the airport for BAC and rendered tax invoices to BAC. A significant expense in the provision of those services was the rank supervisor’s time and their bill. The pool of rank supervisors that we were using either came from Black and White or Yellow Cabs, so Black and White Cabs invoiced us for the services provided by rank supervisors that they had in their pool. Yellow Cabs did the same. We also had other expenses, including Mr Martin’s overhead time because that was a cost to us, plus we had to go and buy various bits of equipment to be able to provide the services - two-way radios, those sorts of things. Mr Martin in April 2008 was asked to coordinate the rank supervisors and, by that, organise a roster of rank supervisors, send that out to the supervisors, and to check that reports provided to him by rank supervisors - your Honour, you would have seen that sometimes the reports included notes about taxi drivers or the state of taxi cabs, and part of his responsibility was to send that on to the respective cab companies.” 26
Control
[18] Mr Angus said that Mr Martin, whom he described as an agent of TCQ, exerted control over the manner in which Mr Angus performed his work. He explained that Mr Martin played a key role in recruiting him as a rank supervisor, preparing and providing the rosters, and regularly enforcing TCQ policies. 27 In support of this, Mr Angus tendered a number of emails to demonstrate that Mr Martin would often instruct rank supervisors as to how they should perform their work, and to alert them if issues had been noticed regarding their performance. Mr Martin variously electronically signed his emails as “Len Martin”, “Len Martin, Senior Road Supervisor - Black & White Cabs” and from about May 2010, “Len Martin, Taxi Rank Co-Ordinator, Taxi Council of Queensland.” At all times his email address was “[email protected]” and the mobile phone number that accompanied his electronic signature was his personal number.28 Although Mr Davies had not instructed Mr Martin to style himself as its taxi rank coordinator, he permitted this because, as Mr Martin was affiliated with Black and White Cabs, he was perceived by some rank supervisors who were affiliated with Yellow Cabs as not being impartial. Styling himself as he did, made him appear more impartial because he was not aligning himself with a particular taxi company.29 It should be remembered that rank supervisors were supplied by the two competing taxi companies.
[19] It should also be noted that, with the possible sole exception of Mr Angus, all rank supervisors were also taxi drivers. 30
[20] Mr Angus also said that he had been directed by Mr Martin to be ready to work 10 minutes before his shift was to commence, and could not leave at the end of his shift if a replacement had not arrived, or if a flight had been delayed, without seeking the consent of Mr Martin. 31
[21] Mr Martin was not called as a witness by TCQ, so I infer that his evidence would not have assisted TCQ’s case. 32 As he was not called, I was not prepared to admit his witness statement into evidence.33 That said, Mr Davies gave evidence that Mr Martin had been engaged as a contractor by TCQ in early 2008. According to Mr Davies, Mr Martin’s role was to co-ordinate the provision of rank supervisor services at Brisbane airport by preparing rosters, liaising with BAC regarding any concerns they had with rank supervisors and investigating any complaints about rank supervisors. After investigating complaints, Mr Martin was required to produce a report which went to a disciplinary committee which would then determine what action was to be taken against a rank supervisor.34 Mr Martin often carried out his work as a rank co-ordinator without direction from TCQ. He would also, at times, act beyond the scope of his authority. For instance, although he did so, Mr Martin had no authority to send out emails on behalf of TCQ, and had no authority to prepare a code of conduct manual in TCQ’s name.35
[22] Further, in cross examination, Mr Angus conceded that his evidence that Mr Martin held himself out as an agent of TCQ was possibly a concept that was elicited as a result of his interactions with his legal representatives. 36
[23] TCQ challenged the extent to which it controlled the work performed by Mr Angus. TCQ submitted that Mr Angus could control the manner and method of his work, was free to choose his own hours and engage subcontractors. However, this claim was not substantiated in evidence beyond a mere assertion from Mr Davies that it was possible. Mr Angus said that his hours of work were set by Mr Martin. This is correct, as far as it goes. Mr Martin set the rosters and Mr Angus’ only freedom was to choose whether or not he wished to work the rostered hours. If Mr Angus wanted to change these hours of work, Mr Martin said that he had to seek his consent. In practical terms, there was no capacity for rank supervisors to subcontract their work, beyond arranging swaps between themselves.
[24] The issue of control appears to largely turn on the role of Mr Martin. Mr Angus sought to characterize the role of Mr Martin as that of an agent of TCQ. TCQ, on the other hand, asserted that Mr Martin was a contractor engaged purely to organise and coordinate the provision of rank supervision services. I think that is more likely the position. TCQ itself had very minimal involvement with Mr Angus, or the other rank supervisors and the way in which they carried out their role as rank supervisors. That situation persisted until TCQ received complaints about Mr Angus that it believed warranted disciplinary action.
[25] In my opinion, Mr Martin would often go beyond the scope of his engagement with TCQ, and exerted a degree of control over the rank supervisors that was not specifically authorised by TCQ. He would regularly send emails to the rank supervisors advising them of particular policies and procedures that Mr Martin had created and that he required them to follow. Particularly in respect of Mr Angus, Mr Martin appeared to have held himself out as acting within his authority. Although I accept that much of this behaviour was not authorized by TCQ, it is likely that Mr Davies was aware of, and possibly even condoned this behaviour. The evidence demonstrates that TCQ was aware that Mr Martin had prepared a code of conduct manual and that he was using a TCQ signature on his work related emails. Although Mr Martin did so without TCQ’s authority it appears that TCQ did not attempt to stop him, although it would not provide him with a TCQ email address or telephone number. Mr Martin exerted a significant degree of control over the manner in which the rank supervisors at Brisbane airport performed their work.
Uniform and TCQ Branding
[26] Mr Angus was also provided with a uniform which comprised a high visibility jacket with TCQ and BAC logos clearly displayed on it, as well as a cap and a tie displaying TCQ logos. 37 Apparently it had been intended that those items would also display the BAC logo. The uniform remained the property of TCQ and Mr Angus was asked to return it after his arrangement with TCQ ended.
TCQ Policies for Cab Rank Supervisors
[27] Considerable significance was sought to be attached by Ms Veiga to a 24 page document with the logo of TCQ, entitled “The Roles and Responsibilities of a Taxi Rank Supervisor.” 38 This is a prescriptive document that, as its title suggests, sets out the roles and responsibilities of taxi rank supervisors in considerable detail. It was submitted on behalf of Mr Angus that this was evidence of the control to which he was subject by TCQ. However when Mr Davies was cross-examined about it he stated that it is a document that was prepared by the Metropolitan committee of TCQ as a training document for rank supervisors. According to Mr Davies it, as its date suggests, was produced in August 2006 to be provided to Wilson Security for the information of rank supervisors. From its terms it is clear that it is not confined to rank supervisors at Brisbane airport.
Circumstances leading to the termination of Angus’ services
[28] On 19 November 2010 Mr Angus received an e-mail from Ms Larissa Cowling, a project officer employed by TCQ. The e-mail advised: “The TCQ Disciplinary Committee has had two complaints regarding your service on the ranks at BAC passed on to them.” Mr Angus was required to attend a disciplinary hearing and to bring with him all evidence or submissions on which he intended to rely to justify his actions in respect of allegedly sending taxis off the rank without fares on two occasions. 39
[29] On 29 November 2010 TCQ, over the signature of Ms Cowling, sent a letter to Mr Angus terminating his services. The letter detailed a number of complaints that had been made against Mr Angus and concluded:
“The Disciplinary Committee found that your actions on this occasion along with the recent incidents are inappropriate while carrying out rank supervision at the airport and representing TCQ.
TCQ gives notice that it is terminating all contracts with you for the provision of rank supervision services effective 12 noon, 26 November 2010
TCQ also gives notice that it requires you to return all equipment, clothing and materials supplied to you directly or indirectly by TCQ in relation to the provision of taxi rank supervision services within seven days of receipt of this notice.” 40
[30] The letter was attached to an e-mail advising Mr Angus that he could lodge an appeal with the TCQ board by setting out in writing his reasons for requesting a review of the disciplinary Committee’s decision. 41 Mr Angus indicated that he would lodge an appeal. It would appear that if he did so, his appeal was unsuccessful, hence his application for an unfair dismissal remedy to Fair Work Australia.
[31] The Constitution and Rules of the Taxi Council of Queensland Incorporated, as at 11 September 2008, were attached to the witness statement of Mr Davies. The objects for which TCQ was established were broadly to formulate policies designed to promote and further the interests of the taxi industry in Queensland as well as to develop, coordinate and implement policies for the taxi industry with the objective of improving the safety and security of taxi services provided to customers. One of its powers is to appoint, employ, remove or suspend such managers, clerks, secretaries, servants, workmen and other persons as may be necessary or convenient for the purposes of the TCQ’s objectives and operations.
[32] It is in this factual context that the issue as to whether Fair Work Australia has jurisdiction to deal with Mr Angus’ application for an unfair dismissal remedy must be determined.
Application of the law to the facts
[33] The observations of Mummery J in Lorimer and the Full Bench in Do Rozario, both of which I referred to above, are particularly apposite in a case such as this, where a consideration of the indicia does not point to a clear outcome.
[34] Here there seems to have been a multifaceted relationship involving Mr Angus, Mr Martin, Black and White Cabs, TCQ and the BAC. I earlier set out, at some length, the evidence of Mr Davies as to how the position of rank services to BAC by TCQ came about. It is quite possible that at various times, whilst he was a rank supervisor, the relationship varied. There is no dispute between the parties that when Mr Angus was a taxi driver he was not an employee. When he commenced as a rank supervisor he, and other rank supervisors who were affiliated with Black and White Cabs rendered tax invoices for rank supervision service to Black and White Cabs, which would aggregate them and render an aggregated tax invoice to TCQ which in turn would either source payment from the State government or BAC to pay the aggregated tax invoices. Similar arrangements existed for rank supervisors affiliated with Yellow Cabs. TCQ hardly ever dealt directly with rank supervisors; it was merely a conduit by which the available rank supervision work could be split between affiliates of the two major booking companies servicing the Brisbane area. TCQ did not source or identify suitable rank supervisors, it did not have any direct agreement with them, it did not train them and it did not directly allocate available rank supervision work. Until mid-2010, TCQ generally did not make payments directly to rank supervisors. It is only since mid 2010 that Mr Angus and other rank supervisors have directly invoiced TCQ, which in turn paid the rank supervisors. Training of taxi rank supervisors is delivered by Yellow Cabs. TCQ does not train or control rank supervisors, it does not allocate available rank supervision work. At Brisbane airport the allocation is performed by Mr Martin.
[35] Unfortunately, there do not appear to be any written contracts that would assist in understanding how the respective parties viewed their relationships. There is no written contract between Mr Angus and anybody. There is no written contract between Mr Martin and TCQ. There is no written contract between Mr Angus and Mr Martin. There is no written contract between TCQ and BAC.
[36] Mr Angus highlighted the several indicia that he submitted demonstrate that he was an employee of TCQ:
● The primary indicator was said to be the degree of control exerted over him by Mr Martin, whom he contended exerted that control as an agent of TCQ;
● the fact of the provision of the uniform and other equipment by TCQ;
● the written policies prepared by TCQ to which he had to adhere;
● the inability of Mr Angus to effectively control his hours of work;
● the inability to subcontract or have others, with the exception of other rank supervisors, work his shifts;
● the rank supervision work was performed as part of the business of TCQ, not as the business of Mr Angus;
● the termination by TCQ of “all contracts” with him for the provision of rank supervision services.
[1] TCQ relied upon various other indicia to support its submission that Mr Angus was not an employee:
● Mr Angus had an Australian Business Number (ABN);
● Mr Angus monitored his own hours, and prepared his own invoices;
● There was no security of tenure. Ongoing work was never guaranteed to Mr Angus;
● Mr Angus attended to his own tax arrangements;
● TCQ never withheld PAYG tax;
● Mr Angus was never entitled to, nor did he ever have any expectation of receiving, leave or other employee benefits such as superannuation;
● TCQ provided no training or induction program to Mr Angus.
[1] Because of the multifaceted relationships in this matter regard to the usual indicia is of limited value in the determination of whether or not Mr Angus was an employee of TCQ.
[2] In Tasmanian Contracting Services Pty Ltd v Anthony Young, Evans J, after noting that the determination of the legal character of the relationship requires the consideration of all the facts in relation to the total relationship involving the parties, observed that the “question for determination has commonly been expressed to be whether the person was working as an employee under a contract of service or as an independent contractor under a contract for services. However, as explained by McDougall J in Forstaff Pty Ltd v Chief Commissioner of State Revenue, the real question is not whether the person was an employee or an independent contractor, but whether the person was an employee. To approach the question on the basis of a dichotomy between the relationship of an employer and an employee, and that of a principal and an independent contractor distracts from the core question”. 42
[References omitted]
[3] McDougall J’s analysis is worthy of repetition:
70 When the majority in Hollis at 38 [39] referred to “the dichotomy between the relationships of employer and employee, and principal and independent contractor”, they did so by reference to a passage in the judgment of Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Insurance Company of Australia Limited (1931) 46 CLR 41, 48. In that passage (which the majority cited at [39]) Dixon J analysed the difference between an independent contractor and an employee (although he did not use the word “dichotomy”) and concluded that the former “carries out his work, not as a representative but as a principal”.
71 The word “dichotomy” connotes, in its ordinary meaning, division into two parts (Macquarie Dictionary) or, in a more specialised sense, the division of a class into two lower and mutually exclusive classes (Shorter English Oxford Dictionary). As a matter of language, when the majority in Hollis referred to “the dichotomy between the relationships of employer and employee, and principal and independent contractor”, they might be taken to have indicated that those two classes between them constitute the totality of the relationships whereby one person does work for another.
72 In Stevens, when the members of the Court analysed the relationship between the sawmiller and the workers, the only two possibilities that were considered were employer/employee and principal/independent contractor. In this, as their Honours’ citations of authority showed, they were expressing no new concept, but accepting and applying the traditional division recognised by the common law.
73 Notwithstanding the observations of McHugh J in Hollis, I do not think that it is open to me to conclude that, in a bilateral relationship, the relationships of employer/employee and principal/independent contractor are not dichotomous. In other words, if the question only arose for consideration as between two parties, one of whom performed work for the other, I would feel compelled to conclude that the relationship must be classified as one or the other. Is it also the position where (as was the case in Brook Street and in BWIU v Odco, and as is the case here) the relationship is not bilateral but trilateral (or triangular, to use the word of Mummery LJ)?
74 I think that the approach to this problem is to be found in what the majority said in Hollis at 38 [36] where their Honours, having referred to the dichotomy that was seen to exist between the words “employee” and “independent contractor”, said that those words “do not necessarily display their legal content purely by virtue of their semantic meaning”. The question is not so much whether those terms are dichotomous (in either a bilateral or a trilateral relationship) but whether, between them, they explain or define the complete range of relevant relationships.
75 Further, to approach the analysis with the presumption of a dichotomy – a class of two, mutually exclusive, members – is, as Windeyer J said in a different context, “to invert the order of inquiry”: Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432, 458 (an observation cited with approval by the majority in Hollis at 38 [37]). The real question in the present case is not whether workers of Forstaff are employees or independent contractors, but whether they are employees. It is only if, first, a negative answer to that real question means that they must be independent contractors and if, second, they manifestly cannot be independent contractors that a difficulty arises. A presupposition of that difficulty – which is, in effect, the position for which the Chief Commissioner argued – is in my view apt to distract attention from the real question.
76 As the courts have observed, the nature of work, and of the relationships pursuant to which work is done, are changing. Thus, in Stevens, Deane J said at 49 that “t]he distinction between “employee” and “independent contractor” has become an increasingly amorphous one as the single test of the presence or absence of control has been submerged in a circumfluence of competing criteria and indicia.” In Hollis, the majority observed at 37 [34] that “[t]he nature of employment relationships has changed greatly since the age of feudal status.” McHugh J, as I have noted in para [60] above, thought that it was undesirable to seek to “force new types of work arrangements into the so-called employee/independent contractor dichotomy”. Again, as I have noted in paras [61] and [62] above, Mummery LJ in Brook Street identified a need for the law to adapt to recognise the different kinds of contractual obligation that might exist within a triangular relationship.
77 I therefore conclude that, in the situation with which I am concerned, the relationship between the concepts of “employee” and “independent contractor” may not be dichotomous. The workers are either employees (of whom, is a question to be considered) or they are not. If they are not, they may be, but are not necessarily, independent contractors (to whom, is again a question to be considered). 43
[4] The issue that I must determine is whether Mr Angus was an employee of TCQ. He has not satisfied me that he was, and accordingly, has not discharged the onus that he bears to demonstrate that Fair Work Australia has jurisdiction to entertain his application. I am not satisfied that at any time he was an employee at any relevant time. Even if he was, I am not satisfied that he was an employee of TCQ rather than of Mr Martin or of Black and White Cabs.
[5] The degree of control exercised by Mr Martin, the provision of uniforms and two way radios, and the requirements of the Code of Conduct favour a finding of the existence of an employment relationship. However, having regard to the manner in which those matters came about, coupled with the evidence of the way in which TCQ came to provide rank supervision services to BAC and the multifaceted relationship between Mr Angus, Mr Martin, Black and White Cabs, TCQ and BAC, I cannot be satisfied that Mr Martin was or had ever been an employee of TCQ.
[6] In my view, looking at the overall effect of the multifaceted relationship revealed by the evidence in this case, I am unable to conclude that, at the time of his alleged dismissal, or indeed at any time, Mr Angus was an employee of TCQ.
[7] I doubt that his status changed to that of an employee of TCQ when he began directly invoicing it in mid 2010. However, if he did he would not have completed the minimum qualifying period under s.383 of the Act, and thus he was not a person protected from unfair dismissal. 44 The arrangement, however characterized, between Mr Angus and TCQ ended on 29 November 2010 at which time the uncontested evidence is that TCQ employed four people. Ms Veiga submitted that all other cab rank supervisors at Brisbane airport worked under the same arrangement as Mr Angus and therefore should also be considered to be employees. This would mean that TCQ would not be a small business employer under the Act, and Mr Angus’ application would have met the six month qualifying period. This submission however, was not substantiated by evidence, and I cannot be satisfied that other rank supervisors were employees of TCQ. Given the various personal factors that must be taken into account in determining whether a person is or is not an employee, it would be dangerous to extrapolate from one relationship. This is especially so when it appears that, unlike Mr Angus, all the other taxi rank supervisors were simultaneously taxi drivers.
[8] Mr Angus’ application for a remedy is dismissed for want of jurisdiction.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms J Veiga, solicitor for Mr Angus.
Mr B Warren, solicitor for TCQ.
Hearing details:
2011.
Brisbane:
23 June, and
24 August.
1 Hollis v VabuPty Limited (2001) 207 CLR 21, per McHugh J (dissenting) at [66]
2 Ibid at [72]
3 [2011] FCA 1204 per Perram J
4 Ibid at [29]
5 [2011] FWAFB 8307 at [30]
6 (2010) 184 FCR 448
7 (1997) 37 ATR 528 at 532-3
8 [1992] 1 WLR 939 at 944
9 [2011] FWAFB 8307 at [20]
10 Ibid at [25]
11 Exhibit R3, statement of Davies at 4
12 Ibid. at 5
13 Transcript PN156
14 Transcript PN205
15 Exhibit A1, statement of Angus at 1.5
16 Transcript PN 160
17 Transcript PN 213
18 Exhibit R3, statement of Davies at 6.1
19 Transcript PN168
20 Transcript PN 173
21 Transcript PN292
22 Exhibit R3, statement of Davies at 13
23 Transcript PN 675 and following
24 Transcript PN 684
25 Transcript PN 690 - 693
26 Transcript PN 711 – 718
27 Exhibit A1, statement of Angus at [1.23] and [1.25 - 1.32]
28 SA7 - SA16 attached to Exhibit A1, statement of Angus
29 Transcript PN 820
30 Exhibit R3, statement of Davies at 21
31 Exhibit A1, statement of Angus at [1.39] - [1.42]
32 Jones v Dunkel (1959) 101 CLR 298
33 Transcript PN 589 - PN 606.
34 Transcript PN 727
35 PN 827 and PN 753-755
36 Transcript at PN 192
37 Transcript PN 448 and PN 804
38 Part of Attachment SA7 to Exhibit A1
39 Attachment SA1 to Exhibit A1
40 Attachment SA2 to Exhibit A1
41 Attachment SA18 to Exhibit A1
42 [2011] TASSC 49 at [6]
43 Forstaff & Ors v The Chief Commissioner of State Revenue [2004] NSWSC 573
44 Section 382(a) Fair Work Act 2009 (Cth).
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