Tong Van Nguyen v Prestige Automotive Services Pty Ltd

[2019] FWC 93

[2019] FWC 93

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tong Van Nguyen
V
Prestige Automotive Services Pty Ltd
(U2018/1937)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 16 JANUARY 2019

Application for an unfair dismissal remedy; whether applicant was an employee of the respondent at time of dismissal; consideration and application of multi-factorial test; applicant was an employee.

[1] Mr Tong Van Nguyen (Applicant) applied for an unfair dismissal remedy on 26 February 2018 pursuant to s.394 of the Fair Work Act 2009 (Act). The Applicant began working with Prestige Automotive Services Pty Ltd (Respondent) on 9 May 2016. On 5 February 2018, the Respondent provided the Applicant with a letter titled “Termination of Agreement” which stated that the agreement between the parties was terminated, thereby concluding their working relationship. 1 However, the parties dispute the nature of this relationship.

[2] The Respondent is contracted to provide emergency mechanical roadside assistance to the customers of roadside assistance providers. The Applicant was engaged to work as a roadside assistance mechanic who attended callout jobs allocated to him by the Respondent that required him to complete mechanical work on customer’s vehicles.

[3] The Respondent contends that the parties had a contractual agreement (Agreement) which was executed on 4 May 2016, confirming that the Applicant was an independent contractor of the Respondent. 2 The Agreement refers to the Applicant as “The Contractor” and “The Principal” and the Respondent as “The Company”.3 The Applicant claims that he is an employee because he did not sign the Agreement and the nature of the relationship was one of control exercised by the Respondent and otherwise bears all the indicia of employment.4 The Applicant submits that the Respondent’s termination of his employment on 5 February 2018 was a dismissal which was unfair.5

[4] On 16 March 2018, the Respondent gave notice to the Commission of its jurisdictional objection to the application on the ground that the Applicant was not an employee. A person is only protected from unfair dismissal under the Act, if the person was an employee when “dismissed”. This decision deals with the question of whether the Applicant was an employee of the Respondent when “dismissed”.

[5] I have concluded that the Applicant was an employee within the meaning of s.386(1)(a) of the Act and accordingly, this application will proceed to determination of merits. The reasons for this conclusion are as follows.

Background

[6] Approximately 15 years ago, the Applicant commenced working with Mr Ross Ahchow, the Director of the Respondent, under a previous entity, Ahchow Automotive Assist Pty Ltd (AAA). The Applicant contends that Mr Ahchow provided him with a contractor agreement when he commenced working with AAA, which was similar to the Agreement. He says the parties never signed the AAA agreement because Mr Ahchow knew him to be “a hardworking and reliable employee”. 6 An unsigned copy of the AAA agreement was provided by the Applicant to the Commission on 9 March 2018. This agreement also refers to the Applicant as “The Contractor” and “The Principal”.7 The Applicant ceased working for AAA in May 2013 on terms that Mr Ahchow described as friendly.8

[7] The Applicant resumed working with Mr Ahchow through the Respondent on 9 May 2016. Relevantly, the parties differ in their accounts of how the working relationship was formed. The Respondent contends that on 4 May 2016, the parties commenced a contractual relationship when the Applicant and Mr Ahchow signed the Agreement in the presence of Ms Tanya Morgan, Mr Ahchow’s daughter and a current employee of the Respondent. 9 In her witness statement, Ms Morgan stated that on or about May 2016 she was at the office of the Respondent on a day when the Applicant and Mr Ahchow were also present. She stated that whilst they were talking she was asked to join them and that she witnessed both the Applicant and Mr Ahchow signing the document.10

[8] In contrast, the Applicant contends that he did not sign any document or agreement when he started working for the Respondent. He contends that all terms and conditions of employment were exchanged verbally and he did not regard this as unusual as he had previously worked with Mr Ahchow for AAA without a signed agreement. The Applicant says that on 13 February 2018, following his dismissal, the Respondent provided him with a copy of the Agreement and prior to this he had not seen the Agreement. The Applicant contends that he did not sign the Agreement, believing that someone had forged his signature. 11

[9] The Applicant contends that upon his commencement, Mr Ahchow advised him that the Respondent was contracted to Allianz Global Assistance (AGA) and that the Applicant would be providing services to AGA’s customers on behalf of the Respondent. He says he was provided with an AGA uniform, a vehicle with AGA signage and tools. 12 The parties agree that the Applicant would be paid a fee of $250 per shift provided he met the minimum quota of six jobs. If the Applicant completed more than six jobs, he would be paid an additional $40 per job and he would also be paid $25 for each battery sold during his shift.13 The Applicant gave evidence that he was sent a roster on a weekly basis outlining which shifts he was required to work on what days.14 The Respondent contends that that the Applicant was contracted to ensure that an approved member of his staff was available to provide services on behalf of the Respondent during the rostered hours.15 The Applicant says that the Respondent further altered the conditions of his employment a number of times over the period of their relationship16, however it is not necessary for me to consider these allegations as they do not go to the question of whether the Applicant was an employee or a contractor.

[10] It is also not necessary for me to detail some of the events which lead up to the Applicant’s “dismissal” save for those which go to the nature of the relationship. It should be noted that on 5 February 2018, the Applicant received a request from the Respondent to attend to a job 17 The Applicant says that when he advised Mr Ahchow that he would not be completing that job that Mr Ahchow then terminated his employment effective immediately.18

[11] In the alternative, the Respondent submits that on 5 February 2018 the Applicant refused to perform work under the Agreement and refused to answer his phone or communicate regarding his unwillingness to perform the work. Mr Ahchow contends that he did not terminate the Applicant, but rather when the Applicant asked “does that mean I am sacked?” Mr Ahchow agreed with the Applicant that as he was unwilling to perform the contract, the contract would be terminated with immediate effect. 19 The Respondent says it provided the Applicant with a notice that the contract had been terminated when requested by the Applicant.20 The Respondent submits that it terminated the contract pursuant to clause 11.1(d) and (h) of the Agreement21:

“11.1 The Company may terminate this Agreement with immediate effect by giving written notice to the Contractor if:

…

(d) the Contractor repudiates this Agreement;

…

(h) the Company has reason to believe that the Contractor or the Principal may have committed an action that might bring the Company into disrepute;” 22

Legislative Framework

[12] A previously stated, a person is only protected from unfair dismissal under the Act, if the person is an employee. This notion is further qualified by the specific requirements of s.382 of the Act, which are expressed as follows:

“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) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

Employee or contractor

[13] Whether the Applicant was an employee at the time of the “dismissal” for the purpose of an application for an unfair dismissal remedy made under s.394 of the Act is one of jurisdictional fact.

[14] It is well established that the unfair dismissal provisions in Part 3-2 of the Act apply to a person who was at the time of the dismissal, an employee as defined. It is evident from the legislative scheme the scope of persons who will fall within the definition will depend on, inter alia, whether the State in which the person was, at the time of the dismissal, a referring State, and the extent to which persons in that State, who are otherwise not within the narrow definition of a national system employee, are included in the referral of legislative power from the relevant State to the Commonwealth. There are also well established case law principles that have been developed by the courts and this tribunal to determine whether an individual is an employee. The courts have developed a multi-factorial approach, in which there is no single decisive criterion, to determine whether a contractual relationship is one of employment or one subject to a contract for services. 23 That approach is usually applied in two areas where the distinction is important: first in disputes about the duties and obligations owed by the contracting parties to each other; secondly in disputes about whether one party is liable to a third party for injury caused by the other party in the performance of the contract.24 The usual premise for the application of this approach is the existence of a contract whereby one person is engaged and paid by another for the provision of work or services, thus requiring the contract to be properly characterised in order to determine the parties’ rights and obligations. The various indicia which are considered under the multi-factorial approach, were set out in Jiang Shen Cai trading as French Accent v Do Rozario25, and have to a significant degree been shaped by that employee/independent contractor dichotomy.

[15] In French Accent 26, a Full Bench of Fair Work Australia helpfully summarised the general law approach to distinguishing between employees and contractors as follows:

“(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:

•  Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like. 

Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.

“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” “[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”

•  Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.

•  Whether the worker has a separate place of work and or advertises his or her services to the world at large.

•  Whether the worker provides and maintains significant tools or equipment. 

Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.

•  Whether the work can be delegated or subcontracted. 

If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor . This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.

•  Whether the putative employer has the right to suspend or dismiss the person engaged.

•  Whether the putative employer presents the worker to the world at large as an emanation of the business. 

Typically, this will arise because the worker is required to wear the livery of the putative employer.

•  Whether income tax is deducted from remuneration paid to the worker. 

•  Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks. 

Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.

•  Whether the worker is provided with paid holidays or sick leave.

•  Whether the work involves a profession, trade or distinct calling on the part of the person engaged. 

Such persons tend to be engaged as independent contractors rather than as employees.

•  Whether the worker creates goodwill or saleable assets in the course of his or her work. 

•  Whether the worker spends a significant portion of his remuneration on business expenses. 

It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, 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 of the relationship 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. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.

(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.” 27

[16] Turning then to consider these indicia in the context of the facts in this case.

Control

[17] The Respondent contends that the Applicant exercised a high degree of autonomy in performing his work. It says that it was responsible for notifying the Applicant of the location, identity and general nature of a job and the Applicant would make the decision as to how to respond. The Respondent submits the Applicant in some instances would change the priority of or refuse to undertake some jobs. The Respondent submits that whilst it would contact the Applicant to ask for an explanation, it did not have the right to challenge these decisions, therefore indicating a degree of control exercised by the Applicant. 28 The Respondent says clause 8 of the Agreement clearly stipulated that the relationship between the parties was an independent contracting relationship and that the Respondent had “no right to control and did not control the manner in which [the Applicant] completed call outs”.29 With regard to rostering, the Respondent submits that whilst it provided its contractors with a roster, it was a guide as to when the Respondent would prefer them to be available and it had “no real control”. This included if the contractor wanted to take leave, they would simply take the day off, often without notice.30

[18] The Applicant submits that the Respondent required him to perform work nine nights per fortnight and that “the hours did not change and [he] had to work those hours”. 31 Further, the Applicant submits that jobs were not optional and that he had to do all jobs that were allocated to him by the Respondent. He submits that he could not give work to someone else. Further, the Applicant submits that the Respondent monitored his whereabouts through GPS tracking of his work vehicle and the Respondent would provide instruction to him and ask questions of him regarding the performance of his work.32 The Applicant says this illustrates the control that the Respondent had over his work.33

[19] I note that clause 8.1 of the Agreement is as follows:

“8.1 The Contractor acknowledges that it will provide the Services as an independent contractor. The Parties acknowledge and agree that:

(a) the Company does not and will not exercise the degree of control over the activities of the Principal that would reflect an employment relationship;

…” 34

[20] The reality of the relationship is not reflected by Clause 8.1. The Respondent had contractual obligations to AGA. It met these through, inter alia, the Applicant. It dispatched jobs to the Applicant and required the Applicant to attend jobs when dispatched. I accept the Applicant’s evidence about the degree of control. That the Applicant was “dismissed” because he had refused to attend to an allocated job, not only suggests control but is also inconsistent with the Respondent’s contention that the Applicant could refuse an allocated job. The degree of control weighs in favour of a conclusion that the Applicant was an employee of the Respondent.

Performs work for another

[21] The Respondent contends that the Applicant was free to accept work from other employers with the exception that he could not provide services to the customer of the Respondent, except through the Respondent. The Respondent states that it is unaware as to whether the Applicant exercised this right. 35 The Applicant submits that he did not work for anyone other than the Respondent.36

[22] Clause 8.1(c) of the Agreement provides that the parties agree and acknowledge that “the Principal may, subject to this Agreement, accept work or employment from another person or company”. However, clause 21(b) of the Agreement prohibits the Applicant from being involved in any way in any business of the same or similar type as the Respondent. Further, clause 10 of the Agreement provides that “[N]o goodwill shall accrue to the Contractor or the Principal as a result of the provision of the Services”. Despite the Applicant’s express right in clause 8.1 of the Agreement, the Applicant is restrained to some extent by clauses 21 and 10. 37

[23] Though in a theoretical sense the Applicant could work for others in the same way as an employee could do so when not working for his or her employer, the Applicant could not practically work for others doing the work he undertook for the Respondent. The Applicant did not own the vehicle through which the work was undertaken. The vehicle was labelled and most of the equipment belonged to the Respondent. That in a practical sense the Applicant could not perform work of the kind he performed for the Respondent for another, weighs in favour of a conclusion that the Applicant was an employee of the Respondent.

Delegation or sub-contracting

[24] The Respondent submits that the Applicant had an express right under clause 2.2 of the Agreement to delegate or subcontract work, however it understands that the Applicant did not exercise this right. 38 Clause 2.2 of the Agreement requires the Applicant to obtain the Respondent’s written approval to exercise this right and the Respondent’s approval “may be withheld in its absolute discretion” thereby plainly restricting the Applicant’s ability to exercise this right.39 Given the nature of the work undertaken, that is it was call out mechanical work on a roadside assistance basis, the prospect of delegating or subcontracting with the written approval of the Respondent seems impracticable. In any event there is no evidence that any written approval had been given. There was no practical capacity to delegate or sub contract and so this weighs in favour of a conclusion that the Applicant was an employee of the Respondent.

Uniform

[25] The Respondent concedes that it provided the Applicant with an AGA branded uniform. 40 The Applicant contends that when the Respondent began contracting with companies other than AGA, he was asked to remove the AGA branded uniform in the presence of non-AGA customers. He further contends that following a meeting on 3 October 2017 he was provided with a plain shirt by the Respondent for use when attending jobs for non-AGA customers.41 The Respondent denies that the Applicant was asked to remove his uniforms for different jobs.42 I accept the Applicant’s evidence, but in any event, it is not disputed that the uniform worn by the Applicant was supplied by the Respondent and that the Applicant was required to wear the uniform supplied. This therefore also weighs in favour of a conclusion that the Applicant was an employee of the Respondent.

Salary and tax

[26] The Respondent contends that pursuant to the Agreement, the Applicant was remunerated upon provision of invoices and not by way of salary or wages. It says that whilst his remuneration was subject to an agreed minimum payment per shift, the amount the Applicant earned was dependant on the number of jobs performed and batteries sold. The Respondent contends that to the extent that the consistency of payments to the Applicant during some periods was consistent with a salary, this reflects that for significant periods he was receiving only the agreed minimum payments because he had not exceeded the minimum quota which would provide for additional remuneration. 43 The Respondent also submits that the Applicant was taxed pursuant to the independent contractor relationship.44 Clause 8.1(b) of the Agreement supports the Respondent’s contention and provides that the parties agree and acknowledge that the Respondent “pays on provision of Tax Invoices and does not pay a salary or wage”.45

[27] The Applicant contends that he did not invoice the Respondent. The Applicant submits that the Respondent sent him invoices, in a similar manner to payslips. The Applicant says he was paid weekly, on the same day every week, for his work. Further, he submits that the Respondent did not pay him per job. The Applicant says some other drivers were paid per job and would invoice the Respondent. 46 The Respondent gave evidence that the Applicant had requested “recipient created invoices because he found it awkward to deal with” and this is why the invoices were created and sent to him each month.47 It is important to note that the Applicant is registered for an ABN as a sole trader and his ABN is listed on the Agreement.48

[28] The Respondent submits that following a meeting with the Applicant on 29 January 2018 he agreed to pay the Applicant a minimum fee of $300 per shift and to reduce the shift length from 12 hours to 10 hours. 49 However, the Applicant submits that the last two invoices he received from the Respondent prior to his termination, which detail payment for services provided on and after 29 January 2018, provide payment to him at a cost of $30 an hour.50 On review of the invoices, the Applicant’s submissions are supported. In the column of the invoice titled “service provided” previous invoices stated the number of days worked by the Applicant, for example, 5 days. However, on the invoices dated 1 February 2018 and 8 February 2018, the “services provided” column lists the number of hours worked by the Applicant, for example 10 hours or 8 hours. The sum to be paid to the Applicant under the invoice, although not expressly stated, is the total of those hours multiplied by $30 an hour. Further, through this period there are two days where the Applicant worked only 8 hours and was paid only $240 for that shift. This is in contrast to the Respondent’s submission above that he agreed to pay the Applicant a minimum fee of $300 per shift after 29 January 2018.51

[29] There appears no dispute that the “invoices” were generated by the Respondent. It is also hardly surprising that the invoice arrangement and the method of payment was consistent with a contractor relationship since that is what the Respondent at least sought to achieve. The absence of tax withholding is a product of that which the Respondent sought to achieve. Little weight is given to matters that have the trappings of an independent contractor relationship in the circumstances of this case.

Description of relationship

[30] The Respondent submits the Agreement between the parties acknowledges the relationship as that of an independent contractor relationship. It submits that the Applicant entered into the agreement as principle and as the only contractor listed. 52 The Agreement refers to the parties as “The Company”, “The Contractor” and “The Principal”.53

[31] Despite the Agreement between the parties, the Respondent’s contract with AGA reads as follows:

“5. Nominated Person and Additional Employees

5.1 The Roadside Assistance Services must be provided by the Service Provider primarily through the Nominated Person.

5.2 To the extent that it is not reasonable for the Nominated Person to provide the Roadside Assistance Services, the Service Provider may, subject to clause 5.3, engage any Additional Employees necessary to enable it to provide the Roadside Assistance Services in accordance with this agreement.

5.3 All Additional Employees engaged by the Service Provider must first be approved by Allianz Global Assistance. If requested the Service Provider must submit to Allianz Global Assistance all documentation which Allianz Global Assistance may reasonably require to assess the suitability of the Additional Employee.

5.4 Allianz Global Assistance may direct the Service Provider to replace any Additional Employee with a person nominated by the Service Provider and acceptable to Allianz Global Assistance. Allianz Global Assistance need not give any reasons for or justify any directions given under this clause 5.4.

6. No Sub-contracting

6.1 Despite anything in clause 5, the performance of this agreement is personal to the Service Provider and the Service Provider must not sub-contract the provision of the Roadside Assistance Services, in whole or in part, to any other person.” 54

[32] The Respondent provided evidence that he received permission from AGA to override clause 6 of the contract. However this was done after the Agreement between the Applicant and the Respondent was allegedly made. 55 Though the description of the relationship is important, it is not determinative. That which is relevant is the substance of the relationship and not its form.

Tools or equipment

[33] The Respondent concedes that it provided the Applicant with an AGA branded vehicle 56 however it denies that the Applicant was provided with tools. It says the Applicant was required to provide his own tools at his expense.57 The Respondent gave evidence that personal protection equipment and some expensive items such as a battery tester were provided however hand tools were to be provided by the Applicant. The Respondent said “if we could draw a line between equipment and tools, [it] supplied the equipment and [the Applicant] provided the tools”.58

[34] The Applicant submits that the Respondent provided all tools he required to perform his job. He says he did use his tools at work but this was not expected of him and that the Respondent had all tools available for his use. 59

[35] It is relevant that the Respondent’s contract with AGA reads as follows:

“10. Equipment and Parts

10.1 The Service Provider must, at the Service Provider's cost, ensure that the Service Provider Vehicle is, at all times, equipped with the Equipment and Parts sourced through Allianz Global Assistance or another reputable supplier as approved by Allianz Global Assistance.

10.2 The Service Provider must ensure that the Equipment is clean and maintained in a fully operational manner at all times.

10.3 Upon the Service Provider giving notice (in the form advised by Allianz Global Assistance from time to time) to Allianz Global Assistance of use of Parts in completing the Roadside Assistance Services, Allianz Global Assistance will reimburse the Service Provider for the cost of the Parts used, at the time that Fees are paid for the corresponding job.

10.4 From time to time, Allianz Global Assistance may determine that certain specialised equipment may be beneficial to both parties in performance of the Roadside Assistance Services and that such equipment will be required to be added to the Equipment.

The Service Provider shall purchase. at the Service Provider's cost, such additional or updated Equipment as determined by Allianz Global Assistance to complete the Roadside Assistance Services from time to time.” 60

[36] Under this contract, equipment is defined as all items listed in Item 9 of the schedule. Item 9 contains an extensive list of 37 items which the Respondent was required to provide to its employees under the contract. 61 In his submissions, the Applicant provided a copy of this list and ticked 24 items of the 37 above which were provided by the Respondent. The Applicant also submits that the Respondent provided him with a fuel card, and that the services and repairs required for the work vehicle were attended to by the Respondent.62

[37] It seems plain that most of the substantial equipment, including the vehicle, required to perform mechanical roadside assistance was supplied by the Respondent. The Applicant used this equipment to perform his work. This therefore weighs in favour of a conclusion that the Applicant was an employee of the Respondent.

Signing of the Agreement

[38] The Applicant submits that he was an employee and that he did not sign the Agreement and nor did he see the Agreement until 13 February 2018. 63 Mr Ahchow of the Respondent said he found the statement to be “extremely offensive” as the Applicant had clearly signed the document.64 Mr Ahchow then stated three reasons why he believed the Applicant’s claim to be false:

1. The contract between the Respondent and AGA was an appendage to the Agreement. If the Applicant had not seen the Agreement, Mr Ahchow could not understand how the Applicant had filed a copy of the AGA agreement with the Commission;

2. Ms Morgan, who was the witness to the Agreement when it was signed, attended the Commission and intended to give evidence (and did shortly after Mr Ahchow) that she recalled being in the room and witnessing the parties sign the Agreement; and

3. The signature of the Applicant on the Agreement and that on the application to the Commission in this matter are so similar that the conclusion could be drawn that they were signed by the same person. 65

[39] I accept the evidence given by Mr Ahchow that the Applicant signed the Agreement.

[40] It should now be uncontroversial that a multi-factorial assessment is required in evaluating whether a person providing personal services is an employee or alternatively an independent contractor. This is because it is “the totality of the relationship” which is to be considered, not just its form. 66 It may also be accepted that 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”.67 As North and Bromberg JJ observed in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd68 this difference was referred to by Wilson and Dawson JJ in Stevens v Brodribb SawmillingCompany Proprietary Limited69as a characterisation of “the ultimate question”.70 That point of distinction has been elsewhere referred to as the “ultimate question” posed by the totality approach or “the focal point” of that approach.71

[41] If an independent contractor is a person like the Applicant who the respondent says in effect, operates a business, it is necessary to consider the hallmarks of a business. Some businesses have complex operations. Others adopt a lean or simple form. Some of the typical indicia of a business will be more relevant in some settings than in others. Businesses of the kind alleged to have been conducted by the Applicant are more likely to have a simple and less sophisticated structure. However, even a small, simple commercial enterprise will have some of the fundamental hallmarks of a business, though modest they may be. As North and Bromberg JJ also observed in Quest:

“. . . The pursuit of profit is at the core of entrepreneurship and to be regarded as one of the primary hallmarks, if not the primary hallmark, of a business. A commercial enterprise, no matter how small, is an undertaking in which time, money, and effort are risked in the hope of making a profit. Unlike the employee, who will be content to be remunerated with a wage which reflects the value of the personal services provided, the entrepreneur providing commercial services will want to be remunerated by making a profit. In pursuit of a profit, the independent contractor will not merely seek remuneration commensurate with the value of the personal services or work provided, but will want a return on the risk and expense involved in running a business.” 72

[42] Apart from the pursuit of profit, the nature of the economic activities and the organisational structures of an enterprise will tend to distinguish it as a business. The following indicators were distilled from the authorities in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3): 73

•  Do the economic activities of the putative business involve the taking of risk in the pursuit of profits? 74

•  Does the putative business engage in a repetitive and continuous manner with purchasers of its services? 75

•  Does the putative business employ or engage persons other than the owner/operator to carry out its economic activities? 76

•  Is goodwill (name, brand and reputation) being created by the economic activities of the putative business? 77;

•  Is the putative business promoted as a business to the public through advertising or other promotional means? 78

•  Does the putative business have tangible assets such as buildings and equipment which are utilised to support its economic activities? 79

•  Does the putative business have the basic transactional systems that are common of a business of that kind? For instance: invoicing systems; standard rates and terms and conditions of trade; insurance coverage; payment and debt collection systems; appropriate financial records; budgeting or forecasting systems; business based arrangements with a bank or other financial institution; 80

•  Do the services provided by the putative business involve the provision of labour of sufficient skill to be suggestive of the pursuance of a profession or trade through a business? 81

•  Are the regulatory requirements of a business (including business name registration, taxation, GST and ABN registration and compliance) being met by the putative business? 82

[43] In the instant case there is no evidence of the Applicant taking risk in pursuit of profit. He simply was assigned and worked shifts in the Respondent’s business. Apart from working shifts in the Respondent’s business there is no evidence that the applicant engaged in any, let alone repetitive or continuous, business with other customers who might purchase he services. The Applicant did not employ any person in any business conducted by him. There is no goodwill assignable to any business conducted by the Applicant and indeed the agreement between the applicant and the Respondent expressly reposes goodwill in the Respondent’s business. 83 There is no evidence of any advertising or other promotional activities undertaken by the Applicant. Indeed when he undertakes work he does so under cover of a uniform and livery provided by the Respondent. There is no evidence of any tangible assets belonging to the business said to be conducted by the Applicant. The only invoicing that occurs is that generated by the Respondent. The Applicant is not registered for GST and does not appear to have registered any business name.84

[44] None of the indicators save for the provision of skilled labour by the Applicant, point to the Applicant conducting his own business. The services provided by the Applicant through his skilled labour bear none of the hallmarks of a business. It is thus a very short step to conclude that the Applicant was an employee of the Respondent.

[45] Moreover, the weight of relevant matters discussed above points squarely towards a conclusion that the Applicant was an employee of the Respondent. The Applicant did not conduct his own business. He used a vehicle provided by the Respondent which bore the Respondent’s Principal’s insignia, and wore a uniform bearing that insignia. The equipment used was also predominantly owned and supplied by the Respondent. The Respondent exercised a high degree of control and there was no practical capacity for the Applicant to delegate or to subcontract. The Applicant worked according to a roster prepared by the Respondent and was paid for the whole period while rostered rather than on a job by job basis. Such indicia as point the other way, such as the description of the relationship and the method of taxation are given little weight in circumstances where the preponderance of the indicia show that the substance of the relationship was one of employment.

Conclusion

[46] For the reasons stated, the Applicant was an employee at the time of the dismissal. The jurisdictional objection raised by the Respondent is dismissed. The application for an unfair dismissal remedy will be remitted to the UDCMT for further allocation.

DEPUTY PRESIDENT

Appearances:

TV Nguyen on his own behalf

R Ahchow from the Respondent

Hearing details:

2018.

Melbourne:

July 17, September 11.

Printed by authority of the Commonwealth Government Printer

<PR703672>

 1   Exhibit 11 at p. 5

 2   Respondent’s Form F3 – Employer Response Form dated 16 March 2018 at question 2.2

 3   Exhibit 3

 4   Exhibit 12

 5   Exhibit 11 at p. 1

 6   Exhibit 11 at p. 1

 7   Exhibit 3

 8   Exhibit 1

 9   Ibid

 10   Exhibit 10

 11   Exhibit 11 at p. 2

 12   Exhibit 11 at p. 1

 13   Ibid; Respondent’s Form F3 – Employer Response Form dated 16 March 2018 at question 3.2

 14   Exhibit 7; Transcript of proceedings dated 11 September 2018 at PN112 – PN116 and PN282 – PN287

 15   Respondent’s Outline of argument: Merits filed 4 June 2018 at question 1c

 16   Exhibit 11 at pp. 1-2

 17   Ibid at p. 3

 18   Ibid

 19   Respondent’s Form F3 – Employer Response Form dated 16 March 2018 at question 3.2

 20   Ibid

 21   Ibid at question 3.1

 22   Exhibit 3

 23   Stevens v Brodribb Sawmilling Co Proprietary Limited (1986) 160 CLR 16 at 24 per Mason J

 24   ACE Insurance Limited v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 at [26]-[27] per Buchanan J

 25   [2011] FWAFB 8307

 26   [2011] FWAFB 8307

 27   Ibid at [30]

 28   Exhibit 2 annexure at [2]

 29   Respondent’s Form F3 – Employer Response Form dated 16 March 2018 at question 2.2

 30   Transcript of Proceedings dated 17 July 2018 at PN169

 31   Exhibit 12

 32   Ibid

 33   Applicant’s Response to the Respondent’s Form F3, filed 27 March 2018 at p. 14

 34   Exhibit 3

 35   Exhibit 2 - annexure at [3]

 36   Exhibit 12

 37   Exhibit 3

 38   Exhibit 2 - annexure at [4]

 39   Exhibit 3

 40   Exhibit 2 - annexure at [7]

 41   Exhibit 12

 42   Exhibit 1

 43   Exhibit 2 - annexure at [5]; Transcript of Proceedings dated 11 September 2018 at PN607

 44   Ibid at [6]

 45   Exhibit 3

 46   Exhibit 12

 47   Transcript of Proceedings dated 17 July 2018 at PN191

 48   Exhibit 3

 49   Respondent’s Form F3 – Employer Response Form dated 16 March 2018 at question 3.2

 50   Exhibit 12

 51   Exhibit 1

 52   Exhibit 2 annexure at [1]

 53   Exhibit 3

 54   Exhibit 4

 55   Exhibit 5

 56   Exhibit 2 - annexure at [8]

 57   Respondent’s Form F3 – Employer Response Form dated 16 March 2018

 58   Transcript of Proceedings dated 17 July 2018 at PN189-190

 59   Exhibit 12

 60   Exhibit 4

 61   Ibid

 62   Applicant’s Response to the Respondent’s Form F3 filed 27 March 2018.

 63   Exhibit 12

 64   Transcript of Proceedings dated 17 July 2018 at PN225

 65   Transcript of proceedings dated 17 July 2018 at PN225

 66   Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 at [24]

 67   Ibid at [40]; Marshall v Whittaker’s Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 at 217 per Windeyer J; Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 at [177] per North and Bromberg JJ

 68 [2015] FCAFC 37; (2015) 228 FCR 346 at [178]

 69 [1986] HCA 1; (1986) 160 CLR 16

 70   Ibid at [35]

 71   Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 at [178]; On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) (2011) 214 FCR 82 at [207] (Bromberg J); to similar effect in ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 at [29] (Perram J); and on appeal ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 at [93] and [102] (Buchanan J, with whom Lander and Robertson JJ agreed).

 72   Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 at [181]

 73 (2011) 214 FCR 82 at [207]

 74   Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd & Anor [2005] HCA 9at [39]; Hope v Bathurst City Council (1980) 144 CLR 1at 9; Roy Morgan ResearchPty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [47]; Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6; (2006) 149 IR 339at [41] and [49]; City of Montreal v Montreal Locomotive Works Ltd [1947] 1 DLR 161 at 169; Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 at 184; Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374 at 382.

 75   Hope v Bathurst City Council (1980) 144 CLR 1at 9; Hungier v Grace (1972) 127 CLR 210 at 216–217; Puzey v Commissioner of Taxation [2003] FCAFC 197at [48]; Commissioner of Taxation v Sleight [2004] FCAFC 94; (2004) 136 FCR 211 at [48]

 76   Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16at 26 and 38

 77   Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 at [48]; Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 at 37; Roy Morgan ResearchPty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [46]; Re Porter; Re Transport Workers Union [1989] FCA 226; (1989) 34 IR 179 at 186

 78   Hope v Bathurst City Council (1980) 144 CLR 1 at 9; Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215at [35]; Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6; (2006) 149 IR 339at [35]

 79   Stevens v BrodribbSawmilling Company Proprietary Limited (1986) 160 CLR 16at 37; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd & Anor [2005] HCA 9at [39]

 80   Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21at [54]; Sweeneyv Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161at [31]; Hope v Bathurst City Council (1980) 144 CLR 1at 9; Wesfarmers Federation Insurance Ltd v Wells [2008] NSWCA 186 at [42]; Ferguson v Federal Commissioner of Taxation [1979] FCA 51 at 311

 81   Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21at [48]; Stevens v BrodribbSawmilling Company Proprietary Limited (1986) 160 CLR 16at 36–37; Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6; (2006) 149 IR 339at [51]

 82   Wesfarmers Federation Insurance Ltd v Wells [2008] NSWCA 186 at[39]–[42]

 83   Exhibit 3 at clause 21(b)

 84   Transcript of proceedings dated 11 September 2018 at PN318-PN328