Tyshkovsky v A1 Industries Pty Ltd

[1996] IRCA 306

DECISION NO:  306/96 

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - employee or independent contractor - contract for a specified task - application without reasonable cause - costs - no documentation of contract

Industrial Relations Act 1988 ss.170CC, 170EA, 347

Industrial Relations Regulations - Regulation 30B

CASES:

Articulate Restorations and Development Proprietary Limited v Crawford (1994) 57 IR 371

Stephens v Brodribb Sawmilling Company Proprietary Limited (1985) 160 CLR 16,

TYSHKOVSKY -v- A1 INDUSTRIES PTY LTD

No. VI-6104 of 1995

Before:  Ryan JR
Place:  Melbourne
Date:  25 June 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-6104 of 1995

B E T W E E N :

GENNADY TYSHKOVSKY
Applicant

AND

A1 INDUSTRIES PTY LTD t/a ARMOUR HOMES
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan       25 June 1996   

THE COURT ORDERS:

1. That the application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-6104 of 1995

B E T W E E N :

GENNADY TYSHKOVSKY
Applicant

AND

A1 INDUSTRIES PTY LTD t/a ARMOUR HOMES
Respondent

Before:      Ryan JR

Place:       Melbourne

Date:         25 June 1996

JUDGMENT EX TEMPORE
(settled from transcript)

This is a claim of unlawful termination of employment.  The Applicant works now and worked then as a security guard at night.  He states that this was and is casual work, and that he wanted a permanent full-time job.  He says he got a job as a painter with the Respondent and was an employee of the Respondent.  He represented himself in this hearing.

Mr Shaw appears for the Respondent and asserts that the Applicant was in a sub-contractual relationship with the Respondent, in other words, the Respondent asserts the Applicant was an independent contractor and thus outside the coverage of Part VIA of the Act.

The Respondent builds houses.  A director of the Respondent company, Mr Ebeyan, gave evidence that this is all done by way of sub-contractual relationships and that the Respondent built 10 houses in 1995, and is building more this year, and adopts the general practice of building one house at a time.  The Respondent also asserts that if the Court finds that there was an employer/employee relationship, the contract was for a specified task and thus excluded from the relevant Subdivisions of Part VIA pursuant to Regulation 30B.

And if that fails, then the Respondent asserts that the Applicant was a casual employee and, as a casual employee, was likewise excluded from the relevant parts of Part VIA, pursuant to section 170CC and Regulation 30B.

There are a plethora of first instance and appellate authority dealing with whether particular relationships are to be characterised as that of an employer or employee.  To some extent previous decisions are of limited assistance as they only illustrate, to quote Articulate Restorations and Development Proprietary Limited v Crawford (1994) 57 IR 371 at 381, that the legal criteria by which the employer/employee and independent contractor relationships are to be distinguished are themselves indeterminate in the sense that the application of them to the facts does not produce a plain and obvious result. According to Mahony JA, the test leaves a good deal to the judgment or discretion of the individual judge. The first task really is to identify the actual agreement between the parties. That is not particularly easy in this case. It appears to have been entirely oral. Then again, the Respondent was operating in the building industry, and it is far from uncommon for contractual relationships in the building industry to be entirely oral.

If one goes to a decision of the High Court in Stephens v Brodribb Sawmilling Company Proprietary Limited (1985) 160 CLR 16, the Court weighs the various indicia to ascertain whether the real nature of the relationship is one of employment. The Court held that that requires regard to be had to the totality of the relationship.

Turning first to what Mr Shaw correctly described as the traditional test, the test of control, it would appear, having heard the evidence of the Applicant and Mr Ebeyan, that this was a contract for work to be done at a fixed price.

I rely not just on the evidence of Mr Ebeyan, but also on the evidence of the Applicant himself.  There is no disagreement as to the specific time contemplated.  Mr Tyshkovsky agrees with Mr Ebeyan that initially there was a requirement of one week.  Mr Tyshkovsky expresses the view that that was far too short a period of time, and I am inclined to agree with him.   But that is neither here nor there.  It seems pretty clear to me that there was a contract to paint a specific house in Cranbourne, Lot 30.

In terms of the control test, there is no evidence that Mr Tyshkovsky was under direct supervision.  True it is that there was some inspection of his work, but there is no evidence he was under direct supervision during the contract of this work.  He was not subject to any direction in relation to specific attendances or specific hours. I say that without relying at all - and I do not intend to rely - on the documentation by the Respondent after the event in his undated communication with the Applicant. There simply is not any evidence of direction or arrangements for direction or supervision of the Applicant.

I also note that there is no evidence that this Respondent ever employed labour in a direct sense. The only evidence, and the uncontested evidence, is that it was the practice of the Respondent to operate by way of subcontractual relationships.

I find that when one looks at the totality of the relationship it was, without doubt, a relationship of contractor and sub-contractor.

Mr Shaw drew the Court's attention to the Applicant's own letter, exhibit R3. I am inclined to agree with Mr Shaw's assertion that that does not display a lack of knowledge of employer/employee relationships and of contractual arrangement.

I do not agree with Mr Shaw that the Applicant showed a lack of sophistication in the witness box. He conceded, in answer to questions to the Court, that he did understand the difference between a contractual relationship and an employer and employee relationship.

I find that this was a contractual relationship and was excluded from the jurisdiction of the Court, and the Court therefore does not have jurisdiction.

If I am wrong in relation to that, I also find that the contract would have been excluded as being a contract for a specified task, a clearly specified task, to paint a particular house in Cranbourne. On that basis, had it been a contract for services, and I find it is not, but it had been so it also would have been excluded from the jurisdiction of the Court pursuant to Regulation 30B(1)(b).

It follows that I must and do dismiss this application.

Mr Shaw has also submitted to the Court that this is a case in which the Court ought to and should order costs against the Applicant on the basis that it was an application that was made without reasonable cause and must have been an application that was realised by the Applicant to be one without reasonable cause.  Let me say immediately I find that it was an application made without reasonable cause. 

The ordering of costs pursuant to section 347 is a discretionary order and I will say that had there been any documentation, even a shred of documentation of the contractual arrangement provided before or even during the period of the contract, I would have ordered costs against the Applicant. There was no such evidence, no such documentation. I decline to order costs against the Applicant although he perhaps ought to regard himself as somewhat fortunate that I have not exercised the discretion to order costs against him.

Application dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding 3 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:          
Dated:  11 July 1996

The Applicant appeared in person.

Counsel for the Respondent:  Mr B Shaw

Date of hearing:  25 June 1996
Date of judgment:  25 June 1996