White and Repatriation Commission - [2001] AATA 48

DECISION AND REASONS FOR DECISION [2001] AATA 48

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1997/825

VETERANS' APPEALS DIVISION       )
           Re      Neville Vincent WHITE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date31 January 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – assessment - special rate pension – Applicant's last paid work – whether "employee" or "independent contractor" - application of indicia of "employee" in determining Applicant's employment – whether worked for "ten continuous years" that began before Applicant turned 65

Veterans' Entitlements Act 1986 s24(2A)(g)

Dwiar v Molfetas (1991) 159 LSJS 47
Konrad v Victoria Police [2000] FCA 988
Federal Commissioner of Taxation v Barrett and ors. (1973) 129 CLR 395
Molfetas v Dwiar (1991) 160 LSJS 90
Performing Right Society Ltd v Mitchell & Booker Ltd [1924] 1 KB 762
R v Allan; ex parte Australian Mutual Provident Society Ltd (1977) 16 SASR 237
Re Cormier and Alberta Human Rights Commission (1984) 14 DLR (4th)55
Re Hocking and Commonwealth of Australia (1987) 13 ALD 545
Re Keady and Repatriation Commission (2000) 59 ALR 313
Re Marshall and Discrimination Commissioner and ors. (1996) 42 ALD 101
Re Melocco and Repatriation Commission (AAT 11959, 18 June 1997)
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Thomson v Repatriation Commission (2000) 96 FCR 550 at 554-5
Zuijs v Wirth Bros (1955) 93 CLR 561

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 29 March 1996 that determined that pension be paid to Neville Vincent White ("the Applicant") at 100 percent of the General Rate, with effect on and from 1 September 1995. This followed the acceptance of the conditions of cervical spondylosis, right acromioclavicular joint disease, lumbar spondylosis and bilateral sensorineural hearing loss with tinnitus as being due to the Applicant's war service. The Applicant lodged his application for those conditions on 1 December 1995, and for the purpose of s24 of the Veterans' Entitlements Act 1986 ("the Act") that is the application date. The Applicant sought review of the Respondent's assessment decision by the Veterans' Review Board ("the VRB") on 18 April 1996, and on 21 April 1997 the VRB affirmed the Respondent's decision. The Applicant lodged an application for review by this Tribunal on 16 June 1997.
The first day of the hearing was on 10 June 1998, when the proceedings were adjourned part-heard to allow the Applicant time to attempt to obtain his old tax returns from the Australian Tax Office. Ultimately he was not successful. However, the hearing resumed on 1 February 1999, and after taking further oral and documentary evidence and oral submissions from the Applicant, it was adjourned to allow the Respondent to make written submissions. Further delays occurred awaiting a decision in a leading case, which ultimately was not of assistance in this matter. The Tribunal resumed the hearing for the purpose of hearing the Applicant's further oral submissions on 9 May 2000 and then adjourned at the request of the Respondent to provide written submissions in reply, that were lodged on 10 September 2000. Submissions in reply were lodged on behalf of the Applicant in writing on 30 October 2000. With the passage of time the focus of this matter appears to have changed somewhat, particularly from the Respondent's perspective. However, ultimately the main issue in dispute was in relation to s24(2A)(g) of the Act.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (including supplementary documents) totalling 103 pages. The following documents were tendered on behalf of the Applicant –

Employment Statement from the Applicant dated 4 June 1998 (exhibit A);
Letter from Probus Club of Singleton Inc. dated 16 January 1998 (exhibit B);
Statement from Robert Allan dated 20 January 1998 (exhibit C);
Statement from David Cole, partner, Coopers & Lybrand, Accountants, undated (exhibit D);
Letter from Department of Employment, Workplace Relations and Small Business, dated 17 November 1998 (exhibit E);
Letter from Applicant to his advocate dated 10 December 1998 (exhibit F);
Statement from Paul King, dated 20 January 1999 (exhibit G);

The Respondent tendered two change of address notices received from the Applicant (exhibit 1).

The Applicant gave oral evidence at the hearing, both in person and later by telephone. Dr M Baz, occupational physician, also gave oral evidence, called by the Applicant.
background, issues and legislation
The Applicant has the following conditions accepted as war-caused disabilities–

Gun shot wound left shoulder
Dyspepsia (duodenal ulcer)
Internal haemorrhoids
Anxiety state
Right acromioclavicular joint disease
Cervical spondylosis
Lumbar spondylosis
Bilateral sensorineural hearing loss with tinnitus

The Applicant is seeking pension at the Special (Totally and Permanently Incapacitated) Rate pursuant to s24 of the Act. He was born on 13 April 1919, and at the application date (1 December 1995) he was aged 76 years, that is, the application date post-dates his 65th birthday. The Applicant is, by profession, a chartered accountant. He last undertook remunerative work in 1995.
Ultimately, the Respondent conceded that the only issue before the Tribunal related to some of the paragraphs in s24(2A) of the Act, mainly paragraph (g). Subsection 2A provides –
This section applies to a veteran if:
(a)       the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)       the veteran had turned 65 before the claim or application was made; and
(c)       paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)       the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)       because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)        the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)       when the veteran stopped undertaking his or her last paid work, the veteran;
(i)        if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessor of that person; or
(ii)       if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h)       section 25 does not apply to the veteran.

In particular, of issue for the Respondent is the definition of "last paid work" and whether the Applicant's activities meet that definition.
evidence

The Applicant tendered an "employment statement" (exhibit A), supplemented by his oral evidence. He is an accountant by profession. He had been employed as the Company Secretary of Travelodge Australia concurrently with several other public companies. He worked with Travelodge from 1960 until September 1978 when he ceased at the age of 59 years because his war caused disabilities caused declining health. In the meantime the other companies with which he had been involved had been taken over or merged by that time and he had no further involvement with them. He left Travelodge because he found the pressure of work to be too great, he had difficulty sleeping and was constantly tired. He was also experiencing considerable pain from his orthopaedic accepted disabilities. He said he "worried constantly about making a mistake or slipping up in my responsibilities".
By the time he left Travelodge he had seen the company through a period of marked expansion involving the shedding of unprofitable companies and taking over other companies, and Travelodge itself was taken over during his period of employment and was reconstructed. As Company Secretary he was involved in all these manoeuvres.
The Applicant said he had intended to continue working with Travelodge until he was 65 years old when he would have taken his superannuation. He said that after that he hoped to make his "own little practice or something of that nature" in the area of accountancy or company secretaryship. In fact he was paid superannuation when he left Travelodge. At the time he left he and his wife lived at Waterfall, but they found that to be unsuitable because of neighbourhood trail bike activity. He also thought that his health could be restored if he went to the country. He anticipated he could obtain the sort of work that he wanted to do in a country town.
From 1972 to 1997 the Applicant was also a Director of two Sydney-based private companies. As a Director he performed a variety of tasks for the companies, occupying him for five to six weeks each year. He said he was paid a fee each six months, and for taxation purposes this was recorded as reimbursement of expenses. In 1995 his half yearly fee was $1,250. He moved from Singleton to Murwillumbah in October 1997 and resigned from these companies at that time as he was then too far away from Sydney.
The Applicant said when he left Travelodge he planned, after his health recovered, to seek other less stressful accountancy work. He submitted his resume to a number of companies in 1978/79, but was unsuccessful. In late 1979 he and his wife decided to leave Sydney. In the first few months of 1980, when they sold the house at Waterfall they bought 28 acres of land at Milbradale, near Singleton. They planned a mixed farm and contracted to have a house built. They moved to live on the property in July 1981. He had a contractor develop dams in the creek that ran the length of the property. He bought a tractor that he operated himself. His neighbours helped provide labour and materials to build fences. He took about two years to plant about 200 fruit trees, a few nut trees and a large vegetable garden. He also ran goats for milk and meat. He said the fruit trees were producing for sale by the time the property was sold in 1990.
The Applicant said he hired contractors for the heavy work and relied on the labour of neighbours in return for services rendered by him in relation to diesel fuel rebate applications, taxation and insurance matters. The Applicant said that about 1983 he assisted a neighbour with a diesel fuel rebate claim and re-organised insurance for him. In return, that person provided him with about three miles (at one point he also referred to 3 kilometres) of fence posts, the Applicant provided the wire and his neighbour helped to build the fences.
He said that he did approximately 15 tax returns for neighbours, particularly in the year of the tax amnesty (1988/89) and thereafter. In his oral evidence he said he commenced this in 1987, but he provided assistance with diesel fuel rebate and insurance matters from 1983. He calculated that over the period from 1982 to 1989/90 he received goods and services that he valued at $5,760 in lieu of fees for professional services rendered. He said that after he sold the farm early in 1990 (and moved to urban Singleton) he continued to do his neighbours' tax returns in return for occasional labour and garden furniture.
The Applicant said that after moving to the farm at Singleton his health improved after about 18 months to a point where he intensified his search for work in the accountancy field. He said that over the period from 1978 until he gained employment he was "constantly ringing and placing written applications for work in my profession".
From 1981 the Applicant undertook voluntary accounting work for the RSL, the Probus Club, the Disabled Children's Association, and the Chamber of Commerce. He said that this work enabled him to become known to the local business community. Through that exposure he was invited by Andrew Crawford, a Public Accountant, "to join his firm on a full-time salaried basis, at $28,000 per annum, to concentrate on filing tax returns". Crawfords had a backlog of work for which extra assistance was needed. He remained with Crawfords for 18 months. In his oral evidence he explained that no written contract was signed but there was a verbal agreement that the Applicant would complete clients' tax returns, which he did without any supervision. He was expected to work during the hours of 8.30 am to 4.30 pm, but this was not rigid. He received payment fortnightly with tax deducted.
The Applicant joined Coopers & Lybrand, Accountants, in 1993 to help with their back-log, in a relationship similar to that with Crawfords. He worked full-time for 4 months, helping to clear a backlog of their tax work. He said he found the work at Coopers & Lybrand stressful. He said he resigned from Coopers & Lybrand in the interests of his health.
The Applicant had been working at Singleton TAFE whilst he was at Coopers & Lybrand. He commenced lecturing with TAFE "on a salaried contract basis" in 1985, making input into various courses on bookkeeping and accountancy. He said he provided two courses per year, and later three courses per year, and later again two courses per year. Each course involved teaching three classes per week for several months. In effect he was involved in teaching throughout the academic year. He estimated that three classes per week approximated to 27 hours per week. He performed this work for 8 or 9 years, until November 1993.
The Applicant said that when he commenced teaching at TAFE he was asked to produce his professional qualifications and proof of membership of his professional society. He said he was required to sign "a very minor bit of document" that apparently outlined a brief code of conduct, the number of students in the course he was teaching and "a list of things" that the students were expected to learn. He said he was expected to maintain his own professional information sources, his subscription to journals, and his membership of his professional association. He said he had maintained all these since the time of his employment with Travelodge. He said his payment from TAFE was at an hourly rate for each hour of lecture he provided plus an additional one third for lecture preparation that he undertook at home. TAFE deducted PAYE taxation before making payments to him. Payments were received each fortnight.
The Applicant said he was finding his teaching at TAFE physically hard because he was unable to sit for long periods due to pain, although he could cope if he could deliver his lecture while standing. He said that his hearing also interfered with his teaching ability. He said he was prepared to continue that work in 1994, but another lecturer was approached by TAFE to teach the course while the Applicant and his wife were on holidays overseas during the Christmas holiday period.
When the Applicant's teaching at TAFE ended, he then obtained lecturing work at Skillshare in 1994. He said that Skillshare obtained the students and the funding for the course, and the rest of the course preparation and teaching was left to him. He said he undertook part-time lecturing for 9 weeks a year, involving 30 hours of teaching each week. He said he was paid weekly on the basis of each hour of lecture, tax was deducted, and he was not reimbursed for professional association fees or journal subscriptions. He said that in the event of his being unable to deliver a lecture for any reason, either for TAFE or Skillshare, he would have been asked to find someone else to prepare and deliver the lecture for him.
He continued providing courses for Skillshare until November 1995. Having consulted his doctor at the end of 1995, he advised the Manager of Skillshare that he was unable to continue this work because of the poor state of his health. At this time he was advised that Skillshare was closing its Singleton office. He was offered similar work with Skillshare in a nearby town, but he said he could not accept this because of the state of his war-caused orthopaedic disabilities.
The Applicant said he continued to maintain his membership of the Australian Society of Certified Accountants. He also maintained his subscriptions to Butterworth's "Taxation" and "Company Law" weekly digests until late 1997. The Applicant said that in completing his own tax returns, he used the Business and Professional forms until June 1991, and then changed to "the normal PAYE forms".
The Applicant and his wife moved from Singleton to Murwillumbah in October 1997. He said this was because of the effect the Singleton climate had on his orthopaedic war-caused disabilities. He said that by the end of 1995 he had been unable to manage more than his continued involvement with the Sydney based private companies, and even then he was finding the attendance at meetings and the regular telephone contacts onerous and stressful. He said that because of his accepted disabilities, he was able to work only part-time or intermittently. However, he said that if he had not found it necessary to move to Murwillumbah he would have tried to continue with that work "for its interest and intellectual involvement and out of loyalty to the owner.
Dr Baz, occupational physician, provided a report dated 8 October 1996 (T6) and gave oral evidence. She assessed that since December 1995 the Applicant has been unable to undertake work to which he is suited for an average of eight hours per week. However, his non-accepted disabilities do not preclude him from full-time work or indeed work of more than eight hours per week.
submissions
It was submitted for the Applicant that he has worked in his capacity as a professional accountant for at least the period from 1983 to 1995. It was submitted that the case law supports that he was an independent contractor and not an employee.
Relying on the decision of the High Court in The Federal Commissioner of Taxation v Barrett and ors. (1973) 129 CLR 395 the Applicant submitted that insofar as there is any difficulty applying the common law regarding "employees" versus "independent contractors", the relevant legislation has to be viewed in a special statutory context because of the particular purpose of its existence and its beneficial nature. The Applicant relied on the following part of the High Court decision (at 406) in providing support for his case that he was an independent contractor and not an employee –
There … appear to me to be a number of circumstances which point to the conclusion that these salesmen are employees. They are not engaged for a limited time or to perform one specific task but as more or less permanent representatives of the firm, thus they participate as beneficiaries, albeit in respect of small sums only, in the firm's non-contributory superannuation scheme, the relative permanency of their employment being thereby recognized… They may not, by statute, act as land salesmen for any other agents nor act in any way in connexion with land dealings on their own account so long as they represent the respondents…

It was submitted that the "control" test was identified in Barrett as having been seen by the courts for a long time as an important differentiating factor, but it is only one of a number of indicia.

Apart from the "control" test, the Courts later considered the "integration" test. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, the High Court noted that organisational integration is merely one factor that is relevant in categorising a relationship. It was submitted that Stevens is the leading case on the issue. The issue was whether Mr Stevens and Mr Gray were employees or contractors. Each sustained injuries in the course of his relationship with the sawmill. Mason J (at 23-4), with whom Brennan J (at 47) agreed, set out the tests to be considered when applied to different factual situations. Mason J said (at 24) –
A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies… in the right of the employer to exercise it….
…
But the existence of control, whilst significant, is not the sole criterion…. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.
The High Court agreed that Stevens and Gray were not employees of the sawmill. At 25-6 Mason J explained that Stevens and Gray provided their own equipment, set their own hours and received payments, not in the form of fixed salary or wages, but in amounts determined by the volume of timber they had delivered, through the use of their equipment, to the sawmill. Mason J. also noted that the power to delegate is an important factor in deciding whether a worker is a servant or an independent contractor. His Honour noted that the "organisation" test had been mentioned in a number of cases, but he said there was no agreement as to the role it should play and there were competing views of the purpose it serves. His Honour also said (at 27) –
For my part I am unable to accept that the organisation test could result in an affirmative finding that the contract is one of service when the control test either on its own or with other indicia yields the conclusion that it is a contract for services. Of the two concepts, legal authority to control is the more relevant and the more cogent in determining the nature of the relationship.
In Stevens, Mason J. said (at 28-9) –
… in modern post-industrial society, technological developments have meant that a person so engaged often exercises a degree of skill and expertise inconsistent with the retention of effective control by the person who engages him. All this may be readily acknowledged, but the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it "so far as there is scope for it", even if it be "only in incidental or collateral matters"…

It was submitted for the Applicant that, relying on Stevens and applying it to the matter before the Tribunal, when the Applicant did the tax returns for his neighbours, and for Crawfords, and for Coopers & Lybrand, when he lectured at TAFE and when he lectured at Skillshare, he was always expected to exercise his professional skill and knowledge and there was no control, in fact, or by right, as to how he conducted his affairs, how he did his work, or how he operated professionally with the people with whom he had to deal. The Applicant was more likely to be an independent contractor than an employee in any of the jobs that he performed individually and collectively, during his period of employment as an accountant after he moved to Singleton.

The Tribunal was referred by the Applicant to the decision of Spender J. sitting as a Presidential Member of the Tribunal Re Hocking and Commonwealth of Australia (1987) 13 ALD 545. Here His Honour applied the indicia outlined by the High Court in Stevens (supra) and concluded that Mr Hocking had a contract for services and not a contract of service. His Honour held that –
Although there was no "magic touchstone" for determining whether the contract was one for services or one of service, almost all of the relevant indicia pointed strongly towards that conclusion:
By way of identifying a further illustration of the relevant reasoning process, the Applicant's representative referred to a decision of the Full Court of the Supreme Court of South Australia in Molfetas v Dwiar,(1991) 160 LSJS 90. Here the Full Court endorsed the observations of the trial judge (Mullighan J, Dwiar v Molfetas (1991) 159 LSJS 47) who said (at 51) –
The indicia which suggest a contract of service are that the plaintiff worked for the defendant exclusively, except as I have mentioned. The plaintiff worked regular hours usually from 7.30 a.m. to 4 p.m. each weekday and the defendant usually required him to work eight hours each day. The work was supervised by the defendant who directed the plaintiff to the various jobs he was to undertake. At all times it was the defendant who determined what the plaintiff was to do and he gave directions accordingly to suit the requirements of his business. The defendant provided some equipment for the plaintiff as required, such as scaffolding, trestles and extension ladders. The plaintiff accepted the various jobs given to him by the defendant without assessing any of them with a view to fixing a contract price …

The Full Court then quoted this passage (Mullighan J at 56, Full Court at 94) –

What tips the scales in favour of a contract of service is that the plaintiff worked exclusively for the defendant, he received and accepted directions as to what work he was to do, he was not at liberty to reject any job given to him…

The Applicant's representative also referred the Tribunal to a decision of the ACT Administrative Appeals Tribunal Re Marshall and Discrimination Commissioner and ors. (1996) 42 ALD 101. That matter related to whether Ms Marshall's employer was the Australian Capital Territory or a member of staff of a Member of the Legislative Assembly of the ACT, and therefore whether the Discrimination Act 1991 applied. No definition of "employer" or "employee" was included in the Discrimination Act. The facts in that case were that the financial obligations relating to the employment of a staff member under the Legislative Assembly (Members' Staff) Act 1989 were borne by the territory government. This government was also responsible for the payment of salary and other financial matters and the deduction and payment of tax in relation to the salaries of the staff members. Counsel for one of the respondents in that matter noted that the employer's obligation to deduct taxation instalments from salary was undertaken by the territory and not by the assembly member. The Tribunal said of that fact (at 23) –
There is nothing in this point. Under s221C(1A) of the Income Tax Assessment Act 1936 (Cth) the legal obligation to deduce PAYE instalments of tax is placed upon the employer who pays the salary. There is a definition of "employer" in s221A(1) of the Act. The term "employer" is defined in that provision as meaning "a person who pays or is liable to pay any salary or wages". The term "employee" is defined as meaning; "a person who receives, or is entitled to receive, salary or wages". The Act does not require that there be an employer/employee relationship between the two. Indeed, it is quite clear that the person who actually pays salary or wages is under an obligation to deduct PAYE tax instalments from those payments whether or not that person is the employer of the taxpayer concerned: Re S and N (Nominees) Pty Ltd (1984) 54 ACTR 19.

It was submitted for the Applicant, on the basis of that reasoning, that it is inappropriate to make the assumption that because somebody has PAYE instalments deducted, he or she is necessarily in an employee relationship with the person doing the deducting.

It was submitted that the ratio Re Marshall related to who was the employer of Ms. Marshall, and the Tribunal found that she was the employee of the Legislative Assembly. It was submitted that as such Marshall provided limited guidance in the matter now before the Tribunal in discerning whether the Applicant was an employee or an independent contractor. The relevance of Marshall for present purposes is the case law on which it relied and the indicia used in determining the employee/employer relationship.
Moreover, it was submitted for the Applicant that it was common knowledge, and the Tribunal could take official notice of the fact, that one is obligated to deduct amounts for income tax from payments to contractors for work done over a specified amount, which is analogous to taking PAYE instalments from payments to the Applicant. It was submitted that the taking of PAYE instalments from payments to the Applicant does not prove that he was not a contractor.
The Tribunal was referred to a decision of the Tribunal Re Melocco and Repatriation Commission (AAT 11959, 18 June 1997), that is specifically relevant to s24(2A)(g) of the Act. In that matter, Dr Melocco, a dentist, had injured his arm and hired another dentist as a locum, to whom he later sold his practice. In the terms of the sale, Dr Melocco arranged to do a locum for the dentist one day a week. Dr Melocco had his own professional autonomy and his own patient base, and the issue was whether he worked on his own account as a locum. The Tribunal noted the indicia in the common law tests set out in Stevens (supra), and found that Dr Melocco worked "on his own account".
In Melocco the Tribunal said –
It is not necessary for this Tribunal to make a conclusive determination as to whether or not an employment relationship would have existed between Dr Melocco and Dr Etcell at common law. These proceedings are brought under the Veterans' entitlements Act 1986, and the issue must be determined according to the requirements of the legislation. As discussed above, the Veterans' Act is a piece of beneficial legislation. The test for whethe ror not Dr Melocco's position was that of employee, for the purposes of interpreting section 24(2A)(g) of the Veterans' Act, must be one that, all other things being equal, provides a benefit to the veteran. Nevertheless, it will be useful, in making this determination, for the Tribunal to have regard to the common law tests as set out in Stevens v Brodribb, (supra).
Various of the indicia listed above, when applied to the current case, tend to indicate that Dr Melocco was an "employee" of Dr Etcell. These were dealt with in some detail by Ms Vassiliadis in her submissions for the Respondent. He received an employer group certificate for taxation purposes from Dr etcell. Dr Melocco's tax returns stated that he was the employee of Dr Etcell. Income tax was, it appears from the tax returns at Exhibit A3, deducted from Dr Melocco's regular payments. Dr Melocco did not provide or maintain the equipment at the surgery, nor did he pay, from the revenue he earned, business expenses of any significant proportion. He did not engage or dismiss staff. He did not receive a direct proportion of the fees earned by him on any given day. If he performed well, it could be expected that this would assist Dr Etcell's business, as well as Dr Melocco's own practice, to flourish.
However, there are a variety of factors which mitigate against the conclusion that Dr Melocco was an "employee" of Dr Etcell for the purposes of the provision in question. Mr Kendall dealt with these in his submissions for the Applicant. First, Dr Melocco was not subject to the professional control of Dr Etcell. The Tribunal notes that Dr Melocco's tax returns, both prior to and after the sale of the practice to Dr Etcell, were headed "Business and Professional". … Dr Etcell had no control over how many patients the Applicant saw or what procedures he performed. Secondly, the fact that his work involved a profession is of great importance in this matter, as was indicated by Wilson and Dawson JJ in Stevens v Brodribb (supra).
Several points flow from Dr Melocco's standing as a professional. His primary responsibility was to his patients, not to Dr Etcell. He paid his own Dental Defence Union, Australian Dental Association and Australian Dental Board fees. His description of his occupation as "dental surgeon" did not change after the sale of his practice. The Tribunal finds that the essential nature of the Applicant's work as a professional dentist lends weight to the argument that Dr Melocco was working "on his own account" throughout the relevant period".
In the decision of the Full Federal Court in Konrad v Victoria Police [2000] FCA 988 dated 6 August 1999, Finkelstein J set out the issues to be considered when deciding whether there was a contract for service or a contract of services. It was submitted for the Applicant that this decision puts the decision of Stevens (supra) and some later cases in historical context.
On the basis of the indicia and the case law already identified, the following submissions were made on behalf of the Applicant –

Control. In respect of his work for Crawfords, Coopers & Lybrand, TAFE and Skillshare, and doing independent tax returns, the Applicant was free to decide, and was expected to decide, what was necessary to be done in order to achieve the proper completion of the various tasks set. Nobody controlled him.
Provision of equipment. The Applicant was expected to provide his own reference material and to maintain it at his own expense. He was not reimbursed for his professional association memberships and his licenses. He used the office photocopier when he was in the office, and otherwise he undertook all his work at home with his own equipment.
Mode of remuneration. The Applicant was paid fortnightly by Crawfords and Coopers & Lybrand for the period of time it took him to complete a discrete task, that being, to get rid of a backlog. Although that part of his work is equivocal in terms of the case law, it needs to be seen as a totality. He was remunerated in kind for the tax returns he did for individuals. The remuneration was for the job done. At TAFE and the Community Training Centre he was paid per hour of teaching, whether the task was for a year as with TAFE or for a course lasting three weeks at Skillshare. This was consistent with the Applicant being an independent contractor.
Obligation to work. The Applicant was under no obligation to work at Crawfords, Coopers & Lybrand, do tax returns for individuals, or lecture at TAFE or Skillshare, beyond the completion of each discrete task or segment of work for which he had been contracted. The fact that there was an in-principle agreement that he would do further courses for Skillshare does not detract from the fact that he was not bound. In all cases he was approached to undertake a discrete task. Although at Crawfords and Coopers & Lybrand there was a general understanding that he would work normal office hours, nonetheless it was a flexible arrangement and he was left to his own devices. 'Hours of work' cannot be applied to a professional where things like tax returns are involved. Nor can it be applied where he is required to give lectures only when there were students requiring those courses, as at Skillshare.
Provision for holidays, superannuation, long service leave etc. In the Applicant's case there was no provision in any of the work he undertook for these benefits.
Deductions of income tax. Although prima facie the deduction of income tax from the Applicant's income received for much of this work might, on its own, be taken as indicia of being an employee, the decision of the ACT AAT Re Marshall (supra) supports the Applicant's case that it is not necessarily so. It might simply be a legal imposition on certain types of organisations.
Ability of the person to delegate his work. On the Applicant's evidence, he had the ability to delegate his work should that have been needed or desired.
Whether the employer has the exclusive right to the services of the worker. In the Applicant's case he could and did work elsewhere. For example, when he did the individual tax returns he also worked at TAFE. While working at TAFE he worked at Crawfords and then Coopers & Lybrand, dealing with their backlog, and then lectured in a course at Skillshare. At all times he was free to take other work, and nobody objected to his doing other jobs in his professional capacity. There was no exclusivity of his services, indicating that he was not an employee but an independent contractor.
Whether one is part of the organisation for whom one worked. At Crawfords and Coopers & Lybrand the Applicant was a means of reducing a backlog and was not integral to the ongoing business of those firms. It was submitted that at TAFE and the Community Training Centre, the continued existence of those organisations did not depend on his input in the courses in which he lectured. In respect of the individual tax returns he did from 1983, there was no organisation involved as he was performing that work as an individual practitioner.
Whether the work performed related to a profession. It was submitted that there was no dispute about this.

It was submitted for the Applicant that of these eleven indicia, nine ought clearly to be decided in the Applicant's favour as an independent contractor. The case law emphasised that no one issue is determinative, not even the traditionally major issue of control. The circumstances of each case have to be viewed globally, and each set of facts is going to cause the criteria to be weighed slightly differently.
The Applicant also sought to rely on the decision of the Full Federal Court in Thomson v Repatriation Commission (2000) 96 FCR 550 at 554-5, that stated inter alia –
8. The main issue arising on the appeal is whether the AAT and his Honour erred in law in treating s24(2A)(g)(ii) as requiring that there be continuity of "work" by the veteran throughout the relevant 10 year period, rather than that there be continuity of the veteran working in his professional practice on his own account during that period. The distinction between the two situations can be significant where, for example, there are gaps in the continuity of "work" (eg where none is available) which do not result in the cessation of the veteran working in the professional practice of a self-employed person.
…
10.… If the capacity is as an employee, the veteran must have been employed by the same employer (or its predecessor) continuously for the 10 year period. If the veteran is self-employed, then the last paid work must have been undertaken in that capacity continuously for the 10 year period. When sub-clause (ii) refers to the requirement that the self-employed veteran must have been "so working" continuously for the 10 year period. The reference is to the capacity in which the veteran worked.
11.Thus, the enquiry mandated by the sub-section in the present case required consideration of whether the appellant had been working as a medical practitioner on his own account for a continuous period of at least 10 years prior to his cessation of work during July 1996. Continuity of the appellant's medical work throughout the period is relevant to, but not determinative of, that matter. Continuity of a doctor's work as a self-employed medical practitioner in a case such as the present would also, usually, be expected to involve consideration of whether indemnity insurance, medical registration, AMA membership, medical journal subscriptions and the requisite medical equipment continued to be maintained throughout the relevant period.
12.Furthermore, if there were gaps in the continuity of work during the relevant period the reason for the gaps will be relevant. For example, if the gaps occurred solely as a result of a temporary unavailability of work, that could not, properly, lead to a conclusion of lack of continuity under s24(2A)(g)(ii). This is particularly the case if the doctor had been actively, but unsuccessfully, seeking work during the relevant period. However, if the gaps occurred because the doctor had decided to retire, or the unavailability was more permanent, that would support a conclusion that he or she had ceased to continue working as a medical practitioner on his or her own account. Plainly, questions of fact and degree will be involved.

It was submitted that Thomson supports the Applicant's case regarding gaps in the continuity of his work, especially insofar as the gaps occurred solely as a result of temporary unavailability of work, when he was actively but unsuccessfully seeking work. It was submitted that breaks in the Applicant's work were entirely appropriate to the profession of accountancy in view of his "freelancing". He took work as and where it was available. He maintained his own professional registration and subscriptions to relevant publications. It was submitted that this case is on all fours with Thompson, and that the Applicant cannot be said not to have been working continuously simply because there had been breaks between some of his jobs. Moreover, for some considerable periods he had more than one job at a time, but the jobs themselves were broken into small periods.
The Tribunal was referred to the Second Reading speech of the Hon. Con Sciacca MP, Minister for Veterans' Affairs, introducing the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 in the House of Representatives. In his speech the Hon. Minister noted that the introduction of s24(2A)(g) of the Act was to –
… ensure that for a veteran to obtain the benefit of the special or intermediate rates after the age of 65, he or she must have clearly demonstrated that it was the veteran's long-term intention to have a longer than normal working life by working past the age of 65 and by working in that remunerative work for at least 10 years, and for that work to have commenced before the veteran turned 65.
It was submitted that the Applicant meets the requirements of s24(2A)(g) and that for a period of ten continuous years, straddling his 65th birthday, he has worked as a consultant accountant. It was submitted that during this period the nature of his work did not change from that of employee to that of contract. It was submitted that the Tribunal's decision Re Keady and Repatriation Commission (2000) 59 ALR 313 was of no assistance in determining this matter as it merely turns on its own facts. The facts in this matter are completely different from those Re Keady. In this matter the Applicant worked for a number of different organisations as well as doing work for two individuals as a consultant. In all the organisations for whom he performed work the arrangements centred on his ability, availability and preparedness to do the work, rather than the organisations instructing him how to do the work. The fact that some were Government organisations that were required to take income tax instalment deductions from his pay did not transmogrify him as an employee.The Applicant was a free agent selling his services to people who, from time to time, needed them as a consultant, or, in the words of the legislation, a person working on his own account.
It was also submitted that the periods when the Applicant was not working were periods when he was looking for work. It was submitted that when he first moved to Milbrodale (in 1981) he deliberately put himself in a position to be noticed by joining the Provis Club and the RSL etc, and from that time he was actively looking for people for whom he could do work, although it was not until 1984 that he obtained his first job of substance. In the meantime he had been doing tax returns and diesel rebate notices etc for his neighbours, and any gaps between those jobs were because he could not obtain jobs at that time. The only time when he did not continue to put himself in the public eye was when he and his wife travelled overseas at the end of 1993, but it was submitted that, relying on the Full Federal Court decision in Thomson, it is perfectly reasonable to take a holiday of no more than a number of weeks. When he returned he expected to be approached for the next series of TAFE lectures but because he could not be contacted TAFE engaged someone else.
It was submitted for the Respondent that, pursuant to s24(2A)(g)(ii) of the Act, the Applicant has not worked on his own account as a consultant accountant for a continuous period of at least ten years that began before he turned 65 years; nor does he satisfy s24(2A)(g)(i) as an employee. It was submitted that s24(2A)(g) contemplates that, prior to the cessation of undertaking his last paid work, the Applicant has rendered ten years' continuous employment either as an employee or on one's own account, and that the subsection does not permit an intermingling of employment with contract work on one's own account, so as to satisfy the ten years' continuous work. It was submitted that if the Applicant is to rely on s24(2A)(g)(ii) of the Act, the continuity of his employment activities ought not be broken by any significant period of time.
The Respondent does not accept the Applicant's allegation that during the period of ten years which continued until after the application date (1 December 1995), he has been engaged in a number of employment situations in which he entered into a contract of service as an independent contractor rather than contracts for service as an employee. It was submitted for the Respondent that the common law tests regarding the identification and categorisation of employment relationships centre upon the concept of control by the employer: Performing Right Society Ltd v Mitchell & Booker Ltd [1924] 1 KB 762 at 767-8.
The final test, if there be a final test, and certainly the test to be is generally applied, lies in the nature and degree of detailed control over of the person alleged to be a servant. An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.
It was submitted that the distinction is between being empowered to tell a person what work is to be done (a contractor) and the more extensive notion of controlling the manner in which that work is done (an employer/employee relationship). This does not mean that detailed and specific control must be identified as occurring in practice. It was held by the High Court in Zuijs v Wirth Bros (1955) 93 CLR 561 that circus trapeze artists were employees, and that although the precise execution of their act was clearly up to them, they remained subject to the circus owner's control in other matters, such as when and for how long to perform. The High Court said (at 571) –
The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, even if only in incidental or collateral matters.
In R v Allan; ex parte Australian Mutual Provident Society Ltd (1977) 16 SASR 237 at 248, Bray CJ. said, in respect of categorising the employment relationship –
There is no magic touchstone. The court has to look at a number of indicia and then make up its mind into which category the instant case should be put. It is a question of balancing the indicia pro and con. But the power of control over the manner of doing the work is very important, perhaps the most important of such indicia.
It was submitted for the Respondent that the Applicant placed emphasis on the indicia of the employment relationship in much the same way as one would use a checklist. This fails to recognise that the essence of the employment relationship is whether one party to the relationship sets the ground rules for the execution of the services provided by the other party. It was submitted for the Applicant in reply that the case law on which he relied and to which reference has already been made demonstrates that many criteria are pertinent to the distinction between an employee and a person employed on his own account. The weight to be given to particular criteria has altered over time. The weight to be given to different criteria may alter as the circumstances in which they arise alter. It was submitted for the Applicant that legislative provisions governing the obligations of organisations to those who work for them, in whatever capacity, are considerably more spelled out in legislative detail now than in earlier times. Those legislative changes do not change a person working on his own account into an employee.
The Tribunal was referred by the Respondent to the statutory provisions governing the employment of TAFE staff. Section 15 of the Technical and Further Education Commission Act 1990 ("the TAFE Act") provides that the TAFE Commission may employ such staff as it requires to exercise its functions. Section 16 of the TAFE Act provides that the TAFE Commission may fix the salary, wages and conditions of employment of its staff insofar as they are not fixed by or under any other Act or law and that members of the staff of the TAFE Commission are employees of the Crown for the purposes of the Industrial Relations Act 1996 ("the Industrial Relations Act") or any other Act. Section 12 of the Industrial Relations Act provides that an award is binding on all employees and employers to which it relates, whether or not they were a party to the making of the award. Further, it was submitted that an award that applies to a particular industry is, subject to its terms, taken to bind all employees and employers engaged in that industry. Returning to the TAFE Act, Section 16 allows for Regulations to be made in respect of the employment and discipline of staff.
The Respondent noted that the Applicant was employed by TAFE for specific periods, but this does not detract from the proposition that he was an employee because of the nature of the relationship he had with TAFE. It was submitted that a specific term appointment does not suggest that during that period the relationship was anything other than an employee relationship.
It was submitted for the Respondent that in the absence of the production of a contract between the Applicant and TAFE, the employment relationship is defined by the TAFE Act. It was also submitted that during the course of the Applicant's last paid work with TAFE he was engaged as an employee "for a not insubstantial period", and therefore he does not satisfy s24(2A)(g)(ii) of the Act.
It was submitted in the alternative that the Applicant practiced as a teacher and not as a professional accountant while he worked at TAFE and in the Skillshare program. While the subject matter was pertinent to the Applicant's previous training and expertise as an accountant, his primary function was that of a teacher and not an accountant. Thus the nexus between the profession practised and the work undertaken by the Applicant is broken by the reality that upon the cessation of teaching the Applicant was able to return to practise as an accountant. It was also submitted that paragraphs (i) and (ii) of s24(2A)(g) are mutually exclusive and do not contemplate a state of affairs whereby the Applicant can continue to engage in one form of employment, albeit in a limited and protracted way, while also being engaged in a more substantial undertaking involving another form of employment. The focus of the provision is directed at the Applicant's usual work during the ten year period. Therefore, while he was employed by TAFE his usual employment was that of an employee and not as a practising accountant. Hence, the Applicant fails to satisfy s24(2A)(g)(i) or (ii) and therefore he cannot succeed in his application for pension at the Special Rate.
It was submitted for the Applicant in reply in relation to the various references to "staff" in the TAFE Act, that while it is not expressly provided that experts in various fields contracted to provide tuition for a course or a series of courses are or are not "staff", the tenor of the provisions, including ss.17, 18 and 21, read in conjunction, lead to a conclusion that "staff" are the people employed to carry out the functions listed in s7 of the TAFE Act, and that "staff" does not include the experts from the private business/commercial world who come in, if available and as required, to lecture in their areas of expertise for a discrete number of sessions.
It was submitted for the Applicant in reply that, relying on the decision in Melocco (supra), the intention of the legislation must be kept in mind. The amendment to s24 of the Act introduced by s24(2A) was intended to prevent non-genuinely-working elderly veterans from receiving Special Rate, but it was not intended to disadvantage elderly veterans who have persisted in their life-long line of work, in spite of increasing difficulty, from receiving Special Rate. It was submitted that Parliament would not seriously have intended the consequences for veterans of the overly narrow and technical approach proposed by the Respondent.
consideration of evidence and findings of fact
The Tribunal notes the submissions made by the Respondent in respect of the "reasonable satisfaction" standard of proof. It is not clear, however, having raised this issue, what evidential issues were of concern to the Respondent. There was no clear attempt made by the Respondent's representative to challenge the Applicant's credibility. However, on the issue of credibility, the Tribunal notes the documentary evidence before it in the form of a transcript of a statement from the Applicant dated 12 October 1983 made in evidence to the Repatriation Review Tribunal (T10). The statement includes that the Applicant considered at that stage that because of his back condition and his anxiety state he was unable to contemplate going to work. Indeed, no evidence was provided at that hearing of the Applicant using his tractor to plant his orchard and set up his farm, yet on his sworn evidence to this Tribunal he would still have been actively involved developing his business as a primary producer in October 1983. Similarly no evidence was given of any consulting services the Applicant was providing to his neighbours, albeit in lieu of goods and services provided to the Applicant by his neighbours. The Applicant was seeking an increase in his General Rate pension and payment of pension at the Special Rate at that time. The medical evidence before the Repatriation Review Tribunal was that the Applicant was capable of routine clerical work at that time. Special Rate pension was refused. The Tribunal notes that despite the picture painted for the Applicant in October 1983, by the commencement of the 1985 academic year the Applicant had secured substantial part-time teaching at TAFE that he sustained until late 1993.
Because these issues were not raised with the Applicant at the hearing, the Tribunal can do no more than note the apparent inconsistencies. However, the Tribunal makes no negative findings in respect of credibility.
The Applicant was born on 13 April 1919, and at the application date (1 December 1995), he was aged 76 years. He was 65 years old on 13 April 1984, and at that time he was operating his farm. At issue is whether he was undertaking any other work at that time. Section 24(2A) of the Act applies in determining whether he is entitled to be paid pension at the Special Rate.
It was submitted that the remunerative work and the "last paid work" to which reference is made in s24(2A) of the Act is the Applicant's work as an accountant, that includes a variety of activities open to and commonly performed by accountants including preparing income tax returns, being a company secretary, advising on various levy and insurance concerns, and conducting lectures. It was submitted that the Applicant's range of work performed satisfies the requirement that the work be substantial and efficiently undertaken: Starcevich v Repatriation Commission (1987) 18 FCR 221; Sheehy v Repatriation Commission (1996) 66 FCR 569. It was submitted that the Applicant's various accounting jobs are included in his "last paid work" specified in s24(2A)(d) of the Act. As an "independent contractor" the Applicant's "last paid work" was in fact for a number of different people.
The Tribunal finds that the last paid work the Applicant undertook before making his claim on 1 December 1995 was as a professional accountant, including lecturing at TAFE. It concluded with a three week course he provided for Skillshare commencing on 6 November 1995 (T15). The issue in respect of s24(2A)(d) is whether the Applicant was prevented from continuing to undertake his last paid work because of his war-caused disabilities alone. On the evidence of Dr Baz the Applicant was prevented from continuing to undertake that work, and the Tribunal so finds.
The Tribunal notes that Dr Baz (T6) recorded a history that the Applicant stopped TAFE teaching at the end of 1993 and continued working 20 hours a week for Skillshare until November 1995. On the basis of the other evidence before the Tribunal, the history recorded by Dr Baz is not correct. She also noted that the Applicant lectured TAFE students from 1991. The sworn evidence of the Applicant, which the Tribunal prefers, is that he commenced his TAFE teaching in 1985. The Tribunal does not consider that these issues undermine the opinion provided by Dr Baz regarding the Applicant's incapacity for work.
There was little evidence before the Tribunal that goes to s24(2A)(e) in respect of loss of earnings, although neither party reported this to be a hurdle. The Tribunal makes no findings in respect of paragraph (e) and considers this needs to be revisited only if the Applicant meets the requirements of paragraph (g). The fundamental thrust of the evidence and submissions focussed on paragraph (g).
The Applicant had worked as a professional accountant and was employed in a senior capacity by Travelodge. That position enabled him to demonstrate the development of varied interests and skills in a variety of fields relating to his profession. It was submitted that the Applicant had intended to work for Travelodge until the age of 65 years but because of his accepted disabilities he was obliged to retire at the age of 58 years in 1978. In the following years he sought work in Sydney, unsuccessfully. Nothing turns on this issue. He bought 28 acres of land at Singleton in 1980 and commenced fencing, building on it, and developing it as an orchard and goat farm. He sold the farm and moved to Singleton in 1990. Nothing turns on this fact. There is nothing in the evidence to suggest that farming was the Applicant's "last paid work". He ceased that work almost six years before he made his application for increase in pension on 1 December 1995.
The Applicant's evidence was that after moving to Singleton in 1980 he also sought paid accountancy work. After a time, and certainly before 13 April 1984, he joined local service, professional and business clubs where he carried out voluntary accountancy work, in order to become known in the community.
The Applicant's evidence also was that he undertook accountancy work for his neighbours, in return for goods and services that they provided, but that he did not charge a fee for those professional services as such. It is the Applicant's case now that even though the receipt of such goods and services were not shown by him as income when he lodged his own income tax returns, nonetheless it represented remunerative work. The Applicant would have the Tribunal accept that this work represented an unwritten "contract for service", and that the Applicant continued to undertake such professional service for various neighbours for many years and indeed until some time after he moved from his farm and into urban Singleton in 1990.
However, there was no evidence that when the Applicant provided these professional services for his neighbours it was on the understanding that he would be paid for them in kind. Indeed, such an argument is illustrative of the familiar logical fallacy of cum hoc ergo propter hoc (with this, therefore because of this). While the Tribunal accepts that some traditional neighbourly "give and take" occurred which included the Applicant assisting his neighbours through the use of his professional skills and his neighbours providing him with fence posts and helping him with physical labour, this falls far short of evidence that the Applicant was involved in part-time remunerative employment in the practice of accountancy, specifically in the areas of income tax, diesel fuel rebates and insurance. The Tribunal finds that the Applicant's accountancy work for his neighbours represented voluntary, non-remunerative work, in the same way as his accountancy and bookkeeping work for the RSL, Probus Club and the Disadvantaged Children's Association was no more than voluntary work.

The Applicant's evidence was that from 1972 to 1997 he worked as a Director of two Sydney-based private companies, which involved him in work for the equivalent of five to six weeks each year, and for which he received a six monthly fee of $1,250 (as at 1995). He also acknowledged that this was paid to him as travelling expenses in lieu of a Director's fee, to achieve a tax advantage. The Tribunal finds that the Applicant used his professional skills as an accountant in his role as a Director of these companies. Given the evidence that the payment to the Applicant was in the form of a reimbursement of travel expenses rather than a fee, there is considerable doubt as to whether this was remunerative work. The Tribunal cannot be reasonably satisfied that this was remunerative work. If, in the alternative, it was remunerative work, then on his evidence it was work that he continued until 1997, after the application date, and it was relinquished not because he could not continue to undertake it because of his accepted disabilities, but because he moved to Murwillumbah which he considered to be too far from Sydney to continue to undertake it reasonably. Even if it was remunerative work it was not work of a substantial nature when taken alone, as on his evidence it occupied him for five or six weeks a year (an average of about four hours per week).
The Tribunal notes that the Applicant was successful in finding and maintaining full time accountancy work with Crawfords in May 1991, after he sold his farm and moved to urban Singleton. When that work ceased at the end of 1992, he then took on full-time work with Coopers & Lybrand, under very similar circumstances, for four months in 1993. The Applicant's case was that this work was undertaken as a "contract for service" rather than a "contract of service", and therefore it falls for consideration under s24(2A)(g)(ii) of the Act.
The Tribunal notes the very helpful submissions of both parties in respect of the common law indicia regarding employment relationships highlighted in the case law over a number of years. The Tribunal notes the particular emphasis given to control and its changing nature as the workplace has changed in recent times. The Tribunal also notes that in considering the issue of an employment relationship it is a matter of balancing the indicia and not merely trawling through a checklist.
The Tribunal finds that the Applicant's role at Crawfords and at Coopers & Lybrand was typical of the role of a professional person working for a fixed salary, receiving regular payments regardless of productivity, attending the office of the organisation at regular times each day, performing one's work at the office, and using support staff provided by the organisation for typing and preparation of one's work for dispatch. While the Applicant was free to and was expected to work independently to complete the tax returns of the organisation's clients, that is consistent with his being a senior professional person who was perceived by the organisation to have the necessary knowledge and skills to perform the tasks without supervision. One would expect in such circumstances that control would be limited, even if one was an "employee". The Tribunal does not agree with the Applicant's submission, however, that "nobody controlled him". He was required to attend between 8.30 am and 4.30 pm, and although he perceived a certain flexibility about those hours, and reasonably so, there was no suggestion that instead of attending to work in the office of the organisation he could choose to work at home without that first being sanctioned by someone senior in the organisation. It was agreed, apparently verbally, that he would receive a certain salary per annum. There was no suggestion that he would receive a fee for each income tax return that he completed. He was expected to work until the backlog had been cleared. He used the office equipment and support staff belonging to the organisation. As an independent contractor it is more likely that he would be required to provide his own support staff and equipment, unless his contract included the provision of such things by the organisation.
There was no evidence as to whether he was paid for sick leave or holidays, or whether he was covered by the organisation's employees' compensation policy. It is unlikely that he could have delegated the completion of the individual tax returns to any other person, at least without negotiation with a senior person in the organisation. One would expect that the customers of both these organisations would expect that their tax returns were completed by a person whom the organisations had vetted as being competent to undertake the work to a high standard. The formal contract for service was between the client and the organisation, and the Tribunal would expect that in the event of incompetent practice by the Applicant this would be covered by the organisation's indemnity insurance, whether or not the Applicant held such professional insurance. The Tribunal notes that there was no written contract between the Applicant and the organisation, although this on its own is not fatal to his case.
Although the Applicant's work at Crawfords and Coopers & Lybrand, while full-time, did not preclude him from undertaking other work at the same time, and indeed he was lecturing at TAFE in a substantial part-time capacity throughout his work with these two organisations, this does not counterbalance the preponderance of evidence in favour of his being an employee of those organisations. In considering the indicia and balancing each of them, the Tribunal is reasonably satisfied that the Applicant was working as an employee of Crawfords and Coopers & Lybrand, and therefore this employment falls for consideration pursuant to s24(2A)(g)(i) of the Act.
The Tribunal will now turn to consider the nature of the Applicant's work with TAFE and with Skillshare, as both these jobs have a number of features in common. On his evidence the Applicant was provided with a written contract in respect of his teaching at TAFE, although this was not produced in evidence. His payment was in relation to the number of hours of lectures delivered. While there was an assumption on the part of TAFE, in making payment to the Applicant, that he would need to invest one hour of his time in preparing three hours of lectures. No matter how long he spent preparing the lecture, he was expected as part of his contract, to teach the curriculum as set, and to use his professional judgement to identify the content of courses to achieve the stated knowledge base for the students. He was expected to undertake his course preparation at home, and to use his own resources, with the exception of the photocopier, to achieve this. Part of the equipment he needed was the professional journals and serial publications for which he maintained his personal subscription.
The Tribunal has given careful consideration to the decision of the Full Federal Court in Konrad (supra). The discussion therein of the indicia to determine whether one person is employed by another and the various "tests" that have been considered by various Courts in various countries over many decades to define being an "employee" of another person. This causes the Tribunal to conclude that the specific legislative and cultural context must be considered in coming to a conclusion in each particular case and that "the words used in stating a legal rule in one context may not mean the same where the words may be used to express a legal rule in another context", and "this is so whether the rule is one of statute or of common law": Re Cormier and Alberta Human Rights Commission (1984) 14 DLR (4th) 55 (at 70).
To the extent to which the Applicant was subject to the definition of being an "employee" pursuant to the TAFE Act or the Industrial Relations Act, that does not mean per se he is an employee for the purposes of the Veterans' Entitlements Act. The Tribunal considers that the submissions of the Respondent on this issue are not consistent with the case law. Moreover, the Tribunal is unprepared to accept the Respondent's submissions that the Applicant was a teacher and not an accountant when he was lecturing at TAFE and at Skillshare. The knowledge and skills that the Applicant needed in order to perform those lecturing tasks were precisely that which he had as an accountant.
In providing lectures in a course at TAFE under contract as a part-time lecturer rather than being on the full-time staff, there is no doubt that the Applicant was free to undertake work elsewhere in any capacity he chose. The Tribunal notes that if the Applicant was not available to provide a lecture, either when he was scheduled to do so at TAFE or at Skillshare, he would not be paid for it. It was also the Applicant's evidence that if he were not available he would need to find someone else to deliver the lecture for him.
In balancing the various indicia in relation to the Applicant's job as a lecturer at TAFE and later at Skillshare, the Tribunal is reasonably satisfied that the Applicant's work with those organisations was in effect a "contract for services" and that this employment falls for consideration pursuant to s24(2A)(g)(ii) of the Act.
The Tribunal would not want to discount the possibility, at least in theory, that a Veteran with the Applicant's skills could make a case for being categorised as an "independent contractor" for the purpose of the Act while undertaking work for various organisations and people. One could practice in such a way that one occupied oneself professionally through a variety of tasks and work environments that changed over time, the constellation of which could be seen as working as an "independent contractor" while some components of which, at times at least, may meet the indicia of being an "employee". The Tribunal needs to take seriously the fact that the Act is beneficial legislation, and the purpose of s24(2A) was to provide an exception for those Veterans who were engaged in remunerative work after the age of 65 years where that work was "in the same business or employment in which the veteran had been working for ten continuous years" [Second Reading Speech – House of Representatives Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994]. If "the same business or employment" was in fact a smorgasbord of professional pursuits that had been undertaken for ten continuous years, then it may be possible to categorise such a smorgasbord as working as an "independent contractor". While it is likely that this is what the Applicant attempted to show in this case, because of the facts in this matter it has fallen far short of achieving that goal.
Although the Tribunal finds that the Applicant's work for TAFE and Skillshare involved him in work as an independent contractor from 1985, this is not sufficient for him to succeed. Firstly, his work as a lecturer commenced after, not before he turned 65 years. In respect of his Skillshare employment, information was provided by Mr King, the Manager of Skillshare, that the Applicant worked there from 6 June 1994 to 28 July 1994, earning $470.70 per week (T12). The Applicant advised the Respondent subsequently (T14) that he had undertaken casual employment (with Skillshare) for four weeks from 24 April 1995 to 15 May 1995, earning a total of $1,391.35. In November 1995 he advised the Respondent that he commenced three weeks work (with Skillshare) commencing 6 November 1995. The Tribunal concludes that the Applicant has been in receipt of Service Pension since about September 1994. This is consistent with the Applicant's evidence that his employment with Skillshare was full-time but for limited periods, during 1994 and 1995, and that it ceased in November 1995. The Tribunal so finds.
It was submitted for the Applicant that "a continuous period of at least 10 years" means that the ten years has to be continuous, that is, from 1984 to 1994, without a break. It was submitted that it cannot possibly mean that the veteran has to be working continuously during those ten years. In the case of a professional person as an independent contractor, it was submitted that any profession presupposes discrete units of work with gaps between, when there is no work, when work is being sought, or office work is being done, or there are "down times or lag times". That indeed was the Applicant's experience. He has had tax returns that he did for payment in kind, which he did at tax time. He did lecturing work that was sporadic, particularly at Skillshare, because that was the nature of the work. It was submitted that even when the Applicant worked for Crawfords, and for Coopers & Lybrand, the work he did was dependent on external factors that affect any independent professional person's work, viz. who wants his services. It was submitted that it would be totally nonsensical to interpret the phrase "a continuous period of at least 10 years" as requiring that one would have worked continuously, that is, regularly, throughout that period.
There is no evidence that the Tribunal accepts that the Applicant was seeking other work that he was unable to obtain in the intervals between his short-term contracts with Skillshare in 1994/95. Indeed he was in receipt of Service Pension for much of that time, and his work with Skillshare appears to have been no more than supplementation of his pension income. Apart from any voluntary accounting work for his neighbours, that the Tribunal has already rejected as being remunerative work, contrary to the submission for the Applicant, there is no evidence that he was seeking any work other than with Skillshare since he ceased work with TAFE.
Applying the decision of the Full Federal Court in Thomson (supra) the Applicant does not meet the test for continuity of work for a period of at least ten years that began before he turned 65 years. The Applicant does not meet the provisions of s24(2A)(g) and therefore he fails to qualify for payment of pension at the Special Rate. The decision under review is therefore affirmed.

I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Dates of Hearing   10 June 1998, 1 February 1999, 9 May 2000
Date of Decision  31 January 2001
Representative for the Applicant   Mrs J Buss
Solicitor for the Respondent    Mr R Wallis