Wilton v Coal & Allied Operations Pty Ltd - [2007] FCA 725

FEDERAL COURT OF AUSTRALIA
Wilton & Cumberland v Coal & Allied Operations Pty Ltd
[2007] FCA 725
WORKPLACE RELATIONS – applicants provided to respondent coal miner by way of labour hire entity – coal miner additionally retained workers on its own payroll – applicants worked on site alongside coal miner’s employees – whether applicants so hired became employees of coal miner according to law irrespective of extent of contractual relationship subsisting concurrently between labour hire provider and applicants – examination of Australian and United Kingdom authority and of statutory and judicial indicia bearing upon issues arising inclusive of implications of labour hire – whether employment relationship existed between applicants and respondent coal miner irrespective of labour hire arrangement – no employment arrangement in operation between coal miner and applicants according to law
Workplace Relations Act 1996 (Cth) ss 4, 101, 103, 114, 170LT, 178(1) and (6), 179A, 356 and 412
Federal Court of Australia Act 1976 (Cth) ss 21, 22 and 23
Occupational Health and Safety Act 1983 (NSW) s 15(1) (repealed)
Occupational Health and Safety Act 2000 (NSW) s 8(2)
Coal Mines Regulation Act 1982 (NSW) ss 34-36, 37, 38, 42, 43, 101, 103 and 114, Schedule 1 Part B (repealed)
Coal Mine Health and Safety Act 2002 (NSW) (generally)
Coal Mines (Open Cut) Regulation 1999 (NSW) cll 10 and 11 and Part 2
Coal Mines (General) Regulation 1999 (NSW) cl 79 (repealed)
Carter JW and Harland DJ, Contract Law of Australia (4^th ed, Butterworths, 2002)
ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228 referred to
A/asian Meat Industry Employees’ Union v Sunland Enterprises Pty Ltd & Ors (T/as Sunland Wholesale Meats) (1998) 24 IR 467 referred to
Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540 referred to
BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361 referred to
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 cited
Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358 discussed and distinguished
Building Workers’ Industrial Union of Australia and Others v Odco Pty Ltd (1991) 29 FCR 104 cited
Byrne v Australian Airlines Limited (1995) 185 CLR 410 cited and discussed
Cable & Wireless plc v Muscat [2006] IRLR 354 discussed and distinguished
Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 cited
Dalgety Farmers Ltd t/as Grazcos v Bruce & Another (1995) 12 NSWCCR 36 cited
Damevski v Giudice and Others (2003) 133 FCR 438 cited and discussed
Doyle v Sydney Steel Company Limited (1936) 56 CLR 545 cited
Drake Personnel Ltd and Others v Commissioner of State Revenue (2000) 2 VR 635 cited
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 applied
Forstaff Pty Ltd v Chief Commissioner of State Revenue (2004) 144 IR 1 cited
Hollis v Vabu Pty Limited (2001) 207 CLR 21 referred to
Howard Smith & Company Limited v Varawa (1907) 5 CLR 68 referred to
Humberstone v Northern Timber Mills (1949) 79 CLR 389 referred to
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 cited and discussed
Macdonald v Australian Wool Innovation Ltd [2005] FCA 105 cited
Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438 at 443 referred to
Mead v New England Seed Traders Pty Limited [1972] WCR (NSW) 113 cited
Pitcher and Another v Langford and Another (1991) 23 NSWLR 142 cited
Queensland Stations Proprietary Limited v The Federal Commissioner of Taxation (1945) 70 CLR 539 referred to
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 cited
Reed v Blue Line Cruises Limited (1996) 73 IR 420 cited
The Roy Morgan Research Centre Pty Ltd v Commr of State Revenue (Vic) (1997) 97 ATC 5070 cited
Stephenson v Delphi Diesel Systems Ltd [2003] ICR (Industrial Cases Reports for England and Wales) 471 referred to
Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 applied
Swift Placements Pty Limited v WorkCover Authority of New South Wales (2000) 96 IR 69 cited
Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 referred to
The Queen v Foster and Others; Ex parte Commonwealth Life (Amalgamated) Assurances Limited (1952) 85 CLR 138 referred to
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd and others [2006] QB 510 discussed
WorkCover Authority of New South Wales (Inspector Robins) v Labour Co-operative Ltd (No 1) (2001) 108 IR 283
KEVAN WILTON AND STEVEN TREVOR CUMBERLAND v COAL & ALLIED OPERATIONS PTY LTD
NSD 565 OF 2005
CONTI J
15 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 565 OF 2005

BETWEEN:

KEVAN WILTON
First Applicant

STEVEN TREVOR CUMBERLAND
Second Applicant

AND:

COAL & ALLIED OPERATIONS PTY LTD
Respondent

JUDGE:

CONTI J

DATE OF ORDER:

15 MAY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.There be liberty to the respondent to apply within 14 days in relation to any ancillary or consequential relief according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 565 OF 2005

BETWEEN:

KEVAN WILTON
First Applicant

STEVEN TREVOR CUMBERLAND
Second Applicant

AND:

COAL & ALLIED OPERATIONS PTY LTD
Respondent

JUDGE:

CONTI J

DATE:

15 MAY 2007

PLACE:

SYDNEY

INDEX
Outline of proceedings and of issues arising – mutually agreed facts and circumstances... [1]
The relief sought by the applicants........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [6]
Circumstances in chronological sequence attending the engagement by Mining & Earthmoving Services Pty Ltd (‘MES’) of Mr Wilton to the extent mutually acknowledged or not put in issue between the parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... [11]
Circumstances in chronological sequence relating to the engagement by MES of Mr Cumberland to the extent mutually acknowledged or not put in issue between the parties........ ........ ........ ..... [19]
MES Certified Agreement 2004 and related written material further provided or otherwise sent by MES to each of Mr Wilton and Mr Cumberland........ ........ ........ ........ ........ ........ ........ ....... [20]
The relief sought by the applicants against Coal & Allied Operations Pty Ltd (‘CAO’) and the issues raised by the applicants and CAO respectively in relation thereto........ ........ ........ ........ .... [21]
Principles governing the juridical approach to determination of the existence or otherwise of an employment relationship – authorities cited by the applicants........ ........ ........ ........ ........ ... [26]
Circumstances beyond the scope of evidentiary common ground – the operation of the mining equipment of CAO by the applicants and related matters........ ........ ........ ........ ........ ........ . [37]
Supervision of the applicants in the course of their respective working activities in the context of the Hunter Valley Operations (‘HVO’) – statutory and regulatory requirements as to mine management........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [46]
The structure in place for management at the HVO – further matters related to control of personnel engaged in mining work in the HVO........ ........ ........ ........ ........ ........ ........ ........ ........ ........ . [53]
Responsibility of CAO for management and discipline of the applicants – evidence adduced and submissions made by the applicants and CAO respectively........ ........ ........ ........ ........ ...... [62]
Contractual arrangements made between the applicants and CAO – ultimate submissions of the applicants by way of what appeared in the so-called ‘Conclusions’ to their submissions on that issue........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [82]
The applicants’ invocation of United Kingdom authority as an illustration of the juridical significance of its case in a labour-hire context........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [83]
The relief sought by Messrs Wilton and Cumberland against CAO........ ........ ........ ........ .. [98]
Calculations of the monetary value of the underpayments claimed by each of the applicants [107]
Outline of submissions of CAO in response to the submissions of Messrs Wilton and Cumberland........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [108]
Intention to create legal relationships........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [113]
Lack of agreement on essential terms........ ........ ........ ........ ........ ........ ........ ........ ........ ....... [114]
The conduct of the respective parties to the proceedings as indicative of the existence or otherwise of contractual relationships between each of the applicants and the respondent CAO....... [117]
Further incidental conduct of MES as indicative or otherwise of the existence of a contractual relationship between the applicants and MES........ ........ ........ ........ ........ ........ ........ ........ .. [120]
Lack of evidence on other issues bearing upon the existence of any employment relationship as between CAO on the one hand and Messrs Wilton and Cumberland on the other........ . [124]
Overall position of CAO on general analysis........ ........ ........ ........ ........ ........ ........ ........ ... [125]
Mutual assent analysis........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [126]
The conduct and functions of the respective parties as indicative or otherwise of the existence of an employment relationship between the applicants and CAO – an overview of authority and its operation here as put forward by CAO........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... [132]
Other factors contended by CAO in support of its case in denial of liability for the applicants’ claim made upon and in relation to CAO........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .. [149]
CAO’s response to the applicants’ invocation of the authorities of Brook Street and Cable & Wireless – a detailed analysis of those authorities and their significance or otherwise in employment contexts such as here to the operation of the general law in Australia........ ........ ........ ........ ........ ........ ... [157]
Conclusions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... [174]

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 565 OF 2005

BETWEEN:

KEVAN WILTON
First Applicant

STEVEN TREVOR CUMBERLAND
Second Applicant

AND:

COAL & ALLIED OPERATIONS PTY LTD
Respondent

JUDGE:

CONTI J

DATE:

15 MAY 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Outline of proceedings and of issues arising – mutually agreed facts and circumstances

The respondent Coal & Allied Operations Pty Ltd (‘CAO’) has conducted at all material times the Hunter Valley Operations (‘HVO’), involving a multiple-seam, multiple-pit open cut Coal mine situated approximately 24 km north-west of Singleton in the Hunter Valley region of New South Wales. In the year 2000, the HVO was formed by the merger of three mines comprising the Hunter Valley No. 1 Mine, the Hunter Valley No. 2 Mine and the Howick Mine. In about March 2001, a fourth mine comprising the Lemington Open Cut Coal Mine was acquired by CAO and integrated into the HVO. At all materials times, Coal was extracted from the following three main mining areas or so-called pits within the HVO:
(i)the West Pit (formerly known as the Howick Mine) involving open cut mining operations, which were primarily conducted with the use of dragline mining operations, shovels and trucks;
(ii)the North Pit comprising an area made up of two pits, being the original North Pit and the Carrington Pit, which areas required or involved multi-seam open cut mining operations primarily by the use of trucks and shovels;
(iii)the South Pit, also known as the Chestnut or Riverview Pit (formerly known as the Lemington Open Cut Coal Mine), which also comprised open cut mining operations involving primarily the use of trucks, shovels and dragline mining operations.
Throughout the course of the HVO, CAO has operated a range of heavy mining equipment and employed at least 260 permanent employees working mainly in crews. As operator of the HVO, CAO and certain persons engaged by CAO have been under obligations with respect to safety of the mining operations, being obligations imposed by the provisions of the Occupational Health and Safety Act 2000 (NSW) (‘the OHS Act’) and the Coal Mines Regulation Act 1982 (NSW) (‘the CMR Act’). The latter of those statutes has since been repealed and replaced by the Coal Mine Health and Safety Act 2002 (NSW) (‘CMHS Act’). CAO employed at the HVO at least one Mine Manager who had full charge and control of persons engaged at least physically in relation thereto, whether or not as employees of CAO according to law, and of all operations otherwise undertaken under the general description of the HVO. CAO employed a number of persons as Deputies to the Mine Manager and a number of Open Cut Examiners (‘OCEs’). Hence at all material times, the Mine Manager, the Deputies and the OCEs have supervised the mining operations undertaken by CAO at the HVO.
On 20 October 2000 the Hunter Valley Operations Certified Agreement 2000 (‘the 2000 Agreement’) was certified by the Australian Industrial Relations Commission (‘the Commission’) under s 170LT of the Workplace Relations Act 1996 (Cth) (‘the WR Act’), as in force prior to amendment by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). From that time until 12 December 2003, CAO was bound by the 2000 Agreement in respect of its employees engaged in production and engineering functions at the HVO. On 12 December 2003 the Hunter Valley Operations Certified Agreement 2003 (‘the 2003 Agreement’) was similarly certified, and from that date to at least 31 December 2004, CAO was bound by the 2003 Agreement in respect of its employees so engaged. Both Agreements were tendered into evidence as Exhibit 1 to the Agreed Statement of Facts. Exhibit 1 was incorporated into a substantial compilation of so-called Judge’s Copy Documents consisting of more than two thousand pages, along with certain additional documents. Hence Exhibit 1 came to embody two different pagination systems for each of the large number of pages therein contained. Because of the difficulty of locating so many documents of potential relevance to the respective cases of the applicants and CAO, I have adopted the expedient course of identifying those documents not only by name or other description, but additionally by their individual pagination numbers as incorporated within Exhibit 1. The parties to both Certified Agreements were CAO, the Construction, Forestry, Mining & Energy Union and The Automotive Food, Metals, Engineering, Printing and Kindred Industries Union, and in the case of the 2000 Agreement, ‘in relation to employees engaged in production and engineering functions in the Hunter Valley Operation’ (cl 4), including ‘additional employees to meet increased workloads or cover for holiday or other absences through the employment of part-time, temporary or casual employees’ (cl 13), and in the case of the 2003 Agreement, ‘… full-time, part-time, temporary or casual employees…’ (cl 10).
On 9 February 1994, Mining & Earthmoving Services Pty Ltd (‘MES’) was incorporated. As the successor to business operations previously undertaken under the same or similar control in the Hunter Valley region, MES has engaged in business as a mining consultant, and in the supply of casual labour to the mining industry in which CAO has been for some time a substantial participant, at least principally by way of open cut mining operations. The activities of MES were mainly in the area geographically of the HVO. A copy of documents describing in detail MES’s activities appear in detail at pages 31 to 63 of Exhibit 1. On 21 June 2001, the Mining & Earthmoving Service Pty Limited Certified Agreement 2001 (‘the MES Agreement’) was certified by the Commission under s 170LT of the WR Act, with effect from 25 May 2001 until 24 May 2004, the parties thereto being MES and ‘[p]resent and future employees of [MES]’. On or about 21 August 2002 MES tendered successfully ‘for the supply of maintenance and production of labour hire’ to CAO in relation to its Coal mining operations at Ravensworth in the Hunter Valley upon the basis of a detailed schedule of rates.
The central issue arising in the proceedings may be broadly described as whether the applicants were the subject of an employment relationship according to the general law, as between themselves as employees and CAO as employer, irrespective of the documentary arrangements put in place by MES as between itself as employer and its employees inclusive purportedly of the applicants. If the former situation constituted an employment relationship according to law in respect of each of the applicants, they would be seemingly entitled to look to CAO for remuneration and any other pecuniary employment benefits which may have accrued to each of them had they been recognised by CAO as its employees. The respective engagements (to use for the present a neutral term) of the applicants in mining activity in the HVO ceased, in the case of Mr Wilton, in May 2005, and in the case of Mr Cumberland at a time occurring during April 2005, and at about the same respective times, each of them commenced employment with the corporately unrelated Felix Resources Limited, being apparently another Coalminer.
The relief sought by the applicants
The nature and extent of the relief sought appears comprehensively in the amended application filed on 1 December 2006, though the proceedings were originally commenced on 12 April 2005 by the applicants by an original application and statement of claim. It is appropriate that I set out below the full text of the relief sought by the amended application by way of declarations and orders thereby sought:
‘Application is made under Sections 178, 179A, 356 and 412 of the Workplace Relations Act 1996 (the WR Act) and Sections 21, 22 and 23 of the Federal Court of Australia Act 1976 (the FC Act).
A.Details of Claim
On the grounds stated in the accompanying Statement of Claim, the First and Second Applicants seek:
1.A declaration that the Respondent breached a term of the Hunter Valley Operations Certified Agreement 2000 (the 2000 Agreement) in that for the period 1 July 2002 to 30 June 2003 the Respondent failed to pay to the First Applicant the annual salary set out in clause 19 of the 2000 Agreement.
2.An order pursuant to section 178(6) of the WR Act that the Respondent pay to the First Applicant an amount of $4,697 being the amount the First Applicant was underpaid his entitlement under clause 19 of the 2000 Agreement for the period 1 July 2002 to 30 June 2003.
3.An order under section 179A of the WR Act that the Respondent pay interest at such rate as the Court thinks fit on the whole of the amount referred to in Order 2 from 30 June 2003 until judgment is entered.
4.An order imposing a penalty on the Respondent pursuant to section 178(1) of the WR Act for breach of clause 19 of the 2000 Agreement.
5.An order pursuant to section 356 of the WR Act that the penalty imposed under Order 4 be paid to the First Applicant.
6.A declaration that the Respondent breached a term of the 2000 Agreement in that for the period 1 July 2002 to 30 June 2003 the Respondent failed to pay to the Second Applicant the annual salary set out in clause 19 of the 2000 Agreement.
7.An order pursuant to section 178(6) of the WR Act that the Respondent pay to the Second Applicant an amount of $8,410 being the amount the Second Applicant was underpaid his entitlement under clause 19 of the 2000 Agreement for the period 1 July 2002 to 30 June 2003.
8.An order under section 179A of the WR Act that the Respondent pay interest at such rate as the Court thinks fit on the whole of the amount referred to in Order 7 from 30 June 2003 until judgment is entered.
9.An order imposing a penalty on the Respondent pursuant to section 178(1) of the WR Act for breach of clause 19 of the 2000 Agreement.
10.An order pursuant to section 356 of the WR Act that the penalty imposed under Order 9 be paid to the Second Applicant.
11.A declaration that the Respondent breached a term of the Hunter Valley Operations Certified Agreement 2003 (the 2003 Agreement) in that for the period 1 July 2004 to 31 December 2004 the Respondent failed to pay to the First Applicant the annual salary set out in clause 17 of the 2003 Agreement.
12.An order pursuant to section 178(6) of the WR Act that the Respondent pay to the First Applicant an amount of $12,845.31 being the amount the First Applicant was underpaid his entitlement under clause 17 of the 2003 Agreement for the period 1 July 2004 to 31 December 2004.
13.An order under section 179A of the WR Act that the Respondent pay interest at such rate as the Court thinks fit on the whole of the amount referred to in Order 12 from 31 December 2004 until judgment is entered.
14.An order imposing a penalty on the Respondent pursuant to section 178(1) of the WR Act for breach of clause 17 of the 2003 Agreement.
15.An order pursuant to section 356 of the WR Act that the penalty imposed under Order 14 be paid to the First Applicant.
16.A declaration that the Respondent breached a term of the 2003 Agreement in that for the period 1 July 2004 to 31 December 2004 the Respondent failed to pay to the Second Applicant the annual salary set out in clause 17 of the 2003 Agreement.
17.An order pursuant to section 178(6) of the WR Act that the Respondent pay to the Second Applicant an amount of $20,531.20 being the amount the Second Applicant was underpaid his entitlement under clause 17 of the 2003 Agreement for the period 1 July 2004 to 31 December 2004.
18.An order under section 179A of the WR Act that the Respondent pay interest at such rate as the Court thinks fit on the whole of the amount referred to in Order 17 from 31 December 2004 until judgment is entered.
19.An order imposing a penalty on the Respondent pursuant to section 178(1) of the WR Act for breach of clause 17 of the 2003 Agreement.
20.An order pursuant to section 356 of the WR Act that the penalty imposed under Order 19 be paid to the Second Applicant.
21.Such other or further orders as the Court considers appropriate.’
What pecuniary adjustment would be put in place in the event of the applicants’ success against CAO in the proceedings, as between the applicants and MES, is unclear, but is of no concern in the context of resolution of the present proceedings.

Section 178 of the WR Act relates to the imposition and recovery of penalties, subsections (1) and (6) thereof reading as follows:
‘(1)Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction.
…
(6)Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment.’
Section 179A of the WR Act authorises payment of interest on ‘the sum for which an order is made or judgment given’, and s 356 of the WR Act further authorises the payment of a monetary penalty or a part thereof ‘to a particular organisation or person’. Section 412 of the WR Act confers jurisdiction relevantly on this Court.
Between at least 1 June 2001 and 31 December 2004, CAO engaged MES to supply certain classifications of workers for engagement at the HVO. MES provided inter alia the applicants Mr Wilton and Mr Cumberland for work at the HVO during those times. Initially the arrangements for that supply had not been formalised in a written document. Upon receipt of CAO’s formal request for the provision of workers, MES would furnish a number of names and CAO would make its selection. Thereafter the selected workers would attend at the site of the HVO for work on shifts physically as part of CAO’s workforce and in accordance with rosters prepared by CAO. Those selected workers were paid by MES for the hours they worked, and MES invoiced CAO on a weekly basis in respect of the work performed by workers supplied by MES. Those invoices were based upon MES time sheet forms which each such worker filled out and signed and submitted to MES. Each was allocated accordingly a MES employee number.
At least between those respective times:
(i)the CAO submitted formal purchase orders to MES in respect of the work CAO required to be performed by workers to be supplied by MES;
(ii)MES submitted invoices to CAO on a weekly basis in respect of the work thus performed by workers supplied by MES;
(iii)CAO paid MES the amounts specified in the invoices.
A sample of those purchase orders which CAO submitted to MES form part of Exhibit 1 at pages 78 to 140 thereof, and sample invoices submitted by MES to CAO form part of Exhibit 1 at pages 141-533 thereof. No moneys were thus paid by CAO to either applicant for their respective services, MES performing the function of a labour hire provider.
In early August 2002 or thereabouts, CAO invited MES, and other employment personnel providing entities, to tender for a contract to supply labour to CAO for mining work being undertaken by CAO at the HVO, being Tender No. CNA-04-072; a copy of the letter dated 2 August 2002 constituting that invitation to tender forms part of Exhibit 1 at pages 534-582. On or about 21 August 2002, MES submitted pricing to CAO in relation to its tender, and a copy of that submission comprises pages 1 to 28 of Confidential Exhibit 2. Subsequently in about late August or September 2003, MES entered into a written agreement with CAO (or more precisely with Rio Tinto Coal (NSW) Pty Ltd as agent for CAO) for the supply of so-called ‘supplementary labour hire’, being Contract No. SA-01-073 (‘the Supply Agreement’), a copy whereof comprises pages 29 to 67 also of Confidential Exhibit 2. The applicants contended, though apparently not until after principal written submissions of the respective parties had been furnished, that they were not ‘supplied’ to CAO under or pursuant to the Supply Agreement, for the reason that they had already commenced work at the HVO, and to use their description ‘were attending in accordance with [CAO’s] request that they turn up in accordance with a roster’. Upon that purported footing, the applicants submitted that the Supply Agreement ‘has no relevance to the relationship between the applicants and [CAO]’, that submission going to the nub of the issues arising in the proceedings, since the applicants’ case was of course that in substance and reality and therefore according to law, the applicants were at all material times employees of CAO and should have been remunerated accordingly.
Circumstances in chronological sequence attending the engagement by Mining & Earthmoving Services Pty Ltd (‘MES’) of Mr Wilton to the extent mutually acknowledged or not put in issue between the parties
As to particularity of the circumstances attending Mr Wilton’s engagement by MES (using the term ‘engagement’ neutrally), the following matters were the subject of agreement between Mr Wilton and CAO for the purpose of the proceedings (the complexity of the circumstances of the case requires that all of such undisputed matters be recorded in these reasons for ease of reference, irrespective of the varying extent of materiality thereof). The pagination of all documentation referred to below within Exhibit 1 is recorded below:
(i)on or about 1 June 2001, Mr Wilton completed an MES form called ‘Registration of Interest – Casual/Temporary Employment’, and submitted that form and his resume of mining experience to MES (comprising pages 583-586 of Exhibit 1);
(ii)on 6 June 2001, MES inquired of Mr Wilton whether he would be willing to work at the HVO on a night shift commencing at 11.00 pm; Mr Wilton indicated his willingness so to do; Mr Wilton commenced work at the HVO on that night shift commencing at 11.00 pm; Mr Wilton reported for that purpose to Mr Greg Hamilton, a shift supervisor for the B crew at the Chestnut Pit of the HVO and being the OCE working on that shift, and Mr Hamilton assigned Mr Wilton to work as a truck driver on that shift;
(iii)on or about 18 June 2001, MES completed ‘Section B’ of a ‘Tax file number declaration’ form in respect of Mr Wilton for submission to the Australian Taxation Office (Exhibit 1 at page 587); on 17 September 2001, MES completed a form regarding Mr Wilton’s employment for submission to Centrelink (Exhibit 1 at page 588); on 20 December 2001, Mr Wilton completed an MES form authorising and directing his statutory superannuation contributions to be made to COALSUPER (Exhibit 1 at page 589);
(iv)From 6 June 2001 to about 18 January 2002:
(a)Mr Wilton worked at the HVO for an eight hour shift on a five days per week roster as part of the B crew at the Chestnut Pit, although on at least two of those days Mr Wilton did not work because CAO informed Mr Wilton that it did not require him to work on that day due to inclement weather or machinery breakdown;
(b)when Mr Wilton worked at the HVO, he signed a contractor register book supplied by CAO located at the entry to the HVO, both at the start and the end of each shift;
(c)during the hours of the shifts that Mr Wilton worked at the HVO, he was subject to supervision and direction from the same person(s) as other workers on the B crew;
(d)in January 2002, CAO changed its operations at the Chestnut Pit from eight hour shifts to 12 hour shifts; that month, CAO informed Mr Wilton of the changes to the shifts, and CAO assigned Mr Wilton to work as part of the D crew at the Chestnut Pit;
(v)from 22 January 2002 to at least 31 December 2004:
(a)Mr Wilton worked at the HVO on a 12 hour shift four panel roster as part of the D crew at the Chestnut Pit, although on at least 15 occasions Mr Wilton did not work because CAO informed Mr Wilton that it did not require him to work on those occasions due to inclement weather or machinery breakdown;
(b)when Mr Wilton worked at the HVO, Mr Wilton:
(A)initially signed a contractor register book, supplied by CAO and located at the entry to the HVO, at the start and the end of each shift;
(B)from 22 April 2002, he swiped a card through a computer reader located at the entry of the HVO at the start and at the end of each shift, and affixed a computer generated adhesive sticker (showing his picture, his name, his induction training and his role) to his work gear at the start of each shift;
(C)during the hours of the shifts, he was subject to supervision and direction from the same person(s) as other workers on the D crew; and
(D)CAO each year provided members of the D crew at the Chestnut Pit with a roster card outlining the planned shifts to be worked by the D crew at the Chestnut Pit for the ensuing twelve month period;
(vi) at all material times from 6 June 2001 to 31 December 2004:
(a)when Mr Wilton was unable to attend work at the HVO due to illness, Mr Wilton:
(A)initially was required to notify both MES and his relevant OCE at the HVO (or, if he was unable to contact his relevant OCE, then the Control Room at the HVO); Mr Wilton also completed a MES ‘Application for Leave’ form in relation to those occasions and submitted the form to MES; a copy of those forms completed by Mr Wilton is Exhibit 1 at pages 590-591;
(B)from about 17 February 2003 was required to communicate with both MES and his relevant OCE at the HVO (or, if he was unable to contact the relevant OCE, the Control Room at the HVO); the relevant OCE then completed a ‘Record of Observation’ form in relation to Mr Wilton’s absence, and provided it to CAO’s Mining Systems Engineer Mr Steve Sargent;
(b)when Mr Wilton wished to take recreation leave from the work at the HVO, Mr Wilton:
(A)initially informed his supervisor at the HVO;
(B)completed a MES ‘Application for Payment of Leave’ form and submitted the form to MES; a copy of those forms completed by Mr Wilton are at page 592 of Exhibit 1;
(C)from about August 2004, the MES form he was required to complete (and did complete) and submit, changed to a ‘Notification of Not Being Available for Work’ form; a copy of forms completed by Mr Wilton are at pages 593-596 of Exhibit 1;
(c)Mr Wilton sent to MES, per medium of a facsimile machine located at the HVO, a completed MES timesheet, initially countersigned by an OCE at the end of each week, and later countersigned by an OCE at the end of each shift; Mr Wilton then sent the completed timesheet to the MES office by facsimile in order to receive payment for his work; a copy of the completed timesheets are at pages 597-821 of Exhibit 1.
At all material times from 6 June 2001 to 31 December 2004, MES:
(i)paid to Mr Wilton wages in respect of the work he performed at the HVO on a weekly basis into his nominated bank account after the deduction of PAYG taxation, superannuation and other authorised deductions;
(ii)provided to Mr Wilton a payslip each week; a copy of the payslip is Exhibit 1 at pages 822-1017;
(iii)made superannuation contributions on behalf of Mr Wilton to a superannuation fund nominated by Mr Wilton;
(iv)sent to Mr Wilton various memoranda, including memoranda concerning the completion and submission of timesheets, the requirement to attend toolbox talks and the requirement to work over certain holiday periods such as Easter and Christmas; a copy of such memoranda is at pages 1018 to 1029 of Exhibit 1;
(v)conducted monthly occupational health and safety briefings at the HVO which Mr Wilton and other workers attended at the request of MES; and
(vi)following the end of each financial year for 2001 to 2005 (both inclusive), provided to Mr Wilton a form of ‘PAYG Payment Summary – Individual Non Business’ for inclusion in Mr Wilton’s income tax return, which recorded gross payments made by MES to Mr Wilton in the nature of wages and the income tax deducted in respect of such payments; a copy of the PAYG Payment Summaries completed by MES in respect of Mr Wilton are at pages 1030 to 1034 of Exhibit 1.
Some months after Mr Wilton commenced working at the HVO, MES provided Mr Wilton with a uniform and personal protective equipment to wear during his work at the HVO, following the completion of forms by Mr Wilton requesting the clothing he wished to have issued to him; the clothing and personal protective equipment issued to Mr Wilton bore the MES logo; a copy of the forms completed by Mr Wilton is Exhibit 1 at pages 1035 to 1037. At or around the same time, MES provided to Mr Wilton a crib bag to use during his work at the HVO.
At all material times from 6 June 2001 to 31 December 2004, CAO:
(i)paid MES for the work done by Mr Wilton, based on the number of hours Mr Wilton worked at the HVO;
(ii)did not deduct tax from the amounts it paid to MES;
(iii)did not make any wage, superannuation, annual leave, sick leave or other payments to Mr Wilton;
(iv)did not pay MES for those occasions when Mr Wilton did not attend the HVO;
(v)did not direct or advise MES as to the quantum of wages or other payments MES made to Mr Wilton;
(vi)assigned Mr Wilton to work on various pieces of equipment at the HVO, at the start of a shift, by placing his name on a whiteboard next to the type of equipment Mr Wilton was to operate on that shift;
(vii)supplied the mining equipment which Mr Wilton used during his work at the HVO;
(viii)arranged for an OCE to be in charge of each shift which Mr Wilton worked;
(ix)arranged for the nominated OCE to provide a briefing on safety matters, prior to the commencement of each shift, to Mr Wilton and the other workers on the relevant shifts;
(x)made hearing protection (ear-plugs) available for use by Mr Wilton; and
(xi)provided instruction on health and safety matters to Mr Wilton (amongst other persons).
At some time during the course of 2002, Mr Wilton signed a MES ‘Employment Undertaking’ form and provided it to MES. A copy of the form that Mr Wilton submitted to MES formed part of Exhibit 1 at page 1038. The text of that form was as follows:
‘EMPLOYMENT UNDERTAKING
I Kevan Wilton, whilst employed by Mining & Earthmoving Services Pty Limited, understand and agree to meet the following minimum requirements when placed for casual work on a Mining & Earthmoving Services client’s work site:-
Ø Mining & Earthmoving Services Pty Limited and its client’s Policy and Procedure regarding fitness for work.
Ø Mining & Earthmoving Services Pty Limited and its client’s Policy and Procedure regarding Occupational Health and Safety and the care of the environment.
Ø Mining & Earthmoving Services Pty Limited and its client’s Policy and Procedure regarding work ethics, (including time management, attendance, advising of inability to attend for work etc.).
Ø To follow all legal and reasonable directions given to me by Mining & Earthmoving Services Pty Limited client’s nominated person.
Ø To report immediately to Mining & Earthmoving Services Pty Limited and its client any and all accidents, incidents, near misses, dangerous occurrences in which I may be involved, as well as any and all potentially hazardous practices and/or situations I may observe.
Ø To willingly and co-operatively take an active part in any investigation of any accident, incident, near miss and/or dangerous occurrence, whether conducted by Mining & Earthmoving Services Pty Limited or its client or both.
Ø To regard any and all information coming to my certain knowledge, no matter how trivial and/or unimportant that information may be, and whether that information concerns Mining & Earthmoving Services Pty Limited or its client, as absolutely and strictly confidential.
I understand and accept that my failure to meet these requirements may jeopardize my continued employment and placement by Mining & Earthmoving Services Pty Limited. I re-affirm my declaration that I have never signed any agreement with Coal Mines Insurance which would prevent me from working in the Coal mining industry in New South Wales.
I agree to accept the rates of pay and conditions actually payable on the particular client’s site to which it is proposed that I am to be placed, (a schedule of which was handed to me to-day) and to the minimum rates and conditions set out in the copy of the Mining & Earthmoving Services Pty Limited Certified Agreement 2001 handed to me to-day.’
The reference immediately above to the MES Certified Agreement may be observed.
On or about 6 May 2003, MES completed a document bearing the heading ‘To Whom It May Concern’ in relation to Mr Wilton; a copy of that document is at page 1039 of Exhibit 1. On or about 24 July 2003, Mr Wilton completed a form headed ‘Voting form for method of payment’; a copy of that document is exhibited at page 1040 of Exhibit 1.
On or about 1 July 2004, Mr Wilton received a document bearing the title ‘Superannuation Guarantee Contribution Report’; a copy of that document is at page 1041 of Exhibit 1. On or about 2 July 2004, Mr Wilton received a further document bearing the title ‘Superannuation Guarantee Contribution Report’; a copy of that document is at page 1042 of Exhibit 1.
On 24 November 2004, Mr Wilton submitted a job application form for permanent employment with CAO at the HVO; a copy of that document is at pages 1043 to 1059 of Exhibit 1.
Circumstances in chronological sequence relating to the engagement by MES of Mr Cumberland to the extent mutually acknowledged or not put in issue between the parties
As to particularity of the corresponding circumstances relating to Mr Cumberland’s engagement by MES, the following matters were the subject of agreement between Mr Cumberland and CAO for the purpose of the proceedings (as in the case of Mr Wilton, the complexity of the circumstances of the case requires that all such material be recorded below in these reasons for ease of reference, irrespective of the varying extent of materiality thereof):
(i)on or about 1 June 2001 (that is about the same time correspondingly in the case of Mr Wilton), Mr Cumberland completed the same MES form called ‘Registration of Interest – Casual/Temporary Employment’ and submitted that form and his resume to MES (comprising pages 1060 to 1066 of Exhibit 1);
(ii)on or about 18 June 2001, MES completed Section B of a ‘Tax file number declaration’ form in respect of Mr Cumberland for submission to the Australian Taxation Office; that form completed by MES comprises page 1068 of Exhibit 1;
(iii)on or about 9 July 2001, Mr Cumberland completed a document bearing the title ‘To Whom It May Concern’ (comprising page 1067 of Exhibit 1), which was in the following terms:
‘I, STEVEN CUMBERLAND who is employed as a Casual Plant operator by Mining and Earthmoving Services Pty Limited, understand and agree to meet the following requirements when placed for casual work on a Mining and Earthmoving Services Pty Limited client work site:-
·The Mining and Earthmoving Services Pty Limited and it’s [sic] client’s Policy and Procedure on Fitness for Work,
·The Mining and Earthmoving Services Pty Limited and it’s [sic] client’s Policy and Procedure on Occupational Health Safety and Environment,
·The Mining and Earthmoving Services Pty Limited and its client’s Policy and Procedure on Work Ethics (including Time Management, attendance, advising inability to attend work etc,),
·To follow all legal and reasonable directions given me by the client’s nominated person,
·To report immediately to client & MES accidents/incidents/ near miss/dangerous occurrences that I may be involved in,
·If involved in accidents/incidents/near miss/dangerous occurrences, I will take part in any investigations when invited to do so. Even if I have nothing to offer,
I understand failure to meet these requirements will jeopardise my employment with Mining and Earthmoving Services Pty Limited.’;
(I observe that this form, which pre-dated a not dissimilar form to that signed by Mr Wilton, was less comprehensive)
(iv)on or about 11 July 2001, Mr Cumberland at the request and expense of MES:
(a)attended a Pre-Employment functional capacity evaluation conducted by the Joint Coal Board (‘JCB’) Health Service;
(b)underwent a drug and alcohol screening test with JCB Health Service;
(v)on or about 12 July 2001 MES inquired whether Mr Cumberland would be willing to work at the HVO; Mr Cumberland indicated such willingness;
(vi)on 12 July 2001 Mr Cumberland attended the HVO to undergo induction training in order to work at the HVO; the induction training was carried out in the HVO training room;
(vii)from about 16 July 2001 to about 18 January 2002:
(a)Mr Cumberland worked at the HVO on an eight hour shift five days per week roster as part of the B crew at the North Pit, although on at least two occasions Mr Cumberland did not work as CAO informed him that it did not require him to work due to inclement weather or machinery breakdown; and
(b)when Mr Cumberland did work at the HVO, he signed a contractor register book supplied by CAO located at the entry to the HVO, at the start and end of each shift; and
(c)during the hours of the shifts that Mr Cumberland worked at the HVO he was subject to supervision and direction from the same person(s) as other workers on the B crew;
(viii)in January 2002, CAO made all its operations at the North Pit subject to 12 hour shifts;
(ix)      in January 2002, CAO informed Mr Cumberland of the changes to the shifts;
(x)following the change to the 12 hour shift roster, CAO continued to assign Mr Cumberland to work as part of the B crew at the North Pit;
(xi)on 14 May 2002, Mr Cumberland signed an MES ‘Employment Undertaking’ form in the same terms as that signed by Mr Wilton already extracted and provided it to MES (comprising page 1069 of Exhibit 1);
(xii)     from 21 January 2002 to at least 31 December 2004:
(a)Mr Cumberland worked at the HVO on a twelve hour shift four panel roster as part of the B crew at the North Pit, although on at least 13 occasions Mr Cumberland did not work, as CAO informed Mr Cumberland that it did not require him to work on those occasions due to inclement weather or machinery breakdown; and
(b)when Mr Cumberland worked at the HVO, Mr Cumberland:
(1)initially signed a contractor register book, supplied by CAO and located at the entry to the HVO, at the start and end of each shift; but
(2)from 22 April 2002, swiped a card through a computer reader located at the entry of the HVO at the start and at the end of each shift, and affixed a computer generated adhesive sticker (showing his picture, his name, his induction training and his role) to his work gear at the start of each shift; and
(c)during the hours of the shifts that Mr Cumberland worked at the HVO he was subject to supervision and direction from the same person(s) as other workers on B crew;
(d)CAO each year provided members of the B crew at the North Pit with a roster card of the planned shifts to be worked by the B crew for the next 12 month period;
(xiii)     at all material times from 12 July 2001 to 31 December 2004:
(a)when Mr Cumberland was unable to attend the work at the HVO due to illness, Mr Cumberland:
(1)initially was required to notify both MES and his relevant OCE at the HVO (or, if he was unable to contact the relevant OCE, the Control Room at the HVO); Mr Cumberland also completed a MES ‘Application for Leave’ form in relation to those occasions and submitted the form to MES; and
(2)from about August 2004 was required by MES to contact both MES and his relevant OCE at the HVO (or, if he was unable to contact the relevant OCE, the Control Room at the HVO); the relevant OCE then completed a ‘Record of Observation’ form in relation to Mr Cumberland’s absence and provided it to CAO’s Mining Systems Engineer, Mr Steve Sargent;
(b)when Mr Cumberland wished to take recreation leave from the work at the HVO, Mr Cumberland:
(1)initially informed his supervisor at the HVO;
(2)completed a MES form ‘Application for Payment of Leave’ form and submitted the form to MES; and
(3)from about August 2004 the MES form he was required to complete (and did complete) changed to a MES ‘Notification of Not Being Available for Work’ form; a copy of forms completed by Mr Cumberland comprise pages 1070 to 1073 of Exhibit 1; and
(c)Mr Cumberland sent to MES, via a facsimile machine located at the HVO, a completed MES timesheet, initially countersigned by an OCE at the end of each week, and later countersigned by an OCE at the end of each shift; Mr Cumberland had an OCE sign the completed timesheet and then sent it to the MES office by facsimile in order for payment to be made for his work; a copy of the completed timesheets comprise pages 1074 to 1239 of Exhibit 1;
(xiv)on 10 March 2003, Mr Cumberland completed an MES form authorising and directing that his statutory superannuation contributions be made to COALSUPER fund; a copy of the form completed by Mr Cumberland comprises page 1240 of Exhibit 1;
(xv)     at all material times from 12 July 2001 to 31 December 2004, MES:
(a)paid to Mr Cumberland wages in respect of the work he performed at the HVO on a weekly basis into his nominated bank account after the deduction by MES of PAYG taxation, superannuation and other authorised deductions;
(b)provided Mr Cumberland with a payslip each week; a copy of the payslips comprise pages 1241 to 1403 of Exhibit 1;
(c)made superannuation contributions on behalf of Mr Cumberland to a superannuation fund nominated by Mr Cumberland;
(d)sent to Mr Cumberland various memoranda, including memoranda concerning late attendance to rostered toolbox talks, the completion and submission of timesheets, the requirement to attend toolbox talks and the requirement to work over certain holiday periods such as Easter and Christmas; a copy of such memoranda comprises pages 1018 to 1029 of Exhibit 1;
(e)conducted monthly occupational health and safety briefings at the HVO which Mr Cumberland and certain other workers at the HVO attended; and
(f)following the end of each financial year in 2003, 2004 and 2005, provided to Mr Cumberland a ‘PAYG Payment Summary – Individual Non Business’ for inclusion in Mr Cumberland’s income taxation return which recorded gross payments made to Mr Cumberland in the nature of wages and the income tax deducted in respect of such payments; a copy of the PAYG Payment Summaries completed by MES in respect of Mr Cumberland comprise pages 1404 to 1406 of Exhibit 1;
(xvi)after approximately six weeks working at the HVO, MES provided Mr Cumberland with a uniform and personal protective equipment to wear during his work at the HVO, following the completion of a form by Mr Cumberland requesting the clothing he wished to have issued to him; the clothing and personal protective equipment issued to Mr Cumberland bore the MES logo; a copy of the forms completed by Mr Cumberland comprise pages 1407 to 1408 of Exhibit 1; at or around the same time, MES provided to Mr Cumberland a crib bag to use during his work at the HVO;
(xvii)    at all material times from 12 July 2001 to 31 December 2004, CAO:
(a)paid MES for the work done by Mr Cumberland, based on the number of hours worked at the HVO;
(b)did not deduct tax from the amounts it paid MES;
(c)did not make any wage, superannuation, annual leave, sick leave or other payments to Mr Cumberland;
(d)did not pay MES for those occasions when Mr Cumberland did not attend the HVO;
(e)did not direct or advise MES as to the quantum of wages or other payments MES made to Mr Cumberland;
(f)assigned Mr Cumberland to work on various pieces of equipment at the HVO, at the start of a shift, by placing his name on a whiteboard next to the type of equipment Mr Cumberland was to operate on that shift;
(g)supplied the mining equipment which Mr Cumberland used during his work at the HVO;
(h)arranged for an OCE to be in charge of each shift which Mr Cumberland worked;
(i)arranged for the nominated OCE to provide a briefing, prior to the commencement of each shift to Mr Cumberland and the other workers on the relevant shifts on safety matters;
(j)made hearing protection (ear-plugs) available for use by Mr Cumberland; and
(k)provided instruction on health and safety matters to Mr Cumberland (amongst other persons);
(xix)on 11 March 2004, Mr Cumberland signed a document entitled ‘Authorisation’ which authorised the Construction Forestry Mining and Energy Union to represent him in matters relating to his employment; a copy of the Authorisation is exhibited at page 1409 of Exhibit 1;
(xx)on 17 March 2004, a ‘Notice Under a Dispute Settling Procedure in an Agreement’ was lodged with the Australian Industrial Relations Commission on behalf of Mr Cumberland and certain other persons; a copy of the Notice is exhibited at page 1410 of Exhibit 1;
(xxi)on or around 1 July 2004, Mr Cumberland received a document bearing the title ‘Superannuation Guarantee Contribution Report’ for the quarter 1 January to 31 March; a copy of that document is exhibited at page 1411 of Exhibit 1; on or around 2 July 2004, Mr Cumberland received a further document bearing the title ‘Superannuation Guarantee Contribution Report’ for the period 1 April to 30 June; a copy of that document is exhibited at page 1412 of Exhibit 1;
(xxii)on 29 November 2004, Mr Cumberland submitted a job application form for permanent employment with CAO; a copy of the job application is exhibited at pages 1413 to 1424 of Exhibit 1.
MES Certified Agreement 2004 and related written material further provided or otherwise sent by MES to each of Mr Wilton and Mr Cumberland

The following documentation of the foregoing description was provided by MES:
(i)on or around 8 April 2004, each of the applicants received a document from MES entitled ‘Mining & Earthmoving Services Pty Ltd Certified Agreement 2004 Draft 08.04.2004’; a copy of that document is exhibited at pages 1425 to 1439 of Exhibit 1;
(ii)on 5 May 2004, each of the applicants received a memorandum from MES in relation to the representation of MES casual operators working on the HVO mine site; a copy of the memorandum is exhibited at page 1440 of Exhibit 1;
(iii)on 22 November 2004, each of the applicants received a letter from MES enclosing a draft certified agreement; a copy of the letter and that attachment are exhibited at pages 1441 to 1458 of Exhibit 1;
(iv)on 11 March 2005, each of the applicants received a letter from MES enclosing a proposed certified agreement; a copy of the letter and that attachment are exhibited at pages 1459 to 1476 of Exhibit 1;
(v)at some time between 1 June 2001 and 31 December 2004, each of the applicants received from MES a document bearing the title ‘MES certified agreement discussions schedule’; a copy of that document is exhibited at page 1477 of Exhibit 1;
(vi)during 2004, Mr Cumberland received from MES a document bearing the title ‘Mining and Earthmoving Australian Workplace Agreement (AWA)’; a copy of that document appears at pages 1478 to 1489 of Exhibit 1;
(vii)at some time after 25 August 2003, Mr Wilton received from MES a document entitled ‘Fitness for Work’; a copy of that document is exhibited at pages 1490 to 1499 of Exhibit 1;
(viii)at some time between 23 August 2002 and 31 December 2004, each of the applicants received from MES a document entitled ‘Introduction of Drugs & Alcohol Testing in the Workplace’; a copy of that document is exhibited at page 1500 of Exhibit 1.
The relief sought by the applicants against Coal & Allied Operations Pty Ltd (‘CAO’) and the issues raised by the applicants and CAO respectively in relation thereto
I have already extracted the full text of the relief sought by each of the applicants against the respondent CAO pursuant to the WR Act and the Federal Court of Australia Act (Cth) (‘the Act’); the monetary significance of that extensively framed relief may be summarised as follows:
(i)declarations that CAO breached the terms of the 2000 Agreement in that for the period of time from 1 July 2002 to 30 June 2003, CAO failed to make payment to each of the applicants of the annual salary as required by cl 19 of that Agreement;
(ii)declarations that CAO breached the terms of the 2003 Agreement in that for the period of time from 1 July 2004 to 31 December 2004, CAO failed to make payment to each of the applicants of the annual salary as required by cl 17 of that Agreement;
(iii)orders that CAO make payment to the respective applicants of the relevant amounts in satisfaction of the asserted underpayments together with interest thereon, being in the case of Mr Wilton the sums of $4,697.00 and $12,845.31 in relation to those successive periods and in the case of Mr Cumberland the sums of $8,410.00 and $20,531.20 in relation to those successive periods;
(iv)orders by way of imposition of penalties upon CAO for breaching each of the said Agreements and that the penalties be paid to the respective applicants pursuant to s 356 of the WR Act.
The basis for those claims, as I have foreshadowed, was that at all material times each of the applicants was an employee of CAO according to law, both in substance and reality, and was entitled to the remuneration and conditions provided for in the 2000 and 2003 Agreements respectively. Clauses 4 and 6 of each of those Agreements were said to be in similar terms, being substantially to the following effect:
‘4.       Parties to the Agreement
The parties to the agreement are
·     Coal & Allied Operations Pty Limited (the Company);
·     The Construction, Forestry, Mining & Energy Union (Union);
·The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
This agreement applies to employees of the company performing production and engineering work.
This agreement does not apply to any production or engineering employee employed under an Australian Workplace Agreement (AWA). All AWAs operate to the exclusion of this agreement.’
…
This agreement applies to and binds all employees whose employment is currently subject to the Coal Mining Industry (Production and Engineering) Consolidated Award 1997.’
The term or description ‘employee’ was not defined in either Agreement. Both Agreements were certified under the so-called ‘pre-reform’ WR Act, s 4 whereof defined ‘employee’ as follows:
‘employee includes any person whose usual occupation is that of employee, but does not include a person who is undertaking a vocational placement.’
The applicants framed the issue arising for resolution in the proceedings as ‘whether at the relevant times the relationship between each of the applicants and the respondent [was an] employment relationship’, having regard to what the applicants described as ‘the facts as to the total employment relationship’. It was contended that such relationship took effect from the time of their engagement to work at the HVO, or at least some time prior to 1 July 2002, that being in effect the commencement of the claim. In that regard it was pointed out that English authority, which I will later address in detail, has established that ‘[c]onduct which might not have manifested a mutual intention to enter a contract had it lasted only a brief time may become unequivocal if it is maintained over a lengthy period of time’.
CAO postulated the two issues necessarily arising for resolution by reason of or inherent in the subject claims made by the applicants Mr Wilton and Mr Cumberland against CAO, as follows:
(i)whether CAO and each of the applicants were in a contractual relationship; and
(ii)if that issue be answered affirmatively, whether CAO was in an employment relationship with each of the applicants respectively.
CAO exposed as the critical consideration arising in the context of the resolution of those issues the function relevantly of MES as a labour hire entity and the respective standings in law (if any) of each of the applicants Messrs Wilton and Cumberland in relation to MES on the one hand, and in relation to CAO on the other. It was in the context of those critical considerations that each of the parties drew attention to many legal authorities and to the operation or otherwise thereof in relation to the circumstances of this case.
The evidence adduced by the respective parties to the proceedings was extensive, being evidence largely additional to those mutually agreed facts and circumstances I have already recorded in these reasons. The differences in approach of the parties to the significance of those facts and circumstances resided partly in relation to the inferences open to be drawn from circumstances which were substantially common ground.
Principles governing the juridical approach to determination of the existence or otherwise of an employment relationship – authorities cited by the applicants
The applicants cited a number of authorities bearing upon the principles for determination of the existence or otherwise of an employment relationship. The first was the dicta of Wilson and Dawson JJ (of course as members of the High Court of Australia) in Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 at 36-37, the immediate context there being an issue as to the vicarious liability in tort of a sawmiller for its independent contractors as distinct from its employees:
‘The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.
Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.’
In the present context however there is no issue arising as to the status of the applicants as employees per se, but rather whether each was employed at the material times by CAO as the applicants contended, rather than by MES as the labour hire agency. It may be accepted that the contractual arrangements in operation as between CAO and MES at the material times are not determinative per se of the characterisation relevantly of the relationship in place between each of the applicants on the one hand and CAO on the other, though such arrangements were not of course irrelevant.
In Hollis v Vabu Pty Limited (2001) 207 CLR 21 at 31-32, to which I was next referred by the applicants, the need for caution in relying on earlier authorities relating to vicarious liability in tort, for the purpose of determining the existence or otherwise of an employment relationship in a business or industrial setting, appears at the threshold of the reasons for joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ. The circumstances of that case concerned a courier business involved in the delivery by couriers of articles on bicycles on the basis of payment of fixed rates for each assignment, and in relation to which the High Court established (by a majority of five Justices to one) the existence of a relationship of employer and employee, contrary to the decision below of the New South Wales Court of Appeal. The following considerations addressed in that majority joint judgment at [48]-[50], to which attention was drawn by the applicants, were found to require the conclusion that:
‘48.First, these couriers were not providing skilled labour or labour which required special qualifications. A bicycle courier is unable to make an independent career as a free-lancer or to generate any “goodwill” as a bicycle courier. The notion that the couriers somehow were running their own enterprise is intuitively unsound, and denied by the facts disclosed in the record.
49.Secondly, the evidence shows that the couriers had little control over the manner of performing their work. They were required to be at work by 9 am and were assigned in a work roster according to the order in which they signed on…. The evidence does not disclose whether the couriers were able to delegate any of their tasks or whether they could have worked for another courier operator in addition to Vabu during the day. It may be thought unlikely that the couriers would have been permitted by Vabu to engage in either activity.
50.Thirdly, the facts show that couriers were presented to the public and to those using the courier service as emanations of Vabu. They were to wear uniforms bearing Vabu’s logo.’
The issue here arising is one step removed from Hollis, in that it is not in issue that Messrs Wilton and Cumberland did not have the status of employees per se instead of that of independent contractors. The issues here involved boil down to identification of the employer of the applicants Messrs Wilton and Cumberland, whether being CAO as contended by the applicants or MES as contended by CAO, in the context of MES’s function of labour hire. Nevertheless as I have also foreshadowed, the jurisprudence emerging from cases involving directly the issue as to whether an entity conducting a business retained a particular person as an employee, or else engaged that person as an independent contractor, contain judicial dicta which may assist the resolution of those issues so arising in the present context.
The issue here arising, as to whether or not a contract of employment was mutually intended to be established between the applicants and CAO, was emphasised by the applicants in any event to fall for determination by the Court objectively, and in that regard at least largely by inference from the conduct of the relevant parties, as exemplified in the following dicta of Gaudron, McHugh, Hayne and Callinan JJ appearing in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at [25], shortly after the High Court’s decision in Hollis:
‘Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.’
The circumstances in Ermogenous related to the engagement of a minister of religion, and hence were somewhat distant from the industrial context here involved, and in addition there was not present as here the competing element of the existence of a third party. Nevertheless the emphasis there given to the need to take account of the subject matter of a relevant agreement, the status of the parties thereto, their relationship to another, and other surrounding circumstances are factors of present importance. I would add reference to the need for the determination objectively of the mutual intention of the contracting parties, evidence of mere subjective intention being usually of controversial weight.
The applicants emphasised in the course of submissions that the present case did not involve the need for the Court to focus on all of the persons engaged by CAO on its mine site in the Hunter Valley, whether through contractors inclusive of MES, but rather must address the circumstances of the applicants in their interaction with and otherwise in relation to CAO. I was referred to the earlier case of Dalgety Farmers Ltd t/as Grazcos v Bruce (1995) 12 NSWCCR 36 at 46, where Kirby A-CJ (as he then was), with whom the other members of the New South Wales Court of Appeal agreed, observed generally in relation to an issue as to tortious liability of an employer:
‘Determining whether employment exists, and if so with which person or organisation, is often a difficult task. It involves the characterisation of the essence of a relationship by reference to given criteria. It frequently results (as cases both in Australia and elsewhere illustrate) in borderline decisions upon which different legal minds, properly instructed, can reach different conclusions.’
I would draw attention to his Honour’s emphasis above upon the need for ‘characterisation of the essence of a relationship’ under scrutiny. The context to Dalgety Farmers related to the labour hire of shearers undertaken by an organising entity for pastoralists.
In the course of proceedings earlier in the Victorian Court of Appeal in The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (1997) 97 ATC 5070, Winneke P, with whom J D Phillips and Kenny JJA agreed, said at 5074 as to the nature of the evidentiary approach to imputation of the liability of an employer to pay pay-roll tax as follows:
‘The exercise is not, as Tadgell, JA. observed in Green v Victorian Workcover Authority [1997] 1 VR 364 at 375 “a mechanical one”. Rather it is a matter of obtaining the overall picture from the accumulation of detail. Tadgell, JA described the exercise by citing, with approval, a passage from the judgment of Mummery, J. in the case of Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 where his Lordship said of a determination whether a person was a servant or independent contractor:
“This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.”
… .’
The juridical approach there described blends constructively with those notions appearing in other authorities I have cited in the course of these reasons, each accommodating varying or different features but nevertheless attracting at least broadly the operation directly or indirectly of not dissimilarly expressed principles.
It was submitted by the applicants in the light of the foregoing authorities that in determining whether each of them is entitled to the relief sought in the present proceedings against CAO, it is necessary to consider the total relationship between the applicants and CAO, and hence all the facts and circumstances bearing upon the applicants’ particular employment. In so doing, it was further submitted that the Court is entitled to have regard to conduct that occurred after the relationship commenced. I was referred to what was observed by Heydon JA (as he then was) in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 163-164, commencing, ‘The second relevant principle is that post-contractual conduct is admissible on the question of whether a contract was formed’, his Honour thereby citing authority, commencing with Howard Smith & Company Limited v Varawa (1907) 5 CLR 68 at 77, in the context of his discussion of principles of contract formation. Further in Brambles at 177 on the subject of limitations upon an offer and acceptance analysis, Heydon JA adopted the following dictum of the New South Wales Court of Appeal in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,118 (McHugh JA with whose reasons Hope and Mahoney JJA concurred) :
‘Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties’ subsequent conduct become sufficiently specific to give rise to legal rights and duties. In any dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.’
It would be somewhat of an overstatement to describe the present context as involving a ‘dynamic commercial relationship’, but nevertheless the foregoing dictum is by no means out of place in the present context.

The applicants cited extensively from the Full Federal Court judgments in Damevski v Giudice and Others (2003) 133 FCR 438, where the unanimous conclusion of Marshall, Wilcox and Merkel JJ was to the effect that the purported restructure of a cleaning operation from that of former employees to their ongoing provision of cleaning services as contractors, but nevertheless still engaged by their former employer as a principal to the ongoing controversial relationship, did not operate to terminate the pre-existing contracts of employment for the purpose of the operation of the WR Act, no change having occurred in any physical sense to the work activities of the purported contractors from what had previously been undertaken by them as employees. I would interpolate to observe that no such restructure of any existing employment relationship of relevance took place in the present context, and care therefore needs to be taken in relation to any application to the principled approach there taken. The extensive reasons for judgment of Marshall J (with whom Wilcox J agreed whilst adding observations of his own) included emphasis at [86] upon the practical difficulty of locating or demonstrating an offer and acceptance in the traditional sense in the kind of context for instance there involved, his Honour pointing to what was further observed by McHugh JA in Integrated Computer Services concerning the difficulty of fitting ‘a commercial arrangement into the common lawyers analysis of a contractual arrangement’, and moreover as to the need to distil ‘the precise moment when the legal criteria of a contract have been fulfilled’, given that ‘[i]n a dynamic commercial relationship new terms will be added or will supersede older terms.’ As McHugh JA had also emphasised, it is necessary ‘… to look at the whole relationship and not only at what was said and done when the relationship was first formed’.In the present case, however, the framework of the relationship between the applicants and CAO stood still relevantly from the outset, as it were.
At 456-7 of Damevski, Marshall J made the following findings within [92], [96], [101] and [102], to which counsel for Messrs Wilton and Cumberland drew attention with emphasis, and which I will further reproduce below:
‘[92]Counsel for Endoxos relied upon the requirement for an intention to create legal relations to assert that there was no evidence of a legally enforceable contract. Subject to a rebuttal, it will be presumed in commercial agreements that the parties intend to create legal relations. Although the hiring agreement indicates Endoxos set about making arrangements to obtain its labour through MLC, this is not a clear rebuttal. Relationships can be established outside the hiring agreement. The hiring agreement cannot be determinative of the intentions of Endoxos and Mr Damevski to create legal relations.
…
[96]Endoxos may have set about making arrangements for the provision of labour through a third party, but ultimately it acted in a way that showed that it in fact intended to create legal relations. The evidence indicates that Endoxos wanted to maintain control of Mr Damevski, expected him to use their equipment and clothing emblazoned with Endoxos livery and, ultimately, wanted to be able to dismiss Mr Damevski.
…
[101]Although Endoxos had an intention to remove costs related to its role as an employer (such as increases in public liability insurance premiums), through its actions it also displayed an intention to establish a contractual relationship with Mr Damevski after his “resignation” on 19 August 2001. Endoxos directed Mr Damevski to worksites, called Mr Damevski to its offices for further instructions when necessary, gave Mr Damevski attire and equipment to enable him to perform work, and received pay slips from him. Mr Damevski also showed an intention to re-enter the legal relationship with Endoxos, by once again taking up the role he held with Endoxos before 19 August 2001.
[102]The facts of this case also reveal that the contractual relationship that existed between Mr Damevski and Endoxos was one of employee and employer. As previously pointed out, the only difference between the relationship before and after 19 August 2001 was that MLC was given the role of paymaster.’
In the present case, the applicants did indeed use only CAO machinery, but as I have also pointed out, it was MES which issued each of them with both clothing and protective equipment.
The reasons of Merkel J for concurrence with Wilcox and Marshall JJ in the outcome in Damevski revealed a varied approach from that of Marshall J undertaken at length, albeit variations which Wilcox J doubted to involve any ‘difference [that] matters very much’ (see [2] at 441). Nevertheless as his Honour also explained, care needs to be taken in applying principles along the lines of re-structured existing employment relationships from those of the purported hiring of employees from the outset. After pointing out in his conclusions at [173] that ‘[i]n general, the Courts have held that the interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employee-employer relationship’, Merkel J reached the following conclusions at [174]:
‘However, the present case differs in significant respects from those cases. In those cases, in general, the hiring agency interviewed and selected the workers, and determined their remuneration, without reference to the client. Usually, a client requesting a worker with particular skills was provided with one, who may or may not have been “on the books” of the hiring agency at the time the order was placed. The workers of such hiring agencies were usually meant to keep the agency informed of their availability to work, and in many cases were not to agree to undertake work for the client which had not been arranged or directed by the hiring agency. Equipment was either supplied by the worker themselves [sic] or by the hiring agency, except for specialist safety equipment which the client often supplied. Dismissal of a worker was only able to be effected by the hiring agency. The client can only advise the hiring agency that the particular worker is no longer required by it. Had AICA/MLC acted as a labour hiring agency for Damevski to contract his services to other cleaning companies, as suggested in the chart and in the information pack, then the decisions in the above cases may have been applicable to this situation. However, that did not eventuate in the present case.’
In the present case however, the business of MES was indeed (and presumably remains) in the nature of a ‘hiring agency’, and MES retained its personnel on its own employment books of record when hiring them to third parties at arm’s length, and had done so apparently for some time in the context of mining operations in particular in the Hunter Valley such as those undertaken by CAO. The MES arrangements did not of course arise out of internally restructured employment arrangements, whether designed to obviate employment regulation, such as occurred for instance in Damevski.
The mutually acknowledged need for caution in placing reliance upon litigated precedents, in the context of deciding if there exists an employment relationship in the circumstances of a particular subsequent case, was emphasised in Hollis, where at [31] of the reasons for the joint judgment of the High Court to which I have already made reference, the following further appears:
‘The concession in the Court of Appeal was one as to a proposition (more accurately, a conclusion) of law alone, and not as to the facts on which that proposition rested. In Zuijs v Wirth Brothers Pty Ltd, the same concession had been made in the New South Wales Supreme Court but was held not to stand in the way of this Court hearing argument and, indeed, holding to the contrary on appeal. Moreover, it has not been demonstrated that any substantial prejudice would result to Vabu in allowing Mr Hollis now to argue this point. All the facts necessary for determination of the question were adduced and proved at trial and no new fact is sought to be or needs to be raised. Further, one might have thought that, as a practical matter, there would have been considerable obstacles in the path of any challenge to the finding of a relationship of principal and independent contractor at trial or in the Court of Appeal because it would have been contrary to the prior holding of the Court of Appeal in the taxation decision.’
It was asserted on behalf of the applicants that the present case was not an instance ‘… where the Court needs to focus on all of the persons engaged by [CAO] through contractors or even all the persons engaged by [CAO] through MES’, but rather was an instance which ‘requires the Court to focus on the circumstances of the two applicants in their interaction with [CAO]’. Nevertheless I did not understand the applicants to distil, by way of any detailed or definitive description, the existence of any material difference between the arrangements made between MES and CAO for the utilisation of the services of Mr Wilton or Mr Cumberland and those of other workers introduced by MES to CAO, for what that might matter.
I should add in any event that the applicants drew attention to what appears in the joint reasons for judgment of Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 420-421, as follows:
‘A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment.
In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, as we have said, the award operates with statutory force to secure those terms and conditions.’
And at 436 McHugh and Gummow JJ further observed:
‘The evolution in the common law as to the relationship of employment has been seen as a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee).’
Circumstances beyond the scope of evidentiary common ground – the operation of the mining equipment of CAO by the applicants and related matters
It was common ground between the parties that members of the mining crews, such as those whereof each of the applicants were respectively members from time to time, undertook exclusively for CAO similar duties involving the driving and operation of CAO’s heavy mining equipment at the HVO. The applicants submitted that they were engaged in such work at CAO over approximately four years from June/July 2001 to April/May 2005. For that purpose they were provided by CAO at 12 monthly intervals with rosters which allocated them to designated crews and indicated their working times to apply for the ensuing year. Their respective periodic shifts rotated at weekly intervals from day shifts to night shifts, including weekends on the basis of payment of overtime. On occasions the applicants worked seven days in a given week. Timesheets in evidence filled out on MES forms provided to each applicant for completion reveal that Mr Wilton worked an average of 49 hours per week in the period of time up to 20 January 2002, and Mr Cumberland worked an average of 43 hours per week over a similar time. It was pointed out by CAO that the fact that the applicants performed duties similar to certain CAO employees was not surprising, given that CAO sought to achieve uniform levels of production, and further that it was efficient as well as safe for the applicants to work in the same physical contexts as CAO’s employees.
From January 2002 onwards the shifts worked by the respective applicants were restructured. Each of the applicants was required to work a 12 hour shift roster rather than the eight hour roster previously in operation. MES timesheets filled out by each applicant were said by the applicants to show that 12 hour shifts were worked on two, three, four and sometimes five times per week, being rostered on any of the seven days of the week. An analysis of timesheets compiled after 20 January 2002, that is, after the applicants had been working 12 hour shifts, demonstrated that from that time until 15 May 2005, Mr Wilton worked on average 40 hours per week, and from 20 January 2002 until 26 December 2004, and Mr Cumberland worked an average of 36 hours per week.
A typical shift and its incidents, as worked by Mr Wilton at the HVO, were described by him sequentially as follows:
(i)he travelled to work in his own time and as part of a ‘car pool’ with other workers engaged on his shift;
(ii)prior to starting work he changed into his work gear at the bathhouse located at the HVO;
(iii)he then reported to the muster room, and until sometime in 2002, ‘signed on’ to his shift in a folder provided by CAO; after that time he swiped a card into an electronic reading device;
(iv)he went next to his crew room to ascertain from a whiteboard, which contained daily work allocations for each crew, what machine he was to operate, where it was located and how he would be transported to that machine;
(v)thereafter he attended a meeting of his crew addressed by a supervisor as to work allocations for the day, and other matters including safety matters, incidents in the pit and the shift plan; the supervisor also addressed questions from the crew;
(vi)if working a night shift, he may also have been required to attend a meeting about the 24 hour plan for the mine in operation for the time being;
(vii)following the meeting he would be conveyed to the mining machinery that he was required to operate that day;
(viii)he would usually be assigned to operate a truck, dozer or loader;
(ix)before entering upon actual work performance, he would undertake a safety check of the machine to which he was assigned;
(x)he logged onto a computer network on the machine which was linked to a so-called GPS monitoring system; that network was connected to a control room operated by CAO; each task that he was required to complete was relayed from the control room via the network to the computer screen for the mining equipment;
(xi)he moved the machinery to different areas of the pit to perform functions associated with the mining process; for example, if he was to operate a dump truck, his tasks would involve moving the truck to the appropriate parts of the mine to load and unload dirt and/or Coal;
(xii)as each task was completed, he made an entry on his on-board computer and would then be allocated his next task;
(xiii)whilst working, he would interact with others working in the mine by communicating per medium of a two way radio; thus during his shift he would communicate with the central control room, his supervisors, other members of the crew, and others working in the mine;
(xiv)at the completion of his shift, he would ‘log off’ the computer, and would then be transported from his machine to the muster area where he would sign off or ‘swipe off’ and have his timesheets signed by his supervisor; and
(xv)he would then proceed to the showers with the other workers on the shift and thereafter travel home in his car pool.
Mr Cumberland described a typical shift during which he worked in similar terms. More significantly, so did Mr Thompson, an acknowledged employee of CAO at the HVO since 1979. Mr Thompson testified to the effect that his typical shifts involved a similar system of work to those undertaken by each of the applicants. He was thus subjected to similar supervision to that applicable to the applicants. CAO pointed out nevertheless that the fact that the applicants performed similar duties to Mr Thompson was ‘not surprising’, given that CAO sought to achieve projected levels of production, and that it was more efficient and safe for the applicants to work in the same manner as CAO’s employees. Those circumstances did not however operate to establish a relationship between CAO and each of the applicants as one of employment, so CAO submitted.
The mining equipment used by each of the applicants was supplied and maintained by CAO; some personal protective equipment was additionally supplied to the applicants by MES. It was the case of the applicants that CAO had ‘overarching responsibility for the provision of personal equipment’; my attention was drawn by the applicants in that regard to the Coal Mines (General) Regulation 1999 (NSW) (‘CMG Regulation’), since repealed and replaced from 23 December 2006 by similar provisions, cl 79 whereof until then providing as follows:
‘79. Personal protective equipment
(1)Appropriate types and quantities of personal protective equipment must be provided to all persons required to work or travel at a mine or declared plant.
(2)Such equipment must be maintained in good working order;
(3)Persons provided with any such equipment must be trained in its use.’
Since however the CMG Regulation applied ‘to all persons required to work or travel at a mine’, reference thereto did not seemingly advance decisively the applicants’ case.
As to the matter of so-called ‘time off’, it was mutually agreed between the parties that the applicants would be stood down by CAO for any day when work could not be performed due to bad weather or the unavailability of machinery. Standing down would occur before commencement of a shift by way of CAO communicating directly with each applicant, or during the course of a shift whereby a supervisor at the mine would send home the affected applicant. Mr Israel, who was a supervisor employed by CAO at the HVO, testified that it was his decision to stand down members of his crew due to bad weather, or the unavailability of machinery, and that he would inform the so-called ‘Contractor personnel’ of his decision; he testified that it was not his practice to inform MES of his decision in that regard. However what CAO emphasised on that score was that ‘no leave benefits, or benefits by way of paid time off, were given by CAO to either of the [a]pplicants’.
Both the applicants testified that when they wished to take any form of leave, they were required to notify CAO in the case of sick leave, or request leave from CAO in the case of annual or other leave. It was common ground that when either of the applicants was unavailable for work due to illness, he was required to notify the relevant OCE (the abbreviation of course for ‘Open Cut Examiner’) stationed at the HVO, as well as MES. In that regard, a document headed ‘Mining and Earthmoving Services Pty Ltd Toolbox Meetings Hunter Valley Operations’ dated 26 July 2001 and presented by the affidavit evidence of Mr Touzell, who was employed by MES from 7 May 2001 to 12 August 2004 as the Occupational Health and Safety and Environmental Co-ordinator for MES, states as follows:
‘1.0 Attendance to Work
1.1If for any reason you cannot attend work please advise your [HVO] representative with as much advance notice as you can give.
1.2In times when no prior notice can be given please advise the HVO representative as soon as possible after normal starting time.
1.3 Please advise MES as soon as possible on the day.’
A memorandum dated 6 November 2002 from Mr Touzell of MES addressed to ‘all Employees’, copied to five CAO officers and headed ‘Attendance At Work’, explained ‘… the obligations of employees in regards to advising MES and its client of the inability to be present at work’; the purpose of the requirements was explained as:
‘… not to deprive our employees of leave but to ensure the client has sufficient personnel to man its operation. Both MES and its clients recognise the need for recreation and sick leave and will do the best in ensuring you have this leave for whatever reason.
In most instances approval of leave by the client is seen as automatic approval by MES.’

CAO further argued for completeness that ‘the possible position left open in Brook Street’, being that the worker (Mrs Dacas) was an employee of the ultimate client of the labour hire agency, was distinguishable from the circumstances the subject of the present proceedings, because unlike the position described in the reasons for judgment of Mummery LJ in Brook Street at [64]:
(i)the applicants and MES were undeniably in an employment relationship inter se; consistently with that, MES paid to the applicants their respective wages;
(ii)the role of MES was not merely that of an agency finding suitable work assignments for each of the applicants;
(iii)MES provided certain clothing and personal protective equipment for use by the applicants in their working assignments in the HVO;
(iv)CAO did not view MES as performing the task merely of ‘staff supplier’ or ‘administrator of staff services’; and
(v)CAO had its own individual instrument applicable to and governing its employment conditions, and what it was otherwise obliged to observe and undertake in relation to its own employees discretely from those of MES.
It was pointed out moreover by CAO that the United Kingdom Court of Appeal recognised in Brook Street in any event the force of the submission that control exercised by the end user in Brook Street was the product of the contractual arrangements between the labour hire agency and that end user. In that regard I was referred to [67] of the reasons for judgment of Mummery LJ, subsequent to which his Lordship acknowledged, at [68], at least the force of the arguments of Brook Street’s counsel in attempted denial of the existence of any contract of service between that employment agency and Mrs Dacas. Incidentally in [67], his Lordship observed also that ‘[i]f the case raised policy issues as to the working conditions of people in the position of Mrs Dacas, that was a matter for legislation by Parliament and not for the courts’.
CAO drew further attention once more to the significance of the circumstance, that there was no contractual obligation imposed upon CAO to provide either of the applicants with work, and in that regard I was referred to Brook Street at [64]. CAO exemplified that circumstance by reference to the unavailability of work to the applicants, and hence of any requirement for them to report for work at the HVO, in the event of inclement weather or machinery breakdown, and further that it was open to CAO conversely to inform MES that it did not want a particular MES employee to work again at the mine for whatever reason (if any).
I would next move to a consideration of the detailed attention afforded by the parties to Cable & Wireless, which I have earlier foreshadowed that I would do more extensively in the context of my recitation of CAO’s submissions than did the applicants, CAO having given perhaps more extensive attention to Cable & Wireless. That case was decided by the United Kingdom Court of Appeal subsequently of course to Brook Street by a different bench being Sir Anthony Clarke MR and Smith and Kay LJJ. The joint judgment of their Lordships at [35] expressed the opinion that ‘… the view of the majority in Dacas was correct’. It was submitted by CAO nevertheless that the decision in Cable & Wireless was ‘not compelling’, in that the United Kingdom Court of Appeal once more did not address ‘the fundamental problem of intention to create legal relations as a threshold question’, or more precisely, to create a contractual relationship. In that latter regard, it was submitted by CAO that the Court of Appeal’s reasoning in Cable & Wireless was ‘out of step with the law in Australia’, exemplifying in that regard Ermogenous and Teen Ranch, and in any event, that the decision in Cable & Wireless was of little relevance to the present case because of what was described as its vastly different factual circumstances.
The factual context to Cable & Wireless was different and more complex than in Brook Street, and needs to be explained in some detail in order to provide an adequate understanding of the nature and extent of the issue which there arose for resolution, and any conceivably comparable context to that involved in the present case. The respondent Mr Muscat had been engaged as an employee of a telecommunications specialist with a company called Exodus Internet Ltd (‘EIL’), when the company decided to reduce the number of its employees in order to facilitate a potential buy-out, but which nevertheless wanted to retain that worker’s services. EIL informed Mr Muscat that he would have to become a so-called contractor, and to provide his services through a limited company. His employment was thereupon terminated and a company named E-Nuff Comms Ltd (‘E-Nuff’) was set up to receive his pay and car allowance. About three months later, EIL was effectively taken over corporately by Cable & Wireless. Mr Muscat was described by Cable & Wireless within the context of its organisational structure nevertheless as an employee, and he was given accordingly an employee number. The cost of all of the equipment upon or with which he worked was paid by Cable & Wireless. Mr Muscat continued to submit invoices for his services provided in the name of E-Nuff. Since however Cable & Wireless considered Mr Muscat to have remained associated with it, though by then as a contractor, Cable & Wireless informed him that it would not deal with him directly, but that as in the case of all other contractors seeking to make arrangements for the provision of their services to Cable & Wireless, he would have to engage with Cable & Wireless through an agency entity called Abraxas plc, which had been retained to supply contracted personnel to Cable & Wireless. On 13 August 2002, E-Nuff (at least implicitly at Mr Muscat’s direction) entered into a contract for services in favour of Abraxas, which included as a retrospective element the period of time up to when Mr Muscat became aware of the requirement for him to deal with Cable & Wireless per medium of Abraxas. It was that contract for services which was described as crucial to the resolution of the Cable & Wireless proceedings, in that it was the case of Cable & Wireless that such contract for services changed the status of Mr Muscat from that of its employee. Subsequently in late November 2002 Cable & Wireless informed Mr Muscat that it would no longer require his services and on 31 December 2002 he ceased work directly or indirectly (that is, purportedly per medium of E-Nuff and no longer by himself directly) for Cable & Wireless. In March 2003 Mr Muscat made a claim for compensation upon Cable & Wireless for unfair dismissal. Cable & Wireless contended in response that Mr Muscat was not its employee, but that contention was rejected, it being found that Mr Muscat held an implied contract of employment with Cable & Wireless. The notion of implied contract of employment had been postulated by Mummery and Sedley LJJ in Brook Street.
The unanimous judgment of the United Kingdom Court of Appeal in Cable & Wireless was acknowledged by CAO to have established, on the facts of that case, that the contention of Cable & Wireless that Mr Muscat was not its employee was not sufficiently compelling, in the light of the circumstances that:
(i)Mr Muscat had been told by Cable & Wireless, after having subsequently worked for it per medium of his company E-Nuff under what was accepted by the Court of Appeal to be an employment contract, that Cable & Wireless did not deal with contractors, and that he would therefore have to deal with it in the future through Abraxas;
(ii)Mr Muscat was given no choice other than to deal with Cable & Wireless through Abraxas, or else submit to the termination of the relationship which had been more recently brought into existence, and to sue for the monies he was by then owed;
(iii)Cable & Wireless was obliged to provide Mr Muscat with work and he in turn was obliged to attend the premises of Cable & Wireless and to do the work of a telecommunications specialist, subject to the direction and control of its management;
(iv)Mr Muscat arranged with the Cable & Wireless management for the taking of his leave, and that company provided equipment to him and paid his telephone accounts; Cable & Wireless also provided him with an employee number; before the agreement with Abraxas was entered into, Cable & Wireless had been under an obligation to make payment to Mr Muscat, but that it had imposed the arrangements under which Mr Muscat became thereafter required to deal with Cable & Wireless per medium of Abraxas;
(v)in relation to the formation of the Abraxas contract, the only change thereby effected was that Mr Muscat became ‘paid’ by Abraxas; otherwise there was no express or implied termination of the arrangement between Mr Muscat and Cable & Wireless.
CAO submitted that ‘[it] is obvious that the case presented by Cable & Wireless was unattractive and even contained elements essential to the company’s success but which were plainly unsupportable’. CAO contended however that nothing said in Cable & Wireless would suggest the result in the present case that each of the applicants were CAO’s employees. There was no factual similarity of relevance between the circumstances of the present litigants and those of the parties to the Cable & Wireless restructured relationships. So much at least would seem to be correct, in that putting aside debate concerning the notion of implied contract of employment, the present circumstances did not involve any endeavour to restructure an existing employment relationship into a framework of labour hire which would no longer supposedly have the formal characteristics of any prior existing employment.
The concluding observations of the United Kingdom Court of Appeal in Cable & Wireless at [54] may therefore be conceivably pertinent to the approach which the courts may take in Australia in circumstances involving an employer’s endeavour to alter an originally established relationship from that of a conventional contract of employment of a natural person to that of some form of principal and agent, such as was sought unsuccessfully to be achieved in Damevski (ante), but they have no sufficient connection to the circumstances of the present case, which involve no such alteration to the status quo of an employment relationship in favour of a natural person established in the conventional way, but rather the structure of genuine labour hire arrangements undertaken from the outset at arm’s length.
Conclusions
Subsequent to the hearing of the oral evidence in the proceedings, which had taken place over four hearing days, the parties provided the following extensive written submissions:
(i)applicants’ written submissions in chief comprising 43 pages filed on 16 October 2006;
(ii)CAO’s written submission in reply comprising 59 pages filed on 27 October 2006;
(iii)applicants’ written submissions in reply comprising 10 pages albeit of compressed word processing filed on 3 November 2006.
The parties made oral submissions to the Court on 20 and 21 November 2006 though largely by way of amplification of the written submissions.
Each of the parties has provided to the Court extensive references to the evidentiary material placed before the Court and comprehensive written submissions supplemented by oral submissions. Apart from material comprising common ground and recorded at the threshold of these reasons at [1]-[10], the parties have mutually agreed upon numerous matters contextual to the relationship and dealings between each of the applicants and MES and separately with CAO, and also between MES and CAO discretely, which matters have been recorded comprehensively at [11]-[19]. The formal circumstances additionally recorded at [20] and [22] were not in issue and were in any event duly established. The relief sought by the applicants, and wholly put in issue of course by CAO, is set out at [21].
The parties are in agreement as to what may be described as the ultimate issue arising, that being whether each of the applicants on the one hand, and CAO on the other, were placed in an employment relationship inter se at the material times, which of course the applicants asserted CAO put in issue. Relevant to and on CAO’s contention discretely critical to the resolution of that ultimate issue is whether each of the applicants was placed in a contractual relationship with CAO at any material time, which CAO further of course put in issue. Apart from the existence of the so-called ‘Employment Undertaking’ signed by Mr Wilton and provided to MES as set out at [15] above, each being implicitly predicated upon the signatory being ‘placed for casual work on a [MES] client’s work site’, and upon documents not dissimilar in effect signed by Mr Cumberland and provided also to MES as set out at [19 (iii)] above, which documents reflected relevantly the records kept and maintained by MES, and did not apparently contradict any records maintained by CAO, a critical circumstance was that MES alone remunerated each of the applicants at the material times in relation to the provision of their labour to CAO, and did so in line with the apparent structure of so-called labour hire arrangements.
That MES and CAO were engaged together contractually by way of such labour hire arrangements was established formally by at least by the time of their entry into the comprehensive Supply Agreement in 2003, whereby persons retained by MES, such as the applicants, were placed by MES on labour hire with CAO. The formation of that Supply Agreement took place against a background at least inferentially of prior labour hire arrangements existing between MES and CAO. The applicants’ threshold or preliminary contention to the contrary, purportedly based on their commencement of work for CAO at the HVO prior to the formation of that Agreement, should be plainly rejected as untenable (see [10] above). Prior to the taking effect of the Supply Agreement, the essence of the arrangement in operation between those two entities, apparently for some considerable time, was that each of the applicants was involved physically in the open cut mining undertaking conducted by CAO in the HVO under the auspices of labour supply arrangements in operation historically as between MES and CAO, whether on an ad hoc basis or more formally. So much is readily apparent at least from the circumstances I have recorded for instance at [11] above, which, as I foreshadowed, became subsequently reduced to writing to the extent set out at [15] in the case of Mr Wilton and at [19 (iii)] in the case of Mr Cumberland.
Moreover those evolving circumstances of labour hire in relation to the applicants ultimately so recorded in writing were augmented by further arrangements subsequently put in place by MES, such as payment by MES of the applicants’ superannuation and taxation instalments out of their respective earnings derived from and paid by MES, and the absence of availability of work for the applicants at CAO’s Coal mining operations in the HVO, and hence of remuneration from MES, in times of inclement weather or machinery breakdown. MES characterised each of the applicants in its records as engaged accordingly in casual or temporary employment. CAO made payment accordingly to MES direct of the charges for labour hire raised and invoiced by MES to CAO in respect of each of the applicants, without any deduction therefrom for income tax or superannuation, and did so at rates calculated to cover not only all costs inclusive of salaries sustained by MES related to its employment of the applicants, but additionally to provide a profit element for MES in respect of the exercise of its business operations of labour hire. Workers made available on hire by MES generally, such as the applicants, became thus available to CAO, and apparently to other mining employers engaged in Coal mining for instance in relation to mining companies operating in the Hunter Valley upon the basis of labour hire.
In a separate segment of these reasons for judgment, I sought to catalogue various matters regarding to those circumstances appertaining to the applicants, under the heading ‘Circumstances beyond the scope of evidentiary common ground – the operation of the mining equipment of CAO by the applicants and related matters’. None of those labour hire circumstances created individually or cumulatively a relationship between either of the applicants of the one part and CAO of the other part which could be rightly described as one of employment by CAO of either of the applicants, being employment according to the general law. The fact that each of the applicants undertook similar working duties and functions to many CAO directly retained and remunerated workers who were indisputably employees of CAO according to the general law, is not sufficient to indicate or require by any extent of analogy that the hired workers provided by MES to and thereby engaged by CAO should be relevantly characterised as employees of CAO. Aside from the labour hire character of the arrangements the subject of the Supply Agreement made between CAO and MES, reflecting labour hire arrangements not dissimilar to those described by various authorities I have cited, and in particular the Australian authorities, it may be rightly borne in mind that there is nothing unusual or enigmatic in the circumstances such as appear to have prevailed in the HVO where CAO at all material times has conducted Coal mining operations, that persons the subject of labour hire might be engaged in working actively alongside or otherwise in association with undisputable employees of the business entity which has engaged contemporaneously other workers by way of labour hire from third parties such as MES.
Nor does it make any difference of significance that by reason of statutory regulation of the physical conduct of segments of mining work by miners, and in particular Coal miners, any consequences should operate differently to what I have foreshadowed above to be the case. As I have emphasised already, much of the regulation I have identified is directed at least to issues of safety in relation to persons engaged physically in mining work, whether as an operator of mining machinery or as a person who may otherwise be present in the precincts of any such operations. It is apparent that safety concerns have been the reason for promulgation of many aspects of the regulations which I have either identified and/or additionally extracted, irrespective of the employment relationships inherently involved. The circumstance that the applicants worked shoulder to shoulder with CAO acknowledged employees, being employees thus appearing on the CAO employment payroll, is thus of no present consequence.
Significance was further sought by the applicants to be assigned to CAO’s management, and in particular as to management’s alleged discipline of each of the applicants, whereof evidence was adduced by the applicants, being management and discipline seemingly indistinguishable in principle, or at least largely so, from that in force for the time being in relation to CAO’s mining workers acknowledged to be in CAO’s employment. I have outlined the evidentiary material relied upon by the applicants in that regard, and the asserted ascription on the part of the applicants of relevance thereto said to be a factor pointing to an employment relationship in relation to each of the applicants. It is not foreign to or inconsistent with any such operational structure, whether as here involving mining with heavy machinery, or otherwise, that CAO took the purported disciplinary action that it did in relation to the alleged worksite misconduct on the part of Mr Cumberland complained of by CAO, given especially CAO’s evident perception, rightly or wrongly objectively speaking, of the physical danger thereby caused by his operation of CAO’s heavy machinery. In that regard I have already acknowledged the force of CAO’s submissions. I have earlier at least inferred that the applicants’ purported reliance upon The Queen v Foster needs to be discounted or else rejected in contexts of labour hire circumstances such as are here involved.

As to the controversial notion of implied relationships of employment and the significance thereof adopted by the two substantially concurring members of the United Kingdom Court of Appeal in the labour hire context of Brook Street, I would conclude, as I have foreshadowed earlier in these reasons, that there is no good reason for any imputation to the present circumstances of any such notion, assuming that notion to be rightly cognisable in the general law of Australia, to the extent and for the purpose indicated in the Brook Street context of labour hire arrangements, being an association which I think to be at best doubtful.
It follows therefore, from what I have thus far concluded in relation to the applicants’ submissions, that there are doctrinal obstacles of significant judicial precedent cognisable by the general law of Australia which stand in the way of recognition of any entitlement to the grant of the relief sought in the present proceedings. That is not to say of course that a contract of employment, whether oral or in writing, may not contain implied terms, and indeed such would I imagine normally or often be the case. Where the difficulty largely lies, as exposed by the traditional approach taken by the third judgment in Brook Street, is in imputing any implied contract of employment in circumstances of labour hire, that being a transaction which inherently constitutes dual contractual arrangements, one being between the provider of the hired worker and the hired worker, and the other being between that provider of the hired worker and a third person who hires the second-mentioned person from the labour hire provider in order to obtain the performance of work from such hired person. The implications relevantly of labour hire postulated in the reasons for judgment of Merkel J in Damevski at [174], as outlined in what is extracted in [34] above, are in my opinion apposite to the present context.
Moving then to the submissions of CAO, outlined at [110] above, which put forward five reasons why a concluding inference is not open to be presently drawn as to satisfaction by the applicants of the existence of any contractual relationship between itself and each of the applicants. I would conclude that each such reason so propounded by CAO has been duly established. CAO is correct in its contention as to the absence of discussion, much less of agreement, whether oral or in writing, between CAO and either of the applicants, concerning remuneration or other essential conditions of employment. Those CAO submissions were directed of course to the need for satisfaction by the applicants of requirement for the characterisation of an employment relationship having regard to an established contractual relationship (see again [24] above).
To those circumstances may be added the four reasons set out in [117] above as demonstrative of and consistent with objective perceptions or intentions of each of the applicants as to an absence of his involvement in any contractual relationship with CAO consistently I think with the principle said to have been acknowledged in Australian Broadcasting Corporation. Moreover the further circumstances concerning the applicants enumerated at [120] are I think indicative of and consistent with the absence of a contractual relationship of employer and employee at all material times as between each of the applicants as an employee of the one part and CAO as the employer of the other part. Conversely, each of the matters enumerated in [122] and [123] above exemplify circumstances to the effect that CAO was privy to a contractual arrangement with MES for the supply to CAO of labour for reward to MES of persons (such as the applicants) engaged by MES to undertake mining work at the CAO mining operations conducted in the HVO, being work involving of course the operation by such persons of the mining machinery of CAO.
I am further of the view that CAO is correct in its postulation that each of the matters enumerated at [124] above demonstrate not only a lack of sufficiently compelling indications capable of bearing upon the existence of an employment relationship between CAO and the applicants, but indeed serve to evince the converse. Explanation is thereby implicitly provided as to why there was no requirement for CAO to enter upon, and moreover why it did not enter upon, any contract of employment with either of the applicants, and why CAO never recorded in any documentation the existence of any relationship of employment as between itself and either of the applicants.
I would therefore conclude that CAO is correct in its contention that in substance and reality, each of the applicants entered into a contractual relationship with and was employed by MES according to the general law at all material times, and that the applicants’ respective attendances at the HVO to perform mining work, albeit for the benefit of CAO as a major operator in the HVO, as well as in a commercial sense for MES in the context of its business of labour hire, did not constitute or involve explicitly or implicitly any offer of employment by CAO to either of them, nor any acceptance by either of them of any offer of employment by CAO, explicitly or implicitly. The work which each of the applicants undertook in the HVO was undertaken by way of labour hire in the context of their respective employment functions undertaken contractually for MES, and thereby as employees of MES alone according to law. CAO’s citation of Swift Placements in that context of labour hire precedent was appropriate.
Apart from an absence of evidentiary circumstances indicative explicitly or implicitly of any relationship according to law of the employment by CAO of either of the applicants at any material time, there are further factors and reasons which serve to demonstrate why the applicants’ case for establishment of any employment relationship between themselves and CAO should fail.
There is force in the additional submissions of CAO, appearing under the heading ‘Mutual assent analysis’, contextually to a threshold acknowledgment of the principle that a viable contract of employment existing by mutual assent may be recognised by law in circumstances where the traditional analysis of offer and acceptance is inappropriate. For the reasons advanced however by CAO, and appearing in [126]-[128] above, I agree that the kind of circumstances in which a contract has been imputed by judicial precedent to exist in contexts yielding a conclusion of mutual assent are removed from the circumstances in evidence in the present litigation.
I further agree moreover with the contention of CAO that the fact that CAO exercised a measure of control over the activities of each of the applicants on the HVO sites of their respective physical engagements, to the extent relied upon by the applicants in their submissions, duly reflected the contractual arrangements prevailing between the applicants as employees and MES as employer that they would accept and obey the lawful and reasonable directions of CAO when given in the circumstances or kind of circumstances recorded in [130] above. Any such arrangement would be expected to subsist in labour hire arrangements generally.
There remains for consideration the implications of the aspects of the conduct and functions of the respective parties undertaken in the context of what may be described as the totality of the relationship between the parties to this litigation and the working out thereof. That notion has been substantially addressed already in these reasons, but it is necessary or appropriate to conclude additionally upon the evidentiary material addressed in the context of the invocation of authority undertaken by CAO in its comprehensive treatise reproduced by way of overview of the conduct and functions of the respective parties in the segment commencing at [132] of these reasons. In so doing, I would keep in mind what was pointed out in Roy Morgan Research at 5074 (ante) as to ‘… obtaining the overall picture from the accumulation of detail’, and ‘the overall effect of the detail, which is not necessarily the same as the sum total of the individual details’.
I think that CAO is correct in its comprehensive case advanced, in a sense in the alternative, to the effect that the conduct and functions of the respective parties were not otherwise indicative of an employment relationship between the applicants and CAO, having regard to the totality thereof, and having regard in particular also to the criteria apparent from the authorities to which I have already referred, inclusive in particular of Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton, keeping in mind in so doing that it is labour hire arrangements that are here inherently involved. I would acknowledge the relevance and force of all of the factors formulated in [135], each having varying significance without each being determinative in any fulfilment of the need for undertaking a balancing exercise in relation to all relevant factors bearing upon resolution of the principal issue arising as the existence or otherwise of relationships of employment. I would further acknowledge the prospective operation, in cases such as the present, of the principles enunciated generally in Mason and Humberstone, as well as perhaps more specifically in Drake, and additionally of course in Forstaff where reference to and examination of authority is undertaken by way of focus on labour hire arrangements.
Adopting the broad approach mandated by those authorities, which I have of course earlier recorded or reviewed to an extent, I am of the opinion that the submissions of CAO in its approach to the notions of control, direction, supervision and exercise of discipline in the context of approaching and evaluating relationships of relevance generally, and as reflected in the particular circumstances of the case, and yet further as comprehensively summarised by CAO in [142] of these reasons, are soundly conceived in principle and in its analysis and summary of the facts and circumstances relevantly the subject of the proceedings. Moreover the further catalogue of circumstances propounded by CAO, and summarised in [144] above, demonstrate in outline the functions appropriate and necessary to be put in place in a labour hire context relating to Coal mining, and which do not necessarily operate of course wholly in the aggregate. Those circumstances do not in my opinion impute the existence of any employer/employee relationship in the context of the labour hire operations appertaining to the circumstances relevantly of either of the applicants.
Finally I would add that I am persuaded that the accumulation of the so-called ‘[o]ther factors’ formulated and propounded by CAO in the segment of these reasons appearing in [149]-[156] comprise, as I have there foreshadowed, a further formidable accumulation of evidentiary material supportive of the CAO case as to the absence of any employment relationship having subsisted at any material time between itself and either of the applicants.
For the foregoing reasons which I have summarised, and in the light of the totality of the matrix of facts and circumstances which the respective parties have invited me to address, I have reached the conclusion that CAO must succeed and that the application must therefore be dismissed.

I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.
Associate:
Dated: 15 May 2007

Counsel for the Applicants: S Crawshaw SC and A M Slevin

Solicitor for the Applicants: Slater & Gordon

Counsel for the Respondent: J N West QC and A B Gotting

Solicitor for the Respondent: Freehills

Date of Hearing: 25, 26, 27, 28 September 2006 and 20 and 21 November 2006

Date of Judgment: 15 May 2007

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 565 OF 2005

JUDGE:	CONTI J
DATE OF ORDER:	15 MAY 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 565 OF 2005

JUDGE:	CONTI J
DATE:	15 MAY 2007
PLACE:	SYDNEY

Counsel for the Applicants:	S Crawshaw SC and A M Slevin
Solicitor for the Applicants:	Slater & Gordon
Counsel for the Respondent:	J N West QC and A B Gotting
Solicitor for the Respondent:	Freehills
Date of Hearing:	25, 26, 27, 28 September 2006 and 20 and 21 November 2006
Date of Judgment:	15 May 2007