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[Extract from Queensland Government Industrial Gazette,

dated 21 January, 2005, Vol. 178, No.3, pages 75-78]

INDUSTRIAL COURT OF QUEENSLAND

Worker’s Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate

Margaret Green and Q-COMP Review Unit (No. C49 of 2004)

PRESIDENT HALL 11 January 2005

DECISION

On or about 1 May 2003, the Appellant attended at the premises of Pioneer Concrete at Coopers Plains. She did so to deliver a mail bag in the course of discharging her obligations as a contract carrier with TOLL Transport Pty Ltd (hereafter TOLL). She injured her right shoulder and her right arm. She claimed benefits under the WorkCover Queensland Act 1996. By a letter of 7 August 2003, WorkCover Queensland rejected the application. The Appellant sought a statutory review. On 13 October 2003, Q-COMP confirmed the decision of WorkCover Queensland to reject the Appellant’s claim. There was then an appeal to the Industrial Magistrate. There was but one issue before the Industrial Magistrate. The issue was whether the Appellant was a “worker” within the meaning of that word at s. 12 of the Act on the date of her injury. The case of the Appellant was that she was a worker:

(a) because she worked under a contract of service, and, in the alternative;

(b) because she worked under a contract substantially for labour only.

The Industrial Magistrate dismissed the appeal. It is the decision of the Industrial Magistrate which is the subject of the appeal to this Court.

It must be stressed that whilst the appeal to this Court is by way of rehearing on the record, it is not by way of a second chance trial. This Court will only intervene where the Industrial Magistrate is shown to be wrong, i.e. this Court will not go behind decisions which were reasonably open to an Industrial Magistrate; see generally WorkCover Queensland v Alcorn (1997) 156 QGIG 568 and P & O Ports Ltd v Q-Comp (2004) 177 QGIG 388.

The agreement between the Appellant and TOLL which purported to govern her engagement was reduced to writing. Paragraph (c) of the first substantive page of the agreement provides:

“Each contract carrier will be in the business of providing transport services to the company as an independent contract carrier.”.

Clause 17 of the agreement provides:

“The company and the contract carrier agree that the legal relationship between the company and the contract carriers is that of principle and independent contract carrier and not that of employer and employee and no term of this agreement shall be construed as creating a relationship of employer and employee between the company and the contract carrier.”.

Such clauses are not decisive Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at paragraph 58 per Gleeson C J, Gaudron, Gummow, Kirby and Hayne JJ. But they are a convenient starting point.

It is a first plank of the Appellant’s case that the Industrial Magistrate gave too much weight to the terms of the contract and gave inadequate weight to the exercise of control by TOLL and the circumstance that the Appellant’s position was entirely comparable to that of a “company driver”. With respect, it seems to me to be self evident both from the authorities to which the Industrial Magistrate referred, from His Worship’s language and the matters which His Worship took into account and weighed, that the Industrial Magistrate was conscious that the Court was not to be overwhelmed by a cloud of words and was to examine the reality of the relationship between the parties including the systems adopted and the work practices imposed by TOLL.

In this case both the substantive terms of the agreement and its implementation indicated that the Appellant was not an employee. The Appellant was required to and did provide and maintain a motor vehicle, not merely to travel to work sites, but in order to discharge the duties of a courier. She was required to and did keep it insured under a comprehensive policy of insurance. She was required to and did maintain a public liability policy and was encouraged to maintain a personal sickness and accident policy (and for a period did). The Appellant was paid on presentation of an invoice (admittedly by filling in a form prepared by TOLL) recording her services. She had registered for GST and held an Australian Business Number. A GST Component was added to the tax invoices. She completed a business activity statement. She submitted personal tax returns which she claimed the expenses of operating the vehicle as a business expense. The Appellant was entitled to use and had used a replacement driver. In such cases she invoiced the company as if she had performed the services and paid the replacement driver cash in hand. No tax was deducted from the payments made by TOLL to the Appellant under the invoices. No provision was made for paid holidays or rostered days off and the Appellant did not receive same.

The Appellant had an identity tag which identified her as being a contract driver. Apart from business related telephone calls which were reimbursed by TOLL, the Appellant was required to and did meet all outgoings associated with her business. With respect to the Appellant’s submission that the Industrial Magistrate failed to consider whether the Appellant was conducting a genuine independent business, it seems to me that on the indicia (to which the Industrial Magistrate did refer) no other conclusion was reasonably open; notwithstanding that she acquired no goodwill and had nothing to sell.

It is plain that the Industrial Magistrate took into account that TOLL exercised significant control over the Appellant. His Worship summarised the evidence as follows:

“The strongest indicia of an employee/employer relationship is the high degree of control by Toll. The appellant has a set schedule of pick-ups and deliveries as per the run sheet included in Exhibit1. In her affidavit she said she worked from 5.45 a.m. to 9.45 a.m. and from 1.30 p.m. to 6.15 p.m. Monday to Friday excluding public holidays with a few daily variations as determined by Toll. These client services of Toll are called permanent recurring services for customers such as banks.

She’s also required to adhere to a code of conduct and wear the provided uniform of Apollo T-Shirt with the company insignia on it and black shorts. As well she is given a fairly basic photo ID which she mainly leaves in the car. She acquires no goodwill and cannot sell a run. She is guaranteed eight hours work per day and the contract is subject to two weeks’ written notice of termination by either part for no reason. This notice provision is more of a neutral indicator. Theoretically, she can do deliveries for other businesses outside of the above fixed hours but she chooses not to, citing practical difficulties like the company’s decal on her vehicle and the required fixed hours.”. [emphasis added]

The Appellant complains that the Industrial Magistrate should have found that there was a “very high degree of control” exercised by TOLL. The factors pointed to it was said to include:

“8.1 Requiring the appellant to be available on all days and hours to complete the transport services in accordance with the agreement [clause 2.3 of the agreement];

8.2 Toll reserving the right to approve the motor vehicle used by the appellant [clause 2.4 of the agreement];

8.3 Requiring that the vehicle be kept in a secure/locked condition whilst unattended and being kept weather-proof [clause 2.5 of the agreement];

8.4 Requiring the appellant to hand in completed consignment notes and other papers and ensure that keys were secured in a designated place in the depot operations area [clause 2.9 of the agreement];

8.5 Requiring drivers to carry out counts or compile statistical data concerning the runs [clause 2.9 of the agreement];

8.6 Limiting the amounts of time for which carriers can be unavailable (four weeks per hear) [clause 5 of the agreement];

8.7 Providing Toll with the power to approve or disapprove replacement drivers [Green, paragraph 13];

8.8 Requiring the drivers to adhere to a code of conduct [clause 2.2.11 of the agreement];

8.9 Requiring the appellant to adhere to a strict timetable concerning the deliveries and pick-ups [Green, paragraph 22];

8.10 Requiring the appellant to comply with Toll’s instructions on a day-to-day basis;

8.11 Requiring the appellant to work the hours stipulated by Toll [Green, paragraph 19];

8.12 Requiring the appellant to apply to Toll if she required time off and Toll be able to refuse;

8.13 Being required to wear Toll’s uniform and affix Toll’s decal to the vehicle [clause 9 of the agreement].”.

In fairness to the Industrial Magistrate I should point out that the matters at paragraphs 8.1, 8.6, 8.7 and 8.13, whilst not referred to in the course of the discussion of “control” are referred to elsewhere in the Industrial Magistrate’s decision.

More importantly, Industrial Magistrates are not required to transcribe the whole of the evidence. It is sufficient for an Industrial Magistrate to make the material finding of fact, viz “high degree of control”, and flesh out the finding with examples. Neither do I consider the omission of the adjective “very” to indicate that the Industrial Magistrate underestimated the extent of TOLL’s control. In that regard I notice that His Worship observed:

“The Appellant’s case for a finding of a contract of service is stronger than that which was rejected in Daykin.”.

The reference is plainly enough to Daykin v Neba International Couriers and Anor [2002] WASCA 213, another courier case, where after setting out the system of work, the Full Court of the Western Australian Supreme Court adopted the observations of Fullagar J in Wright v Attorney General for the State of Tasmania (1954) 94 CLR 409 at 417:

“If de facto exercise of control is relevant in the case where the contract is so clear, it seems enough to say that the only directions given were directions to produce a result – and not as to the detailed manner in which the result was to be produced.”.

I agree with the Industrial Magistrate that in this case the control exercised by TOLL went beyond direction to produce a result and, with respect to counsel form TOLL who was granted leave to be heard, cannot be explained away because of the need to maintain security where cheques were carried from banks to clearing houses. I adopt the observation of the Industrial Magistrate:

“In the case before me there are strong indicia favouring a designation of both employee and independent contractor.”.

The case is a borderline one and, as the Industrial Magistrate recognised, the factor favouring the conclusion that the Appellant was an employee was the extent of TOLL’s control.

In attaching significance to the obligation of the Appellant to maintain the vehicle and enter into appropriate insurance policies, one must not leave out of sight that the Appellant was providing the vehicle itself. The Appellant, who had worked as a courier for some time, had acquired and was using a vehicle to earn a living. Because of the way in which TOLL had structured its business, it could be conducted only if the couriers provided vehicles. The remuneration paid by TOLL to the Appellant contained a substantial element to recognise the provision of a properly maintained and insured vehicle. I accept that if TOLL had used bike riders as couriers and the Appellant had provided a bike, Hollis v Vabu Pty Ltd (2001) 207 CLR 21 would be clear guidance about the relationship and the Appellant would in all probability be held to be an employee of TOLL. But as the Industrial Magistrate noted a motor vehicle is a much more expensive item of equipment and “when a person has to provide equipment such as a motor vehicle, the conventional view is that the person is not an employee”, Hollis v Vabu Pty Ltd; ibid, at paragraph 50 per McHugh J. (See also paragraphs 22 and 47 per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ.). And see generally Daykin v Neba International Couriers [2002] WASCA 213 and TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3NZLR 681.

Counsel for the Appellant seeks to rely upon a representation made to the Appellant by the previous proprietor of the business now conducted by TOLL. It is contended that a supervisor told the Appellant and other couriers that there was no longer a need to maintain a personal sickness and accident policy because that proprietor had commenced to cover them. It is said that the effective representation was either to vary the Appellant’s agreement with TOLL or to bring into existence a collateral contract and that the agreement is varied (or the collateral contract) showed what the previous proprietor and the Appellant thought of their relationship. It was contended (rightly) that TOLL had engaged the Appellant on terms no less favourable in the aggregate than the terms on which she had been engaged by the previous proprietor.

Having been taken to the Transcript, I detain little doubt that there had been a discussion (or discussions) of which the Appellant was aware in which the continuing need for accident and sickness insurance (because of the changed role of the previous proprietor) was canvassed. However, I am quite unable to identify any evidence at all on which a conclusion might be reached that the discussions involved a person authorised to make promises on behalf of TOLL’s predecessor or representations binding upon TOLL’s predecessor. (And I notice that the Industrial Magistrate made no such finding.)

There is the further difficulty that such a representation would be entirely ambiguous. It can well be taken to mean that because of a change in the Law, and there was a material change to the WorkCover Queensland Act 1995 during the currency of the Appellant’s engagement with TOLL’s predecessor, the Appellant had become entitled to protection under the Act though she was not a worker. On an appeal in which the only issue was whether or not the Appellant was a “worker” within the meaning of the Act, such a representation would be of no relevance.