Country Metropolitan Agency Contracting Services Pty Ltd v Slater and WorkCover/CGU Workers Compensation Insurance (SA) Pty Ltd [2003] SAWCT 57

COUNTRY METROPOLITAN AGENCY CONTRACTING SERVICES PTY LTD

1. He found that the respondent was not deceived or coerced into agreeing a description of a relationship against her will and that she "knew what a relationship of independent contractor entailed and she voluntarily entered into it" (par 46).
2. As to the issue or indicia of the "right of control" the learned Deputy President cited Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 per Mason J, and noted that the respondent was not working at the appellant’s premises; that the appellant did not supervise her; and that apart from her initial recruitment and her receipt of money from the appellant and advice that her services were no longer required, she had nothing to do with it (par 47).
3. The learned Deputy President considered the authorities of Market Investigations v Minister of Social Security [1969] 2 QB 173 and Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104. He categorised or described the appellant as "an unskilled labourer looking for work". He ultimately concluded that apart from the description of independent contractor there was nothing about the respondent’s enterprise that would warrant such a conclusion, and that applying a "common sense evaluation of all the relevant facts" found that the appellant was the respondent's common law employer.
4. The arguments advanced by counsel on the appeal are canvassed in the judgment of Deputy President Judge McCusker and we do not propose to recite them again in these reasons.
5. For our part it is appropriate to begin by noting that the appeal is one pursuant to s 86(1) of the Act which provides that "An appeal lies on a question of law". The first matter that must be addressed then is, do the arguments advanced by the appellant on the appeal give rise to a question of law? What is in issue on the appeal in essence is whether at the material time the arrangement (to use a neutral term at this stage) was a contract of employment within the meaning of the Act. Although bandied about often enough, the term "contract of employment" is not one of common understanding but rather is a concept of special meaning in a particular statutory context. In these circumstances in our respectful view whether the facts found by the learned Deputy President at first instance satisfy the statutory term is a question of law; Vetter v Lake McQuarie City Council (2001) 202 CLR 439, per Gleeson CJ, Gummow and Callinan JJ at 450, 451.
6. Given that a question of law is involved, in order to succeed on the appeal the appellant must establish that the learned Deputy President at first instance erred as a matter of law. This involves more than persuading the appellate Tribunal that faced with the same factual situation it would have come to a different conclusion. In order for the appellant to succeed, it must be established that "the true and only reasonable conclusion contradicts the determination" Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 36 per Lord Radcliffe. If the question is one of degree upon which different minds may take different views then no error of law has been demonstrated; Williams v Bill Williams Pty Ltd (1971) NSWLR 547 per Mason JA at 557.
7. This general approach has been adopted by this Tribunal in South Australia Police Department v Barber [2001] SAWCT 100 where the majority said:-

"Parliament has seen fit to create the facility of appeal but it has also seen fit not to create the conventional form of review following a hearing, namely an appeal on fact and law, nor has it seen fit to allow the Supreme Court the right to review decisions of the Tribunal in the way in which that Court was permitted under the former regime."

…

"We do not think that it was parliament’s intention for the Full Bench in exercising its appeal powers to evaluate for itself the evidence and to substitute its own findings for those reached below because it happens to disagree with them. We think that parliament intended the Full Bench to simply identify whether there was any evidence to support the findings made below and if there was, for the matter to be left at that.

As to the application of the law to the facts as found, we do not think that parliament intended for the Full Bench to interfere with a decision under appeal simply because it might have reached a different conclusion. Reasonable minds can differ as to a great variety of issues arising under the Act …"

…

"In our view the history of the relevant legislation, the dispute resolution process that parliament has seen fit to create, and the terms of the Act itself, indicate that parliament envisaged that the trial presidential member alone is charged with the duty of finding the facts and applying the law to the facts as found. We think parliament intended for the Full Bench’s role to be limited to determining whether there has been a misunderstanding of legal principle, or an error as to the proper construction of the Act or of some other legislative enactment. If none of these matters are involved, we think that parliament’s intention is for the Full Bench to let the decision made below stand. In other words, if there was some evidence to support the findings made or some basis to conclude that the findings did or did not fall within the relevant statutory provision, that has not been shown to have been misunderstood by the trial presidential member, the Full Bench has no right to interfere with the result.

By giving pre-eminence to the findings and conclusions reached at first instance, parliament is making it clear to the parties that if they take a matter to trial, absent an error of law, the decision of the presidential member will be final and that this is a factor that will have to be taken into account in deciding whether or not to make or accept or reject an offer of compromise.

In this case, there was evidence to support the ultimate finding that was made by the learned Deputy President. It is true that there was a substantial body of contrary evidence. But the best that can be said is that a different result may have been reached. That being so, we have no right to interfere. The appeal must be dismissed."

8. This approach in Barber has been endorsed in the Full Tribunal decision of WorkCover/Mercantile Mutual (SA Workers Compensation) Ltd (Australian Medical Deputising Service) v Goh [2002] SAWCT 101.
9. It is apparent from the observations and findings of the learned Deputy President set out earlier in these reasons for decision (par 6, par 9 and par 10), that he addressed his mind to and made factual findings in relation to relevant matters including the indicia that pointed towards an independent contractor relationship and those which were consistent with an employment relationship between the respondent and the appellant. In relation to the latter, we reiterate that his findings were :-

24. In addition to the "Agreement to Contract" set out in the previous paragraph, there was other paperwork dealt with at the same time (par 10 of the learned Deputy President’s reasons for decision). The respondent completed a questionnaire in connection with personal accident insurance, signed a request to be included within the Public Insurance Policy arranged by the appellant, signed a request to have income protection under a policy provided by the appellant and acknowledged she had attended an occupational health, safety, equal opportunity and anti discrimination briefing conducted by the appellant. The briefing in fact never occurred. Rather the respondent was supplied with briefing sheets. She was handed a booklet explaining the arrangement which she took home with her (trial tr at 93, 97, Exhibit R12, AB Vol 3 at 41).
25. Findings were made by his Honour regarding the situation at the work site. The workers at Chiquita fell into two categories. Those employed directly by Chiquita and those falling into the respondent’s category, introduced to the work through the appellant. Apart from the respondent supplying her own gloves all equipment such as a Stanley knife, clay paste, trolleys, boxes and broom were supplied by Chiquita. The respondent said some of her work was faulty but no deduction was made on that account and she was not required to repair the damage she caused. She worked regular hours starting and finishing as Chiquita directed. Her treatment by Chiquita resembled the treatment of its own employed workers (par 16, 17 of learned Deputy President’s reasons for decision). Chiquita did not want any obvious differentiation to be made between the two groups.
26. The appellant set the rate of remuneration (par 18 of learned Deputy President’s reasons for decision). The difference between the amount the appellant paid the respondent and the amount the appellant charged Chiquita included the amount of the gross profit taken by the appellant. Out of the respondent's earnings came the amount of the public liability insurance premium and the income protection insurance premium. A timebook was supplied by the appellant located at the Chiquita site and the respondent was directed to make daily entries of starting and finishing times. It was endorsed by Chiquita and then, usually weekly, faxed to the appellant to be used to prepare the invoices. All payments were made to the respondent by the appellant.
27. His Honour considered the various submissions on behalf each party and then stated his conclusions in the following terms (par 45 - 49 of his reasons for decision):-

"45 There are a number of features of this case that suggest that the applicant was an employee. The applicant was not providing skilled labour or labour which required special qualifications. Like that (sic) facts in Vabu, the notion that the applicant and her colleagues working at Chiquita through CMA were running their own enterprises might fairly be regarded as ‘intuitively unsound’: Vabu (supra) at par 48. The applicant was paid by the hour. She had no capacity to delegate. Apart from her gloves she supplied nothing but her labour.

46 On the other hand, the applicant and CMA have described their relationship as that of contracting parties, not as employer and employee. They agreed to make no allowance for sick leave or any other form of leave. They made provision for insurance of the type that independent contractors might procure. They arranged their taxation on the basis that the applicant was an independent contractor. Contrary to what seemed to be suggested I do not think that the applicant was deceived or coerced into agreeing to a description of a relationship against her will. She knew what a relationship of independent contractor entailed and she voluntarily agreed to enter into it.

47 If the only contracting parties in the case were the applicant and CMA and the applicant was undertaking her duties at CMA’s premises, supervised by CMA’s employees, the case for her being an employee, despite the terms of the written agreement, would, in my opinion, be irresistible. The right of control that Mason J spoke of in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24 would have been so plainly evident that all other contrary factors would have subsided and paled into insignificance. But the applicant was not working at CMA’s premises. CMA did not supervise her. Indeed, apart from her initial recruitment, her receipt of money and advice that her services were no longer required, the applicant had nothing to do with CMA.

48 So we are left with some conflicting indicia and a lack of real control by CMA.

49 I do not pretend that this has been an easy case to decide. The submissions advanced by Ms Layton were very persuasive and many of the cases that she referred me to provided examples of similar factual situations being held not to involve contracts of employment. But in the end, whilst much was made in this case about the application or otherwise of the Odco case, important as the decision is, I do not think that it stands for any new principle of law, nor does it, in my view, stand for the proposition that whenever arrangements of that type are entered into, a finding that no contract of employment has been created is inevitable."

28. His Honour then cited (at par 50) the judgment of Cooke J in Market Investigations v Minister of Social Security [1969] 2 QB 173 at 184 - 5 including the following passage:-

"The observations of Lord Wright, of Denning LJ and of the judges of the Supreme Court suggest that the fundamental test to be applied is this: ‘Is the person who has engaged himself to perform these services performing them as a person in business on his own account?’ If the answer to that is ‘yes’ then the contract is a contract for services. If the answer is ‘no’, then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task."

29. Finally the learned Deputy President referred to the decision of Woodward J in Odco Pty Ltd v Building Workers Industrial Union of Australia (unreported Federal Court of Australia No 483, 24 August 1989) at par 265 - 9. He distinguished that case, one which concerned the construction industry, and concluded in the following terms (par 52 of his reasons for decision):-

"52 Apart from the description of independent contractor there is nothing about the applicant’s enterprise that points in that direction. She was not a free-lance tomato picker plying the skills of her trade on her terms. When it is all said and done she was an unskilled labourer looking for work, who took what work was on offer, on such terms as were offered, and when she did so, she was treated as you would expect an unskilled labourer to be treated, told when she could start, when she could finish, what work she was to perform and how she was to perform it.

53 Lack of control by CMA is an issue, but just as a labour hire company in the conventional sense can employ even though its supervision is lacking, the same can be said here. Moreover, as Kirby J said in Ermogenous v Greek Orthodox Church of South Australia [2002] HCA 8 at par 81:-

‘The nature of employment in contemporary Australia continues to undergo evolution. In Hollis v Vabu Pty Ltd, this Court explained that "control", the traditional indicium of the employment relationship, is only one relevant factor in determining the existence of an employment contract. Instead of having regard exclusively to considerations of "control", which may be less relevant to the variety of modern employment relationships, this Court took the view that it is necessary to consider the totality of the relationship between the parties.’"

30. Dr Jessup QC commenced by submitting this appeal raised a question of law (s 86(1) of the Workers Rehabilitation and Compensation Act 1986 ("the Act")). He contended the characterisation of the contract concerned a concept of law and not what might be called mundane fact (tr 4). He relied on the decision of Vetter v Lake Macquarie City Council (2001) 202 CLR 439. In that case the Court concluded that while the occurrence of a journey may be a question of fact, what the Act means by the word "journey" involves a question of law. More so, he argued, that must be the case with a legal artefact such as the contract of services. He also relied on what he contended was a necessary inference contained in Hollis v Vabu Pty Ltd (t/as Crisis Couriers) (2001) 181 ALR 263 at par 31, that the issue of whether or not a contract was a contract for employment was a proposition of law (tr 57).
31. Mr White QC countered by contending the case before us involved no controversy over the principles of law. They were properly identified by the learned Deputy President. The application of them to a given fact situation was a pure question of fact (tr 59). He referred to the decision of Rohrlach v Christianos (1980) 26 SASR 161 at 162 – 163 as supporting the approach that whether a question of law was being appealed had to be determined on a case by case basis. One could not contend that whether the contract was a contract of or for services was ipso facto a question of law. He referred to Swift Placements Pty Ltd v WorkCover Authority of New South Wales (2000) 96 IR 69 where the Court in Session dealt with a prosecution under the Occupational Health and Safety Act 1983 (NSW) predicated upon the subject person being an employee. The Court stated (at 71):-

"The question for determination therefore turns on whether Mr Terkes was an ‘employee’ of the appellant in the common law sense, that is, under a contract of employment between Mr Terkes and the appellant whereby he was performing the work at the premises of Warman when he was injured.

It is, we think, fundamental in resolving the present issue to have in mind that the ultimate conclusion as to whether Mr Terkes was an employee of the appellant is a question of fact, although it is to be acknowledged that in reaching that conclusion questions of mixed law and fact may, and probably will, arise: see Clarkson v. Dent (1998) 84 IR 250 at 252 - 253 and the authorities cited therein. …"

32. The complaint made by the appellant on this appeal is the characterisation of the contract by the learned Deputy President and in particular that characterisation considering the decision of Odco (above cited). The earlier authorities would appear to give support to Dr Jessup QC’s contention. In Morren v Swinton and Pendlebury Borough Council (1965) 1 WLR 576 Lord Parker CJ gave some guidance regarding the line between the two in the following statement, (at 583):-

"… The terms of the contract of course are fact, and to that extent the determination depends upon fact, but it seems to me perfectly clear that once the primary facts are found, then it is a pure question of law as to what is the reasonable inference based on the legal interpretation of the contract."

In Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance (1968) 2 QB 497 MacKenna J stated (at 512 - 513):-

"It may be stated here that whether the relation between the parties to the contract is that of master and servant or otherwise is a conclusion of law dependent upon the rights conferred and the duties imposed by the contract. If these are such that the relation is that of master and servant, it is irrelevant that the parties have declared it to be something else. …"

33. However the matter was considered by the New South Wales Court of Appeal in Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371. The issue there was whether the applicant claiming compensation under the Workers Compensation Act 1987 (NSW) was an "employee". Kirby P with whom Mahoney and Meagher JJA agreed, having identified the issue as the interpretation of undisputed facts and their categorisation for the purposes of the Act (at 371) stated the following (at 375):-

"4. Although some time was spent in the course of the hearing of the appeal, in examining the legal authorities which have addressed the delineation between contracts of service and contracts for services, the principles to be applied (whilst not static) are well-known. The issue presented was, as it was agreed, essentially one of fact. The Compensation Court was, and on appeal this Court is, bound to look to all of the facts proved and then to determine the essential character of the relationship between Mr Crawford and the appellant. This cannot be done by the mechanical application of the words of earlier decisions, whether of the High Court of Australia or of this Court. What is involved is, in the end, a task of judicial characterisation. It involves assessment and, ultimately, judgment: applying to the facts as found the legal test established by the Act, as elaborated by the many cases brought about the statutory language; and

5. This Court is engaged in an appellate procedure. The provision by the Compensation Court Act 1984, s 32 as amended, of a right of appeal on decisions of fact does not sweep away the function of the primary judge any more than it constitutes this Court a tribunal of original jurisdiction. Because the Court is involved in hearing an appeal, albeit one on the facts by way of rehearing, it is necessary for the appellant to show that Herkes CCJ erred in making his award. In short, it must show that his Honour’s classification was wrong, permitting and requiring correction by appeal to this Court. …"

34. That analysis by Kirby P, making due allowance for his Honour’s note that the parties agreed the issue was one of fact, provides helpful guidance in this matter. The appellant’s disputation of the "judicial characterisation" by the learned Deputy President is not a question of law. It is a question of fact. It is the ultimate conclusion of fact by the learned Deputy President that is in issue. I would uphold Mr White QC’s argument. However in the event of the contrary view prevailing I deal with the arguments advanced by Dr Jessup QC.
35. Before proceeding to an examination of each of the grounds of appeal reference should be made to Connelly v Wells (1994) 55 IR 73 where Gleeson CJ described the starting point of his analysis as follows (74):-

"Where the relationship between two persons is founded in contract, the character of the relationship depends upon the meaning and effect of the contract. In the absence of a suggestion that a contract was varied after it was originally made, its meaning and effect must be determined as at the time it was entered into. If the contract is in writing, then the court which is considering the nature of the relationship between the parties is directed to an examination of the terms of the written agreement in the light of the circumstances surrounding its making (Narich Pty Ltd v. Commissioner of Payroll Tax (1983) 2 NSWLR 597 at 601)."

36. To that description of the preliminary consideration should be added two passages from the reasons of the majority in Hollis v Vabu Pty Ltd (above cited), to which each counsel in this case made reference. The first passage states (par 24):-

"24 … It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing ‘the totality of the relationship’ between the parties; it is this which is to be considered: Stevens v. Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29."

The second passage refers with approval to TNT Worldwide Express (NZ) Ltd v Cunningham (1993) 3 NZLR 681 and is as follows (par 58):-

"58 … There, an ‘owner-driver’ vehicle courier employed under a standard form contract was held to be an independent contractor. One term of the contract stated that ‘THE relationship between the Contractors and the Company is and shall be for all purposes that of independent Contractor and neither this Agreement nor anything herein contained or implied shall constitute the relationship of employer and employee between the parties’ (at 692). Although such terms are not of themselves determinative, as parties cannot deem the relationship between themselves to be something it is not: R v. Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 150-151; Adam v. Newbigging (1888) LR 13 App Cas 308 at 315; Ex parte Delhasse; Re Megevand (1878) 7 Ch D 511 at 526, 528, 532. See also TNT Worldwide Express (NZ) Ltd v. Cunningham (1993) 3 NZLR 681 at 699; ‘The proper classification of a contractual relationship must be determined by the rights and obligations which the contract creates, and not by the label the parties put on it.’, this term was held to summarise the relationship between the parties accurately. Casey J pointed out that the contract contained terms which suggested that ‘each party was genuinely trading off benefits under one relationship for perceived advantages under the other’ (at 695). …"

These passages accord with the more pithy articulation in Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179 at 184 to the effect that the parties cannot create something that has every feature of a rooster and yet call it a duck.

37. I turn to a consideration of the terms of the contract. Those terms are to be found beyond the written record. This was the contention of Mr White QC (tr 87). Dr Jessup QC argued that His Honour, having found (at par 22 of his reasons for decision) the written contract declared a contract for services, that is where the matter should have ended (tr 42). I reject that submission upon the basis of the authorities set out above.
38. Contractual terms may be written, oral or implied. Implied terms may be implied by law or implied by the circumstances. The rule regarding oral terms made outside the written document was dealt with extensively by McHugh JA in State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170 at 191. There can be no doubt the contract or contracts here were partly written and partly oral. The appellant acknowledges this in its documentation (AB Vol 3 at 148) and in its Outline of Argument (par 25). I will return to the mechanics of the formation of the contracts when examining Accident Compensation Commission v Odco Pty Ltd (1990) 95 ALR 641.
39. In considering the terms of the contract regard may be had to the matrix of circumstances in which the contract was made and in the manner stated by Mason J in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 41 ALR 367 at 374 - 375. That in turn gives rise to the question of whether any terms are to be implied in the circumstances: see BP Refinery (Westernport) Pty Ltd v. Shire of Hastings (1977) 180 CLR 266 at 282 - 283. The second of the conditions stated in the BP Refinery case is expanded upon and explained in State of New South Wales & 3 Others v Banabelle Electrical Pty Ltd [2002] NSWSC 178 in the following way (at par 49):-

"49 To my mind, these authorities indicate that the requirement that a term be ‘necessary to give business efficacy to the contract’ does not mean that the term must be so necessary that without the term the contract would, for all purposes be ineffective, but that the term must be necessary to make the contract effective and workable according to the presumed intention of the parties, as disclosed by the terms of the contract and the admissible surrounding circumstances."

40. It is not uncommon for terms to be implied or inferred in employment contracts. In Hawkins v Clayton & Others (1988) 164 CLR 539 Deane J cautioned against, "an automatic or rigid application of the ordinary cumulative criteria for determining whether a term should be implied in a written contract to a case where the contract is oral or partly oral or where it is apparent that the parties have never attempted to reduce their agreement to complete written form" (at 571). His Honour went on to state (at 573):-

"… The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. …"

See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410 per McHugh and Gummow JJ at 450.

41. In making these observations I recognise the danger of, in effect, putting the cart before the horse in considering the rules in the context of contracts of employment. Whether it is an employment contract is the very question at stake. However it is appropriate to consider the rules governing contracts generally in examining the matter in the case before us. This is not therefore the dichotomy described by Gray J in Re Porter; Re Transport Workers Union of Australia (above cited) at 182.
42. The issue of one of the terms of the contract between the appellant and the respondent of concern was raised with counsel during the appeal (tr 22). This was the term between the appellant and Chiquita which states "The personnel we supply to you are yours to direct, ..."(AB Vol 3 at 38). I will assume for present purposes this is a right of control referred to in the cases, a matter I will deal with more fully later in these reasons as I am unable to agree with the conclusion in this respect reached in Odco (at par 178). Thus if the hiring agreement made between the appellant and Chiquita gives Chiquita a right of control over the person sent to it, the appellant undertakes to supply a person meeting that criteria. If so, the appellant can only meet its contractual obligations to Chiquita if the respondent in turn bargains such a right with the appellant. That is operative from the moment when the respondent agrees to take on Chiquita’s work.
43. This constitutes "a necessity" making sense of the contract between the appellant and the respondent. It conforms with BP Refinery (above cited), most particularly the necessity to give business efficacy to the contract with the respondent. Such a line of reasoning does not conclude the appellant and respondent have agreed a right of control vested in the appellant over the respondent. The notion of control can however be broken down to the component parts of the right to direct and the commensurate obligation to comply. The implication of the first component as between the appellant and the respondent is not necessitated. But the second component adjusted is necessitated, namely the respondent will accept the obligation to comply with the directions of such party, (viz Chiquita), the appellant sends her to work for. Such an implied term must be included as a term of the contract between the appellant and the respondent.
44. I interpolate here some remarks regarding the notion of "control" in identifying a contract of services. I do so recognising the learned Deputy President used the indicia in the manner set out in the authorities and it is not suggested he did otherwise. If he did, a question of law may have arisen. But given this part of my reasons proceeds on the assumption of a question of law, I make the following observations. The issue of the absence of "control" was stressed by Dr Jessup QC in his submissions (tr 11, tr 12, tr26 - 27, tr 31 - 32, tr 34, tr 41, tr 45, tr 47, tr 120, tr 122, tr 127, Submissions in Reply). In The Commissioner of Taxation of the Commonwealth of Australia v Barrett & Others (1973) 129 CLR 395 at 400 - 401 Stephen J described the origins of the notion and quoted Bramwell B in Yewens v Noakes (1880) 6 QBD 530 (at 401):-

"A servant is a person subject to the command of his master as to the manner in which he shall do his work."

In Articulate Restorations v Crawford (above cited) Kirby P stated the modern law in this regard in the following terms (at 375 - 376):-

"… Traditionally, the test of employment was expressed in terms of whether the putative employer controlled the services of the alleged worker: determining not only what should be done but how it should be performed. Doubtless because of changes in the nature of employment which accompanied advances in the economy, social and industrial democracy and technology, this formulation has been refined by the courts to direct attention not so much to the fact of control but to where its ultimate authority lay. See eg Humberstone v. Northern Timber Mills Pty Ltd (1949) 79 CLR 389 at 404; Zuijs v. Wirth Bros Pty Ltd (1955) 93 CLR 561 at 572."

45. In "The Law of Employment" 4^th Edition, Macken, O’Grady and Sappideen (1997) at 13, the authors comment that rather than being a rule of law, "control" is a commonsense criterion for typifying the relationship. Its earliest significance as describing a contract of employment is dealt with by Lord Wedderburn in "The Worker and the Law" 3^rd Edition (1986) at 111 in terms of the status and legal imagery of a pre-industrial society with agricultural and domestic labourers featuring prominently, giving the master power to demand obedience. The hallmark was "service". This essential quality is also alluded to in Hollis v Vabu (above cited) (at par 43 - 44). This is a significant part of the context in which the "totality of the relationship" is spoken of. (A useful examination of "control" in workers compensation legislation is described in "The Evolution of the Contract of Employment in Australia: A Discussion", Howe & Mitchell, University of Melbourne, Conference Paper, 3 September 1998.)
46. It is this that describes an essential quality of "control" and makes it an indicia typifying the relationship. That is the acceptance of the subordinate role in the performance of work - the hallmark of "service". Service in this sense operates in an easily recognisable and everyday way. A worker’s agreement to serve is not necessarily to the employer as such but to those the employer engages to exercise authority on its behalf, ie a foreman or supervisor. In making this observation I am not equating such a circumstance to the facts before us. Rather I am concerned to highlight an important aspect of control and its application in workplaces. The gravamen is the acceptance of a form of subordination by service. That the labour market has fragmented those who sell their labour into new groupings has not changed the essence of that part of "control" the worker bargains in a contract of employ. Such existed here, in its essential part, despite the, "lack of any real control by CMA" as found by the learned Deputy President. And that, in my opinion, informs and is relevant to the type of relationship created by the terms bargained and the totality of circumstances.
47. The High Court analysed the "Odco" system in Accident Compensation Commission v Odco Pty Ltd (above cited). It assists to consider "service" in the context of that analysis. That case involved the provisions of the Accident Compensation Act 1985 (Vic) giving an extended meaning to "employer" for the purposes of a levy. The agreement under consideration was in essentially the same terms as that set out in par 30 hereof. The Court described that system as follows (at 644):-

"When a builder needs a tradesman he contacts TSA and places an order. An employee of TSA then completes an order sheet recording the builder’s name, the person to whom the tradesman should report at the building site, the type of tradesman required and the duration of the work. The employee of TSA then contacts an appropriate tradesman and advises the tradesman of the builder’s requirements. If the proposal is acceptable to the tradesman, he attends at the building site and performs the necessary work at the direction of the builder. Subsequently, the tradesman telephones TSA to advise details of hours worked during the previous seven days. TSA raises an invoice to the builder charging the hours worked by the tradesman at a previously agreed hourly rate (which includes remuneration to TSA for its services to the builder). The tradesman is paid by TSA at the hourly rate or set price agreed between TSA and the tradesman. The tradesman makes no payment to TSA for having placed him. TSA’s reward comes from the difference between the amount it charges the builder and the amount it pays the tradesman."

48. The Court concluded as follows (at 646 - 647):-

"Moreover, on the view which we take of the contractual arrangements with TSA, the tradesman agrees to perform work for TSA, even though the builder is the ultimate beneficiary of that work. …

…

Once a tradesman accepts an offer of work and attends at a client’s site, he remains at the site working for as long as that client requires or for as long as the tradesman wishes. TSA does not exercise and is not able to exercise any control whatsoever over what the tradesman does at the site or how he does it. The only contact TSA has with the tradesman is in obtaining information of what work he has done. The tradesman contacts TSA by telephone, usually every Tuesday, to advise the details of hours and sites worked for which clients during the previous seven days. From this information, invoices are raised by TSA to the relevant client.

The conclusion to be drawn from this material is that the tradesman enters into a contract with TSA by accepting the offer of work made by telephone. The fact that the tradesman is evidently free to withdraw from the site at any time because he objects to work or to work further on the ground of safety or for some other reason is by no means inconsistent with entry into a contract with TSA on acceptance of the offer of work communication by telephone. …

…

When the tradesman accepts the offer of work, a contract comes into existence on the terms set out in the document headed ‘AGREEMENT TO CONTRACT’ which the tradesman has previously signed. That document contains the terms which are to govern the contractual relationship which arises between him and TSA once he accepts an offer of work communicated to him by TSA. It is significant that, apart from cl 2, cl 7 of the document contains a promise by the tradesman to TSA to: ‘carry out all work that I agree to do through the Agency of [TSA] in a workmanlike manner.’

The clause also contains a ‘guarantee’ against faulty workmanship. In this context the words ‘work that I agree to do’ contemplate the reaching of an agreement between the tradesman and TSA with respect to the work to be carried out. … That agreement is one whereby the tradesman agrees with TSA to perform work for the benefit of TSA in the sense that the work is done for the purposes of TSA’s business and enables TSA to derive remuneration from the relevant builder which will enable TSA to pay the tradesman for his services."

49. This analysis applies to the case before this Tribunal. It explains how a contract is concluded each time the respondent accepts the appellant’s request to attend a particular job on terms advised. The contract includes the written terms, the oral terms and the implied terms. Apart from the implied term to serve, certain other conclusions can be reached. The respondent in the given case agreed to accept the sum of $8.23 per hour while being trained to do the job and $9.20 per hour thereafter. [See trial transcript 252, 325 and Trial Book statement p 63.] That contemplates the respondent subordinating in a very specific way to the authority of Chiquita. It also contemplates continuity as a matter of fact. That is drawn from the nature of training. Chiquita will want a benefit for the trouble taken to impart the skill for some reasonable period thereafter. Again the circumstances of this case are relevant and informs the type of relationship created.
50. The argument that there is a requirement of "control" does not reflect the authorities, (see appellant’s argument tr 47). The indicia of control is no more than one factor to have regard to. In The Commissioner of Taxation of the Commonwealth of Australia v Barrett & Others (above cited) 129 CLR 395 at 401 Stephen J notes the statement of Dixon J in Queensland Stations Pty Ltd v The Federal Commissioner of Taxation (1945) 70 CLR 539 at 552 that, "a reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract". In that case a contract for services was apparent from countervailing considerations including the employment by the drover of his own servants, the provision of his own horses, plant, rations and a remuneration based on completed task price rather than hourly rate. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (at 49) Deane J said control was but one factor. See also Connelly v Wells (above cited) at 73 per Gleeson CJ, Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 at par 81 per Kirby J. Thus while there was no right of control vested in the appellant yet there were important terms relating to service and subordination that do inform the totality of the relationship.
51. The case before us is a circumstance involving a business providing labour to its customers. The indicia must be considered in that factual context. The central feature of the business was the appellant’s contractual right to bargain, trade and profit from the agreement of the respondent to serve under the directions of such person as the appellant with her consent sent her to. Dr Jessup QC argued that as the appellant has no control over the respondent in the relevant sense in working the tomatoes, that indicates against a contract of services. However even if it may not amount to an indicia in favour of a contract of service, as described in the authorities, in the given circumstances it can hardly amount to an indicia in favour of an independent contractor. See Hollis v Vabu (above cited) as to control (at par 44).
52. The learned Deputy President relied on the statement of Cooke J in Market Investigations Ltd v Minister of Social Security (1969) 2 QB 173 at 184 - 185 namely that the fundamental test is whether the person performing the services is performing them as a person in business on his own account. In Sgobino v State of South Australia (1987) 46 SASR 292 the majority of the Full Supreme Court referred to that test with approval (at 306 - 307). In my opinion Cooke J’s statement employs different words to describe the same notion as Wilson and Dawson JJ described in Stevens v Brodribb (above cited) in the following terms (at 37):-

"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. …"

(The emphasis is mine.)

53. That last quoted statement of the approach required, perhaps the most often referred to, seeks the essential character distinguishing employment from independent contracting and dealt with by Dixon J in Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Cooperative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48 and Windeyer J in Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210 at 217. Windeyer J spoke of the distinction being "rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own". The idea of serving another is common to each expression of the test.
54. Dr Jessup QC pointed to the fact that the agreement between the appellant and the respondent was void of any term that the respondent would perform work for the appellant. He contended such a term lies at the heart of a contract of service. I agree that the supply of the work and skill of the person is the essence of the contract of services: see Price v Grant Industries Pty Ltd (1978) 21 ALR 388 at 393; Humberstone v Northern Timber Mills (1949) 79 CLR 389. However the respondent clearly agreed to supply her work and skill. That part was satisfied. It was supplied to whoever the appellant offered to place her with and upon her acceptance. That analysis accords with the decision in Accident Compensation Commission v Odco (above cited). To even more effect is the decision of the Victorian Court of Appeal in Drake Personnel Ltd v Commissioner of State Revenue (2000) 2 VR 635. There the Court stated (at par 54) the "temp" in accepting an engagement to perform work for Drake’s clients was doing the work as much for Drake as for the client. Moreover in the case before us it was her work that was supplied. The respondent had no right to delegate or assign: see Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 at 391. This is a very important indicia and weighs in favour of a contract of services. That she did not undertake to provide her work to the respondent exclusively is neutral in the circumstances: Building Workers Industrial Union of Australia and Others v Odco Pty Ltd (1991) 37 IR 380 at 389.
55. Dr Jessup QC referred to the circumstance that the appellant did not guarantee the respondent any work and further the respondent was not bound to accept any work. She could have accepted or rejected each day’s work as she pleased (tr 6, tr 34, tr 54 see also appellant’s Submissions in Reply 11(vi), 12(vii) for example). The difficulty with this contention is the casual nature of the worker’s engagement by Chiquita. She was engaged on a needs basis. That is made plain by the documentation: (see reference to "casual" in the Hiring Agreement par 5 hereof). See also Hest Australia Ltd v McInerney (1998) 85 IR 323 per Olsson J at 330. Seen in that light it is compatible with employment.
56. A series of related facts are quite damaging to the appellant’s argument. These concern terms as to the reward of the respondent under the contract. Relevant indicia include the nature of the task, the magnitude of the contracted amount and the manner in which it is to be paid: see Performing Right Society Ltd v Mitchell and Booker (Palais De Danse Ltd (1924) 1 KB 762 at 767. In this regard the respondent was not providing skilled labour or labour which required a special qualification: Hollis v Vabu para 48. The amount that she was paid ($8.23 per hour) is to be compared with the minimum pay set by the Australian Industrial Relations Commission as at April 1999 on the 1999 Living Wage Claim, namely $385.40 per week: see Safety Net Review - Wages - April 1999 (1999) 87 IR 190. Those circumstances give the workers little capacity to generate goodwill (Hollis v Vabu par 48). They also deal with the level of investment in capital equipment and the degree to which the running costs of the business could be realistically analysed as a proportion of income (Hollis v Vabu para 47). They deal with any suggestion that there was scope to bargain the rate of remuneration or opportunity to bid for particular jobs (Hollis v Vabu par 54). In real terms this worker was in a "take it or leave it" position if she wished to work. Reference to an hourly rate is indicative of employment as a generality: see The Federal Commissioner of Taxation v Walter Thompson (Australia) Pty Ltd (1944) 69 CLR 227 at 233 - 4.
57. All this leaves little space for the notion of the pursuit of any real business enterprise that may somehow have grown and enlarged by appropriate efficiencies and initiatives (Hollis v Vabu par 58). Taken collectively, as they ought to be in this case, these matters weigh heavily in favour of employment and away from typifying the respondent as an independent contractor. It would warrant the conclusion that any notion the respondent was somehow running an enterprise of her own as intuitively unsound and denied by the facts disclosed (Hollis v Vabu par 48).
58. Other indicia against the typifying of the agreement as a contract of services was set out in the decision of the learned Deputy President and repeated by Dr Jessup QC in his submissions (tr 16). They were the terms as to the provision of tools, though this did not in fact occur with Chiquita, the absence of an entitlement to sick leave, annual leave or superannuation, the insurance arrangements appropriate to an independent contractor, the absence of a PAYE tax deduction, rather the PPS system, the advance notice to the respondent by the appellant that its business was an agency that supplied labour and that no employment relationship was offered and lastly the terms of the documentation. All those matters are to be weighed, though in respect to taxation, insurance, annual leave, sick leave and the like, the weight is debatable: see Re Porter; Re Transport Workers Union of Australia (above cited). See also Labour Law in Australia, Sykes and Yerbury at par 110(8).
59. A considerable part of the appellant’s argument relied on the decision of Woodward J in Odco Pty Ltd v Building Workers Industrial Union of Australia (above cited). The appellant said the case was on all fours with the matter before us. Neither side contended Odco stood for any principle of law at variance with those laid down in the usual authorities such as Stevens v Brodribb (above cited) and Hollis v Vabu (above cited) (tr 17, 77).
60. The Court in Odco was primarily concerned with whether there was a contract between the builder to whose site the worker was sent and the worker rather than whether there was a contract between Odco and the worker of the relevant kind (tr 20). This was because the case involved issues of secondary boycotts and s 45D of the Trade Practices Act 1974. The appellant’s reliance on this decision arises because the documentation and other features mirror the case before us, (see Odco judgment para 44, par 55). However in considering the application of that case to the case before us, it is important to keep in mind matters of custom and experience peculiar to the construction industry and its heritage of what is called "the lump": see Lord Wedderburn "The Worker and the Law" at 122.
61. In Odco Woodward J, though concerned primarily with the relationship between the builder and the worker, makes the following observations (par 101 - 102, par 104):-