Contractor or employee? – a question that remains a question in the industrial relation dispute

by CHARLIE BULOS
LL.B. (Macq.)
Solicitor, in Victoria

 

 

PART 4
Whether the putative employer exercises, or has the right to exercise, control over the manner in which the work is performed, place or work, hours of work and the like.


[28] The evidence indicates the Applicant was a skilled carpenter who exercised a significant degree of ability, expertise and autonomy in performing his work. As such he did not require or receive direct supervision in the manner in which work was performed. However, at the same time the Respondent clearly determined the locations where work was to be performed, which aspect of the projects the Applicant was to be engaged on, and the timeframes in which work was to be carried out. To this extent I am satisfied the ultimate authority and responsibility over the performance of the work, and when and how it was performed and carried out, rested with the Respondent.
Whether the worker performs work for others (or has a genuine and practical entitlement to do so).


[29] The Applicant worked with the Respondent on six separate occasions between January 2009 and August 2012. During those periods when not working with the Respondent he did carry out work elsewhere. He also had what appears to be a well equipped home-based workshop. However, there is no evidence the Applicant performed much work elsewhere whilst engaged by the Respondent. In any case it appears he had a limited ability to do so as he was regularly working with the Respondent over six days each week for up to 60 hours a week on occasions. On the last occasion he was engaged for an extended period from October 2011 until late August 2012. Again, this pattern of work over an extended timeframe with one entity is more commonly associated with an employment relationship than with a contract for the provision of services embodied in an independent contracting relationship.
Whether the worker has a separate place of work and/or advertises his or her services to the world at large.


[30] The evidence indicates the Applicant did have a home-based workshop and collected tools and other equipment. On two occasions timber was delivered to the workshop by the Respondent to enable the Applicant to carry out some specialised work on that timber. Those circumstances are not commonly associated with a relationship of employer and employee. The evidence accordingly suggests the home-based workshop was a separate place of work, however, at the same time there was little evidence to suggest the Applicant was actively advertising or promoting his services to others whilst engaged by the Respondent.
Whether the worker provides and maintains significant tools or equipment.


[31] As indicated, the Applicant has a workshop at his home which contains an array of tools and equipment. Again, as indicated, on two occasions he carried out work on timber delivered to the home-based workshop. This is clearly an unusual occurrence in an employer/employee relationship and apparently occurred in order to enable the Applicant to carry out some specialised dressing of those particular timbers. The evidence also indicates the Applicant provided his own handsaw and chisel and hammer whilst at work, although other equipment and the provision of access on site was provided by the Respondent. It is not uncommon for employees in the building and construction industry to provide tools and equipment. They generally receive an additional allowance in compensation. The Applicant did not appear to receive a specific tool allowance, although the evidence indicates he was paid over and above the normal rate received by a carpenter in lieu of allowances he might otherwise be entitled to. This arrangement is one more closely associated with a relationship of employer and employee.
Whether the work be delegated or subcontracted.


[32] There is no evidence the Applicant had an ability to delegate or subcontract work to others. The evidence indicates he was engaged because of his particular abilities as a skilled carpenter and the need for those skills in the specialised restoration and renovation work carried out by the Respondent. The fact the Applicant was required to personally perform the work and specifically engaged for the provision of his labour is again an indication he was an employee rather than an independent contractor.
Whether the putative employer has the right to suspend or dismiss the person engaged.


[33] The evidence indicates the parties in this matter did not enter into a written contract or other arrangement that determined or regulated their relationship. However, the relationship certainly appeared to be based on an understanding it could be ended at any time when the Applicant’s work on a particular project had been completed and his services no longer required. As already indicated the Applicant was engaged by the Respondent on six separate occasions over a period of more than three and a half years. It was only on the last occasion when any of those engagements lasted for a period of more than six months. The nature of those periodic engagements are more closely associated with a project based independent contractor relationship, although at the same time it is not uncommon for employment in the building and construction industry to be based around particular projects, with employees only required for a specific or defined period of time related to the duration of a particular job.

 

[34] However, the Applicant’s last engagement from October 2011 until late August 2012 was for a significant length of time. During this time he was asked to carry out work which extended beyond his specialist carpentry skills. This included painting, paving and general labouring. Whilst the intermittent pattern of engagement prior to October 2011 was more akin to a principal/contractor relationship, the extended engagement from October 2011 and the variety of work performed, was more indicative of a relationship of employer and employee.

Whether the putative employer presents the worker to the world at large as an emanation of the business.

 

[35] The evidence of both parties indicated the Applicant was provided with shirts and jumpers bearing the Respondent’s logo. The Respondent indicated this was a “goodwill gesture” and the supply of this clothing was not consistent with the nature of the relationship between the Respondent and the Applicant. The Applicant indicated he was required to wear this clothing each day. He also stated he was generally presented to clients, architects and others he came in contact with as one of the Respondent’s employee carpenters and no attempt was made to suggest he was not engaged as an employee.
Whether income tax is deducted from remuneration paid to the worker.

 

[36] Reference to this particular indicia in the present matter, given the way arrangements between the Applicant and Respondent were structured, clearly points to a relationship of principal and contractor. These arrangements were presumably structured in this way to provide the most favourable taxation treatment for the Applicant.

 

[37] In summary, the Respondent did not deduct income tax from the payments made to the Applicant. The Applicant invoiced the Respondent each week using an ABN number on the invoices. Goods and services tax was also charged. His BAS statements also indicate various capital purchases, indicating they were made for trading stock and normal business running expenses. The Applicant also acknowledged he was paid for the work performed by the Respondent as a sole trader and responsible for payment of his own taxation.

 

[38] As indicated, the structure of these arrangements are clearly indicative of the Applicant conducting a business whilst working for the Respondent and much more closely associated with a relationship of principal and independent contractor, rather than employer and employee.

Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.

 

[39] The Applicant was simply paid an amount of $45 per hour for each hour worked. The Respondent indicated this amount was set on the basis that the actual amount for a carpenter at the time the Applicant was engaged was $29 per hour and the figure of $45 per hour was established to take into consideration the allowances and other payments that generally apply over and above the ordinary time rate. The Applicant was accordingly not paid by reference to the completion of a particular task or tasks, or on the supply of particular services or materials, but instead simply paid on the basis of a payment of $45 for each hour worked. A payment structure based on hours worked, rather than tasks or projects completed, is again more closely associated with an employment relationship, rather than one based on the provision of services
Whether the worker is provided with paid holidays or sick leave.

 

[40] The Applicant did not receive paid holidays or sick leave or any other entitlements normally associated with an employment relationship. As indicated, he was paid an all up rate of $45 per hour for each hour worked. It was subsequently agreed he would receive an increase to be paid in the form of a nine per cent superannuation contribution. This additional payment was apparently introduced from August 2011.
Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

 

[41] The evidence indicates the Applicant was a skilled carpenter and it was those particular skills that were particularly required by the Respondent in the specialist restoration and renovation work on the old and historic buildings that it was engaged in.
Whether the worker creates goodwill or saleable assets in the course of his or her work.

 

[42] There is no evidence to indicate the Applicant did anything to create goodwill or other assets that could be sold or passed on to another entity in the context of the work performed before the Respondent.
Whether the worker spends a significant portion of his remuneration on business expenses.

 

[43] The evidence does indicate that the Applicant expended a proportion of his remuneration on business expenses. This is clearly a characteristic more closely associated with an independent contracting relationship rather than a relationship of employer and employee.


Further Consideration

 

[44] There are other factors which are also worthy of consideration in regard to the determination of this matter. Firstly, there was no written contract or agreement entered into between the parties at any time which might have assisted in determining the nature of their relationship. Secondly, there was no evidence that the Applicant was required to take out insurance cover or bear responsibility for any legal risk associated with the work carried out, or be responsible for rectification of any defects associated with that work.

 

Conclusion

 

[45] It seems the Respondent had a genuine belief the Applicant was engaged as an independent contractor, with his services engaged as required from time to time on the specialist restoration projects it was involved in. Certainly, prior to October 2011 when the relationship was characterised by a series of relatively short term, project-based engagements it might well have been a relationship that was one of principal and independent contractor. It is also evident the Applicant, based on advice received, sought to structure the taxation and associated arrangements as though he was a sole trader conducting a business whilst engaged by the Respondent. As already indicated he likely benefited from the structure of these arrangements through more favourable taxation treatment in a way he would not have been able to if treated as an employee. In that sense in now wanting to construe the relationship as one of employment he could be seen to be seeking “the best of both worlds.”

 

[46] The fact that the Respondent directed where work was to be carried out is also not fatal to finding an independent contracting relationship existed. The Respondent won various tenders to perform work from time to time and that dictated at which locations this work was carried out and, in large part, within what timeframes. It was acknowledged the Applicant had specialist carpentry skills and once engaged appears to have been provided with both significant autonomy and limited supervision in the actual performance of the work he was engaged to carry out. He also performed specialist work in his home based workshop on two occasions on timber delivered by the Respondent. As indicated, that situation is not something commonly associated with an employment relationship.

 

[47] However, there are a number of indicators associated with the period of engagement from October 2011 to August 2012, in particular, that suggest an employment relationship existed at least for the period of this engagement. The first of these indicators is the length of the engagement itself and the fact it appears the Applicant worked almost, if not exclusively, for the Respondent during that time, often over six days per week. Whilst it appears he was primarily engaged to carry out specialist carpentry work he was also asked to carry out a range of other tasks, including painting, paving and general labouring work. He was also provided with shirts and jumpers displaying the Respondent’s logo and it appears little, if anything, was done to suggest to the wider world the Applicant was an independent contractor, rather than an employee. During this time the Applicant did not directly receive the range of additional entitlements typically associated with employment such as additional allowances, paid leave, additional payments for work on public holidays or overtime penalty rates. He was, however, paid an hourly rate directly related to each hour worked. The Respondent’s evidence also indicated this rate of $45 per hour was established on the basis that the prevailing rate for an employee carpenter at the time was $29 per hour and the additional payment over and above the amount was provided to cover the additional allowances and other entitlements an employee would normally receive. The Respondent also commenced to provide 9 per cent superannuation contributions in 2011, although this apparently remained an ongoing source of dispute between the parties with the Applicant wanting those payments backdated to 2009 when he was first engaged. Indeed, the failure to reach agreement about the retrospective payment of these contributions appears to have been a significant motivation for this action initiated by the Applicant against the Respondent.

 

[48] The evidence does indicate the Applicant had a separate home-based workshop with a range of equipment installed. However, it appears he only provided limited tools at work when engaged by the Respondent, with other equipment provided by the Respondent. There is also no evidence the Applicant provided or supplied any of the timber or other materials he worked with whilst engaged by the Respondent. Nor was there any evidence of an ability to delegate or subcontract work to others. There was also no evidence he advertised his services to the wider world or held out any availability to work elsewhere whilst engaged by the Respondent. When he did work elsewhere this seems only to have occurred during those periods when he was not engaged by the Respondent.

 

[49] As the Full Bench indicated in the French Accent decision the range of relationships at work present as a spectrum. At one end of that spectrum are relationships which are less clear cut in terms of whether principal and contractor or employer and employee. This is one such example. As already indicated aspects of the relationship between the Applicant and the Respondent, particularly those relating to the provision of invoices and the taxation arrangements, point directly to a contract for the provision of services. However, on balance I am satisfied, based on the submissions and evidence, that the proper way to categorise the nature of the relationship, particularly during the extended period of engagement from October 2011 until August 2012 when the Applicant last worked for the Respondent, was that it was one of employment between an employer and an employee. I find accordingly that the Applicant at that time was pursuant to s.382(a) of the Fair Work Act, “...an employee who has completed a period of employment with his or her employer of at least the minimum employment period,” and therefore is a person “protected from unfair dismissal”. 15

 

[50] In coming to this conclusion I am obviously not making any finding about the merits or otherwise of the Applicant’s unfair dismissal claim. The application will now be listed again to enable that matter to be dealt with and determined”.
So, the crux of this case is in the range of relationship at work such as ability to delegate or subcontract work, the advertisement or how he held out himself to be available to others, etc.

 

 

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