C2015/632, Transcript of Proceedings [2015] FWCTrans 398 (6 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052092

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VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER ROBERTS

C2015/632

s.604 - Appeal of decisions

Kimber v Western Auger Drilling Pty Ltd
(C2015/632)

Brisbane

11.02 AM, MONDAY, 1 JUNE 2015

Continued from 07/05/15

PN1

VICE PRESIDENT CATANZARITI: Thank you, I will take the appearances.

PN2

MS ANDERSON: My name is Anderson, initials SD. I appear on behalf of the applicant to appeal, instructed by Johnson Solicitors.

PN3

VICE PRESIDENT CATANZARITI: Thank you, Ms Anderson.

PN4

MR REED: May it please the Commission, my name is Reed, R-e-e-d, initial R. I am instructed by Aden Lawyers. To the extent necessary, I seek permission to appear on behalf of the respondent.

PN5

VICE PRESIDENT CATANZARITI: Yes, permission to appeal is granted in relation to both counsel. Ms Anderson, we have had the opportunity of reading material. We now invite you for some short oral submissions.

PN6

MS ANDERSON: Thank you. Might I hand up copies of the cases to which I referred in my written submissions as well as a copy of Tattsbet Limited v Morrow which is a case, I understand, my learned friend wished to refer as well. That is a recent decision delivered and it is of some interest in this case because of its application both to the question of permission to appeal as well as to the appeal itself.

PN7

As the Commission will recall, this is a case that involved a woman who ran an agency for Tattsbet and the question was whether she was an employee of Tattsbet or an independent contractor. Of course, at first instance it was found that she was an employee, so the Full Court made a determination about the way in which the principles were applied in that case.

PN8

At page 20 of the decision from paragraph 64 - the decision, Commissioners, is behind tab 6 in the bundle I have handed up. The question of what features ought to be considered in that particular case was considered. There were five features that were important in that case and as I say, the importance to the present case is that the fundamental error pointed out by Ms Kimber of the learned Commissioner's decision below was that she relied exclusively or nearly so on the question of the manner in which she was remunerated to determine whether she was an employee or not.

PN9

It is made clear in this decision following on from page 20, continuing on page 21, 22 and 23 that the consideration required was of the matters which were relevant in the particular situation. The Full Court said firstly that in that case the contract between the two said that Ms Morrow was an independent contract and while clearly that would not be determinative, the question of how the parties related to each other and what they said the relationship was was relevant.

PN10

Of course, in Ms Kimber's case we know that both the appellant and the employer considered that at some point Ms Kimber would become an employee. The question for the Commission is when that decision was made and at what point Ms Kimber actually became an employee. I will take the Commission to some of that evidence in a moment.

PN11

Secondly, in the middle of page 20 - - -

PN12

DEPUTY PRESIDENT GOSTENCNIK: Ms Anderson, do I take it from that submission that you are conceding that at the initial formation of the relationship the relationship was one of independent contractor and principal? Is that the thrust of your submission?

PN13

MS ANDERSON: With respect, there is no need to concede it. The facts are clear. Ms Kimber was originally engaged remotely as a consultant to work as an independent contract. Ms Kimber's case was that when she relocated to the premises of Western Auger Drilling it was for the purpose of becoming a full time employee so that there was a transition in their relationship from one of independent contractor to one of employee.

PN14

The Commission can see that from looking at the evidence of Ms Kimber which appears at AB53 paragraph 10 of Ms Kimber's affidavit. She explains there - following on from paragraph 10 to paragraph 26 she explains the history of the development of the relationship and that, as I understand it, isn't in dispute. The question in dispute is when the relationship changed from one of independent contractor to one of employee.

PN15

Of interest in this case is the fact that Ms Kimber says at AB58 paragraph 24 of her affidavit that she had informed Ms Giles that she would like to take up the opportunity of full time employee, and you can see her email to that effect which is LK2 to her affidavit. It appears at page 84.

PN16

Of interest is that Ms Giles also says that Louise Kimber asked regularly that she be put on the payroll. Ms Kimber says that she thought from July that she would be put on the payroll and she was told by Ms Giles that that would happen when she had time. Ms Giles confirms at AB33, which is the transcript of evidence below - excuse me, Commissioners, I have just lost my note. I said 33 but it is actually 38. I misread the bottom of the page. At FN110 Ms Giles is speaking and at the bottom of that long paragraph in the final sentence she said:

PN17

Louise kept asking me could she go back on the payroll, blah, blah, blah and yes, basically.

PN18

So there is a confirmation there that the communication between Ms Kimber and Ms Giles was that Ms Kimber had an expectation that she would be an employee. It was her expectation that when she relocated to the premises of Western Auger Drilling that that was the new relationship that would be in place.

PN19

My learned friend's submissions say that there is no detail about what changes in Ms Kimber's work followed from the change in the relationship from contractor to employee, but it was more fundamental, the change. That is she relocated to the premises of Western Auger Drilling. She was required to wear a uniform when she relocated. She was using all of the equipment of Western Auger Drilling. She was not able to spend any time doing anything else. That was what Ms Kimber thought made up the relationship of employee for her.

PN20

If the Commission looks at the supplementary affidavit of Ms Kimber, AB127, you can see the work that Ms Kimber - the reason that she says the work was as an employee is she had a direct supervisor in Mr Gary Atkinson. Going over the page to 128, she didn't have any right to the work, so she wasn't creating general documents that were being used by Western Auger Drilling, she was producing documents solely for the use of Western Auger Drilling and did not retain any of those when she left. She worked full time hours and overtime. As a matter of practicality, she could not do work for anyone else. She did not run a business of her own, nor was it practically possible for her to do so and she did not spend any of her own money on business expenses or purchasing supplies for the respondent.

PN21

This is important, in my submission, because in Tattsbet when the Full Court considered the application of the principles relating to whether a person is an employee or not, they considered in that particular case that the way that Ms Morrow interacted with the tax department in that she lodged GST returns but also that she spent a significant amount of time - her own time or an accountant's time - preparing and gathering information for those returns and that she claimed a significant amount by way of input tax credits with respect to the GST. Ms Kimber is saying she did not spend any of her money for the purposes of Western Auger Drilling.

PN22

It is also important because the remuneration which Ms Kimber earned then was remuneration for her own services. In Tattsbet Ms Morrow's contract meant that the gross earnings was two thirds more than the net earnings that she received from Tattsbet. So she had expenses. She had to employ people, she had expenses in operating the agency. There is none of that in Ms Kimber's case.

PN23

VICE PRESIDENT CATANZARITI: At what point in time do you say the relationship changed?

PN24

MS ANDERSON: On 11 July 2014. That's the point at which Ms Kimber had arrived at Western Auger Drilling, she was installed in an office to work there.

PN25

VICE PRESIDENT CATANZARITI: 2014 or 2013?

PN26

MS ANDERSON: 2013, I apologise.

PN27

VICE PRESIDENT CATANZARITI: So Ms Kimber continued to remit invoices until December.

PN28

MS ANDERSON: She did, and she explains that by saying she asked Ms Giles when she would be put on the books and she was told that that would happen when Ms Giles got around to it. Keeping in mind that this is a busy workplace involved in a coal seam gas project, Western Auger Drilling was a sub-contractor to QGC and one can see from the material that there was quite a lot going on.

PN29

Ms Kimber says that it was a contractual requirement for Western Auger Drilling to have a full time workplace health and safety employee on the books. That was in response to Ms Giles saying, "We weren't sure that we needed someone full time."

PN30

Just on that point, there was a submission made by the respondent that there was no ability to test the evidence of Ms Kimber. I just refer you to paragraph 26 of the respondent's submissions. That appears on page 7. This is a submission specifically with respect to the uniforms. That is that Ms Kimber was required to wear a uniform but not request to pay for it whilst other sub-contractors were required to pay for their uniforms.

PN31

Could I ask you to look at the Appeal book page 49 which is again the transcript of the hearing below. This was not a full hearing. There was a hearing for the purpose of really answering some questions that the Commissioner had, but Mr Riwoe was specifically asked at page 49 whether there was anything else before there was an adjournment. Mr Riwoe said no. There was some other discussion about whether there should be argument about the question of wrongful termination and the Commissioner said:

PN32

We are only dealing with the threshold question of whether the employment relationship existed.

PN33

but it is, in my submission, not right to say that there was no ability for the respondent to test the evidence of Ms Kimber and, in fact, having had the affidavit material, it was open at any time for either party to request the opportunity to cross-examine or to have a full trial of the matter. So in my submission, to the extent that the respondent relies upon not being able to test the evidence, in my submission, that wasn't an issue below and ought not be an issue for the appeal.

PN34

That is similar to a point raised at paragraph 11 of the submissions of the respondent which appears at the top of page 4 of their submissions. There the respondent says that:

PN35

much of the evidence on the appellant's side was less than satisfactory. For example, the appellant gave no detailed evidence of the mechanics of any alleged transition from independent contractor to employee.

PN36

That wasn't an issue that was raised at first instance and it wasn't an issue that troubled the Commissioner, but it is not correct in any event because, as I took the Commission to earlier from paragraphs 10 to 26 of Ms Kimber's affidavit, Ms Kimber explains the transition was a locational one and then that she was working full time developing the systems for a workplace health and safety program and also implementing that.

PN37

At paragraph 13 of the respondent's submissions, in the final paragraph, the respondents refer to the telephone conference which was how the hearing below took place:

PN38

The appellant could not satisfactorily answer the Commissioner's questions about the work and mode of billing on 22 December 2013 in the context of her assertion that she was an employee.

PN39

Could I ask the Commission to look at the evidence at page AB41, which is where the questioning appears? The Commissioner was asking what sort of work it was that Ms Kimber had to do on that day beginning at PN149. If you go over the page to PN164, Ms Kimber says:

PN40

If I were asked to put down - if I were to put down the public holidays I would not have been paid. I had been asking and asking about going on the books full time because that was what was meant to have happened originally and the impression I got was getting just pushed out and pushed out and then when Christmas came I was pushed out until the public holidays were over so they would not have to pay me.

PN41

There is further discussion there where the Commissioner appears to be satisfied with the answers that she receives. What is of some interest then is where, on page 44 of the Appeal book, Ms Giles, responding to a question from the Commissioner - her response begins at page 43 at the bottom. At the bottom of page 43 Ms Giles says:

PN42

I would just like to add something else. My office - the other office staff worked Monday to Friday. I was in the office from Monday to Friday and I would go in and catch up on weekends. If Mr Kimber believed that she would be paid for public holidays or work if she came in, why work on a Sunday? I just have that question.

PN43

She goes on and then in the final two sentences of that paragraph she says:

PN44

And that just says to me that the agreement was that she would charge me a day rate whether she worked or not. I was in agreeance that, 'Yes, charge me a day rate, that's fine,' but as for the hours, Ms Kimber come in and did what hours to make up her days or whenever. That's why the invoice was on Sunday, the 22nd of the 12th.

PN45

In my submission, that appears to be an admission on the part of Ms Giles that she was paying Ms Kimber a day rate whether she worked or not. That's inconsistent with the finding of the Commissioner that she wasn't working as a full time employee and was only getting paid for the hours that she worked. It may well be that there was confusion between the parties, but from Ms Giles' perspective she was paying Ms Kimber, or intended to pay Ms Kimber, on a day rate for Monday to Friday whether she worked or not.

PN46

At paragraph 18 of the submissions of the respondent a submission there is that:

PN47

At paragraph 33 of the decision the learned Commissioner noted that neither party had addressed whether it was contemplated that the applicant sub-contract the work to another party."

PN48

My submission made more fully in the written submissions, I will simply refer to, is that it is irrelevant whether the parties were contemplating it or not. What is relevant is what was happening and there was no evidence that there was any sub-contracting going on. As a matter of practicality, in my submission, being a small office, Ms Giles would have been aware if Ms Kimber was sub-contracting and there wasn't any suggestion that she was.

PN49

I refer the Commission again to AB127 and 128. That is where Ms Kimber alluded to the fact that she was working full time. She did not have time to do work for others. In my submission, that is also supportive of a finding that she was not sub-contracting nor was she free to sub-contract.

PN50

At paragraph 19 of the respondent's submissions the point is made that there was no evidence of a contractual entitlement one way or another. The submission of the appellant is that the lack of evidence must be an indication that there was an employment relationship.

PN51

I take the point that is made in Tattsbet that an employer may well not be aware of what arrangements a sub-contractor was making with respect to sub-contracting that work out to others, but that was in a very different context from the context where Ms Kimber was working for Western Auger Drilling and that is the basis upon which I say that in the circumstances of this case one might expect that Ms Giles, at a minimum, would be aware if someone else was producing the work that was supplied by Ms Kimber. One might also expect that Ms Kimber's contract would be for a good deal more money if she was expected to pay someone else to do a portion of that work given that she was working full time hours.

PN52

At paragraph 22 of the respondent's submissions the respondent refers to the submission made by the appellant that the learned Commissioner did not have adequate regard to the evidence regarding what Mr Atkinson said about the relationship between Ms Kimber and him. Could I ask you to look at p.152 in the Appeal book? Page 152 forms a part of a letter that was written by solicitors for the respondent in response to questions about the employment relationship, so it is not a statement of Mr Atkinson but was provided by solicitors for Western Auger Drilling and so, in my submission, it might safely be accepted as his view of things.

PN53

Mr Atkinson is responding with respect to allegations of sexual harassment and bullying but it is clear when one looks at his responses to the allegations beginning at the top of p.152, the first full paragraph, he talks about the emergency evacuation plan. Ms Kimber drew that up. He thought it was inadequate.

PN54

The next response - this is with respect to employment agreements. Ms Kimber had prepared employment agreements, he didn't agree with that. He follows that up with a response about employment agreements again. If you look over the page at page 153 with respect to allegation 8, that has to do with heat stress training. The response that Mr Atkinson gives is that he told Ms Kimber:

PN55

Don't worry about it, I'll look after the heat stress training and get everyone through it.

PN56

She thought that that was her job to do. He, as her supervisor, directed her not to do it.

PN57

The next response to allegation 9, the allegation is:

PN58

You threw Louise's incident/injury forms down at camp in the garbage bin.

PN59

His response is:

PN60

On a preliminary point, the incident report forms referred to are not Louise's as they belong to Western Auger Drilling.

PN61

This supports Ms Kimber's point that the documents that she produced were solely for the purposes of Western Auger Drilling and did not belong to her. At the final paragraph on that page he says he put them in the bin and he had the support of Jamie to do that. He clearly was in a position where he was superior and supervising Mr Kimber. Those sorts of responses go on the following page as well.

PN62

At the bottom of page 154 with respect to an allegation related to a safety meeting Mr Atkinson says he was being cc'd into some of the safety emails but he wasn't getting all of them. He wanted to be cc'd into all of them because he was the Chief of Operations. That is an indication that Mr Kimber was put in a position where she was represented to others as the Safety Officer for Western Auger Drilling and he was in a position superior to her and directing what communications ought to have been made.

PN63

Whether one accepts the characterisation of the communications in the one Ms Kimber says they were or in the way Mr Atkinson says they were is irrelevant in my submission for the purposes of this argument. The only thing that is relevant is that Mr Atkinson was in a supervisory position over Ms Kimber.

PN64

At paragraph 23 of the respondent's submissions they refer to the learned Commissioner weighing up the evidence as to control and concluding that the appellant had a degree of autonomy over the work performed by her. At paragraph 42 of the Reasons for Decision the learned Commissioner sets out an extract from Ace Insurance The final sentence of that extract, the first paragraph of it, says:

PN65

The parties may agree the terms of their contract, but any statement by them about the character of the relationship or their contract has consistently been held not to be decisive of the true legal character.

PN66

That is the point raised in Tattsbet that in that case the reference of Ms Morrow being an agent was simply the background to the other four actors which were considered to be relevant pointing to her not being an employee.

PN67

In this case, while there was an agreement, there wasn't a signed agreement. The Commissioner did not place much weight on that but did not consider the relationship between the parties as they said the relationship was. In particular, it is not enough for one party to say what the relationship was. There must be an agreement between them and it seems clear in this case that Ms Kimber thought she was relocating for the purpose of becoming an employee and Ms Giles says now that no, no, it was to be a contractual relationship, but if there was no agreement, in my submission, it is not something the Commission would rely upon to say that she was a contractor because Ms Giles through she was.

PN68

VICE PRESIDENT CATANZARITI: One will have to look at what the evidence actually demonstrates on an objective basis.

PN69

MS ANDERSON: Yes, Your Honour.

PN70

VICE PRESIDENT CATANZARITI: I think really, Tattsbet is simply one case and there are many cases on what has been for the contractor and the issue of agencies in the betting - which I am quite familiar, having done a lot betting cases. It really doesn't take the matter any further.

PN71

MS ANDERSON: Yes, Your Honour.

PN72

VICE PRESIDENT CATANZARITI: So if we just truncate the submissions, I think.

PN73

MS ANDERSON: Yes, Your Honour. I referred to paragraph 26 in the respondent's submissions already with respect to the question of testing evidence. The appellant submits that the fundamental question is whether the learned Commissioner below properly considered all of the elements as are set out in the notice of appeal in the submissions of the appellant and placed any weight on anything other than the facts that invoices were provided.

PN74

In my submission, if the only thing that mattered was that invoices were provided, one then needed to explore the question of the GST, the question of the amount of remuneration, the question of the net income for Ms Kimber as opposed to the gross income. None of those issues was explored but on the evidence, had they been explored, one would have found that the method of remuneration was merely one element in a relationship in which all the other elements pointed to employment.

PN75

The respondent's written submissions conclude with a statement that it is necessary to look at the totality of the relationship to determine whether the appellant served the respondent in the respondent's business or was the person carrying on a trade or business of her own. The appellant agrees with that submission.

PN76

Unless there are any questions, those are my oral submissions.

PN77

VICE PRESIDENT CATANZARITI: No, thank you.

PN78

MS ANDERSON: Thank you.

PN79

VICE PRESIDENT CATANZARITI: Thank you, Mr Reed.

PN80

MR REED: Your Honours and Commissioner, can I hand up three copies of the authorities that are referred to in the respondent's written outline? Your Honour, the issue, as the Commission is well aware, was as to whether between 11 July 2013 and 2 January 2014 the relationship between Ms Kimber and Western Auger Drilling was one of employment or one of a principal and independent contractor.

PN81

A review of the learned Commissioner's decision below shows that the Commissioner took account of the relevant legal principles and gave a thorough consideration to the way in which each of the relevant traditional indicia might have application.

PN82

VICE PRESIDENT CATANZARITI: Who do you say the appellant was working for from 11 July 2013 to 2 January 2014? She was doing work for nobody else but the respondent, wasn't she?

PN83

MR REED: The evidence, such as it is, is to the effect that that's right. She worked in the - - -

PN84

VICE PRESIDENT CATANZARITI: And she had relocated.

PN85

MR REED: The evidence as to the reason for the relocation, as I have said, with the way in which the proceedings were conducted below, there was no extensive testing of evidence on either side.

PN86

VICE PRESIDENT CATANZARITI: Assuming that's right, why wouldn't that be a basis for upholding the appeal on a procedural basis?

PN87

MR REED: The parties chose to conduct the proceedings in that way. The procedure proposed by the Commissioner was consented to by the parties, each of whom was legally represented.

PN88

VICE PRESIDENT CATANZARITI: So that makes it right, does it, Mr Reed, if there are these issues which are live factual issues? You've heard that expression something like if something is a duck, you can't make it a goose or whatever it is. You've got to look at what actually the relationship is and if there is an evidentiary flaw because the matter wasn't properly tested, it may well attract a public interest in this sort of appeal.

PN89

MR REED: In my respectful submission, the parties need to be held to the way in which they conducted the proceedings at first instance.

PN90

DEPUTY PRESIDENT GOSTENCNIK: Mr Reed, are you saying that the respondent was not given an opportunity to cross-examine?

PN91

MR REED: Not in the way that - can I put it more neutrally that the affidavit evidence was fairly comprehensive on both sides.

PN92

DEPUTY PRESIDENT GOSTENCNIK: But conflicting.

PN93

MR REED: But conflicting and, unfortunately in many cases, consisted of evidence composed of assertions rather than going into any detail as to the testimonial matters that might go to assisting the Commission whether those assertions were, in fact, correct or not. To put the matter neutrally, there was no cross-examination of those respective assertions, so the Commissioner is left with conflicting evidence and the Commissioner had to do the best she could on the available material before her.

PN94

DEPUTY PRESIDENT GOSTENCNIK: Sorry, Mr Reed, from January onwards it's not in dispute that the relationship was one of employer.

PN95

MR REED: That is so, yes.

PN96

DEPUTY PRESIDENT GOSTENCNIK: Between 11 July 2013 and January 2014 what actually changed in relation to the indicia? What actually changed?

PN97

MR REED: Well, there's no - - -

PN98

DEPUTY PRESIDENT GOSTENCNIK: Invoicing stopped.

PN99

MR REED: Invoicing stopped, yes.

PN100

DEPUTY PRESIDENT GOSTENCNIK: Did anything else change?

PN101

MR REED: Well, the evidence isn't particularly fulsome about any of those things - - -

PN102

DEPUTY PRESIDENT GOSTENCNIK: The role didn't change, did it? The appellant's role didn't change.

PN103

MR REED: That's what the appellant says, but the evidence is really quite sparse about all that.

PN104

DEPUTY PRESIDENT GOSTENCNIK: Does your client say it changed?

PN105

MR REED: I'm sorry?

PN106

DEPUTY PRESIDENT GOSTENCNIK: Does your client say it changed?

PN107

MR REED: My recollection is that the matter is not really touched upon because the concentration was on what occurred between July 2013 and effectively 23 December 2013 because it's on that latter date that the documents are consistent with there being an employment relationship completed by Ms Kimber. The telling point for the Commissioner below and one which does, in my respectful submission, stand out is that the appellant here continued to conduct herself in the same way as she had conducted herself between March and July 2013. That is as an independent contractor and there is no contest that she was an independent contractor for that four month period.

PN108

DEPUTY PRESIDENT GOSTENCNIK: Except that she relocated.

PN109

MR REED: She had been - if one looks at the evidence, she had actually been on the premises at Chinchilla in the early part of March and then relocated in April. The Commission might find it instructive to look at those invoices which became, really, the only evidence of the manner of remuneration and what hours Ms Kimber may have worked during the relevant periods.

PN110

The invoices commence - just excuse me.

PN111

DEPUTY PRESIDENT GOSTENCNIK: AB193.

PN112

MR REED: Yes. If one looks at the early period one sees that generally the invoices were for consultation on OHS management systems. The hours that were being billed are set out in some detail. The invoices themselves conclude with the message, "Thank you for your business" so obviously they're traditional invoices that one would expect a contractor to issue to the principal. Large numbers of hours are being credited in March. Sorry, are being billed in March and that is consistent with Ms Kimber having been on the Chinchilla site in that early period. If the Commission will excuse me for a second, I will see if I can turn up the evidence of Ms Kimber in that regard.

PN113

It appears at paragraph 11 of her first affidavit at page 54 of the Appeal book where she says that she arrived at WAD, which is Western Auger Drilling, on 11 March and commenced temporary work. She then talks in paragraph 12 about developing some plans. This is at a time when, of course, she concedes that she was a contractor.

PN114

She says she was given a phone by Ms Giles in April. That's something that's relied upon, as I understand it, by the appellant. Of course, she was given that phone at a time when she was admittedly a contractor on her own assertion and continued to use the phone thereafter.

PN115

In paragraph 15 at page 55 of the appeal book is where one finds the evidence about her then shifting off to a remote location which appears to have been sometime - either on 12 April or sometime soon after. Sorry, that's confirmed in paragraph 17 where she says that she moved to Laidley on 11 April and continued to work remotely.

PN116

It's not disputed that she did relocate, but she relocated with her horses, and the evidence is unclear, but that could easily have been for matters of convenience to Ms Kimber and, of course, as that earlier evidence shows, she had in fact been at the Chinchilla premises in the early part of her relationship with Western Auger Drilling at a time when she concedes that she was a contractor.

PN117

The billing during the remote location period appears to start at about page 200 of the - either at page 199 or page 200 of the Appeal book where the hours seem to be a little bit more sporadic and, in some cases, reduced considerably which had something, no doubt, to do with the remote location but the invoices are still being issued on the basis of work described as OHS consultation. There are sub-descriptions such as "Development of OHS documents". All of that is entirely consistent with engagement as a contractor.

PN118

Now, after 10 July - and the first of those invoices appears at page 2010 of the Appeal book - the invoices are still being issued for work described as "OHS consultation" although the daily rate had been implemented. And in my respectful submission, there is nothing erroneous about the learned Commissioner below conclusion that a daily rate was entirely consistent with merely a different method of remuneration while the relationship remained one of contractor, but the Commission can see that from 17 July 2013 up until December 2013 there was a daily rate. The invoices continue to be described as for OHS consultation and importantly, the work that is said to have been the subject of these invoices on a daily basis is described as "Health and safety consultancy".

PN119

Now, Ms Kimber was a woman of mature years. She was in the vicinity of 40 years of age. She continued - - -

PN120

DEPUTY PRESIDENT GOSTENCNIK: Some might say that's very young, Mr Reed.

PN121

MR REED: I would say that, Commissioner - sorry, Your Honour. I would certainly say that and there are a range of perspectives, but I - and without casting my mind back to how mature I was at that age, one can suggest that she had been in the workforce for a while. She understood the nature of the various relationships that she might be able to enter into. She continued, importantly, in my respectful submission, to charge GST. If there was some belief that she was an employee, even if she thought that she was being forced to continue to provide these matters in respect of her remuneration, that doesn't explain why she continued to charge GST and presumably comply with the legal requirements cast by the various statutes on people who charge GST. And that description of - - -

PN122

VICE PRESIDENT CATANZARITI: And I think the reason we adjourned the matter on the last occasion, Mr Reed, is for that very issue to see whether something turns upon that because, of course, charging GST if in truth you are not entitled to it exposes the appellant to a risk if we form the view that the appellant is, in fact, an employee. So a mis-description doesn't make it legally correct.

PN123

MR REED: That is so, but I will take Your Honours and Commissioner to, in due course, a passage from the Tattsbet case and I take Your Honour's point that all these cases turn on their own facts, but there is an interesting passage in Tattsbet about the way in which the court in that case regarded issues concerning GST when one is confronted with the difficult characterisation exercises that frequently throw themselves up in these types of cases.

PN124

While the Commission has those tax invoices available, the Commission will note that there are no particular hours being billed after 10 July 2013. The method of remuneration was a daily rate but there is nothing to suggest in the evidence as to there being fixed hours worked. Ms Kimber says she worked a minimum of 38 but could work up to 42, but again that's as far as the evidence goes.

PN125

In the invoice for 18 December 2013 at Appeal book page 232 the Commission will see that Ms Kimber billed for work performed on 15 December 2013. That was a Sunday and it would appear that Ms Kimber did not bill anything for the previous Friday which would have been 13 December. No reasons appear for that in the evidence.

PN126

Then the next invoice is the invoice of 23 December 2013 at page 233 of the Appeal book in which at 22 December 2013 there are hours billed on that day. That was a Sunday and in contradistinction to all the other invoice entries in respect of that period from July to December, Ms Kimber billed for a particular number of hours on that Sunday being 6.5.

PN127

The learned Commissioner, in her decision, set out the relevant legal principles to be considered at paragraphs 18 to 22. That's pages 12 to 15 of the Appeal book. The learned Commissioner cited an extensive passage from Jiang Shen Cai trading as French Accent v Do Rozario. In that passage the ultimate question was identified at paragraph 1 of the passage cited.

PN128

At paragraph 66 of the decision at appeal book page 22 the Commissioner confirmed that she had considered the range of indicia in arriving at her decision and the makeup of the decision is completely evident that that's what she did. The conclusion of the Commissioner at paragraph 67 illustrates, in my respectful submission, that she applied the correct test. There can be no question at all of any jurisdictional error in the way in which the Commissioner went about her task below and, of course, in order to succeed on this appeal, the appellant has to show there was an error of fact or law and, of course, in respect of errors of fact, they have to be significant errors.

PN129

The important indicia would appear to have been the level of control and the working hours and also the mode of remuneration. As the Commission has indicated, the evidence on those matters was conflicting. Without taking the Commission in detail to the evidence concerning level of control and the way in which the working hours were worked out or not worked out, the relevant passages are in Ms Kimber's first affidavit at paragraphs 27, 28 and 31 at appeal book pages 57 to 58, in Ms Kimber's supplementary affidavit of 13 November 2014 at paragraph 5, appeal book page 125 and then on the side of the respondent, Ms Giles' affidavit of 1 July 2014 at paragraphs 16, 17, sub-A to sub-C, appeal book pages 181 and 182 and in Ms Giles' supplementary affidavit of 30 October 2014 at paragraph 9 appeal book page 303.

PN130

Can I take the Commission again to that document setting out Mr Atkinson's apparent responses to questions put to him in the context of the investigation because my learned friend has relied on it and because there are one or two passages there that would repay some further viewing. The passages commence at page 151 of the appeal book.

PN131

In my respectful submission, when one analyses those responses of Mr Atkinson - and one can accept that they were faithfully recorded and honestly given by Mr Atkinson - those responses are subject to something I will say shortly, equally consistent with a demarcation of the company's responsibilities as to health and safety with the work being undertaken by a contractor in producing documents for the purposes of compliance with the statutory regime which Western Auger Drilling was required to comply with.

PN132

For instance, Ms Kimber produced some documents which were put up on the notice board and Mr Atkinson, in his responsible role as a manager, considered that they were not satisfactory. That's equally consistent with him saying:

PN133

Well, your work as a contractor is not what's required in this particular case and here's some direction as to the way in which the company wants you as a contractor to produce material.

PN134

One of the other things about the material here in respect of Mr Atkinson, of course, is much of it is his responding to allegations of things that occurred on an unknown date. Given that complaints about Mr Atkinson included complaints about his conduct when - on each side - that is after January 2014 when either side conceded that he she was an employee, it makes that evidence a little bit difficult to deal with in any event. Some of it bears dates, but in my respectful submission, seems to be consistent with a direction being given to a contractor as to an employee.

PN135

At appeal book page 152 in respect of allegation 4 the Commission will note that again this was in respect of an unknown date, but if that unknown date was before 2 January 2014 what is interesting in the passage is, of course, that Mr Atkinson says that he discussed employment agreements with Ms Giles and that Ms Giles then went to talk to Ms Kimber about it but Ms Kimber had already finished for the day. That's again consistent with a contractor who was fixing her own hours rather than one who was working hours consistent with - - -

PN136

VICE PRESIDENT CATANZARITI: That's an incredibly long bow from that one sentence without any context, without any time or date.

PN137

MR REED: Indeed. It doesn't rise any higher than it's consistent with her having gone earlier but still being paid for the day. One of the matters which - sorry, I'll withdraw that.

PN138

Another way of looking at the matter, of course, is the appellant concedes that she had the autonomy of an independent contractor prior to 11 July 2013 and there is no cogent evidence of that level of autonomy changing after that date. Merely some conflicting assertions. Of course, the importance of objective evidence as to the nature of the relationship continued to be the ongoing provision - the ongoing issuing of the invoices.

PN139

As the Commission has commented and my learned friend has submitted, at the end of the day there is an objective test taking into account all the relevant indicia. When one is looking at a test which seeks to determine whether someone is working as a representative of the other party as an employee or is conducting his or her own business the subjective approach of the punitive of the employee/contractor must, to some extent, be relevant and in this case the appellant continued to hold herself out as a contractor by the way in which she formulated and issued the relevant business documents.

PN140

At paragraph 20, sub-paragraph (c) of my learned friend's submissions there is a submission made about the content of the invoices and it is to the effect that the appellant noted the words "employee status" on the invoices. That submission would appear to be wrong. I can't find those words appearing anywhere on the invoices.

PN141

Can I take Your Honours now to the Tattsbet case? Again, this was a case where there was a close study of a range of indicia, many of which pointed one way and many of which pointed another way on their face. As my learned friend has said, this is a contract whereby the putative employee entered into an arrangement to operate an agency for UNiTAB. UNiTAB provided the equipment for the work. UNiTAB required Ms Morrow s personal attendance at the place of work for a minimum of 32 hours per week. That appears at paragraph 19.

PN142

There were GST arrangements in place. That appears at paragraph 34. The Judge at first instance, held that the respondent s place of work was determined by the appellant, that is by Tattsbet. The court found that there was little flexibility in the way that Ms Morrow could undertake the operation of the agency. That appears at paragraph 43.

PN143

At paragraph 48 it s noted that she was registered for GST purposes. At paragraph 52, it was noted that her operation of the agency did not result in her having any goodwill in the relevant business. She had no asset that she might sell if she chose to leave the agency. And that s again one of the things that s said to be relevant in Ms Kimber s case.

PN144

Justice Jessup s analysis of all those matters commences at paragraph 63. And, again, these are words that have been echoed in the submissions in respect of this case and the present case of the respondent was that on any view working in the business of the appellant and in our written submissions we referred to that comment from the Trifunovski case in which it said that working in another s business is not an impediment to a finding that the relationship is one of principal and contractor.

PN145

At paragraph 65 of the Tattsbet case, in the last sentence, his Honour Justice Jessup said

PN146

But their understanding of the position may, and in the present case would be significant to the extent that it reflected what was the reality of the relationship.

PN147

And Australian Mutual Provident Society v Chaplin is cited, as it has been in a number of the authorities in this area of the law. Can I take the Commission to - - -

PN148

VICE PRESIDENT CATANZARITI: Can I say there from my perspective? There s absolutely nothing remarkable about the Tattsbet case, which I ve mentioned already on one occasion. I mean I m at a loss to understand how the judge, at first instance, found that anything but - - -

PN149

MR REED: Yes.

PN150

VICE PRESIDENT CATANZARITI: And if it had a contractual relationship and then when you look at the GST discussion in this particular case, that Justice Jessup is very careful to say these observations are made in the course of the present case.

PN151

MR REED: Indeed.

PN152

VICE PRESIDENT CATANZARITI: And he s looking at these cases. So I m not sure where you re going to take us on this because briefly - - -

PN153

MR REED: Well, sorry, your Honour.

PN154

VICE PRESIDENT CATANZARITI: It s almost an absurd conclusion of the decision-maker at first instance.

PN155

MR REED: Yes.

PN156

VICE PRESIDENT CATANZARITI: And it took 20 months to write the decision as it s been pointed out and then to get it wrong.

PN157

MR REED: There was more - - -

PN158

VICE PRESIDENT CATANZARITI: It was like a memory lapse occurred in that case.

PN159

MR REED: There was more than one problem.

PN160

VICE PRESIDENT CATANZARITI: Yes, but let s you ve got to look at the facts of this case, really.

PN161

MR REED: Well, as your Honour has indicated and your Honour is aware of the passage. At paragraph 70 and 71, and I won t take the Commission to a recitation of it, but Justice Jessup deals with the way in which the presence of GST and the collection of GST in cases of this type might assume a level of relevance.

PN162

DEPUTY PRESIDENT GOSTENCNIK: But the discussion is in the context and the context in the Tattsbet case was that the agent was engaged not merely to provide personal services by way of labour but to run a business for the respondent, was free to utilise other labour employed by the agent.

PN163

MR REED: Yes.

PN164

DEPUTY PRESIDENT GOSTENCNIK: So it s in that context that the GST discussion occurs, not in a vacuum.

PN165

MR REED: Well, with respect, your Honour yes and no it certainly does appear in that context but the collection of GST, of course, would have had little to do with the issue of employing other employees but, in my respectful submission, there is some - - -

PN166

DEPUTY PRESIDENT GOSTENCNIK: It goes to the question of tokenism and that is that the whole GST arrangement wasn t just tokenism.

PN167

MR REED: Indeed. Indeed. If it was a serious arrangement.

PN168

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN169

MR REED: And from the middle of paragraph 70, of course, his Honour talks about in contemporary times what the legislative markers might be and the way in which the absence of PAYG and the presence of GST might, in some cases, have a degree of relevance to the issue being sought to be determined and, in that case and in this case, in my respectful submission, the GST issue does have a degree of relevance.

PN170

In my respectful submission, this wasn t that is, Ms Kimber s case, wasn t one of those take-it or leave-it situations that is sometimes seen by the Commission where the characterisation of principal and contractor is, in effect, foisted on the party that has the lesser bargaining power in an arrangement.

PN171

DEPUTY PRESIDENT GOSTENCNIK: The evidence seems to be that it was Ms Kimber s suggestion that it be a contractor relationship at the outset.

PN172

MR REED: Yes, that s so. Yes. To not labour the obvious but Ms Kimber operated as a contractor from March 2013, and in my respectful submission continued to display the manifestations of such an operation until 23 December 2013 and when one analyses the thorough way in which the Commissioner below went about applying the facts to the relevant league of principles that no error was disclosed in her decision. Under those circumstances, permission to appeal ought, in my submission, to be refused or if the permission is granted the appeal ought to be dismissed. Unless I can assist further.

PN173

VICE PRESIDENT CATANZARITI: No, thank you.

PN174

MR REED: They re my submissions.

PN175

VICE PRESIDENT CATANZARITI: Ms Anderson?

PN176

MS ANDERSON: Thank you. Your Honour, my friend is correct that the submission with respect to the notation of employee status is an error. I neglected to address one issue that my learned friend raised in his submissions. Could I briefly say it s with respect to superannuation.

PN177

The finding of the learned Commissioner, at first instance, appears at paragraph 43 of her decision. She says in the final paragraph there

PN178

A payment of superannuation at a later stage when the parties were engaged in conciliation in examining that to resolve the claim does not in the circumstances of this matter justify an employment relationship.

PN179

That is only important because if one looks at the transcript of the hearing below at page 44 of the Appeal Book, it is clear that at the time the superannuation payment was made there was conciliation being undertaken. There is a description below PN188 of Mr Whybrow writing letters with respect to the investigation. So there was no conciliation taking place. It s unclear where that finding came from.

PN180

Your Honours, the only other issue to address in reply is the Commission has raised the question of whether, in the circumstances, if the Commission found that the evidence was unsatisfactory whether it might be appropriate for a rehearing of the matter. But isn t of course what the appellant sought in her application to appeal, but if that were the finding of the Commission the appellant would not argue against that.

PN181

DEPUTY PRESIDENT GOSTENCNIK: Ms Anderson, on the question of superannuation, does it really take the matter any further? I mean wasn t your client effectively within the extant of meaning of - - -

PN182

MS ANDERSON: I m sorry, your Honour, I just can t quite hear you.

PN183

DEPUTY PRESIDENT GOSTENCNIK: Does the superannuation point take the matter any further? Wasn t your client, in effect, within the expanded meaning of employee under the Superannuation Guarantee Administration Act?

PN184

MS ANDERSON: That s right, your Honour. It only what the appellant says about it is it is an indicia of employment as opposed to there being one over-riding factor.

PN185

DEPUTY PRESIDENT GOSTENCNIK: But if payment is made pursuant to the expanded meaning it is not an indicia of anything, other than the person comes within the expanded meaning for the superannuation guarantee purposes and nothing more.

PN186

MS ANDERSON: Yes, your Honour. And if that s what the Commissioner had found, I wouldn t raise it, but the finding of the Commissioner was that it wouldn t be unusual in the circumstances of the conciliation process for that payment to have been made. That s the only reason I raise it.

PN187

DEPUTY PRESIDENT GOSTENCNIK: I see.

PN188

MS ANDERSON: Thank you, your Honour.

PN189

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [12.12 PM]