case_text: The applicants next drew attention to the decision of the United Kingdom Court of Appeal in Cable & Wireless plc v Muscat [2006] IRLR 354 handed down subsequently to Brook Street , where it was found by majority that a labour hire worker was employed by the host rather than by the agency through which the host had directed that he be engaged. Whilst the applicants acknowledged the facts in Cable and Wireless were distinguishable from Brook Street , the applicants placed reliance upon the acknowledgment by the Court of Appeal in Cable & Wireless upon the majority's views in Brook Street , which they submitted to be seemingly to the effect that so long as remuneration is being provided in reality by the employer, it matters not that it is not paid directly by that employer but by a third party pursuant to another arrangement made by the employer with that third party. Quoting from Cable & Wireless , the applicants asserted that a person who would otherwise be the worker's employer did not cease to be his employer by arranging for the wages to be paid per medium of a third party, and further that '[t]he essentials of a contract of employment are the obligation to provide work for remuneration and the obligation to perform it, coupled with control', whether the arrangements for payment are made directly or indirectly. I will later return to a further discussion of Cable & Wireless in the context of CAO's submissions. 157 I have taken the course of reviewing the United Kingdom Court of Appeal authorities of Brook Street and Cable & Wireless in some detail because of the extent to which the applicants sought to place reliance upon the approach and findings apparent in the respective reasons for judgment, in the case of Brook Street referrable to the reasoning of Mummery and Selby LJJ, and in the case of Cable & Wireless referrable to the approach taken generally in the joint judgment of all members of the Court of Appeal. CAO's submission was to the effect that the reasons in both decisions, other than that of Munby J in Brook Street , should not be accorded any effective, much less decisive, operation in relation at least to the relevant circumstances of the present case which CAO has outlined. I will first address CAO's submissions relating to Brook Street. 169 I would next move to a consideration of the detailed attention afforded by the parties to Cable & Wireless , which I have earlier foreshadowed that I would do more extensively in the context of my recitation of CAO's submissions than did the applicants, CAO having given perhaps more extensive attention to Cable & Wireless . That case was decided by the United Kingdom Court of Appeal subsequently of course to Brook Street by a different bench being Sir Anthony Clarke MR and Smith and Kay LJJ. The joint judgment of their Lordships at [35] expressed the opinion that '... the view of the majority in Dacas was correct'. It was submitted by CAO nevertheless that the decision in Cable & Wireless was 'not compelling', in that the United Kingdom Court of Appeal once more did not address 'the fundamental problem of intention to create legal relations as a threshold question', or more precisely, to create a contractual relationship. In that latter regard, it was submitted by CAO that the Court of Appeal's reasoning in Cable & Wireless was 'out of step with the law in Australia', exemplifying in that regard Ermogenous and Teen Ranch , and in any event, that the decision in Cable & Wireless was of little relevance to the present case because of what was described as its vastly different factual circumstances. 170 The factual context to Cable & Wireless was different and more complex than in Brook Street , and needs to be explained in some detail in order to provide an adequate understanding of the nature and extent of the issue which there arose for resolution, and any conceivably comparable context to that involved in the present case. The respondent Mr Muscat had been engaged as an employee of a telecommunications specialist with a company called Exodus Internet Ltd ('EIL'), when the company decided to reduce the number of its employees in order to facilitate a potential buy-out, but which nevertheless wanted to retain that worker's services. EIL informed Mr Muscat that he would have to become a so-called contractor, and to provide his services through a limited company. His employment was thereupon terminated and a company named E-Nuff Comms Ltd ('E-Nuff') was set up to receive his pay and car allowance. About three months later, EIL was effectively taken over corporately by Cable & Wireless. Mr Muscat was described by Cable & Wireless within the context of its organisational structure nevertheless as an employee, and he was given accordingly an employee number. The cost of all of the equipment upon or with which he worked was paid by Cable & Wireless. Mr Muscat continued to submit invoices for his services provided in the name of E-Nuff. Since however Cable & Wireless considered Mr Muscat to have remained associated with it, though by then as a contractor, Cable & Wireless informed him that it would not deal with him directly, but that as in the case of all other contractors seeking to make arrangements for the provision of their services to Cable & Wireless, he would have to engage with Cable & Wireless through an agency entity called Abraxas plc, which had been retained to supply contracted personnel to Cable & Wireless. On 13 August 2002, E-Nuff (at least implicitly at Mr Muscat's direction) entered into a contract for services in favour of Abraxas, which included as a retrospective element the period of time up to when Mr Muscat became aware of the requirement for him to deal with Cable & Wireless per medium of Abraxas. It was that contract for services which was described as crucial to the resolution of the Cable & Wireless proceedings, in that it was the case of Cable & Wireless that such contract for services changed the status of Mr Muscat from that of its employee. Subsequently in late November 2002 Cable & Wireless informed Mr Muscat that it would no longer require his services and on 31 December 2002 he ceased work directly or indirectly (that is, purportedly per medium of E-Nuff and no longer by himself directly) for Cable & Wireless. In March 2003 Mr Muscat made a claim for compensation upon Cable & Wireless for unfair dismissal. Cable & Wireless contended in response that Mr Muscat was not its employee, but that contention was rejected, it being found that Mr Muscat held an implied contract of employment with Cable & Wireless. The notion of implied contract of employment had been postulated by Mummery and Sedley LJJ in Brook Street . 171 The unanimous judgment of the United Kingdom Court of Appeal in Cable & Wireless was acknowledged by CAO to have established, on the facts of that case, that the contention of Cable & Wireless that Mr Muscat was not its employee was not sufficiently compelling, in the light of the circumstances that: (i) Mr Muscat had been told by Cable & Wireless, after having subsequently worked for it per medium of his company E-Nuff under what was accepted by the Court of Appeal to be an employment contract, that Cable & Wireless did not deal with contractors, and that he would therefore have to deal with it in the future through Abraxas; (ii) Mr Muscat was given no choice other than to deal with Cable & Wireless through Abraxas, or else submit to the termination of the relationship which had been more recently brought into existence, and to sue for the monies he was by then owed; (iii) Cable & Wireless was obliged to provide Mr Muscat with work and he in turn was obliged to attend the premises of Cable & Wireless and to do the work of a telecommunications specialist, subject to the direction and control of its management; (iv) Mr Muscat arranged with the Cable & Wireless management for the taking of his leave, and that company provided equipment to him and paid his telephone accounts; Cable & Wireless also provided him with an employee number; before the agreement with Abraxas was entered into, Cable & Wireless had been under an obligation to make payment to Mr Muscat, but that it had imposed the arrangements under which Mr Muscat became thereafter required to deal with Cable & Wireless per medium of Abraxas; (v) in relation to the formation of the Abraxas contract, the only change thereby effected was that Mr Muscat became 'paid' by Abraxas; otherwise there was no express or implied termination of the arrangement between Mr Muscat and Cable & Wireless. 172 CAO submitted that '[it] is obvious that the case presented by Cable & Wireless was unattractive and even contained elements essential to the company's success but which were plainly unsupportable'. CAO contended however that nothing said in Cable & Wireless would suggest the result in the present case that each of the applicants were CAO's employees. There was no factual similarity of relevance between the circumstances of the present litigants and those of the parties to the Cable & Wireless restructured relationships. So much at least would seem to be correct, in that putting aside debate concerning the notion of implied contract of employment, the present circumstances did not involve any endeavour to restructure an existing employment relationship into a framework of labour hire which would no longer supposedly have the formal characteristics of any prior existing employment. 173 The concluding observations of the United Kingdom Court of Appeal in Cable & Wireless at [54] may therefore be conceivably pertinent to the approach which the courts may take in Australia in circumstances involving an employer's endeavour to alter an originally established relationship from that of a conventional contract of employment of a natural person to that of some form of principal and agent, such as was sought unsuccessfully to be achieved in Damevski ( ante ), but they have no sufficient connection to the circumstances of the present case, which involve no such alteration to the status quo of an employment relationship in favour of a natural person established in the conventional way, but rather the structure of genuine labour hire arrangements undertaken from the outset at arm's length.


case_outcome: cited

case_title: Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467

case_text: It was next emphasised by CAO that it bore comprehensive obligations pursuant to safety legislation, including the CMR Act, the CMG Regulation and the OHS Act; by way of one example, it was and remained obliged, pursuant to s 8(2) of the OHS Act, to 'ensure that people (other than the employees of the employer) are not exposed to risks to their health and safety arising from the conduct' of the employer's ' undertaking '. In relation to the analogous statutory obligation of an employer '... to ensure the health, safety and welfare at work of all employer's employees' imposed by s 15(1) of the precursor Occupational Health and Safety Act 1983 (NSW), it was said in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470 (Watson J) that 'the words "to ensure" are to be construed in... their ordinary meaning of guaranteeing, securing or making certain'. It was pointed out by CAO that the HVO remained at all material times a so-called controlled safety environment, as was acknowledged at least by Mr Wilton. 146 It was pointed out by CAO moreover that the obligation to ensure the safety of workers extended to every person working on site, whether as permanent employees, contractor personnel or some other persons; so much was said to have been testified by each of Messrs Wilton, Hendriks and Sargent. Moreover Mr Sargent further testified as to what CAO described as its proactive approach to safety precautions by way of policies and procedures designed to minimise safety risks to contractor personnel. Of course as an owner and occupier of its Ravensworth or Hunter Valley Operations, (to which I have been abbreviating as HVO), CAO would be subject to tortious duties of care in relation to visitors and other entrants and occupiers for the time being, irrespective of statutory liabilities flowing from its CAO mining operations. 147 CAO therefore submitted that the circumstances of exercise of control on its part, such as they were, did not demonstrate that CAO and the applicants were mutually involved in any employment relationship, and further that the explanation for the exercise by CAO of direction and supervision, to the extent of those CAO activities which took place, reflected the CAO case that the applicants were each employees of MES who had been supplied by MES to CAO in or towards discharge of the contractual obligations of MES to CAO.


case_title: Dalgety Farmers Ltd t/as Grazcos v Bruce & Another (1995) 12 NSWCCR 36

case_text: The applicants emphasised in the course of submissions that the present case did not involve the need for the Court to focus on all of the persons engaged by CAO on its mine site in the Hunter Valley, whether through contractors inclusive of MES, but rather must address the circumstances of the applicants in their interaction with and otherwise in relation to CAO. I was referred to the earlier case of Dalgety Farmers Ltd t/as Grazcos v Bruce (1995) 12 NSWCCR 36 at 46, where Kirby A-CJ (as he then was), with whom the other members of the New South Wales Court of Appeal agreed, observed generally in relation to an issue as to tortious liability of an employer: 'Determining whether employment exists, and if so with which person or organisation, is often a difficult task. It involves the characterisation of the essence of a relationship by reference to given criteria. It frequently results (as cases both in Australia and elsewhere illustrate) in borderline decisions upon which different legal minds, properly instructed, can reach different conclusions.' I would draw attention to his Honour's emphasis above upon the need for 'characterisation of the essence of a relationship' under scrutiny. The context to Dalgety Farmers related to the labour hire of shearers undertaken by an organising entity for pastoralists. 81 Generally as to the significance of the extent of direction and control of the applicants exercised by CAO, the applicants submitted that the Court was requested to look at all of the circumstances of the employment relationship, and in particular whether the label given to it reflects the reality, as well as the significance, of 'the control test' in any analysis of the employment relationship. CAO pointed however to the need to bear in mind that the contexts of the judicial observations for instance in The Queen v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Limited [1952] HCA 10 ; (1952) 85 CLR 138 at 151 (Dixon, Fullagar and Kitto JJ) and Dalgety Farmers were not related to labour hire arrangements, contrary of course to the situation here. That different context was said to reduce the reliance that may be placed on those judicial observations. That passage relied upon by the applicants in The Queen v Foster joint judgment at 151 was as follows: 'For, if in practice the company assumes the detailed direction and control of the agents in the daily performance of their work and the agents tacitly accept a position of subordination to authority and to orders and instructions as to the manner in which they carry out their duties, a clause designed to prevent the relation receiving the legal complexion which it truly wears would be ineffectual.' It was hence said by CAO that the circumstances in which persons are engaged to undertake work have developed materially since those general observations were made, particularly in relation to the evolution of activity of labour hire agencies. Thus in terms of control, it was further said by CAO that the relevant inquiry is not confined to the party that has exercised control, but extends to the circumstances by which control came to be exercised, including any contractual allocation of control by an employer to that other party, and any contractual undertaking by an employee to accept control from such other party. 90 For largely the foregoing reasons in summary, the applicants submitted that it was CAO rather than MES which had the right to control and did in fact control the applicants, and in that regard, [CAO] assigned work to and supervised the work of the applicants on a daily basis. It was emphasised that if there was 'anything amiss with the performance of the Applicants it was CAO who detected this and took the practical steps to remedy it', and further that '[t]he supervision by MES was only notional in matters such as discipline and safety because for all practical purposes decisions in those matters were taken by [CAO]', and yet further that 'MES [did not] have any power to direct the Applicants to work at a different site'. In that context, the applicants also contended that '[w]hile the control test is no longer the sole test of unemployment, it is still highly significant and may even be determinative in a case like this', pointing thereby to the following dictum , which I would observe nevertheless to be obiter , as well as inconclusive, of Clarke JA in Dalgety Farmers at 51: 'But, where the only question is whether a worker is employed by A or B, there is much to be said for the view that the question should be answered solely by reference to the control test. It is unnecessary to pursue the question further in the present case where the indicia, including the legal right of control, point so overwhelmingly in favour of... the employers. However, where the factors are more balanced, the control test could well be seen to provide, in the limited situations I am discussing, the determinative test.' 91 It was emphasised further by the applicants that they 'were fully integrated into [CAO's] operations', in that '[a]ll of the workers on each crew, including the Applicants, were engaged to perform similar duties and subject to similar rules of employment... [and] were subject to essentially the same supervision... [and] received the same information as they worked in the same environment and the safety requirements were the same for each crew member'. Moreover it was asserted by the applicants that the circumstances of the case 'demonstrate that the arrangements for payment of wages and other "paper matters" were outsourced by [CAO] to MES'. I would think that description to be contrary to the reality of the relationship between MES and each of the applicants, and indeed that the exercise of the somewhat basic function alone of paying the applicants' wages tends against the viability of the applicants' case, the payment of wages and the obligation so to do being normally of the essence of an employer's obligation the subject of a contract of employment in relation to an employee. Counsel for the applicants drew attention further to the circumstance that '[w]hile the Applicants were remunerated by MES on an hourly basis for the work they performed with premiums for penalty payments, [CAO] paid to MES an hourly rate for the work done by the Applicants for [CAO] with a similar scale of premiums when the penalty payments were paid by MES to the Applicants'. 109 It was contended by CAO at the outset that in order to constitute an employment relationship, the asserted parties thereto must be in a contractual relationship. So much was said to be at least implicitly exemplified by what appears in Byrne at 421 and 436. Given the variety of ways that a relationship of employer and employee may come about, formally or informally, the effectuation or otherwise of an employment relationship will not necessarily be readily cognisable, as the discussions for instance in Ermogenous at [24] and following under heading 'Intention to create contractual relations' exemplify and in Dalgety Farmers at [4] imply, see also the reference of Kirby A-CJ at [5] of Dalgety Farmers as to the need '... to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer' .


case_text: The applicants cited extensively from the Full Federal Court judgments in Damevski v Giudice and Others [2003] FCAFC 252 ; (2003) 133 FCR 438, where the unanimous conclusion of Marshall, Wilcox and Merkel JJ was to the effect that the purported restructure of a cleaning operation from that of former employees to their ongoing provision of cleaning services as contractors, but nevertheless still engaged by their former employer as a principal to the ongoing controversial relationship, did not operate to terminate the pre-existing contracts of employment for the purpose of the operation of the WR Act, no change having occurred in any physical sense to the work activities of the purported contractors from what had previously been undertaken by them as employees. I would interpolate to observe that no such restructure of any existing employment relationship of relevance took place in the present context, and care therefore needs to be taken in relation to any application to the principled approach there taken. The extensive reasons for judgment of Marshall J (with whom Wilcox J agreed whilst adding observations of his own) included emphasis at [86] upon the practical difficulty of locating or demonstrating an offer and acceptance in the traditional sense in the kind of context for instance there involved, his Honour pointing to what was further observed by McHugh JA in Integrated Computer Services concerning the difficulty of fitting 'a commercial arrangement into the common lawyers analysis of a contractual arrangement' , and moreover as to the need to distil 'the precise moment when the legal criteria of a contract have been fulfilled' , given that '[i] n a dynamic commercial relationship new terms will be added or will supersede older terms. ' As McHugh JA had also emphasised, it is necessary '... to look at the whole relationship and not only at what was said and done when the relationship was first formed' . In the present case, however, the framework of the relationship between the applicants and CAO stood still relevantly from the outset, as it were. 33 At 456-7 of Damevski , Marshall J made the following findings within [92], [96], [101] and [102], to which counsel for Messrs Wilton and Cumberland drew attention with emphasis, and which I will further reproduce below: '[92] Counsel for Endoxos relied upon the requirement for an intention to create legal relations to assert that there was no evidence of a legally enforceable contract. Subject to a rebuttal, it will be presumed in commercial agreements that the parties intend to create legal relations. Although the hiring agreement indicates Endoxos set about making arrangements to obtain its labour through MLC, this is not a clear rebuttal. Relationships can be established outside the hiring agreement. The hiring agreement cannot be determinative of the intentions of Endoxos and Mr Damevski to create legal relations. ... [96] Endoxos may have set about making arrangements for the provision of labour through a third party, but ultimately it acted in a way that showed that it in fact intended to create legal relations. The evidence indicates that Endoxos wanted to maintain control of Mr Damevski, expected him to use their equipment and clothing emblazoned with Endoxos livery and, ultimately, wanted to be able to dismiss Mr Damevski. ... [101] Although Endoxos had an intention to remove costs related to its role as an employer (such as increases in public liability insurance premiums), through its actions it also displayed an intention to establish a contractual relationship with Mr Damevski after his "resignation" on 19 August 2001. Endoxos directed Mr Damevski to worksites, called Mr Damevski to its offices for further instructions when necessary, gave Mr Damevski attire and equipment to enable him to perform work, and received pay slips from him. Mr Damevski also showed an intention to re-enter the legal relationship with Endoxos, by once again taking up the role he held with Endoxos before 19 August 2001. [102] The facts of this case also reveal that the contractual relationship that existed between Mr Damevski and Endoxos was one of employee and employer. As previously pointed out, the only difference between the relationship before and after 19 August 2001 was that MLC was given the role of paymaster.' In the present case, the applicants did indeed use only CAO machinery, but as I have also pointed out, it was MES which issued each of them with both clothing and protective equipment. 34 The reasons of Merkel J for concurrence with Wilcox and Marshall JJ in the outcome in Damevski revealed a varied approach from that of Marshall J undertaken at length, albeit variations which Wilcox J doubted to involve any 'difference [that] matters very much' (see [2] at 441). Nevertheless as his Honour also explained, care needs to be taken in applying principles along the lines of re-structured existing employment relationships from those of the purported hiring of employees from the outset. After pointing out in his conclusions at [173] that '[i] n general, the Courts have held that the interposition of a labour hiring agency between its clients and the workers it hires out to them does not result in an employee-employer relationship' , Merkel J reached the following conclusions at [174]: 'However, the present case differs in significant respects from those cases. In those cases, in general, the hiring agency interviewed and selected the workers, and determined their remuneration, without reference to the client. Usually, a client requesting a worker with particular skills was provided with one, who may or may not have been "on the books" of the hiring agency at the time the order was placed. The workers of such hiring agencies were usually meant to keep the agency informed of their availability to work, and in many cases were not to agree to undertake work for the client which had not been arranged or directed by the hiring agency. Equipment was either supplied by the worker themselves [sic] or by the hiring agency, except for specialist safety equipment which the client often supplied. Dismissal of a worker was only able to be effected by the hiring agency. The client can only advise the hiring agency that the particular worker is no longer required by it. Had AICA/MLC acted as a labour hiring agency for Damevski to contract his services to other cleaning companies, as suggested in the chart and in the information pack, then the decisions in the above cases may have been applicable to this situation. However, that did not eventuate in the present case.' In the present case however, the business of MES was indeed (and presumably remains) in the nature of a 'hiring agency' , and MES retained its personnel on its own employment books of record when hiring them to third parties at arm's length, and had done so apparently for some time in the context of mining operations in particular in the Hunter Valley such as those undertaken by CAO. The MES arrangements did not of course arise out of internally restructured employment arrangements, whether designed to obviate employment regulation, such as occurred for instance in Damevski . 117 The next segment of written submissions of CAO may be summarised to the effect that there is no evidence which established that either of the applicants perceived himself to have been in a contractual relationship with CAO, for the following reasons: (i) the applicants did not assert in evidence that they were employed by CAO during the course of their encounter with CAO; (ii) the applicants did not describe themselves in their respective applications to MES for employment in November 2004 as having been previously employed by CAO, but rather as each having been a 'contractor' at the HVO with 'the contracting company' (thereby referring to MES); I refer in that regard to their respective job application forms for permanent employment with CAO at the HVO appearing at pp 1045 and 1414 of Exhibit 1; (iii) the applicants did not describe themselves in their respective curriculum vitae as having been employed by CAO, but referred merely to their 'employment history', in the case of Mr Wilton as 'Mining Earth Moving Services 2001', and in the case of Mr Cumberland as 'Plant Operator Mining Earthmoving Services Muswellbrook...'; (iv) Mr Wilton did not describe himself in his taxation returns as having been employed by CAO, but he identified MES as the payer of his salary and wages in each of the years 2001 to 2005. In relation to that documentary material, it was pointed out by CAO that regard may be paid to subsequent conduct in order to ascertain whether a contract had or still existed (citing Brambles at [25] and Damevski at [85]), just as it is permissible to have regard to subsequent conduct in order to determine whether an intention to contract existed ( Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550, Gleeson CJ with whose reasons Hope and Mahoney JJA agreed and Damevski at [141] and [147]). 126 CAO acknowledged that the concept of a contract existing by mutual assent has been recognised in circumstances where the traditional analysis of offer and acceptance is inappropriate. I have earlier cited dicta (see [31] to [34]) in that regard appearing in Brambles, Integrated Computer Services and Damevski . In his concurring judgment in Brambles , Mason P referred to 'the difficulties of pressing too far classical theory of contract formation based upon offer and acceptance' . At the bottom line there must be satisfied at least the notion or test of mutual assent, viewed objectively from the point of view of reasonable persons on both sides to the objective candidature for establishment of a concluded bargain. Further in Brambles at [81], Heydon JA observed that '[i] n the light of the above cases, it is relevant to ask: in all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the Council and a reasonable person in the position of the defendant think as to whether there was a concluded bargain?' Merely because some dealings have occurred between the prospective parties to a bargain does not necessarily mean that a contract exists. As McHugh JA said further in Integrated Computer Services at 11,117, '[t] he question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement' , to which his Honour added '[t] he conduct of the parties, however, must be capable of proving all the essential elements of an express contract '. 133 There is a body of authority bearing on the foregoing subject to which I have already made reference starting at [26] of these reasons, for instance Stevens, Hollis and Damevski. Attention was drawn by CAO also to ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228 and BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361, which will shortly be discussed. The majority of those decisions were made in the broader context of determining whether a particular worker was an employee or else an independent contractor of the beneficiary of his or her work. 141 CAO submitted that the extent of control in a labour hire context is of less significance than in the normal employment context, and my attention was further drawn to the reasons for judgment of Merkel J in Damevski at [162], where his Honour referred briefly to Mason & Cox at [24]-[29] and Drake Personnel at [55] and observed that the entitlement of an employer to direct a purported contractor is '... relevant in determining whether an employment relationship exists although it is not as important as it may once have been, particularly in a labour hiring agency context'. In such a context, the fact that the client determines the hours of work should not preclude the existence of a contract of employment between a labour hire company and the worker, CAO thus contended and in my opinion rightly. CAO submitted moreover that '[s]ignificantly, the test for whether or not a contract is one of employment is not the "organisation test", which was identified by Mason J in Stevens at 26-29 and Wilson and Dawson JJ at 35-36, and where his Honour indicated at [27]-[28] that he was '... unable to accept that the organisation test could result in an affirmative finding that the contract is one of service when the control test either on its own or with other indicia yields the conclusion that it is a contract for services', because '[that] test does no more than shift the focus of attention to the equally difficult question of determining when a person is part of an organisation such that his wrongs may be imputed to that organisation'. Again of course as I have earlier emphasised, his Honour's consideration did occur in an immediate context of vicarious liability in tort, but nevertheless that dictum provides a measure of guidance in contexts involving issues as to the existence or otherwise of an employment relationship in an industrial setting. 173 The concluding observations of the United Kingdom Court of Appeal in Cable & Wireless at [54] may therefore be conceivably pertinent to the approach which the courts may take in Australia in circumstances involving an employer's endeavour to alter an originally established relationship from that of a conventional contract of employment of a natural person to that of some form of principal and agent, such as was sought unsuccessfully to be achieved in Damevski ( ante ), but they have no sufficient connection to the circumstances of the present case, which involve no such alteration to the status quo of an employment relationship in favour of a natural person established in the conventional way, but rather the structure of genuine labour hire arrangements undertaken from the outset at arm's length. 183 It follows therefore, from what I have thus far concluded in relation to the applicants' submissions, that there are doctrinal obstacles of significant judicial precedent cognisable by the general law of Australia which stand in the way of recognition of any entitlement to the grant of the relief sought in the present proceedings. That is not to say of course that a contract of employment, whether oral or in writing, may not contain implied terms, and indeed such would I imagine normally or often be the case. Where the difficulty largely lies, as exposed by the traditional approach taken by the third judgment in Brook Street , is in imputing any implied contract of employment in circumstances of labour hire, that being a transaction which inherently constitutes dual contractual arrangements, one being between the provider of the hired worker and the hired worker, and the other being between that provider of the hired worker and a third person who hires the second-mentioned person from the labour hire provider in order to obtain the performance of work from such hired person. The implications relevantly of labour hire postulated in the reasons for judgment of Merkel J in Damevski at [174], as outlined in what is extracted in [34] above, are in my opinion apposite to the present context.


case_title: Doyle v Sydney Steel Company Limited [1936] HCA 66 ; (1936) 56 CLR 545

case_text: The applicants acknowledged that the term 'casual employee' has no fixed meaning, citing Doyle v Sydney Steel Company Ltd [1936] HCA 66 ; (1936) 56 CLR 545 at 551, where Starke J provided the following description of the term: 'The description "casual worker" is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact for the commission.' At 555, Dixon J (as he then was) described the term as follows: 'But unfortunately what is casual employment is ill defined. Indeed it is scarcely too much to say that it seems open to a tribunal of fact to treat most forms of intermittent or irregular work as casual.' At 565, McTiernan J considered that the expression 'is not capable of exact definition' , and that '[e] ach case is to be determined on its own facts...' . 104 More recently in A/asian Meat Industry Employees' Union v Sunland Enterprises Pty Ltd (1988) 24 IR 467 at 473, Gray J observed that the expression casual employee 'does not have a recognised legal meaning' , so that any issue as to the terms on which a casual employee is engaged 'becomes one of fact' . Accordingly it would seem that the expression has not materially changed in meaning since the High Court's decision in Doyle.


case_title: Drake Personnel Ltd and Others v Commissioner of State Revenue [2000] VSCA 122 ; (2000) 2 VR 635

case_text: It is also instructive to retrace the evolution of Australian authority to Drake Personnel Ltd v Commissioner of State Revenue [2000] VSCA 122 ; (2000) 2 VR 635 at [54] , in the context of a pay-roll tax dispute, in which Phillip JA (with whose reasons Buchanan J agreed, as did Ormiston JA whilst adding observations of his own), said as follows: 'All of this is very helpful here, for it indicates that in a case like the present where A makes an agreement with B under which A supplies to B the services of C for the performance of work and A also makes a contract with C for C to perform the work for B, it can be said readily enough, that in performing the work C not only benefits B but is also advancing the business of A, to the benefit of A. It is true that the High Court was considering a statutory definition serving to extend the concept of employment; but it seems to me to follow that a temporary, in accepting an engagement to perform work for Drake's clients, is doing the work as much for Drake as for the client....' Phillips JA referred to a number of authorities, including Stevens, and at [56] continued as follows: 'In cases like these, we are often instructed to stand well back to assess the situation, after first having regard to the detailed facts. Standing back, it seems to me that in this case the subject matter of the contract between Drake and the temporary is casual employment. Once that step is taken, the rest falls into place. Drake can be seen, in a relevant sense, to be employing the temporaries to do casual work, albeit that the contract between the temporary and Drake arises only upon the temporary accepting the offer of work through Drake. The arrangement made with Drake is for casual work: the temporary is to go to the designated work-site and perform work according to the directions of the designated employer for the day; that all flows from the contract made by the temporary with Drake. Tomorrow or next week or next month it will be a different work-site and a different temporary employer, but again that will be the consequence of the temporary accepting an offer from Drake and a contract arising between Drake and the temporary.' His Honour's conclusion on this point was relevantly at [57]: 'Accordingly, if one looks at the matter "from a distance" as it were, the conclusion that the temporaries are employees of Drake according to ordinary concepts of the common law is one which not only can be supported but is I think required: the temporaries are engaged by Drake to perform casual work and the difficulties inherent in this case arise, first, from the very nature of casual work as impermanent and, secondly, from the fact that the contract between Drake and the temporary involves the temporary's doing work for and at the direction of a third party, Drake's own client. But given the contract made by the client with Drake and the contract made by Drake with the temporary, it seems to me perfectly consistent to conclude that the temporary is the employee of Drake in the relevant sense at common law.' 141 CAO submitted that the extent of control in a labour hire context is of less significance than in the normal employment context, and my attention was further drawn to the reasons for judgment of Merkel J in Damevski at [162], where his Honour referred briefly to Mason & Cox at [24]-[29] and Drake Personnel at [55] and observed that the entitlement of an employer to direct a purported contractor is '... relevant in determining whether an employment relationship exists although it is not as important as it may once have been, particularly in a labour hiring agency context'. In such a context, the fact that the client determines the hours of work should not preclude the existence of a contract of employment between a labour hire company and the worker, CAO thus contended and in my opinion rightly. CAO submitted moreover that '[s]ignificantly, the test for whether or not a contract is one of employment is not the "organisation test", which was identified by Mason J in Stevens at 26-29 and Wilson and Dawson JJ at 35-36, and where his Honour indicated at [27]-[28] that he was '... unable to accept that the organisation test could result in an affirmative finding that the contract is one of service when the control test either on its own or with other indicia yields the conclusion that it is a contract for services', because '[that] test does no more than shift the focus of attention to the equally difficult question of determining when a person is part of an organisation such that his wrongs may be imputed to that organisation'. Again of course as I have earlier emphasised, his Honour's consideration did occur in an immediate context of vicarious liability in tort, but nevertheless that dictum provides a measure of guidance in contexts involving issues as to the existence or otherwise of an employment relationship in an industrial setting. 163 As I foreshadowed, the submission of CAO on the implications of the authorities identified by Munby J was that his Lordship '... appears to have approached the case in a more conventional way', and seemingly 'to have included the question of "intention" in the mix of issues for considering what the facts actually proved including whether or not there was a contract with anyone at all'. There is in my opinion considerable force in that submission, in the light also of Drake Personnel and Forstaff more recently in Australia. Whilst agreeing with Mummery and Sedley LJJ upon the outcome to the appeal, Munby J parted company with the thrust of what I think may be described as their Lordships' obiter dicta , as Munby J at least implicitly indicated at [80]; indeed Munby J further expressed in [81] 'very serious misgivings about the course on which [such dicta] would have us embark' . 192 I think that CAO is correct in its comprehensive case advanced, in a sense in the alternative, to the effect that the conduct and functions of the respective parties were not otherwise indicative of an employment relationship between the applicants and CAO, having regard to the totality thereof, and having regard in particular also to the criteria apparent from the authorities to which I have already referred, inclusive in particular of Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton , keeping in mind in so doing that it is labour hire arrangements that are here inherently involved. I would acknowledge the relevance and force of all of the factors formulated in [135], each having varying significance without each being determinative in any fulfilment of the need for undertaking a balancing exercise in relation to all relevant factors bearing upon resolution of the principal issue arising as the existence or otherwise of relationships of employment. I would further acknowledge the prospective operation, in cases such as the present, of the principles enunciated generally in Mason and Humberstone , as well as perhaps more specifically in Drake , and additionally of course in Forstaff where reference to and examination of authority is undertaken by way of focus on labour hire arrangements.


case_outcome: applied

case_text: The issue here arising, as to whether or not a contract of employment was mutually intended to be established between the applicants and CAO, was emphasised by the applicants in any event to fall for determination by the Court objectively, and in that regard at least largely by inference from the conduct of the relevant parties, as exemplified in the following dicta of Gaudron, McHugh, Hayne and Callinan JJ appearing in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95 at [25] , shortly after the High Court's decision in Hollis : 'Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.' The circumstances in Ermogenous related to the engagement of a minister of religion, and hence were somewhat distant from the industrial context here involved, and in addition there was not present as here the competing element of the existence of a third party. Nevertheless the emphasis there given to the need to take account of the subject matter of a relevant agreement, the status of the parties thereto, their relationship to another, and other surrounding circumstances are factors of present importance. I would add reference to the need for the determination objectively of the mutual intention of the contracting parties, evidence of mere subjective intention being usually of controversial weight. 109 It was contended by CAO at the outset that in order to constitute an employment relationship, the asserted parties thereto must be in a contractual relationship. So much was said to be at least implicitly exemplified by what appears in Byrne at 421 and 436. Given the variety of ways that a relationship of employer and employee may come about, formally or informally, the effectuation or otherwise of an employment relationship will not necessarily be readily cognisable, as the discussions for instance in Ermogenous at [24] and following under heading 'Intention to create contractual relations' exemplify and in Dalgety Farmers at [4] imply, see also the reference of Kirby A-CJ at [5] of Dalgety Farmers as to the need '... to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer' . 159 CAO drew attention to the purported characterisation of the so-called triangular arrangement appearing at [52]-[53] of the reasons of Mummery LJ. I have already extracted earlier (at [85] in these reasons) much of what appears in [53]; in [51] his Lordship referred to the legitimacy of having regard to ' the fact, if it be the case, that a series or a number of transactions are intended to operate in combination with one another or are ingredients of a wider transaction intended as a whole'. That approach does not sit readily with the approach taken in the Australian authorities in relation to circumstances involving labour hire operators (such as in Forstaff). CAO's contentions were in summary to the effect that the analysis of Mummery LJ (and implicitly therefore also of Sedley LJ) fell 'rather short', in that the first issue normally required to be resolved in labour hire cases, such as Brook Street , is simply whether there existed a contract at all between the worker and the client of the labour hire agency, or else between the worker and the labour hire agency. I was referred to Ermogenous and Teen Ranch , both of which involved an issue as to whether the parties mutually intended to enter into a contractual relationship, the element of intention in that regard being paramount. The respective factual circumstances in those United Kingdom and Australian cases were some distance removed from the industrial context of the relationships involved in the present proceedings. 169 I would next move to a consideration of the detailed attention afforded by the parties to Cable & Wireless , which I have earlier foreshadowed that I would do more extensively in the context of my recitation of CAO's submissions than did the applicants, CAO having given perhaps more extensive attention to Cable & Wireless . That case was decided by the United Kingdom Court of Appeal subsequently of course to Brook Street by a different bench being Sir Anthony Clarke MR and Smith and Kay LJJ. The joint judgment of their Lordships at [35] expressed the opinion that '... the view of the majority in Dacas was correct'. It was submitted by CAO nevertheless that the decision in Cable & Wireless was 'not compelling', in that the United Kingdom Court of Appeal once more did not address 'the fundamental problem of intention to create legal relations as a threshold question', or more precisely, to create a contractual relationship. In that latter regard, it was submitted by CAO that the Court of Appeal's reasoning in Cable & Wireless was 'out of step with the law in Australia', exemplifying in that regard Ermogenous and Teen Ranch , and in any event, that the decision in Cable & Wireless was of little relevance to the present case because of what was described as its vastly different factual circumstances.


case_text: The evolution of Australian authority, in particular in a labour hire context as here, may next be made to Forstaff Pty Ltd v Chief Commissioner of State Revenue (2004) 144 IR 1 at [106]-[107], where the following appears in the comprehensive reasons for judgment of McDougall J (the abbreviated references below to Forstaff being to a labour hire company and to the client of Forstaff being to the operator of the business for whom a relevant worker undertook working duties): '106. I think it is clear that, when a worker accepts an offer of work and goes to the client's premises to perform that work, the worker is subject to the immediate control and supervision of the client. The client must: (1) Explain to the worker the precise nature of the work to be done. (2) In most cases, supply the worker with appropriate clothing (including safety clothing) and tools and equipment. (3) Direct or control the worker in the performance of his or her work. 107. The direction and control that the client has arises, I think, de facto rather than de [jure]. That is because ... there is no contractual relationship between the client and the worker. The worker is bound, by the terms of his or her contract with Forstaff, to accept "the care, control and supervision of [the] client" and acknowledges "the right of [the] client to direct my work activities". If the worker does not accept the care, control and supervision, or direction, of the client then the client may terminate the assignment. But the client is doing so pursuant to its contract with Forstaff, the effect of which the worker acknowledges in his or her contract with Forstaff.' His Honour held in Forstaff that since a contract of employment will normally come into existence whenever a labour hire company offers and a worker accepts an assignment of work from a client of the labour hire company, there was no contractual relationship accordingly in operation between the worker and that client of the labour hire company. His Honour referred in that context to the indicia at [118] as tending to indicate the existence of a contractual relationship of employment, being the deduction of PAYE tax, the arrangement and payment of superannuation, the arrangement and payment of workers compensation insurance, entitlement to overtime, penalty rates, public holidays and other allowances. As to indications to the contrary, his Honour referred to the absence of entitlement to holidays or sick leave. 162 The opinion of Munby J at [89] was therefore that '[i] f the obligation to remunerate the worker is imposed on the agency, there cannot be a contract of service between the worker and the end-user' , and conversely 'if, at the same time, control is vested in the end-user, then there equally cannot be a contract of service between the worker and the agency' . Those propositions were considered by his Lordship to reflect 'a consistent line of authority holding that in [such] circumstances there is no contract of employment indeed no contract at all between the worker and the end-user' . Moreover it is in line with Australian authority (for example Forstaff ) to postulate the need for there to be a contract in operation between a putative employer and a putative employee in order to establish the relationship of employer and employee. The extensive line of authority listed in [90] of his Lordship's reasons bearing upon the propositions which he enunciated include Stephenson . I would draw attention to the concluding sentence at [53] of the reasons for judgment in Stephenson , being that '[o] n any view it would, in our opinion, be unusual to describe an individual as having a contract of employment with a party who has no legal obligation to pay his wages and to whom he had no legal obligation to provide work' . Further authority in England conceivably to like effect was nevertheless cited by Munby J at [90] of his reasons. 163 As I foreshadowed, the submission of CAO on the implications of the authorities identified by Munby J was that his Lordship '... appears to have approached the case in a more conventional way', and seemingly 'to have included the question of "intention" in the mix of issues for considering what the facts actually proved including whether or not there was a contract with anyone at all'. There is in my opinion considerable force in that submission, in the light also of Drake Personnel and Forstaff more recently in Australia. Whilst agreeing with Mummery and Sedley LJJ upon the outcome to the appeal, Munby J parted company with the thrust of what I think may be described as their Lordships' obiter dicta , as Munby J at least implicitly indicated at [80]; indeed Munby J further expressed in [81] 'very serious misgivings about the course on which [such dicta] would have us embark' . 192 I think that CAO is correct in its comprehensive case advanced, in a sense in the alternative, to the effect that the conduct and functions of the respective parties were not otherwise indicative of an employment relationship between the applicants and CAO, having regard to the totality thereof, and having regard in particular also to the criteria apparent from the authorities to which I have already referred, inclusive in particular of Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton , keeping in mind in so doing that it is labour hire arrangements that are here inherently involved. I would acknowledge the relevance and force of all of the factors formulated in [135], each having varying significance without each being determinative in any fulfilment of the need for undertaking a balancing exercise in relation to all relevant factors bearing upon resolution of the principal issue arising as the existence or otherwise of relationships of employment. I would further acknowledge the prospective operation, in cases such as the present, of the principles enunciated generally in Mason and Humberstone , as well as perhaps more specifically in Drake , and additionally of course in Forstaff where reference to and examination of authority is undertaken by way of focus on labour hire arrangements.


case_outcome: referred to

case_text: In Hollis v Vabu Pty Limited [2001] HCA 44 ; (2001) 207 CLR 21 at 31-32, to which I was next referred by the applicants, the need for caution in relying on earlier authorities relating to vicarious liability in tort, for the purpose of determining the existence or otherwise of an employment relationship in a business or industrial setting, appears at the threshold of the reasons for joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ. The circumstances of that case concerned a courier business involved in the delivery by couriers of articles on bicycles on the basis of payment of fixed rates for each assignment, and in relation to which the High Court established (by a majority of five Justices to one) the existence of a relationship of employer and employee, contrary to the decision below of the New South Wales Court of Appeal. The following considerations addressed in that majority joint judgment at [48]-[50], to which attention was drawn by the applicants, were found to require the conclusion that: '48. First, these couriers were not providing skilled labour or labour which required special qualifications. A bicycle courier is unable to make an independent career as a free-lancer or to generate any "goodwill" as a bicycle courier. The notion that the couriers somehow were running their own enterprise is intuitively unsound, and denied by the facts disclosed in the record. 49. Secondly, the evidence shows that the couriers had little control over the manner of performing their work. They were required to be at work by 9 am and were assigned in a work roster according to the order in which they signed on.... The evidence does not disclose whether the couriers were able to delegate any of their tasks or whether they could have worked for another courier operator in addition to Vabu during the day. It may be thought unlikely that the couriers would have been permitted by Vabu to engage in either activity. 50. Thirdly, the facts show that couriers were presented to the public and to those using the courier service as emanations of Vabu. They were to wear uniforms bearing Vabu's logo.' The issue here arising is one step removed from Hollis , in that it is not in issue that Messrs Wilton and Cumberland did not have the status of employees per se instead of that of independent contractors. The issues here involved boil down to identification of the employer of the applicants Messrs Wilton and Cumberland, whether being CAO as contended by the applicants or MES as contended by CAO, in the context of MES's function of labour hire. Nevertheless as I have also foreshadowed, the jurisprudence emerging from cases involving directly the issue as to whether an entity conducting a business retained a particular person as an employee, or else engaged that person as an independent contractor, contain judicial dicta which may assist the resolution of those issues so arising in the present context. 28 The issue here arising, as to whether or not a contract of employment was mutually intended to be established between the applicants and CAO, was emphasised by the applicants in any event to fall for determination by the Court objectively, and in that regard at least largely by inference from the conduct of the relevant parties, as exemplified in the following dicta of Gaudron, McHugh, Hayne and Callinan JJ appearing in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95 at [25] , shortly after the High Court's decision in Hollis : 'Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.' The circumstances in Ermogenous related to the engagement of a minister of religion, and hence were somewhat distant from the industrial context here involved, and in addition there was not present as here the competing element of the existence of a third party. Nevertheless the emphasis there given to the need to take account of the subject matter of a relevant agreement, the status of the parties thereto, their relationship to another, and other surrounding circumstances are factors of present importance. I would add reference to the need for the determination objectively of the mutual intention of the contracting parties, evidence of mere subjective intention being usually of controversial weight. 35 The mutually acknowledged need for caution in placing reliance upon litigated precedents, in the context of deciding if there exists an employment relationship in the circumstances of a particular subsequent case, was emphasised in Hollis , where at [31] of the reasons for the joint judgment of the High Court to which I have already made reference, the following further appears: 'The concession in the Court of Appeal was one as to a proposition (more accurately, a conclusion) of law alone, and not as to the facts on which that proposition rested. In Zuijs v Wirth Brothers Pty Ltd , the same concession had been made in the New South Wales Supreme Court but was held not to stand in the way of this Court hearing argument and, indeed, holding to the contrary on appeal. Moreover, it has not been demonstrated that any substantial prejudice would result to Vabu in allowing Mr Hollis now to argue this point. All the facts necessary for determination of the question were adduced and proved at trial and no new fact is sought to be or needs to be raised. Further, one might have thought that, as a practical matter, there would have been considerable obstacles in the path of any challenge to the finding of a relationship of principal and independent contractor at trial or in the Court of Appeal because it would have been contrary to the prior holding of the Court of Appeal in the taxation decision.' It was asserted on behalf of the applicants that the present case was not an instance '... where the Court needs to focus on all of the persons engaged by [CAO] through contractors or even all the persons engaged by [CAO] through MES', but rather was an instance which 'requires the Court to focus on the circumstances of the two applicants in their interaction with [CAO]'. Nevertheless I did not understand the applicants to distil, by way of any detailed or definitive description, the existence of any material difference between the arrangements made between MES and CAO for the utilisation of the services of Mr Wilton or Mr Cumberland and those of other workers introduced by MES to CAO, for what that might matter. 97 I was referred by the applicants again to Hollis , and to the segments appearing at [47] - [57] of the reasons for joint judgment of the High Court. I have earlier extracted the text of [48]-[49] and part of [50] of that joint judgment, but I need say no more other than to repeat that the issue there was not, as here, the identification of the employer of persons having an acknowledged status as employees, but the identification of their employer in a tortious context. I do not therefore consider sufficient assistance to be available here from further passages in Hollis . 98 The next subject arising is the applicants entitlement to the benefits of their respective employment agreements sought to be recovered from CAO. 99 It was asserted on behalf of the applicants that they were paid as casual employees under the MES agreement, and hence at rates of pay said to be 'significantly less' than the rates that applied to both permanent or casual employees under the 2000 and the 2003 Certified Agreements. Those Agreements came into force respectively on 20 October 2000 for a term of three years and on 12 December 2003 for a further term of three years, and each related to 'employees engaged in production and engineering functions at the Hunter Valley Operation', in the case of the 2000 Agreement, and to 'employees of the company performing production and engineering work' in the case of the 2003 Agreement. 134 The effect and operation of that line of authority may be outlined as follows: (i) the totality of the relationship is to be considered; thus in Stevens , the following appears in the reasons for judgment of Mason J (as he then was) at 24: 'But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.' To that dictum may be added what I have earlier cited at [26] of my reasons from the joint judgment of Wilson and Dawson JJ in Stevens ; (ii) in the most recent of the foregoing five authorities above recorded ( ACT Visiting Medical Officers) , a Full Federal Court comprising Wilcox J, myself and Stone J in a joint judgment applied the principles emerging from analogous authority for the purpose of characterising relevantly the visiting medical officers engaged by public hospital authorities to provide medical services to public patients; the Full Court observed the practical realities inherent in the circumstance that in the course of their treatment of patients undertaken at the hospitals, the visiting medical doctors 'moved seamlessly between patients in the two groups' , being both private and public patients, as an integral part of the businesses that each of those doctors individually carried on; (iii) in BHP Billiton the person at the centre of the dispute had been employed by BHP Billiton and its precursors as a locomotive driver until he was made redundant in 1999; in 2001 he applied successfully for employment with a labour hire company then supplying contract drivers to BHP Billiton; from that time to 2004, and while directly employed by the labour hire company but working at BHP Billiton, he applied for advertised direct employee position with BHP Billiton on four separate occasions but was unsuccessful each time; the Union alleged that BHP Billiton had unreasonably refused to employ him, and that he was in any event jointly in the employ of entities inclusive of BHP Billiton; declaratory relief was sought to that latter effect, as was also an order in any event that such person be employed by BHP Billiton on an award; in the course of decision-making the Industrial Appeal Court of Western Australia was required to consider the Union's case that the person concerned was an employee of BHP Billiton according to ordinary concepts; the Union submitted that the correct approach to deciding the question as to the existence or otherwise of an employment relationship was to have regard to the totality of the relationship, citing inter alia in that context Hollis and Stevens . At [114] in the reasons for judgment of Le Miere J, with whose reasons Wheeler J agreed and Pullin J at least substantially agreed, it was observed as follows: 'In Hollis v Vabu and Stevens v Brodribb Sawmilling Co Pty Ltd the High Court set out the common law principles for distinguishing between an employee and a contractor. These principles do not embody a definition of employment as such. They rely instead on a test which involves the consideration of a number of established factors or indicia, some of which are characteristic of a contract of service and others of which suggest a non-employment relationship. The task of the court which must assess the employment status of a worker is to consider the parties' relationship in light of each of these indicia and to determine, on balance, into which legal category the relationship falls. The exercise is not a mechanical one. Rather it is a matter of obtaining the overall picture from the accumulation of detail.' 136 CAO emphasised that the importance of those factors will vary with the circumstances, no single factor being normally determinative, and that a balancing exercise is to be undertaken in relation to all of the relevant factors ( ACT Visiting Medical Officers at [19]-[20], [27] and [30] and BHP Billiton at [114]). CAO pointed out additionally that the fact that a party is benefited by the activities of a person is not a sufficient indication that the person is an employee, pointing thereby to Hollis at [40], where in the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, the following observation was made: 'Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee.'


case_text: It was submitted by the applicants in the light of the foregoing authorities that in determining whether each of them is entitled to the relief sought in the present proceedings against CAO, it is necessary to consider the total relationship between the applicants and CAO, and hence all the facts and circumstances bearing upon the applicants' particular employment. In so doing, it was further submitted that the Court is entitled to have regard to conduct that occurred after the relationship commenced. I was referred to what was observed by Heydon JA (as he then was) in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 163-164, commencing, 'The second relevant principle is that post-contractual conduct is admissible on the question of whether a contract was formed' , his Honour thereby citing authority, commencing with Howard Smith & Company Limited v Varawa [1907] HCA 38 ; (1907) 5 CLR 68 at 77, in the context of his discussion of principles of contract formation. Further in Brambles at 177 on the subject of limitations upon an offer and acceptance analysis, Heydon JA adopted the following dictum of the New South Wales Court of Appeal in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,118 (McHugh JA with whose reasons Hope and Mahoney JJA concurred) : 'Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In any dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' It would be somewhat of an overstatement to describe the present context as involving a 'dynamic commercial relationship' , but nevertheless the foregoing dictum is by no means out of place in the present context.


case_text: Specifically as to the importance of the notion of control, the focus of that expression was said by CAO to reside in the right of the putative employer to exercise the same with focus on 'ultimate authority' over the employee as to the apparent origin of the judicial use of that latter expression. CAO invoked the observations made by the South Australian Full Court in Mason & Cox Pty Ltd v McCann (1999) 74 SASR at [29], where Doyle CJ (with whose reasons Mullighan J agreed) said that emphasis is upon '... the importance of the legal right to control rather than the practical fact of control' , being an emphasis attributed to the following dictum of Dixon J (as he then was) in Humberstone v Northern Timber Mills [1949] HCA 49 ; (1949) 79 CLR 389 at 404: 'The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions.' 192 I think that CAO is correct in its comprehensive case advanced, in a sense in the alternative, to the effect that the conduct and functions of the respective parties were not otherwise indicative of an employment relationship between the applicants and CAO, having regard to the totality thereof, and having regard in particular also to the criteria apparent from the authorities to which I have already referred, inclusive in particular of Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton , keeping in mind in so doing that it is labour hire arrangements that are here inherently involved. I would acknowledge the relevance and force of all of the factors formulated in [135], each having varying significance without each being determinative in any fulfilment of the need for undertaking a balancing exercise in relation to all relevant factors bearing upon resolution of the principal issue arising as the existence or otherwise of relationships of employment. I would further acknowledge the prospective operation, in cases such as the present, of the principles enunciated generally in Mason and Humberstone , as well as perhaps more specifically in Drake , and additionally of course in Forstaff where reference to and examination of authority is undertaken by way of focus on labour hire arrangements.


case_text: It was submitted by the applicants in the light of the foregoing authorities that in determining whether each of them is entitled to the relief sought in the present proceedings against CAO, it is necessary to consider the total relationship between the applicants and CAO, and hence all the facts and circumstances bearing upon the applicants' particular employment. In so doing, it was further submitted that the Court is entitled to have regard to conduct that occurred after the relationship commenced. I was referred to what was observed by Heydon JA (as he then was) in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 163-164, commencing, 'The second relevant principle is that post-contractual conduct is admissible on the question of whether a contract was formed' , his Honour thereby citing authority, commencing with Howard Smith & Company Limited v Varawa [1907] HCA 38 ; (1907) 5 CLR 68 at 77, in the context of his discussion of principles of contract formation. Further in Brambles at 177 on the subject of limitations upon an offer and acceptance analysis, Heydon JA adopted the following dictum of the New South Wales Court of Appeal in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,118 (McHugh JA with whose reasons Hope and Mahoney JJA concurred) : 'Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In any dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' It would be somewhat of an overstatement to describe the present context as involving a 'dynamic commercial relationship' , but nevertheless the foregoing dictum is by no means out of place in the present context. 32 The applicants cited extensively from the Full Federal Court judgments in Damevski v Giudice and Others [2003] FCAFC 252 ; (2003) 133 FCR 438, where the unanimous conclusion of Marshall, Wilcox and Merkel JJ was to the effect that the purported restructure of a cleaning operation from that of former employees to their ongoing provision of cleaning services as contractors, but nevertheless still engaged by their former employer as a principal to the ongoing controversial relationship, did not operate to terminate the pre-existing contracts of employment for the purpose of the operation of the WR Act, no change having occurred in any physical sense to the work activities of the purported contractors from what had previously been undertaken by them as employees. I would interpolate to observe that no such restructure of any existing employment relationship of relevance took place in the present context, and care therefore needs to be taken in relation to any application to the principled approach there taken. The extensive reasons for judgment of Marshall J (with whom Wilcox J agreed whilst adding observations of his own) included emphasis at [86] upon the practical difficulty of locating or demonstrating an offer and acceptance in the traditional sense in the kind of context for instance there involved, his Honour pointing to what was further observed by McHugh JA in Integrated Computer Services concerning the difficulty of fitting 'a commercial arrangement into the common lawyers analysis of a contractual arrangement' , and moreover as to the need to distil 'the precise moment when the legal criteria of a contract have been fulfilled' , given that '[i] n a dynamic commercial relationship new terms will be added or will supersede older terms. ' As McHugh JA had also emphasised, it is necessary '... to look at the whole relationship and not only at what was said and done when the relationship was first formed' . In the present case, however, the framework of the relationship between the applicants and CAO stood still relevantly from the outset, as it were. 126 CAO acknowledged that the concept of a contract existing by mutual assent has been recognised in circumstances where the traditional analysis of offer and acceptance is inappropriate. I have earlier cited dicta (see [31] to [34]) in that regard appearing in Brambles, Integrated Computer Services and Damevski . In his concurring judgment in Brambles , Mason P referred to 'the difficulties of pressing too far classical theory of contract formation based upon offer and acceptance' . At the bottom line there must be satisfied at least the notion or test of mutual assent, viewed objectively from the point of view of reasonable persons on both sides to the objective candidature for establishment of a concluded bargain. Further in Brambles at [81], Heydon JA observed that '[i] n the light of the above cases, it is relevant to ask: in all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the Council and a reasonable person in the position of the defendant think as to whether there was a concluded bargain?' Merely because some dealings have occurred between the prospective parties to a bargain does not necessarily mean that a contract exists. As McHugh JA said further in Integrated Computer Services at 11,117, '[t] he question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement' , to which his Honour added '[t] he conduct of the parties, however, must be capable of proving all the essential elements of an express contract '.


case_text: More recently in Macdonald v Australian Wool Innovation Ltd [2005] FCA 105 to which CAO drew attention, Weinberg J of this Court addressed an issue as to the existence or otherwise of a binding contract of employment, and summarised the appropriate juridical approach at [182]-[183] as follows: '182. It is clearly established that there cannot be a concluded agreement unless the parties are "of one mind" on all essential terms. The test for determining whether a term is "essential" is objective. One way of answering that question is to ask whether the contract would be "commercially viable" without such a term. In relation to the agreement of further, non-essential, terms, the question to be asked is: did the parties intend that the agreement would not become binding until there was agreement on the further terms, or did they intend to be bound forthwith, even if there were terms still to be agreed. In addition, there ought to be some indication that there has been an offer, and an acceptance of that offer, though many commercial dealings do not lend themselves to such an orthodox analysis. 183. In determining whether the parties have reached a legally binding agreement, it is necessary to determine what is sometimes described as their objective intention. The legal rights and obligations of the parties turn upon what their words and conduct would reasonably be understood to convey, and not upon their actual beliefs or intentions.... The objective approach is said to lead to a greater degree of certainty in contractual dealings and in their assessment by courts. A party who on reasonable grounds supposes that he or she has entered into a contract with another cannot be defeated by a claim by the other that, despite appearances, he or she did not actually intend to enter into a contract.


case_title: Mason & Cox Pty Ltd v McCann (1999) 74 SASR 438 at 443

case_text: Specifically as to the importance of the notion of control, the focus of that expression was said by CAO to reside in the right of the putative employer to exercise the same with focus on 'ultimate authority' over the employee as to the apparent origin of the judicial use of that latter expression. CAO invoked the observations made by the South Australian Full Court in Mason & Cox Pty Ltd v McCann (1999) 74 SASR at [29], where Doyle CJ (with whose reasons Mullighan J agreed) said that emphasis is upon '... the importance of the legal right to control rather than the practical fact of control' , being an emphasis attributed to the following dictum of Dixon J (as he then was) in Humberstone v Northern Timber Mills [1949] HCA 49 ; (1949) 79 CLR 389 at 404: 'The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions.' 141 CAO submitted that the extent of control in a labour hire context is of less significance than in the normal employment context, and my attention was further drawn to the reasons for judgment of Merkel J in Damevski at [162], where his Honour referred briefly to Mason & Cox at [24]-[29] and Drake Personnel at [55] and observed that the entitlement of an employer to direct a purported contractor is '... relevant in determining whether an employment relationship exists although it is not as important as it may once have been, particularly in a labour hiring agency context'. In such a context, the fact that the client determines the hours of work should not preclude the existence of a contract of employment between a labour hire company and the worker, CAO thus contended and in my opinion rightly. CAO submitted moreover that '[s]ignificantly, the test for whether or not a contract is one of employment is not the "organisation test", which was identified by Mason J in Stevens at 26-29 and Wilson and Dawson JJ at 35-36, and where his Honour indicated at [27]-[28] that he was '... unable to accept that the organisation test could result in an affirmative finding that the contract is one of service when the control test either on its own or with other indicia yields the conclusion that it is a contract for services', because '[that] test does no more than shift the focus of attention to the equally difficult question of determining when a person is part of an organisation such that his wrongs may be imputed to that organisation'. Again of course as I have earlier emphasised, his Honour's consideration did occur in an immediate context of vicarious liability in tort, but nevertheless that dictum provides a measure of guidance in contexts involving issues as to the existence or otherwise of an employment relationship in an industrial setting. 192 I think that CAO is correct in its comprehensive case advanced, in a sense in the alternative, to the effect that the conduct and functions of the respective parties were not otherwise indicative of an employment relationship between the applicants and CAO, having regard to the totality thereof, and having regard in particular also to the criteria apparent from the authorities to which I have already referred, inclusive in particular of Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton , keeping in mind in so doing that it is labour hire arrangements that are here inherently involved. I would acknowledge the relevance and force of all of the factors formulated in [135], each having varying significance without each being determinative in any fulfilment of the need for undertaking a balancing exercise in relation to all relevant factors bearing upon resolution of the principal issue arising as the existence or otherwise of relationships of employment. I would further acknowledge the prospective operation, in cases such as the present, of the principles enunciated generally in Mason and Humberstone , as well as perhaps more specifically in Drake , and additionally of course in Forstaff where reference to and examination of authority is undertaken by way of focus on labour hire arrangements.


case_title: Mead v New England Seed Traders Pty Limited [1972] WCR (NSW) 113


case_text: Further submissions in writing of the applicants in chief designated as the 'Contract between Applicants and Respondent', and comprising 13 pages, were placed before the Court purportedly as 'Conclusions'. Those submissions commenced with an acknowledgment of the applicants that 'in so far as matters relating to the employment arrangements of the Applicants were in writing, they mainly suggest employment by MES rather than [CAO]', given particularly that 'the Applicants were paid by MES and MES also made provision for superannuation, workers compensation and deducted and remitted income tax payments to the Australian Taxation Office'. Those circumstances as to payment of wages by MES, and of matters incidental thereto, such as the issue of group certificates and provision for superannuation, were said by the applicants not to constitute conclusive evidence of the existence of any employment relationship between the applicants and MES. I was referred by the applicants to the need to consider 'the reality' of the 'paper arrangements', notwithstanding that the same may not be characterised as 'sham' in nature, and to the following observations in that regard of Handley JA in Pitcher and Another v Langford and Another (1991) 23 NSWLR 142 at 162: 'Almost all the matters relied upon... for the appellants, namely declaration of the shearers' wages by the owner, payment of insurance premiums thereon, payment of wages by the owner to the shearers, payment of the tax thereon and the signing of the written agreements are paper matters. Such paper matters can be no more effective than signed agreements in preventing a Court from discerning the real nature of the relationship between the parties.' The foregoing principle may be readily acknowledged forensically. Whether it may operate adversely to the operation of the reality of the subject documentary arrangements as put in place by MES and CAO is however another matter.


case_title: Queensland Stations Proprietary Limited v The Federal Commissioner of Taxation [1945] HCA 13 ; (1945) 70 CLR 539

case_text: CAO submitted additionally that the evidence did not support a conclusion other than that the ultimate legal control over each of the applicants resided with MES, and further that although CAO could forbid the applicants to enter the mine and could restrict their movement on the mine site, that situation was no different from what applied to any person present on the mine site or seeking to enter the mine site. Moreover CAO emphasised that the factor of control was only one factor to be considered in assessing the existence of an employment relationship, and was not a determinative factor; I was referred in that regard to ACT Visiting Medical Officers at [19] and [27]. As to the proposition that a person accepting superintendence or control of another person did not necessarily mean that the person became an employee, I was referred to Queensland Stations Proprietary Ltd v the Commissioner of Taxation [1945] HCA 13 ; (1945) 70 CLR 539 at 552, Stevens at 36 and Ready Mixed Concrete (South East) Ltd v Minister Of Pensions and National Insurance (1968) 2 QB 497 at 526 (MacKenna J); that dictum in Ready Mixed Concrete at 526 included the following: 'A man does not cease to run a business on his own account because he agrees to run it efficiently or to accept another's superintendence.'


case_text: In any event, it was submitted by CAO that '... it is well established that a worker may be subject to quite detailed control over what they do and how they do it, yet still not be an employee'. I was referred to Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 526, where MacKenna J observed, in relation to the services undertaken by certain owner-drivers engaged in the cartage of concrete by their own vehicles that '[a] man does not cease to run a business on his own account because he agrees to run it efficiently or to accept another's superintendence' . I observe that the issue there arising was whether a company marketing and selling concrete was an independent contractor and not subject to a 'contract of service' under section 3(a) of the National Insurance Act 1965 of the United Kingdom. That issue was not therefore in line at least precisely with the issue here arising as to whether the applicants were employees of CAO rather than MES. 62 The applicants submitted that the evidence established that 'in practice' CAO had responsibility for discipline, whereas MES had only so-called 'token responsibility'. In that regard, Mr Cumberland testified that day-to-day issues that arose concerning work performance were dealt with by CAO's supervisors. The following evidence was given by Mr Cumberland in the context of his evidence (under cross-examination): 'Q. And in paragraph 10 on page 1676 you say: Coal and Allied is responsible for my discipline. You say some other things, but just stopping there. And when you say that, you are referring, are you, to the fact that Coal and Allied had the power to prevent you coming back onto the mine site if they weren't happy with you?---Correct. Yes. And when you talk there about performance management, do you see that---?---Yes. ---what are you referring to?---For example, if I am running a dais or my performance is not up to scratch on that mine lease, I need reviewing. They might say you are not on the dais for a while until such time as you pick up your game. We are going to put you back to a truck or another piece of equipment on the job. So, that the Coal and Allied supervisor observing what you are doing, if he is not happy with the rate at which you are performing, he could say to you well, look, we are not happy. We expect more of you than that. We are going to re-allocate you to a different task?---Correct. Okay. And, of course, you may even be offered assistance, mightn't you? Someone might come along and say well, look, can we give you some assistance? I mean, is there something that you are concerned about?---Correct.' I do not think that the foregoing testimony can be appropriately described as demonstrative of mere 'token responsibility' having been assumed by MES for Mr Cumberland's performance at the HVO. In a labour hire context, the provider of the hired worker would seemingly have some responsibility in principle to its customer to whom a worker is hired as to for instance the hired person's working qualifications and skills necessary for the performance of his or her work mutually envisaged to be undertaken. 63 It was next submitted by the applicants that in conformity with their day-to-day supervision, CAO managed the performance of their work and disciplined them on a daily basis when their work was inadequate, and further that so much was conceded in the course of the presentation of CAO's evidence. Mr Israel testified as to how he would explain to the operators (such as the applicants) the task required to be performed, and if not being so performed, how he would 'like it done'. He further testified as to his function of ensuring that all crew members returned from 'crib break' on time. The applicants submit 'as a typical example of day-to-day "discipline" imposed by Mr Israel upon a crew member for being late back to work after a crib break', Mr Wilton's testimony as follows: 'Mr Israel wanted to know why we took so long for crib. The next day he asked to see me in a small room, asked me why it had happened, why we took so long. I explained myself to Mr Israel, the circumstances that it took so long. He didn't seem happy with the reason--- Well can you just give evidence as to what was said rather than---?--- He pulled me into the room and asked me why it happened and why I took so long and I told him the reasons why. And did he say anything else?--- He did, yes. And what did he say?--- Why it happened, why did I take so long. Don't let it happen again. Yes and just be aware of your times next time.' 143 CAO submitted additionally that the evidence did not support a conclusion other than that the ultimate legal control over each of the applicants resided with MES, and further that although CAO could forbid the applicants to enter the mine and could restrict their movement on the mine site, that situation was no different from what applied to any person present on the mine site or seeking to enter the mine site. Moreover CAO emphasised that the factor of control was only one factor to be considered in assessing the existence of an employment relationship, and was not a determinative factor; I was referred in that regard to ACT Visiting Medical Officers at [19] and [27]. As to the proposition that a person accepting superintendence or control of another person did not necessarily mean that the person became an employee, I was referred to Queensland Stations Proprietary Ltd v the Commissioner of Taxation [1945] HCA 13 ; (1945) 70 CLR 539 at 552, Stevens at 36 and Ready Mixed Concrete (South East) Ltd v Minister Of Pensions and National Insurance (1968) 2 QB 497 at 526 (MacKenna J); that dictum in Ready Mixed Concrete at 526 included the following: 'A man does not cease to run a business on his own account because he agrees to run it efficiently or to accept another's superintendence.'


case_title: Reed v Blue Line Cruises Limited (1996) 73 IR 420

case_text: Subsequently in Reed v Blue Line Cruises Ltd (1996) 73 IR 420, Moore J observed more illustratively at 425: 'A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.' 106 It was contended that in the light of the circumstances of the applicants' employment in the HVO which I have sought to describe and exemplify, the Court should find that by the time of commencement of the claim period in July 2002, the full time and exclusive nature of the applicants' employment at the HVO was such that they were permanent full time employees rather than casual employees for the purposes of the 2000 and 2003 Agreements. 107 Mr Wilton's analysis of timesheet data relating to times worked by him for the weeks respectively ending 10 June 2001 to 20 January 2002, inclusive of day, night and afternoon shifts, was that the same averaged 49.19 hours per week, and Mr Cumberland's analysis of that data relating to time worked by him for the weeks ending 15 July 2001 to 20 January 2002, similarly inclusively, was that the same averaged 43.32 hours per week. Mr Wilton's analysis of timesheet data relating to times worked for the weeks respectively ending 27 January 2002 to 15 May 2005, similarly inclusively as to day, night and afternoon shifts, represented an average of 40.38 hours per week and Mr Cumberland's analysis relating to time worked for the weeks ended 27 January 2002 to 26 December 2004, again similarly inclusively, represented an average of 35.78 hours per week. Those calculations in relation to Mr Wilton were said to indicate underpayments of $31,126.56 made up as follows: 2002/03 year $4,697.00 2003/04 year $13,584.25 2004/05 year $12,845.31 Those calculations in relation to Mr Cumberland were said to indicate underpayments of $47,912.45 made up as follows: 2002/03 year $8,410.00 2003/04 year $18,971.25 2004/05 year $20,531.20.