WORKERS COMPENSATION COMMISSION

CERTIFICATE OF DETERMINATION
(Issued in accordance with section 294 of the Workplace Injury Management and Workers Compensation Act 1998)

MATTER NO: APPLICANT: RESPONDENT:

000857-11 Michael Gore Amalgamated Pest Control Pty Ltd

DATE OF DETERMINATION: 26 May 2011

The Commission determines: 1. Award for the applicant pursuant to section 36 of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $1,684.30 per week from 3 March 2010 to 31 March 2010, and at the rate of $1,716.40 per week from 1 April 2010 to 22 June 2010. Award for the applicant pursuant to section 40 of the 1987 Act at the rate of $606.00 per week from 23 June 2010 to 30 January 2011. Credit to the respondent in respect of any payments made to date. The respondent is to pay the applicants section 60 expenses. The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment in respect of the cervical spine and left upper extremity resulting from injury on 2 March 2010. The respondent is to pay the applicants costs as agreed or assessed. Certify the matter as complex with a 15 per cent increase in the costs otherwise available to both parties.

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A brief statement is attached to this determination setting out the Commissions reasons for the determination.

I CERTIFY THAT THIS PAGE AND THE FOLLOWING PAGES IS A TRUE AND ACCURATE RECORD OF THE CERTIFICATE OF DETERMINATION AND REASONS FOR DECISION OF DEBORAH MOORE, ARBITRATOR, WORKERS COMPENSATION COMMISSION.

FOR REGISTRAR Trish Dotti Senior Dispute Services Officer By delegation of the Registrar

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STATEMENT OF REASONS BACKGROUND 1. The applicant, Michael Gore, is a qualified pest technician. He commenced work with the respondent, Amalgamated Pest Control Pty Ltd, in April 2009. The applicant was allocated duties by the respondent, and following completion of a job, he submitted invoices to the respondent under the trading name of CPML Services. On 2 March 2010 the applicant attended a job at the Campsie Hotel. As he walked through an underground cellar, some floorboards slipped from under him causing him to fall and injure his neck, left shoulder and chest. He was able to return upstairs with the assistance of the staff then telephoned Mr Burke from the respondent who arranged to send a manager, Mr Milligan, to the site. An ambulance was also called and the applicant was conveyed to Canterbury Hospital. He was released a few hours later and came under the care of his general practitioner, Dr Tan, and subsequently an orthopaedic surgeon, Dr Diwan. He remained off work for several months, and was paid compensation and medical expenses by the respondents insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz) for a period of time. He eventually resumed work on light duties and restricted hours until ceasing in January 2011 to take up employment elsewhere. Liability was ultimately declined in a section 74 Notice dated 2 August 2010 on the grounds that the applicant was not a worker within the meaning of section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). By an Application to Resolve a Dispute (the Application) registered in the Commission on 4 February 2011, the applicant sought weekly benefits from 3 March 2010 and lump sum compensation. At the arbitration hearing on 5 May 2011, the Application was amended, by consent, to add a claim for medical expenses. The claim for weekly benefits was amended to claim for the period 3 March 2010 to 30 January 2011. The quantum of the applicants entitlements to weekly benefits, should he succeed, was also agreed.

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ISSUES FOR DETERMINATION 8. At the hearing, Counsel for both parties agreed that the only issue in dispute between the parties remained worker. The injury and consequent incapacity were not in issue. PROCEDURE BEFORE THE COMMISSION 9. The parties attended a hearing on 5 May 2011. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

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EVIDENCE Documentary Evidence 10. The following documents were in evidence before the Commission and taken into account in making this determination: (a) The Application and attached documents, and (b) The Reply and attachments. Oral Evidence 11. No oral evidence was adduced. DISCUSSION 12. In his statement dated 9 December 2010, the applicant said: 2. I have been employed on a full time basis as a subcontractor by [the respondent] as a pest technician since 6 April 2009. I work on average 50 hours per week [sic] working Monday to Saturday from 7am to 5pm each day. All of the work that I do comes directly from [the respondent] and I am paid on a weekly basis by them. The work is provided to me in a run which denotes the times which I am expected to be at the various jobs. This run sets out my entire working day from 7am until 5pm however can be significant [sic] later depending on the jobs which I am assigned. 3. I have worked as a pest technician for over 20 years, and it is the only type of employment in which I have ever worked. 13. The applicant then went on to describe the circumstances of his injury noting that after he was injured he telephoned Mark Burke from the respondent who then arranged for the training and compliance manager, Liam Milligan, to come out to the site to see if I was ok. The applicant then, at the request of Mr Milligan, provided him with his phone so that Mr Milligan could take photos of the cellar and the scene of the accident. 14. He said that he was paid compensation for a period and that while he was off work I had received several messages from my employer stating that they wanted me to come back to work and at times got very hostile towards me. He subsequently resumed work with the respondent on 23 June 2010 on light duties and part time hours adding that: The work which I was given by Amalgamated was light in nature and did not require me to do any inspections or do any heavy lifting. He continued to do this work until he left in January 2011 to take up alternative employment. 15. He made the following further relevant statements: (a) When he commenced working with the respondent he was required to purchase a new work ute which was marked with Amalgamated writing on the sides and on the tray and had special tool boxes fitted to the tray. The tool boxes and ladder which he used also had the Amalgamated logo on them; (b) He was of the belief that he was to work solely for the respondent since all the equipment he needed was provided by the respondent and all the work he did came from the respondent;

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(c) The work was allocated to him the day before in the form of a run which listed each job, the address, and time he was required to attend and the anticipated completion time; (d) The jobs generally spanned the entire course of the day, and he would generally be working up to 12 hours per day due to the amount of work he was allocated; (e) When he commenced work with the respondent he was advised to take out sickness and accident cover, but there was no mention of workers compensation; (f) He was provided with a uniform, green pants and a shirt, a pair of overalls and a jumper and jacket all of which had the Amalgamated logo on the left hand side; (g) He was advised that he had to wear the uniform at all times and was not allowed on site unless he was wearing it; (h) He had been advised that he was permitted to do his own work but that it would have to be fitted in around the work he was allocated by the respondent, and that he would have to use transport other than the work ute which he had purchased; (i) With the amount of work he was given by the respondent each week, he was unable to do any other work as he was working up to 60 hours per week for the respondent, and (j) He was paid by the respondent on a weekly basis which was deposited by the respondent into his bank account each Wednesday. 16. Included in the Application were numerous documents broadly described as pay slips. An example is three documents for 14 July 2009 at pages 25 to 27 of the Application. It appears that the respondent generated an invoice detailing the name of the customer, the work to be done, and set out a total amount on an account (page 25). The amount payable to the operator was 47.5 per cent of the gross for % purposes, in this instance, $1,861.22. On page 26 is a Tax Invoice dated 14 July 2009 from CPML Services to the respondent in the sum of $1,861.22 plus GST of $186.12. At page 27 is a Tax Invoice in identical form also dated 14 July 2009 from the respondent to CPML Services for a total of $119.22 being for equipment hire and chemicals. 17. The applicant signed an Operators Agreement (the Agreement) on 6 April 2009. The Agreement was between the respondent and CPML Services (ABN supplied) but signed by the applicant and Mr Collins on behalf of the respondent. Relevant extracts are as follows: BACKGROUND 1. The Principal carries on the business of Pest Controller as sub-licensee of Amalgamatedand wishes to engage from time to time an independent contractor to perform pest control activities. 2. The Operator wishes to be engaged as independent contractor to perform pest control activities. OPERATIVE PROVISIONS: 1.AGREEMENT TO SUPPLY SERVICES ON REQUEST The Operator agrees that ifthe Principal makes an offer to the Operator to undertake and perform a pest control activity (an Amalgamated Job) as an independent contractor to the principal, the Operator must, if it accepts that offer, undertake and perform that Amalgamated Job in accordance with the terms of this Agreement. 18. The Agreement then set out the rights and obligations of the parties. Relevantly for the Operator these may be summarised as follows: (a) To supply and maintain at his own expense tools, equipment and chemicals; (b) If using chemicals not purchased from the Principal, these were to be of a similar type, standard and quality of those supplied or recommended by the Principal;
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(c) To work diligently on a job so as to maintain and increase the Operators and the Principals business, goodwill and reputation; (d) To maintain at his own expense a motor vehicle, and when doing an Amalgamated job, to ensure that the vehicle carries such sign writing or other advertisements as may be required by the Principal; (e) To immediately notify the Principal of any accident or illness preventing the Operator performing his work, and (f) To obtain at his own expense, maintain and wear the Amalgamated uniform as required by the Principal whilst performing an Amalgamated job. 19. Part 4 of the Agreement set out the terms of remuneration. The Operator was to be paid weekly by way of commission of 47.5 per cent of 97 per cent of money received by the Principal. At Part 10, the Operator acknowledged that he was an independent contractor, and that if he engaged employees, he was required to take out a policy of insurance under the provisions of the WorkCover Queensland Act 1998. Part 11 entitled the Operator (with the Principals consent) to undertake work in partnership, by incorporation or with the assistance of employees. 20. The Application also included a document from the respondent titled Position Description. It set out the companys history and goals, adding: We believe in allowing you the authority and scope to do your job well.You will become the expert in your field, so when you have ideas about your job or the company, we would love to hear them. It added other criteria for the position including: (a) Ask for assistance from Supervisor/manager if faced with a difficult treatment situation; (b) Confirm payment method with clients before starting a job; (c) Ensure all credit card payments are authorised prior to leaving the site; (d) Comply with all health and safety instructions, policies and procedures provided by [the respondent]; (e) Strictly adhere to the [respondents] Approved Chemical and Products List; (f) Report all known and observed hazards to your immediate supervisor or manager; (g) Vehicle and equipment to be maintained in good condition with a high level of presentation; (h) Present vehicle and equipment for inspection as and when required; (i) Adhere to company policy on uniforms at all times while carrying [out] pest management work; (j) Compulsory attendance at training meetings and company conferences; (k) Undergo further training as required by management from time to time; (l) Follow all reasonable instructions from supervisor and manager, and (m) Any other duties as directed by management. 21. The Reply contained a factual investigation by Verifact dated 24 June 2010. It included, inter alia, statements from a number of representatives from the respondent. The general manager, Michael Farr, prepared a statement dated 2 June 2010. He made the following points: (a) The applicant was engaged as an independent contractor when he signed the Operators Agreement; (b) He was offered work from the respondents client base; (c) He was not obliged to do this work and had the right of refusal; (d) He was free to perform his own pest control work, but not under the respondents trademark;
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(e) The respondent was able to offer client referral work all year round, but independent contractors could take leave or perform other work; (f) The respondent offered work referrals, initial training and ongoing professional development free of charge, but other associated costs such as travel, equipment, operational expenses and chemical supply were the responsibility of the contractors; (g) Weekly tax invoices from the contractors must be given to the respondent; (h) The applicant was paid by way of a percentage commission; (i) He was required to supply and maintain his vehicle, all tools, equipment and clothing; (j) He leased the equipment from the respondent through a percentage levy that was deducted from his weekly earnings; (k) He must supply his own vehicle; (l) Any consequential warranty work must be done at the contractors expense; (m) The respondent had a blanket insurance policy for Accident and Sickness and this was an option for contractors and the applicant was charged a premium for this option; (n) Independent Contractors can opt out but only if they obtain an equal or superior level of cover; (o) The applicant opted in and was currently receiving weekly benefits for incapacity, and (p) The respondent did not provide for superannuation, annual or sick leave benefits. 22. The regional manager for NSW, Daryl Collins, provided a statement on 10 June 2009. It was in similar terms to that of Mr Farr. He confirmed that: We offer all contractors Sickness and Accident Insurance and Vehicle Insurance. If they choose not to take out insurance through us they must provide evidence of comparable insurance held elsewhere. We do not offer Workers Compensation Insurance. He also said that the applicant was free to do other work providing he does not use anything that identifies him with this company. 23. Mark Burke, the operations manager, and Liam Milligan, described as the applicants supervisor, also made statements on 10 June 2010. They are in virtually identical terms to those of Mr Collins and indeed Mr Farr. FINDINGS AND REASONS 24. The term worker is defined in section 4 of the 1998 Act as follows: worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). 25. The essential feature of the definition is the contract of service between the employer and the worker. This relationship must be distinguished from that of the contract for services which is generally referred to as the rendering of services by an independent contractor. 26. The onus is on the worker to prove the employment contract. 27. The principal submission by Counsel for the respondent was that, although there were a number of indicia suggestive of an employer/employee relationship between the parties, the parties rights and obligations were clearly set out in a binding agreement which either party was entitled to rely upon in all circumstances. It was an agreement between two business
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entities, and although signed by the applicant, was in effect an agreement binding the respondent and CPML Services. It was a clear expression of intention between the parties. There was no suggestion that the agreement was made under duress or coercion. The critical feature of the agreement, it was submitted, was the clause in the Operative Provisions which emphasised that persons such as the applicant were free to accept that offer of work from the respondent. In other words, the applicant, as an independent contractor, was free to accept or reject an offer of work but if he accepted it, he was bound to perform it in a manner stipulated by the respondent. There was no suggestion that if an offer of work was declined, then there was a risk that the agreement may be terminated. In addition, it was submitted that I should infer from the applicants statement that he had been advised that he was able to do other work that this was advice given by the respondent. 28. This ability to accept or reject work was a critical feature of the relationship, and reliance was placed on the decisions of Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 63 ALR 513 (Stevens) and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Hollis). 29. In addition, it was submitted, the applicant was not paid a salary but paid by way of commission, a clear indication that he was not an employee of the respondent. 30. Counsel for the respondent also referred to the decision of Deputy President Roche in Gerob Investments Ballina Pty Ltd t/as Beach Life Homes v Compton [2007] NSWWCCPD 180 (Gerob). DP Roche upheld the arbitrators decision that Mr Compton was a worker. The circumstances of that case are not dissimilar to those of the present. Mr Compton worked exclusively for the employer, was provided with job sheets, was directed and instructed by the employer in the performance of his work, supplied his own tools of trade, and submitted invoices with his ABN. Counsel for the respondent submitted that Gerob could be distinguished from the present case since in Gerob Mr Compton did not have the opportunity to determine on which job he would work, and was not free to take up other employment or to subcontract work. The applicant in the present case, it was submitted, had that luxury. 31. Counsel for the applicant submitted that in reality the applicant was not free to do other work since he worked exclusively for the respondent up to 60 hours per week. He was subject to the dictates of the respondent as to the manner in which the work was performed. The respondent controlled most aspects of his work. All work came directly from the respondent, he was required to use a vehicle displaying the respondents logo, wear its uniform, was paid weekly rather than as a job lot, the run sheets determined the time and place of each job, and were arranged/controlled by the respondent. He had no other vehicle other than the one he was required to purchase by the respondent with the respondents logo displayed. 32. When the applicant was injured, he called the respondent who attended the site and assisted him. This it was submitted was a powerful indicator of the true nature of the relationship between the parties. 33. In short, it was submitted that the Agreement was an attempt to contract out of an employers obligations under the legislation. It was an attempt by the respondent to paint the relationship as something other than that of employer/employee, and clearly assisted the respondent in terms of eliminating any obligation to pay payroll tax, superannuation, workers compensation premiums and the like. The manner in which the applicant was paid was consistent with commercial practice generally, and although described as a commission was in reality payment for work performed at the request of the respondent. There was no evidence that the applicant had any input into the price charged for the work by the respondent.
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34. The document described as the respondents Position Description further reinforced the employer/employee relationship, confirming the applicants requirement to adhere to the respondents policies on a variety of issues which, it was submitted, would not be required of independent contractors. 35. In the alternative, it was submitted that the applicant was a deemed worker within the meaning of clause 2(1) of Schedule 1 of the 1998 Act. 36. A useful recent decision looking at the indicia for distinguishing between an employee and independent contractor is On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (On Call). That case involved interpreters engaged by On Call. The question to be determined, principally in relation to superannuation entitlements, was whether the interpreters were independent contractors or employees. On Call had over 2,000 interpreters on its panel, and regarded them as independent contractors. Many signed a contract whereby they acknowledged that they were independent contractors. They had no entitlement to leave, had no obligation to accept an assignment, were entitled to work for other organisations and used their own equipment. Many were registered for GST and provided ABNs. Some operated through a corporate entity or business name. 37. In determining that the interpreters were employees, Bromberg J said as follows: 188. Whether a person is an employee or alternatively an independent contractor is to be answered by reference to an objective assessment of the nature of the relationship that person has with the entity that takes the benefit of that persons work. Either the relationship is between an employee and an employer or the relationship is between an independent contractor and its client. Whether a person falls on one side or the other of that binary divide is often a question which may not be easy to answer. It is important that in attempting to arrive at the right answer, the correct interpretative tools are utilised.

189. In that regard, it is well settled that what a court will look to is the real substance of the relationship in question. As early as 1914, Isaacs J in Curtis v Perth and Fremantle Bottle Exchange Co Limited [1914] HCA 21; (1914) 18 CLR 17 at 25 said: Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence. Many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance. 190. The plurality in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, also emphasised that the substance or reality of the relationship needed to be identified. In that respect the plurality stated that the terms agreed between the parties are not of themselves determinative because parties cannot deem their relationship to be something it is not: at [58]. The relationship is to be found not simply from the contractual terms agreed to but by the system operated thereunder and the work practices which establish the totality of the relationship (at [24]). The application of a practical and realistic approach by the majority in Hollis is discernable from the conclusions reached in that case, including that viewed as a practical matter the bicycle couriers were not independent contractors (at [47]); and that it would be unrealistic to describe those persons as other than employees (at [57]).
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191. In Damevski v Giudice [2003] FCAFC 252; (2003) 133 FCR 438, Merkel J relied upon Isaacs J in Curtis and the majority judgment in Hollis to apply the real substance or reality approach: see at [144] and [172]. In that case Marshall J applied a similar approach asserting the need to look beyond and beneath the documents: see at [77] and [78]. Wilcox J agreed with the reasons for judgment of each of Marshall and Merkel JJ. 192. To the same effect but in more colourful language, Gray J adopted the language of a former Chief Justice of this Court when he said in Re Porter; re Transport Workers Union of Australia [1989] FCA 226; (1989) 34 IR 179 at 184 that the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck. As his Honour stated in relation to the use to be made of evidence of what occurred in practice in the relationship in question: ...there is no particular reason why a court should ignore the practical circumstances, and cling to the theoretical niceties. (at 184). 193. The trend of Australian courts to look beyond contractual descriptions and at the substance or truth of the relationship, is also shown in the series of cases which have found that market research interviewers engaged by the Roy Morgan company were employees, despite having been labelled and treated as contractors: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (1997) 37 ATR 528 (Roy Morgan (1997)) 194. The common laws practical approach is consistent with that taken in many jurisdictions, as a major report on the employment relationship produced in 2006 by the International Labour Organisation shows. The report titled The Employment Relationship (Report (V)(1) to the International Labour Conference 95th Session 2006)(the ILO Report) surveyed the approach taken by labour legislation around the world. Much of that legislation is based on the principle of the primacy of fact, the content of which (expressed at [26]) is that: The determination of the existence of an employment relationship should be guided by the facts, and not by the name or form given to it by the parties. That is why the existence of an employment relationship depends on certain objective conditions being met and not how either or both of the parties describe the relationship. This is known in law as the principle of the primacy of fact, which is explicitly enshrined in some national legal systems. This principle is also frequently applied by judges in the absence of an express rule. 38. In considering the impact on the relationship so far as the provision of an ABN was concerned, Blomberg J added: 244. Each of these interpreters perceived themselves to be self-employed and had an ABN. Their evidence also indicated that they interacted with the ATO on the basis that they conducted a business. I attach little weight to those indicators. Obtaining an ABN is a simple process in which the existence of a business is not required to be demonstrated. Further, it is not surprising that in circumstances where these individuals perceived themselves to be self-employed that some of the regulatory requirements of a business were in evidence. For many of the witnesses, their selfassessment of themselves as independent contractors was largely based on their capacity to accept or reject work as it suited them. That self-assessment was also likely
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to have been significantly influenced by the characterisation of their status by On Call and other agencies. In the absence of other indicators of the existence of a business, the fact that some of the regulatory requirements of a business were in place, is likely to have had more to do with an incorrect self-assessed conclusion of the existence of a business than the fact of such a business existing 246. It can be said that there was some evidence that the relevant persons perceived themselves and portrayed themselves to others as owning and operating a business. All of the relevant interpreters used an ABN and some were registered for GST. Those of the interpreters that executed one or more of On Calls standard contracts adopted, at least for the purpose of the contracts executed, the description independent contractor and acknowledged that status. However, the labels that the interpreters have attached to themselves are of little assistance if those labels are inconsistent with the real substance or reality of the relationship involved. I am not satisfied that the evidence of the reality supports the labelling utilised 293. As to the manner in which the provision of interpreting services was characterised, it is clear on the evidence that On Call, the interpreter witnesses called and, I would infer, most of the relevant panel interpreters, characterised the work provided by the interpreters as work being performed in and for the business of the interpreter. That conclusion necessarily flows from the fact that On Call characterised the interpreters as self-employed and that the interpreters accepted or acknowledged that characterisation. The legitimacy of that characterisation calls into question the weight that ought to be attached to it. At an earlier time and, prior to the relevant period, On Call characterised its panel interpreters as employees and not independent contractors. As the evidence revealed, the change in On Calls characterisation of its panel interpreters was not based on any re-evaluation of the nature of the relationship but simply the disadvantage On Call regarded itself to be in, relative to its competitors who had characterised panel interpreters as independent contractors. That fluidity in characterisation suggests that On Calls characterisation, including through the various standard forms of contract that On Call had prepared, was based upon On Calls commercial needs rather than upon the reality of the relationship between On Call and the panel interpreters. It is unsurprising that most interpreters would have adopted the characterisation of their relationship that On Call (and other agencies) were asserting. That conclusion seems particularly apt in a context where any insistence by an interpreter upon the characterisation of the relationship as that of employer and employee would probably have led to little or no work from On Call and at the very least would have led to On Call withholding 48.5% of the remuneration earned where an ABN registration number was not provided. 294. Additionally, as the evidence of Ms Hulusi and some of the interpreters called demonstrated, their characterisation of panel interpreters as independent contractors was primarily arrived at by reference to a perceived absence of control of the interpreter by On Call, because there was no obligation on the interpreter to work. Other potent factors demonstrative of control (including those that I have earlier identified) were not appreciated. For all of those reasons it cannot be said that the characterisation or label of independent contractor utilised by On Call and interpreters had a level of validity that justifies significant weight being attached to it as an indicator. 39. A number of other decisions reinforce this approach. In Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 the Court of Appeal considered the authorities noting as follows:
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54 In Pitcher v Langford (1991) 23 NSWLR 142 (Pitcher) the Pitchers employed shearers, whose labour they provided to Langford for a contract price. They had to pay a greatly increased premium for workers compensation insurance. They said to Langford that he could pay the additional premium as part of the contract price, or could assume the role of employer and have the shearers covered by his own workers compensation insurance for which the premium was less. Langford chose the latter course, and in due course Langford and the shearers signed the standard form of employment contract prescribed by the award. Langford also, for example, added the shearers to his insurance, paid them directly, and described at least one of them as his employee. 55 In a dispute in reality between the two insurers, it was held in the Compensation Court that the Pitchers remained the shearers employer. The judge found, amongst other things, that Langford signed the employment contracts as a mere formality. In an appeal limited to error in point of law, this Court (Kirby P and Handley JA, Priestley JA dissenting) declined to intervene 58 Handley JA said at 161-2 In my opinion the trial judge did not err in holding that the courts are entitled, independently of any statutory power in that behalf, to consider the reality of purported contractual arrangements In R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; (1952) 85 CLR 138, in a case where the prosecutor alleged that its insurance canvassers employed under a written agreement were independent contractors because the agreement so provided, Dixon, Fullagar and Kitto JJ said (at 151 and 155): ... 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 deserves would be ineffectual ... [the evidence fails] to exclude to our satisfaction the possibility that the real relation between some or all of the agents and the prosecutor company in their actual work, week in week out, is in fact that of employer and employee, whatever the agreement may say. 40. Although the control test remains important, it is appropriate to have regard to a variety of criteria (Stevens). In addition, I need to have regard to the real substance and reality of the relationship, looking beyond and beneath the documents (On Call). 41. The applicants evidence is to some extent corroborated by the respondents Position Description. He said that he was required at all times to wear the respondents uniform, and to use the vehicle with the companys logo. That is confirmed by the Position Description. In addition, he was directed to carry out work in accordance with his run sheet, at a time and place nominated by the respondent, and his equipment was provided by the respondent. Moreover, it seems to me that the compulsory requirement that the applicant attend at training meetings and company conferences, and undergo further training as required by management, are not activities an independent contractor would undertake. The same may be said of the respondents request that when you have ideas about your job or the company we would love to hear them.
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42. Other features of this case reinforce the applicants submissions. The applicant had no other vehicle other than the ute he purchased at the request of the respondent. As Mr Collins confirmed, the applicant was not permitted to use this vehicle for any other work. The applicant was also subject to the direction and control of his supervisor, Mr Milligan, and the operations manager, Mr Burke. Indeed, Mr Milligan described his role in the company as supervising technicians, training and compliance. 43. The applicant said, and I accept, that he was unable to work for anyone else because of the number of hours he worked for the respondent. There is no evidence to suggest that he did in fact work for anyone else at any time prior to his accident. The fact that he submitted tax invoices in the name of CPML Services is not determinative of the true nature of the relationship between the parties (see Pitcher). As DP Roche observed in Gerob, in similar factual circumstances, the respondent clearly sought the applicants skill and experience, not that of any business he allegedly conducted. 44. The respondents defence to this claim focuses upon the terms of the Agreement. Those persons from the respondent who made statements were at pains to point out that the applicant had signed the document confirming that he was an independent contractor, and was free to take on work elsewhere. It was that alleged freedom to perform other work that was said to be critical to the nature of the relationship between the parties. That freedom however in my view was merely perceived: the reality was not that at all. The applicants actual working activities, week in week out did not permit such freedom. 45. For these reasons, I do not accept the respondents submission that this case can be distinguished from Gerob because the applicant here had the opportunity to determine on which job he would work, and was free to take up other employment or to subcontract work. That was not the reality of the arrangement between the parties. In my view, the facts and circumstances are remarkably similar, and I would adopt the observations of DP Roche at [61], that the applicant worked exclusively for the respondent which had the right to and did exercise significant control over [him], both in the performance of his duties and in when and where he performed those duties. The arrangement with [him] was personal to him and made the conclusion that he was a worker inevitable. 46. Having regard to the totality of the evidence, and adopting the language of Blomberg J in On Call, an objective assessment of the nature of the relationship between the applicant and the respondent, who took the benefit of the applicants work, leads to the inevitable conclusion in this case that the applicant was a worker within the meaning of section 4 of the 1998 Act. 47. Having reached that conclusion, it is not necessary for me to consider the alternative proposal that the applicant was a deemed worker under Schedule 1 since he cannot be both (Gerob). Although a qualified pest technician, there is no evidence that the applicant regularly carried on that business in his own or a business name, or that he held himself out as ready to do so. SUMMARY 48. The applicant was a worker within the meaning of section 4 of the 1998 Act and accordingly is entitled to the benefits he has claimed. 49. Accordingly, there will be an award for the applicant as follows:

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1.

Award for the applicant pursuant to section 36 of the 1987 Act at the rate of $1,684.30 per week from 3 March 2010 to 31 March 2010, and at the rate of $1,716.40 per week from 1 April 2010 to 22 June 2010. Award for the applicant pursuant to section 40 of the 1987 Act at the rate of $606.00 per week from 23 June 2010 to 30 January 2011. Credit to the respondent in respect of any payments made to date. The respondent is to pay the applicants section 60 expenses. The permanent impairment dispute is remitted to the Registrar for referral to an AMS for assessment of whole person impairment in respect of the cervical spine and left upper extremity resulting from injury on 2 March 2010. The respondent is to pay the applicants costs as agreed or assessed. Certify the matter as complex with a 15 per cent increase in the costs otherwise available to both parties.

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DOC87 V1.0 Jul 2010