Beth Susan Fowler v Automated Surveys Pty Ltd [1995] IRCA 218

C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - claim for unlawful termination - whether contract for services or contract of service - whether casual employment. INDUSTRIAL RELATIONS ACT 1988, Ss 170EA INDUSTRIAL RELATIONS REGULATIONS, Regulation 30B(3) Massey v Crown Life Insurance Company [1978] 1 WLR 676 Building Workers Industrial Union of Australia v ODCO Pty Ltd (1991) 99 ALR 735 Humberstone v Northern Timber Mills (1949) 79 CLR 389 Stevens and Gray v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Transport Workers Union v Readymix (1981) WAIG 1705 BETH SUSAN FOWLER v AUTOMATED SURVEYS PTY LTD - WI 462 of 1994 BEFORE: BOON JR PLACE: PERTH DATE: 26 MAY 1995

IN THE INDUSTRIAL RELATIONS) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 462 of 1994 BETWEEN BETH SUSAN FOWLER - Applicant AND AUTOMATED SURVEYS PTY LTD - Respondent MINUTE OF ORDERS BEFORE: BOON JR PLACE: PERTH DATE: 26 MAY 1995 THE COURT ORDERS AND DECLARES THAT: 1. The Applicant for the period 13 June 1994 to 16 August 1994 was employed under a contract of service by the Respondent. 2. The Applicant was a casual employee engaged for a short period within the meaning of Sub-regulation 3 of Regulation 30B of the Industrial Relations Regulations. 3. The application is accordingly dismissed. NB. Settlement and entry of Orders dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 462 of 1994 BETWEEN BETH SUSAN FOWLER - Applicant AND AUTOMATED SURVEYS PTY LTD - Respondent REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 for payment of compensation arising out of the alleged unlawful termination of the Applicant's employment by the Respondent. The central issue in this matter is whether the Applicant was an employee or an independent contractor and the Applicant seeks a declaration that the Applicant for the period of 13 June 1994 to 16 August 1994 was employed under a contract of service by the Respondent. The Respondent says that the Applicant was engaged as an independent contractor and is therefore excluded from the operation of the Act. Alternatively, if this Court finds that the Applicant was indeed an employee, the Respondent says that she was a casual employee engaged for a short period within the meaning of Regulation 30B of the Industrial Relations Regulations and is therefore excluded from the operation of the termination of employment provisions of the Act. BACKGROUND The respondent, Automated Surveys Pty Ltd, operates its business in the surveying industry. It uses specialised equipment, including computer equipment. The Director of the Respondent gave evidence that all people engaged by the Respondent receive in house training in how to use the equipment and in how the Respondent's system operates. Project home builders are the target clientele of the Respondent. Much of the work of the Respondent is carried out by party leaders who have expertise in surveying, and survey assistants. For some time now the Respondent company has operated under a scheme whereby it maintains a list of "preferred suppliers". The list of preferred suppliers is a list of names of people whom the Respondent engages as party leaders and survey assistants. The Director of the Respondent, Alistair Millar, and the Operations Manager, Raymond McKinnon, decided who would have their names placed on the list of preferred suppliers. These "preferred suppliers" were said by Mr Millar to supply their labour and expertise.