INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5209 of 1995 B E T W E E N : ALLAN WARREN SMITH Applicant AND SIGNCRAFT PTY LTD Respondent Before:Judicial Registrar Tomlinson Place: Melbourne Date: 12 December 1995 REVISED REASONS FOR DECISION DELIVERED EX TEMPORE The application brought on behalf of the respondent by Mr Lacey was to dismiss the application of the applicant on the basis that the applicant formerly had been an employee with the respondent, but that contract of employment ceased on 15 June on the basis that the applicant wished to establish himself as a self-employed contractor. The evidence before the Court was that at some date subsequent to the resignation the applicant registered a business, Al's Custom Made Metal Fabrications, and continued to carry on work as an independent contractor for and on behalf of the respondent. In that regard exhibit GR2, annexed to the affidavit of Greg Reiffel provided on behalf of the respondent had annexed to it some dated, numbered invoice statement documents, apparently prepared by the applicant, noting they were from Al's Custom Made Metal Fabrications, and delivered to the respondent, Signcraft Proprietary Limited, indicating various hours worked, withholding tax deducted and various amounts due from the respondent payable to the applicant. The numbers of the invoices were not consecutive, and it is not possible for this Court to ascertain whether the invoices presented in the affidavit of Greg Reiffel under the exhibit GR2 were the complete moneys paid by the respondent to the applicant. The primary affidavit of Mr Reiffel continued to state nine reasons in paragraph 3(j)(i-ix) as to the reasons why it was the opinion of the respondent that the applicant was an independent contractor and accordingly not entitled to relief under the Industrial Relations Act. I have to say that I have a lot of difficulty with these interlocutory applications, as often taking complete evidence and satisfying oneself as to the exact nature of the facts does involve a double hearing. And it is not the purpose of this legislation to encourage such double hearings, so I am unable to make a finding or to agree with the statements asserted in paragraph 3(j) as I was invited to do so. Mr Lacey very cogently argued the "control" test of Stephens v Broderick that the applicant was not subject to the control of the respondent, that the applicant could delegate the work to whomsoever he pleased and that the contract of employment of employer and employee simply did not exist. I have to say that it was my initial view that the information provided by the annexure GR2 tended to support that assertion. Mr Lindeman, on behalf of the applicant's solicitor, referred to the affidavit of Kenneth John Clarkson, the solicitor on behalf of the respondent, apparently filed yesterday in this Court. That affidavit to my mind sets out the instructions taken from his client the applicant. That affidavit does not appear to be with the Court file however the parties agree it has been filed. That affidavit denies matters deposed to by Mr Reiffel on behalf of the respondent. Most telling, in my mind, is the exhibit marked GR1 referred to in the affidavit of Greg Reiffel, sworn 1 December. That is an organisational chart of the respondent referred to by Mr Lacey dated February 1995. In the affidavit of Mr Reiffel, paragraph 3(b) states that:- "Mr Reiffel was informed by Bruce Fitzgerald, the General Manager of the respondent, and Mr Reiffel believes that the respondent relies on a work force mix of its own employees and, due to peaks and troughs of demand for its services, a pool of contractors. There are about 18 contractors presently carrying out work for the respondent. Now produced and marked GR1 is a true copy of the respondent's organisation chart." I turn to that organisation chart, and under the heading, approximately the centre of the page, Production Manager, Allan Plumber, there is a second box which says Metal Workers Blue Team Leader, Ray Eldon, under which there is a third box. The names there appear, David Vella, Guy Lucciarotti, Ivor Fur and Allan Smith. In these proceedings Allan Smith is the applicant. From the evidence supplied by the respondent it is unclear if the applicant is an employee or an independent contractor. I turn now to the authority tendered to this Court during the hearing of this matter of General Steel Industries v Commissioner for Railways, as reported in 112 CLR to the judgment of Barwick CJ, who refers to Dixon J, as he then was, in the decision of Dee v Victorian Railways Commission, where it is stated that: "Once it appears there is a real question to be determined, whether of fact or law, and that the rights of the parties dependent upon it, then it is not competent for the Court (and in that case I mean the Industrial Relations Court) to dismiss the action. And in this case I interpret that to be to allow the respondent to be successful in its notice of motion as frivolous and vexatious and an abusive process." Having considered all the evidence before the Court I am of the view I do not have enough information to state categorically that the applicant, Allan Smith, in these circumstances was at all times an independent contractor. To my mind there are real issues of fact which need to be determined. To grant the application, Mr Lacey, I feel would be to deprive the applicant of the opportunity to prove a circumstance where a contract of employment may have been unilaterally altered for reasons not apparently clear to the employee at the time. I can make no absolute finding in that regard as I simply do not have sufficient information with regard to the "control" factors to which you have referred so ably. Accordingly, for the reasons outlined above, the application of the respondent brought by way of Notice of Motion is dismissed. I make a second order the costs of today be reserved. MINUTES OF ORDERS THE COURT ORDERS: 1. The application of the respondent brought by way of Notice of Motion is dismissed. 2. The costs of today be reserved. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of Judicial Registrar Tomlinson. Associate: Dated: 15 January 1995 Solicitors for the Applicant: Messrs Clarkson & Socio Counsel for the Applicant: Mr A Lindeman Representatives for the Respondent: VECCI Counsel for the Respondent: Mr B Lacey Date of hearing: 12 December 1995 Date of judgment: 12 December 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5209 of 1995 B E T W E E N : ALLAN WARREN SMITH Applicant AND SIGNCRAFT PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Tomlinson 12 December 1995 THE COURT ORDERS: 1. The application of the respondent brought by way of Notice of Motion is dismissed. 2. The costs of today be reserved. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.