R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10

Appl these Nes px pi oe ee pilot Rey on Nay é ' Ex pane ORC ' fd seer Plumber & Heanor WLR ia AL ca Citas Union. 153 ne Trion 83 RP EGR ie HIGH COURT (1951-1952.

{HIGH COURT OF AUSTRALIA.]

THE QUEEN

AGAINST

FOSTER AND OTHERS;

Ex Parte THE COMMONWEALTH LIFE (AMALGAMATED) ASSURANCES LIMITED.

H. C. or A, Industrial Arbitration (Cth.)\—Conciliation and arbitration—Industrial dispute—

1951-1952. Relation of employer and employee—Industrial and life assurance policies— Se Premiwms—Canvassers and collectors—Agreement—Employees or independent 1951. contractors—Principal and agent—Master and servant—The Constitution (63

Sypyey, & 64 Vict. c. 12), 8. 51 (wxav.)—Conciliation and Arbitration Act 1904-1951

Dec. 10, 11. (No. 13 of 1904—No. 18 of 1951), ss. 4, 32 (2), 39 (b).

1952. An award of the Arbitration Court made in respect of persons engaged by MELBouRNE, an industrial and life assurance company to canvass and collect premiums

March 11. on its face was restricted to " employees" of that company. The company eae, applied for a prohibition on the ground that the award was made without

werman, jurisdiction because by virtue of an agreement between the parties the

Fullagar ania persons so engaged were independent contractors or "agents" and not

" employees ", and that therefore the supposed dispute in respect of which it was made was not an industrial dispute within the meaning of the Conciliation and Arbitration Act 1904-1951, inasmuch as it was not a dispute in relation to employment or as to any industrial matter pertaining to the relations of employers and employees and that it was not an industrial dispute within s. 51 (xxxv.) of the Constitution.

Held, (1) that the evidence failed to show that there was not any industrial dispute inasmuch as it failed to exclude to the satisfaction of the Court 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, was not in fact that of employer and employee despite the provisions of the agreement.