VACIK DISTRIBUTORS PTY LTD v KELLY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY ACJ, CLARKE and COLE JJA 21 July 1995, 28 July 1995 [1995] NSWCA 480 WORKERS' COMPENSATION — worker whether contract of service established whether alternatively deemed worker kangaroo shooter- informal arrangement licence in worker's name — payment for assistance — absence of formalities — held: Right to control reserved — employment correctly found. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 applied. WORKERS' COMPENSATION - worker - kangaroo shooter - whether worker or deemed worker (Schedule 1 CLS Workers Compensation Act 1987) - absence of income tax deductions and actual supervision - engagement by "worker" of other persons to assist in loading and unloading kangaroos, paid in cash by himself- provision of substitute when away - licence issued to "worker" for shooting - absence of sick leave, holiday pay and superannuation - evidence discloses letters of instruction as to job to be performed and pay character of informal arrangements - in Compensation Court Geraghty CCJ finds employment established - on appeal - held: No error - the right of control was retained - employment rightly found. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 applied. Workers Compensation Act 1987, Schedule 1 CLS. ORDERS Appeal dismissed with costs. Kirby ACJ I agree with Clarke JA. Clarke JA The respondent sustained an injury to his left knee on 20 February 1992 while he was working in the vicinity of a chiller, owned by the appellant, and situated in Oliver Street, Carinda. He claimed that he was employed by the appellant and that his injury had occurred during the course of that employment. Accordingly, he brought proceedings under the Workers Compensation Act 1987 ("the Act") for weekly payments and also for lump sums pursuant to s67 and s67 of the Act. The appellant raised a number of defences including a denial of employment. The trial judge, Geraghty CCJ, found that the respondent was 'a worker' within the meaning of s3 of the Act and that he had received an injury and consequent incapacity. Geraghty CCJ was not, however, satisfied that there had been any economic loss demonstrated but made awards in favour of the respondent under s66 and s67. The appellant filed a notice of appeal containing two grounds. It has not pressed the second ground in this Court but has contented itself with submitting that Geraghty J erred in finding that the respondent was 'a worker'. The respondent, for his part, has filed a notice of contention pursuant to which he has argued that the judgment below is capable of being sustained upon the ground that he was a deemed 'worker' pursuant to the provisions of Schedule 1 CLS of the Act. The respondent is, and was, a kangaroo shooter who lived in a caravan, which he owned and which was parked on the appellant's property at Carinda near the appellant's two chillers. Apart from Kangaroo shooting, which he carried out on 2 UNREPORTED JUDGMENTS his own account, the respondent performed work for the appellant. In broad terms he operated the chillers. One for kangaroos and one for pigs. Shooters who wished to sell kangaroo or pig carcases to the appellant would present them to the respondent at the chillers. He would weigh them and place them in the chillers. He would also pay the shooters at a rate per kilo for the meat. The shooters were paid by cheques drawn on the appellant's account, which cheques were signed by the respondent. He also did the paper work for the appellant and forwarded it to their office in Brisbane. Cheque books, when needed, were forwarded through the mail to the respondent by the appellant. Once a week vehicles would arrive at the chillers to take the carcases to the appellant's premises. The relationship between the appellant and the respondent was, according to his Honour, "very casual, quite off hand, informal and irregular". The respondent worked on the site for approximately 2 hours per day, seven days a week. He also cleaned the yard and the chillers. This apparently occurred on a weekly basis when the chillers were emptied. There was no representative present from the appellant on a day to day, week to week, month to month basis supervising what he did and there was no written agreement between the parties. The respondent said there were a lot of letters between himself and the appellant telling him what he should do and what he was to be paid. These letters were not in evidence but neither was their existence denied by the appellant. The respondent paid his own tax (the appellant did not deduct PAYE tax) and the respondent paid himself for his services by cheques drawn on the appellant's bank account. The respondent received no long service benefits, nor any annual leave, holiday pay or any sickness leave. On one occasion the respondent went overseas and during the period he was away someone, whom he had arranged, replaced him. In addition when he needed physical assistance, he would seek help and pay his helpers. The trial judge was satisfied that the respondent had demonstrated that he was a worker saying: "T have concluded from the evidence that while the relationship between the respondent and the applicant was in all respects very relaxed and informal, the applicant was 'Johnny-on-the-spot' for the respondent. Despite the flexible arrangements, he was the only one in Carinda working at the site and with the equipment owned by the respondent. While there was no day to day supervision, he was subject to supervision by telephone and had duties to perform which were under the supervision of the respondent. He had to produce the books and provide records from time to time. I have paid particular attention to the fact that the applicant said there were lots of letters between himself and the respondent in which the respondent told him what to do and what he was to be paid." Before reaching that conclusion his Honour had referred to the judgment of Mason J (with which Brennan and Deane JJ agreed) in Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16: "A prominent factor in determining the nature of the relationship between a person who engages another to perform work and a person so engaged is the degree of control which the former can exercise over the other. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it... But the exercise of control, while significant, is not the sole criterion by which to gauge whether the relationship is one of employment. The approach of this Court has been to regard it merely as a number of indicia which must be considered in the determination of that question... Other relevant matters include, URJ VACIK DISTRIBUTORS PTY LTD v KELLY (Clarke JA) 3 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. The appellant relied on a number of indicia which, in its submission, demonstrated that the respondent was running his own little business and was not an employee of the appellant. I have already mentioned most of them but they included: (1) No income tax was deducted from the moneys paid to the respondent; (2) There was no actual supervision of the respondent; (3) No representative of the appellant ever came to the chillers and instructed the appellant in his work; (4) The respondent engaged other people to assist him to load and unload the kangaroos and paid them in cash himself; (5) When he went away he obtained a substitute whom he paid himself; (6) He was a licensed shooter who carried on the business of shooting kangaroos on his own account; (7) He received no sick leave, or holiday pay, or superannuation benefits or long service leave. In my opinion the learned trial judge was correct in the conclusion to which he came for the reasons which he himself gave. I would myself attach great importance to the fact that the respondent was the appellant's sole representative in Carinda. Insofar the appellant maintained the chillers in Carinda for the storage of animal carcasses brought in by shooters until transport arrived, it cannot, in my opinion, be denied that it was conducting its business in the area. It could, no doubt, have done so by an agent or by a servant. The respondent lived on the site, he looked after the chillers, he received, on the appellant's behalf, the animal carcasses and he paid the shooters with cheques drawn directly on the appellant's account. He gave uncontradicted evidence that he had received letters instructing him what he was to do, what the job was and what he was to be paid. He attended to all necessary paperwork for the appellant at Carinda and in every sense he looked after its interests in that country town. While he had his own business as a kangaroo shooter his presentation to the public was as person carrying out services directly for the appellant whose interests he had represented for many years prior to his accident. Given that there are, according to the authorities, a number of indicia upon which the issue of employment or independent contract is determined, it is readily apparent that in informal arrangements such as the one with which the Court is presently concerned the question whether a person is a servant or not can be very much a matter of impression. No doubt it is for this reason that there have been so many cases concerning this single issue before the court this week. In my opinion the single most important indicium is the right to control and in this case I think it is clear that that was retained by the appellant, albeit that the occasion to exercise it happened rarely, if ever. I appreciate that the power to appoint substitutes, or delegates, tends to support the proposition that the respondent was running his own business but in the context that he only called in labour to assist when the job was too big for one person and on the single occasion that he went overseas I do not think that factor is sufficient to displace the conclusion that should be drawn from the right to control and the fact, so colourfully described by the trial judge, that he was, and was presented as, the person in charge of the appellant's chillers in Carinda. 4 UNREPORTED JUDGMENTS In my opinion the appeal should be dismissed with costs. Cole JA I agree with Clarke JA. 5 Appeal dismissed with costs. COUNSEL: Appellant: JL Sharpe 10 Respondent: P Webb QC/J Castanos SOLICITORS: Appellant: Vandervords 15 Respondent: Taylor and Scott