Industrial Relations Commission of New South Wales CITATION: Maria Perez and The Owners' Corporation [2005] NSWIRComm 1040 APPLICANT Maria Sylvia Perez PARTIES: RESPONDENT The Owners Corporation FILE NUMBER(S): 6365 of 2002 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - jurisdictional issues raised by Respondent - partnership - independent contractor - uncontested by Applicant - no jurisdiction held LEGISLATION CITED: Industrial Relations Act 1996 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 CASES CITED: Hollis v VABU Pty Ltd (2001) 207 CLR 21 HEARING DATES: 05/09/2003 EXTEMPORE JUDGMENT DATE : 04/26/2005 APPLICANT Unrepresented LEGAL REPRESENTATIVES: RESPONDENT G Butterfield, Solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 26 April 2005 Matter No IRC 6365 of 2002 Maria Sylvia Perez v The Owner's Corporation Application by Maria Syliva Perez re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1040 1 This is an application by Maria Sylvia Perez ("the Applicant") for unfair dismissal against The Owners' Corporation ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act). 2 The matter was set down for a Preliminary Hearing on 6 December 2002. The Applicant appeared unrepresented. The Respondent was represented by Mr G Butterfield, solicitor, who advised that the Respondent is a strata scheme made up of the owners of a building comprising 34 units. The Applicant he said, carried out cleaning services for the Respondent and was one of the owners within the building in question. The Applicant was one of two persons who were the owners of a business which provided cleaning services to the building in question. Mr Butterfield submitted that the Applicant was not an employee but a contractor. If he was wrong about that, and the Commission was of the view there was an employer - employee relationship, then he submitted the employee resigned her services. Mr Butterfield sought and was granted the opportunity to put further submissions in writing on the jurisdictional issue as to the employee versus contractor relationship. Mr Butterfield was directed to provide a copy of his written submission to the Applicant, so that she could respond if she chose. The Applicant advised she had not resigned but could not continue to work under these conditions, that is, under pressure - but otherwise she wanted to continue her work. The Applicant was asked to provide to the Commission a copy of any written response to Mr Butterfield's written submission. 3 Mr Butterfield duly provided to the Commission a formal written submission on the issue of jurisdiction. This was a six page typed submission plus annexures. The covering letter advised that a copy of the written submission had been forwarded to the Applicant. The written submission advised - · the Applicant was not an employee; · the Applicant did not fall within the deeming provision of s 5(e) of the Act; · the Applicant was an independent contractor and cited case law in support for that proposition; · the Respondent had no control over the Applicant's obligation to work, the hours of work or how the work was performed and/or by whom the work was performed; · the Applicant was part of a partnership trading under the business name of "Hispania Contracting" having an Australian Business Number. 4 The Commission then received a letter dated 23 December 2002, from Employment Help Services ("EHS"), enclosing a Notice of Appearance on behalf of the Applicant. 5 Subsequently, the Commission provided a copy of Mr Butterfield's written submissions to EHS. 6 My office contacted EHS on 5 February 2003 and was advised that EHS would provide a response to the written submissions as soon as possible. 7 My office contacted EHS on 18 February and was advised that EHS sought a further seven days in order to respond to the written submissions. 8 My office contacted EHS on 27 February and was advised that Mr Boghossian would file his submissions by 5 March. 9 The matter was put down for a Report Back on 13 March. EHS advised it was having difficulty contacting the Applicant and had no instructions - so much so, that EHS may have to file a Notice of Ceasing to Act. 10 By letter of 2 April, EHS provided a formal document being a Notice of Ceasing to Act. 11 The matter was put down for a Report Back on 3 April. The Applicant appeared unrepresented. The Commission pointed out that the written submission sought a finding that the Applicant could not pursue her application before the Industrial Relations Commission of New South Wales. The Applicant responded: " I think I can't continue with this. I no continue ." The Applicant then said she would get legal advice. The Commission gave until 29 April for a written response from the Applicant on the jurisdictional issue. 12 No written response was provided by 29 April. 13 The matter was set down for 9 May. The Applicant appeared unrepresented. The Applicant had no written response to the jurisdictional issue. At all times before the Commission, the Applicant, understandably, was not able to verbalise a response to the legal issues raised by Mr Butterfield such as the employee deeming provision of the Act or respond to the case law on employee versus independent contractor. CONSIDERATION 14 Since this matter was last before the Commission, no response has been forthcoming from the Applicant as to these jurisdictional issues. The Commission has delayed making its decision given that the Applicant has been largely unrepresented and because of the Applicant's personal family circumstances which were made known to the Commission. Regrettably, for the Applicant, in not responding to the Respondent's written submissions, the Commission was then left to deliberate about that uncontested written submissions. 15 The Respondent's written submissions on jurisdiction were based on the Respondent's claim that the Applicant was not an employee but an independent contractor. In support of that claim, the Respondent relied upon statute and common law. 16 As to statutory law, the Respondent submitted that the Applicant failed to come within the definition of deemed employee as described in s 5(3) of the Act on two bases. Firstly, it was submitted that the Applicant worked as part of a partnership who traded under a business name (registration number U1849721) which commenced 1 July 1997. The Respondent also annexed to its written submissions, invoices submitted by the Applicant's partnership to the Respondent for work done. Also the Respondent suggested that the principal place of business is the same address as for the Applicant's domestic address. Given the foregoing, the Respondent submitted that s 5 of the Act does not envisage a partnership coming within the term "employee". Secondly, even if the Commission was persuaded that the Applicant was an employee, the Applicant would still not have the legal standing to bring her unfair dismissal application, as there is no evidence that the work performed by the Applicant was work performed at a price or rate fixed by an industrial instrument. In that regard, the Respondent referred again to the attached invoices and said these did not constitute an industrial instrument. As well, the Respondent asserted that even if the Applicant was performing work at a price or rate fixed by an industrial instrument, Schedule 1(b) of the Act would operate to exclude the Applicant from bringing her unfair dismissal application. Schedule 1(b) excludes from the operation of the Act those persons being " the owner or occupier of the premises or a bona fide cleaning contractor employing labour for the purpose ". The Respondent submitted that the Commission can find that the Applicant is an owner of the premises and/or is a bona fide cleaning contractor employing labour. 17 Apart from the Applicant being barred from bringing her unfair dismissal application by statutory law, the Respondent claimed she was barred, as well, by the common law. In that regard, two decisions of the High Court of Australia dealing with the distinction between independent contractors and employees were cited: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, and Hollis v VABU Pty Ltd (2001) 207 CLR 21. The Respondent submitted, in light of these cases, that: · the Applicant was part of a partnership trading under the business name of "Hispania Contracting" and the Respondent did not have the degree of control over "Hispania Contracting" that is indicative of an employee/employer relationship; · the Respondent had no control over the Applicant's obligation to work, the hours of work or how the work was performed and/or by whom the work was performed; · the Applicant had the ability to delegate tasks pursuant to the independent contract for cleaning and other services; · the Respondent paid no holiday pay, no superannuation, no workers compensation and did not deduct tax from the invoices submitted by the Applicant. 18 The above summation of the Respondent's written submissions went unanswered by the Applicant. The Applicant was unrepresented, then represented by EHS and then unrepresented. Even when represented by EHS, the Commission did not receive a written submission from EHS as to the Respondent's jurisdictional issues, even though EHS undertook to do so. As an unrepresented applicant, Ms Perez understandably has been unable to provide a written submission to the jurisdictional issues raised by the Respondent. And understandably she has not been able to verbalise a response to the legal issues raised by the Respondent such as the employee deeming provision or respond to the case law on employee versus independent contractor. CONCLUSION 19 Given that the Respondent's written submissions on the jurisdictional issue went uncontested, the Commission finds for the Respondent. That is, the Commission finds that the Applicant was unable, at law, to bring her unfair dismissal application before the Commission. Accordingly, the Applicant's unfair dismissal application/file is now closed. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.