T13191
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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Scott Peter Shaw
and
Davelyn Communications Pty Ltd trading as CDM Communications
Industrial dispute - alleged breach of award or registered agreement – independent contractor status determined – no jurisdiction - application dismissed
REASONS FOR DECISION [1] On 7 August 2008, Scott Peter Shaw (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with CDM Communications (the respondent) arising out of an alleged breach of award or registered agreement. [2] The matter was listed for hearing (Conciliation Conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on Tuesday, 19 August 2008 at 11.30am. [3] By the commencement of the conference the respondent, or any person or agent on her behalf, failed to enter an appearance. The matter proceeded in absentia. The applicant informed the Commission that the respondent was in fact his sister. [4] The applicant was engaged by CDM Tasmania as a “researcher” in February or March 2007, he was unsure of the actual date. His work involved identifying Telstra clients whose contracts had lapsed and passing the information on to the respondent. He ceased working for the respondent on 13 July 2007. [5] The applicant alleged he had an agreement with the respondent to be paid $659.00 per week. He alleged the payments were often late. He asserted he had been salary sacrificing into an “investment” at the rate of $500 per month. He alleged he had discovered after three months that no monies had been credited to his investment, although it had been taken out of his salary. At that point the applicant asserted he “walked out” of his employment. He alleged he was owed six weeks’ wages although he did not adduce any evidence. [6] The applicant stated that he had approached the office of the Workplace Ombudsman who, in time, recovered his investment payments. [7] A letter dated 21 February 2008, from the office of the Workplace Ombudsman informed the applicant that his matter was not within its jurisdiction and forwarded his particulars to Workplace Standards Tasmania. [8] A letter to the applicant dated 27 February 2008, from Workplace Standards Tasmania informed him that the department would not progress his matter further and directed him to the Tasmanian Industrial Commission. [9] The letter stated the following:
“From the evidence available it would appear that you were a contractor to the business.
Such evidence is as follows:
· You have your own ABN number … registered as a sole trader. · You have submitted Business Activity Statements (BAS) for the periods of alleged employment indicating you considered yourself as a contractor. · You have submitted invoices to the business, using your ABN, and the business has paid those invoices.
The department considers that you were a contractor and will not progress the matter.” [10] The applicant’s application contains the evidence as outlined by Workplace Standards Tasmania with regard to his “contractor” status. [11] It should be noted that Workplace Standards Tasmania cited the respondent as Davelyn Pty Ltd T/as CDM Communications. The invoices presented by the applicant are under CDM Australia letterhead, but show the address of CDM Communications in Hobart. Further the invoices bear a sub heading:
“Davelyn Pty Ltd ABN 24 125 003 474” [12] From the evidence, it appears the applicant was sub-contracting to Davelyn Pty Ltd, the respondent, who in turn was sub-contracting to CDM Australia Communications. [13] At page 4, line 20 of transcript the applicant agreed that he contracted to the respondent.
FINDINGS [14] This matter suffered for want of evidence to support the applicant’s allegations. Although the applicant applied to the Commission under s29(1)(A)(c) he was not aware under which award he may have been covered. [15] There was no letter or contract of appointment. At page 5, line 5 the applicant stated:
“No, there was no contract. It was just verbal, because it was me(sic) sister.” [16] The applicant, it appears, did not formally resign and there was no letter of resignation. [17] There was no evidence of an employee/employer relationship. There was, however, clear evidence of a sub-contractual arrangement. [18] The conclusions arrived at by Workplace Standards Tasmania are convincing in that the applicant was indeed an independent contractor. [19] From his own evidence and the conclusion drawn by the investigation conducted by Workplace Standards Tasmania, I find the applicant was not an employee of Davelyn Pty Ltd T/as CDM Communications for the purpose of the Workplace Relations Act 1984 and that the Commission lacks jurisdiction to hear the matter. [20] Under s.21 of the Act, at Clause 1, the Commission may:
“(c) at any stage of those proceedings, dismiss a matter or a part of a matter, or refrain from further hearing, or determining, the matter or part if the Commission is satisfied
…
(iv) that, for any other reason, the matter or part should be dismissed or the hearing of those proceedings should be discontinued, as the case may be;” [21] For the above reasons the application is dismissed, and I so order.
James P McAlpine
Appearances:
Date and Place of Hearing: |