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T13634

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29(1A) application for hearing of an industrial dispute

Geoffry George Harrison
(T13634 of 2010)

and

Simon Ansell Skilled Mowing


DEPUTY PRESIDENT TIM ABEY 
HOBART, 16 March 2010


Industrial dispute - termination of employment - employee or contractor - application dismissed


REASONS FOR DECISION


[1] On 5 January 2010, Geoffry George Harrison, (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984 (the Act) for a hearing before a Commissioner in respect of an industrial dispute with Simon Ansell Skilled Mowing (the employer) arising out of a dispute in relation to termination of employment.

[2] A hearing commenced at in Launceston on 27 January 2010.  At the hearing Mr Harrison and Mr Ansell represented themselves.

[3] The respondent operates a business which trades as Skilled Mowing.  Mr Harrison commenced working for the respondent on 24 November 2008.

[4] On 16 December 2009 Mr Harrison received a text message from Mr Ansell advising that he would not be needed for work on that day.  It transpired that Mr Harrison did not perform any further work or services for the respondent.

[5] Mr Harrison claims that he is entitled as a minimum to one week wages in lieu of notice.

[6] This matter proceeded by way of a conciliation conference.  It became clear that the matter of payment in lieu of notice could not be decided until the status of the work arrangement was determined.  The applicant maintains that he was an employee whereas the respondent contends that Mr Harrison was a contractor.  The parties agreed that the Commission should determine this question by way of a preliminary decision.

[7] From the submissions of the parties, the following picture emerges.

[8] According to the particulars of the application, the respondent agreed to provide 40 hours work per week at the rate of $18.50 per hour for mowing and $25 per hour for property maintenance.  This contention is largely refuted by Mr Ansell.

[9] Mr Harrison initially approached Mr Ansell with an offer to expand the business into the area of property maintenance.  The expanded business would continue to trade under the Skilled name.

[10] Mr Harrison was responsible for obtaining property maintenance clients.  This came predominately from real estate agents.  Whilst Mr Ansell was a willing participant in the arrangement, he made it clear that he had no skills in property maintenance and no interest in performing this aspect of the work himself.

[11] Once the client relationship was established, it seemed that the client requests for services were organized through Mr Ansell, who in turn gave Mr Harrison work instructions on a daily or weekly basis.

[12] Mr Harrison provided the tools of trade associated with property maintenance, whilst Mr Ansell provided the equipment necessary for the mowing operations.  The Commission was not provided with a breakdown in terms of time for property maintenance and mowing.

[13] Mr Ansell provided Mr Harrison with a utility vehicle.

[14] Mr Harrison had his own A.B.N. and submitted invoices to the respondent based on hours worked.  It would seem that this averaged approx 24 hours a week.  He was not paid for time spent on quoting or purchasing goods for a job.

[15] Mr Harrison was responsible for his own tax.

[16] The respondent covered Mr Harrison for public liability insurance but not workers compensation insurance.

[17] Mr Harrison performed unrelated work (eg security services) for other employers/principals.  He maintained that this was generally done outside Monday to Friday business hours.

[18] Mr Harrison said he firmly believed that he was an employee, whereas Mr Ansell said:1

He was very, very keen to earn some money and he was prepared to come on board and build up his own business within the Skilled name.  As Ive explained, I wouldnt know how to plane the bottom of a door.  Im not Ive never done that sort of work before.  Its only been four-and-a-half years since I set up my own that I havent been in a suit.  Ive been in a suit all my life up until that point.  So he was keen to go and do that and he said he had all sorts of contacts and the only thing that he didnt have was a ute.

He didnt have a ute.  He had a BMW sedan, which you cant, you know and I had a ute sitting there, which was doing nothing.  And so I said, Well, mate, if you want to use the ute then go and get into it.  Youll have to knock on some doors and build some business up and, you know, youll have to go and talk to somebody, like a sales rep and thats how youre going to have to do it because I havent got the time and Im not interested.

THE COMMISSIONER:   Yes.

MR ANSELL:   And that was the agreement and the more work that he got in, the more hours of work, the more income hed make, and that was the agreement.  And it all went quite well for the first six months and we were he was building up a little bit of a business for himself and the agreement was that if he could afford to buy it once it was set up, at a minimal cost, he could buy it, take the ute and he was home and hosed.  I didnt want to do it.  I wasnt interested in it, never an employee, never a guarantee of 40 hours minimum a week.  Id be mad to.  Wheres the work going to come from?  How on earth could you make a claim like that to employ somebody when you havent even got the first hinge to screw into a door yet?  Its hideous.

Findings

[19] In determining employee v contractor questions it is necessary to take into account the totality of the arrangement rather than focusing on one particular aspect.

[20] In this context it is widely held that degree of control exercised by the principal/employer is a pivotal, but not necessarily determinative consideration.  In this matter it would seem that Mr Ansell did exercise day to day control over what work Mr Harrison performed, in that he outlined the work schedule.  Against that, Mr Harrison was largely responsible for obtaining the work in the first place, and, it would seem, was largely left to his own devices as to how the work was performed, particularly in relation to property maintenance.

[21] I am satisfied that Mr Ansell fully intended that the relationship was to be one of principal/contractor.  I am not necessarily convinced that Mr Harrison held a strong view one way or the other whilst the relationship was working satisfactorily.  I would expect, that if Mr Harrison had felt strongly that he was at all material times an employee, he would not have passively accepted issues such as non payment for quoting, lack of workers compensation cover and the requirement to have an A.B.N, submit invoices, and be responsible for his own tax.

[22] On balance I find that the evidence points to a relationship of principal/contractor and I find accordingly.

[23] As Mr Harrison was not an employee the Commission lacks jurisdiction to hear the matter further.

[24] Accordingly, the application is dismissed and the file closed.

 

 
Tim Abey
DEPUTY PRESIDENT

Appearances:
Mr G Harrison representing himself
Mr S Ansell representing himself

Date and place of hearing:
2010
January 27
Launceston

1 Transcript p 7