T1919 (3 October 1989)
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IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
DECISION ON THRESHOLD OBJECTION
DATES AND PLACE OF HEARING: On 27 April 1989 the Miscellaneous Workers' Union filed an application with the Commission seeking a declaration that the classification of "Domestic" appearing in the Miscellaneous Workers' Award1 applied to "employees of the Kingborough Council employed under the job title "Personal Care Attendant". The applicant then set out the definition of Domestic as it appears in sub-clause 1 of Clause 7 of the award, namely:
When the matter came before the Commission on 15 June 1989, Mr. Fitzgerald, appearing for the Tasmanian Confederation of Industries, challenged the Commission's jurisdiction to hear the application at all. It was the view of those for whom he appeared that the persons concerned were not employees but contractors, and therefore ultra vires the Commission's jurisdiction to make the declaration sought. There then ensued lengthy debate, the record of which occupied many pages of transcript as well as valuable hearing hours. As a result of oral and documentary evidence drawn together by lengthy yet persuasive argument, it was clear that it was then, and no doubt still remains the view of the Kingborough Council that persons performing the function of "Personal Care Assistant" are participants in individual contracts for services with individual clients. They are neither employees of the Kingborough Council nor contractors to it. The only admission of involvement at all with the present scheme of personal care was that the Council acts as both agent for the carers and clients. In broad terms it was submitted that the Council advertises for, selects and trains suitable persons to act as "contractors" and matches the contractors to "clients" having regard for the skill of the contractor and the needs of the client, along with compatibility of both. The Council also pays the carers on behalf of the clients who contribute a nominal amount only towards the cost of the service provided during council-arranged contracted hours. Any additional services rendered outside the contracted hours is a matter between the client and the provider of that service. Mr Fitzgerald summarised the Council's objection to the case proceeding by stating that:
The service, which is in the nature of a pilot proposal, is overseen by the Kingborough Council who appointed a person as co-ordinator for that purpose. The Co-Ordinator gave evidence herself from which the following selected excerpts are now reproduced:
On the question of actual tasks performed by carers, and this question seems to go to the heart of the original claim, Ms. Watson said:
The actual duty statement applicable to this work states: "KINGBOROUGH PERSONAL CARE SERVICE
Ms. Watson then went on to indicate that "Personal Carers" cannot enter into "household care". This, she explained, was the Home Help service funded by the Department of Health. She said: "...It's another HACC Program, so it is funded in the same way and administered by the Community Health." [Note: Evidence of Ms. Bennett, representing Commonwealth Department of Health, contrasted Home Help with the personal carers and observed that personal carers was, in her opinion, only another aspect of home help. Transcript, p.196] On balance the evidence led through the Co-ordinator, Ms. Watson, was fairly clear. Among other things it was established that some carers had requested to be regarded as employees of the Council but were refused. They were in fact told that they needed to be contractors to their clients. The clients, on the other hand, did not negotiate a fee. The Council did that. And the Council's Co-ordinator set the ceiling on the number of hours of subsidised service at 10 per week for each client. The carers were paid a rate determined by the Committee set up to consider such matters following a recommendation by the Co-ordinator. Funding was provided from both Commonwealth and State sources. Clients paid 50 cents per hour into the Personal Care Service Fund. The reason for this was explained thus:
Clients may negotiate directly with the carers for extra services for which they are personally liable to pay. The power to dismiss a carer resides in the hands of a group known as the Community Access Committee which appears to stand in no industrial or contractual relationship with the carers or clients at all. Ms. Watson determined the minimum ordinary hourly rate at $10.50. This was ratified by the Committee. The rate settled upon (but not negotiated with the carers) was calculated having regard for existing rates in certain awards including the Miscellaneous Workers Award4. The Nurses Award5 was also taken into consideration, along with rates for home help. But the final figure was assessed having regard for available financial resources and likely client needs. The following exchange occurred between the President and Ms. Watson:
During the course of her evidence Ms. Watson indicated that she had discussed with the Municipal Employees' Union and the Miscellaneous Workers' Union, along with others, the appropriate rates of pay for the work in question. The MWU suggested to her that the Miscellaneous Workers Award6 should apply. Mr. Watson and her committee presumably rejected that proposition because, as she put it:
Mr. Fitzgerald argued that the role of the Kingborough Council is that of a "facilitator", or an introductory agency or mediator. It is certainly not one of a direct employer-employee relationship. He submitted that there was no contractual relationship between the Council and the carers at all. However, he acknowledged that there could be a contractual relationship between carers and clients, although any such relationship would be in the nature of a contract entered into for the provision of services, and not an employment contract of the kind that exists where there is a clear and deliberate employer-employee relationship established. Mr. Fitzgerald concluded his principal objections by reminding the Commission of the well-settled common law tests generally applied in determining whether a master-servant or employer-employee relationship exists. In that regard he quite properly dealt at length with what is said to be the "control test" - i.e. the degree to which the alleged employer is able to direct or control the alleged employee or supplier of the service. Control in that sense no doubt includes an employer's ability to direct an employee how, when and there he should perform a particular task for which he is to be paid. Mr. Fitzgerald made reference to the fact that the Kingborough Council had no control whatsoever over the time at which work is done for a client or indeed where that work is done. It may be performed in the client's house or it might be performed outside the actual dwelling, and may even involve taking the "client" shopping. Mr. Fitzgerald's arguments overall were well reasoned and therefore prima facie compelling. Nevertheless it might also be argued that if there is in fact an employer-employee relationship existing between either the Kingboroough Council or, in the alternative, a person or persons identified only as "clients", then there could exist if the alternative view prevails, grounds for concluding that the Kingborough Council had deliberately advised clients incorrectly in order to employ 16 persons at non-award rates and conditions. I do not wish to be misunderstood in this regard: I do not regard the Council as a tortfeasor; it is simply put forward as an alternative to the argument presented by Mr. Fitzgerald. In that event it would be beyond the Commission's power to put right what might be an obvious wrong. Clearly, the remedy would lie with the Department of Labour and Industry, or a court of competent jurisdiction. For his part, Mr. O'Brien adhered doggedly to his argument that the carers were in fact employees of the Kingborough Council, or if not, of someone else. But employees they were and employees they remain. On the evidence before me, and in particular that to which reference has already been made; the evidence-in-chief and on cross examination of Ms. Bennett, Program Manager of Community Care and Health, Advancement Section of the Commonwealth Department of Health; the conduct of the parties in the sense that Ms. Watson played a key role in co-ordinating the service; the evidence regarding her dealings with the carers and clients as an officer employed by the Kingborough Council for that purpose; the fact that clients paid only 50 cents per hour toward the cost of the service which was valued by Ms. Watson and others at an hourly rate at least twenty times more than that paid for, or recovered from, the clients; the fact that the alleged "contractors" did not at any relevant time have any say at all in the rate of pay for co-ordinated hours worked up to 10 per week; the fact that the suppliers of the service were told by Ms. Watson on behalf of the service that they were to be regarded as contractors; the fact that the Kingborough Council kept the "contractors" covered in part by insurance; the fact that the service was labour only; and the fact that not one carer, "contractor" or client was called to give evidence during proceedings, are but some of the reasons why I am drawn inevitably to the conclusion that assertions that there are some 16 independent contractors, unilaterally deciding for themselves that they will obtain from Kingborough Council suitable basic training, free of charge (one assumes) in order to establish themselves as "selected" contractors initially to unknown principals or clients is, I believe, stretching the long bow too far. Moreover, for such persons to be paid from funds supplied in part by a Commonwealth Department that required such funds be utilised where possible to pay award labour, is, to my mind, sufficient reason alone among many more arising from the evidence in this case, to draw the conclusion that the term "contractor" is more fictional than real. One must ask the question: Why would 16 such individuals set themselves up as contractors in the first place? Any person who sells his labour for reward is a contractor of sorts. But contracts of that kind are contracts of service for the most part. Admittedly there is no known law that prohibits such contracts being entered into as contracts for services. But on the balance of probabilities I must conclude that the notion of 16 carers being regarded as contractors was probably settled upon by another person or other persons in order to, among other things, ensure that available funding would finance a pilot scheme for at least the agreed trial period. After all, a fixed rate for a fixed period is unquestionably an advantage if funds are limited to amounts provided by way of grants which are not established in the form of recurrent funding. Of course an industrial agreement entered into for a fixed term would probably produce the same result if the parties to such an agreement were of that mind. Having regard for the voluminous evidence presented to the Commission in relation to this threshold point, and as was suggested by the parties, I believe that I am in a position to make a decision on the original application which, if reduced to its lowest common denominator, really only required a determination whether work performed by certain people fell within the purview of the work covered by the Miscellaneous Workers Award. However, I must refrain from determining that specific matter at this stage. Accordingly I find that on the balance of probabilities, the Commission does have jurisdiction to entertain the application for interpretation. It follows that I reject the TCI assertion that the subject is not an industrial matter. In my opinion it is, and I decide accordingly. However, I make it clear that it is not the Commission's function to determine at this stage the identity of the actual or deemed employers of persons performing the work in question. That, I believe, is either a matter for the Department of Labour and Industry or a court of competent jurisdiction.
L. A. Koerbin 1 P139 |