George Stewart v All-Fect Distributors Limited and others [2006] NSWIRComm 195

George Stewart v All-Fect Distributors Limited and others [2006] NSWIRComm 195

On balance, the applicant was an independent contractor, not an employee, due to factors including provision of his own vehicle at his expense, invoicing for commission, no PAYE tax, no paid leave, ability to undertake other work, significant business expenses, and lack of day-to-day control. However, the contract was declared unfair, harsh, unconscionable, against public interest, provided remuneration less than an award employee, and avoided an industrial instrument. Compensation was ordered at half the award shortfall, apportioned among respondents, but no superannuation, leave, notice or severance entitlements as applicant was not an employee.

Parties
Applicant: George Stewart; First Respondent: All-Fect Distributors Limited; Second Respondent: Fred Joseph Essey; Third Respondent: Johnnie Arthur Essey; Fourth Respondent: Joseph Fred Essey; Fifth Respondent: Paul Fred Essey
Jurisdiction
Australia
Judgment Date
19 June 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996 (unfair Contract) / Judgment After Hearing
Outcome
Contracts declared unfair; contracts varied; compensation ordered.
Legal Topics
Unfair Contracts, Employee Vs Independent Contractor, Remuneration Under Awards, Public Interest, Vicarious Liability, Mitigation of Loss, Costs
Employment Law Industrial Law Unfair Contracts Employee Vs Independent Contractor Remuneration Under Awards Public Interest Vicarious Liability Mitigation of Loss +1 more

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Parties

George Stewart

Applicant

All-Fect Distributors Limited

First Respondent

Fred Joseph Essey

Second Respondent

Johnnie Arthur Essey

Third Respondent

Joseph Fred Essey

Fourth Respondent

Paul Fred Essey

Fifth Respondent

Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996 (unfair Contract) / Judgment After Hearing

Legal Issues

  1. 1 Whether the applicant was an employee or independent contractor
  2. 2 Whether the contracts were unfair, harsh or unconscionable
  3. 3 Whether the contracts were against the public interest

Ratio Decidendi

On balance, the applicant was an independent contractor, not an employee, due to factors including provision of his own vehicle at his expense, invoicing for commission, no PAYE tax, no paid leave, ability to undertake other work, significant business expenses, and lack of day-to-day control. However, the contract was declared unfair, harsh, unconscionable, against public interest, provided remuneration less than an award employee, and avoided an industrial instrument. Compensation was ordered at half the award shortfall, apportioned among respondents, but no superannuation, leave, notice or severance entitlements as applicant was not an employee.

Court Disposition

Contracts declared unfair; contracts varied; compensation ordered.

Orders

  • Contracts of 1994 and 1996 declared unfair, harsh and unconscionable, against the public interest, remunerated below applicable award rates, and avoided the Commercial Travellers, &c., (State) Award.
  • Contracts varied to require remuneration at half the minimum award rate plus certain vehicle allowances.