Wilinski v Poulhand Pty Ltd [1996] IRCA 479

DECISION NO:479/96 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether the relationship between the parties was that of an employer and employee or principal and contractor INDUSTRIAL RELATIONS ACT 1988, s.170ED WILINSKI V POULHAND PTY LTD No.SA95/1095 JUDICIAL REGISTRAR : LJ FARRELL PLACE : ADELAIDE DATE : 19 SEPTEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No.SA96/1095 B E T W E E N GERHARD MAXWELL WILINSKI Applicant AND POULHAND PTY LTD Respondent MINUTES OF ORDER BEFORE : JUDICIAL REGISTRAR LJ FARRELL PLACE : ADELAIDE DATE : 19 SEPTEMBER 1996 THE COURT ORDERS THAT: 1. The Application is dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No.SA96/1095 B E T W E E N GERHARD MAXWELL WILINSKI Applicant AND POULHAND PTY LTD Respondent BEFORE : JUDICIAL REGISTRAR LJ FARRELL PLACE : ADELAIDE DATE : 19 SEPTEMBER 1996 REASONS FOR JUDGMENT Delivered Ex Tempore - Revised from Transcript This is an application for relief in respect of termination of employment. The Application comes before the Court pursuant to the provisions of Section 170ED. I have been requested by the parties to determine a preliminary issue. The Applicant claims that for the purposes of the provisions of the Industrial Relations Act relating to Termination of Employment that he is an employee. The facts can be summarised as follows. The Respondent is a contractor engaged in delivering live chickens to an Adelaide chicken processing plant. The Applicant is a truck driver. He responded to an advertisement entitled "Contract For Sale" in the Business and Partnerships classified advertisements of the Advertiser newspaper. He had discussions with a Mr Lloyd. He obtained a copy of a contract which Mr Lloyd had with the Respondent to cart chickens. He obtained advice from an accountant. He was introduced to Mr Edge, Managing Director of the Respondent who approved of him entering the agreement. He entered into the written agreement with Mr Lloyd. The agreement effectively transferred to the Applicant a trailer valued at $7,000 and "Goodwill" valued at $30,000. The "Goodwill" was the contract between Mr Lloyd and the Respondent for the carting of chickens. The Applicant worked 5 nights per week catching and carting chickens. He was paid according to a schedule by the load. He telephoned the Respondent on the evening before each working night to find out his schedule. If he did not catch chickens he was required to pay $20 to the Catching Contractor. He had an informal partnership with his wife although the income received was for tax purposes regarded as his income. Prescribed Payments System tax deductions were made from any payments he received from the Respondent. He received no payments for annual leave, public holiday or sick leave. He was not required to wear a uniform. No name was required to be printed on his truck. He was allowed to do other work with some limitations related to hygiene and quarantine restrictions relating to the transporting of chickens. He provided his own truck and met the expenses related to the truck. He purchased a truck of a greater capacity than was necessary for carting chickens because of the greater flexibility it would give him and a better resale value. After some discussions between the Applicant and Mr Edge in late 1995, the Applicant tried to sell his contract. He did not succeed. In late June Mr Edge advised him that he would not continue to allow him to drive, and that he would have three months to sell his contract. On the occasions that the Applicant was unable to work he made arrangements for his own replacement, except on one occasion when Mr Edge made the arrangements. Many facets of the relationship between the Applicant give the appearance of the kind of work normally carried out in the same way an employee would carry out such work. However in my view the following three matters decide the issues here: 1. The purchase of the contract from Mr Lloyd which I must regard in the absence of any evidence of a sham, as a bona fide arrangement between two contractors, inconsistent with a relationship of employer and employee. 2. Many elements of the contract are entirely inconsistent with a relationship of employer and employee, in particular the clauses relating to what would occur should the applicant die. 3. The Applicant was able to substitute other drivers with the consent of the Respondent and the calculations of payments in those circumstances. For these reasons I find that the Applicant was not an employee of the Respondent. The Applicant's representative argued in his final address that even if he was unsuccessful in this Application he wished to invoke the accrued jurisdiction of the Court. In my view there can be no consideration of any accrued jurisdiction issues that can arise in this matter unless the Applicant has overcome the initial jurisdictional hurdle. The application is therefore dismissed.. I certify that this and the preceding two pages are a true copy of my Reasons for Judgment. DATES OF HEARING : 19 SEPTEMBER 1996 FOR THE APPLICANT : MR BUI FOR THE RESPONDENT : MR DOWD