CONTRACTUAL BENEFIT CLAIM

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00252

DELIVERED : friDAY, 10 jUNE 2022

FILE NO. : B 59 OF 2021

Applicant

AND

Dack WA Pty Ltd

Respondent

CatchWords : Denied contractual benefits – No appearance by the respondent – Whether applicant was an employee or independent contractor – Applicant was an employee – Claim for unpaid wages, food allowance and air ticket upheld

Legislation : Industrial Relations Act 1979 (WA): s 7, s 27(1)(d), s 29(1)(b)(ii)

  Industrial Relations Commission Regulations 2005 (WA): reg 24(2)(d), reg 25(3)

Result : Declaration and order issued

Representation:

Applicant : Mr A Dzieciol (of counsel)

Respondent : No appearance

Cases referred to in reasons:

Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1

Hotcopper Australia Ltd v Saab [2002] WASCA 190; (2002) 82 WAIG 2020

Ian Gregory Sampson v Paul Lothar Ralf Meyer C/O Thames Legal Office [2018] WAIRC 00419

Paul Lothar Ralf Meyer C/O Thames Legal Office v Ian Gregory Sampson [2019] WAIRC 00350

Personnel Contracting Pty Ltd T/As Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers [2004] WASCA 312

ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors [2022] HCA 2

Reasons for Decision

1         Mr Bhatia is a truck driver. He says that the respondent, Dack WA Pty Ltd (which trades as Allwest Haulage), owes him $4,941.49  arising out of a contract of employment between them. Mr Bhatia worked for Dack WA Pty Ltd from about February to June 2021. Mostly, Mr  Bhatia worked carting ore from a mine site to Port Hedland. He also worked out of Geraldton from May 2021 for about a month. In June 2021, Dack WA Pty Ltd directed him to again work out of Port Hedland.

2         On 24 June 2021, Mr Bhatia tried contacting Dack WA Pty Ltd for an update about several invoices he says were not paid. He informed Dack WA Pty Ltd that given he had not been paid, he had ‘parked up’ the truck he was allocated to drive and that he hoped he would be paid before the next trip.

3         Mr Bhatia says that he was dismissed on that day because he received a text message from Mr Martyn Dack, the owner of Dack WA Pty Ltd which said that Mr Dack ‘did not want [Mr Bhatia] anymore [sic]’.

4         Dack WA Pty Ltd was represented in these proceedings by Mr Dack. In its very limited contact with the Commission, I understand that Dack WA Pty Ltd says that Mr Bhatia was a sub-contractor, not an employee.

What must I decide?

5         To resolve this matter, I must decide whether:

1. Mr Bhatia was an employee; and

2. Dack WA Pty Ltd owes Mr Bhatia $4,941.49 in unpaid remuneration, food allowance and an air ticket under his contract of employment.

No appearance by the respondent

6         The respondent did not appear at the hearing of this matter.

7         The Commission has the power to proceed to hear and determine the matter in the absence of any party who has been duly served with notice of the proceedings: s 27(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act). Service on the respondent in this matter may be effected by leaving it at, or sending it by pre-paid post to, the respondent’s principal place of business or principal office in the State or the registered office of the corporation: reg 24(2)(b) Industrial Relations Commission Regulations 2005 (WA) (Regulations).  Alternatively, service can be effected by sending the notice of hearing as an attachment to an email sent to the email address that the respondent has provided to the Commission: reg 25(3) of the Regulations.

8         In this matter, Mr Bhatia named Mr Martyn Dack as the respondent’s contact person in his notice of application. The notice of application gave the respondent’s address as: 70 Connell Avenue, Martin WA 6110 and the email address included was ‘allwesthaulage@gmail.com’. There was also a mobile number:  0429 862 602.

9         On 30 July 2021, a Registry Services Officer telephoned Mr Dack who confirmed that:

1. he is one of the owners of Dack WA Pty Ltd;

2. he is the contact person for service of the application; and

3. the respondent’s contact details in the application are correct for service.

10      The Registry Services Officer served the notice of application on Mr Dack by email to the email address in the notice of application the same day.

11      Mr Dack has not replied to any emails sent to him by the Commission or the Registry. My Associate has telephoned Mr Dack at least 7 times and he has spoken with her 4 times. In the course of these phone calls, Mr Dack informed the Commission that he now lives in Wedgefield and provided an alternative postal address to my Associate.

12      Dack WA Pty Ltd did not file a response to this application. It did not attend either of the two conciliation conferences, the directions hearing or the substantive hearing in this matter.

13      In circumstances where:

1. my chambers posted notice of the substantive hearing to the postal address in Wedgefield that Mr Dack provided, and to the respondent’s last known place of business in Martin, WA;

2. my chambers emailed notice of the substantive hearing to the email address that Mr Dack provided to the Registry;

2. my Associate telephoned Mr Dack and gave him the time, date and address of the substantive hearing when she spoke to him; and

3. Mr Dack ended the telephone call after telling my Associate that he did not intend to come to the substantive hearing,

I was satisfied that the respondent had been duly served with notice of the substantive hearing and that the Commission could proceed with hearing the matter in the respondent’s absence. For the same reasons, I am satisfied that the Commission can determine this matter without hearing further from the respondent.

Legal principles

14      The principles that apply to denied contractual benefit claims are well settled.  The claim must relate to an ‘industrial matter’ and be made by an employee.  The benefit claimed must be one the employee is entitled to under a contract of service and not arise under an award or order of the Commission.  The benefit must have been denied by the employer: Hotcopper Australia Ltd v Saab [2002] WASCA 190; (2002) 82 WAIG 2020.

15      The first element that Mr Bhatia must establish is that he was an employee, not an independent contractor.

16      Previously, the Commission has dealt with the question of whether a person is an employee or an independent contractor by applying the principles set out in Personnel Contracting Pty Ltd T/As Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers [2004] WASCA 312 by Steytler J with Simmonds J agreeing (see for example Ian Gregory Sampson v Paul Lothar Ralf Meyer C/O Thames Legal Office [2018] WAIRC 00419, which was upheld on appeal by the Full Bench in Paul Lothar Ralf Meyer C/O Thames Legal Office v Ian Gregory Sampson [2019] WAIRC 00350):

15  The principles to be applied in answering a question of this kind are not in doubt.

16  Traditionally, the so-called "control test", measuring the degree of control which the person engaging the worker is able to exercise over the worker, has been regarded as important: see, for example, Humberstone v Northern Timber Mills (1949) 79 CLR 389 and Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561.

17  In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24, Mason J said that:

"A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it: Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 at p 571; Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395 at p 402; Humberstone v Northern Timber Mills (1949) 79 CLR 389 at p 404. In the last-mentioned case Dixon J said:

“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's orders and directions.”

18  However, his Honour went on to say (at 24) that:

"[T]he existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v Federal Commissioner of Taxation (1945) 70 CLR 539 at p 552; Zuijs' Case; Federal Commissioner of Taxation v Barrett (1973) 129 CLR at p 401; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at p 218. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee."

19  Similarly, in that case, Wilson and Dawson JJ said (at 35):

"The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he shall do it: Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd [1924] 1 KB 762. The modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances."

20  In Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 40 - 41 Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ pointed to the increasing difficulty in applying the control test in more modern times. In the course of referring to the history of that test, they quoted (at [43]) the following passage from Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury, 2nd ed (1979), pp 72 - 73:

"The control test was the product of a predominantly agricultural society. It was first devised in an age untroubled by the complexities of a modern industrial society placing its accent on the division of functions and extreme specialisation. At the time when the courts first formulated the distinction between employees and independent contractors by reference to the test of control, an employer could be expected to know as much about the job as his employee. Moreover, the employer would usually work with the employee and the test of control and supervision was then a real one to distinguish between the employee and the independent contractor. With the invention and growth of the limited liability company and the great advances of science and technology, the conditions which gave rise to the control test largely disappeared. Moreover, with the advent into industry of professional men and other occupations performing services which by their nature could not be subject to supervision, the distinction between employees and independent contractors often seemed a vague one."

21  McHugh J pointed out, in that case at 50 [71], that "The right to supervise or direct the performance of a task cannot transform into a contract of service what is in substance an independent contract …".

22  Hollis was a case which involved an issue of vicarious liability. There, the Court placed some emphasis on the question whether the workers in that case (they were couriers) were carrying on a trade or business of their own or were serving the employer in its business. Distinctions of this kind go back some time in this context. In Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48 (in a passage since quoted in Hollis at 39) Dixon J said, of an independent contractor, that:

"[t]he work, although done at [the principal's] request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal."

23  Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, in Hollis, after considering what had been said by Dixon J, went on to say (at 39):

"This statement merits close attention. It indicates that employees and independent contractors perform work for the benefit of their employers and principals respectively. Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee. However, Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor. These notions later were expressed positively by Windeyer J in Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217. His Honour said that the distinction between an employee and an independent contractor is 'rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own'. In Northern Sandblasting (1997) 188 CLR 313 at 366, McHugh J said: 'The rationale for excluding liability for independent contractors is that the work which the contractor has agreed to do is not done as the representative of the employer.'"

24  Where the parties have defined their relationship by a clause in a contract made between them, that clause will be given weight (if it is not a sham), although it will not be determinative. In Australian Mutual Provident Society v Allan (1978) 52 ALJR 407, the Privy Council said (at 409) that a term of this kind cannot be given effect if it contradicts the effect of the agreement as a whole. Their Lordships applied the following statement by Lord Denning MR in Massey v Crown Life Insurance Co [1978] 2 All ER 576 at 580:

"The law, as I see it, is this: if the true relationship of the parties is that of master and servant under a contract of service, the parties cannot alter the truth of that relationship by putting a different label upon it … On the other hand, if their relationship is ambiguous and is capable of being one or the other [that is, either service or agency], then the parties can remove that ambiguity, by the very agreement itself which they make with one another. The agreement itself then becomes the best material from which to gather the true legal relationship between them."

25  This passage was cited with approval by the Privy Council in Narich Pty Ltd v Commissioners of Pay-roll Tax (NSW) [1983] 2 NSWLR 597 at 607 (see also Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 126).

26  In Stevens, at 37, Wilson and Dawson JJ said that "the actual terms and terminology of the contract will always be of considerable importance". More recently, in Hollis, at 45, Gleeson CJ and Gaudron, Gummow, Kirby and Hayne JJ reiterated (citing R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 150 - 151; Adam v Newbigging (1888) 13 App Cas 308 at 315; Ex parte Delhasse; In re Megevand (1878) 7 Ch D 511 at 526, 528, 532 and TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681 at 699) that such terms are not of themselves determinative as parties cannot deem the relationship between themselves to be something it is not.

17      Recently, the High Court issued two decisions (Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 (CFMMEU) and ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors [2022] HCA 2 (Jamsek)) dealing with the question of whether a person is an employee or an independent contractor.

18      In CFMMEU, the High Court held (per Kiefel CJ, Keane and Edelman JJ) at [43]:

Where the terms of the parties’ relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations established under the written contract should not be decisive of the character of the relationship.

19      Jamsek affirmed the approach taken in CFMMEU.

20      Kiefel CJ, Keane, Edelman and Gordon JJ considered that prior to their decision, the way the multi-factorial approach had been applied was incorrect, with its application by lower courts being ‘problematic in a number of respects’ (at [32] and [186]-[188]).

21      Broadly, and in the context of a comprehensive written contract between the parties, these two High Court decisions largely rejected that the relationship between parties across its life span should be examined, including how the relationship operates in practice.

22      Kiefel CJ, Keane and Edelman JJ set out at [39] that the ‘own business/employer’s business’ dichotomy ‘usefully focusses attention on those aspects of the relationship generally defined by the contract which bear more directly on whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business, rather than as part of an independent enterprise.’ One approach, to be used as a guide, is to look at whether, under the contract, the worker is engaged to work in the business of another, though this may not necessarily be useful in all cases.

23      It is also clear that the extent of a contractual right to control, evident from the terms of the contract itself, remains a major signifier of an employment relationship (Kiefel CJ, Keane and Edelman JJ at [88]; Gageler and Gleeson JJ at [113]), while the superior bargaining power of one party has no bearing on the meaning and effect of the contract.

24      A mere label will not determine the status of the parties.

Mr Bhatia’s evidence

How Mr Bhatia came to work for Dack WA Pty Ltd

25      Mr Bhatia gave evidence about how he came to work for Dack WA Pty Ltd. He was told by a friend who was working in Port Hedland that Mr Dack was looking for drivers. Mr Bhatia used to work for one of Mr Dack’s friends. Mr Bhatia said that Mr Dack offered him a job with the respondent when they spoke on the phone. They agreed that Mr Bhatia would be paid $50 per hour and a food allowance of $150 per week. All accommodation, flights and transportation would be looked after by Mr Dack. Mr Bhatia could choose between a roster of four weeks on, two weeks off (Four and Two) or a roster of four weeks on, one week off. Mr Bhatia chose the Four and Two. Mr Dack told Mr Bhatia that he would be paid using an ABN.

26      Mr Bhatia was told by Ms Gillian Laycock, who is Mr Dack’s wife and works as the respondent’s Accounts/Business Operations Manager, that Mr Dack would give Mr Bhatia a written contract when he arrived in Port Hedland.

27      Mr Bhatia tendered into evidence the written contract that he signed on 2 February 2021 when he began working for Dack WA Pty Ltd. It provides:

Welcome to Allwest Haulage

We strive to deliver the best experience possible in the transport community with our family‑owned business, you become part of our family!

The way this job works is the more runs, the better. You need to be able to devote yourself for the time you are away in Port Hedland and deliver runs on schedule to meet targets within the PMI rules protocol and most importantly SAFETY.

Your training is provided upon arriving on site. As soon as you are inducted you will be assisted by another driver guiding you through the ropes. Training will be paid after 4 weeks, of being VOC. Training will be paid for max of 4 shifts.

If you do not last your first swing, we do not pay for training or flights.

Food allowance of $150 per week. Accommodation is supplied.

Allwest Haulage pays $50 per hour inclusive for your shift work. Without any stoppages or break downs at the port and mine you will be able to get 6 shifts per week. Allwest pays for your flight from Perth to Port Hedland/Port Hedland to Perth.

You will be paid $30 per hour whilst you are in training.

You can choose the following roster.

4 weeks on 1 week off

4 weeks on 2 weeks off

If you confirm that you understand, please sign below and return

Signed ………………………………………..

Again, we would like to welcome you to the Allwest Family, we hope that we can work together, and both achieve our goals.

Kind regards

Gillian Laycock

Accounts/Business Operations Manager

0429 001 038

allwesthaulage@gmail.com

28      The contract was undated and signed by Mr Bhatia.

29      Mr Bhatia’s evidence is that his agreement with Dack WA Pty Ltd was as set out in the written contract. The agreement was that he would be paid $50 per hour for shifts, however long the shifts took. That is what was agreed and what happened.

30      Mr Bhatia gave evidence that Mr Dack owns Dack WA Pty Ltd, which trades as Allwest Haulage. He tendered into evidence an ASIC business name search summary for Dack WA Pty Ltd showing that Dack WA Pty Ltd trades as Allwest Haulage. While giving evidence, Mr Bhatia often referred to the respondent as Allwest Haulage.

The work

31      After doing some training and induction, Mr Bhatia began working as a truck driver. Dack WA Pty Ltd gave him a car to go from his accommodation to where he collected the truck he would drive. Dack WA Pty Ltd always provided the trucks that he drove. Mr Bhatia would drive from Port Hedland to site and back. Generally each trip was around 12 hours, unless there was any delay or breakdown. If that happened, then a trip could be up to 17 hours. Mr Dack and Mr Bhatia discussed that drivers are not allowed to drive more than 17 hours per day under the heavy vehicle policy that exists in Western Australia.

32      If Mr Bhatia worked more hours then he would be paid more, at his usual hourly rate of $50 per hour. Each week, Mr Bhatia had to email his invoice and an Allwest Haulage timesheet to Ms Laycock. She would organise for Dack WA Pty Ltd to pay him within a day or two. Mr Bhatia tendered into evidence a bundle of the invoices that he gave to Ms Laycock each week. He also tendered a bundle of his bank records between February and May 2021 which show all the payments made by Dack WA Pty Ltd to Mr Bhatia. Mr Bhatia’s evidence was that every payment he has ever received from Dack WA Pty Ltd is shown in those bank records. The bank records show that each payment from Dack WA Pty Ltd matches up with an invoice number.

Control

33      The effect of Mr Bhatia’s evidence is that Dack WA Pty Ltd had control over his work. Dack WA Pty Ltd would provide Mr Bhatia with the truck and fuel. Dack WA Pty Ltd would tell him where to go and what to do. If any issue arose, he had to contact Dack WA Pty Ltd’s Acting Manager or Mr Dack. If Mr Bhatia could not work a shift for any reason, he had to let Mr Dack know.  Dack WA Pty Ltd paid for Mr Bhatia’s accommodation and flights. Even Mr Bhatia’s groceries were paid for by Dack WA Pty Ltd in the form of the $150 per week food allowance. Mr Bhatia would divide the $150 by 7 days and then claim per day he was in Port Hedland.

34      The timing of Mr Bhatia’s shifts would vary from day to night shift depending on Dack WA Pty Ltd’s needs. Dack WA Pty Ltd’s Acting Manager, Johnno, would tell Mr Bhatia what was required.

Change from Port Hedland to Geraldton

35      Mr Bhatia gave evidence that he worked for Dack WA Pty Ltd in Port Hedland for three months until Dack WA Pty Ltd lost a mining contract because another driver rolled a truck. When that happened, Dack WA Pty Ltd told Mr Bhatia that there was no more work in Port Hedland and it sent him to work in Geraldton instead. Mr Bhatia was told by Mr Dack that he would be working his usual 12 hour shift and have accommodation in the middle of his trip but when he arrived in Geraldton he discovered that he was expected to drive by himself from Geraldton to the mine site at Wiluna and back, being around 1800km. He was expected to sleep in the truck. Mr Bhatia said he did not like that because it was not what he had agreed to. It meant that Mr Bhatia had to do a trip of around 30 hours. This happened in May 2021.

36      When Mr Bhatia got to the mine in Wiluna, he called the supervisor and asked to be escorted. The supervisor was not available so the load operator told Mr Bhatia that he would escort him. Mr Bhatia explained that he was new to site. Before Mr Bhatia could open the truck’s lid, the load operator dumped a load of ore on the lid, causing damage. Mr Bhatia called Mr Dack straight away. Mr Dack told Mr Bhatia to cut the tarp and get the load, which he did. Mr Bhatia had to wait for hours until the supervisor came and they made a report. The supervisor agreed that the load operator was at fault. Mr Bhatia then had to drive 13 hours back to Geraldton.

37      When Mr Bhatia got back to Geraldton, Mr Dack tried to blame him for the incident. When Mr Bhatia said he was not happy that he had had to work more than the 12 hour shift he had agreed to, and been made to sleep in the back of the truck, Mr Dack said ‘If you don’t like it you can just leave, that’s it.’ Mr Bhatia then had difficulty getting Allwest Haulage to book his flight home from Geraldton but eventually the flight was booked. After Mr Bhatia returned home to Perth, Mr Dack called him and asked him to work in Port Hedland again. Mr Bhatia went to Port Hedland as instructed, did the necessary inductions and worked as instructed by Mr Dack. He did five days’ run. At that time, Mr Bhatia was aware that some of his invoices had not been paid by Dack WA Pty Ltd. He checked with another driver whether he was paid and that other driver said that he was. Mr Bhatia then ‘parked up’ half a day early because he was not being paid. Mr Bhatia says that is shown on invoice 29, which records him having worked from 4.30am until 12.30pm on 24 June 2021. Mr Bhatia explained to Dack WA Pty Ltd’s acting manager Jonno the reason why he was finishing work early. Johnno then called Mr Dack who called Mr Bhatia and abused him over the phone. Mr Dack threatened Mr Bhatia, saying ‘You haven’t seen my bad side.’ When Mr Bhatia asked to be paid, Mr Dack said that the salary had already been processed. Mr Dack asked Mr Bhatia to leave Dack WA Pty Ltd’s accommodation and said ‘I don’t want you anymore.’ Mr Dack refused to provide Mr Bhatia with his air ticket home. Mr Bhatia said that he waited several days in Port Hedland but when Dack WA Pty Ltd did not book his air ticket, Mr Bhatia ended up having to buy his own in order to return home. Mr Bhatia tendered into evidence the air ticket that he booked and paid for.

Lack of payment

38      Mr Bhatia submitted two invoices supported by timesheets to Dack WA Pty Ltd but was not paid. At first, Mr Dack said that Ms Laycock was already processing Mr Bhatia’s salary.

39      Dack WA Pty Ltd provided Mr Bhatia with a timesheet headed ‘Allwest Haulage’ to fill out each week. Each invoice that Mr Bhatia sent Dack WA Pty Ltd was supported by a matching timesheet.

40      When Dack WA Pty Ltd did not pay Mr Bhatia for the work he did in Geraldton and Port Hedland, as set out in invoices 27 and 28, Mr Bhatia tried to called Mr Dack and Ms Laycock at Dack WA Pty Ltd. The phone was not answered.

41      Mr Bhatia gave evidence that Ms Laycock would book his flights and email him his air ticket. He tendered into evidence examples of emails from Ms Laycock to him attaching air tickets.

42      In the first week of July 2021, Mr Bhatia called and emailed Dack WA Pty Ltd about his unpaid invoices but received no reply. He only received a blank email from Ms Laycock, attaching an invoice of $9,699.03 for repairs to the truck that was damaged in Geraldton. Mr Bhatia tendered that invoice into evidence. Mr Bhatia did not pay the invoice for truck repairs. Dack WA Pty Ltd made no further demand and has not contacted Mr Bhatia since.

43      In relation to the benefits Mr Bhatia claims, he gave evidence about how he calculated the food allowance he says is owed. Mr Bhatia gave evidence that he calculated the food allowance according to the number of days that he worked in a particular week. He said the food allowance is $150 for seven days, so he would divide $150 by seven, and multiply the result by the number of days that he was away working for Dack WA Pty Ltd in that week. Invoice 27 (Exhibit A7) is for five days, invoice 28 (Exhibit A8) is for six days and invoice 29 (Exhibit A9) is for three days. Mr Bhatia’s evidence is that he was away working for Dack WA Pty Ltd for those days.

Was Mr Bhatia an employee?

Mr Bhatia’s submissions

44      Mr Bhatia argues that unlike in CFMMEU and Jamsek, in this case there was no comprehensive written contract. Further, like Mr McCourt, one of the appellants in CFMMEU, here Mr Bhatia was not carrying on a business of his own. The work he did for Dack WA Pty Ltd was integral to Dack WA Pty Ltd’s business. Dack WA Pty Ltd could determine when and where Mr Bhatia would work. Mr Bhatia says the evidence shows that Dack WA Pty Ltd had a very high degree of control over Mr Bhatia’s work. Dack WA Pty Ltd told Mr Bhatia which vehicle he would drive, when he would start a shift and the way in which he must perform his work. Mr Bhatia could not delegate his work.

45      Notwithstanding that Mr Bhatia was told he had to use an ABN and provide invoices, and that Dack WA Pty Ltd did not withhold tax, Mr Bhatia says the evidence shows that Mr Bhatia was an employee.

Dack WA Pty Ltd’s submissions

46      As set out at [12] above, Dack WA Pty Ltd did not make submissions or appear in these proceedings. I understand that Mr Dack told my Associate over the phone that Mr Bhatia was a contractor and not an employee.

Consideration

47      The facts in this case are very different to those in CFMMEU and Jamsek. Importantly, in this case the written contract was far from comprehensive.

48      Mr Bhatia impressed me as an honest, credible witness. He gave his evidence carefully and in a forthright manner. Much of his evidence was supported by documentary evidence. His evidence was not disturbed. I accept Mr Bhatia’s evidence.

49      I find that Mr Bhatia was an employee and not a contractor. I say that for the following reasons.

50      I find that, in accordance with Mr Bhatia’s evidence set out at [30] above,  Dack WA Pty Ltd trades as Allwest Haulage. I find that Mr Bhatia and Dack WA Pty Ltd had a written contract of employment. Relevantly, the contractual terms were that Dack WA Pty Ltd would pay Mr Bhatia $50 per hour worked. Mr Bhatia would work a Four and Two roster. Dack WA Pty Ltd would pay for Mr Bhatia’s flights, accommodation and food up to $150 per week.

51      The written contract does not designate Mr Bhatia as an employee or a contractor. It is clear that all Mr Bhatia brought to the contractual arrangement was his labour. Dack WA Pty Ltd provided the vehicles, fuel, accommodation and air tickets. Mr Bhatia had no business expenses at all. Dack WA Pty Ltd controlled Mr Bhatia’s work, including what he would do, where he would go and when he would work. By booking his travel arrangements, Dack WA Pty Ltd further controlled when Mr Bhatia would work.

52      In my view, notwithstanding that Mr Bhatia invoiced Dack WA Pty Ltd, was paid using an ABN and tax was not withheld, Mr Bhatia was not conducting his own business. The written contract required Mr Bhatia to ‘devote himself for the time he was away’ working for Dack WA Pty Ltd. Mr Bhatia had no right to delegate or subcontract.

53      On the evidence, I find that Mr Bhatia’s work was so subordinate to Dack WA Pty Ltd’s business that Mr Bhatia’s work was performed as an employee and not as part of his own independent enterprise. So much is clear from Mr Bhatia’s evidence about both what was agreed and what occurred.

Was Mr Bhatia denied contractual benefits?

Mr Bhatia’s submissions

54      Mr Bhatia submits that the benefits he claims arise under his contract of employment. The evidence he gave shows that he worked the 87.25 hours but was not paid for them. Similarly, he was entitled under his contract of employment to be paid a food allowance but did not receive $299.99. Finally, he had a contractual benefit to an air ticket for a flight from Port Hedland to Perth after his final swing of work in Port Hedland but that was also denied by Dack WA Pty Ltd.

55      Mr Bhatia says that his oral evidence, supported by documents, shows that he has been denied the following contractual benefits:

1.  payment of $50.00 per hour for the 87.25 hours that he worked as recorded in invoices 27, 28 and 29, which amounts to $4,362.50;

2. payment for a food allowance as set out in invoices 27, 28 and 29, which amounts to $299.99; and

3. payment for an air ticket from Port Hedland to Perth as set out in invoice 30, which amounts to $279.00.

56      He asks the Commission to find that Dack WA Pty Ltd has denied Mr Bhatia those contractual benefits and make an order that Dack WA Pty Ltd pay Mr Bhatia a total sum of $4,941.49.

Consideration

57      On the evidence I find that the benefits claimed by Mr Bhatia are benefits under his contract of employment. It is clear that Mr Bhatia’s claim is an industrial matter within the definition of s 7 of the IR Act. It has the necessary ‘ingredient or complexion of industrial relations’, consistent with the reasoning in HotCopper Australia Ltd v SAAB  at [26]-[28] per Anderson J.

58      Based on Mr Bhatia’s evidence, I find that Mr Bhatia had a contractual benefit to:

1.  payment of $50.00 per hour for the 87.25 hours that he worked as recorded in invoices 27, 28 and 29, which amounts to $4,362.50;

2. payment for a food allowance as set out in invoices 27, 28 and 29, which amounts to $299.99; and

3. payment for an air ticket from Port Hedland to Perth as set out in invoice 30, which amounts to $279.00.

59      I find that Dack WA Pty Ltd has denied Mr Bhatia those contractual benefits. They amount to a total of $4,941.49. A declaration to that effect and an order will issue requiring Dack WA Pty Ltd to pay Mr Bhatia $4,941.49 within 14 days of the date of the order.