WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES TERENCE WILLIAM MILES

APPELLANT

-and-

Brendon Penn Nominees Pty Ltd

RESPONDENT

CORAM FULL BENCH

 The Honourable M T Ritter, Acting President

 Chief Commissioner A R Beech

 Commissioner P E Scott

HEARD Tuesday, 24 October 2006

DELIVERED MONDAY, 20 NOVEMBER 2006

FILE NO. FBA 17 OF 2006

CITATION NO. 2006 WAIRC 05752

Catchwords Industrial Law (WA) - Appeal against decision made by Industrial Magistrate's Court - Application pursuant to then s179 of Workplace Relations Act 1996 (Cth) - Whether Industrial Magistrate erred in finding there was not a contract of employment between the appellant and respondent - Whether estopppel relevant - Relevant indicia to determine whether a relationship is one of employment or of independent contract - Appeal upheld - Workplace Relations Act 1996 (Cth), s179

Decision Appeal upheld, matter remitted to Industrial Magistrate’s Court for further hearing and determination according to law

Appearances

Appellant Mr P Brunner (of Counsel)

Respondent Ms C McKenzie (of Counsel)

Reasons for Decision

THE FULL BENCH:

The Appeal

1         This is an appeal against a decision made by the Industrial Magistrate’s Court on 17 May 2006.  The order of the Court was to dismiss the appellant’s claim made pursuant to the then s179 of the Workplace Relations Act 1996 (Cth).  The claim was filed with the Court on 10 September 2004.  As later particularised, the appellant sought the payment of amounts of money for accrued annual leave, notice and redundancy which the appellant claimed were not made to him upon being made redundant from his employment with the respondent on or about 15 November 2002.  The appellant claimed he was entitled to be paid these amounts in accordance with the Mobile Crane Hiring Award 2002 (AW 816842 CRV) (the Award).  The appellant also sought the payment of interest and the imposition of a penalty upon the respondent.  The claim was dismissed on the basis that the Industrial Magistrate found the appellant was not the employee of the respondent but was instead a subcontractor engaged by the respondent.  Accordingly the Award did not apply to the appellant and the respondent.  The notice of appeal asserts that the Industrial Magistrate erred in coming to this conclusion because he misdirected himself as to the appropriate way in which to determine this question, made other errors of law and fact and failed to properly take into account a combination of facts which ought to have led to the conclusion that there was a contract of employment between the appellant and the respondent. 

2          The notice of appeal contained an incorrect spelling of the appellant’s first name, as “Terrence” and not “Terence”.  The appellant obtained the leave of the Full Bench during the hearing of the appeal to amend the name to correct this error.  An order to this effect will be included in the final orders made. 

The Facts

3       There was little dispute about the facts.  The respondent, trading as Brendon Penn Crane Hire, placed an advertisement in a newspaper on 6 November 1999 for the services of a hydraulic slewing crane operator.  The advertisement sought a person with a minimum of two years’ experience “to commence employment January 2000”.  The advertisement said applicants must have a C6 licence.  The appellant responded to the advertisement by telephone to Mr Brendon Penn, the director of the respondent.  Mr Penn asked the appellant to send his Curriculum Vitae to him by facsimile.  This occurred and Mr Penn and the appellant spoke by telephone again.  Mr Penn said the appellant could start work with him and there was discussion about when the appellant could come to Kalgoorlie.  There was discussion about the pay rates for the position.  The appellant said he was not prepared to work for award rates.  The appellant said he wanted something extra “whether it was on a subcontract basis or whatever and he [Mr Penn] said he would work something out”.  (T14).  During a later telephone conversation the appellant said that Mr Penn offered him an hourly rate of $25.50 “on a subcontract basis”.  (T14).  Arrangements were then made for the appellant to commence work in Kalgoorlie.  The appellant then commenced his work in the latter part of November 1999. 

4          There was no written agreement between the appellant and the respondent.  It was orally agreed that the appellant would be paid the hourly rate just mentioned as a flat rate without payment for overtime and that the appellant would not be paid for annual leave or sick leave. 

5         The work which the appellant did for the respondent was as a mobile crane operator.  The respondent engaged about five or six other crane operators.  Each of those was engaged as an employee and not a subcontractor.  The normal time for the commencement of work was 7am when the crane operators assembled in the yard and Mr Penn would allocate work to them.  At times, where one of the crane operators had an early start such as 3am or 4am, they would be directed, the day before, to go to the work location as directed by Mr Penn.  The appellant said that when an individual job was completed he would either return to the yard or attend to another job as directed by Mr Penn.  The appellant recorded his hours worked on a daily time card and also completed invoicing records for the client he was doing work for on behalf of the respondent.  The time cards were completed by the appellant and all the other crane operators to enable the respondent to calculate what they would be paid.  These time cards were completed on a daily basis.   The invoicing records were completed to enable the respondent to invoice their clients. 

6         The appellant said that if there was no crane operating work to do he would wash the crane he was using or one of the other cranes or grease the boom.  If there was no work to be allocated to the appellant at the 7am start he said that Mr Penn would say to work on your crane and that something will come in.  (T18).  It seems this usually occurred.  The appellant said that he did not think that he was free to go home because there was a chance that a job would come in.  The appellant said that “we all just waited around, did whatever work there was in the yard for us and waited until 4 o’clock, knock-off time”.  (T18).  Throughout the period that the appellant worked with the respondent he did not own his own crane and operated a crane owned by the respondent.  The crane which the appellant operated for the respondent changed from time to time.  The appellant did not supply any equipment.  The respondent supplied the cranes, lifting gear and uniforms.  The appellant was supplied with shirts from the respondent with a Brendon Penn Crane Hire logo on it.  There was also a jacket with a logo on it.  The appellant was asked whether he was required to wear these.  He answered yes he “wore the shirts for the - - advertise the company”.  (T19).  The appellant answered no to a question of whether he considered he could allocate his work to somebody else.  The appellant said that there was not much chance of that because Mr Penn “had everything under control.  You know, like he allocated all the jobs and where to go and we were just told where to go and what to do”.  (T19).  The appellant said that he had not been paid for annual leave or sick leave taken during his period of engagement by the respondent.  The appellant said that if he was away from work it was not up to him to provide somebody to work in his place.  The appellant said that he did not think he was treated any differently to the other crane operators.  The appellant said that he was required to go to work everyday and was subject to call-outs after hours.  (T22).  By way of explanation the appellant said that Mr Penn would ask the crane operators to do call-outs if work came in after hours which needed doing straight away.  In later evidence the appellant said that he felt he had a moral obligation to accept call-out work when Mr Penn requested that he engage in it.  (T60).

7         As stated the payment made to the appellant was based upon the time card records.  A printed invoice/statement was filled in by hand by the respondent’s administrator showing for each week worked, the hours worked on each day, the hourly rate, the total amount of pay for each day, taxation deducted, and a total payment.  The invoice/statements said they were from Queanbeyan Crane and Rigging to the respondent.  Queanbeyan Crane and Rigging Services was a business name which the appellant had used prior to his engagement by the respondent.  The appellant had registered this business name approximately two years before his work for the respondent.  He had used the business name when engaged in work for two entities in Queensland over a combined period of over 12 months.

8         The invoice/statements showed a deduction from the amount earned by the appellant of 20% for taxation under the prescribed payments system (PPS).  The invoice/statements were completed by the administrator of the respondent in a book which the appellant had previously used and gave to the respondent for the purpose of the generation of the invoice/statements. 

9         When requested to do so by Mr Penn, the appellant obtained an Australian Business Number (ABN) which was later used on the invoice/statements.  This was to comply with regulatory requirements.  The appellant completed the documents necessary to obtain the ABN and also to facilitate the 20% taxation withholding under the prescribed payments system. 

10      As reflected in some of the invoice/statements the appellant was paid a living away from home allowance of $30.00 when he spent nights away from home working on remote locations.  The appellant said that this amount was paid by the respondent to the appellant and all of the other crane operators.  The appellant said that he did not negotiate the payment of this amount with Mr Penn.  (T25). 

11      The rate at which the appellant was paid by the respondent increased during the course of his engagement.  This occurred on two occasions.  As stated the agreed rate was initially $25.50 per hour.  It was later increased to $26.50 per hour and then $27.50 per hour with $30.00 per hour for work on weekends and public holidays  The appellant said that these increases were not negotiated with Mr Penn who simply came up to him and offered the pay rise. 

12      The period of engagement of the appellant by the respondent was for an indefinite term.  The appellant said that at one stage Mr Penn had told him he had a job “here for as long as you like” so it was “quite a shock when he said he was closing the business”.  (T27). 

13      The circumstances leading to the cessation of the engagement of the appellant by the respondent commenced in November 2002.  The appellant explained that he and the other crane operators went to work as normal and they were told by Mr Penn that he was closing down the business and he was giving the crane operators three weeks’ notice.  Mr Penn said the three weeks could either be worked out or he would pay the crane operators in lieu of notice.  The appellant said Mr Penn also “mentioned something around - - some ex gratia payment to the other fellows and he said I wouldn’t get that because I was a subcontractor”.  (T29).  The appellant said that he worked for a further week and was then paid for an extra two weeks in lieu of notice. 

14      During his period of engagement with the respondent, the appellant did not work for anybody else.  The appellant said however that on a couple of occasions Mr Penn “hired me out to Roche Mining JR because they were short of an operator so he loaned me to them for – - to do an occasional night shift or a day shift”.  (T30).  The appellant explained that he was still paid by the respondent for this work and the respondent would charge Roche Mining. 

15      One witness gave evidence for the appellant.  This was Mr Phillip Conway who worked as an employee crane operator for the respondent at the same time as the appellant worked for the respondent.  Mr Conway confirmed the working arrangements of the crane operators and that the appellant worked in the same way as the other crane operators.  He also gave evidence about the termination of his employment, at the same time as the termination of the appellant’s engagement. 

16      The only witness who gave evidence for the respondent was Mr Penn.  Evidence of Mr Penn, relevant to the appeal, was as follows.  Mr Penn said that the increased rates of pay for the appellant occurred at times when all of the employees were given a wage increase and although he did not feel compelled to give the appellant a rate increase, to keep his rate in accordance with the rest of the crew the rate went up.  This was consistent with earlier evidence given by Mr Penn as to how he initially determined the pay rate of the appellant.  Mr Penn said that after the discussion with the appellant about the possibility of him working as a subcontractor he, together with his sister who was the administrator of the respondent, worked out what the employees were costing per hour on average over the previous 12 months.  They came up with an hourly rate which they, and subsequently the appellant, were happy with.  The hourly rate had incorporated into it amounts taken into account for holiday pay and sick leave pay.  Mr Penn also mentioned superannuation as being taken into account in setting the hourly rate.  He also said that no superannuation contributions were made for the benefit of the appellant by the respondent.  Mr Penn said that the appellant could have declined to work on a call-out or on weekends.  Mr Penn accepted that on a day-to-day level the appellant was not treated differently to his employee crane operators.  Mr Penn said that on “a management level with the paperwork side he was, and the payment side, but day to day level with the rest of the guys he was just another team member.  Yeah.  And was treated the same”.  (T67). 

17      Mr Penn said that upon the termination of the arrangement with the appellant he was paid two weeks in lieu of notice as a goodwill gesture.  He said that he did not think the respondent was obliged to make any redundancy payment to the appellant. 

The Reasons of the Industrial Magistrate

18      The Industrial Magistrate commenced his reasons for decision by describing the nature of the claim and setting out the particulars of the claim as contained in the Further and Better Particulars filed on behalf of the appellant.  The Industrial Magistrate then set out the contention of the respondent that there had been no relevant obligations under the Award because the appellant was employed as a subcontractor and paid as one pursuant to an agreement made prior to the appellant commencing work for the respondent. 

19      Under the heading “The Agreement”, the Industrial Magistrate then set out some of the facts of the relationship between the parties.  This part of the reasons commenced with the statement that it “is not in issue that the parties entered into an agreement that the claimant be employed on a subcontract arrangement and I find that was initiated by the claimant”.  (Page 5).  The Industrial Magistrate said that Queanbeyan Crane and Rigging Services was a business name used by the appellant and tax invoice/statements were created each week from which the appellant was paid.  The Industrial Magistrate said those “invoices were initiated by the Claimant who provided the invoice book which had been used by him when working in Queensland”.  (Page 6).  The Industrial Magistrate concluded this section of his reasons by saying that he had “no doubt on the evidence that the parties intended to enter into an agreement, albeit oral and limited in details, where the Claimant would be employed as a sub‑contractor by the respondent and the expectation by them was that the hourly rate agreed was accepted as full payment under the contract”.  (Pages 6/7). 

20      Following this there was a heading in the reasons “Employee or Sub-contractor”.  The Industrial Magistrate commenced this section of reasons by stating that “it has long been held that the test as to whether or not the relationship of an employee and its worker is not determined by the label they use to describe it”.  [Sic].  (Page 7).  Although this sentence does not make grammatical sense it is clear that the point the Industrial Magistrate was intending to make was that the label which the parties ascribe to their relationship is not determinative of it.  In support of this intention his Honour cited and quoted from Massey v Crown Life Insurance Co [1978] 2 All ER 576 at 579.  His Honour then said that the relationship question often arises where there is an issue with the bona fides of the agreement that led to the relationship.  His Honour then quoted from the head note of Federal Commissioner of Taxation v Krakos Investments Pty Ltd (1995) 133 ALR 545.  It was there said that where a transaction is not a sham and it is not suggested that the label used is not a genuine statement of the parties’ intention, that label will be given its proper weight.  His Honour then referred to and quoted from the judgment of Lockhart J in Sharrment Pty Ltd and Others v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454 where his Honour made observations as to the meaning of a “sham”. 

21      His Honour said there was no suggestion that the agreement between the parties was a sham in the present case.  His Honour said the appellant initiated and accepted the arrangement and willingly accepted the conditions agreed.  His Honour then made some comments about the Award and the facts of the case relating to the Award. 

22      His Honour then said that he was “aware of the authorities which have set out and followed the consideration of various indicia to determine the true nature of a relationship between an employer and employee”.  His Honour cited Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR 16, The Western Australian Builders’ Labourers, Painters and Plasterers Union v RB Exclusive Pools Pty Ltd trading as Florida Exclusive Pools (1996) 77 WAIG 4, Hollis v Vabu Pty Limited (2001) 207 CLR 21 and Peters v James Turner Roofing (2001) 81 WAIG 3093 and on appeal (2003) 83 WAIG 427.  His Honour then said:-

“Notwithstanding those decisions, is it fair to an employer who agrees to conditions, initiated by an employee, that he be employed as a sub-contractor and accepts the agreed conditions for approximately three years until being made redundant to then claim to be an employee and claim entitlements under an award?

The issue of estoppel was considered by the Full Bench of the Western Australian Industrial Relations Commission in Florida Exclusive Pools (Supra).  It was there said at pages 7-8:

“Three elements must be demonstrated in order to establish an estoppel (see “The Laws of Australia”, Volume 35.6, paragraphs [2]-[5] and see paragraph [79]-Estoppel by Convention)-

“First, the party claiming the estoppel must have adopted an assumption as the basis of an act or omission: see [41-52].

Secondly, the claimant, upon the basis of assumption, must have so acted or abstained from acting that a detriment will be suffered if the person against whom the estoppel is asserted is afterwards allowed to set up rights inconsistent with it: see [53-60].

Thirdly, the party against whom the estoppel is alleged must have played such a part in the adoption of, or persistence in, the assumption that freedom to act otherwise than in a manner consistent with it would be unfair or unjust: see [61-96].”

In this case there was clearly an assumption by both parties that their relationship was based on a contract for service and not a contract of service.

The Claimant acted upon the basis of that assumption and a detriment will be suffered by the Respondent if the Claimant is now allowed to succeed with his claim that the Award has application.

On the third point, it is not in dispute that the Claimant “played such a part in the adoption of, or persistence in, the assumption” that freedom to act otherwise (or be considered otherwise) than in a manner consistent with it would be unfair or unjust.

I find therefore that the Claimant was a sub-contractor as a result of his initiated contract of service with the Respondent and his claim must fail.  Accordingly the claim is dismissed.”

23      This was the end of the reasons of the Industrial Magistrate. 

The Notice of Appeal

24      The schedule to the notice of appeal contained four grounds.  It is convenient to consider grounds 2, 3 and 4 and then ground 1. 

Ground 2

25      This ground asserted the Industrial Magistrate erred in law and fact in determining that the subcontract arrangement was initiated by the appellant.  The ground set out some of the evidence on this issue.  The ground relates to the finding made by the Industrial Magistrate at page 5 of his reasons which we have quoted earlier.  During the hearing, counsel for the appellant was not able to point to any error of law in this finding as asserted in the ground.  Additionally, we do not think there was any error of fact in the finding made by the Industrial Magistrate.  The subcontract arrangement was initiated by the appellant in the sense that he was the party who first raised this as being a possible basis upon which the parties might structure their relationship.  In our opinion there is no merit in this ground. 

Ground 3

26     This ground asserted the Industrial Magistrate erred in law and fact in determining that the appellant “initiated tax invoices for payment of wages to the employee when the evidence establishes that the respondent, through its servant or agent, prepared the tax invoices on its own initiative”.  This ground of appeal was directed to the passage at page 6 of the reasons of the Industrial Magistrate which has been quoted earlier.  It was put to the appellant’s counsel during the hearing of the appeal that the meaning of the finding by the Industrial Magistrate that the “invoices were initiated by the Claimant”, must be understood in the context of the remainder of the sentence which was, “who provided the invoice book which had been used by him when working in Queensland”.  Understood in this way, it was suggested to the appellant’s counsel that there was no error made by the Industrial Magistrate.  The appellant’s counsel accepted this point and did not proceed with the ground.  This was an appropriate concession.  In our opinion the ground is without merit. 

Ground 4

27      This ground asserted that although the Industrial Magistrate cited relevant authorities to be followed to determine the true nature of a relationship between a putative employer and employee, the Industrial Magistrate had erred in law in failing to properly apply the authorities.  The ground particularised that the Industrial Magistrate had failed to consider evidence which was set out in ground 1, misdirected himself by embarking on an inquiry of whether it was “fair to an employer” to be subjected to a claim by an employee in circumstances where an agreement had been reached that the employee was a subcontractor, misdirected himself in his consideration of the issue of estoppel and determined the agreement between the parties was not a sham.  With respect to the latter point, there were no submissions directed to establishing the Industrial Magistrate had erred in deciding the agreement between the parties was not a sham.  Rather, the thrust of the submissions was that despite the use of the device of the subcontractor arrangement to achieve a particular pay rate for the appellant, the true nature of their relationship by reference to all of the evidence was that of an employer and an employee.  This argument is therefore linked to the first particular mentioned and to ground 1. 

28      In our opinion ground 4 has been established.  With respect, we are of the opinion that the Industrial Magistrate misdirected himself as to the appropriate way in which to approach the issue of whether the appellant was an employee.  Although the Industrial Magistrate said he was aware of and cited some of the authorities which have set out and applied a test of the consideration of various indicia to determine the true nature of a relationship between a putative employer and employee, the Industrial Magistrate did not adopt and follow such an approach.  Indeed after reference to these decisions the Industrial Magistrate said “notwithstanding” them was it “fair to an employer who agrees to conditions, initiated by an employee, that he be employed as a subcontractor and accepts the agreed conditions for approximately three years until being made redundant to then claim to be an employee and claim entitlements under an award?”.  The issue of fairness, expressed in this way, is not, as established by the cases (to which reference is made below), the method by which one determines whether somebody is an employee or independent contractor. 

29      The Industrial Magistrate was, with respect, further sidetracked by his consideration of the issue of estoppel.  In our opinion the issue of estoppel was not relevant to a determination of whether the appellant was the employee of the respondent.  We say this in part because the leading authorities do not mention estoppel as being relevant to the determination of the question of whether somebody is an employee.  In some of these, for example Hollis, and Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction, Forestry, Mining and Energy Union of Workers [2004] WASCA 312, there were documents which indicated either that the individual was a subcontractor or that no employer/employee relationship had been created.  In these cases there was no mention of estoppel as having any relevance.  In Tricord, the way in which the parties described and intended their relationship to be, was taken into account as a significant factor, but was not determinative of the issue.  This was the way in which the Industrial Magistrate should have, but did not, take the parties’ intention, understanding and description of their relationship into account as a factor. 

30      Additionally, in our opinion the Industrial Magistrate’s reliance upon the Florida Exclusive Pools case as supporting a determination of the issue in part based upon estoppel, was misplaced.  The Full Bench in Florida Exclusive Pools did not endorse such an approach.  Sharkey P, whose reasons were quoted by the Industrial Magistrate, did not decide the appeal on the basis of estoppel.  His Honour found the elements of estoppel were not present on the facts, on the assumption that there was a finding of estoppel made by the Industrial Magistrate.  Sharkey P said however that it was not clear such a finding had been made.  The reasons of Sharkey P cannot be taken as an endorsement of estoppel being relevant to a determination of whether a person is an employee.  This is especially so given that prior to mentioning estoppel, Sharkey P analysed the relationship between the parties in orthodox terms and concluded at page 7 that the Industrial Magistrate should have found the person was engaged as an employee working under a contract of service. 

31      Senior Commissioner Fielding in the Florida Exclusive Pools case at page 9 said the following:-

“It may be, as the learned Industrial Magistrate says, that for two and a half years Mr Bon worked for the Respondent under the arrangements in question without complaint and that it was only after he was “sacked” by the Respondent that he brought into question the arrangements.  Whilst that might govern the issue of whether, and to what extent, the Respondent should be penalised for any breach of the relevant award, it is not a factor which is relevant in determining the precise nature of the relationship.  Counsel for the Respondent says, however, that the circumstances were such that the Appellant is estopped by Mr Bon’s conduct from pretending that he was other than a subcontractor.  Counsel suggests that Mr Bon, by his conduct in signing for and accepting the Prescribed Payment Scheme deductions, cultivated an expectation in the Respondent that he was a subcontractor and that was the basis and premise upon which their relationship proceeded and endured.  In my view, it is highly questionable whether in matters of this nature the concept of estoppel has any relevance.  The decided authorities make it abundantly clear that simply because the parties choose to describe their relationship as having a particular status will not prevent the Court from concluding that the status was otherwise than what they say it is (see:  Australian Mutual Provident Society v. Allan and Another (1978) 52 ALJR 407; and see too:  Pitcher and Another v. Langford and Another (1991) 23 NSWLR 142).  In Pitcher a person who admitted that he was an employer was nonetheless found not to be so upon examination of the true nature of the relationship (see also: Narich Pty Ltd v. Commissioner of Pay-Roll Tax (1983) 50 ALR 417).”

32      These reasons do not endorse estoppel as being relevant, as applied by the Industrial Magistrate in this case.  The Senior Commissioner went on to state that in any event the facts were not such as to lead to the conclusion that Mr Bon had conducted himself so as to lead to the conclusion that he was holding himself out as a subcontractor. 

33      Commissioner Scott agreed with the reasons for decision of both Sharkey P and Fielding SC. 

34      We also note that in James Turner Roofing Pty Ltd v Peters (2002) 82 WAIG 765, Sharkey P (with whom Coleman CC and Wood C agreed) said at [67] that he was not “persuaded that estoppel can operate to determine the nature of the contract” of a putative employer/employee.  Although this decision of the Full Bench was successfully appealed against (James Turner Roofing Pty Ltd v Peters (2003) 132 IR 122), the Industrial Appeal Court did not refer to the estoppel issue. 

35      Accordingly the Florida Exclusive Pools case did not direct or allow the Industrial Magistrate to consider the issue of estoppel in determining whether the appellant was an employee.  In our opinion this was an error of approach by the Industrial Magistrate.  His Honour ought to have considered all of the facts and circumstances of the relationship to determine whether as a whole they pointed to a relationship of employer and employee or not.  The Industrial Magistrate was required to decide the “legal character of the relationship” between the appellant and respondent (Hollis at [46]).  His reliance on estoppel, with respect, deflected him from the proper performance of this task.  Further, it is noted that the issue of estoppel was not raised by either of the parties, nor did the Industrial Magistrate foreshadow his intention to consider that issue and invite the parties’ submissions.

36      It is necessary to consider what consequence follows from our opinion that the Industrial Magistrate erred in his approach in deciding whether the appellant was the employee of the respondent.  The appellant’s counsel submitted the Full Bench should now determine this issue for itself.  He submitted that the Full Bench was in as good a position as the Industrial Magistrate to decide the issue.  This was because the determination of the issue depended upon an analysis of the relevant facts and deciding what conclusion should be drawn as to the relationship, from those facts.  It was submitted that given the lack of dispute as to the facts, the Full Bench could determine the issue without having seen and heard the witnesses.  This submission made by the appellant was consistent with ground 1 of the appeal which of itself urged the Full Bench to review the determination made by the Industrial Magistrate that the appellant was a subcontractor and find that the Industrial Magistrate was in error as a matter of law and fact in so concluding.  The respondent’s counsel did not provide any cogent submission for the Full Bench not to take the approach which was urged by the appellant’s counsel.  In our opinion this is the appropriate way for the Full Bench to proceed, for the reasons submitted by the appellant’s counsel.  A consideration of what conclusion the Industrial Magistrate ought to have reached is best considered however in the context of ground 1. 

Ground 1

37      As alluded to earlier this ground asserts the Industrial Magistrate erred in law and fact in his finding that there was not a contract of employment between the appellant and the respondent.  The ground then particularises the evidence which the appellant asserts leads to the conclusion that the appellant was the employee of the respondent.  This evidence was elaborated upon in the written and oral submissions of the appellant and the respondent. 

The Law

38      Before considering and analysing the evidence and submissions it is appropriate to set out the way in which the Full Bench ought to approach the question of whether the appellant was an employee. 

39      The determination of whether a person engaged by another to do work is an employee or independent contractor was considered by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd, cited earlier.  Mason J at page 24 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.”

40      Mason J then said that the existence of control, whilst significant was not the sole criterion by which to gauge whether a relationship is one of employment.  His Honour said the approach of the High Court had been to regard it merely as one of a number of indicia which must be considered in the determination of that question.  His Honour said that 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 employees.  His Honour also referred to what had been described as the “organisation test”.  Mason J said this test considered whether a person was carrying on their own business or was integrated into the business of another.  At page 27 however his Honour said the element of organisation was simply another factor to be weighed in deciding whether the relationship was one of employment or of independent contract. 

41      Wilson and Dawson JJ in their joint reasons adopted the same approach as Mason J.  At page 36 their Honours mentioned that control remains an important issue but referred to other indicia of the nature of the relationship which need to be considered.  As to the indicia, their Honours said at pages 36/37:-

“Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like.  Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.

Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant.  The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.”

42      Brennan J was in general agreement with the reasons of Mason J and Deane J also agreed with the reasons of Mason J. 

43      In Hollis v Vabu, cited earlier, the High Court endorsed and applied the approach of Stevens v Brodribb.  In the joint reasons of five Justices, their Honours concluded that bicycle couriers engaged by Vabu were employees and not independent contractors.  At paragraph [47] their Honours said the Court of Appeal had erred in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories.  Their Honours said that as a practical matter the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations.  Their Honours said that a different conclusion might be appropriate where the investment in capital equipment was more significant and greater skill and training were required to operate it.  Their Honours said there are a number of factors which led to the conclusion that the bicycle couriers were employees.  These were considered by their Honours at paragraphs [48]-[57].  The factors included the couriers were not providing skilled labour; the couriers had little control over the manner of performing their work; the couriers were presented to the public and those using the courier service as emanations of Vabu as they were to wear uniforms bearing Vabu’s logo, partly from Vabu’s wish to advertise its business; Vabu superintended the courier’s finances and the right to exercise control did not relate only to incidental or collateral matters. 

44      The High Court took the same approach to determining the issuing of employment as opposed to independent contract in Sweeney v Boylan Nominees Pty Ltd t/as Quirks Refrigeration (2006) 227 ALR 46 at [29]-[32] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ and [64]-[74] per Kirby J. 

45      In Tricord, cited earlier, Steytler J reviewed the relevant authorities and summarised at [28] that “the characterisation of a relationship between each of the workers and the appellant must proceed by reference to the totality of that relationship, including the system operated and work practices imposed by the appellant and, of course, an analysis of the terms of the contract entered into by each of the two workers with the appellant.” 

46      In BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2006] WASCA 49, Le Miere J with whom Wheeler and Pullin JJ agreed, at [114] after citing Stevens and Hollis, said:-

“These principles do not embody a definition of employment as such.  They rely instead on a test which involves the consideration of a number of established factors or indicia, some of which are characteristic of a contract of service and others of which suggest a non-employment relationship.  The task of the court which must assess the employment status of a worker is to consider the parties' relationship in light of each of these indicia and to determine, on balance, into which legal category the relationship falls.  The exercise is not a mechanical one.  Rather it is a matter of obtaining the overall picture from the accumulation of detail.”

47     Not dissimilarly, Gray J in Re Porter; Re TWU (1989) 34 IR 179 at page 184 said that the determination of the question of whether there is a relationship of employment, after a process of balancing the relevant indicia, may involve a matter of impression. 

48     In the present case there was no written contract setting out the terms and conditions of the appellant’s engagement by the respondent.  Further, the oral arrangement entered into at the commencement of the relationship did not cover all incidents of it.  These incidents of the relationship manifested over time.  In this type of situation as stated by Gleeson CJ in Connelly v Wells (1994) 55 IR 73 at 74, the conduct of the parties needs to be examined for the purpose of reaching a conclusion as to the terms and conditions on which they were contracting with one another. 

49     Similarly, Anderson J in United Construction Pty Ltd v Birighitti [2003] WASCA 24 at [14] said that in the case of informal oral agreements, the content of the arrangement may be inferred by examining events which succeeded the contract and from the course of dealing between the parties themselves.  His Honour said it was permissible to examine the conduct of the parties to see what their agreement was in its entirety. 

50     It is now necessary to consider the evidence relevant to a determination of the type of relationship the parties had.

The Parties’ Description of their Relationship

51      As set out earlier, from the outset the parties agreed that the appellant would be engaged as an independent contractor.  As stated by the Industrial Magistrate such a clause in a contract will be given weight if it is not a sham, although it is not determinative.  (See Tricord per Steytler J at [24], Hollis at [58]).  At paragraph [24] of Tricord, Steytler J quoted from the observation of Lord Denning MR in Massey v Crown Life Insurance Co [1978] 2 All ER 576 at 580 that “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”.  Steytler J also referred to this issue at paragraph [41] of his reasons and concluded after a review of the other relevant factors that the evident intention of the parties should be given effect to and the relationship should be found to be one of independent contractor and principal.  This conclusion accorded to that reached by Simmonds J at [150].

52      The description given by the parties to their relationship was also accorded some weight by the Full Federal Court in BWIU v Odco Pty Ltd (1991) 99 ALR 735 at 755 and ACT Visiting Medical Officers Association v AIRC (2006) 153 IR 228 at [32]-[33].

53      It is also important however to bear in mind as stated by Anderson J in Birighitti at paragraph [13] that:-

“Whilst the parties may have genuinely expressed an intention in one part of their contract to enter into a relationship of principal and independent contractor and may have genuinely desired to do so the question remains whether in point of law they succeeded in doing so.  That involves a consideration of all of the terms of the arrangement not just the declaration by the parties that their relationship is one thing or the other.  It is the effect of the arrangement as a whole which is decisive and if the effect of the arrangement as a whole is to create (or in this case maintain) the relationship of employer and employee then a statement that the relationship is to be that of principal of independent contractor is of no effect …”

54      It is relevant in the present case to consider the origin of the parties’ description of their relationship.  As noted by the Industrial Magistrate it was first raised by the appellant and then subsequently agreed to by the respondent and the appellant.  The description that the appellant was a subcontractor was not something which was foisted upon the appellant by the respondent.  Indeed as the appellant said in his evidence he was happy with the working arrangement and his work with the respondent up to the time of its cessation.  The appellant only asserted he was an employee after the cessation of his relationship with the respondent and in the context of taxation liability being raised with him by his accountant. 

55      It is also noted that Mr Penn’s evidence was that the concept of subcontract work was new to the respondent’s business.  All of its operators had been “staff”. (T64)

56      It is also relevant to consider the purpose of the parties describing the appellant as a subcontractor.  It was to establish a mechanism so that the appellant would receive a flat hourly rate of payment.  This rate was in excess of both the Award hourly rate and also the ordinary hourly rate which was paid to the other crane operators who were admitted to be employees.  According to Mr Penn, the hourly rate was simply arrived at by averaging the labour cost for the other employees over the previous 12 months and creating a flat hourly rate.  As a consequence of receiving the flat rate as a subcontractor, the appellant was not then going to receive paid holiday or sick leave or overtime payments.  Mr Penn’s uncontradicted evidence was that the respondent did not make superannuation contributions for the appellant, again on the understanding that he was a subcontractor and paid a flat rate.

57      In our opinion, in accordance with the authorities, the parties’ description of the appellant as a subcontractor, and the payment structure consistent with such an arrangement, is a matter of some weight.  It may be particularly important if the relationship otherwise is ambiguous and capable of being one or the other of employment or subcontract. 

Control

58      The appellant submitted that the respondent had the right to exercise control over the nature of the work of the appellant and the manner in which the work of the appellant was done.  It was submitted therefore that this supported a conclusion of an employer/employee relationship.  The respondent submitted that control was in this case a neutral factor.  We have earlier discussed the evidence relevant to this issue. 

59      The respondent, through Mr Penn, exercised control over the work which the appellant did.  He allocated work to the appellant as he did with the employee crane operators.  Mr Penn directed the appellant to do work at particular sites and record the amount of time which he spent working for both the purpose of the remuneration of the appellant and the invoicing of the clients of the respondent.  We note that as stated by McHugh J in Hollis at [71] 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 …”.

60      In this case however, Mr Penn told the appellant when to start and finish work.  After the completion of the work at a site, the appellant would return to the yard of the respondent and either be allocated another job or do work at the yard until a cessation time of 4pm.  If there was no work, Mr Penn directed him to clean his crane or grease the boom, or to wait at the yard for other work.  One would not expect, ordinarily, that a contractor would remain at a principal’s place of work, doing very little, yet being paid an hourly rate, until an agreed cessation time.  The appellant was subject to the same direction as the other crane operators who were employees.

61      There was little if any evidence that the respondent controlled the manner in which the appellant performed his work.  This was no doubt in part because the respondent relied upon the appellant’s knowledge, experience and skill to carry out his work as a crane operator. 

62      Overall, the facts about the issue of control, are more consistent with a relationship of employer and employee than principal and contractor. 

The Payment of the Appellant

63      The appellant submitted the respondent paid the appellant weekly payments which were indistinguishable from wages.  The payment of the appellant should be considered in the context of its distinguishing features to the other crane operators who were admitted to be employed by the respondent.  The appellant was as previously stated paid a flat rate and not paid for overtime, holidays or sick leave.  Also, the payments made to the appellant were accompanied by the invoice/statements which we have referred to.  Although these were prepared by the respondent, this was done with the agreement of the appellant and in an invoice book which he had provided to the respondent.  The invoice/statements said that they were from Queanbeyan Crane and Rigging.  This was as stated earlier a business name taken out by the appellant for the purpose of being paid as a subcontractor for work previously done in Queensland.  When it became necessary to do so the appellant obtained an ABN for Queanbeyan Crane and Rigging Services, so that entity could continue to be paid under the subcontract arrangement and PPS taxation deducted.  In our opinion the way in which the appellant was remunerated, and the invoice system, were factors more consistent with a subcontract arrangement. 

Living Away from Home Payment

64      We have already referred to this evidence.  Mr Penn was not asked about the payment of the living away from home allowance in his evidence.  As stated by the appellant, the respondent made this payment to any of the crane operators who had to spend a night or nights away from home because of work.  The appellant did not enter into any negotiation with the respondent about this payment.  We accept the submission of the appellant that the payment of this amount was more consistent with an employment relationship than one of independent contractor. 

The Voluntary Increase in the Amount to be Paid the Appellant

65      We have earlier set out the evidence about the increases which the respondent made to the hourly rate of pay of the appellant.  We have also referred to the way in which these increases were effected.  It is relevant that increases were made to the appellant’s rate of pay at the same time as increases were made to the rates of the admitted employee crane operators.  There was no negotiation of the amount of the increase.  The respondent through Mr Penn simply indicated that it was going to increase the pay of rate of the appellant and the appellant agreed to this.  In our opinion the evidence on this topic was more consistent with a relationship of employer and employee than principal and independent contractor. 

Deduction of Taxation

66      The appellant submitted that the fact that the respondent deducted taxation from the appellant’s payments was indicative of an employer/employee relationship.  The respondent submitted however because the payments were deducted on the basis of the prescribed payments system, which was ordinarily applicable to contractors, this pointed to the relationship being one of principal and independent contractor.  The 20% deduction which was made from the payments to the appellant (or Queanbeyan Crane and Rigging) was in accordance with the prescribed payments system, applicable to contractors.  This was consistent with a relationship of principal and independent contractor.  It should be noted however that there is some divergence of views as to the weight which should be attributed to this factor.  This is discussed in Australian Air Express Pty Ltd v Langford (2005) 147 IR 240.  This was a decision of the New South Wales Court of Appeal where the principal reasons were given by McColl JA with whom Ipp and Tobias JJA agreed.  His Honour discussed the issue at paragraphs [49]-[55].  His Honour concluded that the primary judge was justified in holding that the fact the respondent was not treated as a PAYE employee was a significant factor favouring the conclusion that he was an independent contractor.  In our opinion in this case this was also a factor of some significance and requires consideration as part of the balancing of all of the factors. 

The Appellant’s Lack of Equipment

67      The appellant submitted that he only brought his skills and labour to the relationship but did not provide any tools, machinery or equipment.  The appellant submitted that this was indicative of an employer/employee relationship.  The work which the appellant did for the respondent was as a crane operator.  The cranes which the appellant operated were all owned by the respondent.  We accept that this was more indicative of an employer/employee relationship than one of principal and independent contractor.  Allied to this and supporting the submission that the appellant was an employee was that there was no evidence the appellant paid any ongoing business expenses. 

The Respondent’s Uniform

68      The appellant was required to wear the uniform of the respondent as we have referred to earlier in discussing the facts.  This was for the purpose of advertising the respondent’s business.  We have also mentioned earlier that in the reasons of the majority of the High Court in Hollis, this was a significant factor in determining the relationship was one of employment.  The respondent’s counsel submitted that the requirement to wear the uniform of the respondent may have been for safety purposes.  There was however no evidence of this.  We accept the appellant’s submission that this factor was consistent with an employment relationship. 

The Documents the Appellant was Required to Complete

69      This factor referred to the time records which the appellant was obliged to keep.  There were two types of records which the appellant kept for the respondent.  The first was the record of his own time which was used by the respondent in calculating the amount to be paid to the appellant on a weekly basis.  The second was the records of the work done for clients which was used to invoice the clients for the work which was done for the respondent.  We regard this as a neutral factor.

The Termination of the Appellant by the Respondent

70      The appellant submitted that the way in which the termination was carried out by the respondent was more consistent with a relationship of employer/employee.  We have already described the evidence as to how this occurred.  On the evidence of the parties, the arrangement between the appellant and the respondent was one of indefinite duration.  It was not agreed that it would cease at a particular point in time or after the appellant had completed particular tasks for the respondent.  This was consistent with an employer/employee relationship.  Furthermore although a relationship of principal and subcontractor could no doubt be terminated when the principal decided to restructure their business, as in this case, the fact that the respondent provided the appellant with notice, including 2 weeks’ pay in lieu of notice, in the absence of any contractual requirement to do so, is consistent with an employer/employee relationship. 

The Appellant Worked Solely for the Respondent

71      The appellant worked exclusively for the respondent for two years.  Although not necessarily leading to a conclusion that the appellant was the employee of the respondent, we accept that this factor was consistent with an employment relationship.  It is a factor militating against the conclusion that the appellant was effectively running his own business rather than working as an employee of the respondent. 

The Appellant was Part of the Organisation of the Respondent and Indistinguishable from Other Employees of the Respondent

72      We have earlier referred to the evidence of the appellant, Mr Conway and Mr Penn on this issue.  The appellant was distinguishable from the other employees in relation to his rate of pay, the way in which the payment was effected via the invoice/statements, taxation, and lack of payment for overtime, holidays and sick leave.  In the way in which work was done however his work was indistinguishable from the other employees of the respondent.  Whilst the former was indicative of a subcontract arrangement, the latter was indicative of an employment arrangement.  In the joint reasons in Hollis at [40] their Honours referred to the reasons of Windeyer J in Marshall v Whittakers Building Supply Company (1963) 109 CLR 210 at 217 where 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”.  Considered in this way and taking into account other factors which are referred to elsewhere, the work which the appellant did within the organisation of the respondent was indicative of an employer/employee relationship.

The Appellant was Placed on Probation

73      The appellant said in his evidence that when he first met Mr Penn the night before he commenced employment the hourly rate was agreed at $25.50 and the appellant was to be on two weeks probation.  The probation issue was not then further elaborated upon.  In his cross-examination the appellant repeated he was on probation for two weeks.  The issue of probation was not explored in the evidence of Mr Penn.  We accept the appellant’s submission that the use of the term probation and the placement of the appellant on probation by the respondent for two weeks was more consistent with a relationship of employer/employee.

The Commencement and Allocation of Work

74      We have earlier referred to the evidence that generally the appellant reported for work at 7am each day along with the other crane operators.  He was then allocated work in the same way as the admitted crane operator employees.  As stated earlier, we accept the appellant’s contention that the arrangement of commencing work at 7am each day unless otherwise directed and working until at least 4pm in the afternoon was more consistent with an employer/employee relationship than one of principal and independent contractor.  This is particularly so in the present case where the appellant’s work in this regard was indistinguishable from the other crane operators who were admittedly employees.  This issue has been considered to some extent earlier as part of the “control” indicia.  It is consistent with an employment relationship.

The Cross-Hiring of the Appellant

75      This refers to the evidence that the respondent arranged for the appellant to do work for Roche Mining as an employee of the respondent, not in his own right or as Queanbeyan Crane and Rigging Services.  The respondent then billed Roche Mining for the work of the appellant.  We accept that this cross‑hiring arrangement was consistent with the appellant being the employee of the respondent. 

The Appellant’s Duties if he Finished Work Early

76      The appellant referred to the evidence that if he finished work early he was obligated to report back to the respondent’s site to see if other work was available or otherwise work in the yard until 4pm.  We have earlier referred to this evidence which is suggestive of an employer/employee relationship. 

The Respondent Proposed the Appellant Acquire an ABN

77      We have earlier referred to the evidence on this issue.  In our opinion in the circumstance of this case it was not material that the respondent suggested or proposed the appellant acquire an ABN.  The purpose of the respondent doing this was so that the deduction of taxation by way of the PPS system could continue, after there was a requirement to have an ABN to facilitate such an arrangement.  In the circumstances of this case, the appellant’s acquisition of an ABN was consistent with him being a subcontractor. 

The Appellant doing the Work and not Somebody Else

78     The appellant referred to the evidence that if he was absent he was not required to find anyone else to fulfil his position.  The appellant also pointed to the evidence that he was not able to allocate his work to somebody else.   In the circumstance of this case in our opinion these were neutral factors.  They were equally consistent with the appellant being an employee or being an independent contractor, constituted by an individual running his own business, as opposed to a business involving himself and other employees or contractors. 

Lack of Payment for Annual Leave and Sick Leave

79      This factor was not referred to specifically by the appellant but it is relevant in assessing the nature of the relationship.  It was an issue that was considered significant by the Full Federal Court in Odco at page 755.  As in Odco, the non-payment for annual leave and sick leave was part of the mutual intention that the appellant not be regarded as the employee of the respondent.  This factor is also referred to as significant by Steytler J in Tricord at [33].  (See also Simmonds J at [122]).  In this case however the payment structure was for the purpose of the appellant being paid more than the ordinary hourly award rate.  Mr Penn calculated the higher rate by totalling all the labour costs, including annual leave and sick leave (see T66) and paying those as a flat hourly rate.  This diminishes the weight of this factor as being indicative of a subcontract arrangement.

Insurance

80     We also mention this factor although not raised by the appellant.  The appellant gave evidence that he was asked by Mr Penn to obtain public liability insurance about six to seven months before their relationship ceased, but that he did not obtain this insurance.  Although there was some attempt to explore this issue further in the appellant’s evidence, this did not get very far because of objections.  (T30, 44).  Accordingly this is not a factor of any impact in this case.

Conclusion on the Relationship

81     The analysis above shows that the indicia do not point in one direction.  Some of the indicia point towards the relationship being one of employment whereas others point to a subcontract arrangement.  The test requires that one consider the collective strength of the indicia pointing in one direction as against another.

82     The totality of the arrangement between the parties can be divided into two parts.  The first part is a flat hourly rate (including non payment of leave), an invoicing arrangement, the use of a subcontract business name, ABN and the deduction of prescribed payment system taxation.  These all support the arrangement being one of subcontract.  The second part is the way in which the relationship actually worked.  The respondent had the right to exercise control over the appellant’s work and did so.  The working arrangements were indistinguishable from those of the other crane operators who were employees.  The respondent increased the hourly rate, paid a living away from home allowance, and made a payment in lieu of notice without negotiation.  The appellant supplied nothing but his labour.  He wore the respondent’s uniform.  He worked exclusively for the respondent for two years and had been subject to a short probation period.  He had no recurrent business expenses.  He was an integral part of the respondent’s business and was hired out by the respondent as one of the respondent’s employees.  In reality, the appellant was not conducting his own business.

83     When the first part of the arrangement is looked at in context then, it can be seen as a mechanism to achieve a higher ordinary hourly rate of pay for the appellant.  Accordingly, while the parties may have described the appellant as a subcontractor, when all of the relevant facts are considered, this is not the picture which emerges.  Looking at the totality of the relationship, including how it worked in practice, the overall impression or picture of the appellant’s relationship with the respondent was one of employer and employee. 

84     Accordingly, in our opinion the Industrial Magistrate erred in his conclusion that the appellant was not the employee of the respondent.  For this reason the appeal should be upheld.

Conclusion

85     We have concluded that the Industrial Magistrate erred in not deciding the appellant was the employee of the respondent.  The matter must be remitted to the Industrial Magistrate’s court to determine whether the application to the Court, that there was a breach of the award, is established.  This may involve consideration by the Industrial Magistrate of the applicability of the principles of “set off” described by Anderson J in James Turner Roofing cited above.  No submissions on this issue were made to us and therefore it is inappropriate to comment further on the issue.  The appellant sought an order that the appellant be declared to be the employee of the respondent.  This order is unnecessary if an order is made to remit the matter to the Industrial Magistrate’s Court for further hearing and determination, according to law.

86     In our opinion the following orders should be made by the Full Bench.  A minute of proposed order will issue in these terms:-

1. The appellant have leave to amend his first name to “Terence” in the notice of appeal.

2. The appeal is upheld.

3. The order of the Industrial Magistrate’s Court is set aside.

4. The matter is remitted to the Industrial Magistrate’s Court for further hearing and determination according to law.