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Extract from Queensland Government Industrial Gazette,

Dated 30 November 2007, Vol. 186, No. 17, pages 685-687]

INDUSTRIAL COURT OF QUEENSLAND

Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission

Glenda Ann McTavish AND Meningulai Pty Ltd trading as Wizard Home Loans (C/2007/38)

PRESIDENT HALL / 23 November 2007

DECISION

The Appellant, Glenda Ann McTavish, filed an application for reinstatement under the Industrial Relations Act 1999 (the Act). Such applications are heard and determined by the Queensland Industrial Relations Commission. By a decision of 31 May 2007, now reported at 185 QGIG 70, the Commission dismissed Ms McTavish's application on the ground that Ms McTavish was not an "employee" within the meaning of the relevant provision of the Act. By s. 349 the decision of the Commission is final and conclusive and cannot be appealed against, reviewed, quashed or invalidated in any Court save to the extent that the Act (or another Act) provides for a right of appeal from the decision. Section 341(1) does provide for an appeal to this Court, such an appeal is on the limited grounds of error of law or excess of want of jurisdiction. Importantly, s. 341(1) does not entitle this Court to attack findings of fact made by the Commission, howsoever illogical or faulty, so long as there is some basis for the findings.

The distinction between questions of law and questions of fact is often elusive, compare Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394. Certainly, there is a longstanding (if jurisprudential) debate about whether in determining the true nature of a relationship alleged to be that of employer and employee, an industrial tribunal is determining a question of law or a question of fact, contrast Clarkson v Dent (1998) 84 IR 250 at 252 to 253 and ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228 at paragraphs [19], [28] to [31]. However, where (as here) it is apparent from the authorities to which the Commission has referred, and from the Commission's annunciation of principles, that the Commission had a proper understanding of the law and of how matters of fact were to be evaluated in all the circumstances of the particular case, the question whether the particular factual relationship is properly to be characterised as the relationship of employer and employee is a question of fact. Here, the Appellant goes to the stepping stones rather than the ultimate conclusion. I am content to follow that course because it demonstrates that there was no failure to take account of relevant evidence and no consideration of irrelevant evidence which might raise issues under s. 248(1)(e) of the Act.

The Appellant raises seven grounds of appeal, viz.:

"a. The Commission erred in law in determining that the applicant, Glenda Ann McTavish, was an independent contractor and not an employee of the respondent.

b. The Commission contrary to law failed to properly or at all take into account certain facts relevant to its determination.

c. The Commission contrary to law took into account facts which were not relevant to its determination.

d. The Commission applied the incorrect test at law in determining whether the applicant, Glenda Ann McTavish, was an employee of the respondent or not.

e. The Commission's exercise of its discretion in relation to the question of whether the applicant, Glenda Ann McTavish, was an employee of the respondent miscarried.

f. The Commission made findings contrary to the weight of the evidence.

g. The Commission failed to take into account the effect of the Income Tax Assessment Act 1936 (Cth) and/or associated legislation upon the position of the Applicant and the determination of whether or not she was an employee.".

Paragraphs(a) and (f) may be disposed of summarily. Paragraph (a) is not a ground of appeal. It is an assertion of the case which the Appellant must successfully make. If paragraph (f) be made out, the inevitable conclusion must be that the Commission erred in fact but did not err in law. On such a finding, the Appeal cannot succeed.

The essence of the complaint raised at paragraph (b) is that the Commission failed to take into account the equipment and access to systems made available to the Appellant by the Respondent and failed to take into account the inability of the Appellant to delegate performance of work to staff within the Respondent's office. In fact, the Commission referred to those matters. A further argument is developed that if more attention had been focussed on those matters at first instance, other evidence would have been lead. Subject to a discretion to hear additional evidence, this Court is confined to the record at first instance, s. 348. No application has been made to lead additional evidence. Given that the evidence was or ought to have been known to the Appellant at the time of the proceedings at first instance, it is difficult to accept that such an application could succeed. It is even more difficult to understand how the Commission errs in law by hearing the case which an Applicant chooses to put. In my view, there is no merit in the ground at paragraph (b).

Perhaps curiously, the submission made in support of paragraph (c) was that in assessing the Appellant's authority to delegate - which is plainly a relevant matter - the Commission took into account evidence of how other franchisees treated their "mobile lenders". When one goes to the relevant passages in the transcript (helpfully noted by the Commission), it appears that the Appellant's then lay representative chose to deal with construction of the written arrangement between the Appellant and the Respondent by cross-examining the Respondent's witness about the matter. The Respondent answered a question about the extent of the authority to delegate by reference to what happened at other franchises. No objection was taken that the answer was unresponsive. The Appellant's lay representative pressed the matter and ultimately allowed into evidence testimony about the activities which might be delegated and the activities which might not be delegated. In my view, the Commission was entitled to treat that evidence as a submission in the case.

Paragraphs (d) and (e) may usefully be treated together. The first complaint is that the Commission confined itself to the written arrangement and did not consider the conduct and course of dealing between the parties. It is apparent from the report of the Commission's decision that the Commission did take those matters into account. It is also submitted that "the Applicant was not a company, partnership, trust or other such entity and the business name cannot, as suggested by the Respondent, be 'Glenda McTavish trading as Jazz Junktion' ". The issue is about the Appellant's freedom to engage in business activity other than the business of the Respondent. It was common ground that the Appellant conducted a dancing school in conjunction with a business known as "Jazz Junktion". The Commission's function was to determine whether, as the Respondent submitted, the Appellant was conducting an additional business or, as the Appellant contended, was pursuing a hobby. The Commission decided that the Appellant was engaged in an alternate business activity. The finding is a finding of fact and may not be challenged on this Appeal. It was contended also that the Respondent had not the training or capacity to conduct the business activity upon which the Respondent was engaged. It is trite war that the person may be an independent contractor though incapable of carrying out the whole of a contractor's business. The Appellant's submission that the Commission failed to consider the control exercised and exercisable by the Respondent over the Appellant's performance of her work cannot be sustained. The Commission expressly referred to those matters. Indeed, the Commission expressly recognised that the factor of control weighed in favour of a finding that the relationship was that of employer and employee. In the result, after the weighing of evidence, the Commission came to a different conclusion. If there was an error it was an error of fact. The further submissions about whether the Commission gave undue weight to the Appellant's provision of a motor vehicle as against the Respondent's provision of other equipment, overestimated the time available to the Appellant to engage in any other business and overlooked the Respondent's failure to provide the Appellant with the receipts with which, were she an independent contractor, she would need to transact business with the Australian Taxation Office are, with respect to the Appellant, arguments which are appropriate to a "second chance trial" and are designed to secure an outcome in this Court which differs to the outcome below. This Court has no authority to participate in such proceedings.

As to paragraph (g), it is apparent from the report of the Commission's decision that the matters were explicitly taken into account. It is entirely correct to note that the Commission recognised that each of the statutory measures referred to dealt with the definition of "employee" and that the Commission confined itself to the meaning of "employee" at s. 74 of the Act. The Commission was entirely correct to take that course.

I dismiss the Appeal.

I reserve all questions as to costs. My Associate will make arrangements to take any necessary written submissions about same.

Dated 23 November 2007.

D.R. HALL, President.
Released: 23 November 2007 / Appearances:
Ms T. Lawrence, for the Appellant.
Mr M. Healy, Counsel, instructed by McCarthy Durie Ryan Neil Solicitors, for the Respondent.

Government Printer, Queensland

ÓThe State of Queensland 2007.