Case: Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420
Outcome: considered
There is Full Bench authority in the New South Wales Industrial Commission, in Court Session, which would support an argument that "the making of representations known to be acted upon by a person in considering entry into a contractual relationship and on the basis of which representations an agent as the representor intends the person to act may well, quite apart from any other connection with the contract subsequently made, be itself an arrangement whereby work is performed in an industry, or, at the least, a collateral arrangement to such a contract or arrangement": Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420, at 432, [28]. Contrary to the submission of the BoQ parties, it is thus not impossible for a representation to constitute an "arrangement". Further, if it is one, as the amended summons apparently alleges, and the submissions of the BoQ parties seem to ignore, whereby a person performs work in an industry, that arrangement, if unfair, may, all other things being equal, be the subject of relief under s 106 of the NSW Act. The Independent Contractors Act may or may not intrude on the ability to grant that relief, but that is not a matter for summary resolution. 22 The vice in these paragraphs is not, as the BoQ parties would have it, that of "labelling representations as arrangements". As Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 demonstrates, if a representation becomes one whereby a person performs work in an industry, it is possible for that to fall within the expansive definition of "contract" in the NSW Act and to become a subject for the granting of relief under s 106 of the NSW Act in the event of unfairness being demonstrated. Rather, as the BoQ parties would also have it, the vice in these paragraphs is that they are directed to the end of making controversial in this Court whether what are termed in these paragraphs "the Meeting Arrangements" were false or misleading and therefore unfair at the time when they were made or became unfair for the purposes of s 106 of the NSW Act. 23 In the earlier interlocutory appeal the Full Court observed (at [16]) that, "Whether the Bank was capable of misleading the OMB parties seems to us to be irrelevant to the question of whether the OMB parties were independent contractors. Whether it did mislead is clearly irrelevant." At one level, there is a certain tension between these observations and the BoQ parties' submission with regard to para 52(c) and paras 57 to 63 of the amended defence. In part, that submission did more than take the case as pleaded in the amended summons as a given and sought to strike it so much of it as was predicated upon the proposition that a representation could amount to an arrangement. 24 Be that as it may, paras 70 to 83 as presently cast do more than detail the nature of the case for the OMB parties before the New South Wales Industrial Court. Instead, these paragraphs are directed to the end of creating a controversy in this Court as to whether particular representations alleged in the amended summons were false or misleading and whether what are termed "the Meeting Arrangements" were or became unfair see paras 72, 73, 75, 76 and 83 of the amended defence. In this Court, as the Full Court has observed, the merits of that particular controversy are irrelevant.