Case: Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497
Outcome: cited
In any event, it was submitted by CAO that '... it is well established that a worker may be subject to quite detailed control over what they do and how they do it, yet still not be an employee'. I was referred to Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 526, where MacKenna J observed, in relation to the services undertaken by certain owner-drivers engaged in the cartage of concrete by their own vehicles that '[a] man does not cease to run a business on his own account because he agrees to run it efficiently or to accept another's superintendence' . I observe that the issue there arising was whether a company marketing and selling concrete was an independent contractor and not subject to a 'contract of service' under section 3(a) of the National Insurance Act 1965 of the United Kingdom. That issue was not therefore in line at least precisely with the issue here arising as to whether the applicants were employees of CAO rather than MES. 62 The applicants submitted that the evidence established that 'in practice' CAO had responsibility for discipline, whereas MES had only so-called 'token responsibility'. In that regard, Mr Cumberland testified that day-to-day issues that arose concerning work performance were dealt with by CAO's supervisors. The following evidence was given by Mr Cumberland in the context of his evidence (under cross-examination): 'Q. And in paragraph 10 on page 1676 you say: Coal and Allied is responsible for my discipline. You say some other things, but just stopping there. And when you say that, you are referring, are you, to the fact that Coal and Allied had the power to prevent you coming back onto the mine site if they weren't happy with you?---Correct. Yes. And when you talk there about performance management, do you see that---?---Yes. ---what are you referring to?---For example, if I am running a dais or my performance is not up to scratch on that mine lease, I need reviewing. They might say you are not on the dais for a while until such time as you pick up your game. We are going to put you back to a truck or another piece of equipment on the job. So, that the Coal and Allied supervisor observing what you are doing, if he is not happy with the rate at which you are performing, he could say to you well, look, we are not happy. We expect more of you than that. We are going to re-allocate you to a different task?---Correct. Okay. And, of course, you may even be offered assistance, mightn't you? Someone might come along and say well, look, can we give you some assistance? I mean, is there something that you are concerned about?---Correct.' I do not think that the foregoing testimony can be appropriately described as demonstrative of mere 'token responsibility' having been assumed by MES for Mr Cumberland's performance at the HVO. In a labour hire context, the provider of the hired worker would seemingly have some responsibility in principle to its customer to whom a worker is hired as to for instance the hired person's working qualifications and skills necessary for the performance of his or her work mutually envisaged to be undertaken. 63 It was next submitted by the applicants that in conformity with their day-to-day supervision, CAO managed the performance of their work and disciplined them on a daily basis when their work was inadequate, and further that so much was conceded in the course of the presentation of CAO's evidence. Mr Israel testified as to how he would explain to the operators (such as the applicants) the task required to be performed, and if not being so performed, how he would 'like it done'. He further testified as to his function of ensuring that all crew members returned from 'crib break' on time. The applicants submit 'as a typical example of day-to-day "discipline" imposed by Mr Israel upon a crew member for being late back to work after a crib break', Mr Wilton's testimony as follows: 'Mr Israel wanted to know why we took so long for crib. The next day he asked to see me in a small room, asked me why it had happened, why we took so long. I explained myself to Mr Israel, the circumstances that it took so long. He didn't seem happy with the reason--- Well can you just give evidence as to what was said rather than---?--- He pulled me into the room and asked me why it happened and why I took so long and I told him the reasons why. And did he say anything else?--- He did, yes. And what did he say?--- Why it happened, why did I take so long. Don't let it happen again. Yes and just be aware of your times next time.' 143 CAO submitted additionally that the evidence did not support a conclusion other than that the ultimate legal control over each of the applicants resided with MES, and further that although CAO could forbid the applicants to enter the mine and could restrict their movement on the mine site, that situation was no different from what applied to any person present on the mine site or seeking to enter the mine site. Moreover CAO emphasised that the factor of control was only one factor to be considered in assessing the existence of an employment relationship, and was not a determinative factor; I was referred in that regard to ACT Visiting Medical Officers at [19] and [27]. As to the proposition that a person accepting superintendence or control of another person did not necessarily mean that the person became an employee, I was referred to Queensland Stations Proprietary Ltd v the Commissioner of Taxation [1945] HCA 13 ; (1945) 70 CLR 539 at 552, Stevens at 36 and Ready Mixed Concrete (South East) Ltd v Minister Of Pensions and National Insurance (1968) 2 QB 497 at 526 (MacKenna J); that dictum in Ready Mixed Concrete at 526 included the following: 'A man does not cease to run a business on his own account because he agrees to run it efficiently or to accept another's superintendence.'