Case: BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361
Outcome: referred to
There is a body of authority bearing on the foregoing subject to which I have already made reference starting at [26] of these reasons, for instance Stevens, Hollis and Damevski. Attention was drawn by CAO also to ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228 and BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (2006) 151 IR 361, which will shortly be discussed. The majority of those decisions were made in the broader context of determining whether a particular worker was an employee or else an independent contractor of the beneficiary of his or her work. 134 The effect and operation of that line of authority may be outlined as follows: (i) the totality of the relationship is to be considered; thus in Stevens , the following appears in the reasons for judgment of Mason J (as he then was) at 24: 'But the 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. 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.' To that dictum may be added what I have earlier cited at [26] of my reasons from the joint judgment of Wilson and Dawson JJ in Stevens ; (ii) in the most recent of the foregoing five authorities above recorded ( ACT Visiting Medical Officers) , a Full Federal Court comprising Wilcox J, myself and Stone J in a joint judgment applied the principles emerging from analogous authority for the purpose of characterising relevantly the visiting medical officers engaged by public hospital authorities to provide medical services to public patients; the Full Court observed the practical realities inherent in the circumstance that in the course of their treatment of patients undertaken at the hospitals, the visiting medical doctors 'moved seamlessly between patients in the two groups' , being both private and public patients, as an integral part of the businesses that each of those doctors individually carried on; (iii) in BHP Billiton the person at the centre of the dispute had been employed by BHP Billiton and its precursors as a locomotive driver until he was made redundant in 1999; in 2001 he applied successfully for employment with a labour hire company then supplying contract drivers to BHP Billiton; from that time to 2004, and while directly employed by the labour hire company but working at BHP Billiton, he applied for advertised direct employee position with BHP Billiton on four separate occasions but was unsuccessful each time; the Union alleged that BHP Billiton had unreasonably refused to employ him, and that he was in any event jointly in the employ of entities inclusive of BHP Billiton; declaratory relief was sought to that latter effect, as was also an order in any event that such person be employed by BHP Billiton on an award; in the course of decision-making the Industrial Appeal Court of Western Australia was required to consider the Union's case that the person concerned was an employee of BHP Billiton according to ordinary concepts; the Union submitted that the correct approach to deciding the question as to the existence or otherwise of an employment relationship was to have regard to the totality of the relationship, citing inter alia in that context Hollis and Stevens . At [114] in the reasons for judgment of Le Miere J, with whose reasons Wheeler J agreed and Pullin J at least substantially agreed, it was observed as follows: 'In Hollis v Vabu and Stevens v Brodribb Sawmilling Co Pty Ltd the High Court set out the common law principles for distinguishing between an employee and a contractor. 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.' 135 CAO submitted that the operation relevantly of the reasons for the respective decisions in Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton , somewhat repetitively as in the preceding paragraph, as follows: (i) the totality of the relationship in issue between the parties is to be considered; (ii) the measure of control exercised by a putative employer over a worker is a prominent factor but not the sole criterion; and (iii) other factors include the manner in which work is performed, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and entitlements to leave, the deduction of income tax, the delegation of work by the putative employee, the presentation to the public of the putative employee as an emanation of the putative employer, the supply of a uniform and the description by the parties of their relationship in the contract the subject of consideration. 136 CAO emphasised that the importance of those factors will vary with the circumstances, no single factor being normally determinative, and that a balancing exercise is to be undertaken in relation to all of the relevant factors ( ACT Visiting Medical Officers at [19]-[20], [27] and [30] and BHP Billiton at [114]). CAO pointed out additionally that the fact that a party is benefited by the activities of a person is not a sufficient indication that the person is an employee, pointing thereby to Hollis at [40], where in the joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, the following observation was made: '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.' 192 I think that CAO is correct in its comprehensive case advanced, in a sense in the alternative, to the effect that the conduct and functions of the respective parties were not otherwise indicative of an employment relationship between the applicants and CAO, having regard to the totality thereof, and having regard in particular also to the criteria apparent from the authorities to which I have already referred, inclusive in particular of Stevens, Hollis, Damevski, ACT Visiting Medical Officers and BHP Billiton , keeping in mind in so doing that it is labour hire arrangements that are here inherently involved. I would acknowledge the relevance and force of all of the factors formulated in [135], each having varying significance without each being determinative in any fulfilment of the need for undertaking a balancing exercise in relation to all relevant factors bearing upon resolution of the principal issue arising as the existence or otherwise of relationships of employment. I would further acknowledge the prospective operation, in cases such as the present, of the principles enunciated generally in Mason and Humberstone , as well as perhaps more specifically in Drake , and additionally of course in Forstaff where reference to and examination of authority is undertaken by way of focus on labour hire arrangements.