Marshall v Whittaker's Building Supply Co
109 CLR 210(Judgment by: Kitto, Taylor, Menzies and Owen JJ)
Marshall
v Whittaker's Building Supply Co
Judges:
Kitto J, Taylor J, Menzies J and Owen JWindeyer J
Subject References:
Workers' compensation
Independent contractor
Whether "worker"
Legislative References:
Workers' Compensation Act 1912 (W.A.) - s 5
Judgment date: 7 August 1963;
SYDNEY
Judgment by:
Kitto, Taylor, Menzies and Owen JJ
KITTO, TAYLOR, MENZIES AND OWEN JJ. This is an appeal from a judgment of the Full Court of the Supreme Court of Western Australia. The Court, upon a case stated by the Workers' Compensation Board after the award in favour of the appellant against the respondent company, was asked in effect whether, upon the facts which it found admitted or proved, it erred in law in deciding that the husband of the appellant, who had been killed while working under contract with the respondent company, was a worker within the meaning of the Act because either the deceased was working under a contract of service or he was a worker by virtue of a special definition in s. 5 of the Workers' Compensation Act, 1912-1960 (W.A.). It is there provided that the term "worker" includes "any person working in connection with the felling, hewing, hauling, carriage, sawing, or milling of timber or firewood, or both for another person who is engaged in the timber industry or firewood industry, or both, for the purpose of such other person's trade or business under a contract for service, the remuneration of the person so working being in substance a return for manual labour bestowed by him upon the work in which he is engaged".
The Full Court decided that the Board did err in law both in regarding the deceased's contract with the respondent as a contract of service and in applying the extended definition of "worker" to him and held that upon the Board's findings of fact the deceased was not in law a "worker" for the purposes of the Act.
The relevant facts found by the Board were as follows. The respondent company was engaged in the timber industry and was the holder of a sawmilling permit covering 54,000 acres near Serpentine. The company had been required by the Forestry Department to cut back and mill all "dieback" timber and for the purpose of complying with this requirement it entered into a contract with the deceased, who was an experienced and capable timber faller with knowledge of the permit area. The contract, which was made orally, expressly provided:
"
- (a)
- deceased was to fall such dieback trees on the Permit Area as were marked by a Forestry Department officer and to trim and haul the resultant millable logs to respondent's mill at Serpentine;
- (b)
- respondent was to pay deceased PD3 per load hoppus measure for millable logs;
- (c)
- deceased was expected to deliver 50 loads weekly approximately."
Furthermore, it was implied:
"
- (a)
- deceased was to supply his own falling equipment (by custom tree fallers supply equipment such as power saws and axes personally) and also truck with power winch for hauling;
- (b)
- deceased was to find and employ a swamper at his own expense;
- (c)
- the contract should be executed in manner consistent with reputed skill and experience of the deceased, the approved usages of the industry and in complete observance of the conditions applicable to the working of the Permit Area either contained or referred to in Sawmilling Permit No. 1319; (d) the contract was to continue for an unspecified period."
Between August 1960 and the date of his death on 18th May 1961 the deceased, pursuant to the contract, had delivered logs to the mill and had been paid PD4,233 therefor. The work was done by the deceased and one swamper. The expenses, including the operation of the plant but excluding the wages of the swamper, totalled PD1,380, leaving a balance of PD2,850. The wages of the swamper were not ascertained but it was calculated that the deceased's net gain on the contract approximated a little under PD45 weekly. Findings that were relied on particularly as justifying the conclusion that the contract was one "of service" and not merely "for services" were contained in par. 10 of the case stated as follows: "The respondent on no single occasion directed or attempted to direct the deceased as to his methods of work in performance of the contract but had the deceased used methods unacceptable to the respondent in that for example they resulted in wastage of timber to which respondent had cutting rights or broken fences or breached any of the conditions of Sawmilling Permit No. 1319 on the part of the respondent to be observed so as to jeopardize the respondent's property in the permit then the respondent would have directed or attempted to direct as to the use of such methods either by remonstrance or should this be ineffective by terminating the contract and the right to so do was in the tacit understanding of the contracting parties". Findings relied on particularly to show that the deceased was a worker within the definition already set out were contained in pars. 12 and 13 as follows:
"12. The work involved in the performance of the contract namely falling, trimming and loading of trees and logs and the driving of trucks was basically and substantially of a strenuous physical nature rather than one calling for any significant degree of mental effort although the deceased contributed a very considerable degree of skill and knowledge gained from past experience.
13. That portion of the deceased's remuneration remaining after deduction of all expenses either including the swamper's wages or not was substantial."
We agree with the Full Court that the Board's decision that the contract was a contract "of service" was an error of law. The so-called contract of service, although no doubt requiring that the deceased should himself work on the job, required him to employ other labour and did not limit that employment to one swamper. The contract also required the provision of a truck with a power winch as well as felling equipment. The payment of PD3 a load for timber delivered to the mill could not be regarded as the deceased's wages but was clearly the contract price for the agreed services which necessitated a great deal more than the work of the deceased. What is set out in par. 10 of the case stated does not upon examination go beyond a finding that, if in the performance of his contract the deceased misconducted himself to the company's detriment, the company had the right to terminate the contract if remonstrance failed to secure proper performance of the contract. Such a finding gave no ground for concluding that the character of the contract was one "of service" rather than "for services".
The question whether the Board's findings brought the deceased within the extended definition of worker requires both consideration of the meaning of the definition and its application to the facts as found.
In Australia certain work such as timber getting and sleeper cutting is normally carried out under contracts providing for payment by results under which the contractor, within the limits of his contract, works as he thinks fit rather than in accordance with the directions of the person for whom the work is being performed; and it is common to find in workers' compensation legislation limited provisions for bringing such contractors within the scope of the legislation. The definition with which we are here concerned is clearly enough such a provision and its effect is that in the cases specified, where there is a contract for services providing for remuneration which appears in reality to be payment for manual labour, the person providing the services is a worker for the purposes of the Act. The words "in substance" do not mean, as the Board appears to have thought, "to any substantial extent". Their function is to enlarge the description which the words immediately following provide, so that the definition may apply not only where the remuneration is a return for manual labour bestowed by a person upon the work in which he is engaged and for nothing else, but also where, although the remuneration is a return for something else also, the something else is comparatively so insignificant that in reality, or as one might say to all intents and purposes, it is a return for manual labour so bestowed. For instance, the definition could cover a tradesman who provides his hand tools to do the manual work required of him by his contract or a man whose work in performing his contract is not wholly manual.
The meaning which we have attributed to the definition, however, renders it entirely inapplicable to the facts found by the Board. A contract, which by its terms requires not only the labour of the contracting party but his employment of other labour and his provision of power equipment to do the job and which provides for payment according to the results of the combined activity, cannot in law be regarded as a contract which provides for remuneration "of the person so working" as "in substance a return for his manual labour". The PD3 per load here could not be so described.
For the foregoing reasons we agree with the answers given by the Full Court to both questions and accordingly dismiss the appeal.