Accident Compensation Commission v. Odco Pty Limited (t/a Troubleshooters) Available

64 ALJR 606

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(Judgment by: Mason C.J., Brennan, Dawson, Toohey and McHugh)

ACCIDENT COMPENSATION COMMISSION v. ODCO PTY. LTD. (trading as TROUBLESHOOTERS AVAILABLE)

Court:

Judge:
Mason C.J., Brennan, Dawson, Toohey and McHugh

Other References:
F.C. 90/040

Judgment date: 22 October 1990

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Judgment by:
Mason C.J., Brennan, Dawson, Toohey and McHugh

This appeal concerns the interpretation of ss.8 and 9 of the Accident Compensation Act 1985 (Vict.) ("the Act"). The Act establishes the Accident Compensation Commission ("the Commission"), constitutes an Accident Compensation Tribunal, provides for the payment of compensation to injured workers and makes provision for the imposition of a levy upon employers in respect of accident compensation. The issue in this appeal is whether the respondent company, which carries on business as a "labour agency" under the name of Troubleshooters Available ("TSA"), is an employer (within the meaning of the Act) of various categories of tradesmen.

In general terms, the levy payable by an employer under the Act is calculated by reference to "remuneration that is paid or payable by an employer" in Victoria or in respect of services performed or rendered wholly or mainly in Victoria (s.186). The levy is to be paid to the Commission by the employer by whom the leviable remuneration in respect of which it is charged is paid or payable (s.195). The levy is calculated by reference to prescribed percentage rates of leviable remuneration (s.187(2)). The levy is payable in respect of leviable remuneration paid or payable by the employer during each month within seven days after the close of the month (s.200(1)). If the levy is not paid by an employer in accordance with the Act, an additional levy becomes payable (s.207).

In the case of TSA, the Commission, by an assessment dated 12 June 1987 issued under s.203 of the Act, assessed the leviable remuneration paid by TSA for the month of April 1987 at $387,466 and fixed the levy payable for that month at $14,723.71. The notice of assessment also assessed TSA to an additional levy of $4,417.11. TSA objected to the assessment on the ground, inter alia, that it was not an employer of any of the tradesmen with whom it had dealings in April 1987. The objection was disallowed and TSA requested that the objection be treated as an appeal to the Supreme Court of Victoria pursuant to s.220 of the Act. It was common ground between the parties that the TSA tradesmen fell into four separate categories and that the correctness of the assessment fell to be determined by reference to the arrangements made by TSA in connection with four individual tradesmen.

At first instance Gray J. varied the assessment by reducing the "assessed remuneration" from $387,466 to $250,394 and by reducing the "levy payable" from $14,723.71 to $9,514.97. From that decision TSA appealed to the Full Court of the Supreme Court. The Full Court (Murphy, Marks and Beach JJ.; (1990) VR 178 ) allowed the appeal, set aside the order of Gray J. varying the assessment and in lieu thereof ordered that the assessment be varied by reducing both the assessed remuneration and the levy payable to nil. By consent, the Full Court allowed the appeal in respect of the additional levy and also reduced it to nil, notwithstanding that Gray J. had by his order adjourned the appeal in respect of the additional levy to a date to be fixed. The Full Court ordered the Commission to pay TSA's costs of the appeal and of the appeal before Gray J. An indemnity certificate pursuant to s.13 of the Appeal Costs Act 1964 (Vict.) was granted to the Commission.

TSA's business was described conveniently, though in some respects insufficiently for present purposes, by Marks and Beach JJ. in their joint judgment. TSA carries on the business of providing tradesmen to the building industry. It has a pool of tradesmen on its books covering some fifteen different categories ranging from project managers to labourers. The tradesmen operate as contractors either as individuals, persons in partnership, persons employed by a company or persons employed by a trustee. Before a tradesman's name is listed on its books, the tradesman is required to sign a document in these terms:

"AGREEMENT TO CONTRACT CONDITIONS OF CONTRACT

...

1.

I (the undersigned) acknowledge and agree that there is no relationship of Employer-Employee with TROUBLESHOOTERS AVAILABLE and that TROUBLESHOOTERS AVAILABLE does not guarantee me any work. I (the undersigned) am self-employed and as such I am not bound to accept any work through TROUBLESHOOTERS AVAILABLE.

2.

I (the undersigned) hereby agree to work for $....... per hour for actual on-site hours or job price to be agreed.

3.

I (the undersigned) hereby acknowledge, and agree, that TROUBLESHOOTERS AVAILABLE does not cover me in respect of Workers Compensation, the onus of responsibility and liability in respect of insurance (Workers Compensation) is mine only. Further, I have no claim on TROUBLESHOOTERS AVAILABLE in respect of Workers Compensation.

4.

I (the undersigned) expressly forbid TROUBLESHOOTERS AVAILABLE to make deductions in respect of Income Taxation.

5.

I (the undersigned) hereby agree that I have no claims on TROUBLESHOOTERS AVAILABLE in respect of Holiday Pay, Sick Pay, Superannuation, Long Service Leave or any similar payment.

6.

I (the undersigned) hereby agree that TROUBLESHOOTERS AVAILABLE has no responsibility or liability to me Except that I am guaranteed to be paid agreed hourly rate for actual on-site hours or agreed job price for work done.

7.

It is agreed that I (the undersigned) must carry out all work that I agree to do through the Agency of TROUBLESHOOTERS AVAILABLE in a workmanlike manner and is hereby guaranteed against faulty workmanship. All work must be made good. Further, I agree to cover the work (where necessary) for Public Liability, Workers Compensation, Long Service Leave, Holiday Pay, Sick Pay, Superannuation and have no claims on TROUBLESHOOTERS AVAILABLE in respect of the above.

8.

I (the undersigned) agree that I must belong to the respective Trade Union covering my trade.

9.

I (the undersigned) hereby agree to supply my own plant and equipment, safety gear, boots, gloves or any necessary ancillary equipment required and that I (the undersigned) have no claim on TROUBLESHOOTERS AVAILABLE in respect of the above.

SIGNED ________________

WITNESSED ________________

DATED ________________"

When a builder needs a tradesman he contacts TSA and places an order. An employee of TSA then completes an order sheet recording the builder's name, the person to whom the tradesman should report at the building site, the type of tradesman required and the duration of the work. The employee of TSA then contacts an appropriate tradesman and advises the tradesman of the builder's requirements. If the proposal is acceptable to the tradesman, he attends at the building site and performs the necessary work at the direction of the builder. Subsequently, the tradesman telephones TSA to advise details of hours worked during the previous seven days. TSA raises an invoice to the builder charging the hours worked by the tradesman at a previously agreed hourly rate (which includes remuneration to TSA for its services to the builder). The tradesman is paid by TSA at the hourly rate or set price agreed between TSA and the tradesman. The tradesman makes no payment to TSA for having placed him. TSA's reward comes from the difference between the amount it charges the builder and the amount it pays the tradesman.

The four individuals who, it is agreed, are representative of the differing categories of tradesman are Colin John Ditchfield, Brett Crage Alexander, Warren Muir Paterson and Kevin John Clancey.

Ditchfield is a qualified scaffolder carrying on business under his own name. He normally provides certain scaffolding equipment. In April 1987 he worked solely on jobs provided through TSA. He worked 181 hours in four weeks. He arranges his own personal accident insurance and regards himself as a self-employed person.

Alexander is a contract labourer. In April 1987 he worked solely through TSA. He worked 77.5 hours in one week and significantly less in other weeks. He arranges his own personal accident insurance and regards himself as an independent contractor. Both Ditchfield and Alexander are examples of tradesmen contracting as individuals.

Paterson is a qualified carpenter and carries on business as a builder in partnership with his wife. In April 1987 he worked 49.5 hours on behalf of the partnership through TSA. He regarded the work as incidental to the partnership's building business. The partnership owns tools worth $10,000 and a panel van. The partnership renders invoices for the work it does, maintains a bank account and advertises for business. During 1986-1987 the partnership's business income was $81,227, about ten per cent of which was received through TSA.

Clancey is a director of Building Design Concepts Pty. Ltd. ("BDC"). BDC is the trustee of the Kevin and Dianne Clancey Family Trust. It carries on business as a building contractor. In April 1987 BDC provided Clancey's services as a site manager on building sites. This work was arranged through TSA. The TSA/tradesman contract seems to have been between TSA and BDC, although it is possible that it may have been between TSA and Clancey. BDC does work for clients other than those referred by TSA. It is a building company registered with the Housing Industry Association. Clancey receives a salary from BDC which has paid the levy based on Clancey's wages during periods he has been working on sites arranged with TSA.

By s.5 the word "employer" is defined to include:

"(c) any person deemed to be an employer by this Act".

"Worker" is defined by the same section to mean, inter alia:

"(b) a person who under this Act is deemed to be working under a contract of service".

"Remuneration" is defined to mean "any wages, remuneration, salary, commission, bonuses, allowances or other benefits paid or payable ... to or in relation to a worker as such" and includes:

"(c) any amount deemed under this Act to be remuneration".

The Commission's case, accepted by Gray J. at first instance, but rejected by the Full Court, is that the TSA/tradesman contracts with Ditchfield and Alexander came within s.8 of the Act. That provision, to which we shall refer in detail shortly, extends the concepts of "employer" and "worker". Likewise, the Commission's case, again accepted by Gray J. and rejected by the Full Court, is that the TSA/tradesman contracts with Paterson and BDC came within s.9 of the Act. That provision also extends the concepts of "employer" and "worker".

It is convenient to consider, first, that part of the argument which is directed to s.8. The section provides, so far as is material:

"(1) Notwithstanding anything in this Act or any other law, where any person (in this section referred to as 'the principal') in the course of and for the purposes of a trade or business carried on by the person enters into a contract with any natural person or natural persons (in this section referred to as 'the contractor')-

(a)

under or by which the contractor agrees to perform any work not being work incidental to a trade or business regularly carried on by the contractor in the name of the contractor or under a firm or business name; and

(b)

in the performance of which the contractor does not either sublet the contract or employ workers or although employing workers actually performs some part of the work personally -

then for the purposes of this Act the contractor shall be deemed to be working under a contract of service with an employer and the principal shall be deemed to be that employer and the amount payable by the principal to the contractor in respect of the performance of work under the first-mentioned contract shall be deemed to be remuneration.

...

(3) If the contractor is a partnership, the contractor is deemed for the purposes of sub-section (1)(b) to have performed a part of the work personally if one or more members of the partnership actually performs any part of the work personally."

TSA submits that s.8 applies only to contracts under or by which a tradesman agrees to perform work for the other party to the contract. In support of this submission the respondent relies on the observations of Latham C.J. in Humberstone v. Northern Timber Mills (1949) 79 CLR 389 , where his Honour, with reference to s.3(6) of the Workers' Compensation Act 1928 (Vict.), an ancestor of s.8, said (at p 397):

"The idea of this provision is evidently to extend the benefits of the Act to persons who agree to do work which is not work belonging to a trade or business carried on by them, even though they may regularly carry on a trade or business. In the first place, there must be an agreement by B (a contractor) to perform some work for A (a principal)."

We should not have thought the words of s.8(1)(a) lend themselves to the interpretation that the work which the tradesman agrees to perform is work to be done for the principal rather than someone else or that the principal is to be the beneficiary of the work. True it is that there is a stronger reason for deeming the contract to be one of service in such a case, but we do not consider that this is a sufficient ground for confining the ordinary meaning of the statutory language when, according to that meaning, the words have a sensible operation.

Moreover, on the view which we take of the contractual arrangements with TSA, the tradesman agrees to perform work for TSA, even though the builder is the ultimate beneficiary of that work. TSA submits that no contract between TSA and a tradesman comes into existence until the tradesman goes to a building site nominated by TSA and commences work for the builder at that site. Indeed, the submission is that the tradesman, having commenced work at a site, is free to leave at any time of his own choosing. Unfortunately, neither Gray J. nor the Full Court made any finding about the nature of the contract, though TSA's argument that there was no contract between it and the tradesman was rejected at first instance and was not advanced in this Court.

But it is possible for us to make a finding by reference to the affidavit of Mr Groves, the Managing Director of TSA, which was before the primary judge and is not in contest. The summary of facts which we have taken from the judgment of Marks and Beach JJ. is based on that affidavit but omits reference to part of the material. According to Mr Groves, in order to match a tradesman with a TSA client, a TSA employee goes through its clients' order sheets and compares those to further sheets called "availability lists". These lists show the names of various tradesmen who have stated that they will be available for particular types of work if TSA is able to match the order with the availability of an appropriate tradesman at particular dates. The TSA employee then contacts the relevant tradesman by telephone and advises the details of the client's requirements and the name of the contact person as indicated on the order sheet. Should the particular tradesman contacted accept the offer of work, all that is required of him is that he attend at the relevant site on the date advised. Should he not wish to accept the offer of a contract, the TSA employee then proceeds to the next person on the availability list.

Once a tradesman accepts an offer of work and attends at a client's site, he remains at the site working for as long as that client requires or for as long as the tradesman wishes. TSA does not exercise and is not able to exercise any control whatsoever over what the tradesman does at the site or how he does it. The only contact TSA has with the tradesman is in obtaining information of what work he has done. The tradesman contacts TSA by telephone, usually every Tuesday, to advise the details of hours and sites worked for which clients during the previous seven days. From this information, invoices are raised by TSA to the relevant client.

The conclusion to be drawn from this material is that the tradesman enters into a contract with TSA by accepting the offer of work made by telephone. The fact that the tradesman is evidently free to withdraw from the site at any time because he objects to work or to work further on the ground of safety or for some other reason is by no means inconsistent with entry into a contract with TSA on acceptance of the offer of work communicated by telephone. It may well be that the tradesman has a right to withdraw his services. The nature and scope of that right were not explored in argument and it would therefore be unwise to speculate upon the topic now, except to say that there was no suggestion that it rendered the contract between TSA and the tradesman illusory.

When the tradesman accepts the offer of work, a contract comes into existence on the terms set out in the document headed "AGREEMENT TO CONTRACT" which the tradesman has previously signed. That document contains the terms which are to govern the contractual relationship which arises between him and TSA once he accepts an offer of work communicated to him by TSA. It is significant that, apart from cl.2, cl.7 of the document contains a promise by the tradesman to TSA to:

"carry out all work that I agree to do through the Agency of (TSA) in a workmanlike manner".

The clause also contains a "guarantee" against faulty workmanship. In this context the words "work that I agree to do" contemplate the reaching of an agreement between the tradesman and TSA with respect to the work to be carried out. So far as the builder is concerned, it enters into a contract with TSA whereby it agrees to pay TSA an amount which will enable TSA to pay remuneration to the tradesman. In the circumstances outlined by the affidavit, on the oral acceptance by the tradesman of the communicated offer by TSA of work, an agreement arises between TSA and the tradesman constituted by that offer and acceptance and the terms set out in the document entitled "AGREEMENT TO CONTRACT". That agreement is one whereby the tradesman agrees with TSA to perform work for the benefit of TSA in the sense that the work is done for the purposes of TSA's business and enables TSA to derive remuneration from the relevant builder which will enable TSA to pay the tradesman for his services.

TSA submits that the work which Ditchfield and Alexander agreed to perform was incidental to a trade or business regularly carried on by either of them in his name or under a firm or business name. The primary judge found that neither Ditchfield nor Alexander carried on a trade or business independent of the work which each of them did for TSA. TSA seeks to challenge that finding of fact by pointing to other evidence. The short answer to this submission is that, even if Ditchfield and Alexander regularly carried on a trade or business in their own names, the evidence does not establish that the work which each of them did for TSA was incidental to that trade or business. Accordingly, the agreements with Ditchfield and Alexander fall within s.8(1)(a) of the Act.

The contracts made between TSA and the Paterson partnership when Paterson accepts offers of work satisfy the conditions of applicability of s.8(1) except in one particular: the work which Paterson agrees to perform is incidental to the partnership business, and the exception in s.8(1)(a) therefore applies. But for that exception, the partnership would be "deemed to be working under a contract of service": see s.8(3).

However, the Commission invokes s.9 as applicable to the contracts made between TSA on the one hand and the Paterson partnership or BDC on the other. Section 9 provides, so far as is relevant:

"(1) For the purposes of this section, a reference to a relevant contract in relation to a financial year is a reference to a contract under which a person during that financial year, in the course of a business carried on by that person -

(a)

supplies to another person services for or in relation to the performance of work;

(b)

has supplied to that person the services of persons for or in relation to the performance of work; or

...

but does not include a reference to a contract of service or a contract under which a person during a financial year -

...

(e)

has supplied to that person services for or in relation to the performance of work where -

(i)

those services are of a kind not ordinarily required by that person and are rendered by a person who ordinarily renders services of that kind to the public generally;

(ii)

those services are of a kind ordinarily required by that person for less than 180 days in a financial year;

(iii)

those services are provided for a period that does not exceed 90 days or for periods that, in the aggregate, do not exceed 90 days in that financial year and are not services -

(A)

provided by a person by whom similar services are provided to the first-mentioned person; or

(B)

for or in relation to the performance of work where any of the persons who perform the work also perform similar work for the first-mentioned person -

for periods that, in the aggregate, exceed 90 days in that financial year;

(iv)

the payment of the consideration under the contract is made at a rate that is not less than $500 000 per annum; or

(v)

those services are supplied under a contract to which sub-paragraphs (i) to (iv) do not apply and the Commission is satisfied that those services are rendered by a person who ordinarily renders services of that kind to the public generally; or

(f)

has supplied to that person by a person (in this paragraph called 'the contractor') services for or in relation to the performance of work under a contract to which paragraphs (d) and (e) do not apply where the work to which the services related is performed -

(i)

by two or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor;

(ii)

where the contractor is a partnership of two or more natural persons, by one or more of the members of the partnership and one or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor; or

(iii)

where the contractor is a natural person, by the contractor and one or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor -

unless the Commission determines that the contract or arrangement under which the services are so supplied was entered into with an intention either directly or indirectly of avoiding or evading the payment of a levy by any person.

(2) For the purposes of this Act -

(a)

a person -

(i)

who during a financial year under a relevant contract supplies services to another person;

(ii)

to whom during a financial year, under a relevant contract, the services of persons are supplied for or in relation to the performance of work; or

...

shall be deemed to be an employer in respect of that financial year;

(b)

a person who during a financial year -

(i)

performs work for or in relation to which services are supplied to another person under a relevant contract; or

...

shall be deemed to be a worker in respect of that financial year;

(c)

amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract ... shall be deemed to be remuneration paid or payable during that financial year; and

...

(3) Where a contract is a relevant contract pursuant to both sub-sections (1)(a) and (1)(b) -

(a)

the person to whom, under the contract, the services of persons are supplied for or in relation to the performance of work shall be deemed to be an employer; and

(b)

notwithstanding sub-section (2)(a)(i) the person who under the contract supplies the services shall not be deemed to be an employer.

...

(5) Where, in respect of a payment for or in relation to the performance of work that is deemed to be remuneration under this section, a levy is paid by a person deemed under this section to be an employer -

(a)

no other person shall be liable to a levy in respect of that payment; and

(b)

where another person is liable to make a payment for or in relation to that work, that person shall not be liable to a levy in respect of that payment unless it or the payment by the first-mentioned person is made with an intention either directly or indirectly of avoiding or evading the payment of levy whether by the first-mentioned person or another person.

(6) In this section -

(a)

a reference to a contract includes a reference to an agreement, arrangement or undertaking, whether formal or informal and whether express or implied;

(b)

a reference to supply includes a reference to supply by way of sale, exchange, lease, hire or hire-purchase, and in relation to services includes a reference to the providing, granting or conferring of services;

...

(d)

a reference to services includes a reference to results (whether goods or services) of work performed."

The Commission primarily contends that the contracts between the Paterson partnership and BDC on the one hand and TSA on the other (and, for that matter, the Ditchfield and Alexander contracts) were relevant contracts falling within s.9(1)(b). The Commission also contends that the Paterson and BDC contracts fall within s.9(1)(a). The primary contention is that, in the course of TSA's business as a supplier of tradesmen, TSA has supplied to it the services of tradesmen in relation to the work which they perform at various sites at the direction of builders. Viewed from the perspective of a tradesman, in the course of his business as a supplier of his services, he supplies his services to TSA, so that his contract falls within s.9(1)(a), according to the Commission's secondary contention.

It is convenient to consider, first, TSA's argument that the operation which the Commission seeks to give to pars (a) and (b) of s.9(1) reflects an unnatural and artificial interpretation of the provisions. TSA argues that the Full Court was correct in drawing a dichotomy between the supplier of the services and the person who performs the work so that pars (a) and (b) apply, on their true construction, only to contracts relating to arrangements whereby A supplies services to B for and in relation to work performed by C. TSA submits that, if the Commission's interpretation were to prevail, a person would be both an employer and a worker by virtue of the simultaneous application of pars (a) and (b) of s.9(1) to the contract between a tradesman and TSA. To take Paterson's contract as an example. It would be a relevant contract under par.(a) on the footing that Paterson supplied services to TSA; it would also be a relevant contract under par.(b) on the footing that TSA has had supplied to it the services of Paterson. Under par.(a) Paterson would be the employer (see s.9(2)(a)(i)), yet under par.(b) TSA would be the employer (see s.9(2)(a)(ii)). Under both paragraphs Paterson would be the worker (see s.9(2)(b)(i)), notwithstanding that under par.(a) Paterson is also the employer. This result is so absurd, so the argument runs, that, in the interests of common sense and symmetry, the Commission's interpretation must be rejected. TSA also relies on the provisions of ss.9(1)(e)(iii)(B), 9(2)(b)(i) and 9(2)(c) as indicating, first, that the performance of the work to which s.9(1) refers is something different from the services which are supplied and, secondly, that the section applies to a category of relevant contracts relating to arrangements between three persons.

The notion that the supply of services and the performance of the work referred to in s.9 are necessarily distinct and separate concepts is not borne out by examination of the provisions. Likewise, the notion that the person supplying the services or the person supplying the services of persons is necessarily different from the person performing the work cannot be made out. It is a mistake to read the expression "for or in relation to the performance of work", where it appears in s.9(1) and elsewhere, as doing anything more than qualifying the content or scope of the word "services". All that the expression is saying is that "services" must be work-related; it is not stipulating that the services are wholly distinct from the work or that the supplier of the services is a person other than the performer of the work. Some indication that this is so may be gathered from s.9(6)(d) which provides that:

"a reference to services includes a reference to results (whether goods or services) of work performed".

Section 9(3) provides another answer to TSA's argument. That sub-section is specifically directed to a contract which is a relevant contract pursuant to both pars (a) and (b) of s.9(1). Sub-section (3) provides that in such a situation the person to whom, under the contract, the services of persons are supplied shall be deemed to be an employer and the person who supplies the services shall not be deemed to be an employer.

However, TSA contends that s.9(3) does not answer the dual application of the provisions of s.9(1) to the contract between Paterson and TSA as well as the contract between TSA and the builder. The Full Court held that, subject to the possible application of the exceptions in s.9(1), the latter contract was a relevant contract pursuant to s.9(1)(a) and (b), as a result of which the builder was deemed an employer and the tradesman deemed a worker: s.9(2)(b), (3). The Full Court so held on the footing that TSA is a person who, in the course of its business as a labour agency, supplies to a builder (another person) services of making someone (a tradesman) available to perform work for that builder, that is, services "for or in relation to the performance of work". On the assumption that the Full Court's conclusion on this point was correct, the Commission's interpretation could give rise to a double liability to pay the levy in that both TSA and the builder would be deemed employers liable to pay the duty in respect of the remuneration payable to the tradesmen.

Section 9(5) does not deal with this problem because it does not address a case of dual liability under s.9. Indeed, s.9(5) does not speak to liability at all; it is expressed to operate where the levy is paid. Although s.215 makes provision for contribution as between persons who are jointly liable to pay the levy, the section has no application to persons who are concurrently liable to pay the levy in respect of the same leviable remuneration. However, the argument as to double liability is founded on a misunderstanding of the structure of the Act. A levy is payable by an employer in respect of "remuneration that is paid or payable by an employer": ss.186, 187, 195, 200. By s.9(2)(c), "amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract" are deemed to be remuneration paid or payable during that financial year. If the TSA/Paterson partnership and the TSA/BDC contracts on the one hand and the TSA/builder contracts on the other are relevant contracts, the "amounts paid or payable" under contracts in the former category are distinct and different from the "amounts paid or payable" under contracts in the latter category. The Act imposes a separate levy on each payment that is made "for or in relation to the performance of work" and s.9(5) relieves only in respect of a dual liability to a levy "in respect of that payment", that is, in respect of the particular payment which attracted the particular levy.

The Commission's interpretation of s.9(1) accords with this construction of the Act. It is immaterial that, in Clancey's case, BDC is liable in respect of the remuneration it pays Clancey. If payments are made under the several contracts relating to Clancey's work by employers under relevant contracts, each employer is liable to a levy in respect of the payments which that employer makes or is liable to make. The contracts between TSA and the builder in relation to work performed by Paterson and Clancey respectively may well be relevant contracts pursuant to s.9(1)(a), but that question does not arise directly for decision. The question is whether the TSA/Paterson partnership and TSA/BDC contracts are relevant contracts.

The language of s.9(1) in its application to these contracts raises several problems for consideration. First, there is the question whether the tradesman supplies services to TSA. There is no definition of "services" except in so far as s.9(6)(d) provides that a reference to services includes a reference to "results (whether goods or services) of work performed". Once it is accepted that there was (1) an agreement between TSA and the builder for the supply of a tradesman to the builder to do certain work on terms that the builder was to remunerate TSA for supplying the tradesman and for the work which he did, and (2) an agreement between TSA and the tradesman whereby the tradesman agreed to perform work at the site at the builder's direction for remuneration to be paid by TSA, it follows as a matter of plain language that the tradesman supplies services to TSA by attending at the site and doing work there. By attending there and doing work, he supplies services to TSA for the purposes of its business, notwithstanding he also at the same time supplies the same services to the builder for the purposes of its business.

TSA argues that this analysis is flawed because it treats as the supply by the tradesman of services to TSA the performance, or part of the performance, of the work itself. However, for reasons which have been stated already, there is no necessary separation between the supply of services and the performance of the work.

TSA also points to the presence of the plural "persons" in s.9(1)(b) and corresponding provisions, in contradistinction to the singular "person" in other provisions in the section. The use of the plural may be anomalous. Be this as it may, we are unable to attach any significance to it one way or the other. We see no reason why the plural should not be read as including the singular in conformity with s.37(d) of the Interpretation of Legislation Act 1984 (Vict.).

Accordingly, subject to one qualification, in our opinion, s.9(1)(a) and (b) applies to the contracts between TSA and Paterson and BDC so as to make them "relevant contracts" with the result that TSA is liable to pay the levy in respect of the leviable remuneration arising under those contracts. The qualification relates to the operation of the various exemptions to the facts of this case. Gray J. stated that the parties needed time to investigate individual cases before final orders could be made. In particular, he observed that the operation of s.9(1)(e)(iii) with respect to Paterson was uncertain on the evidence before him. However, final orders were later made and it must be assumed that these questions were resolved to the satisfaction of the parties.

The appeal should be allowed and the orders of Gray J. restored.