Winneke P

Phillips JA
Kenny JA

Victorian Court of Appeal

Judgment date: 24 October 1997

Winneke P

The appellant is and has been for many years a well known and reputable research organization, carrying on business as a conductor of and reporter on surveys of opinion. Because its business involves surveying many citizens in their homes on weekends upon an infinite variety of topics, the appellant engages on contract a number of persons, called ``interviewers'', to carry out the survey questioning for it in accordance with questionnaires designed by the appellant. These interviewers are engaged by the appellant upon what the appellant calls an ``assignment basis'', and are expected to work about two week-ends per month. They are expected to carry out their assignments in accordance with instructions carefully prepared and given to them by the appellant and they are paid a fee for each such assignment, fixed in accordance with a determination made by the appellant based upon the time which it assesses ought to be taken for completing the assignment. Although the interviewers are told by the appellant that they are engaged as ``independent contractors'', the appellant in fact makes workers' compensation or Workcare payments on their behalf. The appellant, so the evidence revealed, attracts the interest of prospective interviewers through advertisements and word of mouth. When such interest is attracted it sends to the interviewer a ``letter of acknowledgement'' in standard form. Relevantly the letter thanks the prospective interviewer for his or her ``interest in our part-time interviewing position'' and encloses a ``questionnaire'' for ``a practice interview with a friend''. The applicant is requested to engage in the ``practice interview'' and to return the application form together with the completed questionnaire. The attached application form contains a ``declaration'' which the applicant is asked to complete in the following form:

``I... hereby understand that the I.D. card, canvas bag, (ballot box and electoral map if available) I receive is the property of the (appellant) and in the event of my resignation/dismissal, I will be expected to immediately return the above to (the appellant).''

If the appellant accepts the application it sends to the interview a letter of ``appointment'' which informs the interviewer (inter alia) that he or she is required to attend for an initial ``briefing session'' before the first assignment ``to help ensure that all our interviewers throughout Australia use the same method''. With this letter the interviewer currently receives the appellant's ``Interviewer Manual'' which he or she is asked to study `` very carefully'' (emphasis attached).

On 16 December 1987 the respondent (or, more accurately, its predecessor the Commissioner for Pay-roll Tax) assessed the appellant to pay-roll tax in respect of payments made to interviewers. The assessment was for the period from 1 July 1980 to 31 December 1986 in the amount of $91,709.40 based upon total payments of approximately $1.5 million. Additional tax in the sum of $37,587.78 was also assessed under s 18(5A) Pay-roll Tax Act 1971.

The assessments were made on the basis that the amounts paid by the appellant to the interviews were ``wages'' upon which pay-roll tax was payable by the accordance with s. 7 of Pay-roll Tax Act. The Act relevantly defines ``wages'' by s. 3 as ``wages... paid or payable... to or in relation to an employee''.

This is now the third occasion upon which the appellant has sought to challenge the validity of the respondent's assessment upon the basis that the interviewers were not employees of the appellant but rather were engaged upon contracts for service. It is instructive to briefly recite the history of the litigation.

Upon receipt of the assessment the appellant gave notice of objection to the respondent in February 1988. The respondent disallowed the objection on 16 April 1992 and at the appellant's request on 23 April the matter was referred to the Administrative Appeals Tribunal to review the respondent's decision pursuant to s. 33B(1) of the said Act. On 23 January 1996 the Tribunal affirmed the respondent's assessment in respect of primary tax payable and ordered that the appellant should pay the respondent's costs. It was the tribunal's decision that the interviewers were, relevantly, employees of the appellant.

By notice of 20 February 1996 the appellant appealed, pursuant to the provisions of s. 33B(4) of the Act to a single judge of the Supreme Court on what it contended were two ``questions of law'' which it stated in the following terms:

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``(a) Did the Tribunal err in concluding on the facts found by it, and the evidence, that the persons referred to... as interviewers were employees of the appellant as that term is understood at common law.

(b)... was the appellant denied procedural fairness or natural justice by virtue of the fact that the Tribunal refused the appellant's request for an adjournment and in effect gave the appellant no practical alternative but to proceed with the application without giving the appellant or (its) legal advisers a reasonable opportunity of preparing and pursuing the application.''

This second question was not pursued and is no longer of significance.

The appellant's appeal from the Tribunal's decision came before Byrne, J. in July 1996. In accordance with reasons delivered on 13 August 1996, his Honour dismissed the appeal and confirmed the respondent's assessment. It is against his Honour's orders that the appellant appeals to this Court.

It was accepted by both parties before Byrne, J. that once it was clear that a question of law was involved in the Tribunal's decision, then his task, as required by s. 33B (4) of the Pay- roll Tax Act, was to re-hear the matter which was before the Tribunal (cf.
FC of T v. Miller (1946) 8 ATD 146; (1946) 73 C.L.R. 93). His Honour was satisfied that there was such a question of law which he identified as follows:

``Were the payments made by (the appellant) to interviewers during the period 1 July 1980 to 31 December 1986 wages paid by an employer within the meaning of s. 6 of the Pay-roll Tax Act 1971?''

The learned judge, with the consent of the parties, proceeded to determine that question on the material which was before the Tribunal together with some additional evidence put before him on the part of the appellant. His Honour recognized, correctly, that his task of ascertaining the status of the interviewers involved an investigation and evaluation of the factual circumstances in which the work was performed and the application of established principles to those findings.

There was a substantial amount of evidence both written and oral, put before his Honour. That material, however, was at least in some respects, lacking in specificity. It was accepted that no formal written agreements were entered into between the appellant and its interviewers. Evidence of a general kind was put before him as to the manner in which the appellant engaged the interviewers. Such evidence was contained (in part) in the affidavit and oral evidence of Ms. Levine who was the appellant's Chief Executive Officer and affidavit and oral evidence from Ms. Vera Wroe who was the appellant's National Interviewer Quality Manager. These witnesses put before his Honour the document called the ``Interviewer's Manual'' which, although not in use at the relevant time, was accepted as containing all the instructions to interviewers given between 1980 and 1986. Additionally his Honour had before him the evidence of Ms. Nadaraja, the National Field Manager of the appellant as well as the full transcript of proceedings before the Administrative Appeals Tribunal.

On the basis of the material before him his Honour made a number of significant findings of fact:

  • • the appellant attracted its ``interviewers'' by advertisement or word of mouth;
  • • applicants were required to conduct a ``practice interview'' and to complete a formal application and declaration;
  • • prospective ``interviewers'' attended an initial briefing session where the appellant's procedures for interview were explained. At this session the prospective interviewers were told that, if retained, they would be classed as independent contractors and the appellant would not be ``deducting tax on their behalf''. At the meeting the interviewers had their ``task spelled out in considerable detail''. They were told that the success of the research programme depended upon their reliability and the care with which they followed the detailed procedures given to them;
  • • the appellant paid its interviewers only on a ``fee for completed assignment basis'' the amount and structure of the fee being determined by the appellant in the manner to which I have earlier referred. No tax would be deducted from that fee and interviewers were told that they were to make their own tax arrangements. Interviewers were told that they took the risk that if the task was not completed, no fee was payable;

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  • • the appellant did, however, make necessary workers' compensation or Workcare arrangements for the interviewers;
  • • the appellant spelled out in considerable detail the circumstances in which the interviewers were to conduct interviews; including the questions to be asked, the way in which the questions should be asked, the manner of recording the answers, and the fact that such interviews were to be carried out during weekends in areas selected by the appellant;
  • • the appellant provided the interviewers with the materials necessary to carry out their task. Allowances were paid for pens and stationery and travel, if necessary. Although no uniform was provided, the interviewers were to dress neatly and to identify themselves as part of the appellant's team;
  • • interviewers became part of a pool maintained by the appellant. They were entitled to accept or decline assignments at their discretion but, once accepting an assignment, were not entitled to delegate it, but to perform their task personally;
  • • the appellant could summarily terminate an interviewer's assignment task for breach of protocol; otherwise poor performance would have the consequence that his or her name would be ``removed from the pool'' or he or she would merely be offered no more work;
  • • although there was no physical supervision of an interviewer in the course of assignment, the appellant carried out spot audits of the work done to check both the legitimacy of the work and in certain respects the manner of performance. It was emphasized to interviewers that they were members of an Australia-wide network contributing to an important market research activity carried out by a ``prestigious organization'';
  • • the appellant provided assistance and support to interviewers in carrying out their task. If required, advice and assistance was on hand if difficulty was encountered.

On the basis of these facts as found, his Honour concluded that the nature of the interviewer's task was a ``highly structured'' one and one which subjected the interviewer to close direction by the appellant. The appellant reserved to itself the power to direct the interviewer in the performance of his or her task and such was the structured nature of the interviewer's obligation that his Honour saw it as ``inconceivable'' that ad hoc directions modifying the task could be resisted.

Ultimately his Honour concluded that the interviewers were engaged in contracts of service with the appellant and, as such, were employees and not independent contractors. In so concluding his Honour applied principles which are well known and have been expounded in a number of cases over the years in which the question has arisen as to whether a person has been engaged on contract as an employee or independent contractor (cf.
Stevens v Brodribb Sawmilling Co. Pty. Ltd (1986) Aust Torts Reports ¶80-000; (1986) 160 C.L.R. 16;
Narich Pty. Ltd. v. Commr of Pay-roll Tax (NSW) 84 ATC 4035; (1983) 50 A.L.R. 417. His Honour recognized that these authorities did not establish any conclusive test for determining whether a person was an employee or independent contractor. Nonetheless the ability of one party to exercise control over the other party not only as to what the latter should do in the course of his or her engagement but the manner in which it should be done was a significant criterion pointing towards a contract of service as distinct from a contract for services. However, as his Honour pointed out, regard had to be paid to the whole of the relationship including, inter alia, the mode of remuneration, the provision of equipment, the right to delegate, the right to choose the hours of working, the method of training and/or giving instructions, the understanding of the parties of the relationship between them and many other factors (cf. Brodribb's case, supra, at Aust Torts Reports 67,446; CLR 24 per Mason, J. and at Aust Torts Reports p 67,452; CLR p. 35 per Wilson and Dawson, JJ.). His Honour also took account of the decision of Cooke, J. in
Market Investigations Ltd. v. Minister of Social Security [1969] 2 Q.B. 173 in which the Court found that, in circumstances closely approximating those of the present case, interviewers were employees and not independent contractors. He also took account of the decision of the Australian Industrial Relations Commission in
National Union of Workers v. Elder Research (No. 30272/1994; 27 February 1995, unreported) in which the Commission had found that the interviewers engaged by this

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appellant were employees and not independent contractors.

A question arises, at the outset, as to the proper function of an appellate court in an appeal from a decision of the type which his Honour has made in this case. Mr. Berglund, who appeared for the respondent, submitted that the categorization of the relationship existing between the appellant and its interviewers was a question of fact for the trial judge, and, as such, was a conclusion with which the Court of Appeal should not interfere unless it was unsupported by evidence or was one which could not reasonably have been reached by his Honour if properly directing himself on the law. He referred the Court to the decision of
Lee Ting Sang v. Chung Chi-Keung [1990] 2 A.C. 374 where Lord Griffiths, delivering the Judgment of the Privy Council said at p. 384:

``Whether or not a person is employed under a contract of service is often said in the authorities to be a mixed question of fact and law. Exceptionally, if the relationship is dependent solely upon the true construction of a written document it is regarded as a question of Law: see
Davies v. Presbyterian Church of Wales [1986] 1 W.L.R. 323. But where, as in the present case, the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, it must now be taken to have been firmly established that the question of whether or not the work was performed in the capacity of an employee or as an independent contractor is to be regarded by an appellate court as a question of fact to be determined by the trial court.''

It would appear that the ``firmly established principle'' referred to by his Lordship had developed in England because of the difficulty of devising a conclusive test to resolve the question and to overcome the threat that appellate courts might be crushed by the weight of appeals which would otherwise be brought in borderline cases.

Where, as here, the terms of engagement are not to be found in a written contract but are to be derived from a contract which is partly oral and partly to be implied, the legal character of the relationship created will depend upon the total effect of the terms as they are found to be. The exercise is not, as Tadgell, J.A. observed in
Green v. Victorian Workcover Authority [1997] 1 V.R. 364 at 375 ``a mechanical one''. Rather it is a matter of obtaining the overall picture from the accumulation of detail. Tadgell, J.A. described the exercise by citing, with approval, a passage from the judgment of Mummery, J. in the case of
Hall (Inspector of Taxes) v. Lorimer [1992] 1 W.L.R. 939 at 944 where his Lordship said of a determination whether a person was a servant or independent contractor:

``This is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another.''

These views appear to me to be correct. Although technically it remains true that the question whether a person is engaged on a contract of service or for services is one of mixed law and fact, in reality the task of the trial judge in determining that question, in a case like the present one, involves the assessment and evaluation of evidence for the purpose of identifying and isolating factors or indicia which are capable of pointing in one direction or the other, and then weighing or balancing those factors in accordance with established principles, none of which is conclusive, in order to reach a conclusion. The task was aptly described by Gray, J. in
Commr of Pay-roll Tax (Vic) v. Mary Kay Cosmetics Pty. Ltd. 82 ATC 4444 at 4451; [1982] V.R. 871 at 878 in the following terms:

``As with most cases in this area of the law, there is a good deal which can be said on each side of the argument. A court is usually faced with a large collection of relevant facts and circumstances, some pointing this way and some the other. The resolution of the problem usually comes down to a very subjective matter of individual impression. It all depends on where the emphasis is laid.''

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So expressed, the resolution of the question becomes one of ``fact and degree'' in respect of which views might legitimately differ. (
O'Kelly v. Trusthouse Forte P.L.C. [1984] Q.B. 90, per Sir John Donaldson, M.R. at 124; Fox, L.J. at 119, 121.) Where views might legitimately differ, it must necessarily be more difficult for an appellant who cannot identify specific error to establish that there was any error below; for the fact that an appellate court might have reached a different decision, had it been sitting at first instance, does not of itself and without more, demonstrate error. It is too late in the day now to say that error need not be shown and that this Court should move immediately to a consideration of the facts with a view to expressing its own opinion - a conclusion which can only be the more plain when it is remembered that in the case of this Court, neither the Supreme Court Act 1986 nor the Rules expressly state that the appeal is to be by way of ``re-hearing'' (cf.
Freeman v. Rabinov [1981] V.R. 539 at 547-548).

On the basis of the foregoing I think that this appeal could be dismissed on the basis that no error has been shown by the appellant in the decision below. But even if this Court were to take the wider view of its powers, namely that it should act upon its own view of the facts without first identifying error below, the result would be the same; for in this case I am firmly of the view that, on the evidence before him, the learned judge was right in his conclusion. I deal first with the case of error.

Ms. Cirkovic who, with Mr. Muir, argued the case on behalf of the appellant with, if I might say so, commendable thoroughness accepted that the trial Judge was entitled to find the facts as he did. Her primary submission was that the learned judge had led himself into error by failing to properly apply established principles to the facts found. In particular she contended that his application of the ``control test'' was erroneous because of his failure to adequately distinguish the nature of the ``task'' given by the appellant to its interviewers from the manner in which that task was required to be performed. Additionally, she contended that the learned judge had given too much weight to some of the facts which he had found and too little weight to others.

For my own part, I cannot accept that the learned judge fell into error in any of the respects for which the appellant contends. His Honour did not, as I read his reasons, fail to understand the ``task'' given to the interviewers or the manner of its performance. It was submitted that his Honour's finding that the ``highly structured nature of the interviewer's task and the directive tone of the manual'' which led him to the view that ``the interviewer in every respect was subject to the direction of (the appellant)'' was indicative of a misconstruction of the degree of control being exercised by the appellant over its interviewers. It was said that the instructions given by the appellant did not seek to exclude the discretion of the interviewers to control the ``manner'' of the task assigned to them in the sense that they were at liberty to organize their own time in which they conducted the interviews and the methods used to persuade respondents to answer the questions. It was contended that this discretion was the essence of the business being conducted by the interviewers on their own account.

I am far from persuaded that this argument has any substance. There is no doubt that the instructions given to the interviewers, as discerned from the manual, were imperative both as to the questions to be asked and the manner in which they were to conduct the interview. It was in the nature of the appellant's business that the answers which it obtained from the respondents should be obtained in a manner which, so far as possible, ensured their accuracy and reliability. To that extent the instructions given to the interviewers insisted that there be no deviation from the questions set, that emphasis be given where designated and that questions be asked in strict accordance with the formula provided. Thus the interviewers were instructed that the interviews must be ``conducted properly so that our clients receive true and accurate information''. This was said to be essential because ``important decisions, and often very expensive ones, will be based on the information which you collect. Thus faulty interviewing can eventually result in tragic consequences for our Company and hurt our reputation as well.'' For this purpose, interviewers were instructed that it was `` very important that you ask questions clearly and exactly as worded, stressing words underlined and bolded (sic)'' (their emphasis). Interviewers were told that they should study the interview before they embarked upon it and ``practice (it) at home''. Interviewers were instructed to start

ATC 5076

at the exact starting point given to them and then proceed ``clockwise''. They were told that interviewing should only be conducted at week- ends and that the ``best time to begin is 9.30 a.m. on Saturdays, otherwise you will not find enough young people at home''. They were told to make ``2nd and 3rd calls where respondents were `out' earlier in the day'' because ``that will help to minimize the number of dwellings you visit, and increase our accuracy''. Many other ``do's'' and ``don'ts'' are included in the instructions. These would seem to me to go as much to the manner of performance of the task as to its nature. Thus the interviewer was instructed as to ``techniques'' to be adopted in conducting an interview. The interviewer was, accordingly, told to be ``neat and well- groomed'', to be ``pleasant and self assured'', ``to ask the first question promptly'', ``to be neutral and accepting, even if you dislike the respondent'', not ``to take sides'', ``not to offer your own opinion about the survey'', not to ``ever aid, prompt or comment'', and how to ``introduce yourself''. These were just some of the many instructions given in respect of manner of performance which no doubt contributed to his Honour's finding that the interviewers' task was ``a highly structured'' one.

I am, thus, unable to accept the contentions made on behalf of the appellant that his Honour failed to distinguish between ``direction and control of the task'' assigned to the interviewer on the one hand and ``direction and control over the manner of its performance'' on the other, or that the instructions as to manner of performance were for guidance purposes only. In my view his Honour's reasons cannot be so criticized. On the material before him he was entitled to find that the appellant reserved to itself the right to control not only the performance of the task assigned but also the manner of its performance. It is apparent that his Honour was well aware of the distinction which it is now being suggested that he failed to perceive. He commented that the Commissioner's argument that detailed instructions were given in respect of the manner of performance might be said to lose ``much of its force'' when it is viewed in the light of the task allotted, because ``it is of the nature of market research that interviews should be conducted, so far as possible, without variation between interviewers or between surveys'' and that, accordingly, it was ``inevitable that a degree of control should be maintained, whether the task was being carried out by an employee or independent contractor''. However, as his Honour further noted, there was a paradoxical quality in the contention that the more the nature of the task itself required such control, the more it became apparent that such residue of discretion as was left to the person carrying out that task demonstrated that such person was carrying out the task free from direction and control. Such a contention was rejected by the Privy Council in the ``Weight- watcher's case'' (
Narich Pty. Ltd. v. Commr of Pay-roll Tax (NSW) 84 ATC 4035 at 4042; (1983) 2 N.S.W.L.R. 597 at 606).

In my view it was well open to his Honour, on the material before him, to find that the degree of control being reserved by the appellant to direct both the nature of the task and the manner of its performance pointed towards the relationship of employer/employee. That material, as I see it, does not permit any significant distinction to be drawn between the control exercised in respect of the nature of the task and the control exercised over the manner of performance of that task.

It was next submitted by the appellant that his Honour misdirected himself by finding that the absence of ``on the spot'' supervision by the appellant in the performance of the task by the interviewer is ``of less significance when it is recognized that it would be difficult, if not impossible to accompany the interviewers on their visits and that this might have the consequence of introducing into the survey an unacceptable variable with the possibility of affecting the reliability of the result''.

It was contended that this conclusion did not find support in the evidence and had contributed to his Honour's impugned finding that the appellant exercised control over the manner in which the interviewer performed the task assigned to him or her. Neither of these submissions, in my view, is of substance. It was open to his Honour to infer that the nature of the task did preclude, as a matter of reality the ``one on one'' supervision being suggested. Furthermore, as Mr. Berglund has pointed out, supervision is only one aspect of control; and the evidence before his Honour demonstrated that the appellant chose to exercise its control in other ways. In the first place it had so tightly drawn its instructions as to the manner of

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performing the survey as to eliminate the need for ``on the spot'' supervision. Thus, Ms. Levine said that the appellant exercised a ``tight control'' over how the surveys are carried out and sought to ensure that control by making it ``very clear exactly what is required and... (documenting) it so well that it is performed''. Furthermore the interviewers were told that they were not to delegate their task to other people. The appellant also engaged in audits of the interviewer's work. Checks were carried out to ensure legitimacy of the surveys returned and, by an analysis of the completed questionnaires, to determine that the interviewers were not making mistakes. As Ms. Levine said, ``if the interviewer is not doing a proper job he or she is usually contacted and asked to improve or is simply not used for further assignments''. Such monitoring of the interviewer's performance was done through the appellant's ``coding department''. According to Ms. Nadaraja that department was able to inform the appellant about the capacity of any particular interviewer to do the job in the manner required. Furthermore the appellant provided senior ``contact'' personnel who were available to give any advice or assistance to interviewers whilst they were carrying out surveys. The learned judge was, of course, entitled, and indeed bound, to have regard to the whole of this material in concluding that the appellant exercised a ``tight control'' over the interviewers and such control pointed towards a contract of service rather than a contract for services.

It was then contended on behalf of the appellant that the learned judge had given insufficient weight to some factors and too much weight to others. Thus it was submitted:

  • (i) that his Honour had not paid sufficient regard to the fact that interviewers were told that they were ``independent contractors'';
  • (ii) that he had given too little weight to the fact that interviewers were remunerated on a ``success basis'' and took the risk of failure;
  • (iii) that he had given too much weight to the fact that the appellant covered the interviewers for workers' compensation payments;
  • (iv) that he had given too little weight to the fact that the interviewers could make their own arrangements as to the times at which they would conduct the interviews or that they could refuse to carry out assignments.

It is sufficient to say that, in my opinion, none of these submissions is substantial. It is not suggested that his Honour disregarded any of these matters; rather that he gave too much or too little emphasis to them. However it was, as I have already said, his Honour's task, in the face of conflicting indicia, to look at the overall picture painted by the evidence. In the course of doing so it is inevitable that he would give more emphasis to some factors and less to others. But this is an exercise of evaluation which to a large extent will be driven by his Honour's assessment of the material put before him. Unless it is clear on the face of that material that he has demonstrably over-valued or under- valued any particular factor and that such mis- assessment has driven him to a wrong conclusion, this Court will not, for the reasons I have indicated, interfere.

In respect of the various matters raised by Ms. Cirkovic on behalf of the appellant, I can find no such demonstrable over-valuing or under-valuing. Although it is true that a clear statement in a contract between the parties that the person engaged is to be regarded as an independent contractor is a matter which might, in some circumstances, be regarded as important in defining their relationship, it is also true that if the evidence otherwise shows that the relationship is one of master and servant, the parties cannot alter the truth of that relationship by putting another label on it (
Massey v. Crown Life Insurance Co [1978] 1 W.L.R. 676; Narich Pty. Ltd. v. Commr of Pay- roll Tax, supra, at ATC 4039; NSWLR 601). His Honour clearly understood the significance of the matter but said, correctly in my view, that ``it is a matter which must yield in its significance to the nature of the whole relationship between (the appellant) and its interviewers''. His Honour further observed, with justification in my view, that the expression to the effect that the interviewers were contractors ``appears to have been used in the context of the non-deduction of income tax instalments and in terms which are not altogether clear in any given case''.

Similarly his Honour recognized that the interviewers were paid on results and that, to that extent, they were assuming the risk in the event of failing to complete the assignment allotted. He acknowledged that this was a factor pointing away from the relationship of employer/employee but was not satisfied on the

ATC 5078

whole of the evidence that it was conclusive. In my view he was entitled to so find.

Nor has it been demonstrated that the learned judge gave too much weight to the fact that the appellant paid workers, compensation premiums on behalf of the interviewers. This was balanced by his observation that the appellant did not pay holiday pay or long service leave benefits which his Honour regarded as a ``material consideration suggesting the non-existence of an employer/ employee relationship''.

It was suggested by Ms. Cirkovic that his Honour had been overborne by the fact that, in the case of Market Investigations Ltd. v. Minister of National Security, supra, Cooke, J. had concluded that persons carrying out work similar to these interviewers were employees. But, once again, such criticism is not warranted. His Honour recognized that it ``was by no means clear'' to him that the evidence in that case was comparable to the evidence before him. All he did was to acknowledge his gratitude for the statements of principle enunciated in the decision and to indicate that he was ``to some extent, comforted'' by the fact that in that case and in the Elders Research Case (supra) the Court and the Commission, respectively, had come to the same conclusion on the facts before them as that to which he had come on the facts before him.

For the foregoing reasons I am unable to discern any error in either the approach taken by the trial judge or his Honour's conclusion. However, as I have already said, if the function of this Court is to form its own view on the material which was before the learned judge, I would come to no different conclusion from the one to which his Honour came.

The appellant has, over many years, established for itself a reputation for providing accurate opinions from the surveys which it conducts. It is thus inherent in the nature of its business, and indeed critical for the maintenance of its reputation, that the surveys which it conducts, are carried out strictly in conformity with its instructions. It is no doubt for this reason that it maintains, as the evidence indicates, a strict control and direction over the task which its interviewers are to perform and the manner in which that task is to be performed. Accordingly the instruction given to interviewers, to which I have already made sufficient reference, leave very little to the discretion of the interviewers. Indeed so little is left to the discretion of the interviewer that the appellant was constrained to argue that the ``independent business'' being conducted by the interviewers was the business of organizing their affairs so that the interview could be conducted at a time to suit their own convenience and employing their own skill so as to induce the respondents to participate in the interview.

In my opinion, on no sensible view of the evidence could it be said that the interviewers were conducting such a business on their own account, as distinct from participating in the business of the appellant. In truth they were engaged by the appellant to conduct interviews on behalf of the appellant in a manner and form strictly controlled by the instructions given to them by the appellant. Accordingly they were told to represent themselves to respondents as engaged in a ``Morgan'' research programme to give credibility to their task. If the function was not performed in accordance with the instructions given the sanction was that no further assignment would be made available. Close conformity with instructions was essential to the appellant in order that it could comply with its own obligation to its customers to provide accurate survey results.

In these circumstances interviewers were engaged in the service of the appellant as distinct from being independent contractors. Although it is true, as I have said, that no single test is decisive of the relationship between the engagor and the engagee, in a case like the present the degree of control exercised by the appellant over its interviewers, both as to the nature and manner of their task, is a very significant criterion pointing towards the relationship of employer/employee (cf. Narich's Case, supra, at ATC 4039; NSWLR 601; Market Investigations v. Minister of Security, supra, at 186). The fact that the interviewers had a discretion as to whether they would accept an assignment, and a limited discretion as to when such assignment would be carried out does not detract from the view which I have formed that the degree of control exercised by the appellant was so extensive that it strongly points to the conclusion that they were, in truth, engaged in the business of the appellant. The circumstances that the appellant provided for the interviewers such equipment as they needed, that the appellant paid expenses,

ATC 5079

that the interviewers were not permitted to delegate the task assigned and that the interviewers had no responsibility for capital investment or management and had limited financial risk, only confirm my conclusion that the interviewers were engaged in the business of the appellant and were not engaged in business on their own account.

I would dismiss the appeal.

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