Employer argues he was independent contractor
The federal court recently dealt with the case of a worker who wasn’t paid properly under his award or any relevant entitlements because his employer didn’t consider him as its employee.
The worker, Xijie Yang, was employed as a bus driver from June 2015 to October 2017. He transported Chinese tour groups to various locations in and around Sydney and New South Wales for the employer, China Australia Travel Group Pty Ltd (CAT). Yang said that during this period, he was an employee of CAT.
He alleged significant underpayment by CAT, claiming that his employee entitlements should have been covered by the Passenger Vehicle Transportation Award 2010.
He claimed an underpayment of $125,560.23 by CAT, covering various aspects such as the hourly rate of casual work, overtime rates, penalty rates for weekend and public holiday work, reimbursement for expenses, and superannuation.
CAT, on the other hand, denied making any payments in accordance with the Award. The company also never contributed to Yang's superannuation and did not provide him with payslips.
The company said that Yang was not an employee but an independent contractor, hence justifying its non-compliance with the Award.
Was he an independent contractor?
In support of their argument that Yang operated as an independent contractor rather than an employee, the employer heavily leaned on text messages and bank statements. Examples of such evidence include:
- A WeChat message exchange between management and Yang, where the former requested Yang's ABN for reimbursement purposes. Yang inquired if the ABN was needed for reimbursement, to which the management affirmed. Yang then sent a screenshot of his ABN, though the details were indecipherable.
- Various text messages between another driver (who worked for other travel companies and Yang from late 2015 to early 2017. These messages covered topics such as work schedules, tour details, pick-up information, and payment discussions.
- Additional WeChat messages between management and Yang, dated from July 2015 to January 2017 which involved discussions on bank details, payment inquiries, itinerary checks, and tour group arrangements.
- A conversation where Yang outlined his fees for temporary assignments and his rates.
The ‘totality of relationship’ between parties
“It is necessary to look at the totality of the parties’ relationship and conduct to determine the nature and terms of the contract the parties entered into, but only in so far as it concerns the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship had come to play out in practice,” the court said in its decision.
In determining whether someone is an employee or not, the court listed the following considerations:
- The degree of control that the putative employer can exercise over the putative employee, and in this regard, the importance of control lies not so much in its actual exercise, as in the right of the employer to exercise it.
- The mode of remuneration;
- The provision and maintenance of equipment;
- The obligation to work;
- The hours of work and the provision for holidays;
- The deduction of income tax; and
- The delegation work by the putative employee.
Was he an employee or not?
The court found that CAT “maintained a large degree of control over Yang during the period he worked for them.”
“CAT provided vehicles for Yang to drive, and he never drove his own vehicle. The management arranged for the repairs to the buses and directed Yang to which repair shop to go, and [the employer] managed the upkeep and condition of the buses. Yang did not have the vehicle or shopfront to operate his own travel company.”
“Yang generally did not work for anyone else between June 2015 and October 2017 except at the direction of [the management], who occasionally instructed him to do work for other companies with whom CAT had business relationships,” the court added.
It said that “CAT set the rates of renumeration. Furthermore, CAT decided what shifts Yang was to work and sent him an itinerary for each shift. While he did at times indicate that he was not available to work, when he did work, he did what CAT told him to do.”
Moreover, it said, “Yang asked for time off rather than being responsible for performing the services and finding a replacement for himself. CAT provided directions to Yang with no suggestion that he had any choice as to whether to obey them or not.”
“Yang was contacted by an officer of CAT regarding any changes in shifts or issues with itineraries, and his evidence is that he rarely had communication with the travel companies,” it added.
Thus, it ruled that Yang was an employee and consequently, he’s entitled to expenses and reimbursements. The court then ordered the employer to pay him compensation.
