Dick, Alan v James Voros - [2013] FWC 6715

1

Fair Work Act 2009 
s.394—Unfair dismissal

Alan Dick
v
James Voros
(U2013/5511)

COMMISSIONER RYAN MELBOURNE, 13 SEPTEMBER 2013

Termination of employment - not an employee - bailor/bailee - extension of time.

[1] The Respondent in this matter raises two jurisdictional challenges to the application. 
Firstly, that the Applicant is not an employee, and secondly, even if the Applicant is an 
employee the application has been filed out of time and there are no exceptional 
circumstances which would warrant the Commission granting an extension of time.

[2] As this matter deals solely with two jurisdictional challenges I have had regard to the 
decision of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ when 
they decided the standard of proof of jurisdictional facts on a challenge to jurisdiction in Ship 
"Shin Kobe Maru" v Empire Shipping Company Inc as follows:

“46. Where jurisdiction depends on particular facts or a particular state of affairs, a 
challenge to jurisdiction can only be resisted by establishing the facts on which it 
depends. And, of course, they must be established on the balance of probabilities in the 
light of all the evidence advanced in the proceedings held to determine whether there is 
jurisdiction.”1

The Relationship Issue

[3] The Applicant was a taxi driver who drove a taxi owned by the Respondent. The 
Respondent contends that the relationship existing between the Applicant and the Respondent 
is one of bailor/bailee and not that of employer/employee. The Applicant contends that he was 
an employee of the Respondent.

The Facts of the Relationship

[4] The Applicant who has been driving taxis since 1966 commenced driving for the 
Respondent in 1996. The Applicant had previously been driving for Mr O’Callaghan who was 
the owner of a set of taxi plates. In 1996 Mr O’Callaghan leased out his plates to the 

[2013] FWC 6715 [Note: a correction has been issued to this document]  
Note: An appeal pursuant to s.604 (C2013/6269) was lodged against this 
decision - refer to Full Bench decision dated 4 December 2013 for result 
of appeal.

DECISION


E AUSTRALIA FairWork Commission




 

http://www.fwc.gov.au/decisionssigned/html/2013FWCFB9339.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwc6715_pr542284.htm


[2013] FWC 6715

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Respondent and at the same time the Respondent entered into arrangements with each of Mr 
Callaghan and the Applicant that they would be the drivers of the taxi.

[5] The arrangements made between the Applicant and the Respondent, so that the 
Applicant drove the Respondent’s taxi, were all verbal. There was no written arrangement 
between the Applicant and the Respondent.

[6] When the arrangement commenced in 1996 the Respondent’s taxi was driven by the 
Applicant during the daytime and by Mr O’Callaghan during the night time.

[7] The Applicant and the Respondent shared the takings from the taxi. The Respondent’s 
evidence was that the takings were shared on the basis of 50% to the Respondent and 50% to 
the Applicant. The Applicant’s evidence was that the Respondent’s share was 52% of total 
takings with the Applicant receiving 48%. The Respondent introduced into evidence the trip 
sheets filled out by the Applicant each day he drove the taxi2 which clearly show that the 
sharing of takings was 52% to the Respondent and 48% to the Applicant.

[8] The trip sheets recorded a range of data relating to the use of the taxi, including start 
and finish times, distances travelled, fares taken, amount spent on fuel, condition of the taxi 
and the driver’s details which included his ABN.

[9] Whilst the Applicant would actually pay for the fuel, either out of cash takings 
received on that day or out of his own money, he would claim the amount back from the 
Respondent.

[10] The Respondent maintained the taxi and kept it registered and in running order,
maintained the insurance on the taxi and bore the costs of repairing the taxi if the Applicant 
damaged it.

[11] When the arrangement commenced in 1996 the Applicant was not registered as a 
business. The Applicant gave evidence that when ABN’s were introduced (1 July 2000) the 
Respondent requested that the Applicant supply the Respondent with an ABN. The Applicant
complied with this request.

[12] The Respondent did not provide the Applicant with any form of paid leave.

[13] The Respondent did not deduct any tax from the Applicant’s earnings, nor pay any tax 
on the Applicant’s behalf.

[14] The Respondent did not make any superannuation payments on behalf of the 
Applicant.

[15] At the commencement of the arrangement the Respondent would put aside $5 per 
week and pay $250 to the Applicant at the end of the year. The Applicant referred to this 
arrangement as a rebate of rental.3 This arrangement ended, apparently at the initiative of the 
Respondent, in or about 2008.4

[16] The relationship between the Respondent and the Applicant ended on 5 December 
2012 when the Respondent advised the Applicant that the relationship was terminated.








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[17] However, there is another relationship which is relevant to these proceedings. The 
Applicant had since 2002 been the tenant in a house owned by Mrs Voros. In 2012 a dispute 
arose between the Applicant and Mrs Voros over claims made by the Applicant in relation to 
the condition of the house and over claims made by Mrs Voros in relation to unpaid rent. The 
Applicant engaged a solicitor to represent him in relation to this matter and Mrs Voros was 
also represented by a solicitor. 

[18] On 29 November 2012 the Applicant was given notice to quit the house he and his 
family were living in. Mrs Voros, through her solicitors, subsequently made an application to 
VCAT on 19 December 2012 to have the Applicant and his family removed from the house.

The Respondent’s Case

[19] The Respondent contended in written submissions filed in this matter that:

 The cab was hired to the Applicant, and like a car rental, the authorised operator was 
the Applicant. This is a hire of a licenced taxi vehicle.

 The percentage of takings was the agreed rental payment.

 The Respondent’s payment of damages to a vehicle is also not indicia of employment.

 The Applicant suffered the commercial risk and had full control over how he wanted 
to operate the taxi. The Applicant was provided the hire of the taxi and he could use it 
as he saw fit, operate where he wanted to and for such hours as he saw fit.

 The Applicant was entitled to drive the cab where he wanted, to pick up such 
passengers as he chose, to obtain work from customers via the mobile phone. His 
efforts dictated his business returns. He was not on a fixed wage and unlike an 
employment arrangement, if he did not work, or did not get any customers he received 
nil for his efforts. His income depended on his receiving fees. 

 The Applicant provided his ABN for goods and services taxation. The Applicant had 
an Australian Business Number and was registered for Goods and Services Tax and 
had provided those details to the Respondent. There was no point in doing that if he 
was an employee. The provision of taxation invoices is a strong indication that the 
arrangement was that of a sub contractor.

 He provided his own uniform/ clothes which no doubt were required by the taxi 
company.

 He was the principal of the business and any goodwill was the Applicant’s as he 
received what work he was able to through his mobile phone.

 It is not suggested by the Applicant that there was any control of his activities. In this 
case there is no such control. The Applicant’s emolument depended on his actions. He 
was not subject to control by Mr Voros, he hired the taxi, used it as and when he saw 
fit, was not directed how, when or where to get fares.








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 He not once sought, nor obtained, any sick pay nor holiday pay.

 He did not have weekly PAYE taxation deducted, nor was he paid superannuation or 
holiday pay.

 The relationship is one of bailment, the Applicant is not an employee nor did he 
receive payment under a contract of labour.

 It is therefore submitted that the Applicant was not an employee and the Application is 
not within the jurisdiction of the Tribunal.

[20] The Respondent gave evidence on his own behalf in support of the above contentions.

The Applicant’s Case

[21] The Applicant contended that when the relationship between the Applicant and the 
Respondent was viewed as a practical matter the conclusion was that he was an employee of 
the Respondent. The Applicant contended that there were several factors which supported this 
conclusion whilst also acknowledging factors which were either neutral or which may point 
more strongly towards an independent contractual relationship.

[22] In support of the contention that the Applicant was an employee, the Applicant 
contended that:

 He had no ability to sub-contract or delegate work.

 He was paid by sharing the income of the taxi with the owner.

 The Respondent owned the vehicle, tools and other assets and provided repairs to 
the vehicle and maintained the insurance and registration of the vehicle.

 All commercial risk was taken by the Respondent and the Applicant merely drove 
the vehicle and gave the Respondent, the share of profits as agreed.

 The Respondent had full control over the work and who could drive the vehicle.

 The Applicant was provided with Respondent created tax invoices for six ( 6) 
years.

 At no stage have there been any quotes, invoices, tools equipment or risk provided
by the Applicant for the business.

[23] The Applicant further contended that during this 16 year period:

 He had worked exclusively for the Respondent. No other work was taken by him 
during the period;

 He had always worked the ‘day shift’. This shift started at 5 am and finished at 
approximately 4 pm;








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 He usually worked 6 days a week, and at times 7 days a week. From June 2010, the 
Applicant worked 7 days a week.

 That as a practical matter he was working for the business of the Respondent and 
the relationship was characterised by the sale of his labour to the Respondent.

 He also understood that his WorkCover premiums were paid by the Respondent on 
his behalf.

 He did not generate goodwill as an independent business but rather as a part of the 
Respondent’s business.

 He did not provide his own tools or equipment, relying instead exclusively on the 
vehicle of the Respondent.

[24] The Applicant contended that the following factors were neutral:

 The 48/52 split of fares.

 The form of the payment of fares and the arrangements for reconciling the split of 
the fares between the Respondent and himself.

 The taxi-cab remained at the Applicant’s house for the most part of the time he 
worked for the Respondent.

 He supplied his own uniform.

 The Respondent did not pay contributions to superannuation on his behalf nor did 
the Respondent deduct tax from his remuneration.

 The Respondent did not pay for sick leave or annual leave. 

 He did not take much time off work, however, if and when he took days off, the 
Respondent would arrange for the car to be picked up by another person or driver.

[25] The Applicant agrees with the Respondent that there was no written bailment 
agreement between the parties. The agreement was, from the start, verbal. Notwithstanding, 
the fact of an oral agreement, or otherwise, is not determinative of any particular relationship. 
It is the substance of the relationship which is important.

[26] The Applicant states that shortly after dismissing him the Respondent provided him 
with copies of ‘tax invoices’ back dated for a period of 6 years from January 2007 to 
September 2012 and setting out the remuneration of the Applicant as taxi-driver over this 
period.

[25] The Applicant states that at no time had he provided the Respondent with invoices for 
the work he did in driving the Respondent’s taxi,  and whilst the Applicant conceded that had 
‘tax invoices’ been prepared by himself over the relevant period, it might be indicative of an 
independent contractual relationship he in fact never prepared or issued such ‘tax invoices’.








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[27] The Applicant contends that the following factors may point more strongly towards a 
relationship of independent contractor and whilst he had in fact worked exclusively for the 
Respondent over 16 years, he was not, nor did he believe, he was barred from working for 
others during such period - notwithstanding there may have been an entitlement to do so, this 
question was never tested because he was content to work only for the Respondent.

[26] Whilst the Applicant conceded that he has an Australian Business Number and that he 
carries a business card which bears his name rather than that of the Respondent which 
advertises his services to the world at large and that his business card - he strongly contended 
that there had been an employment relationship between himself and the Defendant and that 
he had worked for the respondent as a taxi driver for the Respondent since 1996 giving 16 
long years of continuous and loyal service which he had strongly believed that  would 
continue until he retired.

[28] The Applicant gave evidence on his own behalf in support of the above contentions.

The Issues to be Considered

[29] Both the Applicant and the Respondent took me to a range of authorities which 
support their respective contentions. The respective cases presented by both raise a number of 
issues which I intend to consider.

Can a taxi driver be an employee?

[30] In De Luxe Red & Yellow Cabs Co-Operative (Trading) Society Ltd & Ors v 
Commissioner of Taxation5 (De Luxe v Yellow Cabs) Hill J identified the situation in relation 
to the Victorian taxi operator in that matter as follows: 

“One applicant operates in Victoria. 

Black Cabs Combined Limited (“Black Cabs”) owns and operates in Melbourne a taxi 
communication centre under the authority of the Victorian Taxi Directorate for the 
receipt and dispatch of bookings to drivers of taxis operating within that network. The 
fifth applicant, Vermont Autogas Pty Limited (“Vermont”), manages a taxi fleet 
comprising 23 vehicles, operating them through the Black Cabs network. 
Vermont enters into a written agreement with its drivers. The agreement is in the form 
of a lease of a vehicle in consideration of a rental payment. In addition to various 
commercial terms, the agreement provides in clause 5: 

‘Subject to the provisions of this Agreement the Lessee -
(a) shall have the control of the vehicle including the running and management 
thereof during the periods referred to in Clause 1 above. 
(b) shall not be subject to any instructions or directions by the Lessor except 
those requiring observance of the conditions of this Agreement; 
(c) shall use the vehicle for the carriage of passengers and luggage in 
accordance with the provisions of any act, Regulations or By-Laws from time 
to time relating to Taxi Cabs or Private Hire Cars (as the case may be); and, 
(d) shall use the vehicle at such places as he in his absolute discretion shall 
deem fit.’








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Vermont has approximately 130 drivers on its books of which approximately 120 
would have driven in a three month period. Fifty of the drivers drive five or more 
shifts a week. The remainder of drivers are casuals. There is a high rate of turnover. 

Payment is made to Vermont by drivers of 50% of the meter takings. Of this amount, 
20% is allocated to the vehicle, and the balance to the license. State rental tax is paid 
on the amount of monies paid by drivers in respect of the car, but not the license. 
Because payment by the driver to Vermont is made by reference to the meter takings 
the driver completes a work sheet showing, inter alia, the metered fares, eg flag fall, 
distance units, wait units, extras, end time, paid kilometres and total kilometres 
travelled. Refuelling costs and the cost of car washes are deducted. Where Cabcharge 
or credit dockets are received, the driver’s share of the takings is the cash component 
and, if necessary, the Cabcharge or other credit amount would be reimbursed in cash. 

Taxi legislation requires that drivers wear uniforms. Black Cabs also has a code of 
conduct which it requires of network drivers. As between Vermont and drivers, it is 
left up to drivers to comply with their obligations under legislation and Black Cabs’
code of conduct. 

There is no industrial legislation operating in Victoria regulating taxis so that no 
payments are made for sick leave, downtime, holiday pay or long service leave. 
Drivers who have driven with Vermont for more than two months are allowed a rebate 
of rental of $5.00 per week. This amount is accumulated and paid to the driver in a 
lump sum. In the event of an accident, the driver is required to pay a $100 excess. 

Except as stated, there is no relevant difference between the arrangements operating 
between Vermont and its drivers and those operating in New South Wales.”

[31] Hill J posed and considered the following question:

“ARE THE DRIVERS EMPLOYEES AS SUCH? 

The critical issue in the present case is whether the drivers are within the ordinary 
meaning of the term “employees”.

A person will only be an employee where there is a contract between that person and 
another, who is the employer, for the performance of work. If the sole contractual 
arrangement between a driver and an operator were for the use of the taxi (ie a contract 
of bailment) there could be no employer-employee relationship. 

The usual question which arises in disputes of the present kind is whether the 
contractual relationship between two parties is one of employment or whether the 
person alleged to be an employee is in truth an independent contractor. The case law 
has thrown up a variety of judicial approaches and it may fairly be said that 
consistency in approach is often lacking.”6

[32] After considering a number of cases which dealt with this question Hill J concluded 
that:

“What will be required..... is a process of weighing up the competing factors. 








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The factor in the present case, which most tells against the relationship of drivers and 
operators being one of employment, is the fact that the operators agree with the drivers 
to grant use of the taxi by way of bailment. It would, in theory, be possible for there to 
be found to be a bailment of the vehicle to the drivers as well as a relationship of 
employment between the operators and the drivers, but just as the fact that an 
employee will not ordinarily be required to provide his or her tools so it would be most 
unusual for an employee to be required, not merely to provide his or her car to drive, 
but to obtain possession of that car under a contract which provides that the driver will 
pay a consideration for the bailment. 

There has been a long history of case law which has examined the relationship of taxi 
owners and taxi drivers. While that case law is not determinative in that there may be a 
need to consider special matters which may bear on the outcome of each case, that 
case law does provide a guide to the question whether the relationship in each of the 
present sets of circumstances is properly to be characterised as one of employment.”7

[33] Hill J then went on to consider the case law in relation to both the 
employee/independent contractor dichotomy and the case law on bailment as it related to taxi 
drivers. In his consideration of the case law on bailment Hill J considered a number of cases 
including the following:

“Sheppard J, a judge with a long experience in industrial matters, when sitting as a 
judge of the Supreme Court of New South Wales in Northern District Radio Taxicab 
Co-operative Ltd v Commissioner of Stamp Duties [1975] 1 NSWLR 346 accepted, 
without question, that the relationship in NSW between owners and drivers was one of 
bailment, not employment. His Honour said (at 347-348): 

‘Before proceeding, I should say what is no doubt well known, namely, that in 
most cases drivers of taxicabs owned by other persons are not employees of 
such owners, but are bailees of the cabs they drive. I refer, inter alia, to Smith v 
General Motor Cab Co Ltd [1911] AC 188 at p 192 and to Dillon v Gange 
[1941] HCA 5; (1941) 64 CLR 253....the relationship of master and servant 
does not exist between the owner of a taxicab and a driver thereof...’”

And:

“Reference is made in the course of the judgment in Taxiway to Emjay Motors Pty 
Limited v Armstrong (unreported, Supreme Court of Victoria, 24 August 1995). In that 
case, Hedigan J, of the Supreme Court of Victoria, refused to overturn the finding of a 
magistrate that the owner of a taxi was vicariously liable to a third party for damage 
caused by the negligence of a taxi driver, holding that that finding was reasonably open. 
The case is not without difficulty. It seems that the magistrate took the view that the 
agreement of lease between the owner and the driver if not a sham was “an artifice”.
Precisely what the difference would be between a sham and an artifice is not clear to 
me. If the agreement was not a sham then it operated in accordance with its tenor as a 
bailment. If the agreement was a sham, then it was a disguise for some other agreement, 
presumably a contract of employment. But there is no half way position.”

[34] In De Luxe Red and Yellow Cabs, Hill J concluded as follows:








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“CONCLUSION AS TO THE CHARACTER OF THE AGREEMENTS 

In my view, reinforced by the preponderance of authority to which reference has been 
made, the agreement between the operators and drivers in each of the present cases 
was one of bailment and not one of employment. Although no single factual matter is 
determinative, it is the cumulative weight of all the facts which leads me to this 
conclusion. 

First, the driver pays the owner and not the other way around. Of course, where the 
arrangement calls for a division of the gross fares, it can be said that a payment of 40% 
to the owner is no different than the owner paying 60% to the driver. Nevertheless, 
form is not wholly irrelevant. While the fixed payment method more clearly is marked 
as a bailment, than the gross percentage of meter method, I do not think that ultimately 
a distinction should be drawn between them. 

Second, where there is an agreement in writing (as in Perth and Melbourne), or 
implied by legislation (as in NSW), that agreement is one of bailment and not 
specifically of employment. Indeed, in NSW, the relationship of employment is 
expressly negated. It is not suggested that the negation of employment was a sham. 
Further, while the label which the parties use to describe their relationship is not 
necessarily determinative of the true character of the relationship, where it is not 
suggested that the label is a sham, it should be given effect to. 

Third, although some control is exercised by the operators over the drivers, that 
control is only such as is necessary to ensure compliance with legislation concerning 
taxis rather than such as to signify an employment relationship. There is an element of 
control exercised as well by the network operators, to their own drivers as well as to 
the drivers of other. But that control is only such as is necessary for the running of a 
network, it does not signify an employment relationship. Disciplinary steps, where 
taken, are taken by the networks as networks rather than the operators, and where the 
operators are members of the network, the disciplinary action stems from the network 
relationship rather than from an employment relationship. 

Drivers are free to obtain work as they wish, and in fact do so, often utilising mobile 
phones. As well, drivers will pick passengers up from the streets, or from ranks. There 
is no compulsion on the drivers to use the network, although clearly it will be in the 
interests of drivers to do so. 

Drivers provide their own change, and directories, pay for the petrol consumed and the 
cost of keeping the cars clean, (on night shift) except in the case of Mr Meredith who 
cleans the cars himself. In some places drivers pay additional insurance, premiums; in 
all States, subject to insurance, drivers are required to pay for damage to vehicles 
which the driver causes and are obliged to return the vehicles in the condition in which 
they receive them. Sometimes driver are required to pay an additional amount for 
kilometres travelled. In the event of a breakdown, the drivers are entitled to some 
reimbursement of amounts which they pay for the hire, again a matter inconsistent 
with employment. 

It is only in NSW that industrial legislation requires payment of long service leave, 
sick pay and workers compensation premiums. While these matters support in that 








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State an argument in favour of employment, the industrial legislation must be viewed 
against the background of the Yellow Cab decision in 1930 and the many subsequent 
determinations thereafter in which it has been accepted that the relationship is one of 
bailment and not employment. In all States stamp duty is exigible on the basis that 
there is a bailment relationship between owner and driver, a matter not conclusive, but 
nevertheless supportive of the applicants’ case. 

I would, accordingly conclude that the relationships existing between all applicant 
operators and their drivers are properly to be characterised as relationships of 
bailment, and not as relationships of employment. Thus, in no case is it correct to say 
that any of the applicants pay amounts to persons who are “employees” as such, when 
payments are made to drivers. On the contrary, each of the drivers with which the 
present applications are concerned carries on his or her own business rather than being 
a person engaged as an employee in the business of the applicants.”8

[35] On appeal a Full Court of the Federal Court in Commissioner of Taxation of the 
Commonwealth of Australia v De Luxe Red & Yellow Cabs Co-Operative (Trading) Society 
Ltd & Ors9 upheld the decision of Hill J. The Full Court limited its consideration of the matter 
to the position in NSW as “(b)y agreement of the parties, the argument on appeal was 
confined to the position in New South Wales, it being common ground that the position of the 
respondents in other States did not differ, in principle, in any material respect.”

[36] The Full Court after considering the NSW legislation and the Contract Determination 
made under it then went on to say:

“In Federal Commissioner of Taxation v J. Walter Thompson (Australia) Pty Ltd
(1944) 69 CLR 227, it was held that the relationship between a company presenting 
radio plays and the artists it engaged was that of employment and not that of 
independent contractor, so that the fee paid to the artist was “wages” for the purposes 
of the Pay-roll Tax legislation.

Latham CJ said (at 233):
‘Reference was also made to the definition of a servant in the American 
Restatement of the Law, vol. I ., Agency, p. 483: ‘A servant is a person 
employed to perform service for another in his affairs and who, with respect to 
his physical conduct in the performance of the service, is subject to the other’s 
control or right to control.’ This definition is in accordance with our law. The 
Restatement proceeds to set out under nine headings various matters of fact 
which are considered in determining whether one acting for another is a servant 
or an independent contractor. The decision in a particular case must be 
determined by a consideration of the facts of that case. The circumstance that a 
particular fact, absent in that case, was present in another case, should not 
necessarily lead to contrary conclusions in the two cases. In the present case I 
regard as the most important and as a decisive element the matter of fact stated 
in (a) in the Restatement - ‘the extent of control which, by the agreement, the 
master may exercise over the details of the work.’.”10

The discussion in the Restatement of the Law of Agency 1933, vol. 1, at 483, of “Who 
is a Servant” is as follows:








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‘S 220. DEFINITION.
(1) A servant is a person employed to perform service for another in his 
affairs and who, with respect to his physical conduct in the performance of the 
service, is subject to the other’s control or right to control.
(2) In determining whether one acting for another is a servant or an 
independent contractor, the following matters of fact, among others, are 
considered:
(a) the extent of control which, by the agreement, the master may exercise 
over the details of the work;
(b) Whether or not the one employed is engaged in a distinct occupation or 
business;
(c) the kind of occupation, with reference to whether, in the locality, the 
work is usually done under the direction of the employer or by a specialist 
without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, 
tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the 
employer; and
(i) whether or not the parties believe they are creating the relationship of 
master and servant.’

With respect to 2(i), it is plain that the parties in the present relationship believed that 
they were not creating an employment relationship. On the contrary, it must be accepted 
from the regulatory framework governing their relationship created by Chapter 6 of the
IR Act and the determinations made under it, that consistently with the settled position 
at common law, the parties themselves must be taken to have determined that a 
relationship of bailment, to the exclusion of any other (including that of employment), 
should govern the situation. Especially is this so when there can be no suggestion that 
the bailment relationship is a sham or a device. It is clear that the legislation proceeds 
on the basis that the relationship between the owner of the licence and the driver is one 
of bailment. As has been noted, is harmonious with the position that the general law has 
long recognised in several jurisdictions including the High Court’s decision in Gange.

It is true that, if viewed from one perspective, the statutory licensing system could be 
seen to proceed upon the assumption that the relevant business is that of the operator, 
rather than of the driver. But this legislation is directed to an objective, that is, the 
protection of the public passengers, that is different from the present subject matter, 
which is the true nature or character of the internal relationship between operator and 
driver. The licensing requirements do not need to address that question, whereas the 
industrial legislation does so specifically.

The modern general law concerning whether an employment relationship exists is, as 
Hill J noted (at 4,780), more flexible than the older authorities suggest. Particular 
reference should be made to the observations of Mason J in Stevens v Brodribb 
Sawmilling Co Pty Ltd (1986) 160 CLR 16 as follows (at 24):








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‘... 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.’

See also per Wilson and Dawson JJ at 35.

We would be prepared to accept that the Commissioner’s contentions might have some 
force, if they could be viewed apart from: (1) the direction in which the general law has 
developed, that is, towards bailment and away from employment; and (2) the acceptance
of the general law bailment notion in the legislation governing the relationship between 
licence owner and driver. These considerations apart, there might have been something 
to be said for a conclusion that the presence here of at least some of the indicia of an 
employment situation justified the characterisation of the drivers as the providers of 
labour, and thus within the application of the two Commonwealth statutes now in 
question. But, in our view, it would be wrong to seek to divorce the issue of the true 
character of the relationship from its well established general law and statutory setting.
When the present circumstances are viewed in that setting or context, a conclusion that 
the drivers are bailees in a joint adventure is appropriate, notwithstanding the degree of 
control reserved to the bailor. Such a reservation is not, as was noted in Yellow Cabs, 
necessarily inconsistent with a bailment relationship.

It may be possible to describe the adoption here of the bailment notion as a legal fiction, 
operating “to reconcile a specific legal outcome or result with a premise or postulate 
involving unexpressed considerations of social and economic policy” (per Gummow J, 
Pyrenees SC v Day (1998) 151 ALR 147 at 190); Fuller, Legal Fictions (1967) at 71);
but even if, as Gummow J observed (at 190), the general spirit of the times is 
“unfavourable to the preservation of legal fictions” under the general law, where, as 
here, the “equity of the statute” points unequivocally to the characterisation of a 
relationship as one other than that of employment, the courts should accept that result or 
outcome (see Nelson v Nelson (1995) 184 CLR 538 per Deane and Gummow JJ at 553-
554).

It must follow, in our view, that it should be held that the relevant relationship here was 
one of bailment, rather than of employment or the provision of labour.”

[37] A number of observations need to be made in relation to the decision of Hill J at first 
instance and to the decision of the Full Court on appeal in De Luxe Red & Yellows Cabs.

[38] The courts are required to resolve the justiciable issue before them on the basis of the 
evidence and submissions put to the court. The Courts generally do not have inquisitorial 
powers such as those given to the Fair Work Commission.

[39] The Federal Court, both at first instance and on appeal, only had material from both 
the applicant and respondent. Yet the conclusions reached by the Court included conclusions 








[2013] FWC 6715

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as to the state of mind and intentions of the many hundreds and possibly thousands of taxi 
drivers, but without any direct evidence from the drivers themselves.

[40] The conclusion by the Full Court was that:

“it is plain that the parties in the present relationship believed that they were not
creating an employment relationship. On the contrary, it must be accepted from the 
regulatory framework governing their relationship created by Chapter 6 of the IR Act
and the determinations made under it, that consistently with the settled position at 
common law, the parties themselves must be taken to have determined that a 
relationship of bailment, to the exclusion of any other (including that of employment), 
should govern the situation. Especially is this so when there can be no suggestion that 
the bailment relationship is a sham or a device.”11

[41] Whilst the approach of the Federal Court in both of the De Luxe Red and Yellow Cabs 
cases might have been sufficient for the purposes of deciding a tax case the decisions are not 
helpful when dealing with a jurisdictional challenge in an unfair dismissal case or in matters 
which involve compliance with modern awards or the Fair Work Act 2009 (FW Act). In the 
present matter the actual relationship existing between the Applicant and the Respondent 
cannot be ascertained through generalizations but must be ascertained through a consideration 
of all of the circumstances of the case.

[42] Whilst Hill J, at first instance, considered that the decision of Hedigan J in Emjay 
Motors Pty Limited v Armstrong12 was “not without difficulty” this characterisation is itself 
difficult to reconcile with what Hedigan J actually said. Hedigan J was dealing with an appeal 
from a decision of a Magistrate. An issue on appeal was whether the Magistrate made any 
finding about the lease agreement being a sham. The facts of the matter were that each of the 
two companies involved in the matter had a common lease for the drivers to sign. The lease 
form for one company identified taxi cab M1191 as the vehicle being leased and the lease 
form for the other company identified taxi cab M1514 as the vehicle being leased. Hedigan J 
said at page 19 and 20:

“Before me, Ms Lewitan submitted that the magistrate had not held that it was a sham, 
that the purported leasing agreement was not a sham and indeed that he could not have 
so found because the parties in fact abided by the terms of the agreement. His Worship 
did not specifically make any specific finding that the leasing agreement taken as a 
whole was a sham or that any part of it was. It would seem to me, however, that by his 
finding that Zacharias “in reality did not lease any particular vehicle” he ·meant that it 
was a sham or a facade to suggest that Zacharias had actually leased Mll9l. He never 
drove it and was never offered it. As the evidence indicated, there were at least a 
hundred drivers. The chances of any driver actually driving Mll9l in accordance with 
the lease was about 3%. It was fictitious to have a hundred drivers purport to enter into 
a lease of Mll91. The magistrate in my view was entitled to view it in that way. He used 
that aspect as a feature of examining the whole of the arrangements between the parties, 
including but not confined to the evidence concerning the written agreement. Indeed, a 
false impression of those arrangements would be derived if one looked only at the 
clauses of the driver agreement.”13

And at page 43:








[2013] FWC 6715

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“In my view, it cannot be reasonably concluded that the magistrate ignored the 
agreement, although it appears that he did regard the alleged leasing of vehicle Ml514 
as being, if not a sham, at least an artifice.”14

[43] A careful reading of the decision of Hedigan J provides valuable commentary on 
matters directly relevant to the matter before me.

[44] In particular the decision of the High Court in Dillon v Gange15 was relied on in both 
the decision of Hill J at first instance and in the Full Court decision on appeal in the De Luxe 
Red & Yellow Cabs cases.

[45] Hedigan J’s comments on Dillon v Gange are relevant and could also be applied to the 
decisions in De Luxe Red & Yellow Cabs. Hedigan J said:

“...it seems to me that Dillon v Gange is not decisive of the issue in the present case. 
Clearly, the learned magistrate was of a similar view. The reason for this is that Dillon 
v Gange was factually “minimalist” because of the way in which the matter came to 
the High Court. It is binding on me if it applies to the circumstances of this case. In 
any event there is no need to doubt its correctness, although it has rarely been revisited 
by the High Court since it was decided. But the limited facts revealed in the High 
Court report made the decision almost inevitable. Dillon had been struck and injured 
by a taxi owned by Gange but driven by one Linehan who drove it pursuant to an 
agreement with terms to which I have referred. The Court concluded that the 
relationship created by that agreement was one of bailor and bailee and not that of 
master and servant. It seems likely that it was put in this way by the High Court 
because of the way in which the matter came to the High Court; that is, that the 
dichotomy was simply bailor - bailee or master and servant.

The claim made by Dillon in Dillon v Gange was that the relevant agreement had been 
made subsequent to the happening of the accident, not before it. Gange and three other 
witnesses were called to establish the contrary, namely that it was entered into prior to 
the happening of the accident. No relevant evidence is disclosed in the report as 
having been given in the case (which was tried by a jury) to add any additional 
dimension to the agreement between owner and driver other than t .he actual written 
agreement. The jury had rejected the defendant’s evidence as the date entering into the 
agreement. The High Court determined, in effect, that it was not open not open to a 
jury in the circumstances to reject that evidence, that the date in the agreement prima 
facie was the date of its execution and had not been rebutted by the evidence. The 
report makes it clear (see Rich, A.C.J. 257) that no evidence was tendered to suggest 
that there was in existence any agreement other than what was embodied within the 
four corners of the written agreement which the evidence established had been acted 
upon. The submission made on behalf of Dillon that the agreement was a sham in 
those circumstances had little prospect of success as there was no evidence in support 
of the proposition. One might perhaps be forgiven for treating Ms Lewitan’s persistent 
submission that the parties in this case were free to, and did with full intention, enter 
into a relationship of lessor and lessee with reservation when the evidence indicates 
that Zacharias came in to Emjay looking for a job as a driver.”16

[46] It is also very clear that the decisions in the De Luxe Red & Yellow Cabs cases were 
factually minimalist given that there was no evidence from any one of the thousands of 








[2013] FWC 6715

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drivers driving for the taxi operators in that matter. The findings of the courts in the De Luxe 
Red & Yellow Cabs cases that the drivers were not employees is not determinative of the 
question: Can a taxi driver be an employee?

[47] The very development of the case law on taxi drivers which was considered in the De 
Luxe Red & Yellow Cabs cases recognised the rebuttable presumption that existed in some 
jurisdictions that taxi drivers should be employees. The mere fact that there was such a 
rebuttable presumption supports a conclusion that taxi drivers may be employees.

Changed Industrial Relations Environment since De Luxe Red & Yellow Cabs Cases

[48] It is important to distinguish the De Luxe Red and Yellow Cabs cases from the present 
industrial relations environment. Hill J in the first De Luxe Red and Yellow Cabs case said:

“There is no industrial legislation operating in Victoria regulating taxis” and as at 
1998 this was true. However that is no longer the case, nor has it been the case since 
March 2006.”

[49] The Passenger Vehicle Transportation Award 201017 is a modern award which covers 
the following industry: 

4. Coverage
4.1 This industry award covers employers throughout Australia in the passenger vehicle 
transportation industry and their employees in the classifications listed in clause 14—
Minimum wages to the exclusion of any other modern award.
4.2 Passenger vehicle transportation industry means the transport of passengers by:
(a) motor vehicle, limousine or hire car;
(b) bus or coach; and
(c) electric tramway, monorail or light rail.

[50] That the passenger vehicle transport industry includes employee taxi drivers was 
recognised by the Full Bench of the Australian Industrial Relations Commission when it made 
this award:

“[227] The terms of this modern award are largely the same as the exposure draft. Some 
changes have been made which we refer to later. Before doing so however we should 
refer to submissions concerning taxi drivers and whether the award should contain a 
specific classification for them. This matter was referred to by us in our statement of 22 
May 2009. We there noted the submissions made by the New South Wales Taxi Council 
Limited and Victorian Taxi Association that no taxi driver in Australia was an employee 
nor in an employment relationship with the owner or operator of the taxi vehicle which 
was driven. Again in the post exposure draft submissions the contest between these 
industry representatives and those representing taxi drivers continued. Submissions 
were made by the Australian Taxi Drivers Association, Taxi Drivers Association of 
Victoria, NSW Taxi Drivers Association and a Mr Ahmed. They sought the inclusion of 
a specific reference to a taxi in the definition of motor vehicle and to a taxi driver in the 
classifications schedule.

[228] Although we acknowledge the conviction with which these submissions were 
made we have not been persuaded to accommodate the amendments sought. This 






http://www.fwc.gov.au/documents/modern_awards/award/ma000063/ma000063-18.htm#P283_27122
http://www.fwc.gov.au/documents/modern_awards/award/ma000063/ma000063-18.htm#P283_27122


[2013] FWC 6715

16

modern award will only apply to an employee as defined under the Fair Work Act. 
Merely by identifying the classification of a taxi driver in the modern award will not of 
itself impact on the contractual arrangements between that taxi driver and the owner or 
operator of the taxi driven by them. If we were to include a specific reference to a taxi 
driver that may give rise to an expectation that we had, in the context of award 
modernisation, considered and ruled upon the status of the relationship between these 
persons. All we can properly do is to repeat what we said in our earlier statement that if 
a taxi driver is an employee then, assuming the employer is in the industry as defined in 
this modern award, that employee would come within the Grade 2 classification which 
includes “a driver of a motor vehicle, limousine or hire car”.18

[51] Prior to the making of the Passenger Vehicle Transportation Award 2010 employee 
taxi drivers in both NSW and Victoria were not protected by an award in either State 
jurisdiction or in the Federal jurisdiction. (However there had been award coverage in NSW 
for employee taxi drivers from 1926 to the early 1980’s and since the late 1800’s and up to 
the early 1990’s the legislative regime in Victoria included a presumption in favour of taxi 
drivers being employees.) 

[52] There can be no doubt that employee taxi drivers have the protection of both the 
National Employment Standards and the Passenger Vehicle Transportation Award 2010 and 
have had this protection since 1 January 2010.

[53] Prior to the making of the Passenger Vehicle Transportation Award 2010 taxi driver 
employees had, since March 2006, the protections and entitlements of the Australian Fair Pay 
and Conditions Standard (AFPCS) which were introduced through the Work Choices 
legislation. At the very least an employee taxi driver in Victoria had to be paid at least the 
Federal Minimum Wage and receive the paid leave entitlements as provided by the AFPCS.

The industrial relations landscape in NSW at the time of De Luxe Red & Yellow Cases

[54] Hill J in the first De Luxe Red and Yellow Cabs case said, relevantly:

“CONCLUSION AS TO THE CHARACTER OF THE AGREEMENTS 
In my view, reinforced by the preponderance of authority to which reference has been 
made, the agreement between the operators and drivers in each of the present cases was 
one of bailment and not one of employment. Although no single factual matter is 
determinative, it is the cumulative weight of all the facts which leads me to this 
conclusion. 

Second, where there is an agreement in writing (as in Perth and Melbourne), or implied 
by legislation (as in NSW), that agreement is one of bailment and not specifically of 
employment. Indeed, in NSW, the relationship of employment is expressly negated. It is 
not suggested that the negation of employment was a sham. Further, while the label 
which the parties use to describe their relationship is not necessarily determinative of 
the true character of the relationship, where it is not suggested that the label is a sham, it 
should be given effect to. (emphasis added)”

[55] The Full Court said:








[2013] FWC 6715

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“Before the primary Judge, the case was conducted on the basis that the Taxi Industry 
(Contract Drivers) Determination 1984 (the “1984 Determination”), made pursuant to 
the Industrial Arbitration Act 1940 (NSW) required that there be a bailment relationship 
between the owner of the taxi licence and the driver. The terms and conditions 
governing the bailment relationship were set out in a Schedule to the 1984 
Determination, which was made by consent under the 1940 Act. (emphasis added)”

[56] The Full Court also cited the following decision:

“In Northern District Radio Taxicab Co-operative Ltd v Commissioner of 
Stamp Duties [1975] 1 NSWLR 346, Sheppard J said (at 347-348):
“... in most cases drivers of taxicabs owned by other persons are not 
employees of such owners, but are bailees of the cabs which they drive. I 
refer, inter alia, to Smith v General Motor Cab Co Ltd [1911] AC 188 at 
p 192 and Dillon v Gange (1941) 64 CLR 253.

... the relationship of master and servant does not exist between the owner of 
a taxicab and a driver thereof...”“

[57] The two underlined propositions are simply wrong and the selective quote from 
Sheppard J does not accurately reflect the decision of Sheppard J!

[58] Neither the Industrial Arbitration Act 1940 (NSW) nor its replacement the Industrial 
Relations Act 1996 (NSW) have ever “expressly negated” the operation of an 
employer/employee relationship between a taxi driver and a taxi operator, and, neither the 
Industrial Arbitration Act 1940 (NSW) nor its replacement the Industrial Relations Act 1996 
(NSW) have ever “required that there be a bailment relationship between the owner of the taxi 
licence and the driver”.

[59] The most that can be said of both the Industrial Arbitration Act 1940 (NSW) and its 
replacement the Industrial Relations Act 1996 (NSW) is that:

(i) if the relationship was that of employee and employer then both parties to the 
relationship had access to the NSW Industrial Commission (later the NSW Industrial 
Relations Commission) in relation to disputes including seeking the making of an award, 
and;

(ii) if the relationship was that of bailor and bailee in relation to a taxi cab then the 
Commission had the power to make a determination to set certain minimum standards 
which applied to the bailee taxi driver.

[60] The statement by Sheppard J that “the relationship of master and servant does not exist 
between the owner of a taxicab and a driver thereof” was made in the context of considering a 
stamp duty case in which both parties drew the courts attention to the Taxi Drivers (State) 
Award, an award of the Taxi Drivers (State) Conciliation Committee in 1972, which 
contained provisions relating to a bailment agreement. Specifically clause 1 of the Taxi 
Drivers (State) Award provided as follows:

“1. The Bailment Agreement








[2013] FWC 6715

18

(a) No person shall drive a taxi cab as a bailee thereof unless he shall have 
previously executed an agreement in or to the effect of the agreement contained in the 
Schedule to this award or an agreement no less favourable to him than the agreement 
contained in the said Schedule to this award.

(b) No registered owner of a taxi cab shall bail it to a person with a view to such 
person driving it as a bailee driver until he and such bailee shall have executed an 
agreement in the form set out in the Schedule to this award or an agreement containing 
terms more favourable to the bailee than the terms of the agreement as set out in the said 
Schedule.”

[61] The Taxi Drivers (State) Award had very limited coverage as it only applied to bailee 
drivers in the Sydney, Newcastle or Wollongong areas who worked more than 2 shifts per 
week for an individual bailor.

[62] It was in considering clause 1 of the Taxi Drivers (State) Award that Sheppard J said:

“Although the relationship of master and servant does not exist between the owner of a 
taxicab and a driver thereof, the Conciliation Committee had power, so it was conceded 
by both parties, to make the award in question by reason of the provisions of s.88E(1)(a) 
of the Industrial Arbitration Act, 1940. The benefit which an agreement in terms of that 
in the schedule to the award confers upon drivers is that it provides for them (in clauses 
which I have not set out), although they are not employees, annual holidays, sick leave 
and long service leave, or payments in lieu thereof.”

[63] Importantly it must be understood that since 1926 (and at least until 1982 given the 
limited research I have undertaken) there was an award of the Hire Car and Taxi Drivers 
(State) Conciliation Committee known as the Hire Car and Taxi Drivers (State) Award which 
set the wages and conditions of employment for employee taxi drivers. This award operated in 
all parts of NSW except for the County of Yancowinna.

[64] Certainly in 1975 when Sheppard J issued his decision in Northern District Radio 
Taxicab Co-operative Ltd v Commissioner of Stamp Duties19 there were two awards which
could apply to a taxi driver in NSW. If the taxi driver was an employee anywhere in NSW, 
except Broken Hill, they were covered by the Hire Car and Taxi Drivers (State) Award. If the 
taxi driver was a bailee in the Sydney, Newcastle or Wollongong areas and the bailee taxi 
driver worked more than 2 shifts per week for an individual bailor then the bailee driver was 
covered by the Taxi Drivers (State) Award. It cannot be suggested that Shephard J was 
unaware of the Hire Car and Taxi Drivers (State) Award as variations to that award had been 
made by a Full Bench comprising Shephard J.20

The previous legislative landscape for taxi drivers in Victoria

[65] In Victoria the early Carriages Acts from 1864 onwards granted the right to the 
Melbourne and Geelong Municipalities to make by laws for regulating hackney carriages. The 
Melbourne City Council exercised this right to enact a by-law which required hackney cabs to 
be driven by the owner or an employee of the owner except where otherwise permitted by the 
Council. Later Transport Acts removed the role of regulating taxis from the Councils of 
Melbourne and Geelong but retained the general requirement that a taxi be driven by the 








[2013] FWC 6715

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owner or an employee of the owner but with the power to grant an exemption from this 
requirement. The Transport Act 1983 relevantly contained the following provision:

“S.144. (1) The following shall be implied conditions of every commercial passenger 
vehicle licence-
(b) that in relation to the vehicle, the provisions of any Act or regulation thereunder 
with respect to-
(i) the manner in which the persons by whom the vehicle may be driven and the 
appropriate industrial awards applicable to such persons;
(ii) the number of passengers that may be carried in the vehicle;
(iii) the construction equipment and condition of the vehicle;
(iv) limitation of hours of driving-
are complied with; and
(c) that the vehicle is not, without the consent in writing of the Roads Corporation, 
operated by any person other than the owner or a person employed by the owner”
(emphasis added)

[66] Not only did the Transport Act 1983 create a presumption that taxis would only be 
driven by the owner or an employee of the owner but additionally the employee would be 
covered by the appropriate industrial awards. That these implied conditions were not always 
complied with by owners is made clear through a number of cases. These cases identified the 
nature of the presumption that a taxi driver should be an employee but then made clear that 
the presumption was rebuttable and that the evidence needed to be considered to establish 
what was the real nature of the relationship. Where taxi owners deliberately flouted the law 
requiring that the driver be an employee and established a bailor/bailee relationship then the 
courts had regard to the real relationship established.

[67] In all respects the approach of the courts has been remarkably consistent. It is the real 
nature of the relationship that is important and which has to be identified not the label 
attached to the relationship or the mere form in which the relationship is presented.

[68] The real issue at all times was and is determining the true nature of the relationship 
between a taxi driver and a taxi operator.

[69] In McDougal v Castlemaine Taxis Pty Ltd21 Lewin C of the Australian Industrial 
Relations Commissions concluded that two taxi drivers in the Victoria rural town of 
Castlemaine were employees and not independent contractors. The conclusion however was 
in the context of “the somewhat unique and highly specific facts of” the matter.

[70] What is clear from all of the foregoing is that a taxi driver may be an employee.

Are the relationships of Bailor/Bailee and Employer/Employee Mutually Exclusive?

[71] The opening words of Palmer on Bailment, 3rd edition, 2009 (Palmer) are:

“Bailment is one of the commonest transactions in everyday life. Its breadth and 
diversity are enormous. And yet it is unknown to non-lawyers, and often neglected by 
lawyers themselves. The result is that a fertile source of legal development has been 
largely unexplored.”








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“The essence of bailment is possession.” “...(A) bailment comes into being whenever 
one person is knowingly and willingly in possession of goods that belong to another.” 22

[72] Palmer considers the nature of bailment and what it means. Palmer acknowledges that 
the 1703 decision of Holt CJ in Coggs v Bernard was “the seminal modern decision on this 
subject” but the analysis of Lord Holt CJ “is now significantly outmoded” because “the 
modern foundation of bailment has been clearly and authoritatively confirmed by a series of 
appellate decisions over the past decade and a half. Foremost among the authorities is the 
speech of Lord Goff of Chievely in The Pioneer Container, [1994] 2 A.C 324 PC.”23

[73] Palmer states a General Rule concerning the relationship between employment and 
bailment:

“It has been stated on numerous occasions that a servant who, as a comcomitant of his 
employment, acquires custody of his master’s goods does not in the ordinary 
circumstances become a bailee.

Possession is deemed to remain in the master in such circumstances and the servant, 
having a mere custody or temporary control, neither enjoys the possessory remedies nor 
(would it seem) owes the strict duties of a bailee.”

[74] Palmer also comments that:

“The continued existence of the rule is further indorsed by the numerous modern 
decisions which treat the relationships of master and servant and bailor and bailee as 
mutually exclusive.”24

[75] The specific issue of taxi drivers is dealt with by Palmer in the context of a discussion 
around bailment and contracts of service.

“3-083 According to traditional theory, a servant has mere custody of his master’s 
property and does not become a bailee. In Chapter 7 we challenge this assumption and 
argue that a person may become the bailee of a chattel while simultaneously occupying 
the position of servant or agent towards the bailor. The reason for this apparent 
ambiguity is that the relationships are imposed for different purposes and identified by 
different tests. Thus they may coexist without conf1ict within a single situation. 

While, however, the foregoing analysis may produce acceptable results in the context of
a master’s action against his servant for loss of or damage to the master’s goods; the 
fact remains that, for most other purposes, bailees cannot be regarded as the employees 
of their bailors. This may be inferred by examining the purposes for which the courts 
may wish to discover a relationship of master and servant and the criteria by which that 
relationship may be established. The existence of the relationship may fall in question 
for a number of reasons: to establish the servant’s rights under the alleged contract of 
service, to answer questions of tax liability or insurance benefit, or impose vicarious 
liability upon the alleged employer. The identification of the relationship occurs by the 
use of certain compound criteria: the degree of control asserted by the “employer” over 
his employee’s performance of the task for which he is engaged, the extent to which the 
employee is assimilated into the employer’s general organisation and workforce, the 
method of payment, the regularity and proposed duration of the employment and the 








[2013] FWC 6715

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powers of termination or dismissal. Clearly the use of these criteria will dictate in the 
great majority of cases that an ordinary bailee of goods such as a hirer, a repairer, a 
warehouseman or carrier is not to be simultaneously identified as the servant or agent of 
the bailor.”25

[76] Palmer goes on to say:

“For this reason the relationships of bailor and bailee and master and servant can be 
regarded, for most practical purposes, as mutually exclusive: many servants are so 
closely supervised that they cannot acquire possession of their masters’ chattels, while 
most bailees are so loosely controlled that they cannot be deemed to be servants. 
Nevertheless, the two questions should be answered separately”.

And:

“Generally, it is impossible to regard the hirer of a chattel as in any sense the servant 
or agent of the owner: if anything, the relevant service is provided by the owner. The 
position becomes less clear-cut, however, when the hirer employs the chattel for the 
purposes of commercial reward and pays part of that reward, in substitution for a 
hiring charge, to the owner. In such a case the hirer may be thought to be working for 
the benefit of the owner, and there may be sufficient common interest in the enterprise 
to justify regarding the hirer as a servant or agent of the owner. The problem is 
exemplified by a long sequence of English decisions involving the bailment of taxicab 
between owners and drivers. Instead of paying the driver fixed wages, the owner may 
keep a proportion of the takings or may allow the driver to keep all the takings in 
return for a guaranteed daily sum. The owner will normally tax, maintain and insure 
the cab but will not have any immediate control over the way the driver conducts his 
business. Undoubtedly the driver may be regarded as a bailee for the purpose of 
rendering him liable for any damage inflicted on the cab, but the owner may not 
necessarily escape being vicariously liable for torts committed while the driver is 
going about his business. Such liability depends upon whether the driver is his servant 
or agent under the various judicial and statutory tests which have been laid clown as 
determining that relationship. These tests are not precisely synonymous with those that 
seek to establish whether the driver is a bailee.”26

[77] At 3-084 Palmer further comments on the Australian approach:

“Australian courts ......have preferred to regard the relationship of master and servant 
not as a matter of legislative fiction but as a question of fact. In answering this 
question, they have looked primarily to the control which the owner has asserted over 
the driver and the degree of independence with which the latter is entitled to act. The 
normal conclusion is that the driver is a bailee of the cab and that the owner is not 
vicariously liable for his negligence: but a contrary result was reached in Fenn v Sagar
where Wolff J. discovered a relationship of master and servant...”

And:
“In answering questions of vicarious liability, Australian judges have occasionally 
relied upon English cases in which some other issue required analysis of the 
relationship between owner and driver. In such cases, the driver has almost 
unanimously been to be a bailee.”








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[78] The analysis provided by Palmer is sufficiently clear to permit the following 
propositions to be stated:

 The relationships of employer and employee and bailor and bailee are not mutually 
exclusive.

 However, the relationships of bailor and bailee and employer and employee can be 
regarded, for most practical purposes, as being mutually exclusive.

 The relationships of bailor and bailee and employer and employee are imposed for 
different purposes and identified by different tests.

[79] It would appear that the observation of the Full Court in De Luxe Red & Yellow Cabs 
that:

“It may be possible to describe the adoption here of the bailment notion as a legal 
fiction, operating “to reconcile a specific legal outcome or result with a premise or 
postulate involving unexpressed considerations of social and economic policy” (per 
Gummow J, Pyrenees SC v Day (1998) 151 ALR 147 at 190); Fuller, Legal Fictions
(1967) at 71); but even if, as Gummow J observed (at 190), the general spirit of the 
times is “unfavourable to the preservation of legal fictions” under the general law, 
where, as here, the “equity of the statute” points unequivocally to the characterisation of 
a relationship as one other than that of employment, the courts should accept that result 
or outcome (see Nelson v Nelson (1995) 184 CLR 538 per Deane and Gummow JJ at 
553-554).”27

is unwarranted. There was never any doubt that the NSW legislation permitted the making of 
determinations which set minimum conditions for the engagement of drivers who were 
bailees of a taxi cab and not employees. There was no need to suggest that the notion of a 
bailment agreement in NSW for taxi drivers was a legal fiction. The real issue is and has been 
whether the driver is an employee or is a bailee. If the driver is a bailee then there is no legal 
fiction concerning the existence of a bailment agreement and if the driver is an employee then 
there is no bailment. The observations of the Full Court referred to above appear to be otiose 
when considered in light of the proposition derived from Palmer that the relationships of 
bailor and bailee and employer and employee are imposed for different purposes and 
identified by different tests.

The Relationship between the Applicant and the Respondent

[80] The Respondent relies upon the decision of McDougal J in Forstaff v The Chief 
Commissioner of State Revenue, where his Honour said: 

“77 I therefore conclude that, in the situation with which I am concerned, the 
relationship between the concepts of “employee” and “independent contractor” may not 
be dichotomous. The workers are either employees (of whom, is a question to be 
considered) or they are not. If they are not, they may be, but are not necessarily, 
independent contractors (to whom, is again a question to be considered).

78 Accordingly, I think that the correct approach in principle is to analyse the matter as
Mr Gleeson submitted I should, namely by asking whether the workers were employees 
of Forstaff. Further, and contrary to the submission of Mr Kimber (or its necessary 
consequence), I do not think that a negative answer must necessarily be given to that 
question if it were shown that workers were independent contractors to Forstaff.”28








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[81] This approach is not inconsistent with the approach adopted by previous Full Benches 
of this Commission and its predecessors.

[82] The question properly before the Commission in the present matter is defined by the 
relevant provisions of the Fair Work Act 2009. An applicant for an unfair dismissal remedy 
must be a national system employee as at the time of the dismissal. So much is clear from the 
language of s.382 and 322 of the Act. Thus the question properly before the Commission in 
the present matter is: Is the applicant a national system employee?

[83] The Full Bench of FWA in Jiang Shen Cai trading as French Accent v Do Rozario29

(French Accent), recast the summary of the law in Abdalla v Viewdaze P/L30 (Abdalla), as 
follows:

“The general law approach to distinguishing between employees and independent 
contractors may be summarised as follows:

(1) In determining whether a worker is an employee or an independent contractor the 
ultimate question is whether the worker is the servant of another in that other’s 
business, or whether the worker carries on a trade or business of his or her own behalf: 
that is, whether, viewed as a practical matter, the putative worker could be said to be 
conducting a business of his or her own of which the work in question forms part? 
This question is concerned with the objective character of the relationship. It is 
answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must 
always be considered. This will always be relevant to the identification of relevant 
indicia and the relative weight to be assigned to various indicia and may often be 
relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the 
parties cannot alter the true nature of their relationship by putting a different label on 
it. In particular, an express term that the worker is an independent contractor cannot 
take effect according to its terms if it contradicts the effect of the terms of the contract 
as a whole: the parties cannot deem the relationship between themselves to be 
something it is not. Similarly, subsequent conduct of the parties may demonstrate that 
relationship has a character contrary to the terms of the contract.

(4) Consideration should then be given to the various indicia identified in Stevens v 
Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the 
particular context. For ease of reference the following is a list of indicia identified in 
the authorities:
● Whether the putative employer exercises, or has the right to exercise, control over 
the manner in which work is performed, place or work, hours of work and the like.
Control of this sort is indicative of a relationship of employment. The absence of such 
control or the right to exercise control is indicative of an independent contract. While 
control of this sort is a significant factor it is not by itself determinative. In particular, 
the absence of control over the way in which work is performed is not a strong 
indicator that a worker is an independent contractor where the work involves a high 
degree of skill and expertise. On the other hand, where there is a high level of control 








[2013] FWC 6715

24

over the way in which work is performed and the worker is presented to the world at 
large as a representative of the business then this weighs significantly in favour of the 
worker being an employee.
“The question is not whether in practice the work was in fact done subject to a 
direction and control exercised by an actual supervision or whether an actual 
supervision was possible but whether ultimate authority over the man in the 
performance of his work resided in the employer so that he was subject to the latter’s 
order and directions.” “[B]ut in some circumstances it may even be a mistake to treat 
as decisive a reservation of control over the manner in which work is performed for 
another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner 
of Taxation, a case involving a droving contract in which Dixon J observed that the 
reservation of a right to direct or superintend the performance of the task cannot 
transform into a contract of service what in essence is an independent contract.”
● Whether the worker performs work for others (or has a genuine and practical 
entitlement to do so).
The right to the exclusive services of the person engaged is characteristic of the 
employment relationship. On the other hand, working for others (or the genuine and 
practical entitlement to do so) suggests an independent contract.
● Whether the worker has a separate place of work and or advertises his or her 
services to the world at large.
● Whether the worker provides and maintains significant tools or equipment.
Where the worker’s investment in capital equipment is substantial and a substantial 
degree of skill or training is required to use or operate that equipment the worker will 
be an independent contractor in the absence of overwhelming indications to the 
contrary.
● Whether the work can be delegated or subcontracted.
If the worker is contractually entitled to delegate the work to others (without reference 
to the putative employer) then this is a strong indicator that the worker is an 
independent contractor. This is because a contract of service (as distinct from a 
contract for services) is personal in nature: it is a contract for the supply of the services 
of the worker personally.
● Whether the putative employer has the right to suspend or dismiss the person 
engaged.
● Whether the putative employer presents the worker to the world at large as an 
emanation of the business.
Typically, this will arise because the worker is required to wear the livery of the 
putative employer.
● Whether income tax is deducted from remuneration paid to the worker.
● Whether the worker is remunerated by periodic wage or salary or by reference to 
completion of tasks.
Employees tend to be paid a periodic wage or salary. Independent contractors tend to 
be paid by reference to completion of tasks. Obviously, in the modern economy this 
distinction has reduced relevance.
● Whether the worker is provided with paid holidays or sick leave.
● Whether the work involves a profession, trade or distinct calling on the part of the 
person engaged.
Such persons tend to be engaged as independent contractors rather than as employees.
● Whether the worker creates goodwill or saleable assets in the course of his or her 
work.








[2013] FWC 6715

25

● Whether the worker spends a significant portion of his remuneration on business 
expenses.
It should be borne in mind that no list of indicia is to be regarded as comprehensive or 
exhaustive and the weight to be given to particular indicia will vary according to the 
circumstances. Features of the relationship in a particular case which do not appear in 
this list may nevertheless be relevant to a determination of the ultimate question.
(5) Where a consideration of the indicia (in the context of the nature of the work 
performed and the terms of the contract) points one way or overwhelmingly one way 
so as to yield a clear result, the determination should be in accordance with that result. 
However, a consideration of the indicia 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 of the relationship 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. The 
ultimate question remains as stated in (1) above. If, having approached the matter in 
that way, the relationship remains ambiguous, such that the ultimate question cannot 
be answered with satisfaction one way or the other, then the parties can remove that 
ambiguity a term that declares the relationship to have one character or the other.
(6) If the result is still uncertain then the determination should be guided by “matters 
which are expressive of the fundamental concerns underlying the doctrine of vicarious 
liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v 
Vabu.” [footnotes omitted]

[84] Neither the introductory words of the summary, nor the way in which the ultimate 
question is phrased require that two competing questions be answered. The summary does 
however make it easier to answer the single question required to be answered by s.382 and 
322 of the Act.

[85] It is important to approach the application of the summary of the law in French Accent 
by remembering that the Commission is not making a discretionary decision when deciding if 
an applicant is or is not an employee. A full Court of the Federal Court in Sammartino v 
Commissioner Foggo considered an appeal against a decision of a Full Bench of the then 
Australian Industrial Relations Commission (AIRC) which in turn had considered an appeal 
against a decision of Commissioner Foggo. The issue was whether Mr Sammartino was an 
employee and thus within the unfair dismissal jurisdiction exercised by the AIRC under the 
Workplace Relations Act or whether he was an independent contractor and thus outside that
jurisdiction. The Full Court said:

“The question whether a person is an employee for the purposes of Division 3 of the 
Act is not in any way a discretionary decision. The decision maker must first ascertain 
what is meant by the word "employee" when used in Division 3. Then the decision 
maker must make findings of fact and determine whether the facts as found establish 
whether the person is an employee or not. No exercise of discretion is involved.”31








[2013] FWC 6715

26

[86] The most useful way of considering the nature of the relationship between the 
Applicant and the Respondent is to start by using the criteria identified in paragraph 4 of the 
above summary of the general law.

Whether the putative employer exercises, or has the right to exercise, control over the 
manner in which work is performed, place or work, hours of work and the like. 

[87] The evidence of the Respondent was that he exercised no effective control over the 
Applicant in the performance of his driving the taxi. The Respondent’s evidence was:

“3. It was agreed between us that Mr. Dick would have the use of a taxi and could keep 
the taxi at his place of residence provided that if other taxi drivers wanted to hire the 
taxi, the taxi would be made available to those taxi drivers upon notice. This situation 
occurred on a regular basis. The other taxi drivers would then return the taxi back to Mr. 
Dick at the end of their operation hours.

4. It was also agreed that Mr. Dick would simply hire the taxi and could use it as he saw 
fit provided that he did not damage the taxi, made sure that it had reasonable amount of 
petrol and was kept clean, and that all monies received by him would be subject to the 
operation of the metre in the taxi. Otherwise, he could use the taxi wherever he wanted 
to operate, and he could use it for such hours as he saw fit. I had no involvement in how 
or where he operated the taxi. I would, however, pick up the taxi on a Sunday to service 
it.”32

[88] The evidence of the Applicant is generally supportive of the Respondent’s evidence as 
to lack of exercise of control by the Respondent over the Applicant’s driving of the taxi. 
However, the evidence of the Applicant does identify at least one particular area where the 
Respondent exercised control over the Applicant and that was in relation to the Respondent 
contacting the Applicant to pick up the Respondent’s customers.33

[89] The very nature of the taxi industry suggests that there is little possibility of an
employer exercising any real control over the manner in which a taxi driver employee carries 
out his work. In which case the question posed by this criterion does not help in determining 
the actual relationship existing between the Applicant and the Respondent. From common 
knowledge it would appear that users of taxi cabs find or acquire the services of a taxi driver 
through four obvious means. Firstly, through the customer contacting a taxi cab network who 
will in turn find an available taxi to pick up the customer. Secondly, through customers going 
to a designated taxi rank and taking a taxi in the queue. Thirdly, customers hailing a passing 
taxi on a street. Fourthly, customers directly calling specific taxi drivers or operators to have 
that specific taxi driver or operator provide the taxi service.

[90] Even where a taxi driver is an employee of a taxi operator there appears to be few 
means by which the employer could exercise control over the manner in which the driver 
performs his or her work whilst driving the taxi. The present matter identifies what may be 
one of the few ways in which a putative employer could exercise control over a taxi driver 
and that is by contacting the driver to pick up a passenger who has contacted the operator 
rather than the driver.








[2013] FWC 6715

27

[91] The absence of the exercise by the Respondent of control over the manner in which 
the Applicant performed his work is in the circumstances of the present matter is not a strong 
indicator that the Applicant is not an employee.

[92] In the present matter there are other aspects of control that are present. The 
Respondent controls which vehicle will be given to the Applicant to drive.34 The Respondent 
controls the reporting requirements placed upon the Applicant.35 It also appears that the 
Respondent controls the handling of non cash payments by customers as all non cash 
payments go through the Respondents bank account.36 Whilst these levels of control are 
supportive of the Applicant’s contention that he is an employee they are, on their own, by no 
means determinative of the issue.

Whether the worker performs work for others (or has a genuine and practical entitlement 
to do so).

[93] The evidence of both the Applicant and the Respondent was that the Applicant has 
been driving day shift for the Respondent for 16 years. The evidence submitted in this matter 
gives a detailed explanation of the days and hours worked in 2012 by the Applicant and 
shows a regular pattern of work where the Applicant would have little or no opportunity to 
work for anyone other than the Respondent given the few days the Applicant was not driving 
for the Respondent.

[94] In the present matter this criterion supports the contention of the Applicant that he is
an employee of the Respondent.

Whether the worker has a separate place of work and or advertises his or her services to the 
world at large.

[95] The place of work is a taxi owned and operated by the Respondent and in the sense 
posed by this criterion the Applicant does not have a place of work separate from the place of 
work of the putative employer.

[96] The evidence of the Applicant was that he had his own customers and that he had a 
mobile phone number that he could be contacted on by persons who wished to have the 
Applicant drive them.37 The Applicant in his written submissions conceded that he had a 
business card.38

[97] The evidence and concession from the Applicant does not directly address the issue 
raised by this criterion.

[98] The notion of the Applicant having his own “customers” in his own business is simply 
not supported by the facts. I accept that the Applicant had persons who preferred to use the 
Applicant’s driving services rather than other taxi drivers and that such persons could contact 
the Applicant directly through his mobile number. I also accept that the Applicant has referred 
to such persons as his “customers”.

[99] However, the evidence as to fare sharing does not support a conclusion that these 
persons were the Applicant’s “customers”. The evidence is that the Applicant was only 
entitled to keep 48% of the fare paid by the Applicant’s “customers” and 52% of the fare of 








[2013] FWC 6715

28

the Applicant’s “customers” was retained by the Respondent. In this sense the customers are 
more the customers of the Respondent than of the Applicant.

[100] I also note that the concept of ownership of a customer is somewhat illusory. The 
uncontested evidence of the Applicant was that the Respondent would ring the Applicant to 
“pick up” the Respondent’s customers. In this sense the Respondent’s customers are also 
customers of the Applicant. As noted above, it did not matter whose customer was being 
driven by the Applicant, the Respondent kept 52% of the fare and the Applicant kept 48% of 
the fare.

[101] There is no evidence or even an assertion that the Applicant had any exclusive 
arrangement with his “customers” to provide them with taxi services. Nor is there any 
evidence that these “customers” would only use the Applicant to the exclusion of other taxi 
services to provide a taxi service.

[102] I note the concession made by the Applicant that he has a business card which 
provides the contact details of the Applicant. There was no evidence before the Commission 
concerning the distribution of this business card nor even the details of the business card. 
Having regard to the common purpose of business cards it is reasonable to conclude that the 
purpose of the Applicant having a business card was to advertise his occupation as a taxi 
driver and to solicit either new or repeat business from existing or prospective customers. But, 
as noted above, any custom acquired through the distribution of the Applicant’s business card 
gave a greater benefit to the Respondent than to the Applicant through the 52/48 fare split.

[103] In the present matter this criterion supports the contention of the Applicant that he is 
an employee of the Respondent.

Whether the worker provides and maintains significant tools or equipment. 

[104] What is agreed by the parties in this matter is that the Applicant only provided his 
labour and the Respondent supplied and maintained the vehicle.

[105] In the present matter this criterion supports the contention of the Applicant that he is
an employee of the Respondent.

Whether the work can be delegated or subcontracted. 

[106] The evidence of both the Applicant and the Respondent makes clear that each time the 
Applicant took custody of the Respondent’s taxi it was on the basis that the Applicant drove 
the taxi. The arrangement in place between the Applicant and the Respondent appears to have 
precluded the possibility that the Applicant could have delegated the driving of the taxi to 
another person or could have subcontracted the use of the taxi to another person.
The arrangement in place between the Applicant and the Respondent was clearly predicated 
upon the Applicant personally providing the service of driving the Respondent’s taxi whilst 
the taxi was in the temporary custody of the Applicant.

[107] In the present matter this criterion supports the contention of the Applicant that he is 
an employee of the Respondent.

Whether the putative employer has the right to suspend or dismiss the person engaged. 








[2013] FWC 6715

29

[108] The evidence of the Respondent makes very clear that the Respondent had the right to 
dismiss the Applicant from his work as a taxi driver of the Respondent’s taxi. The relationship 
between the Applicant and the Respondent ended at the initiative of the Respondent and was 
described by the Respondent as follows:

“On or about the 5th December 2012, I told the Applicant that he had breached the 
agreement and I was no longer prepared to hire the cab to him as he had breached the 
trust I had placed in him and despite making promises he had failed to make outstanding 
hire payments. He then returned the taxi keys.”39

[109] Whilst the Respondent describes the termination of the relationship in terms of hire of 
the cab the practical effect of the relationship existing between the Applicant and the 
Respondent was that the Respondent could on any day simply refuse to provide a taxi for the 
Applicant to drive and equally the Applicant could simply refuse to drive a taxi on any day. 
Importantly, where the Applicant did not intend to drive the taxi on any day the Applicant 
appeared to be under some requirement to advise the Respondent of this so that the 
Respondent could give to the taxi to another driver.

[110] In the present matter this criterion supports the contention of the Applicant that he is 
an employee of the Respondent.

Whether the putative employer presents the worker to the world at large as an emanation of 
the business. 

[111] In the present matter this criterion is not relevant. This is so because of the operation 
of the laws of the State of Victoria. An employer cannot present a taxi driver employee to the 
world at large as an emanation of the business of the employer through requiring the taxi 
driver employee to wear the livery of the employer.

[112] Regulation 31 of the Transport (Taxi-Cabs) Regulations 2005 provides as follows:

“31. Driver’s appearance

(1) While operating a taxi-cab, the driver of the taxi-cab must wear-
(a) if a uniform design has been approved under regulation 32 for the person 
accredited to provide taxi-cab network services with whom the operator of the taxi-cab 
has approved arrangements, a uniform which conforms to that design; or

(b) if paragraph (a) does not apply, a uniform approved by the licensing authority.

Penalty: 5 penalty units.

(2) While operating a taxi-cab, the driver of the taxi-cab must ensure that his or her 
appearance is neat and clean.

Penalty: 5 penalty units.”

[113] As Reg 31(1)(a) makes clear, every driver of a taxi must wear a uniform which relates 
to the taxi-cab network service rather than to the taxi operator. The practical outcome of this 








[2013] FWC 6715

30

is that in the present matter where the Respondent had an arrangement with a taxi-cab 
network service, as he was required to by S.133(4) of the Transport (Compliance and 
Miscellaneous) Act 1983, then any driver of the taxi, including the Respondent, was required 
to wear a uniform which identified the taxi-cab network service.

[114] Furthermore it was the responsibility of the driver to provide the required uniform, 
even if the driver was an employee of a taxi operator. Thus where a taxi driver was an 
employee of a taxi operator the taxi operator, as the employer, would not have had any 
obligation under clause 15.2(b) of the Passenger Vehicle Transportation Award 2010 to 
provide the uniform or reimburse the employee for the cost of the uniform as the requirement 
to wear a uniform was not a requirement of the employer but was a requirement arising under 
a State law.

[115] In the present matter this criterion is neutral as it neither supports nor detracts from the 
position adopted by either the Applicant or the Respondent.

Whether income tax is deducted from remuneration paid to the worker.

[116] The evidence of both the Applicant and the Respondent is that the Respondent never, 
in the 16 years of the relationship, deducted any income tax from the monies earnt by the 
Applicant. The Respondent paid gross amounts to the Applicant.

[117] The evidence of the Applicant is that when ABN’s were introduced in 1998 and the 
Respondent required the Applicant to provide the Respondent with an ABN that the Applicant 
obtained an ABN and gave it to the Respondent. The Applicant’s evidence was that he treats 
his tax obligations as arising out of having an ABN.

[118] The Respondent drew the Commissions attention to a publication of the Australian 
Tax Office40 which was downloaded from the ATO website and which emphasises the need 
for taxi drivers who are not employees to pay GST. Exhibit R2 is titled, “Taxi industry -
issues register” and contains the following:

“Registration for ABN, GST and fuel tax credits

Updated Issue ATO decision

22/03/00 Do taxi drivers have to 
register for GST?
Non-interpretative -
straight application of the 
law.

Yes. If you drive a taxi, then you must 
register for goods and services tax (GST). 
It does not matter how often you drive a 
taxi.
If the driver is an employee, then the 
driver must not register for GST. The 
driver is an employee when the driver is 
not entitled to keep any of the takings and 
is paid a set amount to drive the taxi. In 
these limited circumstances, the employer 
is considered to be the person providing 
taxi travel and must register for GST.








[2013] FWC 6715

31

01/07/08 Why do drivers have to 
register for the GST 
irrespective of turnover?
Non-interpretative -
straight application of the 
law.

For other businesses, the GST registration 
turnover threshold is $75,000. For taxi 
drivers, including chauffeur driven 
limousines and hire cars, there is no 
registration turnover threshold. This 
means that anyone who drives a taxi, 
chauffeur driven limousine or hire car, 
must register for GST, unless they are an 
employee for pay as you go withholding 
(PAYG withholding) purposes. The 
government chose to apply compulsory 
registration of taxi drivers for several 
reasons including:

 to avoid the confusion that would 
be created if some taxis had to 
charge GST and others did not

 avoiding the added problem that 
would arise if a passenger was 
using a taxi for a business trip 
(creditable acquisition). In this 
instance, the passenger would 
want to be able to claim an input 
tax credit for the GST included in 
the fare

 meter rates are set by each state 
authority and after 1 July 2000 all 
meters were adjusted to reflect the 
GST. If some drivers were 
registered and others were not, all 
would be collecting the higher 
rate. This would disadvantage 
drivers who had to be registered if 
the ordinary registration turnover 
threshold applied.

01/07/08 Do owners have to 
register?
Non-interpretative -
straight application of the 
law.

Owners who also drive some shifts are 
also required to register for GST 
regardless of their turnover. Owners who 
do not drive shifts and just lease out the 
license and cab are not supplying taxi 
travel and have the choice of whether or 
not to register if their turnover is under 
$75,000. Like all other businesses, 
owners must register if their turnover 
exceeds $75,000.

27/10/03 What forms have to be 
completed?
Non-interpretative -

Taxi drivers have to complete an
Australian business number (ABN)/GST 
registration form. New drivers who 








[2013] FWC 6715

32

straight application of the 
law.

commence after 1 July 2000 must register 
within 21 days of commencing a business 
as a taxi driver.
You also have to complete an activity 
statement for each quarterly or monthly 
tax period. A tax period is every three 
months for most drivers, but is every 
month for businesses with a turnover in 
excess of $20 million. Drivers that are 
eligible for quarterly tax periods can also 
elect to use monthly tax periods. The 
activity statement asks for information 
required to determine your PAYG and 
GST obligations.

27/10/03 When is a driver an 
employee or under a 
bailment arrangement?

Most drivers are under a bailment 
arrangement. This means that you make a 
payment of some kind that allows you to
use the taxi to drive. The payment could 
be in the form of lease payments or an 
amount that is paid in at the end of each 
shift. It does not matter whether the 
amount is a set amount or a percentage of 
the shift takings.
In unusual cases, a person may be an 
employee in the taxi industry. An 
employee works for the owner or 
leaseholder of a cab and is paid an hourly 
rate or weekly wage that is independent of 
the cab’s actual takings. Employees are 
subject to PAYG withholding on their 
earnings. That is, amounts of tax are 
withheld by their employer and sent to us. 
The amounts withheld will be credited 
against the employee’s income tax 
liability when they lodge their income tax 
return after the end of the financial year. 
Employees will not have to account for 
GST. Records of expenditure will still 
needed to be provided to your employer. 
The employer is considered to be the 
person providing taxi travel.

27/10/03 What is the definition of 
a limousine?
This issue is a public 
ruling for the purposes of 
section 105-60 of 
Schedule 1 of the TAA.

As with taxi drivers, the driver of a 
limousine involving the transportation of 
passengers for fares is required to register 
for GST.
The term ‘limousine’ is not defined in the 
GST Act and therefore takes its ordinary 








[2013] FWC 6715

33

meaning which would include large 
luxurious motor vehicles.

17/12/03 What happens if I do 
not register for GST?
Non-interpretative -
straight application of the 
law.

If you are a taxi driver, you are required 
to register for GST. If you do not, the 
Commissioner can register you and 
backdate your registration. You can also 
be subject to an administrative penalty for 
Failure to Register. The Commissioner is 
also able to make an assessment of your 
net GST amount for a tax period.

01/07/08 If I am a taxi driver and 
I also have another 
business, do I have to 
register both businesses?
Non-interpretative -
straight application of the 
law.

In this situation, you as the entity, have 
two enterprises. You will only require one 
ABN and will only register once for GST. 
You will account for GST on both 
businesses in your activity statement. It 
does not matter if the other business has a 
turnover of less than $75,000 because, as 
a taxi driver, you are required to register 
irrespective of turnover. Accordingly, all 
your enterprises are included in the 
registration.
If enterprises are run by separate entities, 
each entity will be entitled to register 
independently. An example of this could 
occur if you as an entity carry on an 
enterprise of taxi travel and another 
business is conducted by a registered 
company. In this situation, you as an 
entity still must register your taxi driving 
enterprise but the company can choose 
not to register if its turnover is less than 
$75,000. If you are not registered, you do 
not remit GST to us, but cannot claim 
input tax credits for the GST included in 
the cost of your business acquisitions.

01/07/06 Do bailors who do not 
drive have to register for 
GST?
Non-interpretative -
straight application of the 
law.

A bailor who does not drive is not 
providing ‘taxi travel’ and is not required 
to register for GST if his or her turnover 
is less than $75,000. If you are not 
required to register for GST, you should 
still consider applying for an ABN. If you 
do not have an ABN, your drivers will be 
required to withhold 46.5% of their pay-
ins under the ‘No ABN Withholding’
rules and pay those amounts to us. You 
may register for GST even if you are not 








[2013] FWC 6715

34

required to. Registering for GST is the 
only way you can claim the input tax 
credits you accrue during the course of 
your enterprise.

04/05/09 Should I register for fuel 
tax credits?
Non-interpretative -
straight application of the 
law.

No. If you drive a light vehicle which 
travels on a public road, such as a taxi, car 
or small van you are not entitled to claim 
fuel tax credits.

04/05/09 What should I do if I 
have registered for fuel 
tax credits?
Non-interpretative -
straight application of the 
law.

You can cancel your registration by 
either:

accessing the Business Portal (if you are 
registered to deal with us electronically)

completing the form Application to cancel 
registration (NAT 2955)

phoning 13 28 66 between 8.00am and 
6.00pm, Monday to Friday.

[119] It appears that both the Respondent and the Applicant41 are acting in accord with the 
ATO decisions as identified in this ATO document.

[120] The real difficulty posed by Exhibit R2 is that the “ATO decision” that:

“The driver is an employee when the driver is not entitled to keep any of the takings 
and is paid a set amount to drive the taxi”, and that,
“In unusual cases, a person may be an employee in the taxi industry. An employee 
works for the owner or leaseholder of a cab and is paid an hourly rate or weekly wage 
that is independent of the cab’s actual takings”

sets a test for determining the existence of an employer/employee relationship which is very 
much at odds with the case law.

[121] Having regard to the ATO information in Exhibit R2 it is not surprising that the 
Respondent would consider the Applicant not to be an employee given that from the outset of 
their relationship the Applicant and the Respondent agreed to a 48/52 split of fares. As the 
evidence of both the Applicant and the Respondent makes very clear, the Applicant was never 
“paid a set amount to drive the taxi” and was never “paid an hourly rate or weekly wage that 
is independent of the cab’s actual takings”.

[122] The existence of Exhibit R2 does not shift the weight attached to this criterion in 
favour of the Respondent. Rather the very existence of Exhibit R2 suggests that both the 
Respondent and the Applicant have arranged their obligations in relation to PAYG and GST 
taxes on the basis of a presumption as to the nature of their relationship which presumption is 
not based upon a proper application of the case law as applied to the facts of the relationship.








[2013] FWC 6715

35

[123] It is important in the present matter that the “Tax Invoice/Statement” which identified 
the value of the services provided by the Applicant to the Respondent and the amount of GST 
included in the amount invoiced were all prepared by the Respondent and, very importantly, 
were only prepared by the Respondent after the termination of the relationship with the 
Applicant.42 The Applicant never prepared or issued an Invoice to the Respondent. Each of 
these “Tax Invoice/Statements” mis-identifies the supplier of the services and the recipient of 
the services. The supplier of the services is identified as Jim Voros and the recipient of the 
services is identified as Alan Dick. The documents, on their face, show that the Respondent
has supplied services for which the Respondent is to pay GST!

It is also important in the present matter that the Applicant never sought to acquire an ABN 
for the purpose of conducting his own business. Rather the Applicant obtained an ABN 
because the Respondent requested that the Applicant do so and because “every taxi driver in 
Australia was made to get an ABN”.43 The Applicant’s assertion that “every taxi driver in 
Australia was made to get an ABN” is consistent with a reading of Exhibit R2.

[124] In the present matter this criterion is neutral in relation to determination of the real 
relationship existing between the Applicant and the Respondent.

Whether the worker is remunerated by periodic wage or salary or by reference to 
completion of tasks. 

[125] The very specific manner of payment for work performed by the Applicant does not fit 
neatly within the concepts raised by this criterion.

[126] Whilst the 52/48 split of fares between the Applicant and the Respondent is not usual 
in the taxi industry, a 50/50 split of fares is more common and as the evidence in this matter 
discloses was applied by the Respondent to other taxi drivers he engaged. This method of 
payment is neither a wage nor salary nor is it a payment which is calculated by reference to 
completion of tasks. Whilst the amount of payment made to the Applicant is based upon a 
percentage of the fares received the payment is made to cover the whole period that the 
Applicant had custody of the taxi.

[127] In the present matter this criterion supports the contention of the Respondent that the 
Applicant was not an employee.

Whether the worker is provided with paid holidays or sick leave.

[128] The evidence of both the Applicant and the Respondent is clear that the Respondent 
never in all of the 16 years of the relationship provided the Applicant with any form of paid 
leave. The evidence also makes clear that the first time the Applicant sought paid leave 
entitlements was after the relationship had ended.

[129] In the present matter this criterion supports the contention of the Respondent that the 
Applicant was not an employee.

Whether the work involves a profession, trade or distinct calling on the part of the person 
engaged. 








[2013] FWC 6715

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[130] The Applicant was engaged in a very distinct calling, namely, taxi driving. However,
whilst taxi driving appears to have become a distinct calling this appears to have been a 
reflection of the continuing debate about whether a taxi driver is an employee or not. At its 
heart taxi driving is no more than vehicle driving and requires no special skills that are unique 
to the concept of taxi driving. The knowledge required of a taxi driver is similar to that 
required by courier drivers and delivery drivers.

[131] In the present matter this criterion is neutral as it neither supports nor detracts from the 
position adopted by either the Applicant or the Respondent.

Whether the worker creates goodwill or saleable assets in the course of his or her work. 

[132] The very nature of the work of the Applicant as a taxi driver, given that the Applicant 
is driving the Respondent’s vehicle, is required to split the fares with the Respondent and is 
required to wear a uniform which does not identify the Applicant, suggests very strongly that 
there is no goodwill that is created or is attached to the work of the Applicant. It is also clear 
that there are no saleable assets that the Applicant has acquired through his work as a taxi 
driver for the Respondent. Even the Applicant’s list of his “customers” does not appear to be 
something that has either goodwill or saleable value. The relationship between the Applicant 
and his “customers” does not appear to be a business relationship but has the appearance of 
being a personal relationship.

[133] In the present matter this criterion supports the contention of the Applicant that he is
an employee of the Respondent.

Whether the worker spends a significant portion of his remuneration on business expenses.

[134] The evidence in this matter discloses that the worker spends little if anything on 
business expenses. The only identified possible business expense of the Applicant was in 
relation to business cards although no amount was identified. Further it is clear from the 
operation of the Transport (Taxi-Cabs) Regulations 2005 that the Applicant is required to 
spend part of his remuneration on a uniform. Again the amount spent is unknown but would 
appear to be minimal.

[135] In the present matter this criterion supports the contention of the Applicant that he is
an employee of the Respondent.

Other Criteria?

[136] The observation of the Full Bench in French Accent of the summary of the general law 
position, that “(f)eatures of the relationship in a particular case which do not appear in this list 
may nevertheless be relevant to a determination of the ultimate question”44 is directly relevant 
in the present matter. The following features of the relationship between the Applicant and the 
Respondent are also relevant to determination of the ultimate question.

The intentions of the Applicant and the Respondent.

[137] The issue of the intentions of the Applicant and Respondent is important.








[2013] FWC 6715

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[138] In the Full Court of the Federal Court decision in De Luxe Red & Yellow Cabs the 
Court came to a concluded view as to the intentions of taxi drivers and taxi operators in NSW 
and this concluded view was then applied to all taxi drivers and operators in all States. The 
Full Court said:

“it is plain that the parties in the present relationship believed that they were not
creating an employment relationship. On the contrary, it must be accepted from the 
regulatory framework governing their relationship created by Chapter 6 of the IR Act
and the determinations made under it, that consistently with the settled position at 
common law, the parties themselves must be taken to have determined that a 
relationship of bailment, to the exclusion of any other (including that of employment), 
should govern the situation.”

[139] The evidence of the Applicant is that he was offered work by the Respondent and that 
he accepted the offer to drive for the Respondent45 and that in the 16 years of the relationship 
between the Applicant and the Respondent that the Applicant worked for the Respondent46

[140] The evidence of the Respondent was that he would never engage a driver as an 
employee.47

[141] The Applicant was never offered a document in writing to sign which identified the 
relationship existing between himself and the Respondent. The Applicant was neither offered 
a bailment agreement nor a contract of employment.48 The establishment of a relationship 
between the Applicant and the Respondent was done orally.

[142] It is clear from the evidence in this matter that the Applicant never intended to create a 
bailor/bailee relationship and that the Respondent never intended to create an 
employer/employee relationship.

[143] However the evidence is clear that both the Applicant and the Respondent intended to 
create a relationship in which the Applicant drove a taxi operated by the Respondent and in 
return was to be paid 48% of the fares taken. It is this intended relationship which continued 
for 16 years until it was terminated by the Respondent in December 2012.

[144] The intentions of the Applicant appear to have real significance in determining the 
nature of the relationship that existed. Whilst the Applicant’s intentions cannot, of 
themselves, determine the question: Is the Applicant an employee of the Respondent? they do 
assist in answering the question: Is the Applicant a bailee of the Respondent’s taxi? 

[145] As Palmer notes:

“a bailment cannot arise without a certain mental element on the part of the putative 
bailee. .....bailment comes into being whenever one person is knowingly and willingly 
in possession of goods that belong to another.”49

[146] Palmer also notes that:

“In order to come into possession of a chattel it may therefore be necessary to prove 
not only a delivery of, or some permitted access to, the chattel, but that this has 








[2013] FWC 6715

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resulted in “a high degree of physical control” over the chattel in question, to the 
exclusion (at least) of the bailor.”50

[147] In W D and H O Wills (Australia) Limited v State Rail Authority of New South Wales; 
State Rail Authority of New South Wales v TNT Management Pty Limited [1998] NSWSC 81, 
Mason P (with whom Priestly JA and Beazley JA agreed) said:

“It is one thing to conclude that it is not a prerequisite of a bailment that the bailor 
should have consented to the bailee’s possession of the goods. It is something entirely 
different to hold that a bailment or sub-bailment can come about in the absence of 
possession, consent or knowledge as regards the alleged bailee or sub-bailee.” 51

[148] In the present matter the Applicant’s evidence is to the effect that he never intended to 
take possession of the Respondent’s taxi, he merely drove it for the Respondent. The evidence 
in this matter as to the Applicant’s intention would deny the existence of a bailor/bailee 
relationship due to the lack of the requisite mental element on the part of the putative bailee.

[149] In the present matter the most that can be said of this criterion is that, on its own, it is 
neutral in relation to answering the ultimate question.

The Remuneration earnt by the Applicant.

[150] The ultimate question that must be answered is “whether the worker is the servant of 
another in that other’s business, or whether the worker carries on a trade or business of his or 
her own behalf: that is, whether, viewed as a practical matter, the putative worker could be 
said to be conducting a business of his or her own of which the work in question forms part?”

[151] The evidence in the present matter as to the Applicant’s remuneration for 2012 is 
clearly identified in Exhibit R1 which comprises the daily trip sheets filled in by the 
Applicant each day he drove the Respondent’s taxi. This evidence discloses the following:

 In the period 1 January 2012 to 5 December 2012, which is 339 days, the Applicant 
worked 335 days

 The total hours worked by the Applicant over those 335 days was 3278 hours
 The daily average hours worked was 9.7
 The total fares recorded for the 339 days was $75,051.40
 The Applicant’s share of the total fares was 48% equalling $35,617.15
 The hourly rate earnt by the Applicant was $10.86 ($35,617.15 divided by 3278)

[152] Out of the money earnt by the Applicant he was expected to make provision for his 
own superannuation, annual leave and personal/carers leave.

[153] If the Applicant was paid as an employee under the terms of the Passenger Vehicle 
Transportation Award 2010 for the same work the Applicant would have earnt at least 
$66,576.01.

[154] This amount has been calculated on the following basis.

 The ordinary hourly rate of a taxi driver under the award is $17.64








[2013] FWC 6715

39

 The overtime rate is $26.46 where overtime is paid at time and a half the ordinary 
hourly rate and $35.28 where overtime is paid at double the ordinary hourly rate.

 In the period between 1 January 2012 and 5 December 2012 which comprises 339 
days the ordinary hours of work could be worked on no more than 243 days in 
accordance with clause 21.1 of the award.

 On each of the 243 days in which ordinary hours were worked only 7.6 hours would 
be paid at the ordinary time rate. If one hour was allowed for an unpaid meal break 
(clause 22.1 of the award) then 1.1 hours per day would be paid at the overtime rate.

 The remaining 96 days would have to be paid at the overtime rate.
 If one hour was allowed for an unpaid meal break (clause 22.1 of the award) on each 

overtime day then the 8.7 hours worked would be paid for on the basis of time and 
half for the first three hours and double time for the remaining 5.7 hours.

[155] The above calculations ignore any additional penalties that apply for 

 early or late work (clause 23.6 of the award)
 working ordinary hours on weekends (clause 23.2 of the award)
 working on public holidays (clause 23.4 of the award), and,
 working more than 10 hours on any day (clause 21.3 of the award)

[156] The amount of $66,576.01 is made up of the following:

 1846.8 ordinary hours (243 days x 7.6 hours) x $17.64 = $32,577.55
 555.3 hours at time and a half (243 days x 1.1 hours and 96 days x 3 hours) x $26.46 = 

$14,693.24
 547.2 hours at double time (96 days x 5.7 hours) x $35.28 = $19,305.22

[157] In addition to the $66,576.01 the Applicant would also have received the benefit of a 
superannuation contribution by his employer of $2931.98 (9% of $32,577.55) as well as an 
entitlement to paid annual and personal carers leave.

[158] Additionally if the Applicant had been treated as an employee the Applicant would for 
his 16 years have been entitled to long service leave, which as at the date of the termination of 
the relationship would have been at least 13 weeks pay or about $8714.16.

[159] Setting aside the issue of taxation, the comparison that emerges from the above 
calculations is that if the Applicant was running his own business then in 2012 he earnt a 
gross amount of $35,617.15 out of which he would have had to make his own provision for 
paid leave and superannuation.

[160] If however the Applicant was an employee he should have earned a gross amount of 
$66,576.01, and in addition would have had $2931.98 paid into his superannuation account 
and would have been entitled to paid annual leave and personal carers leave.

[161] The evidence of the Respondent was that the arrangements he had in place with his 
drivers to share the fares taken was to create an incentive to work harder:








[2013] FWC 6715

40

“Well, driving taxis if you pay the wages there's no incentive to push along and you 
know have a reasonable taking, very, very few would do that.  It is like the harder you 
work, the more you earn.”52

[162] There is nothing in the material before me from the Respondent which explains how 
the Applicant could have worked harder and had the real potential to gain an additional 
$33,890 (the amount needed to equal the remuneration payable to an employee for the same 
work).

[163] I note in the context of considering the remuneration received by the Applicant that the 
Applicant had no capacity to increase the rate of fares charged to users of the taxi.53

[164] Viewed as a practical matter the above analysis of remuneration does not support a 
contention that the Applicant was conducting a business of his own. Whilst it is not 
uncommon for persons who conduct their own business to accept remuneration below the 
minimum levels set by the modern awards and the NES there are generally some obvious 
commercial reasons for doing so such as in the start up phase of a new business or to protect 
an existing business from failing. In the present matter there is no evidence of any reason why 
the Applicant would conduct a business on the basis of accepting remuneration so 
significantly below the remuneration that would be paid to an employee doing the same work 
with the same pattern of hours of work. Viewed as a practical matter it appears completely
implausible that the Applicant was conducting his own business on the basis of intending to 
receive remuneration so significantly inferior to that which an employee would have been 
entitled for the same work.

[165] In the present matter this criterion supports the contention of the Applicant that he is
an employee of the Respondent.

Conclusion

[166] The analysis of each criterion considered above shows that, when considered 
separately, some criteria support the Applicant’s contention that he was an employee of the 
Respondent and some of the criteria support the contention of the Respondent that the 
Applicant was not the Respondent’s employee. 

[167] The analysis does no more than identify the several details which need to be 
considered. The consideration of this accumulation detailed is to be approached in the manner 
described by the Full Bench in French Accent:

“The object of the exercise is to paint a picture of the relationship 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. The 
ultimate question remains as stated: Whether the worker is the servant of another in 
that other’s business, or whether the worker carries on a trade or business of his or her 
own behalf: that is, whether, viewed as a practical matter, the putative worker could be 








[2013] FWC 6715

41

said to be conducting a business of his or her own of which the work in question forms 
part?”54

[168] Having taken the necessary step back and having taken a good look at the big picture 
painted from the accumulation of detail a clear and unambiguous picture is staring out from 
the canvas. The picture needs to be unambiguous because the Commission must make a 
finding as to a jurisdictional fact. The ultimate question cannot be decided upon the basis that 
it is “reasonably open” to the Commission to make a particular finding but has to be decided 
upon the basis that the jurisdictional fact exists.55

[169] The Applicant was clearly and unambiguously not carrying on a business of his own 
but is clearly and unambiguously providing his personal labour to the Respondent for the 
benefit of the Respondent’s business. The Applicant was an employee of the Respondent.

Extension of Time Application

[170] The Applicant was dismissed on 5 December 2012 and the Applicant had 14 days after 
that date to file an application for an unfair dismissal remedy. The application was filed on 3 
January 2013. The application was filed 15 days out of time. The Applicant seeks that the 
Commission extend the time required to file an application until and including 3 January 
2013.

[171] Both the Applicant and the Respondent gave evidence in relation to this matter. In
addition as part of the Applicant’s case concerned representative error the Applicant’s 
solicitor Mr Seoud gave evidence as to his conduct and advice to the Applicant.

[172] The relevant provisions of the Fair Work Act 2009 is s.394(2) and (3) which was, at 
the date of dismissal, as follows:

“(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person 
under subsection (1) if the FWC is satisfied that there are exceptional circumstances, 
taking into account:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken 
effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”

[173] Both the Applicant and the Respondent took me to a range of authorities relevant to 
determination of this aspect of the matter.

[174] The FW Act is predicated upon an applicant for an unfair dismissal remedy complying 
with the time limits specified in s.394(2)(a). The presence of s.394(2)(b) and (3) are not 
intended create a simple alternative time frame for making applications. The very language of 








[2013] FWC 6715

42

s.394(3) makes clear that the Commission has to be positively satisfied that there are 
exceptional circumstances before an extension of time can be granted.

[175] In Nulty v Blue Star Group Pty Ltd the Full Bench said:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning 
and requires consideration of all the circumstances. To be exceptional, circumstances 
must be out of the ordinary course, or unusual, or special, or uncommon but need not 
be unique, or unprecedented, or very rare. Circumstances will not be exceptional if 
they are regularly, or routinely, or normally encountered. Exceptional circumstances 
can include a single exceptional matter, a combination of exceptional factors or a 
combination of ordinary factors which, although individually of no particular 
significance, when taken together are seen as exceptional. It is not correct to construe 
“exceptional circumstances” as being only some unexpected occurrence, although 
frequently it will be. Nor is it correct to construe the plural “circumstances” as if it 
were only a singular occurrence, even though it can be a one off situation. The 
ordinary and natural meaning of “exceptional circumstances” includes a combination 
of factors which, when viewed together, may reasonably be seen as producing a 
situation which is out of the ordinary course, unusual, special or uncommon.”56

[176] Where representative error is relied upon by an applicant seeking an extension of time 
the authorities make clear that representative error does not give rise to an automatic 
entitlement to an extension of time but may (and it is put no higher than that) satisfy the 
requirement of being an exceptional circumstance necessary to justify an extension of time.

[177] In Robinson v Interstate Transport Pty Ltd the Full Bench said:

“[24] The approach to representative error as an acceptable explanation for late 
lodgement has been considered by Full Benches of Fair Work Australia and its 
predecessors in the context of various Acts. The approach followed was first set out by 
a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend 
time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was 
followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR 
Act. More recently, a majority of the Full Bench in McConnell’s Case found that the 
approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We 
too think that the approach in Clark’s Case provides appropriate guidance for 
consideration of representative error in the context of the exercise of the discretion 
within s.366(2) of the Act. We think that representative error, in circumstances where 
the applicant was blameless, would constitute exceptional circumstances under 
s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) 
of the Act. 

[25] The approach in Clark’s Case was summarised in Davidson’s Case as follows: 

“In Clark the Commission decided that the following general propositions 
should be taken into account in determining whether or not representative error 
constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may
be a sufficient reason to extend the time within which an application for 
relief is to be lodged.








[2013] FWC 6715

43

(ii) A distinction should be drawn between delay properly apportioned 
to an applicant’s representative where the applicant is blameless and 
delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding 
whether representative error provides an acceptable explanation for the 
delay in filing the application. For example it would generally not be 
unfair to refuse to accept an application which is some months out of 
time in circumstances where the applicant left the matter in the hands of 
their representative and took no steps to inquire as to the status of their 
claim. A different situation exists where an applicant gives clear 
instructions to their representative to lodge an application and the 
representative fails to carryout those instructions, through no fault of 
the applicant and despite the applicant’s efforts to ensure that the claim 
is lodged.
(iv) Error by an applicant’s representatives is only one of a number of 
factors to be considered in deciding whether or not an out of time 
application should be accepted.”57

[178] The Applicant contended that there were two reasons for the delay in filing the 
application within the prescribed time.

“First: personal and family reasons occasioned by the requirement to vacate the 
family home 4 days before Christmas.

On 29 November 2012, shortly prior to being dismissed from his job on 5 December 
2012, the Applicant received a notice to vacate his residence by 21 December 2012.

The personal upheaval caused to the Applicant and his family by these events pre-
occupied him in the immediate weeks after being dismissed from his job. The focus of 
his attention was to protect his family and his home before turning his attention to the 
issue of his dismissal.

The Applicant rented his home from the Respondent and/or his wife since 2002 and in 
the months preceding the dismissal, a dispute arose between the parties in respect of 
the rental property. The Respondent and/ or his wife claimed that there were 
outstanding monies owed by the Applicant for rent of the property. The Applicant 
does not dispute this.

However, the Applicant raised concerns with the Respondent about the health and 
safety of his family due to the poor state of the property and for these reasons did not 
pay certain money owing for the house rental.

The dispute culminated in the notice to vacate served on the Applicant.

In response to the notice to vacate, on 4 December 2012, the Applicant wrote to the 
Respondent advising him of the repairs required of the house and claiming certain 
monies which he said were owing in respect of his work as taxi driver for the 
Respondent.

The following day, on 5 December 2013, the Applicant was dismissed from his job.








[2013] FWC 6715

44

While this dispute is not directly relevant to the delay, it provides a context to the 
dismissal on 5 December 2012.

Second: representative error.

On 9 December 2012, the Applicant attended the office of Mr Seoud, Solicitor and 
sought legal advice in respect of both the notice to vacate the property and the 
dismissal from his job.

While advice and assistance was given in respect of both issues, the focus of the 
assistance concerned protecting the Applicant from being evicted in the first instance.

Significantly, Mr Seoud failed to inform the Applicant that there was a 14- day time 
limit in respect of an unfair dismissal application.

In the event, the Applicant made the unfair dismissal application himself on 20 
December 2012, which he says he sent by post on that day. Had he been aware of the 
time limitation, it is submitted that he would have prioritised this matter more than he 
did.

That the Commission did not receive the application until 3 January 2013 may in part 
also be explained by the intervening Christmas break.

In circumstances where the solicitor failed to advise in respect of time limits, it is 
submitted that this error should not be visited upon the Applicant.”

[179] The Respondent contended that:

“The reasons for failure to file the application appear to be based on a dispute between 
the Applicant and the Respondent's wife over the continued occupation of her house at 
Reservoir. The Applicant's first reference to money was a demand for $8,524.00 on 4 
December. This was for expenses that were consistent with a contract of hire. 
Complaints about the rate of percentage, and time when he was not able to use the 
taxi. He was seeking a set off. The Applicant was in possession of legal advice on or 
before 12 December 2012, when a letter of demand was sent from Seoud lawyers to 
Glennister solicitors. The solicitors were threatening a claim to Work Fair for unlawful 
dismissal.

There is no explanation for the delay in lodging the application and it is submitted that 
as in this case, the time should not be extended. The Applicant had made threats of 
issuing an application on 12 December and no explanation has been proffered why 
that did not occur.”

[180] The evidence of both the Applicant and the Respondent identify that there had been a 
dispute about unpaid rent on the house that the Applicant was renting from the Respondent 
and/or his wife. This dispute had been in existence for some time. 

[181] On 29 November 2012 solicitors for the landlord (the Respondent and/or his wife) 
identified that the Applicant was in arrears for the rent of the house to the sum of $5,933.00. 








[2013] FWC 6715

45

Given that the rental was $250 per week then the Applicant was in arrears for 23.732 weeks 
rent.

[182] The letter of 29 November required that the Applicant vacate the house by 21 
December 2012.

[183] On 4 December 2012 the Applicant responded to this letter by making a claim on the 
Respondent and his wife for monies the Applicant claimed were owed to him over the 16 
years he had been driving the Respondent’s taxi. The Applicant also wrote to the 
Respondent’s solicitor attaching a copy of the claim made on the Respondent and his wife as 
well as listing a number of significant defects with the house and alleged that the Applicant’s 
daughter had suffered significant health issues as a direct result of these defects.

[184] The Respondent dismissed the Applicant on 5 December 2012.

[185] It was the Applicant’s daughter (who was in Year 10 at the time but studying Year 11 
Legal Studies) who suggested to her father that he may have a right to an unfair dismissal 
remedy.58

[186] The Applicant first sought legal advice in relation to the eviction notice and the 
dismissal when he attended the office of Mr Seoud on 9 December 2012.

[187] The evidence of Mr Seoud is clear.

 Mr Seoud does not practice in the field of employment law or industrials relations 
law.59

 Mr Seoud was a practitioner in the field of commercial litigation, commercial work 
and property work.60

 Mr Seoud did not know that there were time limits for making an unfair dismissal 
application.61

 Mr Seoud did advise the Applicant to seek advice from Fair Work Australia but did 
not set any time limits for that to occur. 

 Mr Seoud accepted that there was real urgency in relation to the Applicant’s 
matters concerning the notice to vacate the house but not the dismissal.62

 Mr Seoud was suffering an illness at this time and was constantly out of the office 
between 12 December 2012 and 22 December 2012.

[188] I accept that Mr Seoud’s evidence was open and honest and was given even though it 
clearly goes against him in relation to his professional conduct.

[189] It is clear from the language of the letter sent by Mr Seoud to the Respondent’s 
solicitors on 12 December 2012 that Mr Seoud’s knowledge of employment and industrial 
relations law is minimal. The following sentence of the letter is illustrative of this.








[2013] FWC 6715

46

“Our client also was terminated without cause, and this matter will be referred to fair 
work Australia for wrongful dismissal together with a request for all annual leave, 
long service leave and overtime payments since the commencement of his 
employment sixteen (16) years ago.”

Wrongful dismissal is not a term used in the FW Act. The FW Act and its predecessors have 
clearly provided for a limit of 6 years in which to claim underpayments.

[190] It is clear from the evidence of the Applicant that Mr Seoud played no role in the 
Applicant eventually filling in an application for an unfair dismissal remedy and filing it with 
the Commission.

[191] The Applicant’s daughter filled in the application and the Applicant signed it on 20 
December 2012.63

[192] The application was then posted by the Applicant’s wife before Christmas.64

[193] The application was in the Australia Post system on 28 December 2012 when the 
envelope was date stamped within Australia Post.65

[194] The application was received at Fair Work Australia on 3 January 2013.

[195] Section 394(3) of the FW Act requires that I take into account each of the criteria 
listed in that sub section before I can form a view in relation to the existence or the absence of 
exceptional circumstances.

Reason for the delay

[196] I accept that there were two distinct reasons for the delay in filing the application for 
an unfair dismissal remedy. Firstly, the priority attached by the Applicant to addressing the 
demand that he vacate his residence by 21 December 2012 is reasonable and expected. 
Seldom would a person be in the position of having two serious matters to contend with 
simultaneously, namely fighting an eviction order and pursuing an unfair dismissal remedy, 
especially where the landlord and the employer are related. Secondly, the failure of the 
Applicant’s legal representative to know the time limits attached to making an application for 
an unfair dismissal remedy and the Applicant’s reliance upon his legal representative which in 
the circumstances of the present matter was reasonable.

Whether the Applicant first became aware of the dismissal after it had taken effect.

[197] The Applicant acknowledges that he was told of the dismissal by text on the day it 
occurred. 

Any action taken by the Applicant to dispute the dismissal.

[198] The evidence is clear that within 4 days of the dismissal having taken effect the 
Applicant attended his legal representative to pursue action to dispute the dismissal. 
Specifically the Applicant relied upon his legal representative to either pursue the requisite 
action or to give appropriate advice to enable the Applicant to pursue action to dispute the 
dismissal.








[2013] FWC 6715

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Prejudice to the Respondent (including prejudice caused by the delay)

[199] The Respondent contends that he will suffer prejudice by any grant of an extension of 
time. The contention was put in the following terms:

“In this instance, the Respondent has deposed to having after a period of a week 
manage to get a new agreement for hire of the taxi. It is inherent from that statement 
that he has replaced the Applicant and there would be significant prejudice to the 
employer were he to have to re-employ the Applicant, if it were found that Mr Dick 
was an employee and that he had been wrongfully dismissed.”

[200] The prejudice identified is no more and no less than the prejudice that the Respondent 
would face if the application had been filed in time. There is no suggestion of prejudice which 
is directly attributable to a delay of 15 days in the filing of the application.

The merits of the application

[201] Normally in a matter in which the Commission is only dealing with preliminary 
jurisdictional issues there is little evidence that goes to the merits of the application. Whilst 
this criterion requires that the Commission takes into account the merits of the application it 
does so by considering what is before it.

[202] As a Full Bench noted in Kyvelos v Champion Socks P/L66: “Evidence is rarely called 
on the merits and there are sound reasons why the Commission should not embark on a 
detailed consideration of the substantive case in an application” for an extension of time for 
the lodgement of the application.

[203] In the present matter the Respondent has put before the Commission an amount of 
material which is directly related to the merits of the case. The document titled “Summary of 
Alan Dick Takings” was presented to the Commission by the Respondent but remains 
untested as to its veracity. I also note that neither the Applicant nor the Respondent took me to 
this material in relation to the Respondent’s claim that the Applicant had withheld nearly 
$2500 from takings over a number of years.

[204] In the circumstances of the present matter this criterion is neutral as between the 
Applicant and the Respondent. 

Fairness as between the Applicant and other persons in a similar position

[205] This criterion requires that I consider the fairness in either granting or refusing the 
Applicant’s request for an extension of time on the basis of the fairness of granting or refusing 
an extension of time to another person who was in the same position as the Applicant. In the 
unique circumstances of this matter it is hard to imagine that there is ever likely to be an 
employee who is both an employee and a tenant of his employer (or a tenant of his employer’s 
wife) and where the employee is dismissed within a period of notice to vacate the house being 
rented and where the employee’s solicitor is ignorant of the time limits in the FW Act and 
through such ignorance the employee fails to file his application on time. In the context of 
such unique circumstances I am of the view that what would be fair to the Applicant would be 
fair for other employees who found themselves in the same unique position.








[2013] FWC 6715

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Conclusion

[206] I have considered each of the factors specified in s. 394(3) and I am satisfied that in 
the present matter there were clearly a combination of factors which, when viewed together, 
may reasonably be seen as producing a situation which is out of the ordinary course, unusual, 
special or uncommon. I am satisfied there are exceptional circumstances in the present matter 
and that I should exercise my discretion to grant an extension of time in which the Applicant 
can file an application for an unfair dismissal remedy until and including 3 January 2013.

Disposition of the Matter

[207] Having decided that the Applicant is an employee and that an extension of time in 
which to make the application has been granted, I will refer the file in this matter to the Panel 
Head for allocation to a Member to deal with the merits of the application.

COMMISSIONER

Appearances:

Ms N Blok of Counsel for the Applicant

Mr M Simon of Counsel for the Respondent

Hearing details:

2013.

Melbourne:

May 31

Printed by authority of the Commonwealth Government Printer

Price code G, PR541468


OF FAIR WORK . ... AUSTRAI LY THE SEAL




 



[2013] FWC 6715

49

                                               
1 Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54 at [46]
2 Exhibit R1.
3 Transcript PN113
4 The Applicant wrote to the Respondent on 4 December 2012 claiming an amount of $1000 for unpaid rebate of rental.
5 De Luxe Red & Yellow Cabs Co-Operative (Trading) Society Ltd & Ors v Commissioner of Taxation [1997] FCA 840.
6 Ibid.
7 Ibid.
8 Ibid.
9 Commissioner of Taxation of the Commonwealth of Australia v De Luxe Red & Yellow Cabs Co-Operative (Trading) 

Society Ltd & Ors [1998] FCA 361.
10 Ibid.
11 Ibid.
12 Emjay Motors Pty Limited v Armstrong , unreported, Supreme Court of Victoria, 24 August 1995.
13 Ibid 19-20.
14 Ibid 43.
15 Dillon v Grange [1941] HCA 5; (1941) 64 CLR 253.
16 Emjay Motors Pty Limited v Armstrong, unreported, Supreme Court of Victoria, 24 August 1995 at pp22-23.
17 MA000063.
18 [2009] AIRCFB 826.
19 Northern District Radio Taxicab Co-operative Ltd v Commissioner of Stamp Duties [1975] 1 NSWLR 346.
20 NSW Industrial Gazette Vol 168 at p. 33, Jan-Mar 1968
21 McDougal v Castlemaine Taxis Pty Ltd, PR921199.
22 Palmer on Bailment, 3rd edition, 2009 1-001 and 1-002.
23 Ibid at 1-003 - 1-012.
24 Ibid 7-001.
25 Ibid 3-083.
26 Ibid 3-083.
27 Commissioner of Taxation of the Commonwealth of Australia v De Luxe Red & Yellow Cabs Co-Operative (Trading) 

Society Ltd & Ors [1998] FCA 361
28 Forstaff v The Chief Commissioner of State Revenue [2004] NSWSC 573.
29 Jiang Shen Cai trading as French Accent v Do Rozario [2011] FWAFB 8307.
30 Abdalla v Viewdaze P/L, PR927971.
31 Sammartino v Commissioner Foggo [1999] FCA 1231,[8].
32 Exhibit R3, Witness Statement of James Voros, [3] and [4].
33 Transcript PN14.5
34 Transcript PN612.
35 Ibid PN598.
36 Ibid PN372.
37 Transcript PN141-150.
38 Ibid PN756.
39 Exhibit R3 [19].
40 Exhibit R2.
41 Transcript PN293-306.
42 The Tax Invoice/Statements for the period from January 2007 to September 2012 were put before the Commission but 

were not marked as an exhibit.
43 Transcript PN293.
44 [2011] FWAFB 8307 [4].






http://www.airc.gov.au/alldocuments/PR927971.htm
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281941%29%2064%20CLR%20253
http://www.austlii.edu.au/au/cases/cth/HCA/1941/5.html


[2013] FWC 6715

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45 Transcript PN118.
46 Ibid PN123-124, PN130, PN136, PN350, PN353.
47 Ibid PN519-520
48 Ibid PN91, PN240, PN598
49 Palmer on Bailment, 3rd edition, 2009 1-002.
50 Ibid, para 1-134.
51 Cited in Palmer at 6-002.
52 Transcript PN520.
53 See the description of the regulatory regime for taxis in Victoria given by a Full Court of the Federal Court in 
Commissioner of Taxation v Secretary to the Department of Transport (Victoria) [2010] FCAFC 84, paras 4 to 17.
54 [2011] FWAFB 8307.
55 Damevski v Giudice [2003] FCAFC 252 per Marshall J at paras 103 - 122.
56 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [13].
57 Robinson v Interstate Transport Pty Ltd, [2011] FWAFB 2728.
58 Transcript PN261.
59 Ibid PN489.
60 Ibid PN490.
61 Ibid PN485.
62 Ibid PN486.
63 Ibid PN380-81.
64 Ibid PN383-86.
65 Ibid PN798, PN802, PN807.
66 Print T2421.

Cases cited by this decision: