Fair Work Act 2009
s.604—Appeal of decision

Geoffrey James McMahon
v
Red And White Star Cabs Co-Operative Limited T/A Maitland Taxi Service
(C2022/409)

Appeal against decision [[2021] FWC 6652] of Deputy President Saunders at Newcastle on 21 December 2021 in matter number C2021/6512 – permission to appeal refused.

Background

[1] Mr McMahon (the Appellant) has lodged an appeal against a decision (Decision) of Deputy President Saunders (Deputy President) on 21 December 2021 1 in which the Deputy President found that Mr McMahon was not an employee and therefore could not make an application for relief under s.365 of the Fair Work Act 2009 (the FW Act).

[2] Under s.604(1) of the FW Act Mr McMahon must have permission from the Commission to appeal the Decision. Mr McMahon does not otherwise have a right to appeal.

[3] Mr McMahon drove taxis for more than 22 years in the network operated by Red and White Star Cabs Co-operative Limited trading as Maitland Taxi Service (MTS or the Respondent). For most of this time he worked under a bailment arrangement where fares were shared 50:50 between the owner of the taxi and Mr McMahon as the driver. By this arrangement the owner was responsible for paying for fuel and all servicing and repair costs.

[4] In 2020 Mr McMahon began driving Car 29, which is one of five wheelchair accessible transport (WAT) taxis operating in the MTS network. From July 2020 until September 2021 Mr McMahon drove Car 29 under, he says, materially different arrangements to those that apply for other taxis.

[5] Mr McMahon stopped driving Car 29 in September 2021, although he continued driving other taxis under bailment. Mr McMahon claims that he was an employee of MTS, at least when he drove Car 29, and was dismissed in contravention of the General Protection provisions of the FW Act.

[6] On 21 December 2021, the Deputy President determined that the arrangements for Car 29 were not materially different to the other arrangements under which Mr McMahon drove taxis in the MTS network, and were not materially different to the usual type of bailment relationship between taxi owners and taxi drivers in Australia. The Deputy President followed the earlier Full Bench decision in Voros v Dick 2 (Voros’ Case) and found that the fundamental elements of an employment relationship did not exist between Mr McMahon and MTS. Mr McMahon does not submit that Voros Case was wrongly decided.

[7] The matter on appeal was listed for permission to appeal only. Directions were set for the filing of material by Mr McMahon regarding the grant of permission to appeal. MTS was not required to file material, but it did so in any case.

[8] For the reasons that follow, we are not satisfied that the grant of permission to appeal would be in the public interest, nor do we consider that there are discretionary grounds justifying the grant of permission.

Statutory Context

[9] Generally, the FWC’s role in relation to applications under s.365 of the FW Act is to deal with such applications by way of conciliation or mediation under s.368 of the FW Act. If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 of the FW Act imposes a substantial restriction 3 upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s.368(3)(a) in relation to the dispute.

[10] The Full Court in Coles Supply Chain v Milford 4 observed that the FWC’s powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368, and the FWC can determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits.

[11] The question of whether Mr McMahon was an employee of MTS is one of jurisdictional fact. In this appeal we must therefore determine whether the Deputy President reached the right conclusion as to whether Mr McMahon was an employee, not simply whether the Deputy President’s finding was reasonably open to him. 5

Appeal Principles

[12] Under s.604(2) of the FW Act, we are required to grant permission to appeal if we are satisfied that it is in the public interest to do so. We may otherwise grant permission on discretionary grounds.

[13] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.⁶ In GlaxoSmithKline Australia Pty Ltd v Makin 7 a Full Bench of the Commission identified considerations that might attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”

[14] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.⁸

Voros v Dick

[15] The Deputy President’s decision closely followed the earlier Full Bench decision in Voros’ Case. 9 In Voros, Mr Dick drove a taxi owned by Mr Voros for 16 years before Mr Voros terminated the arrangement.10 The arrangements between the men were verbal. The takings were shared on the basis of 50% to Mr Dick and 50% to Mr Voros. Mr Voros paid for the fuel, maintained the taxi and kept it registered and in running order, maintained insurance and bore the costs of repairing the taxi if Mr Dick damaged it. When GST commenced in 2000 Mr Dick supplied an ABN at the request of Mr Voros. Mr Voros did not deduct any tax from Mr Dick’s earnings, did not provide any paid leave and did not make any superannuation payments on behalf of Mr Dick.

[16] The Commissioner at first instance found that Mr Dick was an employee. The Full Bench found that Mr Dick was not an employee because certain fundamental elements of an employment relationship did not exist. The Full Bench said: 11

“… for there to be an employment relationship, certain fundamental elements must exist. An employment contract is, at its essence, a work-wages bargain, so that the “irreducible minimum of mutual obligation” necessary to create such a contract is an obligation on the one side to perform the work or services that may reasonably be demanded under the contract, and on the other side to pay for such work or services.

It is, we consider, clear on the facts in this case that those fundamental elements of an employment relationship did not exist. Firstly, neither under the terms of the oral agreement between them or under the arrangement as it operated in practice was Mr Dick required to perform any work or provide any services for the benefit of Mr Voros. As the evidence earlier recited makes plain, once he had taken possession of Mr Voros’s taxi, Mr Dick was free to perform as much or as little work with it as he liked. In providing a taxi service to customers, he did so when, where and for whom he saw fit, without any reference to Mr Voros. Thus the provision of a taxi service by Mr Dick to any customer is properly to be characterised as a contractual arrangement between Mr Dick and the customer freely entered into by Mr Dick, and not as the performance of any contractual obligation which Mr Dick had to Mr Voros.

Secondly, Mr Voros did not make any payment to Mr Dick for the provision of any work or services. Rather, Mr Dick paid Mr Voros an agreed percentage, less the cost of fuel, of the fares he had collected from his customers as the fee for the “hire” or “rental” of the taxi. On the question of payment, counsel for the intervener submitted that “money passed both ways”, but we do not consider with respect that that is a correct characterisation of what occurred. As earlier explained, the amount owing as a “cash pay-in” by Mr Dick was sometimes a negative amount, but that was a result of the credit card payments sent directly to Mr Voros’s account exceeding his agreed percentage of the fares less the cost of fuel. The fact that in that situation the cash pay-in was expressed as a negative amount confirms that the underlying premise of the arrangement was that it was Mr Dick who was paying Mr Voros, and not the other way around. This was consistent with the oral agreement between the two men as described in the evidence. It was also consistent with Mr Voros’s contention that the agreement between them was one of bailment, under which Mr Dick was granted possession of the taxi for his use for a defined period and for which he paid Mr Voros the agreed percentage of fares collected as “rental”.”

[17] The Full Bench cited cases from “a long line of authority concerning the proper characterisation of the usual type of relationship between taxi owners and taxi drivers in Australia” and considered that the above findings were consistent with these earlier authorities. 12

[18] The Full Bench accepted that a taxi driver could be an employee, but “to conclude that a particular taxi driver is engaged as an employee would require the identification of a type of working arrangement significantly different to that described in the [long line of cases cited by the Full Bench]”. 13 The Full Bench did cite the case of McDougal v Castlemaine Taxis Pty Ltd14 (Castlemaine) as one such example.

[19] In Castlemaine, Commissioner Lewin contemplated whether “on balance, … the totality of the situation was such that the work done by the applicants for the respondents should be characterised as the sale of their labour to the respondent.” 15 The Commissioner found that:

“… The taxi service was operated in a prescribed, orderly and established manner for the convenience of passengers and all of the drivers conformed to the pattern and service provision in a system of work allocation and performance, effectively governed and controlled by the respondent …

… the weight of the evidence is such that the manner in which the relationship substantially manifested itself was that the applicants sold their labour to the respondent. In my view, the true relationship between the applicants and the respondent in the everyday operation of the taxi service was that the applicants performed work and were remunerated for the performance of work.”

Decision Under Appeal

[20] The Deputy President made various findings of fact, none of which were challenged by Mr McMahon on appeal. The key findings by the Deputy President were:

“[6] Mr McMahon has driven taxis in the MTS network for in excess of 22 years. During that period, he has driven taxis owned by MTS as well as taxis owned by individuals who are both taxi licence plate holders and shareholders in MTS. Until recently, Mr McMahon did not question that he was engaged as a bailee when he drove taxis on the MTS network. However, Mr McMahon now alleges that he was employed by MTS when he drove a taxi owned by MTS in the period from August 2019 until his alleged dismissal on 2 September 2021. Mr McMahon has never had a written agreement in relation to his driving of taxis on the MTS network.

[7] Prior to about July 2020, the well-understood and agreed arrangement between a taxi driver such as Mr McMahon and the owner of the taxi on the MTS network was that any taxi fare paid by a customer would be shared 50% to the driver and 50% to the owner of the taxi, how you going the taxi was returned to the owner or MTS depot when the driver finished driving it each day.

[8] In about July 2020, Mr McMahon had a discussion with Mr Marland about Mr McMahon driving one of five wheelchair accessible transport (WAT) taxis (car 29) owned by MTS … Mr McMahon and Mr Marland did not discuss the particular terms that would apply when Mr McMahon drove car 29. No doubt that was because Mr McMahon had been driving taxis on the MTS network for about 20 years. For example, they did not discuss how taxi fares paid by customers would be shared between Mr McMahon and MTS. I find that there was no discussion about whether Mr McMahon would be engaged as a bailee or an employee when he drove car 29 …

[9] … When Mr McMahon started driving car 29, he was informed by the other drivers of WAT taxis on the MTS network that his share of any taxi fare paid by a customer of a WAT taxi was 55%, rather than the usual 50%, with the other 45% being paid to the owner of the taxi, MTS. The other drivers of WAT taxis explained to Mr McMahon that in exchange for the extra 5% of taxi fares, Mr McMahon was expected to take the taxi in for servicing and keep the taxi in a clean state. MTS paid for the servicing, registration, fuel and other costs associated with car 29. These aspects of the arrangement described to Mr McMahon by other drivers of WAT taxis turned out to be accurate in practice.

[10] Mr McMahon was permitted to take the WAT taxi home each day and keep it at his premises until he next used it.

[11] Mr McMahon’s usual practice was to drive car 29 from Monday to Friday each week. He usually got into the taxi at about 6:45am each morning. At about 6:55am each morning Mr McMahon received a communication from MTS in relation to the school run which was available for that morning. That came about because MTS had a contract to provide WAT taxis to transport eligible students with a disability to and from school. Taxis owned by MTS were allocated ‘jobs’ on the school run in the first instance. Other taxis owned by individuals in the MTS network were then allocated any available ‘jobs’ on the school run. Mr McMahon was required to have a working with children check in order to provide taxi services to school children. For WAT taxi runs which fell under the Taxi Transport Subsidy Scheme, Mr McMahon received an extra $16.50 (tax free) per ‘job’ paid by Transport NSW. If Mr McMahon was unable to do these school runs, he informed MTS and the ‘jobs’ would be picked up by another WAT driver.

[12] Mr McMahon usually collected the first student for the school pick up at about 7:30am and completed his last school drop off at about 8:50am in the morning. In the afternoon, from Monday to Friday, Mr McMahon usually did his first school pick up at about 2:55pm and his last school drop off at about 4pm. After his last school drop off at about 4pm, Mr McMahon would decide whether he wanted to drive any longer that day or not, and if so, for how long. Mr McMahon explained that on some days he felt morally obliged to keep driving car 29, or return to operate car 29 after he had gone home. This was because the other drivers of WAT taxis would often decide to cease providing taxi services after the afternoon school run and Mr McMahon would receive a request from MTS to provide a taxi service to a person in a wheelchair. Mr McMahon did not want to let the person down, so he would often provide the taxi service to the customer in the wheelchair. I accept Mr Steel’s evidence that some drivers of WAT taxis on the MTS network would continue providing taxi services to assist customers in a wheelchair, while others would not; it was their choice.

[13] I accept Mr McMahon’s evidence that he sometimes accepted wheelchair ‘jobs’ when he was driving car 29 and forewent more profitable ‘jobs’ at the request of MTS.

[14] Apart from the contract MTS had to provide school runs, MTS also had contracts to provide taxi services to the Department of Veterans Affairs (DVA) and with Maitland private and public hospitals to transport customers to or from hospital or other medical services. WAT taxis were often needed to provide these services because of the needs of the customers. Mr McMahon was often requested by MTS to provide taxi services to customers pursuant to these contracts. Mr McMahon gave evidence, which I accept, that when he drove car 29, between 65% and 100% of his takings for the day would be derived from MTS’s contracts and, on average, these contracts accounted for about 70% to 80% of his income from car 29.

[15] Each day on which he drove car 29, Mr McMahon completed an end of shift report, which included information as to Mr McMahon’s ‘total takings’ for the day. The ‘total takings’ were comprised of account jobs, credit dockets and cash takings. Because most of the ‘total takings’ were account jobs or customers using credit cards, Eftpos or cabcharges, the net result was that payments were made by MTS to Mr McMahon during each week when he drove car 29.If Mr McMahon had received more cash than the value of his account jobs and credit payments in a particular week, he would have been required to pay money to MTS for that week.

[16] MTS invoiced its contract clients each month for the taxi services provided to them during the month. MTS paid drivers of taxis owned by MTS, such as Mr McMahon, their share as a result of their total weekly takings each week.

[17] Mr McMahon did not drive car 29 on a weekend. Instead, he chose to be engaged by owners of other taxis on the MTS network to drive their taxis on a weekend. Mr McMahon shared his receipts with those owners on the usual basis.

[18] Mr Steel gave evidence, which I accept, that it was common for drivers of taxis on the MTS network to not accept ‘jobs’ allotted to them …

[19] Mr McMahon accepts that he refused ‘jobs’ allotted to him by MTS when he was driving car 29. He knew that he was entitled to refuse such ‘jobs’ when he did not wish to work, such as when he was having lunch, voting or attending to some other personal matter. Mr McMahon also understood that the usual consequence of refusing a ‘job’ which had been allotted to him by MTS was a 20 second suspension from the MTS network and being placed at the bottom of the queue of taxis in the MTS network for the next available ‘job’. This default setting in the MTS system was used as a means of encouraging drivers to accept ‘jobs’ allotted to them by MTS. Mr McMahon also understood that MTS could impose longer suspensions for various conduct, but this did not happen to him.

[21] Apart from the threat and imposition of sanctions for not accepting ‘jobs’ allotted to him and the moral responsibility Mr McMahon felt to accept ‘jobs’ for a person in a wheelchair, Mr McMahon did not seriously challenge this evidence. Subject to these qualifications, I accept this evidence from Mr Marland.

[22] Mr McMahon’s practice was to let MTS know when he was not available to drive car 29 on a particular weekday or during a particular time on a weekday.

…

[24] I accept Mr McMahon’s evidence that he usually operated car 29 for more than 38 hours a week, but in some weeks he did not do so; he was not disciplined or subjected to any sanction when he operated car 29 for less than 38 hours in a week. In the result, I find that there was no term of any legally binding agreement between Mr McMahon and MTS which obliged Mr McMahon to drive car 29 for at least 38 hours a week.

[25] Mr McMahon took holidays at a time of his choosing. For example, he had a holiday for about 10 weeks from about 28 March 2021 until about 9 June 2021. Mr McMahon returned car 29 to MTS when he was on holidays. Mr McMahon did not organise a replacement driver for car 29 when he was on holidays.

[26] Mr McMahon did not receive holiday pay, sick leave or superannuation from MTS. Mr McMahon was responsible for his own taxation. MTS did not withhold any tax from payments made to Mr McMahon. He has his own Australian Business Number.

[27] Other persons had the use of car 29 to provide taxi services to third parties in the period from July 2020 to 2 September 2021…

[29] Mr McMahon accepts that he has his own clients, many of whom are friends. They contact him directly to arrange for Mr McMahon to transport them by taxi to an airport or other location of their choosing. Mr McMahon gave evidence, which I accept, that when he was driving car 29 during the week he was not asked to, and did not, do any work for his private clients…

[31] It is clear from the evidence to which I have referred above that MTS did not consistently enforce the ‘rule’ whereby drivers of taxis on the MTS network must not “without a genuine reason, fail to carry out a hiring allotted by the duty dispatch operator”.

[Emphasis added]

[21] The Deputy President correctly summarised the relevant principles derived from Voros’ Case 16 and then summarised the case advanced by Mr McMahon as follows:

“[40] Mr McMahon submits that his experience and relationship with MTS from about July 2020 until 2 September 2021, during which time he operated car 29, a WAT taxi, was very different from that which had taken place during the previous 20 years when he operated various taxis on the MTS network. In particular, Mr McMahon points to the fact that most of the work he did, together with the income he earned, in car 29 was on contracts which MTS had with third parties in relation to the provision of taxi services to school students, patients of Maitland public and private hospital and recipients of DVA benefits. In addition, Mr McMahon points to the fact that he usually worked from Monday to Friday, at least 38 hours per week, in car 29, was paid weekly by MTS, and was, so he contends, subjected to significant control by MTS, including by the default penalty system which suspended him from the network for 20 seconds and placed him at the bottom of the queue for the next available ‘job’ whenever he did not accept a ‘job’ which had been allotted to him. Mr McMahon contends that he had a continuous casual employment relationship with MTS in the period from at least about July 2020 until 2 September 2021, at which time he was dismissed by MTS.”

[22] Ultimately the Deputy President did not accept Mr McMahon’s submissions, finding instead that 17:

“[42] On the facts of this case, I am of the firm opinion that the fundamental elements of an employment relationship did not exist between Mr McMahon and MTS. First, Mr McMahon was not required to perform any work or provide any services for the benefit of MTS. He was free to not to accept any ‘job’ allotted to him by MTS or not to drive car 29 on any day, or part thereof, of his choosing, whether that ‘job’ arose out of a contract MTS had with a client or otherwise. I accept that it was not in Mr McMahon’s economic interests, and he did not want to be suspended from the MTS network, placed to the bottom of the queue for available jobs or have any other sanction taken against him. To his credit, Mr McMahon also felt a moral obligation to accept requests by MTS to provide taxi services in car 29 to persons in a wheelchair. Those reasons provide the rational explanation as to why Mr McMahon usually did accept the ‘jobs’ allotted to him, and why he usually, but not always, provided taxi services for at least 38 hours per week in car 29. He was not obliged to work any particular hours, or number of hours, each week in which he had possession of car 29.

[43] Secondly, there was no obligation on MTS to pay Mr McMahon for his occupancy, use, or driving of car 29. Instead, there was an arrangement, with which Mr McMahon was well familiar from his two decades of experience driving taxis on the MTS network, whereby Mr McMahon and MTS agreed to share the taxi fares paid by or on behalf of persons who used the taxi services provided by Mr McMahon. MTS was responsible for paying all servicing, registration, fuel and other costs associated with car 29. Mr McMahon was responsible for arranging for the vehicle and lift within it to be serviced, as well as keeping the vehicle in a clean state. Mr McMahon was given the benefit of taking the vehicle home each day, albeit that was not a significant advantage to Mr McMahon because he lives in close proximity to the MTS depot. The arrangement between the parties was truly one of a joint venture for their common profit on agreed terms. That payments were made by MTS to Mr McMahon each week, rather than the other way around, is simply a function of the fact that most of the taxi services that Mr McMahon provided in car 29 were paid for by passengers by electronic means or by clients direct to MTS pursuant to contractual arrangements. The fact that contracted clients were invoiced monthly by MTS, yet it made payments to Mr McMahon on a weekly basis, does not alter the character of the payments or the nature of the arrangement pursuant to which the revenue was shared.

[44] Thirdly, it would be impossible for the operator of a taxi network to conduct an efficient or effective taxi service to customers if it could not exercise some control or method by which it could encourage taxi drivers to accept particular ‘jobs’ allotted to them, particularly where the taxi in question was located closest to the customer. Viewed in the context of the “well established general law and statutory setting”, the degree of control reserved to and exercised by MTS over drivers such as Mr McMahon is not inconsistent with a bailment relationship and does not warrant a conclusion that the parties were in an employment relationship.

[45] In my view, MTS terminated its bailment agreement with Mr McMahon with effect on 2 September 2021; it did not dismiss him under a contract of employment.”

Grounds of Appeal

[23] Mr McMahon submits that the Deputy President did not fully investigate “the relevant components of the section of the FWA (2009) that apply to the case” and that the Deputy President neglected important information provided in the evidence that countered the argument the Deputy President used to support his decision.

[24] Mr McMahon submits that s.386(2)(a) and (b) “are concerned with the issue of there being a contractual arrangement other than employment underpinning a working relationship”. He submits that:

“Therefore s386 of the Act proposes that if a person was not on a contract for the specific purposes set out within part 2 (a) and (b) then they can be dismissed if terminated by the employer’s initiative under part 1 (a).

I had been suspended and then had my contract terminated for reasons yet to be corroborated by evidence. However, DP Saunders, in his decision, without examination of part 2 (a) and (b) of s386 stated in [46] that I was not an employee; therefore by definition I must be a contractor. However, that I was a contractor was never proven under s386 part 2 (a) and (b) of the act. The only variant to employment considered by DP Saunders was that of a bailment arrangement, which he negates as being agreed to between MTS and me in his decision [8].”

[25] Mr McMahon submits that several of the matters considered by the Deputy President “are limited in their depth of investigation and therefore lack substance in their assertions” and that the Deputy President did not address other indicia at all. He submitted that the following matters support his contention that he was an employee:

a) MTS’ operations manual indicates that MTS “may” employ and pay drivers;
b) the extra duties undertaken by Mr McMahon in relation to Car 29 amounted to, he says, the total responsibility for the maintenance and upkeep of the taxi;
c) the conditions and regulations attached to the school assisted transport program, and the MTS key performance indicators were “far more complicated than a ‘driver choosing to do a run on any given day’”;
d) Mr McMahon kept his commitment to driving five days per week “in good faith as a matter of honour not choice”;
e) Mr McMahon did not ever give money to MTS as a part of the shift;
f) the Deputy President referred to the 20 second default penalty but did not refer to evidence of MTS directors imposing further penalties. Mr McMahon was, he said, suspended and terminated for ‘various conduct’; and
g) there was always an implicit 38 hour understanding in relation to the WAT taxis.

[26] Mr McMahon relies on other factors, that we have considered but have not recited in this decision. Mr McMahon submits that all these factors are “contrary to the predetermined perceptions of the taxi owner/driver issue” and are consistent with the arrangements in Castlemaine. Mr McMahon submits:

“As with McDougal v Castlemaine; it is the essence of my case that I was driving within a different set of circumstances and controlling factors than that of a regular taxi driver whilst driving for the company MTS. To this fact I provided several documented evidential FWC case outcomes and subsidiary legal perspectives; all of which seemed to be treated as irrelevant by DP Saunders or at least never cited in his relevant facts section of his decision [5] through [33].

[27] The “subsidiary legal perspectives” referred to by Mr McMahon include a publication by Fair Work Ombudsman of South Australia and an article entitled “Taxis – Keeping the Bailment Agreement” by a law firm.

[28] Mr McMahon argues:

“In my submission I argue that I was a regular casual employee with an expectation of continued employment; I based this assertion on the fact that I had been driving for over 12 months, 5 days per week for MTS except when on organised leave. Based on my historical work conditions I argued that the respondent’s jurisdictional objection case was [moot] when applied to FWA (2009) s384 i & ii which was in fact in the opening statement of my submission.”

Consideration on Appeal

[29] In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the decision of the Deputy President was attended by appellable error.

[30] Mr McMahon’s first proposition in relation to s.386 of the FW Act is difficult to follow but seems to rely on the Deputy President’s finding that he was a contractor to establish that he was therefore dismissed as an employee. We do not agree that s.386(2) is concerned with relationships other than employment relationships. Sub-sections 386(2)(a) and 386(2)(b) directly refer to specific employment arrangements. The rest of Mr McMahon’s s.386 argument falls away because the foundation of the submission is simply not correct.

[31] Mr McMahon’s second proposition, that the Deputy President neglected important information, similarly does not disclose any appellable error.

[32] The central conclusion reached by the Deputy President is that “the fundamental elements of an employment relationship did not exist between Mr McMahon and MTS”. 18 The core factual findings that support this conclusion are as follows:

a) Mr McMahon was not required to perform any work or provide any services for the benefit of MTS … He was not obliged to work any particular hours, or number of hours, each week in which he had possession of car 29 (at [42]);
b) there was no obligation on MTS to pay Mr McMahon for his occupancy, use, or driving of car 29 (at [43]); and
c) the degree of control reserved to and exercised by MTS over drivers such as Mr McMahon is not inconsistent with a bailment relationship and does not warrant a conclusion that the parties were in an employment relationship (at [44]).

[33] The first two core factual findings relate to the legal obligations and requirements of the parties to the arrangement. The evidence below and the submissions on appeal are not contrary to the Deputy President’s findings about these legal obligations and requirements. Rather, Mr McMahon argues that despite these legal arrangements, in practice he worked regularly and consistently using Car 29 in order to “honour” the arrangement between himself and MTS and to fulfil what he saw to be a moral obligation to particular customers.

[34] Similarly, Mr McMahon does not submit that the arrangements between the parties required MTS to pay him for his occupancy, use, or driving of car 29. Rather, Mr McMahon says that “because MTS contracts were tendered for and secured as private contracts I was actually doing their work for the large majority of the time driving … ie the payment flow was one of the Contract entity paying MTS then MTS paying me my % for providing my labour”. This aspect of Mr McMahon’s case goes to the practical regularity of the payments made rather than the legal obligations regarding payment.

[35] The third core factual finding, that the “degree” of control is not inconsistent with a bailment relationship, is evaluative based on the Deputy President’s assessment of particular aspects of the arrangement between the parties. In making this finding the Deputy President referred to the context of the “well-established general law and statutory setting”, citing Voros’ Case, and the operator of a taxi network exercising some control or method of encouragement for taxi drivers to accept particular jobs allocated to them.

[36] Mr McMahon argues that some aspects of the arrangement “were against the general principles of bailment”, being that he took the car home on weekdays, that he was required to do extra duties (activities associated with the maintenance and cleaning of the taxi) and that he was paid on a weekly basis.

[37] We do not accept that these arrangements were contrary to the principles of bailment. The overnight location of Car 29, in the context of it being a WAT taxi not otherwise used on weeknights, is merely administrative. Similarly, the extra maintenance-related duties, for which MTS bore the cost, are not contrary to Mr McMahon using Car 29 for taxi services under a bailment arrangement. Finally, even though Mr McMahon was paid weekly, the amount that he was paid was calculated by reference to the revenue generated by his operation of the taxi and not by reference to any agreed weekly rate. In this regard the weekly payments made to Mr McMahon were not referable to Mr McMahon providing one week’s labour.

[38] Mr McMahon has not established an arguable case that the Deputy President made any appellable error in his core factual findings or his ultimate conclusion that Mr McMahon was not an employee of MTS.

[39] Finally, Mr McMahon’s appeal does not raise any issue of law or principle that is of wider application such as to attract the public interest.

[40] Accordingly, permission to appeal is refused.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR740421>

Appearances:

Mr G McMahon, Appellant

Ms K Case, for the Respondent

Hearing details:

2022.

Sydney (By Video using Microsoft Teams)

March 8.

 1   Geoffrey James McMahon v Red And White Star Cabs Co-Operative Limited T/A Maitland Taxi Service [2021] FWC 6652 (“the Decision”).

 2   Voros v Dick (2013) 237 IR 248, [2013] FWCFB 9339.

 3  Ward v St Catherine’s School [2016] FCA 790 at [3].

 4   (2020) 300 IR 146 at 160, [2020] FCAFC 152 at [43], [51 and [63].

 5   Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd (2016) 260 IR 244, [2016] FWCFB 2654 at [11], Voros v Dick (2013) 237 IR 248, [2013] FWCFB 9339 at [11], Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231; 97 IR 392 at [14].

6 O’Sullivan v Farrer (1989) 168 CLR 210, [1989] HCA 61, applied in Hogan v Hinch (2011) 243 CLR 506, [2011] HCA 4 at [69]; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, (2011) 207 IR 177, [2011] FCAFC 54 at [44]–[46].

 7   GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, [2010] FWAFB 5343 at [27].

8 Wan v AIRC (2000) 116 FCR 481, [2001] FCA 1803 at [30].

 9   Voros v Dick (2013) 237 IR 248, [2013] FWCFB 9339.

 10   Ibid at [4].

 11   Ibid at [13]-[15]

 12   Ibid at [17]-[23]

 13   Ibid at [24].

 14   McDougal v Castlemaine Taxis Pty Ltd (2002) 116 IR 78 at [16]-[17].

 15   Ibid at 80 [13].

 16   Decision at [35]-[38].

 17   Decision at [42]-[45].

 18   Decision at [42].