Dec 1257/99 M Print S0253
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision Print R6604
issued by Commissioner Simmonds on 30 June 1999
Advanced Australian Workplace Solutions Pty Ltd
(C No. 36021 of 1999)
s.170CE application for relief in respect of termination of employment
Kangan Batman TAFE
(U No. 34844 of 1998)
JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT McINTYRE
PERTH, 25 OCTOBER 1999
Appeal - whether appellant entitled to appeal - extension of time to appeal - whether applicant for relief under s.170CE employed by respondent to application - whether any contract between applicant and respondent - approach to determining these issues
Introduction and issues 
The facts 
The first issue - is Advanced Australian Workplace
Solutions Pty Ltd entitled to institute this appeal? 
The second issue - should we extend the time within
which this appeal may be instituted? 
The third and fourth issues - should leave to appeal
be granted and, if so, the merits of the appeal. 
Concluding comments 
INTRODUCTION AND ISSUES
 On 22 July 1999, Advanced Australian Workplace Solutions Pty Ltd (AAWS) filed a notice of appeal under s.45(1)(g) of the Workplace Relations Act 1996 (the Act) against a decision of Simmonds C dated 30 June 1999 (Print R6604) in which he determined (paragraph ) "that the true employer in respect of the application pursuant to s.170CE of the Act made by Ms P Fox in U No. 34844 of 1998 is Kangan Batman TAFE".
 Four issues arise:
(1) is AAWS entitled to institute this appeal?
(2) should we extend the time prescribed by rule 11(2) of the Australian Industrial Relations Commission Rules 1998 within which this appeal may be instituted?
(3) should we grant leave to appeal?
(4) the merits of the appeal.
 The appeal was heard by us in Melbourne on 8 September 1999. Dr C Jessup QC and Mr M McDonald of counsel appeared for AAWS and Mr M Willoughby-Thomas, barrister and solicitor, appeared for Ms Fox. Kangan Batman TAFE (Kangan) was not represented. After the hearing ended, Mr Willoughby-Thomas lodged some supplementary written submissions which we have taken into account.
 On 8 December 1998, Ms Fox filed an application for relief in respect of the termination of her employment under s.170CE of the Act. In her application, Ms Fox named as her employer Kangan. Kangan filed a notice of employer's appearance dated 16 December 1998. This appearance, in answer to the question "Are you the true employer?", replied "No" and said that the true employer was "Advanced Australian Workplace Solutions".
 On 17 May 1999, Simmonds C conducted a hearing to determine whether Kangan employed Ms Fox. In this hearing Ms Fox was represented by Mr Willoughby-Thomas and Kangan by Mr R King. Mr L Doyle sought leave to intervene for AAWS. There was no objection to this application and AAWS was granted leave to intervene. In the hearing, oral evidence was given by Mr K P McCann, campus manager of the Laverton North campus of Kangan and by Ms Fox and various documents were tendered.
 Kangan is an institute of technical and further education. Its Laverton North campus is within the Port Phillip prison and functions there pursuant to an agreement between the operator of the prison, Group Four Securitas Pty Ltd, and Kangan.
 AAWS is, to use its own description in one of its documents, "a service company that operates a licensed agency contracting system which has been supplying contract personnel to commerce and industry on a casual basis for over 18 years". The contracting system used by AAWS is called the "ODCO system". The ODCO system is one that was the subject of considerable litigation some years ago; see, for example, the decision of Woodward J in Building Workers Industrial Union of Australia v. Odco Pty Ltd [No. VG151 of 1998 (unreported)] [24 August 1989] and, on appeal, the decision of the Full Court (Wilcox, Burchett and Ryan JJ) [(1991) 29 FCR 104]. The ODCO system as used by AAWS is described in an AAWS document called "A Flexible Resource Model". This document sets out at some length the services provided by AAWS and the advantages which AAWS claims will accrue to its customers. A sufficient indication of the contents can be gained from the following extract which appears under the heading "Independent Contracting at a Glance":
Operates in compliance with "Odco" Federal/High Court rulings of 1991.
At law: No employer - employee relationship exists.
No contractual relationship between you and independent contractor.
IRC and unions do not have jurisdiction.
No award constraints or unfair dismissal.
Three parties exist - the independent contractor, the agency and your business.
The contractor has a contract with the agency to supply work.
The agency supplies the contractor to your business on a hourly hire basis.
You have the right to "direct" the work.
You pay the agency one fee.
The agency pays the contractor and administers all statutory obligations related to personnel administration.
The system is voluntary for all parties.
The contractor is paid above "award" rates and may receive additional payments which you may wish to negotiate to meet operational needs or performance pay for quality work.
You can respond to fluctuating demands for personnel and match resources to quality outcomes.
Any employment restrictions on your operations are eliminated.
Contractors are independent personnel with a professional attitude to work.
Enables professional pay according to market forces and performance needs.
You can outsource your personnel and payroll administration.
Agency contracting is recognised by the Australian Taxation Office, Workcover and Payroll Tax Authorities."
Whilst this document is part of the general background to the case, there is no evidence that the document itself was read by Mr McCann or Ms Fox.
 Ms Fox is a teacher.
 On 14 April 1997, Ms Fox signed an "agreement to contract" which we set out:
"ADVANCED AUSTRALIAN WORKPLACE SOLUTIONS
ACN 071 443 475
808a Glenferrie Road Unit 3, 2-6 Hunter Street
Hawthorn Vic 3122 Parramatta NSW 2150
Tel: (03) 9819 6844 Tel:(02) 9687 8162
Fax: (03) 9819 6796 Fax: (02) 9806 0699
Contractors Name Pamela Louise Fox
Address [omitted] P/Code
AGREEMENT TO CONTRACT
CONDITIONS OF CONTRACT
1. I (the undersigned) acknowledge and agree that there is no relationship of employer/employee with Advanced Australian Workplace Solutions Pty Ltd and that Advanced Australian Workplace Solutions Pty Ltd does not guarantee me any work. I (the undersigned) am self-employed and, as such, I am not bound to accept any work through Advanced Australian Workplace Solutions Pty Ltd.
2. I (the undersigned) hereby agree to work for $20.58 per hour for actual on-site hours or job price to be agreed.
3. I (the undersigned) expressly forbid Advanced Australian Workplace Solutions Pty Ltd to make deductions in respect of P.A.Y.E. taxation. However, I (the undersigned) instruct Advanced Australian Workplace Solutions Pty Ltd to make deductions in respect of the voluntary Prescribed Payments System of taxation.
4. I (the undersigned) hereby agree that I have no claims on Advanced Australian Workplace Solutions Pty Ltd in respect of Holiday Pay, Long Service Leave, Sick Pay, or any similar payment.
5. I (the undersigned) hereby agree that Advanced Australian Workplace Solutions Pty Ltd has no responsibility or liability to me, except that I am guaranteed to be paid for actual on-site hours worked or agreed job price for work done.
6. It is agreed the I (the undersigned) must carry out all work that I agree to do through the agency of Advanced Australian Workplace Solutions Pty Ltd in a workmanlike manner and Advanced Australian Workplace Solutions Pty Ltd is hereby guaranteed against faulty workmanship. All work must be made good. Further, I agree to cover the work (where necessary) for Public Liability, Accident Insurance, Long Service, Holiday Pay and Superannuation, and have no claims on Advanced Australian Workplace Solutions Pty Ltd in respect of the above.
7. I (the undersigned) hereby agree to supply my own plant and equipment including safety gear, boots, gloves, and any necessary ancillary equipment required, and that I (the undersigned) have no claim on Advanced Australian Workplace Solutions Pty Ltd in respect of the above.
SIGNED Pamela L Fox
WITNESSED R Harvey DATED 14/4/97"
 During 1997, AAWS offered Ms Fox work teaching Japanese but she declined the work telling AAWS that she was not interested in teaching Japanese.
 In, it would appear, late 1997 or early 1998, Mr McCann, Kangan's campus manager at the prison, wished to introduce a ceramics course at the prison. He spoke to an associate director of Kangan who told him that Kangan did not have a ceramics department and that Mr McCann should approach AAWS as Kangan had an agreement with AAWS to provide staff in other areas. Mr McCann accordingly contacted AAWS and said that he needed a member of staff to establish and teach a ceramics course.
 On 5 January 1998, Kangan signed a "hiring agreement" which we set out:
"ADVANCED AUSTRALIAN WORKPLACE SOLUTIONS PTY LTD
ACN 071 443 475
808a Glenferrie Road Tel: (03) 9819 6844
Hawthorn Vic 3122 Fax: (03) 9819 6796
We are a service company that operates a licensed agency contracting system which has been supplying contract personnel to commerce and industry on a casual basis for over 18 years. We supply a high standard of personnel and we deal in volume, which means that you save time, money, and effort for a better result.
The personnel we supply to you are yours to direct, and the onus of inspection and satisfaction is yours. If, for any reason, you are unhappy with our contractor, simply send the person off site and inform us of your dissatisfaction. Our service MUST supply good personnel to ensure your continued usage. We therefore ask for feedback from you as to the workers' performance.
We refer you to our Conditions of Hire and the Special Conditions of Hire (overleaf), which are binding on you upon the signing of this agreement.
If you wish to avail yourself of our service, now or in the future, please complete the section below and return this Agreement to us, so that we can initiate action to establish a credit account ready for use at your convenience, thereby avoiding any delay of supply when it is required.
CONTACT NAME: KIERAN McCANN
CLIENT NAME: KANGAN BATMAN INSTITUTE OF TAFE
ADDRESS: PO BOX 376
PHONE: 9296 2272 FAX: 9296 2246 MOBILE: n/a
I have read and understand all Conditions and Special Conditions of Hire overleaf and wish to establish an account with Advanced Australian Workplace Solutions Pty Ltd.
SIGNED: DATE: 5 JAN '98
For and on behalf of: KANGAN INSTITUTE OF TAFE
POSITION: CAMPUS MANAGER -
PAYMENT TERMS AND CONDITIONS:
You are invoiced per site per week for all personnel on that site. We pay the personnel immediately and then invoice you. Your obligation is to pay on invoice and within the terms agreed to with Advanced Australian Workplace Solutions Pty Ltd.
Invoices will be faxed to you on Wednesday of each week, and you are required to deposit cleared funds into our bank account at WESTPAC BANK, 139 Collins Street, Melbourne, by 4pm the following day. (BSB 033-157, Account Number 125 793)
RATES: Our rates include an administration charge plus all statutory obligations for the contractors as the agency is legally responsible for and fully administers workers compensation, payroll tax and superannuation.
PRESCRIBED PAYMENTS SYSTEM:
Payments that we make to the workers are prescribed payments. We do all the administration associated with the PPS system, including reporting and making payments to ATO. However, payments to Advanced Australian Workplace Solutions Pty Ltd are not Prescribed Payments.
If you are not satisfied with any worker's performance, simply notify us and send the worker off site immediately. You will be charged for hours on site or units delivered only. You are not liable to make any other payment for the services supplied. The workers supplied are not your employees and are not ours; they are bona fide independent contractors.
These Special Conditions are between Advanced Australian Workplace Solutions Pty Ltd and the client, referred to in the Hiring Agreement ("the client"). In the event of Advanced Australian Workplace Solutions Pty Ltd introducing to the client any member of Advanced Australian Workplace Solutions Pty Ltd's workforce, either through actual hire or information supplied on request by the client, or any agent of the client, or by information made known to the client of the availability of a particular person, and the client engages that member directly, regardless of the circumstances or conditions under which that engagement occurs, the client agrees to:
(a) immediately notify Advanced Australian Workplace Solutions Pty Ltd of the engagement.
(b) Pay a fee to Advanced Australian Workplace Solutions Pty Ltd within fourteen (14) days of confirmation of the engagement.
The client acknowledges that introductions are confidential.
The fee payable to Advanced Australian Workplace Solutions Pty Ltd is our assessment of the loss of the resource to Advanced Australian Workplace Solutions Pty Ltd as a result of the direct engagement and varies according to the individual's classification as detailed hereunder:
ALL CLASSIFICATIONS, including technical personnel, professionals, tradespeople, semi-skilled and unskilled workers: Fee payable is 80 hours per person at our normal invoice rate."
 After Mr McCann told AAWS that he needed a member of staff to establish and teach a ceramics course, AAWS arranged for 3 people, one of whom was Ms Fox, to go to the prison to be interviewed by Mr McCann. In chief, Mr McCann said (T.41):
"What was the purpose of you meeting with them? --- It was to try and select the most appropriate person to come and deliver the course within the prison. That selection based upon I suppose realistically their reaction to coming into a prison's environment, plus also their discussions about the nature of ceramics.
Was the purpose of that meeting to discuss their professional capacity to deliver a certificate 4 in ceramics? --- No, because I requested that I actually be provided with teachers, qualified teachers who knew the curriculum."
and a little later (T.42-3):
"I discussed with Ms Fox effectively what we required at the campus and was very happy with the responses that we were getting on the day. I was - yes, very happy that sort of ...
THE COMMISSIONER: She was the best person for the job? --- Yes. I then contacted Australian Workplace Solutions and said to them that, yes, I'm happy with this person, can you please arrange for her to come along and work at the prison following the normal police checks and induction into the prison.
MR KING: The induction, Mr McCann, can you explain to the Commission the inductions that you know that occurred in this situation? --- To work inside a prison any member of staff, any employee to work in a prison has to undergo a compulsory three day induction into the workings of prison life of - yes, of various aspects of working in a prison . . . That induction is conducted by Group Four."
and, in cross-examination (T.50):
"Now, you interviewed three people at the start. You indicated that three people were sent to you in relation to the position. Now, following that interview and prior to speaking with Australian Workplace Solutions you actually indicated to Ms Fox that she had the job? --- Yes, that I would be offering the work via Workplace Solutions, yes ---
But following the interview you told her that she had the job, yes.
THE COMMISSIONER: Sorry, can I just ask that you - you were both speaking at the same time there and it will not be recorded very well so I wonder if you could just tell me what did you indicate to her? --- I indicated to her that I'd be contacting Workplace Solutions and I was happy with her and would be asking them to set up a work agreement with her.
And did you say in as many words you have got the job? --- To be honest I can't remember.
So you might have? --- I may have."
 In her evidence in chief, Ms Fox said (T.65):
"At the conclusion Mr McCann indicated to me that he would like me to be employed there and that I would be offered the position.
Do you recall his precise words? --- Not precisely, no. No, I don't."
 On or about 18 March 1998, Ms Fox started working for Kangan at the prison as a ceramics teacher. Her first task was establishing the physical resources for teaching ceramics. This involved Ms Fox setting up a room in which to teach and obtaining the necessary materials and library books. These were paid for by the prison. Ms Fox did not provide any of her own equipment or materials.
 After working as a ceramics teacher for about 6 weeks, Ms Fox's duties were extended to include art teaching. Ms Fox said (T.65):
"When I heard that the art teacher was leaving I approached Mr McCann about the possibility of taking on those extra hours. After a couple of days we spoke again about it and he agreed that that would go ahead.
Do you remember his precise words? --- I remember going to him and saying that I would really, really like the extra hours and to teach art and he said okay, that's fine. Yes.
And how long after he said okay, that's fine did you actually start teaching art? --- I can't really remember. It may have been one week or two weeks, but it wasn't too long after."
 Mr McCann said in cross-examination (T.48):
"Now, you engaged Ms Fox originally as a ceramics teacher, yes? --- Yes.
And then you offered her the job as art teacher as well? --- That's correct.
And that vacancy came up some what, six weeks or so after she was employed? --- I believe so.
And she indicated to you that she would be interested in the job? --- Yes.
And then after a few days you offered her the job? --- Yes, we increased her hours."
and in re-examination (T.59):
"Did you increase her hours? --- We offered the additional responsibility of teaching the art and design course.
Offered it to whom? --- To Ms Fox or to Australian Workplace Solutions."
"To whom at Workplace Solutions did you offer the additional hours? ... Did you offer it to an administrative person? --- Yes, its ---
Did you make that offer before you made the offer to Ms Fox? --- I don't believe so.
Did you make the offer before Ms Fox had indicated her preparedness to accept those hours? --- No, I don't believe so.
So it was after Ms Fox had accepted the additional hours that you then spoke to Australian Workplace Solutions? --- I believe so."
 As a result of taking on the art teaching, Ms Fox's weekly hours increased from 15 to 22.
 It will be recalled that the hourly rate specified in the "agreement to contract" was $20.58. When Ms Fox started at the prison she was paid about $26 per hour and this amount was later increased to about $28 per hour. Mr McCann said in cross-examination (T.48):
"Now, the contract which you have presumably seen between Ms Fox and Australian Workplace Solutions specifies an hourly rate of $20.58. You in fact paid her considerably more than that, did you not? --- I'm not sure what Ms Fox would have been paid herself.
But did not you actually put her hourly rate up to $26 an hour? --- I believe that she started at $26 per hour.
But you regarded 26 as an appropriate rate to start her on? --- I believe so.
And then subsequently you increased it again to 28, I believe, following a 10 per cent pay raise that staff generally at Kangan Batman TAFE received? --- Possibly."
And also in cross-examination, said (T.53):
"Mr McCann, just coming back to say the sessional teachers of Parkville, were they paid $26 an hour and then $28 an hour? --- I believe that their payments did vary during the period of that year, yes.
But did you apply in relation to the 26, it went up to 28 for Ms Fox, were you applying the same sessional rate as applied to your people at Parkville for example? --- If I remember right I was advised by Australian Workplace Solutions of what would be a fair rate of pay and I believe that I had to adjust the art teacher's pay to meet the Australian Workplace Solutions rate of pay." (Parkville is a campus of Kangan.)
And a little later (T.54):
"THE COMMISSIONER: ... The reason that the rate of pay was altered was because Australian Workplace Solutions told you to alter it? --- Australian Workplace Solutions initially suggested what a fair rate of pay would be.
Yes, but then it was altered. I think the questions all went to the reason for the alteration. See, as I understood you earlier you said that the rate of pay initially was $20 or something an hour, it was lifted to 26 and then to 28? --- Okay.
It is the reasons why those rates were changed I am interested anyhow and I think that was the direction of the question, was it not, Mr Willoughby-Thomas? ...
Now, if you cannot remember say so? --- I can't remember the exact about why her pay ---
You do not recall the exact reason why it was increased? --- No.
Can you remember inexact reason then? --- I believe that the same time other staff had been awarded a pay rise and that in terms of establishing some sort of parity with them that's probably I would have advised ---
But where the initiative came from you are not aware? --- No."
"THE COMMISSIONER: Right, well, perhaps we better focus on that then. How did the $26 get established? --- Okay, that was agreed by Australian Workplace Solutions as what was thought as being a fair rate of pay.
Agreed between? --- Australian Workplace Solutions and myself. They suggested that that was, I believe, probably the average rate of pay at that time for that level of work.
And then it was lifted to 28 when - ? --- That was later."
 Simmonds C said (decision paragraph ) that "[t]he evidence as to who determined the rate of pay is rather equivocal". In the appeal hearing, AAWS by leave adduced further evidence in relation to the payments through an affidavit of Mr Doyle, a director of AAWS, and who had appeared for it in the proceedings before Simmonds C. In it Mr Doyle said:
· the rate of $20.58 per hour in the "agreement to contract" was the rate then (April 1997) being paid by AAWS to contractors working as casual replacement primary school teachers, it having been originally discussed between Ms Fox and AAWS that AAWS would attempt to place her as a relief teacher of Japanese in primary schools;
· when Ms Fox started at Kangan in March 1998, AAWS was paying contract TAFE teachers in the T6 classification $26.62 per hour and AAWS paid her this amount;
· in October 1998, following an increase in award rates for TAFE teachers, AAWS increased the payment to contractors working in TAFEs at the T6 level to $28.88 per hour;
· neither Kangan nor Ms Fox either requested or questioned this increase.
 There was evidence about preparation work done by Ms Fox. Mr McCann in cross-examination said (T.52):
"And was she paid for that preparation work? --- I don't believe we were invoiced for it.
But did you not tell her that she was not going to be paid for the preparation and that therefore she should not invoice you? --- Probably."
 Ms Fox advised AAWS weekly of the hours for which she believed she was entitled to be paid. She said in chief (T.68):
"Now, during the period from 18 March 98 to 27 November 1998 how much contact did you have with Australian Advanced Workplace Solutions? --- On a weekly basis I called in the hours that I had worked for that week.
And apart from merely calling in your hours was there any communication with you? --- No."
 Following such advice AAWS paid Ms Fox for the number of hours she said she had worked, less deductions for PPS tax and insurance.
 As to the arrangements under which Ms Fox worked for Kangan at the prison, Mr McCann said in chief (T.43-44):
"Did you provide timetable or roster of some sort to Ms Fox? --- Yes, I provide timetables for all staff.
And about availability of prisoners and those sorts of things? --- Yes. It also negotiated with the teacher as well as to when it suits the member of staff to teach.
And of the - I am sorry, of the 20 people or so out there Ms Fox was the only person that was in this sort of arrangement, was she, in that she came through Australian Workplace Solutions? --- Yes.
What sort of interaction occurred between those 20 odd people including Ms Fox, was it an individual sort of team? --- No, I believe we functioned as a very good team. ...
Mr McCann, were you satisfied that Ms Fox had the capacity to deliver what was required in the certificate 4 ceramics curriculum? --- Yes.
Was it your requirement to distinguish from those other teachers and their relationship with their schools, was it your requirement that she submit to a lesson plan or teaching program before each class? --- No. ...
How did you know or how were you satisfied where the work being performed by Ms Fox was satisfactory? What is the mechanism there that enables you make those sorts of judgments? --- I suppose realistically it would be feedback from students to an extent and also feedback from Group Four programs manager.
So would it be true to say that we have a situation where you tell or explain to Ms Fox what is required to be done? --- On a daily basis, no.
If we can think a little more than a daily basis. You told her I want you - if I might be permitted to take this approach, Commissioner. If you told her we want you to deliver a program, group 4 ceramics, is that -? --- Yes.
Do you tell her how to do it? --- No."
And, in cross-examination (T.47):
"On the quality of the work that was undertaken by Ms Fox were you in a role of responsibility - did you have responsibility to direct her on the nature of the outcome of that work or did you accept that she had a role as a profession to conduct it? --- I accepted her role as a professional:"
And, later (T.51):
"And you had regular staff meetings at Kangan Batman TAFE? --- Yes, we have weekly staff meetings.
And you in fact expected Ms Fox to attend those staff meetings? --- Yes, anyone who was working on the campus that morning I expected them to attend the staff meetings."
"And you in fact were Ms Fox's manager? --- Yes, I had the direct line management responsibility for that area of curriculum.
And you advised her on a number of occasions that you were her manager and the person that she would report to? --- Within the structure of Kangan and within the structure of the prison, most definitely.
And you had discussions with her about things like curriculum or administrative tasks to do and so on? --- Yes, along with all staff we talk about the administration quite a lot of in terms of our record keeping. In terms of curriculum I think that our discussions were very much about what curriculum was there, whether it was relevant, whether it was still in print and still up to date.
And you regarded yourself as having a general authority to determine those matters in consultation with staff member? --- Yes, in consultation.
And similarly questions of administration and paperwork you would see yourself as being in a positive to give directions to Ms Fox as to what you wanted done or how you wanted it done? --- Yes, in line with all the staff there."
 Ms Fox said in chief (T.65-66):
"And did you have discussions with him [Mr McCann] about aspects of your job? --- Yes, constantly.
How frequently is constantly? --- On a daily basis.
And what sorts of issues were discussed during those daily discussions? --- We discussed curriculum. We discussed administration, paperwork, student work, the setting up of the art room and ceramics room, which equipment was to be bought and further on into my employment what changes may have needed to be made. We discussed security. We discussed ongoing exhibitions.
Now, were you in the context of those discussions ever given directions on any matter? --- Yes, on all of those matters I was seeking direction and was given direction by my manger."
 Ms Fox attended a conference while she was working at the prison. In cross-examination, Mr McCann said(T.49):
"And in fact you sent her to a conference, did you not, at one point in time with the corrections team, they all went to a conference? --- We made the conference available for any staff who wished to go. Yes, we actually paid for that for staff.
And Pam Fox indicated she wanted to go and you in fact paid her conference -? --- We paid for the conference fees."
 In the proceedings below there was evidence relating to the taking of leave by Ms Fox. Mr McCann said in cross-examination (T.49):
"And in fact did you give her paid leave, annual leave at one stage? --- Pam I believe went away for a couple of days and I said that I was happy to continue to pay her for that period.
And that was regarded as what, a week's annual leave? --- I'm not too sure what was regarded.
But she was certainly paid notwithstanding that she was not working? --- Yes."
"The issue of paid leave was raised. Could you explain the situation surrounding that incident? --- I was in general sort of very happy with the work Ms Fox was doing at the prison and I believe that she indicated that she wanted to have some time at home and I said that I'd be prepared to pay over that period of time.
Pay whom? --- It's always paid directly Australian Workplace Solutions then Ms Fox could claim from Workplace Solutions."
Ms Fox said in chief (T.68):
"Now, did you receive any annual leave or leave with pay at any stage? --- In September I wanted to take a Friday off which would have given me a long weekend because I didn't work on Mondays as my niece was coming from Perth. Mr McCann suggested that I take the whole week. I refused. He said that he would give me pay and I still wasn't happy to do that but he insisted so I took the extra days which I think altogether ended up about eight days I think of paid leave."
 There was evidence as to whether Ms Fox could delegate her work. In cross-examination, Mr McCann said (T.55):
"Now, if Ms Fox had not been able to attend one day she was not in a position, was she, to delegate it to someone of her choice? She could not just send, you know, a colleague ceramics/art teacher to do the work for her that day? --- No, Ms Fox was the only art/ceramics teacher working at the prison at the time.
She was not free, for example, to see, look, I will not be in Friday, I will send someone else in? --- No."
 In cross-examination by Mr King, Ms Fox was asked (T.76) "What do you believe was your relationship with the Kangan Batman Institute of TAFE?". Mr Willoughby-Thomas objected to this question on the basis that it was a matter for submission. Simmonds C allowed the question saying that the weight he was going to give to the answer will be a question of submission from the parties. The cross-examination then proceeded as follows (T.76-77):
"MR KING: Do you understand the question I put to you, Ms Fox?--- Could you ask me that question again?
Certainly. What do you believe was your relationship with the Kangan Batman Institute of TAFE? --- I believed I was there to provide ceramics and art education to the students at that campus and that was my relationship with me and to report to the manager.
That is what you believed you were expected to do on the campus site? --- That's right.
In what capacity do you believe you were - I apologise if this is sort of jargon to you but by capacity I mean, if I might be permitted, Commissioner, did you believe you were an employee of Kangan Batman TAFE? --- No, I didn't.
Did you believe you were an employee? --- I did. I thought I was an employee of Workplace Solutions."
THE FIRST ISSUE - IS AAWS ENTITLED TO INSTITUTE THIS APPEAL?
 AAWS submitted that the decision from which it seeks leave to appeal, being a decision that a member of the Commission has jurisdiction, is appealable pursuant to s.45(1)(g). We agree with that submission. The question at issue is whether AAWS has standing to bring an appeal, given that it is not a party to the proceedings brought by Ms Fox. Whether AAWS has standing depends upon whether it is a person aggrieved for the purposes of s.45(3)(d).
 The relevant parts of s.45 are:
"(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:
(g) a decision of a member of the Commission that the member has jurisdiction.....in a matter arising under this Act.
(3) An appeal under subsection (1) may be instituted:
(d) in any other case - by an organisation or person aggrieved by the decision or act concerned."
We understand it to be common ground that "organisation" in s.45(3)(d) means "registered organisation" and that AAWS is relevantly a person and not an organisation. The crucial question is whether it is aggrieved by Simmonds C's decision.
 The Industrial Relations Court of Australia dealt with the construction of s.45(3)(d) in the case of Tweed Valley Fruit Processors Pty Ltd v Ross and Others (1996) 137 ALR 70 esp. at pp.90-91. In their joint judgment, with which Moore J agreed in this respect, Wilcox CJ and Marshall J cited with approval passages from Ellicott J's judgment in Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 indicating that the description of a person aggrieved extends to "a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public" (at p.90) and includes a person affected by a decision because the decision
"may affect him or her in the conduct of a business or....affect his or her rights against third parties" (at p.90). This approach has been followed by the Commission: Australian Workers' Union, Queensland v Australian Maritime Officers Union (1997) 75 IR 227 at p.233. We think the approach provides guidance in this case.
 It is clear that the Commissioner's decision may affect AAWS in the conduct of its business. Equally it may affect AAWS' rights against Kangan and Ms Fox. Kangan is a party to the "hiring agreement" with AAWS which requires AAWS to supply labour to Kangan on the basis that the persons providing the labour are not employees of Kangan. Ms Fox is party to the "agreement to contract" with AAWS of which it is a term that she is not employed by AAWS but indeed she is self-employed. AAWS proclaims in its promotional material that in providing labour to its clients the persons performing the work are not employees of AAWS but self-employed. These propositions appear to be fundamental to its relationship with Kangan and Ms Fox and presumably to its relationship with its other customers and contractors. The Commissioner's decision denies the truth of these propositions in this case and may throw doubt on them in other cases. There are other propositions fundamental to the manner in which AAWS provides services which are put in doubt by the decision but it is not necessary to refer to them. Those we have mentioned are sufficient. We have no doubt that AAWS is aggrieved within the meaning of that term in s.45(3)(d).
THE SECOND ISSUE - SHOULD WE EXTEND THE TIME WITHIN WHICH THIS APPEAL MAY BE INSTITUED?
 Pursuant to rule 11(2)(a) of the Commission's rules, an appeal must be instituted within 21 days of the decision under appeal. Rule 11(2)(c), nevertheless, confers power on a Full Bench to extend time. Rule 11(2) reads relevantly:
"An appeal must be instituted:
(a) before the end of 21 days after the date of the ... decision ... appealed against; or
(c) on application - within such further time as is allowed by a Full Bench."
 In this case the Commissioner's decision was made on 30 June, 1999. The appeal was filed on 22 July, 1999. The notice of appeal included an application for a stay of the Commissioner's decision pending the resolution of the appeal. When the stay application was listed before the President on 28 July 1999 it was pointed out to counsel for AAWS that the appeal was lodged one day out of time. Counsel then made an oral application for an extension of time in which to lodge the appeal. The application was opposed by counsel for Ms Fox. In a decision made on 6 August, 1999 the President refused to grant the application for an extension of time on the basis that the application could only be dealt with by a Full Bench pursuant to rule 11(2)(c) [Print R8007]. A formal application to extend time was filed on 10 August, 1999.
 The onus is upon AAWS to persuade the Commission that time should be extended. If it is unsuccessful the appeal fails at the outset. The cases show that, in exercising the discretion in rule 11(2)(c), the Commission should take into account whether there is a satisfactory reason for the delay, the length of the delay, the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was to be extended: Meat and Allied Trades Federation v AMIEU (1990) 35 IR 25 at p.26; The National Rail Enterprise Agreement 1993, 1 December 1993 [Print L0238 at pp. 11-12]; Shop Distributive and Allied Employees Association v OPSM Pty Ltd, 2 July 1998 [Print Q2858]; Section 109 Reviews Decision, 12 March 1999 [Print R2700 paragraphs 17-24]. Any prejudice the respondent might suffer if time were extended because of developments after the time for lodgment had expired would also be relevant.
 The reason put forward for the delay in this case is a miscalculation on the part of counsel. We accept this explanation. Given that the delay is of one day only and that no prejudice has been shown to have arisen to Ms Fox from the delay, we think this application should be decided by reference to the nature of the grounds of appeal and the likelihood of one or more of them succeeding. For reasons which will become apparent we shall extend the time for lodging the appeal to 22 July 1999.
THE THIRD AND FOURTH ISSUES - SHOULD LEAVE TO APPEAL BE GRANTED AND, IF SO, THE MERITS OF THE APPEAL
 Simmonds C's decision first deals with the contentions, the evidence and the submissions before him. Then, under the heading "Decision", he said that he accepted that, in determining the proper characterisation of the relationship between Ms Fox and Kangan, he had to have regard for the total factual matrix including the agreement between Ms Fox and Kangan, the agreement between Kangan and AAWS and the actual practices of the parties.
 After referring to Stevens v Brodribb Sawmilling Co Pty Ltd [(1986) 160 CLR 16], Simmonds C expressed the view that Ms Fox's relationship with Kangan was not a contract for services.
 Simmonds C then said that it was clear that Kangan controlled the time of Ms Fox's attendance, prescribed the curriculum to be taught and directed, and had the capacity to direct her in the performance of her duties and in a number of incidental matters. He referred to various matters referred to in the evidence to support this view and said that they pointed strongly to the existence of a contract of service between Ms Fox and Kangan. Against this, he said, was Ms Fox's agreement with AAWS, the method of payment and the non-deduction of income tax. Simmonds C then said:
· there appeared to be nothing in the agreement between Ms Fox and AAWS which prevented the existence of a contract of employment between her and Kangan;
· the proper characterisation of the payment by AAWS to Ms Fox was that AAWS acted as Kangan's agent in making the payment. (He added that, had AAWS failed to pay Ms Fox, she would have had a "restitutionary action" against Kangan or she could have "invoked the guarantee in her contract with AAWS".)
 After saying that the evidence of who determined Ms Fox's rate of pay was equivocal, Simmonds C expressed the view that this uncertainty and the fact that no PAYE deductions were made did not displace the conclusion that Ms Fox was employed under a contract of service by Kangan.
 Simmonds C said that, because of a number of differences between the facts in the present matter and those in the Odco litigation, he did not find the reasoning in Odco to be determinative in this matter. He then said that he formally determined that the true employer in the present case was Kangan.
 Dr Jessup QC, for AAWS, submitted that Simmonds C ignored the fundamental question - was there a contract at all between Ms Fox and Kangan? An examination of the facts demonstrated that there was no contract. In the absence of any contract it was inappropriate to consider decisions such as Brodribb Sawmilling (above) which went to whether a contract was one of service or one for services.
 Mr Willoughby-Thomas, for Ms Fox, submitted that the tests to determine the existence of an employment relationship are central to the determination of the existence of a contract of service per se and are not, as contended by Dr Jessup QC, matters which are only to be taken into account after having first determined that a contract exists. Accordingly, the tests applied in cases such as Brodribb Sawmilling are relevant in a case such as this. These tests, especially direction and control, point to the existence of an employment relationship, and a contract of employment, between Ms Fox and Kangan.
 In determining this appeal, we will follow the approach which the Federal Court in Sammartino v Foggo [ FCA 1231] [25 August 1999] said should have been followed in that matter by an appeal bench of the Commission. Mr Sammartino had made an application under s.170CE which was heard by Foggo C. Foggo C decided that Mr Sammartino was not an employee within the relevant provisions of the Act but was an independent contractor and as such was "precluded from the provisions of the Act in relation to the provisions of s.170CE". An appeal was brought from Foggo C's decision. The Commission on appeal, in the words of the Court, "held that it was not satisfied that Mr Sammartino has met the requirements pursuant to House v The King [(1936) 55 CLR 499] for leave to appeal to be granted and accordingly it refused leave and dismissed the appeal" (paragraph 11).
 The Court said (paragraphs 8 - 10):
"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.
On an appeal from such a decision, if leave to appeal is given, the Commission is plainly not confined, in its consideration of the case, by principles that are found in cases such as House v The King (supra). In dealing with the appeal, the Commission is under a duty to consider all of the proven facts and those facts that have been admitted, and any inferences to be drawn from those facts, to arrive at its decision. It is also under a duty to determine the content of any point of law upon which its decision might depend. If, in undertaking any of these tasks, it finds that the Commissioner has made an error of law or an error of fact, it can exercise its powers under s 45(7).
It will find an error of law or an error of fact if the Commission reaches a different conclusion on the facts or on the law than that arrived at by the primary decision-maker. Further, what must be shown in order to succeed on an appeal will plainly have a bearing on whether leave should be granted."
 We therefore turn to consider whether Simmonds C made an error of law or an error of fact in determining that Kangan was the employer of Ms Fox. This determination flowed from Simmonds C's conclusion that there was a contract of service between Ms Fox and Kangan.
 We have come to the conclusion that, on the evidence, there was no contract of any type between Ms Fox and Kangan.
 We have earlier set out the facts in some detail. They clearly show that there was a relationship (a word used by Simmonds C in his decision and a word on which Mr Willoughby-Thomas placed considerable emphasis) between Ms Fox and Kangan. A relationship, however, is not necessarily a contract: see, for instance, the cases to which we refer in the following paragraphs. The elements of a contract are stated in Macken, McCarry and Sappideen's "The Law Of Employment" (4th edition, 1997 by the Hon James Macken, Paul O'Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen), a text to which reference was made both before Simmonds C and us, as follows (p.74):
"The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:
1. There must be an `intention' between the parties to create a legal relationship, the terms of which are enforceable.
2. There must be an offer by one party and its acceptance by the other.
3. The contract must be supported by valuable consideration.
4. The parties must be legally capable of making a contract.
5. The parties must genuinely consent to the terms of the contract.
6. The contract must be entered into for any purpose which is illegal."
In relation to the first of these elements, the learned authors say (p.74):
"The first element essential to the existence of any contract is the requirement that the parties have a mutual intention to create a legally enforceable bargain."
 There are a number of cases which demonstrate that a relationship is not necessarily a contract.
 In Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197, the New South Wales Court of Appeal considered whether there was a contract between Teen Ranch Pty Ltd, a non-denominational Christian camping facility which employed a small permanent staff supplemented by volunteers, and Mr Brown, one such volunteer (the volunteer). Handley JA, who gave the leading judgment, said (p.200-1):
"The issue in this Court was whether there was a contract between the volunteer and the Ranch. The proper characterisation of such a contract, if it existed, was not in issue, there being no dispute that it would be a contract of service and not for services. Thus the decision in Stevens v. Brodribb Sawmilling was not relevant and the exercise of control by the Ranch and its acceptance by the volunteer cannot assist in determining whether or not there was any contract at all."
and then (p.201):
"The real question is whether the arrangements between the parties evidenced any intention to enter into legal relations. Such an intention is essential."
After examining the facts, his Honour concluded that the arrangements between the parties did not evince some clear positive indication that legal relations were contemplated and, therefore, that there was no contract between the parties.
 In Construction Industry Training Board v Labour Force Ltd  3 All ER 220 the Queen's Bench Division considered a situation in which a labour supply company supplied labour to building contractors at specified rates payable by the contractors to the labour hire company. On appeal from a decision of an Industrial Tribunal, Cooke J, who gave the leading judgment, said (p.223):
"The tribunal dealt first with the question whether the contractor was the employer of the workman or had any contract with the workman. It came to the conclusion that there was no contract of any kind between the contractor and the workman. It is sufficient to say that in my judgment that conclusion was right."
 In O'Sullivan v Thompson-Coon (1972) 14 KIR 108, in response to a request from the owner of a farm (a company called Seawell Cattle Co Ltd), a farm relief service (Goodwins) sent a relief worker (Miss Kennedy) to the farm. Ashworth J, who gave the leading judgment for the Queen's Bench Division, said (pp.113-4):
"As it seems to me, in order to succeed in this appeal or to succeed before the justices, the first step which the present appellant would have to take is to show that Miss Kennedy was employed by the respondent company. It is only if that premise is satisfied that one has to go on to consider whether that employment was under a contract of service or a contract for services. It is to my mind surprising that in this case there is nothing in the case stated to show that the question: what were the terms of any contract between Miss Kennedy and the respondent company was answered; there is no reference to any such agreement. From the practical point of view I can well understand it. What the respondent company wanted was a relief to take over when Mr. Thompson-Coon was away, and they made a contract with Goodwins, who were in a position to provide a relief, and in order to achieve their object there was no need, in my judgment, for any contract whatever to be made between the respondent company and the individual sent as relief: and one pictures the scene. The respondent company no doubt are informed of the name and sex of the relief who was coming, but she would arrive on the scene and there is nothing to suggest that there was any bargaining, indeed there would be no room for bargaining. There is nothing to suggest that the contract was discussed in any way, because it had already been fixed by the respondent company with Goodwins. So coming back to what I regard as fundamental to any argument on behalf of the appellant is the question: was there a contract between the respondent company and the lady Miss Kennedy, because if there was no contract, I would find it very difficult to say that she was employed at all."
 In Denham v Midland Employers Mutual Assurance Ltd  2 QB 437, the Court of Appeal considered a situation in which an employer (Eastwoods) engaged a contractor (Le Grands) to do certain work and provided one of his own labourers (Mr Clegg) to Le Grands to help with that work. The issue was whether Mr Clegg was employed under a contract of service with Le Grands. Romer LJ said (pp.446-7):
"It appears to me, accordingly, that not even the skeleton of a service contract has been established as between Clegg and Le Grands. There is no evidence that either Le Grands or Clegg at any time agreed to enter into such a contract, and the relationship of master and servant cannot be established except by mutual consent."
 We now turn to the Odco cases referred to in paragraph . Much time in argument was devoted to these cases because the documentation between Ms Fox and AAWS and between AAWS and Kangan is the same as that between the parties in Odco.
 In Odco persons referred to as workers had entered into contracts with a labour hire company referred to as Troubleshooters and Troubleshooters had entered into contracts with persons referred to as builders under which Troubleshooters provided workers to the builders. The Federal Court considered, among other things, whether there was a contract between worker and builder. Woodward J held that there was not and his Honour's conclusion was upheld on appeal.
 In the judgment on appeal, the Court said that "[T]he element of consideration which is essential to a contract of employment is the promise by the presumptive employer to pay for service as and when the service is rendered" (1991) 29 FCR 104 at p.114. After referring to Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at p.465, the Court said that "on the evidence, there was no promise of payment of periodical sums by the builder to the worker, and no agreement between the builder and the worker as to what those sums should be. The builder's only obligation was to pay Troubleshooters. The worker's only entitlement was against Troubleshooters, and in accordance with a different measure" (p.114).
 The Court, after referring to submissions of the appellant, said (p.116):
"The analysis suggested by counsel for the appellants was that when a man (sent by Troubleshooters) reports to a site, sees the foreman and is allocated particular work, he contracts with the builder to do that work. However, in our view, the correct analysis is that the agreement to perform work is concluded earlier when the worker accedes to Troubleshooters' request to attend at a particular site on a given day. At that time, the worker assumes an obligation to attend the site and perform such work, within the scope of his trade or occupation, as may be allocated to him. Correspondingly, Troubleshooters assumes an obligation to pay him for his time."
 The Court then rejected submissions of the appellant that the existence of a contract between the builder and the worker was shown by certain arrangements between the builders and the workers. Some of them, the Court said, begged the question whether the relationship was a contractual one.
 The Court then said (p.117):
"A related argument arose from evidence that builders, from time to time, with the consent of workers supplied by Troubleshooters, sent them to work at sites other than those to which Troubleshooters had been requested to send them or promoted them to work in higher classifications, such as leading hand, than the classification in relation to which Troubleshooters had initially been requested to supply labour, or the individual workers had initially agreed to work. Again, so it was said, Troubleshooters' knowledge of these arrangements was fortuitous. Troubleshooters was concerned only to know the number of hours for which a worker had worked in a particular classification for a given builder. We can see the force of this submission. It is perhaps the strongest argument in favour of the contention that there is a contractual relationship between the worker and the builder. But we do not think that it can overbear all the difficulties to which that contention gives rise. We think that the better view is that in accepting such arrangements the worker acts on behalf of Troubleshooters to vary its agreement to make a particular classification of worker available at a particular site."
 The Court referred to Willett v Boote (1860) 6 H & N 26; 158 ER 11 and said (p.119):
"That case makes it clear that payment of wages by a third party, or what Woodward J called an `intermediary', is not fatal to the existence of a contract of employment between a worker and a putative employer. The essential inquiry, as Bramwell B indicated in the extract which we have reproduced, is whether the presumptive employer remains liable to pay the worker if, for any reason, the intermediary fails to do so. We can discern no term of any contract between the builder and the worker in the present case which imposes any such liability on the builder in the event of Troubleshooters' failing to make an appropriate payment to the worker."
 The Court then said (p.119):
"An alternative analysis for which the appellants contended was that Troubleshooters was the agent of the builder in engaging the services of the worker and brought about a contract of employment between its presumptive principal and the worker. The chief objection to this analysis arises from the evidence that it was Troubleshooters which fixed, and adjusted from time to time, the remuneration to which each worker was entitled. That was apparently done without reference to the builder who was only concerned to know the gross amount which he was obliged to pay Troubleshooters in respect of workers made available by it."
 After referring to Construction Industry Training Board v Labour Force Ltd (above) and Accident Compensation Commission v Odco Pty Ltd (1990) 95 ALR 641, the Court concluded that there was no contract of employment between worker and builder.
 We have earlier said that, in the present case, there was clearly a relationship between Ms Fox and Kangan. In all the cases to which we have referred there was a relationship between the alleged employer and the alleged employee (for example, between Teen Ranch and Mr Brown, between Seawell Cattle Co Ltd and Miss Kennedy and between Mr Clegg and Le Grands). As these cases show, the existence of the relationship did not establish that there was any contract between the alleged employer and the alleged employee.
 We therefore turn to consider whether there was a contract between Ms Fox and Kangan.
 Earlier, we referred to the elements of a contract specified in Macken, McCarry and Sappideen. One of these was "[t]here must be an `intention' between the parties to create a legal relationship, the terms of which are enforceable". This point is referred to in several of the cases to which we have referred. In Teen Ranch (above) (p.201):
"The real question is whether the arrangements between the parties evidenced any intention to enter into legal relations. Such an intention is essential."
In Denham (above), Romer J said (p.447):
"... the relationship of master and servant cannot be established except by mutual consent."
 In our view, the evidence does not establish that Ms Fox and Kangan intended to enter into legal relations with each other. Neither Ms Fox nor Kangan thought that there was a contract of employment between them. Ms Fox, in answer to the question "did you believe you were an employee of Kangan Batman TAFE?" said "No, I didn't." (see paragraph ). Kangan asserted in its notice of employer's appearance (see paragraph ), and in the proceedings before Simmonds C, that it was not the employer of Ms Fox. It told Simmonds C (T.80) that it had written contracts of employment with all the persons it acknowledged were its employees. There was no dispute that there was no written contract between it and Ms Fox.
 There can, we think, be no doubt that the view, shared by both Ms Fox and Kangan, that they were not in the relationship of employee and employer carries weight and that the amount of weight to be afforded it depends on the circumstances. For instance, Teen Ranch (above) is a case where such evidence was afforded considerable weight. Handley JA said (p.201):
"He [Mr Brown] later agreed that when he volunteered for a particular week or weekend there was no intention in his mind to enter into any legal obligations. These answers were clearly admissible and although not conclusive, were entitled to considerable weight."
 On the other hand, in Mead v New England Seed Traders Pty Ltd  WCR 113, the New South Wales Court of Appeal, after referring to the circumstances before it, said (p.117):
"There is certainly evidence to establish that neither Mr Mead nor Mr Crofts realized that he was an employed worker, but while this may be some evidence to rebut the existence of contracts of service, it does not, in the circumstances, seem to be of very much weight."
 In the circumstances of the present matter, the view of Ms Fox and Kangan that they were not employee and employer is, we think, evidence of considerable weight.
 Prior to the start of any relationship between Ms Fox and Kangan, Ms Fox had signed the "agreement to contract" set out in paragraph  and Kangan had signed the "hiring agreement" set out in paragraph . It is worth repeating some of the provisions of these documents.
 In the "agreement to contract", Ms Fox, among other things:
· acknowledged that she was self-employed; and
· undertook to work for $20.58 per hour or job price to be agreed.
 In the "hiring agreement", AAWS said, among other things:
· the personnel we supply to you are yours to direct and the onus of inspection and satisfaction is yours;
· you are invoiced per week for all personnel;
· we pay the personnel immediately and then invoice you;
· if you are not satisfied with any worker's performance simply notify us and send the worker off site immediately. You will be charged for hours on site or units delivered only;
· the workers supplied are not your employees and are not ours; they are bona fide independent contractors.
The "hiring agreement" contained a special condition that, if Kangan engaged a worker supplied by AAWS, Kangan was to pay a fee to AAWS for the loss of the resource.
 Accordingly, when the relationship between Ms Fox and Kangan started (when Ms Fox was interviewed by Mr McCann) and developed in the way we have described, it was in the context, so far as Ms Fox was concerned, of the "agreement to contract" and, so far as Kangan was concerned, of the "hiring agreement". Ms Fox advised AAWS of the hours she worked. AAWS paid Ms Fox pursuant to the arrangement between it and her and invoiced Kangan pursuant to the arrangement between it and Kangan. In all these circumstances, the shared view of Ms Fox and Kangan that they were not employee and employer was, we think, reasonably held and, accordingly, entitled to considerable weight.
 It does not appear to us that this shared view of Ms Fox and Kangan was given much, if any, weight by Simmonds C. In outlining the evidence and submissions, he refers (in paragraphs  and ) to Ms Fox's evidence that she believed that she was not an employee of Kangan, but no reference is made to this evidence in the part called "Decision" and which we outlined in paragraphs  to . For the reasons we have given, we think that the matter should have been given considerable weight supporting the conclusion that Kangan was not the employer of Ms Fox.
 Another essential element of a contract identified by Macken, McCarry and Sappideen is that there must be an offer by one party and an acceptance by the other. In our view, the evidence in this case does not establish such an offer and acceptance. The circumstances in which Ms Fox came to work for Kangan, the interview between her and Mr McCann and the subsequent conversations which led to her work being extended to cover art teaching have been set out earlier. This evidence when looked at in context does not, we think, establish an offer and acceptance. The context includes the arrangements between Ms Fox and AAWS and between Kangan and AAWS and the need for Mr McCann to be satisfied that whoever got the job could work in a prison environment. Also relevant to the question of offer and acceptance is the view of Ms Fox and Kangan, discussed earlier, that they were not employee and employer. Kangan did not believe it had made an offer to Ms Fox and Ms Fox did not believe she had accepted an offer from Kangan. As previously discussed, we are of the opinion that these views were of considerable weight and were reasonable. They are an indicator of the absence of offer and acceptance.
 With respect to the question of acceptance, Mr Willoughby-Thomas referred to the following comments in Macken, McCarry and Sappideen (p.77):
"Sometimes contracts of employment are entered into with the minimum of formality. A series of telephone calls may give rise to an employment contract. In Mead v New England Seed Traders Pty Ltd ( WCR 113 at 117) the New South Wales Court of Appeal remarked:
`The parties to a contract may well not be conscious either that the legal consequences of what they have done is the creation of an enforceable contract, or that the law will spell a contract of service out of their dealings.' "
We do not doubt that sometimes contracts of employment are entered into with a minimum of formality. However, each case turns on its own facts. In Mead (above), to which we have earlier referred, the Court of Appeal held that there was strong evidence of a contract of service; for instance, that in the financial records of the alleged employer, the alleged employee was treated as an employed worker and was similarly treated for taxation purposes. Against this was, for instance, the evidence that the alleged employee did not realise that he was an employed worker. The Court, in the circumstances, was of the view that this evidence did not seem to be of much weight. In the present case, on the other hand, we have concluded that the view of Ms Fox and Kangan that they were not employee and employer was, in the circumstances, to be given considerable weight. We add that the Court's remarks quoted in Macken, McCarry and Sappideen perhaps somewhat overlook the need for there to be an intention between the parties to create a legal relationship (see, for example, the passages quoted from Teen Ranch and Denham in paragraph ). In any event, as is clear from the judgment, the facts in Mead are, naturally enough, quite different from those before us.
 Also, with respect to offer and acceptance, Mr Willoughby-Thomas relied on the passage from the appeal judgment in Odco that we have set out in paragraph . In this passage, the Court said that from time to time the builders, with the consent of the workers supplied by Troubleshooters, sent them to work on sites other than those to which Troubleshooters had been requested to send them or promoted them to work in a higher classification than the one in relationship to which Troubleshooters had initially been requested to supply labour, or the individual workers had unilaterally agreed to work. The Court said this was, perhaps, the strongest argument in favour of the contention that there was a contractual relationship between the worker and the builder.
 Mr Willoughby-Thomas submitted that the reason for this view was that the relocation and promotion involved a direct interaction between the worker and the builder and, at the very least, a notional or implied offer and acceptance of the new agreement. In the present case, Mr Willoughby-Thomas submitted, Ms Fox's selection and appointment were made directly by Kangan and that, later, Kangan directly offered Ms Fox the art teacher position. These direct dealings, he argued, were decisive regarding the existence of a contract of employment.
 First, the evidence is not, we think, quite as clear-cut as Mr Willoughby-Thomas suggested. For instance, Mr McCann, following his initial interview with Ms Fox was aware that he was dealing with her through AAWS (see evidence set out in paragraph ). Similarly, when the art teaching was offered to Ms Fox, he again knew that he was dealing through AAWS (see evidence set out in paragraph ).
 Second, this evidence has to be seen in context; in particular, the arrangements between Ms Fox and AAWS and between Kangan and AAWS and that neither Ms Fox nor Kangan thought that they were employee and employer. The evidence relied on by Mr Willoughby-Thomas, looked at as part of the total evidence, does not lead us to the conclusion that there was a contract of employment (or of any other sort) between Ms Fox and Kangan.
 Another essential element of a contract referred to by Macken, McCarry and Sappideen is consideration. Macken, McCarry and Sappideen say (p.79):
"In contracts of service a promise to perform work in exchange for a promise to pay wages constitutes a valuable consideration."
 In our view no consideration passed between Kangan and Ms Fox. There was no promise by Kangan to pay Ms Fox's wages. Ms Fox was paid by AAWS pursuant to the arrangement between them. Kangan was billed by AAWS pursuant to the arrangement between them.
 The circumstances in which Ms Fox was paid the hourly rates she was (initially $26.62 and later $28.88) are explained, partly in the evidence and partly in Mr Doyle's affidavit referred to in paragraph . It is apparent that the amounts paid were determined, not by Kangan, but by AAWS.
 In his decision, Simmonds C held that AAWS acted as Kangan's agent in making payment to Ms Fox; see paragraph  above.
 We are unable, on the evidence, to accept that AAWS acted as Kangan's agent in making payment to Ms Fox. The arrangements under which AAWS paid Ms Fox and Kangan paid AAWS were as set out in the documents. Simmonds C said "It is clear that AAWS was not paying [Ms Fox] for any service she rendered AAWS". We do not agree. AAWS is a labour hire company. It had to have labour to hire. Ms Fox was a unit of that labour. The service she rendered AAWS was enabling it to carry on its business as a labour hire company. For this, AAWS paid her. There is, on this analysis, no basis for concluding that AAWS did so as Kangan's agent.
 Neither do we agree with the view of Simmonds C that had AAWS failed to pay Ms Fox, Ms Fox would have had an action against Kangan. In Odco, the appeal bench said (see paragraph  above) that:
"We can discern no term of any contract between the builder and the worker in the present case which imposes any such liability on the builder in the event of Troubleshooters' failing to make an appropriate payment to the worker."
In our view, on the facts of the present case, the same conclusion is reached.
 We have considered all the evidence before Simmonds C. While there are parts of it that point to a contract between Ms Fox and Kangan, they are, in our view, outweighed by the other parts which, in our view, point to there being no contract.
 For the reasons we have given, it is our view that no contract existed between Ms Fox and Kangan because, of the essential elements for a contract, three were missing; namely:
· an intention between the parties to create a legal relationship, the terms of which are enforceable;
· an offer by one party and an acceptance by the other; and
· valuable consideration.
 This conclusion necessarily involves a rejection of Mr Willoughby-Thomas's submission that it was appropriate to consider, as Simmonds C did, the existence or otherwise of the indicia specified in, for instance, Brodribb Sawmilling (above). We respectfully agree with the comments of Handley JA in Teen Ranch (above) that, in determining the existence of a contract, the decision in Brodribb Sawmilling is not relevant.
 Our conclusion that there was no contract between Ms Fox and Kangan is derived from the facts before us which we have earlier set out in some detail. None of the cases to which we have referred determines the present one. In particular, Odco (above) does not determine the present case. Although the documentation between AAWS and Ms Fox and between AAWS and Kangan is the same as that in Odco, other facts, as Simmonds C noted, differ. He said that he did not find the reasoning in Odco to be determinative in this matter. We, with respect, agree. Our conclusions arise from the facts of the case before us.
 Having concluded that Simmonds C made an error of law in determining that there was a contract of service between Ms Fox and Kangan, we grant leave to appeal, uphold the appeal and quash the Commissioner's decision.
 We have assumed that Kangan is a legal entity capable of being a respondent to an application under s.170CE. In the proceedings before Simmonds C, Kangan did not suggest otherwise. Kangan, as earlier mentioned, was not represented at the appeal.
 Although not the subject of any submission, we say something about the procedure to be followed when a threshold issue arises, as in this case, as to whether the respondent named in a s.170CE application was the employer of the applicant. In our view, in such cases, the applicant should go first and adduce evidence directed at establishing that he or she was employed by the respondent. The respondent should then be invited to call evidence on the issue. It will be a matter for the respondent to decide whether or not to call evidence. The respondent may choose to call no evidence and submit that the applicant has failed to establish that the respondent was the employer.
 We express this view because we think that establishing that the respondent is the employer is as essential an element in an applicant's case as establishing that his or her employment was terminated by the respondent or establishing (in the case of an application on the ground in s.170CE(1)(a)) that the termination was harsh, unjust or unreasonable.
 The Federal Court has recently drawn attention to the distinction between the power exercised by the Commission when dealing with industrial disputes pursuant to Part VI of the Act and the power exercised under Division 3 of Part VIA (which includes s.170CE). The former is described as arbitral power, the latter as quasi-judicial power: Re Australian Industrial Relations Commission; Ex parte Construction, Forestry, Mining and Energy Union (1999) 164 ALR 73 at paras 73, 74, 79. The principles governing the burden of proof in judicial proceedings, to which resort may properly be had, at least in connection with proceedings under Division 3 of Part VIA, are clear. The following extract from the Australian Edition (1996) of Cross on Evidence (paragraphs  and ) encapsulates the approach to be taken in ascertaining where the burden of proof lies:
"[A] fundamental requirement of any judicial system is that the person who desires the court to take action must prove the case to its satisfaction. This means that as a matter of common sense, the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit or the prosecutor in criminal proceedings.
One of the clearest Australian expositions of the general rule is the following statement of Walsh J in Currie v Dempsey:
`The burden of proof in the sense of establishing a case lies on a plaintiff if the fact alleged (whether affirmative or negative in form) is an essential element in his cause of action, for example, if its existence is a condition precedent to his right to maintain the action. The onus is on the defendant, if the allegation is not a denial of an essential ingredient in the cause of action, but is one which, if established, will constitute a good defence, that is an "avoidance" of the claim which, prima facie, the plaintiff has. 2 NSWR 532.' "
 Normally, we think it would be unfair to require a respondent (to an application under s.170CE) which puts a fundamental element of the applicant's claim in dispute to call evidence first. Equally, it would be unfair to require an applicant to call evidence first when the respondent raises a threshold issue in relation to which the respondent itself bears the onus of proof; for example, that the employee was serving a period of probation.
 Finally, we mention that, as so often happens, this case was argued much more thoroughly on appeal than at first instance.
BY THE COMMISSION:
Dr C Jessup QC with Mr M McDonald for Australian Advanced Workplace Solutions
Mr M Willoughby-Thomas for P Fox
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