PN1

VICE PRESIDENT HATCHER: I'll take the appearances. Mr Chambers, you appear on behalf of both yourself and Ms O'Brien?

PN2

MR P CHAMBERS: Yes, I do.

PN3

VICE PRESIDENT HATCHER: Mr Power, you appear for the respondent?

PN4

MR T POWER: I do. Thank you.

PN5

VICE PRESIDENT HATCHER: All right. I can indicate that the members of the Bench have read the decision under appeal, the notice of appeal and the outlines of submission. Mr Chambers?

PN6

MR POWER: Before that happens, I wonder if I might just deal with a few housekeeping matters.

PN7

VICE PRESIDENT HATCHER: Yes.

PN8

MR POWER: Thank you. In addition to those documents that you have mentioned there is also a respondent's bundle of documents and I wanted to just check that the Full Bench has that, as well. I understand it was sent in electronic format last night to the Bench and to the appellants.

PN9

VICE PRESIDENT HATCHER: Yes, we have it.

PN10

MR POWER: Thank you. May I just deal with one other housekeeping matter. In the appeal book at pages 1238 to 1244 there is a letter from Heldsinger Legal to Broadway Homes, dated 24 June 2021. That was not in evidence before the Commission at first instance and in the respondent's submission ought not be before this Bench. If the Bench pleases, those are the housekeeping matters.

PN11

VICE PRESIDENT HATCHER: Just hold on a second. This is a letter dated 24 June 2021; is that right?

PN12

MR POWER: Correct.

PN13

VICE PRESIDENT HATCHER: Well, I don't think we need to address the first matter yet, Mr Chambers. What do you say about the second matter, that this letter wasn't before the Commission at first instance?

PN14

MR CHAMBERS: That is correct. It wasn't before the Commission in the first instance.

PN15

VICE PRESIDENT HATCHER: All right. Do you agree that we should treat it as – obviously we've got it in electronic format – not included in the appeal book?

PN16

MR CHAMBERS: Sorry, I missed that. The audio is very low here.

PN17

VICE PRESIDENT HATCHER: Mr Chambers, do you agree that we should notionally treat that letter as not part of the appeal book and is not before the Full Bench?

PN18

MR CHAMBERS: Yes, that's fine.

PN19

VICE PRESIDENT HATCHER: All right. Okay, is that all, Mr Power?

PN20

MR POWER: Thank you, your Honour, yes.

PN21

VICE PRESIDENT HATCHER: Just hold on a sec. Sorry, I was just inquiring whether we can do anything about the sound. I seem to be getting an echo at my end, but I don't know if you're hearing that in Perth. In any event, we'll do the best we can. All right, Mr Chambers, you proceed.

PN22

MR CHAMBERS: Thank you, Full Bench, for your time and consideration today. Ms O'Brien and I are not lawyers, and over this past year we have been navigating our way through the minefield of these legal proceedings. We may not have articulated our legal arguments and legal precedents as well as the respondent's lawyers. However, the decision made by Williams C in these matters is manifestly wrong and unjust.

PN23

Today we will try to articulate the grounds of our appeal to the best of our ability and establish why the decision in the first instance was wrong, unjust and warrants a reconsideration. In relation to appeal grounds 1 and 2, the decision reached by - - -

PN24

VICE PRESIDENT HATCHER: Mr Chambers, just before we start, having regard to what you've just said I want to say something which may assist in focusing your submissions. Leaving aside the question of permission to appeal, the issue we have to determine is whether the Commissioner was right or he was wrong in concluding that you and Ms O'Brien were not employees of the respondent.

PN25

It's entirely up to you what you submit, but we would be most assisted if you simply explain to us by reference to the relevant documents and the relevant law why you say you're employees, because if you do persuade us of that then subject to permission to appeal you will succeed. That is, there is a question here which has a right or wrong answer and the only thing you need to do is persuade us that the answer the Commissioner gave was wrong, and the opposite answer that you are employees was right. Do you understand that?

PN26

MR CHAMBERS: Not really. Today what we've prepared is all of our appeal grounds and we've got our evidence to support that that was before the Commission in the first instance.

PN27

VICE PRESIDENT HATCHER: All right. Well, I won't say anything further. You proceed.

PN28

MR CHAMBERS: So, Vice President - - -

PN29

VICE PRESIDENT HATCHER: I said I won't say anything further. Can you proceed with your submissions, please.

PN30

MR CHAMBERS: In relation to appeal grounds 1 and 2, the decision reached by the Commissioner applied incorrect meanings to the express terms of the agreement by determining the appellants were contractors in direct contrast to the principles outlined by the High Court in the recent CFMEU v Personnel Contracting Pty Ltd decision. If you can please draw your attention to the signed agreement between Broadway Homes Pty Ltd and Peter John Chambers, dated 5 March 2020, which starts at page 641 of appeal book volume 1. Paragraph 1 on page 642 states:

PN31

Whereby it is agreed as follows: the company agrees to employ the consultant as a new homes building and design consultant to negotiate and sell lump sum building contracts under the registered builder's licence of the company.

PN32

The appellants submit there is no other businesslike or even logical way of interpreting this agreed term. Providing any other meaning would result in manifest absurdity. The company agrees to employ the consultant under their licence, not any other company's licence, nor as an agent under someone else's licence. If this was the only term that established an employment relationship, it could be argued that in isolation it contradicts the rest of the agreement. However, the employment relationship is further supported by the following agreed terms. If the Full Bench now refers to clause 3(e) on the same page that states:

PN33

The consultant agrees that he or she shall, at all times, act loyally towards the company and endeavour to promote all services provided by the company, and should refer any business opportunity, lead or other relevant information to the appropriate company or manager -

PN34

with the addition of clause 4(a) on page 643 of the appeal book volume 1 that states:

PN35

The consultant agrees that he/she shall not, without the consent of the company, during the continuance of this agreement be engaged or interested either directly or indirectly in any capacity in trade, business or occupation which interferes or is in conflict with the company's business or interferes with the performance of his or her duties as a consultant.

PN36

When reviewing these clauses it is clear they impose an obligation on the appellants to act loyally and exclusively for the company unless provided with the express consent from the company.

PN37

VICE PRESIDENT HATCHER: Mr Chambers, can I just pause and ask you a question?

PN38

MR CHAMBERS: Yes.

PN39

VICE PRESIDENT HATCHER: You said the word 'appellants' plural there.

PN40

MR CHAMBERS: Yes.

PN41

VICE PRESIDENT HATCHER: This clause is, as I understand it, you say a contract between yourself and the respondent.

PN42

MR CHAMBERS: Yes.

PN43

VICE PRESIDENT HATCHER: Are you saying this contract also constitutes the terms of Ms O'Brien's contract? Is that what you're putting?

PN44

MR CHAMBERS: Our contention is that Ms O'Brien engaged with Broadway under the same terms of this agreement. However, it was an oral agreement.

PN45

VICE PRESIDENT HATCHER: All right. So you'll take us to the evidence for that proposition at some stage?

PN46

MR CHAMBERS: Yes.

PN47

VICE PRESIDENT HATCHER: All right. Thank you.

PN48

MR CHAMBERS: If the Full Bench would please scroll back one page to 642. Clause 3(c) states:

PN49

The company agrees that he or she shall undertake such duties in relation to the company's business as the company shall from time to time assign him or her and in the discharge of such duties observe and comply with all directions given.

PN50

This clause creates a right for the company to control the appellants by ensuring they observe and comply with all directions given by the company. Further to this control, we will demonstrate later in our submissions that the appellants were required to follow a building and design consultant guide that was provided to them on how to do their job. Directly below at clause 3(d) it states:

PN51

The consultant agrees that he or she shall be available for such hours of work as may from time to time be reasonably required of him or her as set out by the company.

PN52

This clause creates a right for the company to control the times the appellants had to be available to complete their duties as representatives of the company. Clause 3(e) on the same page states:

PN53

The company agrees that he or she shall agree to attend such in‑house training sessions and sales meetings as required and notified by the company.

PN54

This clause imposes an obligation on the appellants to be present at meetings organised and controlled by the company. Moving on to page 643 of the appeal book volume 1, clause 5(b) states that:

PN55

The company agrees that it shall, from time to time, nominate a preferred finance broker company whereby their service shall be recommended to all clients and customers of the company with the appropriate disclosure documents provided.

PN56

This clause establishes a right for the company to nominate a preferred finance broking company while conveying an obligation on the appellants to recommend that service. Clause 5(c) on the same page states:

PN57

The company agrees that it shall ensure the consultant is remunerated in accordance with the company's commission and payment structure – refer schedule A.

PN58

I want to pause for a second and let that be properly established; the company shall ensure the consultant is remunerated. This clause established as a right for the appellants to be remunerated for their work and is consistent with the commission forms completed by the appellants in their personal names, not Jamrok Pty Ltd, that can be found in the appeal book volume 1 from pages 1013 to 1049.

PN59

This right established by this clause and supported by the commission forms is in direct contrast to the Commissioner's reasoning at paragraph 359 of his decision, which can be found at page 43, appeal book volume 1, that states:

PN60

There is nothing in the Jamrok agreement that entitles Mr Chambers to be paid by Broadway for his efforts.

PN61

When considering the right imposed by clause 5(c), the Commissioner's reasoning is completely flawed and unreasonable. Why would anyone commit to working for a business without any reward or compensation for their efforts? The reasoning is manifestly absurd. Any reasonable business person would reach the same conclusion based on the terms of the agreement.

PN62

Moving on to page 644 of appeal book volume 1, clause 6 generally covers confidentiality and intellectual property which imposes an implied obligation on the appellants not to delegate their work due to the restrictions of information gained from the company. Clause 7(a) at the bottom of page 644 states:

PN63

Office duty. A consultant rostered on any particular day for office duty agrees that he or she shall be present at the company's office premises during office opening hours to receive sales inquiries via phone, email, walk‑in and referral.

PN64

This clause imposes an obligation on the appellants to be present at the company's office for a minimum of 40 hours per week. Clauses 5(b) and (c) on the following page 645 of appeal book volume 1 imposes further obligations on the appellants to be available after normal business hours and to cover displays when required. The appellants note generally the office phones were diverted after hours to nominated consultants and they were obligated to field any calls that came through.

PN65

Directly below, clause 8 imposes an obligation on the appellants to strictly adhere to the company's display home hours of operations while also arriving at least 15 minutes early to ensure that the display is prepared as per the company's instructions. Considering these obligated times that the appellants had to be present, I respectfully request that the Full Bench turn their attention to page 45 of appeal book volume 1, paragraph 374 of Williams C's decision and I quote:

PN66

There were requirements for the consultant to be present during home open times which was also pointed to as an example of the right to control the consultant. This under the terms of the Jamrok Agreement per allocated display home totalled approximately 14 hours per week.

PN67

The Commissioner failed to account for or even mention the office hours the appellants were obligated to be present under the previously discussed clauses. To provide the Full Bench with an accurate calculation of the correct times that the appellants were obligated to be present under the terms of the agreement, I will now run through a very quick demonstration.

PN68

Firstly, consider that Broadway's normal office hours were Monday to Friday, 8.30 am to 4.30 pm. This would total 40 hours per week. Display homes are open an additional 30 minutes every Monday and Wednesday evening, plus a further eight hours every weekend, adding another nine hours and bringing the total to 49 hours per week. However, the company required the appellants to be present 15 minutes prior to each display shift, so when accounting for the extra time each weekend the grand total time the appellants were obligated to be present under the terms of the agreement each week was 49 and a half hours.

PN69

MR POWER: Can I just rise to interrupt – and I wouldn't normally do so, if the Bench pleases – because some of what is now being submitted to the Bench was not in evidence before the Commission at first instance.

PN70

VICE PRESIDENT HATCHER: All right. That is noted. Go on, Mr Chambers.

PN71

MR CHAMBERS: Sorry, I would just like to say that the Commissioner did have this contract in the first instance. What I'm reading - - -

PN72

VICE PRESIDENT HATCHER: Mr Chambers, do you say this is a calculation derived from the terms of the contract, do you?

PN73

MR CHAMBERS: Yes.

PN74

VICE PRESIDENT HATCHER: Okay, go on. Sorry, just so I can clarify this, Mr Chambers, in clause 7(a) of the contract, at appeal book 641 and following, it talks about office opening hours, so is that defined n the contract?

PN75

MR CHAMBERS: I was the office sales rep. I was allocated the office – I was there permanently.

PN76

VICE PRESIDENT HATCHER: Mr Chambers, my question was is that expression 'office opening hours' defined in the contract?

PN77

MR CHAMBERS: The office opening hours, no, they weren't defined in the contract.

PN78

VICE PRESIDENT HATCHER: All right. Thank you.

PN79

MR CHAMBERS: So I will continue. These hours of 49 and a half hours per week still do not account for the after hour requirements obligated under clause 7(b) of the agreement. The appellants submit that this is far in excess of the generally accepted full‑time hours of ordinary employees and establishes a true reflection of the control the respondents had over the appellants' time. The Commissioner's incorrect calculation of time is a clear error in the decision and therefore the appeal must be granted.

PN80

Getting back to the rights and obligations imposed by the agreement, clause 9 towards the bottom of page 645 of appeal book volume 1 states:

PN81

The company sets sales budgets to a minimum target acceptable for each individual consultant based on their capacities, expectations and performance. The sales budgets may alter from time to time after consultation with the consultant, normally at a structured performance review.

PN82

This clause establishes a right for the company to set budgets, minimum targets and conduct structured performance reviews of the appellants' work. It must be asked why conduct structured performance reviews of independent contractors if you cannot control and shape the outcome of the review? The simple answer, you wouldn't. The appellants submit that this is a critical clause that establishes the actual control the respondents had over the appellants and is indicative of an employment relationship.

PN83

In clause 10(a,) on page 646 of appeal book volume 1, it imposes an obligation that the appellants, among other things, must liaise in all matters necessary to bring the transaction to a satisfactory conclusion. This clause establishes that the appellants' role was far more diverse than simply negotiating and selling building contracts, and reinforces the integration the appellants had within the respondent's business.

PN84

Clause 10(b), still on page 646 of appeal book volume 1, imposes an obligation on the appellants to issue receipts on behalf of the company and ensure all moneys are handed over to the company immediately or as soon as practicable. The appellants note there was no obligation for Jamrok Pty Ltd to issue receipts or take money from clients.

PN85

Clause 10(c) imposes an obligation on the appellants to complete a sales check list and ensure dual files are signed off prior to acceptance by the company. This clause further highlights the control the respondent had over the appellants in that their work would not be accepted without the check list being completed and being signed off by the respondent's management. The respondent's standard internal procedural documents will be discussed later in these submissions.

PN86

Clause 10(d) imposes an obligation on the appellants to promptly report any cancellations to the company. Clause 11 creates a right for the company to review and control any marketing or public relations the appellants may consider. Clause 12, at the bottom of page 646 and extending over to the top of page 647 of appeal book volume 1, establishes a right for the appellants to obtain a discount for any home they build with the company. However, it is conditional upon whether the consultant is – and I quote – 'currently employed at the completion of construction.'

PN87

Clause 16(a), on page 648 of appeal book volume 1, establishes a right for the appellants to have 20 workings day of unpaid leave with a minimum four weeks' notice and subject to company approval prior to execution of any firm holiday plans. This clause establishes the right for the company to control when the appellants could take leave, how much they could take and the appellants submit that this is clearly indicative of an employment arrangement.

PN88

Clause 17(a), at the bottom of page 648 of appeal book volume 1 and notably under the heading 'Termination/resignation and intellectual property', establishes a right for the agreement to be terminated by either party given two weeks' written notice, but also allows the company to summarily terminate the appellants on any grounds rather than just a breach of contract. Over the page, on 649 of appeal book volume 1, clause 17(b) imposes an obligation on the company to pay the estate of a deceased consultant - and I quote – 'should the employment be terminated by death of the consultant.'

PN89

Clause 17(c) obligates the appellants to return all material and items issued by the company after termination. Notably, the items listed include keys to their office and display homes; stationery; manuals; presentations; brochures; computer software; computer hardware; and client data. The appellants submit that generally independent contractors would not have this obligation as they would usually provide all their own tools and this clause further indicates the employment arrangement that was entered into between the parties. Continuing on page 649, clause 17(e) states:

PN90

Upon termination or resignation the consultant agrees not to advertise or solicit any form of referral business from past company clients.

PN91

This clause, along with clause 17(h)(3) on page 650 of appeal book volume 1, establishes a right for the company to maintain all clients and goodwill, including referral business, upon termination or resignation of the appellants. This right for the respondent to maintain the clients and goodwill generated by the appellants further cements the establishment of an employment agreement between the parties.

PN92

Clause 17(h)(2), on page 650 of the appeal book volume 1, establishes a right for the company to modify the commission structure after termination and even makes reference to other employed consultants.

PN93

VICE PRESIDENT HATCHER: Mr Chambers, what does 'PPA' stand for?

PN94

MR POWER: 'Preliminary plans agreement', your Honour.

PN95

VICE PRESIDENT HATCHER: Thank you.

PN96

MR CHAMBERS: We will cover that shortly, Mr Vice President.

PN97

VICE PRESIDENT HATCHER: Thank you.

PN98

MR CHAMBERS: On page 651 of appeal book volume 1 the Full Bench will find schedule A, Rate of Remuneration, with the heading 'Commission sales income' which is significant in that it doesn't say 'Commission sales revenue'. The first two paragraphs of this schedule confirm the right of the appellants to be paid for their work in accordance with the company's payment cycle on the first Thursday of each month. On this point I would like to highlight that remuneration and income are generally associated with employment arrangements and not contractor agreements.

PN99

'Remuneration' means the payment of money and in kind made or owing to any person in return for that person working for any other person. The Commissioner cannot just dispel the words chosen to form the agreement in relation to and among other things how the appellants would get paid for their work. The word 'remunerated' was specifically chosen instead of 'payment of (audio malfunction)' to form the agreement and this should have been reflected in the Commissioner's decision.

PN100

If the Full Bench looks further into paragraph 5 on page 651 under the heading 'Forfeiture of bonus', the agreement further references the consultant's employment by stating:

PN101

If the consultant is no longer employed there will be no bonus paid irrespective of the bonus being earned in the previous quarter.

PN102

The constant referral to employment terms like 'income, remuneration, termination, resignation, employ, employed' and the like throughout the agreement is not a simple label that can just be ignored. These words have been chosen by the respondent and accepted by the appellants to reflect the nature of the arrangement between the parties.

PN103

Further to the signed agreement between the parties, the building and design consultant's starter pack also supplemented the contract as it was executed on the same day by Mr Chambers in his personal capacity. The personal details provided under the emergency medical information on page 1138 of appeal book volume 1 clearly identifies Mr Chambers and includes his personal address. He also signed the declaration at the bottom of the page acknowledging that any false of misleading information may result in termination of employment and also accepted the obligation to undergo health tests during this employment, and on termination.

PN104

On the following page 1139 of appeal book volume 1, Mr Chambers also understood and accepted his obligation to meet the company's smoking, alcohol and other drugs policy considering that any staff member – and I quote that again for clarity, any staff member – found to be breaking those rules would be dismissed immediately as stated in paragraph 5 on that page.

PN105

The next two preceding pages, 1140 and 1141 of appeal book volume 1, relate to the company's social club whose mission – and I quote paragraph 2 –

PN106

is to promote and encourage social interaction between members with an objective of building stronger teams and enhancing workplace culture.

PN107

This would seem to imply that the appellants were part of the workplace culture. The terms and conditions obligated the social club committee to send an email advising of all upcoming events to all employees as paragraph 4 on the next page, 1141 – while on the next page at 1141, also at paragraph 4, it states:

PN108

In the event that a member's employment with one of the above companies ceases, any social membership outstanding moneys will be deducted from their final pay.

PN109

These terms and conditions were accepted by Mr Chambers in his personal capacity as indicated by the use of his home address and signed on the same day as the agreement. The terms that outline the rights and obligations in an employment context for both the appellants and the company cannot simply be dispelled by the Commission, as was the case in the first instance.

PN110

They were not a mere label to be ignored, because without the rights and duties discussed here there would be little, if any, substance to the operative parts of the agreement formed between the parties. Let me say that again: without rights and obligations that created an employment arrangement there would be no substance to the agreement.

PN111

The imposed rights and obligations of the agreement cover major employment indicia, including but not limited to the respondent's control of when, where and how the appellants worked, exclusivity, structured performance reviews, remuneration and even goodwill. They cannot be taken for anything other than creating an employment agreement. The Commissioner's decision in the first instance was plainly wrong and an incorrect interpretation of the express terms of the agreement.

PN112

If the Full Bench were to accept the decision of the first instance the language chosen by the parties in the agreement would need radical changes to express that the appellants were contractors rather than employees. Brennan J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales at paragraph 16 of his decision, stated:

PN113

Having construed the writing, the court cannot take its pen and add a clause merely because it thinks the addition would be reasonable or fair or prudent.

PN114

The appellants submit that the express terms in the agreement that outline an employment arrangement cannot simply be altered by the Commission to convey independent contracting terms. The Commissioner, at paragraphs 360 to 364 of his decision located at pages 43 to 44 of appeal book 1, points to two separate provisions that indicated the parties entered into an agreement to subcontract. However, these provisions directly contradict the effect of the agreement as a whole.

PN115

Lord Fraser of Tullybelton in Chaplin and cited by Kiefel CJ, Keane and Edelman JJ in CFMEU v Personnel Contracting at paragraph 65 of their decision, said:

PN116

The provision of a contract, whereby the parties sought to define their relationship as one of principal and agent and not that of master and servant, cannot receive effect according to its terms if they contradict the effect of the agreement as a whole.

PN117

I am relying on these terms to determine the appellants were contractors when the remainder of the agreement creates an employment agreement. The Commissioner's decision is in error and inconsistent with the approach taken by the High Court. The Commissioner's assessment in the first instance seems to be missing a crucial point of the agreement.

PN118

The appellants were not contracted to provide consultation or advice or services to the company but agreed to consult, advise and negotiate with the client's companies as representatives and as servants of the company. I will say that again slightly differently. The appellants were not providing services to the respondent. They were servicing the respondent's clients through their personal labour and skill as representatives, and as servants of the company. No amount of smokescreens, mirrors or extrinsic evidence presented by the respondent's lawyers can modify the true intent of the agreement, which was an agreement of service for personal labour within the respondent's business.

PN119

How a company chose to pay the appellants does not remove the fact that the agreement was a contract of service. The company received all profits from the building contracts secured by the appellants and the company was responsible for any business risk relating to losses generated through (audio malfunction) of those building contracts with the clients.

PN120

The respondent's core business was dependent upon the appellants securing building contracts as representatives of the company and entirely at the mercy of the company's specialised teams, as stated by the response of Mr Gangemi at PN380 of the transcript, located at page 110 of appeal book volume 1, to the question:

PN121

So in other words sales representatives were unable to sell homes without the direct assistance of your professional office resources?

PN122

He simply answered in the affirmative. The appellants could not complete their duties pursuant to the agreement without the direct assistance of the respondent's business. They were directly dependent upon the respondent to do their job. The appellants took it that the question whether a sales representative is conducting his or her own independent business as distinct from serving in a business of the employer provides a meaningful framework to guide the characterisation of the parties' relationship. As stated by Kiefel CJ, Keane and Edelman JJ in CFMEU v Personnel Contracting at paragraphs 35 and 36:

PN123

There is force in that submission. The value of the 'own business/employer's business' dichotomy in determining whether a person engaged to undertake work for another is an employee of that other has long been recognised. In an opinion written a century ago, expressed in the language of the time, by Andrews J for a strong New York Court of Appeal in Braxton v Mendelson, his Honour said:

PN124

'Ordinarily no one fact is decisive. The payment of wages; the right to hire or discharge; the right to direct the servant where to go, and what to do; the custody or ownership of the tools and appliances he may use in his work; the business in which the master is engaged or that of him said to be a special employer; none of these things give us an infallible test. At times any or all of them may be considered. The question remains in whose business was the servant engaged at the time?'

PN125

When considering the test put forward by Windeyer J in Marshall and the reference of the judges in Hollis, and their citation of these in CFMEU v Personnel Contracting at paragraph 38, it cannot be rationally said that the appellants were in business on their own account, as it is said that independent contractor carry out their work not

PN126

as representatives but as a principal. The appellants could not service the respondent's clients as their representative without being dependent upon the company's professional resources.

PN127

The Commissioner's decision that considers the appellants were in business of their own is in direct contrast to the dependency of the appellants and the principles set out by the High Court in CFMEU v Personnel Contracting. Based on the incorrect interpretations of the agreement and the inconsistencies with CFMEU v Personnel Contracting's decision of the High Court this appeal must be allowed and the jurisdiction for the hearing of the substantive application should be granted. This also enlivens the public interest grounds, as inconsistencies with decisions are not in the public's best interest.

PN128

Further to the inconsistencies created with case law, the decision in the first instance has created an inconsistency with a West Australian Office of State Revenue audit determination that (audio malfunction) the appellants as employees of the respondent for the purpose of paying payroll tax or liability. This determination has been accepted by the respondents and they have made complicit payments of payroll tax based on amounts previously paid to the appellants. It is in the public interest that inconsistencies in decisions, even across jurisdictions, are avoided and, as such, the appeal must be allowed.

PN129

In relation to appeal ground 3, 'Guided by irrelevant factors', it is clear from case law that extrinsic evidence cannot be admissible if it contradicts the express terms of an agreement. Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales at paragraph 22 states that:

PN130

The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.

PN131

If the Full Bench can again refer to the agreement, at page 641 of appeal book volume 1, you will note that the parties to the agreement are clearly stated on the front cover of the agreement as 'Broadway Homes Pty Ltd and Peter John Chambers' and is further confirmed through the following factors: the agreement was signed by Mr Chambers in his personal capacity as indicated by the use of his personal address, on page 650, and further evidenced by the fact that the ABN or CAN number identifying Jamrok Pty Ltd is not present at all in the agreement.

PN132

The building and design consultant starter pack, at pages 1138 through 1141 of appeal book volume 1, further confirms that Mr Chambers signed the agreement in his personal capacity as indicated through the use of his personal address, at pages 1138 and 1141. The language used in the agreement further confirms that the agreement was constructed for an individual consultant as it continually refers to him/her and he/she throughout the document rather than a single reference to a principal or agent of another business.

PN133

There is no ambiguity in the assignment of the parties to the contract and the use of extrinsic evidence like the adjudication application and the deed of acknowledgement, and the subsequent conduct of the parties, is not admissible to contradict the express terms of the agreement. The Commissioner has erred in letting these factors influence his decision when there was clearly no ambiguity in language used to identify the true parties to the agreement.

PN134

Further, the Commissioner has accepted that the deed of acknowledgment, found at 652 through 656 of appeal book volume 1, forms part of the whole contract. The appellants submit that this cannot be the case and is manifestly wrong as it is clearly evident that the agreement and the deed were executed by completely separate parties.

PN135

VICE PRESIDENT HATCHER: Mr Chambers, what paragraph in the decision was that finding?

PN136

MR CHAMBERS: Sorry, Mr Vice President?

PN137

VICE PRESIDENT HATCHER: What paragraph of the decision was the finding that the deed formed part of the entire contract?

PN138

MR CHAMBERS: It is paragraph - - -

PN139

VICE PRESIDENT HATCHER: Is it 331?

PN140

MR CHAMBERS: - - - 331.

PN141

VICE PRESIDENT HATCHER: Yes. Thank you.

PN142

MR CHAMBERS: That is located on page 39 of appeal book volume 1. Further, the Commissioner has accepted that the deed of acknowledgment, found at 652 through 656 of appeal book volume 1, forms part of the whole contract. The appellants submit that this cannot be the case and is manifestly wrong as it is clearly evident that the agreement and the deed were executed by completely separate parties.

PN143

If they were intended to form one and the same agreement, it must simply be asked why were the two documents executed separately? The answer, the agreement was to secure the employment of the appellants while the deed was to financially protect the respondent, similar to a loan agreement. The deed is a loan between two business entities with rights and obligations to that effect, including interest rates. The deed has no relevance to the employment of the appellants. There is a distinct divorce between the agreement and the deed; one is for employment while the other is for a loan.

PN144

Significantly, the agreement – as indicated earlier in these oral submissions – was executed by Mr Chambers in his personal capacity, while the deed was executed by Jamrok Pty Ltd as indicated by the use of the Jamrok ACN, on pages 652, 653 and 655 of the appeal book volume 1. Also the use of Jamrok's registered address, at item 2 of page 652. The parties of both the deed and the agreement are clear and unambiguous. Any extrinsic evidence to the contrary it irrelevant.

PN145

Even if the Full Bench were to still consider the deed and the agreement formed one contract, which we deny, it would not change the objective of the agreement. The agreement was formed as a contract of service for the appellants' personal labour and skill as representatives of the respondent's business. The Commissioner has erred by allowing the irrelevant factors to influence his decision that Jamrok was the true party to the agreement rather than Mr Chambers, which is in direct conflict to the express terms of the actual agreement.

PN146

Further, the Commissioner's use of the adjudication application made by Jamrok Pty Ltd to influence any part of his decision was an error. The adjudication application was (indistinct) through the construction's contractor that was implemented specifically to operate in parallel to any other legal action. On page 1143 of appeal book volume 1, paragraphs 5 and 6 of the Constructions Contract Bill 2004 Explanatory Memorandum states:

PN147

The Act provides a rapid adjudication process that operates in parallel to any other legal or contractual remedy. The rapid adjudication process allows an experienced and independent adjudicator to review the claim and where satisfied that some payment is due, make a binding determination for money to be paid. Its primary aim is to keep the money flowing in the contracting chain by enforcing timely payment and sidelining protracted or complex disputes.

PN148

The submission into evidence of this adjudication process is a direct breach of the applied undertaking established by the High Court in their decision in Hearne v Street [2008] that ensures information gained from a proceeding cannot be used for a collateral purpose. This information should never have been before the Commission and should not have been used to influence a decision.

PN149

VICE PRESIDENT HATCHER: So what information, Mr Chambers? What is the information that should not have been used before the Commission?

PN150

MR CHAMBERS: There is an adjudication application that Jamrok made in relation to outstanding money.

PN151

VICE PRESIDENT HATCHER: Yes, but what is the precise information that was before the Commission which you say should not have been put before the Commission?

PN152

MR CHAMBERS: Item 14 of appeal book volume 1. It's pages 855 through 963. It's a sworn affidavit by Mr Nicholas Parkinson.

PN153

VICE PRESIDENT HATCHER: Who is Mr Parkinson?

PN154

MR CHAMBERS: Mr Parkinson is the respondent's lawyer. He is present here.

PN155

VICE PRESIDENT HATCHER: Has that been read in the other proceedings?

PN156

MR CHAMBERS: Sorry?

PN157

VICE PRESIDENT HATCHER: That is, has that affidavit gone into evidence in the other proceedings; in the adjudication proceedings?

PN158

MR POWER: No, it hasn't, not in the adjudication proceedings.

PN159

VICE PRESIDENT HATCHER: Sorry, what was that, Mr Power?

PN160

MR POWER: Sorry, I'm just trying to assist your Honour with your question.

PN161

VICE PRESIDENT HATCHER: Yes.

PN162

MR POWER: I understood your question to be whether that affidavit had been read in the proceedings at first instance, to which the answer is yes. Then I apprehended that you were asking whether it was read into the adjudication; it was not.

PN163

VICE PRESIDENT HATCHER: It was not.

PN164

MR CHAMBERS: So I'll continue, if that's okay. This information should never have been before the Commission and should not have been used to influence the decision. These irrelevant factors have unfairly been put before the Commission and influenced the decision in error and, therefore, the appeal must be granted.

PN165

In relation to ground 4, 'Factual errors and material considerations', the promotion of Mr Chambers into the respondent's sales and marketing manager's role represents a significant material change to the relationship between the parties. The respondents, in their 6 June submissions, have wrongly submitted at 11.1 – and I quote:

PN166

The additional services provided by Mr Chambers fell within the scope of the Jamrok agreement. To the extent there was a variation to the terms of the Jamrok agreement by reason of the parties' conduct, the only variation was for additional remuneration that Jamrok received for Mr Chambers providing sales manager services to the respondent. There were no other variations to the terms of the Jamrok agreement or changes to the parties' dealings with each other.

PN167

On this point the applicants submit that this is categorically wrong regarding the following factors: (1) Mr Chambers was provided his own office, computer and stationery in the respondent's head office in a variation to clause 3(i) on page 643 of appeal book volume 1; (2) Mr Chambers had the authority to employ and terminate staff, as well as commit the respondent to expenses and purchases in variation to clause 4(c) on page 643 of appeal book volume 1; (3) Mr Chambers was given direct access to the respondent's business tracking system that was expressly for staff members only as stated by Mr Singleton at PN1840 through PN1843 of the transcript, which can be found at page 233 of appeal book volume 1.

PN168

The respondents have previously acknowledged, at paragraph 84 of their submissions in reply found at page 833 of appeal book volume 1, that Mr Chambers was involved to a greater extent within the respondent's business as a result of the sales and marketing manager's role. The Commissioner's failure to properly consider this material change to the relationship is a significant error and, as such, the decision warrants a reconsideration.

PN169

The respondent reimbursed business expenses to the appellants. The respondent, in their 6 June submissions at paragraph 21, attempted to downplay the reimbursement of business expenses by the respondent as they consider the reimbursements as isolated instances where it only – and I quote – 'appears that expenses were reimbursed.'

PN170

To understand this issue properly, the Full Bench need to consider the following: (1) expenses were reimbursed. That is a fact, not an apparition; (2) the reimbursement was not a small, insignificant sum and totalled $1534; (3) the reimbursement of business expenses is indicative of an employment relationship; (4) the Commissioner's determination in direct contrast to these reimbursements that Ms O'Brien would not receive any employee‑type benefits such as reimbursement for expenses incurred, at paragraph 437 on his decision on page 51 of appeal book volume 1, and also again at paragraph 462 on page 50 of the appeal book that costs were not reimbursed by Broadway.

PN171

The Commissioner's failure to consider these reimbursements and to even extend to offer a contrary view is a clear error in his decision and, as such, the appeal should be granted. The appellants used Broadway's internal corporate documents to complete their tasks set by the respondent. If the Full Bench can turn your attention to clause 3(c) of the agreement, found at page 642 of appeal book volume 1, that says:

PN172

The consultant agrees that he/she shall undertake such duties in relation to the company's business as the company from time to time assign him/her and in the discharge of such duties to observe and comply with all directions given.

PN173

At the time of commencement the appellants were provided a building and design guide that specifically outlined the duties that were assigned to them. If the Full Bench can now turn to page 616 of appeal book volume 1, you will find the guide that runs through until page 625 of the appeal book. As you can see, this guide comprehensively sets out the method of how the appellants were to complete their tasks, including what documentation to use, where to find it, when it was required to be signed off by management and even down to what terminology to use in specific instances.

PN174

The appellants submit that this document supplements the agreement by providing a detailed guide of the appellants' duties assigned to them by the respondent under clause 3(c) of the agreement. It also clearly states what Broadway internal corporate process documents must be used. The Full Bench can find these documents in the appeal book volume 1 as follows:

PN175

(1) the house and land package form is located at 664 of appeal book volume 1. As you will see, it does not include any legislative requirements, but does need management approval.

PN176

(2) the inquiry details form is located at page 667 of appeal book volume 1 and again it does not include any legislative requirements, but it was used by the appellants to record the details of the respondent's clients.

PN177

(3) the design brief form is located at 673 to 676 of appeal book volume 1. Again, no mention of legislative requirements, but it was used by the appellants to report the design requirements of the respondent's clients prior to requesting a design from the company.

PN178

(4) the sales file cover page is located at page 677 of appeal book volume 1. As you see, there are no legislative requirements on this document. It must be noted that the appellants were contractually obligated to use this form and it needs the respondent's management approval for design requests, as well as sales acceptance. This document was specifically noted in the agreement at clause 10(c) on page 646 of the appeal book.

PN179

(5) the sales file check list that is also referred to at clause 10(c) in the agreement can be located at page 678 of the appeal book volume 1. The appellants were contractually obligated to use this form and, again, it does not have any legislative requirements.

PN180

(6) the Preparations of Plan Agreement - or PPA for short - is also referred to in clause 10(c) of the agreement and can be found at pages 679 through 689 of the appeal book. The appellants were contractually obligated to use this document to sell homes for the respondent. The only legislative requirements on that document refer to the National Privacy Principles 2000 and nothing specific regarding the Home Building Contract Act of 1991 or its requirements.

PN181

At page 668 of the appeal book the Full Bench will find the lead appointment register form that was required by the respondent to be completed each week. If the Full Bench will note the fine print at the bottom left of the page, it says:

PN182

Complete and - Peter Gobetti (cc reception.broadwayhomes.com.au) by 10 am every Monday.

PN183

It was clear that this was required each week to monitor and control the appellants. However, again it does not include any legislative requirements. These documents and the lack of legislative requirements contained in them is in direct contrast to the comments made by Williams C in his decision at paragraph 373, at page 44 of the appeal book, that states:

PN184

Self‑evidently some of the provisions of the Jamrok Agreement such as Broadway retaining the right to accept or reject contracts delivered by the consultant –

PN185

at which point I will interject there and note there are no specific provisions for the respondent to accept or reject the contracts in the agreement as it was the company that actually prepared all the contracts, but I carry on -

PN186

and requiring the consultant to use particular forms and contracts as directed are essential to ensure Broadway complies with the state legislation.

PN187

As the Full Bench can see from the documents presented today there is no evidence to support the position taken by the Commissioner. The internal corporate process documents the appellants were contractually obligated to use provided the respondent with an ability to monitor and directly control the appellants' work, and did not relate to any state legislation. This self‑evident assumption by the Commissioner is a clear error of fact and, as such, the appeal must be granted.

PN188

If the Full Bench still considers that the appellants are contractors – which we deny – we submit in the alternative that Broadway misrepresented the appellants' employment under sections 357 and 359 of the Fair Work Act. Section 357 of the Fair Work Act states:

PN189

Misrepresenting employment as independent contracting arrangement. (1) a person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.

PN190

Subsection (1) goes on to say:

PN191

Subsection (1) does not apply if the employer proves that, when the representation was made, the employer: (a) did not know; and (b) was not reckless as to whether the contract was a contract of employment rather than a contract for services.

PN192

Given the rights and obligations of the agreement between the parties setting out an employment arrangement and that the appellants were contracted to service the respondent's clients with their personal labour and as representatives of the company, there can be little doubt that Broadway employed the appellants to perform work, but represented that it was a contract for services by the way it intended to pay them for that work.

PN193

Further, due to the West Australian Office of State Revenue audit that determined the appellants to be employees for the purpose of payroll tax obligations, the respondent cannot claim that they did not know or at the very least understood it was operating in a reckless, grey area. Section 359 of the Fair Work Act 2009 states:

PN194

Misrepresentation to engage as independent contractor. A person (the employer) that employs, or has at any time employed, an individual to perform particular work must not make a statement that the employer knows is false in order to persuade or influence the individual to enter into a contract for services under which the individual will perform as an independent contractor the same, or substantially the same, work for the employer.

PN195

When reviewing the timeline of events surrounding the commencement of the appellants and the execution of the agreement, the Full Bench will note a significant delay between the start dates of the individuals and the signing of the agreement, which was approximately five months. During this period the appellants operated under the same employment terms of the agreement and conducted themselves in accordance with the building and design consultant guide without being paid by the respondent.

PN196

This period provides valuable context to the timing of the agreement and the appellants' first payment from the respondent. The appellants were told they could not get paid without the agreement being signed. They had no other option and were influenced by their need to survive and get paid for their work. The agreement was signed and their first advance payment was processed the following day.

PN197

It should be noted at the time of the first payment no actual commissions were due, as suggested by the respondent at paragraph 23 of their 6 June submissions. The first payment was an advance to allow the appellants to survive. The respondent used this undue influence and unconscionable conduct to have the appellants agree to the employment terms of the agreement while insisting on paying them as independent contractors.

PN198

The Commissioner has erred in his decision at paragraphs 304 and 307 on page 37 of the appeal book volume 1 by saying that:

PN199

There is no evidence before the Commission that Mr Chambers has sought to challenge the Jamrok Agreement –

PN200

and further to say that there is –

PN201

no evidence that Broadway made any statement it knew was false to persuade or influence Mr Chambers to enter into the Jamrok Agreement.

PN202

The Commissioner's failure to consider the unconscionable conduct, the undue influence exerted by the respondent and that the agreement represented a contract of service within the respondent's business, is a clear error and provides grounds to reconsider these matters based on breaches of sections 357 and 359 of the Fair Work Act. Ground 5, 'Procedural fairness - - -'

PN203

DEPUTY PRESIDENT CLANCY: Sorry, Mr Chambers – it's Deputy President Clancy – with regard to the finding in paragraph 307 of the decision, are you saying there was evidence before the Commission?

PN204

MR CHAMBERS: Yes, your Honour. It's actually in my very first application.

PN205

DEPUTY PRESIDENT CLANCY: So what was the evidence? Have you got a reference to it?

PN206

MR CHAMBERS: The Commissioner is saying that I made no claim of misrepresentation, but I did.

PN207

DEPUTY PRESIDENT CLANCY: But that's different. That's a claim, but is there evidence of it that you rely on?

PN208

MR CHAMBERS: Sorry, I'm referring to his decision at 304:

PN209

There is no evidence before the Commission that Mr Chambers has sought to challenge the Jamrok Agreement as a sham.

PN210

I have.

PN211

DEPUTY PRESIDENT CLANCY: No, no, I'm asking about paragraph 307.

PN212

MR CHAMBERS: That is correct, there was very little discussions regarding my commencement in terms of the contract. I knew what I was going to be paid in terms of a percentage, but that was it. I believe there was evidence before the Commission regarding the undue influence.

PN213

VICE PRESIDENT HATCHER: So the question was, Mr Chambers, where do we find that evidence in the appeal book if it existed?

PN214

MR CHAMBERS: So if I can just quickly refer to my witness statement.

PN215

VICE PRESIDENT HATCHER: Of course.

PN216

MR CHAMBERS: It shows the timeline that I just discussed in terms of when I commenced and when the contract was signed.

PN217

VICE PRESIDENT HATCHER: Can you give us the appeal book reference, please?

PN218

DEPUTY PRESIDENT CLANCY: Mr Chambers, if we went to page 582 of volume 1 of the appeal book - - -

PN219

MR CHAMBERS: Yes. It's at paragraphs 18 and 19 of my witness statement, at page 582 of appeal book volume 1. Those two paragraphs confirm my start date with the business, then if you refer to the contract it was signed on 5 March 2020, approximately five months later. Do you require any further information?

PN220

DEPUTY PRESIDENT CLANCY: No, thank you.

PN221

MR CHAMBERS: Ground 5, 'Procedural fairness'. At all times throughout this process we have been self‑representing and have not had the vast resources of a law firm or a barrister to support our case. From our very first hearing in front of Williams C we have felt that we were not getting a fair go. Having our matters joined was a significant - - -

PN222

VICE PRESIDENT HATCHER: Mr Chambers, can I just interpose here. Look, I'm not going to stop you from saying what you want to say, but I just want to repeat what I said at the outset. At the end of the day the question is whether the Commissioner gave the right or wrong answer and we're hearing you today as to what you say the answer should be. Look, I'm not going to stop you in relation to your submissions about procedural fairness if you want to continue, and perhaps it's relevant to permission to appeal, but at the end of the day the critical question is were you and Ms O'Brien employees or not.

PN223

If we think the Commissioner got the right answer, so be it. If we think he got the wrong answer also, then we have to substitute our own view. Do you understand that?

PN224

MR CHAMBERS: I do. Part of our procedural fairness grounds, we don't believe the Commissioner properly informed himself on the matters to be able to make a proper decision.

PN225

VICE PRESIDENT HATCHER: Yes, all right. Thank you.

PN226

MR CHAMBERS: From our very first hearing in front of Williams C we felt we were not getting a fair go. Having our matters joined was a significant prejudicial error that should have been explained to us at the time or at least been offered leave to get professional advice prior to accepting the merger of our claims. From that moment on our cases were significantly more difficult to argue and present.

PN227

We requested what we believed to be relevant production. However, being inexperienced in this court process time was a luxury we did not have. As our case developed and we gained more knowledge about the process and requirements, we made further production requests to properly establish our case. Prior to the recent High Court decision in CFMEU v Personnel Contracting Pty Ltd, the multifactorial test was the judicially accepted method for determining such matters.

PN228

On that basis our requests for documentation that supported and evidenced how the respondent structured their payments to us was extremely relevant and the dismissing of our application for their bank records was prejudicial against our case. Further, our requests for communication surrounding the engagement of Ms O'Brien was extremely relevant. However, again this request was dismissed.

PN229

Given parts of the respondent's submissions relied on past engagements between the parties, the agreement between them at the time was of significant relevance. Perhaps this is why it was ordered to be produced in the first instance. However, the Commissioner's failure to enforce the production of a document that was legally required to be kept for a minimum of five years was a significant detrimental factor in our case.

PN230

Finally, once the Office of State Revenue audit had been adduced at the hearing the Commissioner had the obligation to assess the relevance of the information and determine if it should be produced. He did not meet this obligation. Rather, he referred to it as an extraordinary application at this stage in the proceeding and that he didn't think we would be advantaged with the access to the documents. The appellants submit there is no way of knowing what advantage we would have without assessing the audit documents.

PN231

Watson VP of Fair Work Australia noted in Abigroup Contractors v Crema and Ors at paragraphs 26 and 27 of his decision:

PN232

It cannot be doubted that Fair Work Australia is required to afford the parties the adequate opportunity to present their cases. It is common in proceedings before Fair Work Australia that the parties are required to provide details of their evidentiary case to each other and the tribunal in advance of the hearing by filing and serving witness statements. This process carries with it the expectation that the parties should anticipate the matter that are at issue and at the subsequent hearing generally limit their evidence to the matters contained within the witness statements.

PN233

However, it will often be the case that a party seeks to supplement that evidence by further evidence which responds to other proposed evidence or otherwise completes the party's evidentiary case. Procedural fairness requires some latitude being given to the parties to enable them to do this especially if an aspect of the facts could not have been reasonably anticipated earlier. It is also in the interests of a fair and just determination of the matter that all relevant evidence is considered.

PN234

This audit had significant relevance to the matters before the Commissioner and he chose to ignore it, and hence failed to provide the appellants with procedural fairness in these matters. Production of documents may not have been relevant to our appeal. However, they were extremely relevant to the matters in the first instance, especially prior to the recent High Court rulings. Dismissing the appellants' requests denied them an opportunity to properly present and inform the Commission in the first instance.

PN235

In relation to the Commissioner's programming, one of Williams C's interlocutory decisions stands out above all others. That was when he denied the adjournment application of the appellants, dated 2 November. To provide the Full Bench with context, we must look at the events leading up to this decision. Firstly, the appellants provided their full production of documents to the Commission and the respondent on 4 October. However, it wasn't until 22 October, four days prior to the date for filing of the respondent's submissions, that the respondent decided to engage a forensic accountant to provide a report to the Commission.

PN236

At such time they applied for an extension to file their documents and were granted that extension until 1 November, even after the appellants had objected because it would unfairly prejudice the preparation of our case. At close of business on 1 November, the respondents filed approximately 300 pages of documents, including witness statements, submissions and the expert report. Immediately upon seeing the sheer volume of documents and the scope of the expert report, the appellants tried to find a forensic accountant that could provide guidance within the four business left prior to the hearing, to no avail.

PN237

VICE PRESIDENT HATCHER: Mr Chambers, look, you have referred to the gist of this in your written submissions. Again, I'm trying gently to suggest to you that you're receiving a full hearing in this appeal and if you demonstrate that you and Ms O'Brien were employees then you will succeed. That is, at the end of the day no matter how justified your grievance, these procedural matters don't really bear upon the question we have to determine; were you an employee or not.

PN238

You have given us submissions which have been of great assistance that have referred to the terms of the contract by reference to the recent High Court authorities and we have obviously paid very close attention to that, but simply outlining your grievances about how the case was run below doesn't really go anywhere in this appeal. You won't succeed on procedural complaints, you'll succeed by demonstrating that you were employees. Do you understand?

PN239

MR CHAMBERS: Okay. Our main concern is that we were not afford procedural fairness. However - - -

PN240

VICE PRESIDENT HATCHER: We hear you loud and clear about that.

PN241

MR CHAMBERS: The appellants submit, in short, the Commissioner failed in his obligations to provide the appellants with a fair, equitable and just hearing in these matters. As such, the appeal should be granted.

PN242

In conclusion, given the incorrect interpretations of express terms of the agreement, inconsistent approaches to case law, the use of irrelevant factors and the clear factual errors, and the Commissioner's failure to provide the appellants with procedural fairness, we respectfully request that the Full Bench accept our appeal, reconsider the matters and find the appellants to be employees of the respondent as per the express terms and intentions of the agreement. Thank you.

PN243

VICE PRESIDENT HATCHER: Mr Chambers, can we return to one matter I raised with you earlier. You said that Ms O'Brien was engaged under an oral contract which had the same terms as the written contract at appeal book page 641. I asked you where the evidence demonstrating that proposition was. Can you refer us to that evidence?

PN244

MR CHAMBERS: If you refer to page 547 of appeal book volume 1, from paragraph 19 you will see Ms O'Brien's statement regarding her commencement with Broadway and the timing was approximately one month after Mr Chambers had started. However, both appellants started without a written contract. Ms O'Brien and Mr Chambers started with Broadway Homes in September and October 2019 under the same terms of the agreement. We worked and our conduct was as per the agreement. However, we weren't paid or signed an agreement with Broadway until 5 March 2020.

PN245

VICE PRESIDENT HATCHER: So it's really 'under the same terms part' that I'm looking to substantiate. Is there any evidence that, for example, somebody said, 'You're under the same contract as Mr Chambers', or, 'Under the same standard contract', or anything like that?

PN246

MR CHAMBERS: The conduct of Ms O'Brien and myself with this was identical. I was located in a North Beach display home and Ms O'Brien was located in a Dianella display home. Our roles were identical at the time; separate display homes, engaged to do the same job, we had to follow the same building and design consultant guide. Our conduct was identical through that period.

PN247

VICE PRESIDENT HATCHER: All right. Thank you.

PN248

MR CHAMBERS: At the time neither of us has a contract.

PN249

VICE PRESIDENT HATCHER: All right. Thank you.

PN250

MR CHAMBERS: Your Honour, Ms O'Brien just mentioned we actually did request the communication between the accounts department and our direct line manager regarding Ms O'Brien's commencement. However, that application was dismissed.

PN251

VICE PRESIDENT HATCHER: All right. Well, if there's nothing further, thank you, Mr Chambers.

PN252

MR CHAMBERS: Thank you for your time.

PN253

VICE PRESIDENT HATCHER: Mr Power?

PN254

MR POWER: Thank you, your Honour. Let me attempt to present the argument for the respondent in an efficient a way as I possibly can. I take your Honours firstly to the respondent's outline of submissions, which I am not going to read from. You will see, your Honours, that this outline of submissions deals with all the grounds of appeal that have been raised and your Honours will obviously have read that closely, so I don't propose to take you through it chapter and verse.

PN255

If I can just take you to page number 5, you will see there in footnote number 27 there is an appeal book reference. The appeal book reference is wrong. It should be 641 to 651. I invite your Honours to correct that by hand. If I can then take you to page number 7, you will see there that at the top of the page under the heading 'Office of State Revenue and Payroll Tax' in paragraph 19 the argument is put for the respondent by the adoption of the oral submissions that were made, and there's a footnote reference directing you to the page in the appeal book.

PN256

There is another set of submissions in writing which can be found in appeal book volume 2 at pages 99 to 100, which I will take you back to shortly. May I then take your Honours, please, to page number 8, to footnote number 57. In footnote number 57 there is an error in line 2. There is a reference to 'paragraphs 72 to 72', it should be 72 to 76 and I would ask your Honours to correct that by hand.

PN257

Your Honours have two other appeal books to which I need to make reference. The first is appeal book volume 2. This is the appeal book that does not have an index. If I can take you, please, to page number 69. At page number 69 you will see the start of the respondent's closing submissions. These are the respondent's closing submissions following the hearing before Williams C.

PN258

The reason I take you to them, your Honours, is because in the rather lengthy submissions which run from page 1 through to 56, you will see that the respondent has gone to some trouble to address where the evidence relevant to the two questions your Honour the Vice President has identified as relevant to this appeal. So, rather than take you through those oral submissions now chapter and verse, if you go through these closing submissions you will find there the evidence and the arguments to support the construction of the two contracts which was advanced by the respondent at first instance before Williams C.

PN259

VICE PRESIDENT HATCHER: So, Mr Power, what does the respondent say constituted the terms of Ms O'Brien contract for the purpose of applying the personal contracting test?

PN260

MR POWER: It was an oral contract, your Honour, and it was constituted by the conduct. The reasons are articulated more precisely in this set of submissions and another one I was going to take you to, but we say that it was a contract between Ms O'Brien and Jamrok. The precise terms of that contract between Ms O'Brien and Jamrok are not entirely clear because they were not known.

PN261

The issue that we were addressing at first instance was, was there a contract between Ms O'Brien and the respondent and the answer to that question in our submission is no. The reasons why we say that and said it at first instance are articulated in this set of closing submissions. Your Honour, may I take you to one other set of submissions?

PN262

VICE PRESIDENT HATCHER: Yes.

PN263

MR POWER: It's probably even of more assistance than this one. You can find that in the respondent's book of documents which I appreciate you will not have had a chance to examine as closely as the other documents. This is to be found behind tab number 7. Would your Honours like me to take a moment to give you - - -

PN264

VICE PRESIDENT HATCHER: Just give us a chance to find that.

PN265

MR POWER: Of course, yes, I will.

PN266

VICE PRESIDENT HATCHER: Yes.

PN267

MR POWER: The helpfulness of these submissions of course is that these were submissions invited by the Commissioner at first instance following the delivery of the decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd and ZG Operations Australia Pty Ltd v Jamsek. If I can just quickly take your Honours through the substance of these - you will see that again they're quite lengthy submissions.

PN268

You can see that at page 2, the first substantive matter that is tackled is the explanation of the approach following those two cases. Then you can see at page 3 that the point which was made consistently throughout the Commission proceedings at first instance, that the applicants allege the agreement was a sham, is raised and dealt with there on pages 3 and 4.

PN269

Then if you go over the page to page 4, you can see there that it deals with the allegation that the agreement was with Mr Chambers and Ms O'Brien had no written contract with the respondent, the point I just took your Honour to. Then at page 5, the consequences of having regard to the parties' conduct and then, importantly, the bottom of page 5, the proper construction of the contract is embarked upon and you'll see that dealt with in much more detail over on page 6, in particular at paragraphs 19 through 22, then at the bottom of the page, 23 through to 33, on page number 13. The variation of the agreement is then dealt with on page 13 and the conclusion appears at page 14.

PN270

The reason I take you to this now is because a number of the questions that the Bench has directed at one of the applicants are dealt with in these written submissions and in the footnote references that appear, so many of the questions that your Honours are concerned with today are set out, as it were, chapter and verse in this set of submissions which are particularly relevant because they follow the decisions of those two High Court cases, and are also set out in the closing submissions following the substantive hearing before Williams C.

PN271

May I then, if it's convenient for your Honours, just turn to deal with some of the relevant issues that have arisen in the oral submissions that were put by Mr Chambers today because they are not dealt with in the three sets of submissions that I've directed your Honours' attention to. Would it be convenient for me to do that now, your Honours?

PN272

VICE PRESIDENT HATCHER: Yes.

PN273

MR POWER: Thank you. Let me start by taking your Honours to the agreement and the deed. The agreement begins at page 641 of the first appeal book; the deed begins at page 652 of the same appeal book. To be clear about it, your Honours, it's not the respondent's submission that they are a single contractor, but it is our submission that they should be read together and I'll explain why now.

PN274

Just before I do that, I should make the obvious point that when you look through the Broadway agreement you can see quite clearly that there are provisions in it which you might more typically find in an employer/employee agreement, but the construction of this agreement and the construction of the deed, both of which were executed on 5 March 2020 – the same day, same time – requires a reading of each document in its totality and with one against the other. In other words, they should be read together.

PN275

Can I take your Honours, please, to page 648 of the appeal book; this is page 11 of the agreement. You will see that on the preceding page it has a heading 'Debts' and then it refers in clauses 14(c) and (e) to aspects of the arrangement constituted by this agreement and the deed. The way in which it worked, if I can just put it simply, is that from time to time consultants received advances on the commissions which they earnt. When they did so, it was always on the basis that they would at some point in time have to be a reckoning, so they wouldn't just receive the advances and that would never be taken into account in the ultimate reckoning. The deed deals with that.

PN276

If you look at clause 14(c) you can see that this clause is dealing with any advance payment of commission provided to the consultant and then (e):

PN277

If the consultant is in debt in excess of his or her jobs in the system, the balance will be carried forward to the next payable commission date –

PN278

and so on. The way in which they work together is important. If you look at the first page of this agreement - and this is significant - on page 641, you will see that it's expressed to be between Broadway Homes, the respondent, and Peter John Chambers and that, incidentally, is written in his hand, and underneath that 'of Jamrok Pty Ltd', also written in his hand.

PN279

If you then go to execution page, page 650, you will see that it's signed by Peter John Chambers, the consultant. The address 668A Beach Road, Hamersley, was also the address for Jamrok Pty Ltd.

PN280

MR CHAMBERS: Sorry, your Honours, that is incorrect.

PN281

VICE PRESIDENT HATCHER: You can have your go - - -

PN282

MR CHAMBERS: 668A - - -

PN283

VICE PRESIDENT HATCHER: Mr Chambers, you can deal with any matters in reply, so just make a note of anything you want to respond to and you'll have a chance to reply later. Go ahead, Mr Power.

PN284

MR POWER: Thank you. Then I take you to the deed of acknowledgment. This is the instrument by which those payments are guaranteed; that is, the repayments of advances to Broadway Homes. If you look at page number 653, you can see that the deed is between three parties: Broadway Homes, the builder; Jamrok Pty Ltd, the consultant, also described as the consultant in a style on the first page of the agreement; and then Peter Chambers as the guarantor.

PN285

What this agreement does is expressed quite well in the recitals in (a) to (c). The reason for drawing this to your attention, your Honours, is because first of all this demonstrates that the two instruments need to be read together - - -

PN286

VICE PRESIDENT HATCHER: I'm just looking at that, Mr Power. I mean, recital (b) is acknowledgment that the consultant is indebted to the builder in respect of the advance.

PN287

MR POWER: Yes.

PN288

VICE PRESIDENT HATCHER: But the terminology is confusing because under the agreement Mr Chambers is the consultant and he is the one who incurs the debt in the provision you just took us to, 14(e), but using the terminology in the deed it's the company that's the consultant, so how can that be right?

PN289

MR POWER: Can I clarify that as best I can for your Honour?

PN290

VICE PRESIDENT HATCHER: Yes.

PN291

MR POWER: If we go back to page 641, to the cover page to the agreement – and I don't say this is definitive of the relationship, but it assists in answering your Honour's question – you can see that it's between Broadway Homes and Peter John Chambers of Jamrok Pty Ltd.

PN292

VICE PRESIDENT HATCHER: Yes.

PN293

MR POWER: So that's the basis on which I submit to you that in fact the consultant in this case, in the case of this agreement, is Jamrok Pty Ltd, not Peter John Chambers, because Peter John Chambers is here acting as the agent of Jamrok Pty Ltd. That's the construction I advance.

PN294

VICE PRESIDENT HATCHER: Well, speaking for myself that seems to be a bit difficult because the contract is replete to references that can only be read as requiring personal service.

PN295

MR POWER: I accept that there are some which appear that way and I would be the first to admit, your Honour, that this contract is far from – if I can use this expression – a thing of beauty; far from it. But the answer to your Honour's questions about, well, why should the contract for this agreement be construed as an agreement between Jamrok and Broadway Homes, the answers to those questions are to be found in the written submissions that I directed your Honour to. We're content to rely on that because they are, in my respectful submission, strong arguments for the alternative construction that I advance.

PN296

VICE PRESIDENT HATCHER: All right. Thank you.

PN297

MR POWER: Thank you, your Honour. Can I just then move to one document which illustrates your Honour's point and indeed the importance of the three sets of written submissions to which I have directed your Honours. That is the importance of focusing on what is actually and can be the contract between the parties which we say are (indistinct) and Jamrok Pty Ltd. I can do that by taking you to a document to which reference was made by Mr Chambers just a moment ago. This is a document that appears in the first appeal book at page 1135, so this is the starter pack.

PN298

The first and obvious submission I make about this is that nowhere in the written agreement – that is the agreement that I was addressing your Honours on just a moment ago – or in the deed for that matter where you wouldn't expect to find a reference, anyway, is there any mention of this starter pack. This starter pack is not part of the agreement between any of these parties.

PN299

It illustrates the importance of paying close regard to the evidence, because if you just look at this document, if you go to page 1136 you will see there under the heading 'Personal company details', the first name, 'Peter', last name, 'Chambers', 'Company name, Jamrok Pty Ltd'. If you then go to the bank details, it's 'Jamrok Pty Ltd'. If you then go to page number – the page numbers are obscured on my copy, but if you go two pages further on to 'Smoking, alcohol and other drugs' – do you have that?

PN300

VICE PRESIDENT HATCHER: Yes.

PN301

MR POWER: Thank you. If you look at the first line you can see that it applies to employers, employees and self‑employed persons. If you go two pages on under 'ABI social terms and conditions', you will see that becoming a member is not restricted to employees, but also to housing consultants and supervisors who are distinguished there from employees.

PN302

This document illustrates two things. It illustrates first of all the importance of following the principles now established clearly by the High Court and being concerned with those documents that go to the contract itself. It illustrates the importance of – as your Honours (audio malfunction) indicated in your questions – establishing whether or not the submissions that are put by the appellants are supported by the evidence.

PN303

Again, I recommend to you a close reading of three sets of written submissions that we have identified because they clearly identify where there is evidence and where there is not evidence. Your Honour, may I take you to the adjudication point?

PN304

VICE PRESIDENT HATCHER: Yes.

PN305

MR POWER: So there is a history here which is relevant to the extent that your Honours need concern yourself of this adjudication point and it emerges from a consideration of the evidence. If I take you first of all to appeal book 1 at page 72. Your Honours, this is part of an argument that you can see from page 57 took place before the Commissioner and it explains why it was appropriate for the Commissioner at first instance to use the adjudication application, and the inconsistent position adopted by the appellants in that application for the limited purposes that he did.

PN306

If you go to paragraph number 138, you can see there the Commissioner is responding to an invitation from Mr Chambers to order the payment of some of the commissions said to be due. The passage goes down to paragraph number 144. At 140 the Commissioner says, 'I don't have powers to do that', and he then at 142 invites Mr Ebbs for the respondent to see whether he is voluntarily willing to do that. Then there is an answer from Mr Ebbs at 143 and at 144 the Commissioner makes the position clear. It is by this point in time apparent to the appellants that they cannot use this Commission to enforce payment.

PN307

If I could then take you to the appeal book at 354, at paragraph number PN3291. This is Mr Chambers dealing with re‑examination. About halfway down that paragraph he says:

PN308

I mean, we went down that path because the Commission wasn't able to – didn't have the jurisdiction over the payments to our – prior to our terminations. The Fair Work Commission is looking after our termination. That's how we saw – that's how I saw it and that's the advice we got.

PN309

Then at page 425, towards the bottom of that page, we're now dealing with the evidence in re‑examination from Ms O'Brien:

PN310

Can you explain why you invoiced Broadway after your termination?‑‑‑At the first hearing –

PN311

sorry, this is re‑examination of Mr Chambers –

PN312

I asked if the Commissioner had the ability to authorise a payment. We were told – he told us we could. Once or twice we – on that basis we decided we would look for another avenue and arranged –

PN313

VICE PRESIDENT HATCHER: So, Mr Power, where are we now? I've lost the place?

PN314

MR POWER: I'm sorry, your Honour, it's my fault entirely. The bottom of page 425, paragraph number 4075. You have that?

PN315

VICE PRESIDENT HATCHER: Yes, thank you, yes.

PN316

MR POWER: Then if we go to 433 at the top of the page, this time paragraph number 4170, this is where Williams C summarises the position:

PN317

You have already asked this, Mr Chambers, and it's not relevant (indistinct) clear. Mr Chambers and Ms O'Brien, from your perspective when you realised these proceedings (indistinct) quickly allow you to get what you believed was owing to you as employees, you proposed another route. I understood that. You have said that repeatedly. You had no other – otherwise you wouldn't get paid, so I understand that's your position.

PN318

What that illustrates, your Honours, is that one of the reasons why the appellants went down the route of seeking an adjudication under the construction contact is because they then understood they could not seek that relief in the Commission. The application for adjudication which was filed by Ms O'Brien can be seen at pages 908 to 928 of the appeal book. I regret that we have not provided you with a copy of the constructions contracts, but that can be addressed shortly after this hearing.

PN319

The first page of that application for adjudication appears on page 909. You can see it's an annexure to Mr Parkinson's affidavit, being annexure 11. If you then go to page 914 – this is important – I'm directing your Honours' attention to paragraphs 8, 9 and 15. Paragraph 8 it is said:

PN320

Peter Chambers and Jennifer O'Brien are currently in dispute with Broadway Homes regarding the true nature of their engagement; whether they were employees or agents of Jamrok engaged to provide professional services to Broadway Homes.

PN321

Paragraph 9:

PN322

Peter Chambers and Jennifer O'Brien commenced action with the Fair Work Commission. However, a determination has not been reached on that matter.

PN323

Paragraph 15:

PN324

Broadway's lawyer replied today via email to the invoice questioning the basis for payment being due and again further stated verbally the invoice would not be paid, at a directions hearing before the Fair Work Commission on Wednesday, 18 August.

PN325

The point of me taking your Honours rather laboriously to these parts of the appeal book is to make two points. The first is that the use of the adjudication claims and proceedings by the respondent was not in breach of any implied Harman undertaking because, first of all, when you have regard to provisions of the Construction Contracts Act – which we will get to – you will see that it is not a proceeding of the kind that is contemplated by the Harman undertaking; that is, it is not a proceeding of a court or a tribunal.

PN326

Secondly – and this is the most important point – you can see that what was taking place in that other jurisdiction was inextricably linked to what was taking place before the Commission so that the use by the Commissioner at first instance of the evidence relating to these claims and the adjudication application was proper, particularly where it was used for the limited two purposes that he did which are addressed in the written submissions filed in this appeal. Vice President, do you need a moment longer to read through what you're reading through?

PN327

VICE PRESIDENT HATCHER: No, no. Leaving aside whether it's a court or tribunal, does the implied undertaking in any way apply to originating processes? I wouldn't have thought it did.

PN328

MR POWER: I don't think so. Your Honours don't want to hear me on the procedural fairness aspects, do you, even though they are dealt with in the written submissions filed in this appeal?

PN329

VICE PRESIDENT HATCHER: Well, speaking for myself it seems to me that could only be relevant to the question of permission to appeal, but even then I would have thought that if against your submissions we consider that one or both of the appellants were at law employees, then that would itself be a sufficient basis to grant permission I would have thought, unless you tell me otherwise.

PN330

MR POWER: Yes, I don't quarrel with that at all, Vice President.

PN331

VICE PRESIDENT HATCHER: Yes, all right.

PN332

MR POWER: Would you bear with me for a moment, Vice President, your Honours?

PN333

VICE PRESIDENT HATCHER: Yes.

PN334

MR POWER: Your Honours, I am sorry for turning my back on you there. I was just taking instructions to make sure I missed nothing. We are otherwise, subject to any questions your Honours might have, content to rely on those three sets of written submissions that have been put before this Bench.

PN335

VICE PRESIDENT HATCHER: All right. Thank you. Mr Chambers, is there anything you want to say in reply to the oral submissions made by the respondent?

PN336

MR CHAMBERS: Is there any chance I can have a very short recess to compile references to the appeal book?

PN337

VICE PRESIDENT HATCHER: Yes. I mean, is this in reply to what has just been said, is it?

PN338

MR CHAMBERS: Yes, that is correct.

PN339

VICE PRESIDENT HATCHER: Would it be more convenient if we gave you leave simply to file a note that sets out the references to the matters you want to take us to? That is so you're not rushed. If you want to actually give some references to the matters you want to reply to, you can simply send the references in writing early next week if that's more convenient.

PN340

MR CHAMBERS: Yes, I would appreciate that. Thank you.

PN341

VICE PRESIDENT HATCHER: Mr Power, do you object to that course?

PN342

MR POWER: We wouldn't oppose the course, no.

PN343

VICE PRESIDENT HATCHER: All right. Subject to that, is there anything else you want to say now, Mr Chambers?

PN344

MR CHAMBERS: No, Mr Vice President. Thank you.

PN345

VICE PRESIDENT HATCHER: All right. Just to be clear, it will only deal with matters strictly in reply to what Mr Power has said this afternoon. Do you understand that?

PN346

MR CHAMBERS: Yes, I understand that.

PN347

VICE PRESIDENT HATCHER: Yes, all right. We thank the parties for their very useful submissions. Subject to our receipt of the further note from Mr Chambers in reply, we propose to reserve our decision and we will now adjourn.

ADJOURNED INDEFINITELY [4.11 PM]