References: (1949) 79 CLR 389
Links: Austlii
Coram: Latham CJ, Rich and Dixon JJ
Ratio: High Court of Australia – The Court was asked whether a contract was one of employment. For a number of years the owner had taken his truck at about the same time each day to the respondents’ factory where he had been given goods to deliver to their customers. He carried on delivering goods until about the same time each evening when he knocked off. He maintained the truck and supplied the fuel at his own expense, and was paid for goods carried at a rate per car-mile.
Held: There was a continuing contract between the respondents and the owner which was not a contract of service.
Dixon J said: ‘The question is not whether in practice the work was in fact done subject to a direction and control exercised by any actual supervision or whether any actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions. . In the present case the contract by the deceased was to provide not merely his own labour but the use of heavy mechanical transport, driven by power, which he maintained and fuelled for the purpose. The most important part of the work to be performed by his own labour consisted in the operation of his own motor truck and the essential part of the service for which the respondents contracted was the transportation of their goods by the mechanical means he thus supplied. The essence of a contract of service is the supply of the work and skill of a man. But the emphasis in the case of the present contract is upon mechanical traction. This was to be done by his own property in his own possession and control. There is no ground for imputing to the parties a common intention that in all the management and control of his own vehicle, in all the ways in which he used it for the purpose of carrying their goods, he should be subject to the commands of the respondents.’
This case is cited by:
- Cited – Montgomery v Johnson Underwood Ltd CA (Times 16-Mar-01, Gazette 17-May-01, Bailii, [2001] EWCA Civ 318, [2001] ICR 819, [2001] IRLR 269, [2001] Emp LR 405)
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . . - Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD ([1968] 2 QB 497, [1968] 1 All ER 433, [1968] 2 WLR 775, Bailii, [1967] EWHC QB 3)
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
(This list may be incomplete)
Last Update: 01-Aug-16
Ref: 194303
