Cowan v Mr Antenna Pty Ltd [1994] QIRC 35 (1994) 145 QGIG 541

540 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [I I March, 1994 11 March, I 994] QUEENSLAND GOVERNMENT INDUSTRIA L GAZETTE 541 ################## ######################### ## #####4## QUEE NSLAND IND USTR IAL RE LATIONS COMMISSION Industrial Relations Act 1990 s. 39 - application ior variation of contract Christopher John Cowan AND Mr Antenna Pry Ltd (N o. 860 5 of 199 3) CH IEF INDUSTRIAL COMM ISSIONE R HALL 2 March 1994 C ha racteri stics or Relat ionship of Empl oyer and Employee - W ri tten Con t rac t - Relevance of Conduct - s.39 - Constru ction of "Designed" - N ature and Exercise of D iscr et ion. DECIS ION Mr Antenna Pty Ltd, a corporation under the law, carries on the bu siness of installing television an tennae and Sdfe ty switch circuit breakers at diverse locations including the cities of Bri sbane and Ipswich in south-east Queensland. Christopher Joh n Cowan, an electrical fitter/mechanic wit h a trade cert ifi cate in radio electroni cs , was formerly one of a nu mb er of pe rsons engaged by Mr An tenna Pty Ltd to carry out the installation work itsel f. M r Cowan came into contact with Mr Antenna Pty Ltd by rep ly ing to an advertisement which the company had caused to be published in 1he Courier-Mail or 5 Apri l 1993. The advert 1semen1, wh ich appeared in th e Technical and Trades column of the Emp loyment sec ti on of the newspaper, was in th e following term s: "A G RADE ELl:CTRICIANS wan1ed full ti me work ava il ab le. M us t have own va n, mobile phone or pager + bond money of $ 1000 security deposit. Please phone Kim or Warwick on (03) 4 59 9999." . It is unnecessary 10 recount the negotiations wh ich flowed ou t of Mr Cowan 's telephone call in resp onse to t he ad vertisem en t. It is suffici en t 10 note tha t on 8 A pril 1993 M r Cowan and a M r Terry Wh ite acting on behalf of Mr An1enna Pty Ltd executed a contract the terms of wh rch (with errors) I reproduce below . " EMPLOYM ENT CON TRA CT betw een Mr Antenna Pty Ltd (the contractor) trading in the state of Queensland and Christopher J Cowan (the subcontractor) of 10 Norman Street, Ascot, Qld, 4007 mutually ag ree to the following. THE CO NT RA C I O R sha l l; a) market and promote the busin ess by advertising and other means as it sees fit in i ts absolu1e discretion, b) provide on t he job train ing and technical support in the form of si te visi ts by th e senior techn ic ian an d "free call 008" telephone communication wi th head office, cJ provide for the restocki ng of the sub-contractor, either in the fre ld from the seni or technician's van stock, t he sub- contractor attending at t he contractor' s warehou se(s) or, at the discretion of the contractor, by courier from th e contractor's store to the subcontractor or his home, d) use its bes t endeavour to schedule installations in a rational way with respect to travelling distances betw een job s as well as allowing sufficien1 time between jobs for necessary travelling, e) pay into the su b-contractor's account each Friday fortnight an am ou nt equal to 22 percen t of th e total invoice value or the wo rk performed by the sub-contractor in the fortnight ending at t he close of business the Wedn esday preceding and deduc1 from the sub-contractor's payment PPS taxation dedue1ions at t he ra te of 20% or other percentage endorsed on an exemp ti on certifica te produced by the sub-cont ract or. 0 pay into tht! same bank account an amount of 15 % of all new installation and service work procured by the sub- contractor by quoting neighbours of existing customers, business ca rd s etc. g) be at liberty to terminate this employment contract by giving 7 days notice and make a final payment to the sub- con tractor including the security deposit as In pa rag raph 1 2) bel ow . THE SUB-CONTRACTOR shall; 1) use an honest endeavour to promote the good name of the cont ra ctor by being of clean appearance, professional in conduct and punctua l when attending customers homes. 2) attend customers homes and install an tenna product rn accordance with estab lished company po l icy and the training and i nstructions given by the sen io r tec hnician an d h ead office management, 3) ensure the customer has received im proved TV reception cons is ten t with the results reaso nably expected from the w ork requ es ted and paid for by the customer, 4) reattend where necessary to correct customer complaints of poor reception. 5) pro mpt ly quote neighbours and leave bu si n ess ca rds in o rd er to procure further installation and servi ce work on behalf of the contractor and be paid at the rate of t 5°lo of 1he invoice value as in paragraph f) above. 6) if delayed on a jo b, give several hours not ice of the delay to ena bl e t he contractor to m ake al1ernative arrangemen ts with later customer-book ings or arrange another sub- contractor to ;mend. 7) deliver up all money col lected from customers on behalf of the contractor, either by si gn ing it over to the se n io r techn ician or i f not seen on any particular day by 1he senior 1echnician 1hen 1he sub-contractor will bank all proceeds into the contractor's ANZ bank account and shall do so afte r t he third job of the same day. 8) accoun t for stock consigned by the contractor by way of stocktake conducted by the senior technici an no l ess than once each and every month. 9) pay the contractor a $ 1,000 security deposit over th e stock, such money to be deposi ted into th e NAB bank account of the Mister Antenna Trust. 10) provide and maintain a mobile telephone so as 10 be ava ilable during th e wo rking day. 11 ) attend training sessions held by 1he contractor from time to l im e. 12) at liberty to terminate th is employment contract by 7 d ays notice either given to the sen ior techn ician or head office management and shall be entitled 10 recei ve his fina l pay and refund of the security deposit wi thin 2 working days of 1he return of t he contractors stock. 13) be res ponsible for acc ident inju ry i ns urance. 14) be responsible for the first $1 50 of any damage to a customer' s home cau sed by 1he sub-con1ractor. SIGN ED by the sub-contractor ....... ..(s ignatu re of C.J. Co wa n) SIGNED by the con tractor by ..............(signature of T. Wh i te) Date 8/4/93.'. At common law, where there is a wr itt en contract between the panies whose relationship is at i ssue, only the terms (expressed or imp lied) of the comract in 1he hght of the circumstances surrounding the making of it, may be taken into consideration in deter mi ning the nature of the relat ionship. The manner in wh ich the parti es subsequ en tly ac t ed in pursua nce of the contract may be considered only where it can be shown to have amounted to an agreed variation. Compare Australian Mucual Provident Society -v- Allan (1978) 52 ALJR 4 07 at 41 1 and Narich Ply Ltd -v- Commiss ioner of Pay-R oll Tax (1984) 58 A LJR 30 at 32. Approaching the matter in that way th e conclusion seems to me to be inescapable that the relationship be1ween Mr Antenna Pty Lt d and Mr Cowan was that of employer and employee. - -- 1 of 3 -- 542 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 11 March, 1994 I attach some weight to obligation (7) of the sub-contractor and obligation (e) of the contractor. The circumstance that the sub-contractor is not to deduct the commission due, nor indeed to account for moneys received, but to deliver up all of the money collected weighs against the conclusion that the contract is a contract for services, compare Hobbs -v- Royal Arsenal Co- operative Society Ltd (1930) 23 BWCC 254. I attach great weight to the obligation of the sub-contractor described at (2). For many years the question whether a relationship was that of employer and employee and the question whether the alleged employer had the right to direct how the work was to be done, were treated as synonymous. Whilst it is true that the modern approach is to have regard to a variety of criteria, "it remains the surest guide"; compare Stevens -v- Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 36 per Wilson and Dawson Jj. Certainly Mr Antenna Pty Lid's right to control the manner in which Mr Cowan performed his work must be given greater weight_ than the omission of a right to payment tor working excessive hours, holidays and absences attributable to ill-health, notwithstanding that the omission sits ill with the conclusion that the relationship was that of employer and employee. It matters not that the contractor had no power of summary dismissal for failure to conform to the contractors instructions. On any fair view of the contract, obligation (2) was an essential stipulation for breach of which the contractor might, on ordinary contractual principles, treat itself as discharged from the obligation further to perform the contract. Neither, in my view, is it fatal that the parties have chosen the labels "contractor" and "subcontractor". Where analysis of the substantive clauses shows the contract to be one _of service it matters not that the parties have sought to vary its nature' by themselves expressly characterising the relationship, compare Thiel -v- The Mutual Life and Citizens Assurance Co Ltd (1919) 14 QJPR5. There is here the further cons1derat1on that contemporaneously with exclusion of the contract Mr Cowan was required to complete a printed form headed: "Mr Antenna Employee Details" On the most benign construction of the transaction, the parties were entirely cavalier in the characterisation of their relationship. Notwithstanding the common law rule to which I have previously referred, an avalanche of evidence was led as to the way in which the parties had carried out their agreement. There is some authority for the view that, in the Commission, such evidence is adm·1ssable. For example, in Re: Municipal Baths Attendants' Award - State (1969) 71 QGIG 249 at 250 Hanger, President said "While, however, the documents to which I have referred ~ontain the basic conditions of the appointment, it is relevant to see what was done by the parties to the contract to find out the real relations which were established between them." See also Thiel -v- The Mutual Life and Citizens Assurance Co. Ltd (1919) 14 QJPR5. The justification for the departure from the common law rule is, I think, to be found in s. 70(i) which declares the Commission not to be "bound by the rules or practice of the Courts as to evidence or procedure". Certainly, Williams J. seems to have put the matter on that basis in The Queen -v- Foster; ex-parte Life (Amalgamated) Assurances Limited (1951-1952) 85 CLR 138 at 158 when dealing with the comparable provisions of the Conciliation and Arbitration Act 1904 (Commonwealth). (The common law rule is fundamentally a rule of evidence, see Winks -v- W.H. Heck and Sons Pty Ltd [1986] 1 Qd. R. 226 at 238 per Thomas J.). Further, given that the purpose of s. 39 is to deal with contractual arrangements which are "subterfuges", compare Brown -v- Rezitis (1970) 127 CLR 157 at 164 per Barwick C.J., it would in my view be extraord·1nary if the Commission were confined to the consideration of documents executed by the parties, in determining the true nature of their relationship, compare Agius - v- Arrow Freightways Pty Ltd [1965] A.R. (NSW) 77 at 86. In my view the evidence, which was led without objection, was admissible. In the event the evidence relating to the performance of the contract served only to confirm that the relationship was that of employer and employee. First, it appears that the way in which Mr Antenna Pty Ltd instructed its workers as to the manner of performance of their work was to send a senior employee out with each worker for one or two days a week during the initial part of the worker's employment in order that the worker might be instructed in an "on the job" way. There was a further arrangement (after the effluxion of the initial period) for a senior employee to be telephoned if a particular job proved difficult. That senior employee would either give advice over the telephone or go to the site to assist. Second, Mr Antenna Pty Ltd seems to have had the control of Mr Cowan's time. At the outset Mr Cowan was telephoned every night and given the addresses which was expected _to attend the next day and the times at which was expected to do It. There was some opportunity for Mr Cowan to persuade Mr Antenna Pty Ltd to vary the order of the tasks, but the final decision always lay with Mr Antenna Pty Ltd. However, in the course of time, the arrangement changed, Mr Cowan was given only the time of the first task for the following day and the suburbs in which the other tasks were located. Only after he had in fact completed the first task was Mr Cowan given the precise location of the second job and the time fixed for his attendance. Neither arrangement sits comfortably with the notion that Mr Cowan was an independent contractor. Independent contractors normally control their own time. However, given that once Mr Antenna Pty Ltd committed itself to a business venture which involved soliciting customers to place orders by telephoning the Melbourne office by a toll-free number and which involved delegating the actual task of installation to a tradesperson located within the customers geographic area, at least the measure of regulation of the tradesperson's time which was originally asserted became a necessity. In the premises, I do not regard the original method of regulation as incompatible with the relationship of contractor and subcontractor. However the method of release of customer appointments ultimately adopted, seems to me to so drain the alleged subcontractor of all control, and indeed knowledge, over allocation of the alleged subcontractor's time as to make the use of the terms contractor and subcontractor entirely inappropriate. Mr Kirkitscha, who appeared for Mr Antenna Pty Ltd, sought to make something of a suggestion that Mr Cowan might have employed somebody to perform the work. on his behalf, and of the circumstance that Mr Cowan was permitted to perform and to profit from small jobs (e.g. installation of power points) offered_ to him by customers whilst he was on the premises .. As to the first point, it is clear that the essence of a contract _which creates the relationship of employer and employee Is that It Is a contract for the supply of a person's work and skill, whereas, on _the other hand the essence of a contract which creates the relat1onsh1p of entrepreneur and independent contractor is that it is a contract under which the contractor performs obligations, not by the performance of work but by producing an end result, albeit the end result is a consequence of the performance of work and that such performance was something contemplated by the parties. See generally Price -v- Grant Industries (1978) 21 ALR 388. It would in my view weigh quite heavily against the conclusion that Mr Cowan was an employee that he was permitted to employ another person to perform his work. However, all that the evidence shows is that Mr Cowan had suggested such an arrangement to Mr Anderson in the course of conversation as a good idea, and that Mr Anderson had replied that the compan_y did not permit such transactions. Mr Anderson, I might add, 1s not shown to have had authority to negotiate about the terms of Mr Cowan's engagement as distinct from the authority to proffer forms for signature and to collect them once signed. In short, the argument is good but it is well in advance of the facts. As to the c·1rcumstance that Mr Cowan was permitted to perform small jobs for customers, an arrangement which is not shown to have been known about at the head (Melbourne) office of Mr Antenna Pty Ltd it seems to me on the basis of what I have been told, that the arr~ngement was negotiated between Mr Cowan and Mr White because such offers from a principal's customers whilst an electrician is on their premises are such a common place occurrence. If that be so, whatever the relationship between the electrician and the principal, that the proper and prudent course is to establish in advance how they are to be dealt with. In my view the circumstance is neutral. In the premises, I am satisfied that the relationship between Mr Cowan and Mr Antenna Pty Ltd was that of employee and employer. It is common ground between the parties that if the relationship between the Mr Cowan and Mr Antenna Pty Ltd was in truth that of employee and employer, the common rule award which regulated the relationship was the Engineering Award - State. There is a disagreement between the parties about the classification level which attached to the engagement. It is contended for Mr Antenna Pty Limited that the appropriate remuneration level is that attaching to classification 12. Mr Roberts for the Applicant submits that the appropriate level of remuneration is that at classification 10. Shorn of its complexities, the issue is whether Mr Cowan was engaged to install antennae or as an electrical mechanic. I consider the latter to have been the case. The evidence is that in the course of conversation with Mr 11 March, 1994] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 543 White and Mr Anderson at the time of his engagement, Mr Cowan was told that he would be required to install circuit breaker safety switches as well as to install antennae. Although the installation of safety switches seems to have been a minor and diminishing segment ot the company's business in Queensland, Mr Cowan in fact spent about 37% of his time installing safety switches. The installation of safety switches forms part of the work of an electrical mechanic, as indeed does the installation of antennae. The installation of safety switches is no part of the work of a person employed to install antennae. The advertisement (previously set out) refers to "A Grade Electricians". In this state th_ere is no such beast. The evidence is that in Victoria, the state ot origin of the business of Mr Antenna Pty Ltd, the expression "A Grade Electrician" is used to describe an electrician holding a license to perform a variety of tasks including, inter alia, the installation of safety switches. A tradesperson does not require a license to carry out the work of installing antennae. The counterpart Queensland license is an electrical mechanics license. Once again it is necessary for a tradesperson to hold such a license to be able lawfully to install safety switches. Once again It Is not necessary to hold such a license lawfully to install antennae. The parties have, responsibly in my view, sought to minimise and length and the cost of these proceedings by reaching agreement upon the amount of money which would have been paid to Mr Cowan over the period of his employment if he had been remunerated under the Engineering Award - State, instead of under the contract. In the end result, because the records available to them contain considerable detail, the parties have been able to identify the hours which Mr Cowan worked and the times at which he worked them, and to calculate how much he would have been paid in respect of "time" worked. Unfortunately, the parties have not been able to identify or to agree upon the time which Mr Cowan would have spent in travelling to and from work. That is a matter of some importance. Under the Award an employee Is entitled to be remunerated in respect of time so used. Mr Cowan's evidence is that on each day of his engagement he spent half an hour travelling to his first customer and half an hour returning home after servicing his last customer. Mr Cowan's diary, which was put in evidence, is quite detailed and contains entries to that effect. It is however entirely improbable, given the variations in the locations of the customers which appear from the diary, that on every occasion it would have taken Mr Cowan half an hour to drive to the first job and half an hour to return home from the last. With respect to him, it seems to me that the figures relating to travelling time which appear in the diary should be treated as no more than rough and ready approximations. The consequence is, of course, that I cannot determine precisely how much would have been paid to Mr Cowan in respect of time if he'd been paid under the Award. The best which I can do on the materials available to me is to find that if Mr Cowan's estimates of travelling time were correct the total amount which he would have received in respect of "time" if paid under the Award would have been $1,350.23 less than the amount which he in fact received under the contract. It follows, given my rejection of Mr Cowan's estimates of his travelling time, that the best correct finding I can make is that Mr Cowan was paid in respect of "time" in excess of $1,350.23 more than the amount which he would have received if paid under the Award. It does not follow that Mr Cowan received more than he would have received if paid under the Award. If paid under the Award Mr Cowan would have been paid an allowance in respect of mileage, an allowance in respect of overtime meals and a payment in respect of consumable tools used in the course of the engagement. He would also, upon termination of his employment, have been paid one week's wages (plus tool allowance) in lieu of notice and a sum of money in respect of pro rata holiday pay. In respect of some of those items the parties have _been able to reach agreement. It is agreed that in respect of overtime meal allowances Mr Cowan would have received $210.80, that in respect of consumable tools he would have received $135.62, that in respect of payment in lieu of notice he would have received $428.00 and of the amount payable in lieu of annual leave would have been $1,002.02. Regrettably, the parties have not been able to agree upon the mileage allowance. I _can understand the absence of agreement. Mr Cowan's evidence, which I accept, is that he hardly ever used his business vehicle for private purposes. Proceeding from that base, Mr Co_wan says that in an impressionistic way and without the gu1_dance which detailed records might have afforded him, he estimates that 97% of the kilometres which he drove during his engagement by the company were driven on the company's behalf. Mr Kirkitscha submits that the Respondent cannot test an estimate arrived at in that way and that I should not accept it. I agree. It seems to me that the best that I can probably do is adopt the robust approach that on Mr Cowan's estimate the total amount of the mileage allowance would have amounted to $2,646.38 and that the true figure is something less than that. If one adopts the approach which I have described and does the necessary addition, one reaches the conclusion that if paid under the Award instead of under the contract Mr Cowan would have received something less than $3,072.59 more than he was in tact paid. It is in those circumstances that on 27 October 1993, twelve days after Mr Cowan's engagement by Mr Antenna Pty Ltd came to an end, that Mr Camp of the Electrical Trades Union of Employees of Australia, Queensland Branch filed an application under s. 39 on Mr Cowan's behalf. It is not necessary to set forward in full the relief which was ultimately sought. It is sufficient to say that Mr Cowan seeks variations to the contract which would have the effect of - (a) requiring that he be paid on the basis of the Award instead of on a commission basis, (b) preserving his entitlement to be paid a commission in respect of customers introduced by him to Mr Antenna Pty Ltd, and (c) requiring that he be reimbursed for telephone expenses incurred in the service of Mr Antenna Pty Ltd. Additionally, Mr Cowan seeks an Order that he be paid a sum ot money equivalent to the difference between the sum which he was in fact paid and the sum which would have been paid to him had he been paid in accordance with the contract as varied. To trigger jurisdiction under the relevant limb of s. 39(1), viz. paragraph (a), it is necessary for the Applicant to show either that the contract to which the Applicant is a party avoids the provisions of an award or is designed to avoid the provisions of an award. In this case, for the reasons previously set forth, the contract did not avoid the provisions of the relevant common rule award. The issue, then, is whether it was "designed" to do so. In its primary meaning "design" involves "purpose", compare Sando Pty Ltd -v- Federal Commissioner of Taxation (1991) 102 ALR 362 at 364. Here, the purpose of Mr Antenna Pty Ltd was to avoid creation of the relationship of employer and employee. At paragraph 5 of the Affidavit of David Anderson (the Company's only witness), Mr Anderson opposes - "The Company determined to engage contractors, rather than employing workers firstly as this procedure had proved successful for both the company and the contractors in the Victorian operation and secondly because it was not proposed to establish an actual office in the Brisbane area.". It would in my view be destructive of the utility of s. 39 to distinguish between the case where the purpose is to avoid the relationship of employer and employee with all of its incidents, and the case where the purpose of avoiding one of those incidents, viz. the common rule award, is solely or dominantly the purpose. Additionally to showing that the contract is designed to avoid the award, it is necessary for the Applicant to establish one or other of the grounds at paragraphs (c) to (f) of s. 39(1). Mr Roberts for the Applicant argues that it falls within each of paragraph (c) and paragraph (f). The contract is not unfair on its face. On the face of the document whether a tradesperson would earn more or less by working under the Engineering Award - State, depends on the quantu_m of work which the tradesperson ultimately completes. No evidence has been led on the basis which I could find as a fact that a tradesperson of ordinary competence and diligence working the ordinary hours under the Award would not earn more under the contract than the amount which would have been payable under the Award. There is evidence before me that other tradespersons engaged on the same terms as Mr Cowan earned CCJnsiderably more than he did. The evidence appears in the att1dav1t ot Mr Anderson. The Applicant had access to that atf1dav1t for almost a month prior to the completion of the cross- examination of Mr Anderson. No attempt was made to force the Respondent to discover the records which would have shown the number of hours worked and the times of which those hours were worked to achieve those earnings. Doubtless, earnings under the contract depended in part on the number and the location of the jobs allocated to the tradesperson. No evidence was lead on the -- 2 of 3 -- 544 QUEENSLAND GOVERNMENT INDUSTRJAL GAZETTE [ 11 March, 1994 basis wh i ch I cou ld find that there was un fa i rness in the way in wh ich the Res pondent h ad allocated installations to Mr Cowan. It is apparent from h is ow n eviden ce that M r Cowan had reservat io ns from the outset about the true effect of the contract whic h he had signed. On any vi ew of the evidence, he h as k ep t the most meticulous records and, save as to mi l eage and travelling time, has put himself in a position in which his entitlements under t he Award may be ca lcu lated retrospectively. Mr Anderson says, an d he was not cross-examined on t he po int, that Mr Cowan had on a couple of occasions raised with him the ques ti on whet he r he should have been paid under the Award. T he inference, or so i t seems to me is that M r Cowan at all times appreciated he was an employee an d that the Award attached. Notw ithstanding Mr Roberts ' persua si ve argum en t, th is seems to me to be a case in whic h Mr Cowan took a ca lcul ated busi ness risk in t he be lief that if hi s ventu re fai l ed he might trea t so me common rule awa rd (pe rhaps th en unk nown to hi m) as a guarant ee, and make a claim for what he should have received under the Awa rd. W hy a contract ente red into under th ose ci rcum stances should, as between the parti es , be treated as unfa ir to M r Cowan, I quite fa il to understand. Lest the matter goes further, I should add that if I had found that I had juri sdicti on on the basis the contract wa s "unfair" I wo uld not, in light of the findings I have m ade, h ave exe rcised the discreti on which s. 39(1) ves ts to make a va riation order at the behest of Mr Cowan. I would respectfully adopt what was sa id by the Industri al Commi ssion of New Sou th Wal es in Court Session in rel at ion to th e New Sou th Wales cou nterpart provision: "Where su ch a calculated ri sk is taken it i s not intended by s. 88 that t he other party should become a guarantor, as it were, that the busi ness wi ll be sucess iul, or that the party performing the work wi ll receive at l east the ra tes of pay he wou ld have rece ived had he been an employee.", Autobake Pey. Lid. -v- Budd (1986) 19 IR 18 at 29. It i s plain however, th at Mr Roberts has made out his case in re lation to paragraph (fJ . The remunerat ion whi ch Mr Cowan received was l ess t han the remunerat ion which he w o uld have received if pa id under the Engineering Award - State. On the face of th e sect ion, the Commi ssion has a discreti on even in such a ca se. When used in an Act in relation to a power the word "may" indicates that th e power may be exercised or not exercised, at discretion, see Aces Interpretation Ace 1954, s. 32 CA (1). T he history of s. 39 indi ca t es plainly enough that in t he case oi an exerci se of j uri sdiction based on pa ragraphs (cl to (e), the Commission has di sc retion. The New South Wal es counterpart provision has b een held to ves t a discretion even in the case describ ed at (I) , see Autobake Pty. Ltd. -v- Budd (1986) 19 IR 18 at 29. Ho wever, granted that the discretion exists, it see ms to me that in a case such as th is the di scre tion may be exe rc i sed in one way only I have already held th at al though the contract was d irected to avoiding th e Award it did not do so. It foll ows that t he Engineering - State prevai ls over t he con tract the extent of the incons is tency, see s. 139(1), an d that pursuant to s. 1 39( 2) the contrac t i s to be construed, and tak es effect, as i f it were vari ed so fa r as is necessary to make it conform to the Award . . " In those circumstances it seems to me th at there is no proper basis on which I m ay refrain from maki ng those va ri at ions to the Award which a re necessary in order to ensure that, in te rms, it requires that t he "subcontractor" be pa id in accordance with th e Engineering Award - State. I am not however prepare d to make th os e al te rati ons witho ut abrogating the "s ubcontractor' s" right to paymen t oi a commiss i on in respect of customers located and/or introduced. There i s no evidence befo re me that employers in the Company's industry customarily pays such commi ssions to their employees. To req uire payment un der the Award and payment of th at commission would be to make a contract which is enti re ly different from th at originally st ruck between the parties. Further, although the matter has not been argued, it se ems to me th at th e purpose of s. 39 is to enable orders to be made for the p urpose oi correcting the element of inequity on the bas is of which ju risdiction was cla imed and th at the section is not intended to authori se arbitration at large on the appropri ate terms of t he contract. Fo r the same reasons I reject Mr Cowen's cla im to va riations req uiring the p aym ent in respect of busi ness telephone ca ll s, pu b li c li ab ility insurance, bridge tolls and tool insurance. There re mai ns the question whether I should order that the Respondent pay a sum of money to M r Cowen. Th e inevitab l e consequence of fa iling to make such an order is that Mr Cowen w ill be left to enforce the contract as va ried in the Industrial Magi st rates Court. It is plai nly not " just" to require that two proceedings be ta k en when one w il l do. And the measu re oi authority under s. 39(3) i s what "appears to the Comm is sion to be ju st in the ci rcum stances of the case" . On t he other hand I have held that taking the most robust view the best that I can do is conclude that if he ha d been paid in accordance wi th the Award Mr Cowen would have rece iv ed so mething le ss than $3,072. 59 in excess of the amount which he did in fact receive. Bearing in mi nd that M r Cowan was engaged for only six mont hs, t ha t he was entitled to an indetermina te ti gure l ess than $10.80 for travel ling time in re spect of each week, and tha t having regard to h is evidence that he ha rdly u sed his vehicle at all for private purposes one could safe ly quantify the extent of business use as something in ex cess of 75%, it seems to me th at I may saiely award Mr Cowan the sum of $2,050 an d sti ll fee l con fident that the Respondent h as not been required to pay mo re tha n t he Respondent would have b een ordered to pay i f fu ll d eta ils we re avail ab le. Given the con stru cti ve way in wh ich the parti es have dealt w i th this difficu lt case, the dec is ion ab ove should reso lve it. If I be wrong in th at and it is necess ary to draw up a formal Order, my Associate will li st the matter on reques t. D.R. HALL, Chief Industrial Commi ss ioner. Appearances:- M r N .S . Roberts of The Elec trical Trades Union of Employees oi Australi a, Queensland Branch, fo r Christopher Jo hn Cow an. M r N.P. K irki ts cha of Messrs Sm its Lesli e Barwick for and on behalf of Mr Antenna Pty. Ltd . Operative Date: NiA Decision - Contract of Emp loymen t Released: 2 March 1994 #################################################### 11 March, 1994] QUEENSLAND GOVERNMENT IND US TRIAL GAZET TE 545 -- 3 of 3 --