Moon Recruitment v Execom: WA District Court Workers’ Comp Ruling

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION : PERTH
CITATION : MOON RECRUITMENT PTY LTD -v- EXECOM SOFTWARE PTY LTD t/as EXECOM PERSONNEL [2025] WADC 18
CORAM : SWEENEY DCJ
HEARD : 8 JUNE 2023
DELIVERED : 3 APRIL 2025
FILE NO/S : APP 66 of 2022
BETWEEN : MOON RECRUITMENT PTY LTD
Appellant
AND
EXECOM SOFTWARE PTY LTD t/as EXECOM PERSONNEL
First Respondent
ADAM HORNE
Second Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS’ COMPENSATION ARBITRATION SERVICE
Coram : ARBITRATOR RUTHERFORD
File Number : A104376
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Catchwords:
Workers’ compensation – True employer case – Alleged error of law by arbitrator – Identity of employer – Misdescription of party
Legislation:
Workers’ Compensation and Injury Management Act 1981 (WA), s 5, s 71
Result:
Leave to appeal refused in APP 66 of 2022 and related APP 65 of 2022
The court will hear from the parties as to the possible amendment of the appellant in both appeals prior to the making of final orders
Representation:
Counsel:
Appellant
:
Mr G R Hancy
First Respondent
:
Mr T Lampropoulos
Second Respondent
:
Mr R D McCabe
Solicitors:
Appellant
:
Hall & Wilcox (Perth)
First Respondent
:
HWL Ebsworth Lawyers (Perth)
Second Respondent
:
Foyle Legal
Case(s) referred to in decision(s):
Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Mutual Provident Society v Chaplin; sub nom Australian Mutual Provident Society v Allan (1978) 52 ALJR 407; (1978) 18 ALR 385
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
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Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Brogden v Metropolitan Railway Company (1877) 2 App Cas 666
C & T Grinter Transport Services Pty Ltd (in liq) & Grinter Transport Pty Ltd (in liq); Ex parte Fitzgerald & Adams [2004] FCA 1148
Carey v President of the Industrial Court Queensland [2004] QCA 62
Catholic Education Office of WA v Granitto [2012] WASCA 266
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165; (2022) 96 ALJR 89
Damevski v Giudice [2003] FCAFC 252
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Esanda Ltd v Burgess [1984] 2 NSWLR 139; [1985] ANZ ConvR 32
Fagan v Minister for Corrective Services [2024] WASCA 167
Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391
Gothard, in the matter of AFG Pty Ltd (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163
Hawke v Edwards (1947) 48 SR (NSW) 21
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Laidlaw v Hillier Hewitt Elsley Pty Ltd [2009] NSWCA 44
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181
Marks v Coles Supermarkets [2021] WASCA 176
Marshall v Whittaker’s Building Supply Company (1963) 109 CLR 210
McCluskey v Karagiozis [2002] FCA 1137; (2002) 120 IR 147
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1
Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597
Nokes v Doncaster Amalgamated Collieries [1940] AC 1014
Nugawela v Medical Board of Australia [2023] WASCA 92
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pitcher v Langford (1991) 23 NSWLR 142
R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138
Raftland Pty Ltd as Trustee of the Raftland Trust v Commissioner of Taxation [2008] HCA 21; (2008) 238 CLR 516
Resilient Investment Group Pty Ltd v Barnet and Hodgkinson as liquidators of Spitfire Corporation Ltd (in liq) [2023] NSWCA 118
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RJ Baker Nominees Pty Ltd v Parsons Management Group Pty Ltd [2010] WASCA 128
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125
Snook v London and West Riding Investments Ltd [1967] 2 QB 786
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161
Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456
ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2
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SWEENEY DCJ
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SWEENEY DCJ:
Introduction
1
Two related appeals, both from the decision of an arbitrator of the Workers’ Compensation Arbitration Service, were heard concurrently in this court. One appeal (APP 66/2022) concerned the arbitrator’s finding that it was ‘Moon Recruitment’ (Moon Recruitment), and not the first respondent Execom Software Pty Ltd (Execom), which had been the employer of the second respondent, Mr Adam Horne, when he was injured at work. At the time of the hearing before the arbitrator, the appellant in this appeal, Moon Recruitment Pty Ltd was identified only as Moon Recruitment. The arbitrator ordered Moon Recruitment to reimburse Execom for the workers’ compensation payments it had already made to Mr Horne.
2
In a related application by Mr Horne, the arbitrator also ordered that Ms Kerrie Moon trading as Moon Recruitment pay weekly workers’ compensation payments to Mr Horne. The other appeal (APP 65/2022) concerned that order.
3
It was uncontroversial that Mr Horne had been injured in the workplace of Echo Marine on 2 September 2019, his first day of work. He had answered an advertisement placed by Moon Recruitment in August 2019 for a three-month position as a fabricator on a boat building project with Echo Marine in the suburb of Henderson, at competitive industry rates.
4
Moon Recruitment had an agreement with Echo Marine to supply workers to it on a labour-hire basis. ‘Labour-hire’ workers are typically employed and paid by the labour-hire business, but work at the ‘host’ project or business, often under the direct supervision of the host, and the labour-hire business typically charges the host business for their workers’ wages, superannuation, workers’ compensation insurance premiums and other expenses, and an additional fee for providing the workers. Under such an arrangement, it was the labour-hire business, rather than the host business, which was obliged by the Workers’ Compensation and Injury Management Act 1981 (WA) (the Act) to arrange workers’ compensation insurance to cover any work-related injury.
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5
Ms Kerrie Moon of Moon Recruitment interviewed Mr Horne and thought him suitable, sent him to Echo Marine for his welding test to demonstrate his skills and told him that he had secured the job subject to a drug and alcohol screen, which she organised for him. She also provided him with a uniform.
6
By prior arrangement between Moon Recruitment and Execom, Mr Horne was then sent a written offer on 30 August 2019 by Execom (the Execom offer) concerning that same job, by which he would agree to provide his services to Execom’s ‘client’ and Execom would agree to pay him, as well as to take out workers’ compensation insurance which covered him. But Echo Marine was not Execom’s client. It had no contractual or other relationship with Echo Marine, the business at which he was to work. Execom did arrange for Mr Horne to be covered by a workers’ compensation policy with its insurer. Mr Horne commenced work at Echo Marine and was promptly injured. Weeks after he had been injured, Mr Horne signed the Execom offer. Execom made a claim on its insurer, which accepted liability to make workers’ compensation payments to Mr Horne and did so.
7
Eventually, however, Execom brought an application against Mr Horne and Moon Recruitment (matter no A104376) pursuant to s 71 of the Act, asserting that Mr Horne had not been lawfully entitled to those payments from Execom. In the event that it was successful, Execom sought an order that Moon Recruitment, which it argued was Mr Horne’s employer, reimburse it for the payments it had made. No order was sought against Mr Horne. Mr Horne brought his own application (matter no A105048) against both Execom and ‘Kerrie Moon t/as Moon Recruitment’, seeking an order for weekly compensation payments and expenses against whichever entity was found to be liable in matter A104376. The matters were consolidated and heard together and the arbitrator published the one decision.
8
It being Execom’s application for reimbursement, the onus lay on it to satisfy the arbitrator, on the balance of probabilities, that it was not Mr Horne’s employer within the meaning of the Act and he had not been lawfully entitled, therefore, to the payments he had received from Execom. It was accepted by all parties during that hearing, as before this court, that Mr Horne was entitled to receive workers’ compensation payments, the issue being which of the two potential employers was liable for those payments. It was accepted that one of the parties was liable as Mr Horne’s employer within the meaning of the Act. The arbitrator was persuaded that Execom was not
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Mr
Horne’s employer and that Moon Recruitment was, and ordered Moon Recruitment to reimburse Execom accordingly. Moon Recruitment appeals that decision by these proceedings: APP 66/2022. That is the substantive issue before this court.
9
For the reasons which appear below, and subject to the description of the party being clarified, in APP 66/2022 the arbitrator’s decision is upheld.
10
In Mr Horne’s related application before the arbitrator, seeking an order for weekly workers’ compensation payments from whichever party was found liable in matter A104376, the arbitrator ordered ‘the first respondent’ in that application to make those payments, the first respondent having been named as ‘Kerrie Moon t/as Moon Recruitment’. By APP 65/2022 Ms Moon appeals that decision on the basis that it was Moon Recruitment Pty Ltd which traded as Moon Recruitment, and not Ms Moon in her personal capacity and that Ms Moon did not enter into any contract of employment with Mr Horne.
11
As mentioned above, the tribunal heading in the application by Execom in matter A104376 described the second respondent as merely ‘Moon Recruitment’, not ‘Moon Recruitment Pty Ltd’. The arbitrator in his reasons for both matters simply referred to ‘Moon Recruitment’, abbreviated to ‘Moon’.
12
The variations ‘Moon Recruitment’, ‘Moon Recruitment Pty Ltd’ and ‘Kerrie Moon trading as Moon Recruitment’ were used interchangeably in the filed documents and documentary evidence before the arbitrator. Amongst the exhibits before the arbitrator, ‘Moon Recruitment’ was the name employed in a 2015 agreement between Moon Recruitment and Execom, but ‘Moon Recruitment Pty Ltd’ was the name employed in a July 2019 agreement between Moon Recruitment and Echo Marine, prior to Mr Horne’s injury occurring.
13
Counsel for both Moon Recruitment and Ms Moon informed this court that Ms Moon had once traded under the business name ‘Moon Recruitment’ but, by the relevant time, Moon Recruitment was an incorporated body and Ms Moon no longer traded in her own capacity. The issue was not raised with the arbitrator.
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14
The two orders made were not, on their face, inconsistent. Had one order referred to Moon Recruitment Pty Ltd while the other related to Ms Moon, there would have been an error on the face of two inconsistent orders but, in fact, neither order identified Moon Recruitment as a corporate body.
15
The arbitrator made no finding in his reasons that Ms Moon was the employer of Mr Horne in her personal capacity. If the issue of the description had been raised by Ms Moon and Moon Recruitment’s lawyers before the arbitrator, an amendment could have been made at that time to the description of the party. The arbitrator had power to set his own practice and procedure: s 188(5) of the Act. He also had the power to correct an error, post decision, to a material mistake in the description of any person: s 216. This court has power on appeal to vary any decision made, or make an additional decision as should have been made in the first instance, as this court thinks fit: s 250. That power encompasses an amendment to the description of the party in the orders made.
16
It was made plain before this court that this argument was not advanced on the part of Ms Moon or Moon Recruitment on appeal in order that Mr Horne would not be able to receive workers’ compensation payments. The court was informed that the insurance company which had funded the appeals would respond to the liability to make payments in the event the substantive appeal failed. In those circumstances and on that basis, neither Mr Horne nor Execom opposed an amendment being made by this court to the description identifying the proper party to make those workers’ compensation payments in the event that the substantive appeal failed. If the appeal in APP 66/2022 succeeded and liability rested once more with Execom, then the point was academic. After those preliminary discussions and on that basis, Mr Horne, who took a neutral stance on the substantive issues, did not wish to take an active role in the hearing and his counsel was given leave to withdraw to await this decision. The matter of the amendment is revisited at the conclusion of this decision.
Nature of appeal to this court
17
The arbitrator provided written reasons for his decision. In such circumstances a party may, with the leave of this court, appeal the decision, but this court is not to grant leave unless ‘a question of law is involved’: s 247(2) of the Act. No leave had been given in advance of the hearing of the appeals.
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18
A ‘question of law is involved’ where either an error of law, or an error of mixed law and fact, is involved. In a plain case, the application for leave may be dealt with before considering the grounds of appeal, but often it may be preferable to consider the question of leave after considering the merits of the grounds, and the court is not bound to accept that an error of law is ‘involved’ merely because it has been asserted: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [14] – [15] (Pullin JA).
19
No error of law is involved in a wrong or doubtful finding or inference of fact on the evidence, but where findings of fact have been made or inferences drawn without any evidence to support them, an error of law is involved: Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [31] (Erceg v Galati) and the cases cited therein.
20
An appeal to this court pursuant to s 247 of the Act is by way of a review on the basis of the materials which were before the arbitrator, subject to the giving of leave to adduce fresh or other evidence. The parties did not seek to put any additional evidence before this court.
21
If an error of law is involved, the grant of leave to appeal remains discretionary but, if leave to appeal is granted, then the appeal is to be by way of a real review of the decision. Such a review is not a hearing de novo. The court does not start again from the beginning, as though the original decision under appeal had not been made, in order to arrive at a view afresh. An appellant must provide a proper basis, by way of establishing error, for disturbing the decision of the arbitrator: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [26] – [27] (Wheeler JA) (Pacific Industrial). That is in addition to the requirement that, in order to obtain leave to appeal, the appeal must involve a matter of law: Catholic Education Office of WA v Granitto [2012] WASCA 266 [56] – [57] (cited with approval in Marks v Coles Supermarkets [2021] WASCA 176 [116]). Simply arguing that this court should reach a different decision on the evidence and substitute that decision for that of the arbitrator is not a proper basis for a review: Pacific Industrial [26] – [27] (Wheeler JA).
22
The appeal in Pacific Industrial concerned the interpretation of the previous version of s 247, which was in similar terms to the section pursuant to which these appeals were filed, except that an appeal lay to the since-abolished office of the Commissioner. The Commissioner had observed that a finding of fact based on the arbitrator’s evaluation
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of the evidence was not correctable on appeal. On appeal from the
Commissioner’s decision, Wheeler JA, with whom the rest of the court agreed, drew the distinction between the requirement that a question of law be involved as a condition precedent to the granting of leave to appeal, and the task to be undertaken in the review of the arbitrator’s decision. If an error of law is involved, then the jurisdiction to review is enlivened and the court is not restricted to correcting errors of law. Pacific Industrial was affirmed as correct and of continued application in the Court of Appeal decision of Marks v Coles Supermarkets [5], [124]. In the judgment, the court held that [124]:
It is not sufficient to satisfy the District Court judge that a decision other than that made by the arbitrator is correct and preferable. Some material error of fact or law, or some other miscarriage of justice, must be established.
23
The court also made observations [126] about the need for this court to bear in mind the natural limitations of an appellate court and the advantage which the original fact-finder enjoys in having seen and heard the witnesses testify first-hand. A distinction was drawn, however, between findings of primary and secondary facts based on an assessment of that evidence, which are likely to have been affected by decisions made about credibility of the witnesses, and inferences to be drawn from those findings of fact, as to which the appellate court is in as good a position as the original fact-finder: [126] – [130]. If an error or a miscarriage of justice is established on appeal then, where this court is able to substitute its own decision, it should do so, otherwise it may be necessary to remit the matter for redetermination: Marks v Coles Supermarkets [131].
Grounds of appeal in APP 66/2022 against the finding that Execom was not liable to pay workers’ compensation
24
There are two grounds of appeal: firstly, that the arbitrator erred in law in holding that no contract existed between Execom and Mr Horne at the time he was injured on 2 September 2019 in that, prior to that date, Execom had made a written offer to engage Mr Horne which set out his terms of engagement and pay, which offer was accepted by Mr Horne by his conduct, and later accepted in writing. The second ground asserts that the arbitrator erred in law in finding that there was any contract of employment between Moon Recruitment and Mr Horne. It asserts that no offer setting out the terms of engagement and his pay was ever made to Mr Horne by Moon Recruitment.
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25
The grounds were expressed in language consistent with the written and oral submissions for Moon Recruitment: namely that it was not necessary for the arbitrator to find that the offer made by Execom was a contract of employment as such, because it was a contract by which Mr Horne fell within the definition of ‘worker’ under the Act in any event. As will be seen when the statutory provisions are set out below, there are several definitions of ‘worker’ within the Act, and a person who enters into a contract of employment, or engages a ‘worker’, is thereby an ’employer’. The contest between the parties was not about whether or not Mr Horne came within the definition of ‘worker’ within the Act. It was accepted that he was a ‘worker’ and that sufficed to render one of the parties his employer. The contest was as to which of the two entities had become his ’employer’ within the meaning of the Act. It was not critical to Moon Recruitment’s argument, therefore, that the precise pathway be arrived at. It argued, however, that it was Execom which had entered into the contract with Mr Horne by which he became a ‘worker’.
26
It is convenient then in this judgment to refer to the issue as being related to which of the two was his ’employer’ and to his contract of ’employment’, without the constant need to qualify what is encompassed in that word by reference to the Act, and so I intend to do so.
27
In the notice of appeal, the question of law said to be involved was whether a contract was made between Execom and Mr Horne, and whether a contract of employment or any contract was made between Moon Recruitment and Mr Horne. Expressed in that broad fashion, it was not possible from the grounds to determine whether the ‘question of law’ was merely an attempt to re-agitate the factual disputes before the arbitrator in the hope of a more favourable outcome. On that basis, Execom argued that there was no question of law involved.
28
In Moon Recruitment’s written submissions, the question of law was said to be
… whether the facts as found were sufficient to support the conclusion that a contract was made between Horne and (Moon Recruitment) and was one of employment …
which was equally opaque. But there were layers to that question, developed in submissions.
29
The written and oral submissions asserted that the arbitrator had adopted a flawed approach and taken into account legally irrelevant matters, contrary to the approach dictated by the High Court
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in
the decision of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165; (2022) 96 ALJR 89 (CFMMEU v Personnel). If the arbitrator had taken into account irrelevant matters, that would amount to an error of law.
30
Expanding on that argument, Moon Recruitment then contended that there were insufficient legally relevant factual findings from which to find that Moon Recruitment had entered into a contract of employment with Mr Horne. If there was no evidence to support the findings made, that too would amount to an error of law. Alternatively, if the alleged error of law was demonstrated in the taking into account of irrelevant matters, then the jurisdiction to review the decision was enlivened, and the court was not restricted to correcting only errors of law, but could correct an error where there was no, or no sufficient evidentiary basis for the finding that Moon Recruitment had entered into a contract of employment with Mr Horne. It being apparent from the above that there were questions of law to be considered and decided in these reasons, then the question of leave is best determined after consideration of the merits of the appeal itself.
31
Complaint was also made in oral submissions as to the adequacy of the reasons given for the rulings. There was no ground of appeal alleging an inadequacy of reasons, and those submissions were advanced rather in support of the submission that the arbitrator made insufficient findings of fact to justify his conclusion.
32
The substance of the second appeal (APP 65/2022) was that the arbitrator erred in law in making the order against Ms Moon personally, rather than Moon Recruitment Pty Ltd. There was also complaint that the arbitrator erred in law in holding that there was a contract of employment made between Mr Horne and Ms Moon trading as Moon Recruitment. In reality, the arbitrator did not make that express finding, but that was the effect of the order made. That issue can be left to one side in the substance of these decisions and revisited at the end.
Statutory provisions
33
Before detailing the parties’ submissions, it is relevant to briefly set out the statutory framework, because the question to be determined by the arbitrator had a context, namely the attribution of liability to make workers’ compensation payments to an injured worker.
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34
Pursuant to s 18(1) of the Act, if a ‘worker’ is injured, ‘the employer’ shall, subject to the Act, be liable to pay compensation in accordance with sch 1, which includes the payment of weekly payments for a worker who has been partially or totally incapacitated for work.
35
By s 160(1), every ’employer’ is obliged to obtain and keep current an insurance policy from an approved insurer for the full amount of the employer’s liability to pay compensation under the Act. Once requested, an approved insurance office is to provide that cover: s 160(3). The Act imposes obligations on both employers and insurers, failure to comply being an offence.
36
Section 5 relevantly defines ‘worker’:
worker does not include a person whose employment is of a casual nature and is not for the purpose of the employer’s trade or business … but save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied, is oral or in writing.
…..
the term worker save as aforesaid, also includes –
(a) any person to whose service any industrial award or industrial agreement applies; and
(b) any person engaged by another person to work for the purpose of the other person’s trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services …
37
It was accepted by the parties that Mr Horne fell within the definition of a ‘worker’. Section 5 also defines ’employer’:
employer includes any body of persons, corporate or unincorporate, … and, where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker whilst he is working for that other person;
the term employer shall extend to any person for or by whom any worker, as defined in paragraph (a) or (b) of the definition of worker, works or is engaged;
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38
It was accepted by the parties that one or other of Execom or Moon Recruitment was the ’employer’ of Mr Horne and liable to make the workers’ compensation payments. It was not suggested that both could be liable. The parties accepted it was one or the other.
39
The application before the arbitrator was brought by Execom pursuant to s 71(1) of the Act, which relevantly provides:
Where WorkCover WA, the employer, or the insurer has paid compensation … to a worker … and that person was not lawfully entitled to that payment … WorkCover WA, the employer, or the insurer, as the case may be, may apply for an order of an arbitrator that compensation or expenses so paid be refunded, and an arbitrator has jurisdiction to hear and determine such an application and … to make any order in relation thereto … as the arbitrator considers appropriate in the circumstances.
40
Section 71(2) provides:
Without limiting the orders that may be made under subsection (1), the arbitrator may, instead of making an order for a refund, order any person who the arbitrator determines was liable for the … compensation … to reimburse the person who paid the compensation …
41
Having found that Moon Recruitment was the employer, s 71(2) was the basis for the order that Moon Recruitment was to reimburse Execom for the workers’ compensation payments it had made to Mr Horne.
42
An argument was but faintly floated that an application pursuant to s 71 pre-supposes that Execom was the employer, or it had no standing to make such an application. That argument was rejected by the arbitrator. It seems a hollow point, as the insurer behind Execom’s payments could have made the application. There is no ground of appeal related to the arbitrator’s conclusion on this point and no application was made to add such a ground. That is sufficient to deal with that point.
Factual findings made by the arbitrator which underpinned his reasons for decision
43
Three witnesses testified before the arbitrator, Ms Moon of Moon Recruitment, Ms Woodman of Execom and Mr Horne. An agreed book of documents was also put before him.
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44
Early in his decision, the arbitrator summarised a number of factual matters under the heading of ‘Background information and issues in dispute’, the background information contained in [5] – [15] amounting to factual findings. Clearly, he considered these facts to be established and/or uncontroversial. The arbitrator found:

• that Execom and Moon Recruitment are both labour-hire organisations, with Execom also providing payroll services;
• that they had entered into an agreement whereby Execom agreed to provide payroll services for Moon Recruitment’s employees for labour-hire as Moon Recruitment lacked the necessary cash flow to manage that itself, and so Execom agreed to pay the employee, described as a ‘contractor’, and take out workers’ compensation insurance on the basis that it would then invoice Moon Recruitment for those sums plus its fee for providing the service, whereupon Moon Recruitment would then invoice its own client an amount including the wages and its own fee for providing the labour to its client, and would then pay Execom;
• Moon Recruitment entered into an agreement to provide labour-hire services to Echo Marine for a fee. Relevant to this matter, in August 2019 Moon Recruitment advertised for fabricators to work for a three-month contract with Echo Marine, and Mr Horne responded to the advertisement and was successful in obtaining employment;
• pursuant to its payroll agreement with Execom, on 30 August 2019 Moon Recruitment then sent Mr Horne’s details to Execom, which then completed and sent the Execom offer to him, together with taxation and superannuation documents for him to sign and return and he read those documents that same day;
• Mr Horne began work at Echo Marine on 2 September 2019 and was injured on his first day of work;
• Mr Horne did not sign and return the completed documents to Execom until 10 October 2019 (there was a minor error there on which nothing turns: Mr Horne in fact signed the Execom offer on 1 October 2019 but, according to the evidence of Ms Woodman of Execom, the completed documents were not returned to Execom until 10 October 2019); and
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• Mr Horne made a claim for compensation, handing his claim form to Echo Marine, which provided it to Moon Recruitment, which passed it on to Execom, and then Execom made a claim on its insurer and the insurer accepted liability and began making workers’ compensation payments.
  45
  The arbitrator then embarked on a summary of the evidence given by the three witnesses and then particular documents from the book of documents – the payroll agreement between Moon Recruitment and Execom (the Moon Recruitment/Execom agreement), Moon Recruitment’s labour-hire agreement with Echo Marine (the Moon Recruitment/Echo Marine agreement), the email from Moon Recruitment to Execom advising Execom of Mr Horne’s hourly rate and period of employment at Echo Marine, the Execom email and attached letter sending the Execom offer to Mr Horne on 30 August 2019 and the Execom offer signed by Mr Horne on 1 October 2019, as well as some invoices. Much of the witnesses’ evidence consisted of describing the agreements reached and how they were then performed, but the actual agreements were before the arbitrator and he had regard to the documents. Given that Mr Horne was injured on his first day of work, the only post-contract performance referred to in the summary related to the processing of the workers’ compensation claim, which was mentioned but did not feature in his reasons.
  46
  In written and oral submissions, complaint was made of the arbitrator’s failure to make factual findings, as opposed to summarising the evidence given. It is necessary for the fact-finder to state generally and briefly the grounds which have led him to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues, because it is only if that is done that an appellate court can discharge its functions: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259. Failure to give adequate reasons amounts to an error of law: Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391 [19] (Golden Plains).
  47
  There was no ground of appeal asserting inadequacy of reasons, however, including factual findings to ground the reasons. It was not suggested that any failure to give reasons in this case was the error of law said to justify the granting of leave to appeal. The submission was made by way of general complaint in passing but in the context that, once the factors said to be irrelevant were excluded from consideration, there was said to be insufficient basis upon which the arbitrator could have found that Moon Recruitment was the employer.
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  48
  Mention should be made of the context in which such findings and reasons are given by an arbitrator hearing a dispute pursuant to the Act. The Act sought to provide a fair and cost-effective system for the resolution of disputes which was timely, accessible, approachable and professional, and which minimised cost to the parties and enabled disputes to be determined according to their substantial merits, with as little formality and technicality as practicable: s 177(1). An arbitrator is not bound by the rules of evidence, and is to act according to ‘equity, good conscience and the substantial merits of the case’: s 188(2). That more flexible procedure does not justify decisions made without an evidentiary basis, however: Rodriguez v Telstra Corporation Ltd [2002] FCA 30 [25] (Kiefel J). Nor does it give the arbitrator the power to depart from established principles of law: Fagan v Minister for Corrective Services [2024] WASCA 167.
  49
  The arbitrator’s reasons for decision need only identify the facts that the arbitrator accepted in coming to his decision, and give the reasons for doing so: s 213(4) of the Act. Plainly then, the arbitrator was not obliged to mention every piece of evidence that was put before him, nor resolve every inconsistency, to the extent that there were evidentiary disputes. And in the manner in which the hearing was conducted, there was little challenge to the evidence from the witnesses, and the documents spoke for themselves.
  50
  No complaint was made before this court about the accuracy of the summary of the evidence given by the witnesses. Some brief summary was given of the contents of the documentary evidence. No complaint was made about the accuracy of that summary either, save that Moon Recruitment submitted that the arbitrator failed to reproduce certain salient passages from the documents sent to Mr Horne by Execom. The documents, which were not lengthy, were before the arbitrator, however, and there is no reason to suppose that he missed those features. He observed the inconsistency between the Execom email and letter to Mr Horne, both of which were sent to him with the Execom offer, the email referring to Mr Horne’s ‘start at Echo Marine for Moon Recruitment’ and the letter referring to his ‘working with Execom Personnel’ and the ‘contract with Execom’. It is apparent the arbitrator was across the details.
  51
  There was little, though some, analysis of the evidence from each witness. The summary contained no broad statement to the effect that the arbitrator considered all three witnesses to be truthful, or that he regarded each witness to be reliable. The eventual conclusions did contain, or at times necessarily implied, findings of fact. The findings
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  were not lengthy, although they must also be taken to have included the
  preliminary summary mentioned above. There is reason to conclude that the arbitrator did impliedly accept that evidence which he did not expressly criticise. Given the manner in which the matter was conducted, there was no need for lengthy analysis of the evidence from the witnesses.
  52
  The examination-in-chief of each witness consisted of the witness’s written statement. Ms Woodman corrected one mistake as to the date the Moon Recruitment/Execom agreement was reached.
  53
  In cross-examination as to why Execom agreed to, and did, take out workers’ compensation insurance, she said Execom was so advised by its insurance broker. The arbitrator [142] accepted that evidence. As to why Execom was named as the employer in the workers’ compensation claim form, Ms Woodman saw that as following from the fact that Execom was paying Mr Horne and had the insurance policy.
  54
  Ms Woodman was asked unnecessarily to confirm the Execom offer did not state that Mr Horne was employed by Moon Recruitment or that Execom’s role was limited to payroll services. She explained that the Execom offer had been adapted by her from a document Execom used for its own labour-hire employees. Counsel took her through the brief contract sent to Mr Horne, highlighting certain clauses and asking whether certain clauses were consistent with Moon Recruitment being the employer of Mr Horne, which line of questioning sought opinion evidence and was really submissions dressed as questions.
  55
  Re-examination followed the same technique. None of that evidence required analysis. The arbitrator intervened when Ms Woodman was questioned as to whether the Execom offer to Mr Horne accurately reflected her arrangement with Moon Recruitment, and observed that the witness’s state of mind would not matter when it came to interpreting the contract.
  56
  In his summary of Ms Woodman’s evidence, the arbitrator observed that
  Ms Woodman’s answers to questions in cross-examination were often non-responsive and frequently more akin to submissions. Such evidence will therefore be accorded little if any weight.
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  57
  A review of the witness’s evidence amply justifies the comment. She showed a strong tendency to make submissions on behalf of Execom, despite the dispute in reality being an insurance issue. It was the witness’s repeatedly stated opinion that Execom was not Mr Horne’s employer. That, of course, was the very question the arbitrator was to determine. He and counsel intervened on several occasions to discourage the witness from arguing the case, including reminding her that there was a lawyer representing Execom, but to no avail. The arbitrator likewise observed that the witness’s agreement in cross-examination that the Execom contract with Mr Horne was in place on 2 September 2019, the day he was injured, was a legal conclusion and to be accorded little or no weight.
  58
  There was no suggestion in the arbitrator’s remarks that he considered the witness to have been dishonest or unreliable in her recollection. Nor was there any suggestion by way of cross-examination to suggest that Ms Woodman was fabricating, or was unreliable in her evidence concerning her recollection of her dealings with Mr Horne or Ms Moon. The only issue with the witness was her desire to express her partisan opinion on the facts.
  59
  Turning to Ms Moon, the arbitrator made no negative comment about the witness which might bear upon her general credibility. The method of his summary of evidence was that, when he considered certain evidence to carry little or no weight, he commented about that.
  60
  In cross-examination by counsel for Execom, Ms Moon was taken to an email she sent to an insurance investigator in September 2020 in which she had sought to clear up any ‘confusion’ and described Execom as the payroll agent and Moon Recruitment as the employer of Mr Horne. She testified that she believed that because Moon Recruitment had to pay payroll tax, and attributed that understanding to Ms Woodman. Counsel for Execom in the arbitration tackled her somewhat unhelpfully and against interest on that evidence, given that a revenue ruling was before the arbitrator which appeared to say exactly that – and that was the only cross-examination in the proceedings in which credibility was tackled. But the witness also said that she had assumed Moon Recruitment to be the employer in any event. She candidly said that, as far as she was concerned, Moon Recruitment was the employer, while Execom paid the workers’ compensation premium but added, ‘as far as legalities go, as far as who is the actual employer, I am still not sure’.
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  61
  In his summary, the arbitrator observed that her uncertainty was essentially due to the fact of the proceedings – indicating an inference drawn by him and consistent with little or no weight to be attributed to her uncertainty, which was after all entirely understandable in the circumstances. He also placed no apparent weight on the admission. Likewise, as to her evidence that Moon Recruitment had no direct contractual relationship with Mr Horne, the arbitrator described that as ‘conclusionary’, and it pertained to the very issue he was to determine. The arbitrator reasoned consistently with the view he expressed several times in different ways during the hearing that personal opinions about the issue would not determine the case. Consequently, there was no need to consider the credibility of the witness in so far as the letter to the investigator was concerned and the source of her view that Moon Recruitment was the employer, as the arbitrator did not base his conclusion on such evidence. The informality of the jurisdiction clearly influenced the way in which he allowed evidence to be led, yet placed no weight on the opinion evidence.
  62
  Neither of the two counsel who cross-examined Mr Horne accused him of fabrication, or put a contrary version of events to him to suggest that his recollection was unreliable. Rather, both counsel used cross-examination of Mr Horne to highlight certain points favourable to their respective clients. The arbitrator’s summary of Mr Horne’s evidence was simply that, with no further analysis. It was apparent from the arbitrator’s summary of his evidence, which included references to Mr Horne’s limited knowledge of Execom – that Ms Moon never really mentioned much about it, that he did not realise it was a different entity from Moon Recruitment and that he thought it to be the pay division of Moon Recruitment – that the arbitrator drew a distinction, and rightly so, between mere opinion evidence about what a contractual arrangement meant, and evidence of what knowledge a party to an agreement had at the relevant time.
  63
  Counsel for Moon Recruitment took objection to fellow counsel leading opinion evidence from Mr Horne of his understanding of who his employer was – Moon Recruitment, he thought – with mixed success, as the arbitrator took the view that the proceedings were meant to have an informality to them and therefore allowed some leeway. The arbitrator repeatedly demonstrated, however, an understanding of the difference in admissibility and weight between a witness expressing a subjective opinion, particularly on the very question to be determined by him, and giving direct evidence of events.
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  64
  In those circumstances, the arbitrator did not resolve conflicts in evidence or make many findings, but then there was no conflict of any moment to resolve, and no suggestion that any of the three witnesses was giving false or unreliable evidence.
  65
  In this appeal, Moon Recruitment noted that the arbitrator had included in his summary of Ms Woodman’s evidence her testimony that ‘she spoke with Mr Horne and advised him that Moon had engaged Execom to pay him’ and then emailed him the requisite contract and forms. The submissions point out that Mr Horne did not recall the conversation and no finding was made that the conversation occurred. It is not clear whether that was a complaint that the arbitrator had failed to resolve a conflict in the evidence, or merely a submission that such evidence was to be disregarded by this court.
  66
  The evidence was based on Ms Woodman’s evidence-in-chief via her statement, which was based on what she usually did and what usually occurred, rather than actual recollection. She said that, at Moon Recruitment’s request, Execom would call the worker and ‘explain that Execom has been engaged by Moon Recruitment to pay the applicant during their placement’ and send them the paperwork required.
  67
  The witness was not challenged on that evidence. Mr Horne did not deny the conversation. He did not recall it. The arbitrator did not expressly reject the evidence of Ms Woodman to that effect. He did find that Execom had ‘never met’ Mr Horne – there was no suggestion that Ms Woodman had met Mr Horne at the relevant time, or ever – and that Execom ‘had no dealings’ with Mr Horne other than paying him, a finding made in circumstances in which it was uncontroversial that Execom had sent him the documentation already described. It appears the arbitrator did not place weight on the evidence in that there was no reference in his reasons, which are set out below, to this possible conversation.
  68
  The arbitrator was not obliged to resolve every aspect of the evidence, and clearly did not find it necessary to resolve that issue. Had he accepted that such a conversation occurred, then that evidence was consistent with his overall conclusion that Execom was just providing a payroll service and was not Mr Horne’s employer. Had he not accepted the evidence, that was consistent with his conclusion that Execom had no prior contact with Mr Horne before sending him its offer, still consistent with the overall conclusion reached. It was not a conflict in the evidence but, if it was, it was a conflict of no moment.
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  69
  It is sufficiently clear that the arbitrator accepted the evidence of all three witnesses as being honest and reliable in so far as they testified about their memory of events, including their understanding at the time, whether relevant or not, but he considered Ms Woodman to be unhelpfully desirous of arguing the case, and he was not assisted in any event by any witness’s opinion about the legal effect of their dealings, including when that opinion evidence arguably amounted to an admission. A portion of the evidence was simply the witness’s recollection of what the documentary evidence would establish and how the agreements were performed. While it was dutifully summarised, the arbitrator also had the agreements, or at least the relevant schedule to the agreement in the case of the Moon Recruitment/Echo Marine agreement and summarised their effect. If he had something negative to say about a witness’s evidence, he said it in the summary of evidence. There was little negative to say, and the evidence was not contentious.
  70
  Indeed, counsel for Moon Recruitment submits that the whole focus of the decision was supposed to be on the objective interpretation to be placed on the Execom offer. The case was not determined on credibility issues. In delivering reasons, the arbitrator dispensed with reference to unhelpful opinion evidence, and there was no hint in his reasons that his conclusion was based on the acceptance of one witness’s personal opinion over that of another.
  71
  After summarising the evidence of the witnesses, the arbitrator summarised the parties’ submissions and then delivered his reasons for concluding that Moon Recruitment had entered into a contract of employment with Mr Horne, while Execom had not, as at the date of his injury.
  72
  While it would have been preferable if the arbitrator had expressly spelt out his acceptance of the evidence of each witness, the summary of the evidence, coupled with the findings he did make, were adequate to explain the logic behind his reasoning. Plainly he made the findings referred to in those reasons which are reproduced under the next heading, together with the summary of the background information. The arbitrator set out his reasoning as to why he concluded that Mr Horne had entered into an employment contract with Moon Recruitment and not Execom at [124] – [144] which are reproduced in full below. Those reasons were sufficiently clear to enable this court to follow his process of reasoning and to carry out its task as an appellate court.
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  The arbitrator’s reasons for decision
  73
  After summarising the evidence and submissions by counsel, the arbitrator distinguished the decision in CFMMEU v Personnel on which Moon Recruitment relied. That decision was one of the key issues to be considered in this appeal, because it led to the arbitrator taking a broad view on what facts were relevant. The arbitrator then gave reasons for his finding that there was no contract of employment between Execom and Mr Horne at the time he was injured, and that it was Moon Recruitment which was his employer.
  74
  Those reasons were as follows, with the underlined portions being those findings which, in Moon Recruitment’s submission, were irrelevant (to avoid confusion, a small portion of underlining which was in the original decision has been replaced with italics):
  124 Firstly, I consider the evidence establishes that Mr Horne had entered into a contract of employment with Moon i.e. he was employed by Moon pursuant to a contract of service, in essence to provide his labour to Moon’s client.
  125 That contract is established by the following facts and circumstances.
  126 Moon is a labour hire organisation. It entered into an agreement with Echo to provide labour services provided by Moon’s employees. Echo required fabricators. Moon advertised in SEEK for fabricators for Echo. Mr Horne responded to that advertisement. Ms Moon spoke to Mr Horne, received and considered his C.V., checked his credentials and referred his details to Echo. She arranged an interview with Echo, arranged a drug and alcohol test and then orally informed Mr Horne that he had been accepted for a three-month contract to work with Echo. Although Mr Horne does not recall any specific discussions with Ms Moon about pay, nonetheless it is clear that in those circumstances he was going to be paid for his services to Echo.
  127 I also refer to the definition of employer in s 5 of the Act is:
  s 5
  employer includes any body of persons … and, where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of the Act, be deemed to continue to be the employer of the worker whilst working for that other person.
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  128 Therefore, while Mr Horne is to be let on hire to Echo, Moon is deemed to continue to be the employer.
  129 The above facts and circumstances in my opinion lead to a conclusion that the relationship between Mr Horne and Moon has all the hallmarks of a contract of employment, whereby Mr Horne had entered into a contract of employment to work for Moon, in that he was employed by Moon to work for Moon’s client for a fee rendered by Moon, where the fee contained a profit margin over and above the wages paid to Mr Horne.
  130 Otherwise, on what other basis was Mr Horne working at Echo?
  Finding of no contract with Execom
  131 Moon submits he was then employed by Execom, but I do not accept that to be the case. Execom had no control over Mr Horne, had never met him, had no prior involvement with him (Execom was also a labour hire organisation), and had no contractual relationship with Echo. Therefore, other than the Execom/Horne agreement, pragmatically and applying common sense, Execom cannot be Mr Horne’s employer.
  132 So, what about the Execom/Horne agreement and the CFMMEU decision?
  133 There are some similarities with that decision and the current dispute, but there are also differences.
  134 In no particular order, firstly the decision did not involve the application of the Workers Compensation and Injury Management Act 1981. Secondly, the agreement in the CFMMEU case had been executed by the parties.
  135 In the current dispute, the purported Execom/Horne agreement was not executed by Mr Horne until sometime after his injury. Moon submits the offer of employment was accepted by Mr Horne’s conduct, by turning up to work at Echo on 2 September 2019. However, as earlier found, there was already a contract of employment in existence, with Moon, and I consider that consistent with the Moon/Echo agreement, Mr Horne turned up at Echo as fulfilling his obligations under the Moon employment contract.
  136 In essence and seen in that light, and in light of the overall circumstances of the case, the Execom/Horne agreement in essence artificially inflates a payroll agreement into something which it is not. Basically and from a pragmatic point of view, the Execom/Horne agreement is nonsensical.
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  137 Execom had no other dealings with Mr Horne other than being provided his details by Moon and then paying him on behalf of Moon. Moon was the party primarily responsible for his wages. That is recognised by the payroll agreement, where Execom and Moon essentially agreed that the payroll responsibility is contracted out, or sub-contracted, to Execom. Notwithstanding, the entity with the primary responsibility for paying Mr Horne was Moon.
  138 Further, Execom had no contract with Echo and it was in the context of the Moon/Echo agreement that Mr Horne obtained his employment. To then introduce Execom as the employer is completely artificial, even in circumstances where the Execom/Horne agreement had been drafted by Execom.
  139 That conclusion is in part supported by the fact that fees charged by Moon and Execom. Execom charged a nominal fee in keeping with providing a payroll service. Moon charged Echo with a fee consistent with its labour hire agreement with Echo.
  140 Further, although Execom agreed to have workers’ compensation insurance cover for the workers within the payroll agreement, Execom charged Moon for a portion of the premium on each invoice. In effect, therefore, Moon was paying the premium.
  141 In addition, the Echo agreement included a term that Moon had to have workers’ compensation cover. That it did so through Execom appears more a matter of convenience that anything else.
  142 I pause here to observe that it is unclear (a) why Execom’s insurer advised Execom that it should take out workers’ compensation insurance and (b) why Execom produced an agreement which had the hallmarks of an employment agreement. That the email and letter from Execom to Mr Horne on 30 August 2019 contained inconsistent information about the perceived status of Execom and Moon perhaps identifies a lack of understanding on the part of Execom of their processes and their potential legal effect.
  143 Nonetheless, I consider the Execom/Horne agreement does not establish that there was a contract of employment between Execom and Mr Horne in existence on the date of injury. The Execom agreement was not signed by Mr Horne prior to his injury. The fact of Mr Horne attending at work with Echo does not lead to a conclusion that he was thereby accepting employment with Execom. He already had a contract of employment, with Moon. Further, although he had read the Execom agreement, he had not heard of Execom and merely assumed Execom was something akin to a subsidiary of Moon. He had otherwise no contact or prior dealings with Execom.
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  144 On that understanding, pursuant to the definition of ’employer’ in s 5 of the Act, Moon is deemed to continue to be Mr Horne’s employer while Mr Horne was lent on hire to Echo. Mr Horne was injured while working with Echo. Moon is therefore the responsible party for Mr Horne’s compensation under the Act.
  Moon Recruitment’s argument
  75
  It was Moon Recruitment’s position that the arbitrator adopted an incorrect approach at law and consequently took into account irrelevant facts or factors in reaching his finding that Mr Horne was employed by Moon Recruitment and not Execom. The legal basis underpinning that submission will be discussed shortly, but the impact of the submission is revealed in the underlined passages in the arbitrator’s conclusions reproduced above.
  76
  Moon Recruitment’s position was that its contractual arrangement with Echo Marine, including its obligation under that contract to pay its workers their wages and to take out workers’ compensation insurance, and the fee it charged Echo Marine – and how that compared to the fee Execom earned in its agreement with Moon Recruitment – was wholly irrelevant to the issue to be determined by the arbitrator.
  77
  Likewise irrelevant, Moon Recruitment submitted, was its contractual arrangement with Execom, including the fact that Moon Recruitment was to reimburse Execom for the wages it paid Mr Horne and the workers’ compensation insurance it took out and the basis of the fee to be paid to Execom by Moon Recruitment. Likewise, speculation about why Execom’s insurer would have advised Execom that it should take out workers’ compensation insurance was said to be irrelevant, as was Execom’s lack of any prior contact with Mr Horne, the fact that Ms Woodman of Execom never met him and that, in the Execom offer, Execom was not to exercise any control or supervision over Mr Horne’s work.
  78
  Likewise irrelevant, Moon Recruitment argued, was the lack of any contractual arrangement between Execom and Echo Marine. The failure to underline that aspect in [131] of the reasons above was clearly an error, given the objection to the whole of [138] which referred to the same.
  79
  In written submissions, in addition to the passages underlined in the reasons reproduced above, Moon Recruitment also identified further facts or factors which it submitted were irrelevant. It submitted that Ms Moon’s efforts to make sure that Mr Horne was a suitable fit for
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  Echo
  Marine’s requirements, including sending his details to Echo Marine, organising a drug and alcohol screen for him and, once it was agreed with Echo Marine that Mr Horne was suitable, sending an email to Execom asking it to send its contract to Mr Horne to engage him to work with Echo Marine was all irrelevant, as was Mr Horne’s understanding that Moon Recruitment was hiring him and that Execom was part of Moon Recruitment.
  80
  Moon Recruitment’s starting point underpinning those objections was the uncontroversial submission that Australia follows the objective approach to contract interpretation. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40] (Toll v Alphapharm) the High Court said:
  … References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purposes and object of the transaction.
  (footnotes omitted)
  81
  The reasonable person contemplated by the test is a person with all the background knowledge which would reasonably have been available to the parties at the time of agreement, which may include matters of law: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 [11].
  82
  Moon Recruitment argued that, in order to determine whether a contract of employment was formed between Mr Horne and Execom, the arbitrator was to examine the words and conduct of Mr Horne and Execom between themselves, and the words and conduct of another party extraneous to that transaction had no bearing on the question of contract formation where that third party was not a participant in the communications between the two. Consequently, while it did not contend that all of Ms Moon’s dealings with Mr Horne were irrelevant, it took objection to the relevance of her conduct to which it argued Mr Horne was not privy, such as her dealings with Echo Marine about Mr Horne, but not in his presence.
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  83
  It was Moon Recruitment’s submission that, given that the onus lay on Execom to prove that it did not enter into a contract of employment with Mr Horne, the arbitrator’s focus should have been on an objective consideration of the contract entered into between Execom and Mr Horne – based on the assertion that the Execom offer had been accepted by conduct – to determine what a reasonable bystander would have understood by it. It contends that, contrary to that approach, the arbitrator embarked on a broad enquiry as to the dealings between not just Mr Horne and Execom in considering whether they had entered into an employment contract, and between Mr Horne and Moon Recruitment, but also the dealings between Moon Recruitment and both Echo Marine and Execom. Moon Recruitment submitted that the arbitrator’s approach and reasoning was contrary to the approach dictated by the High Court in the decision of CFMMEU v Personnel.
  84
  Moon Recruitment further argued that, by his finding that Execom had no control over Mr Horne’s work performance and that staff at Execom had never met him, had no prior involvement with him and had no contractual arrangement with Echo Marine, the arbitrator was wrongly applying the ‘multifactorial’ approach that, since CFMMEU v Personnel was decided, has been overtaken by a focus, in a case where the parties have committed their arrangement to a written contract, on the rights and obligations of the parties as determined by the terms of the contract. Moon Recruitment contended that this was such a case.
  85
  Moon Recruitment contended that it had not reached a completed bargain of employment with Mr Horne, in that there had been no written offer of employment sent to him by Moon Recruitment and there were matters that remained to be agreed – most importantly the rate at which he was to be paid – which prevented their dealings from amounting to a concluded contract, whereas Execom and Mr Horne did reach a concluded bargain, by way of Mr Horne accepting the Execom offer by his conduct in presenting to the workplace of Echo Marine as arranged on 2 September 2019.
  86
  Finally, Moon Recruitment also argued that the deeming provision in s 5 of the Act was irrelevant and submitted that the arbitrator erred in reasoning that Moon Recruitment was deemed by that provision to continue to be the employer of Mr Horne.
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  87
  It was Moon Recruitment’s case that, had the arbitrator confined his considerations to what was relevant, he could not have concluded that Moon Recruitment and Mr Horne had entered into a contract of employment, and that Execom and Mr Horne had not, essentially asserting that there was no factual, or no sufficient factual basis, to justify the conclusions reached.
  Submissions on behalf of Execom
  88
  Counsel for Execom, in reliance on Moon Recruitment’s identification in its written submissions of the question of law said to be involved, understood Moon Recruitment to be asserting that the arbitrator had made a finding against the weight of the evidence, and submitted that such would amount to an error of fact rather than an error of law, relying upon Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. Execom therefore contended that leave to appeal should not be given because no question of law was involved. It was Execom’s contention that a determination as to which entity was the employer of Mr Horne was a factual enquiry and that, having regard to the evidence in the case, there was evidence to support the arbitrator’s conclusion and there was no error of fact or law.
  89
  Moon Recruitment’s written submissions, however, did identify alleged errors of law, namely the failure to follow the approach in CFMMEU v Personnel and the taking into account of irrelevant matters, coupled with the submission that, when the analysis was restricted to relevant matters, the arbitrator could not have reached the conclusions that he did, an assertion that there was no or insufficient factual basis for the conclusions. If an error of law is established, this court is not restricted to correcting errors of law.
  90
  Execom submitted that CFMMEU v Personnel could be distinguished on the basis that the issue in that case was the true nature of the contract entered into and whether the worker was an employee or an independent contractor, whereas the issue in this case was identifying which of two parties was the employer. Execom endorsed the approach taken by the arbitrator in considering the overall context in which Mr Horne was hired and came to work at Echo Marine, including the arrangements between Moon Recruitment and Echo Marine, the arrangement between Moon Recruitment and Execom and the dealings between Ms Moon and Mr Horne. Execom supported the conclusion reached by the arbitrator.
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  91
  Although it argued that CFMMEU v Personnel was distinguishable, Execom did seek to place some reliance upon the joint judgment of Gageler and Gleeson JJ in that decision, arguing that it was not irrelevant to examine the arrangement between the labour-hire company and the host company, leading to an overall conclusion in that case that the labour-hire company remained the employer. Execom also placed reliance upon s 5 of the Act, which deems a labour-hire organisation which lets its employee on hire to another to continue to be the employer.
  92
  Finally, Execom argued that Moon Recruitment could be seen to be Mr Horne’s employer on the basis of its right to exercise control over his manner of work, contrasted with Execom’s lack of right to control his manner of work, pointing to the Moon Recruitment/Execom agreement which provided that Execom ‘exercises no control or direction over the contractor’, the Moon Recruitment/Echo Marine agreement which established that Moon Recruitment was providing its staff to Echo Marine, and the evidence as to Mr Horne’s dealings with Ms Moon and lack of in-person contact with Execom.
  93
  The question of whether the arbitrator took into account irrelevant matters is a key issue to be determined. I turn now to the decision in CFMMEU v Personnel upon which Moon Recruitment relied, and which the arbitrator distinguished.
  CFMMEU v Personnel
  94
  Prior to the High Court decision of CFMMEU v Personnel, cases in which the issue to be determined was whether a relationship was properly to be characterised as one of employment, or of principal and independent contractor, tended to be approached on the basis of an assessment of ‘the totality of the relationship’. The terms of the written contract were considered but, also, the manner of its performance, and the courts weighed multiple factors in the relationship, such as the right in the putative employer to direct and exercise control over the manner in which the work was to be performed, and any right in the worker to delegate his work to another. This multifactorial approach was sourced in the decisions of Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, 29 (Stevens v Brodribb) and Hollis v Vabu Pty Ltd [2001] HCA 44 [24]; (2001) 207 CLR 21, 33 (Hollis v Vabu), and many which followed. And then on 9 February 2022, a couple of months before the hearing in
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  this matter before the arbitrator, the
  High Court delivered the decisions in CFMMEU v Personnel and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (ZG Operations).
  95
  In CFMMEU v Personnel, the union took action against Personnel Contracting, trading as ‘Construct’, for failing to pay a worker, Mr McCourt, his full award entitlements as an employee. The question in the case was whether McCourt was indeed Construct’s employee, or a self-employed contractor.
  96
  Construct was a labour-hire company, recruiting and engaging workers to supply their labour to its clients. Construct interviewed McCourt who, despite his limited experience, was willing to perform any construction work available and had his own work-appropriate clothing. Construct offered him work with its client, Hanssen, at Hanssen’s worksite. The relationship between Construct and Hanssen was governed by a labour-hire agreement (LHA). McCourt signed an administrative services agreement (ASA) with Construct, in which he was described as a ‘self-employed contractor’. McCourt did not sign any contract with Hanssen. Hanssen staff gave McCourt a safety induction talk onsite and he was to be supervised by one of its leading hands. Construct staff visited the Hanssen worksite from time to time, and sometimes discussed health and safety issues with McCourt, but never directed him in the manner of his work with Hanssen.
  97
  The trial judge adopted the multifactorial approach, considering both the ASA between Construct and McCourt, but also the manner in which the parties conducted their relationship thereafter in performing the contract, with factors falling on both sides of the argument. The trial judge regarded the description of McCourt in his ASA as a ‘contractor’ as decisive, and dismissed the union’s suit. That judgment was upheld on appeal, but ultimately overturned by the High Court.
  98
  Kiefel CJ, and Keane and Edelman JJ described the broad effect of the LHA between Construct and Hanssen to the effect that Construct was to liaise between its client, Hanssen, and the self-employed contractor, to refer the worker to Hanssen on a daily-hire basis for which Hanssen paid Construct at an hourly rate, and to be responsible for the suitability of the workers for their work at Hanssen. The plurality also remarked on the consistency between the LHA and the ASA, in that the contractors were said to be under Hanssen’s direction and supervision. Beyond that, the plurality observed that it
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  was ‘unnecessary, and indeed inappropriate, to refer to the terms of the
  LHA in any greater detail because McCourt was not a party to the LHA. His contract with Construct was not affected by the terms of the LHA’: [12]. But they had referred to its basic effect and, immediately after the observation just quoted, further remarked upon the consistency between the LHA and the ASA in a particular respect. The approach is clearly one of degree and purpose for which some understanding of context is legitimate to aid interpretation.
  99
  Their Honours also observed that the ‘operative terms of the ASA and the factual matrix in which it was made’ [15] between Construct and McCourt made it clear that Construct was not merely seeking out employment opportunities for McCourt and introducing him to Hanssen, but was empowered to fix his remuneration and had assumed the obligation to pay him and that, for his part, McCourt had obligations to cooperate and report various matters to both Construct and Hanssen. As to the relevance of post-contractual performance, their Honours remarked [18]:
  Before both the primary judge and the Full Court, the facts surrounding the work practices of Construct and Hanssen, and the specific arrangements vis-à-vis Mr McCourt, were canvassed at length. Given there was no challenge to the validity of the ASA nor any suggestion that the contract had been varied by conduct, a review of how the parties went about discharging their obligations to each other after execution of the ASA was unwarranted. It is unnecessary and inappropriate to replicate that fact-finding exercise in this Court.
  100
  Their Honours considered the multifactorial approach to be open to criticism on the basis that it is impressionist, and therefore may produce inconsistency and uncertainty [33], but also countered that the foundation cases of Stevens v Brodribb and Hollis v Vabu had not suggested that a consideration of the ‘totality of the relationship’ was to be conducted by ‘running down items on a checklist in order to determine a balance of ticks and crosses’ and observed that it ‘has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship’: [34]. Their Honours were still attracted to the proposition that the totality of the relationship should also (not necessarily alternatively) be viewed through the prism of discerning the difference between an employee being a person who serves his employer’s business, and a contractor who serves his own: [35] – [39].
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  101
  Their Honours concluded:
  41 An employment relationship will not always be defined exclusively by a contract between the parties. Historically, the employment relationship was recognised and regulated by the law before the law of contract came to govern the relationship. An employment relationship, though principally based in contract, may be affected by statutory provisions and by awards made under statutes. It may also be that aspects of the way in which a relationship plays out ‘on the ground’ are relevant for specific statutory purposes …
  42 A contract of employment may be partly oral and partly in writing, or there may be cases where subsequent agreement or conduct effects a variation to the terms of the original contract or gives rise to an estoppel or waiver. In such cases, it may be that the imposition by a putative employer of its work practices upon the putative employee manifests the employer’s contractual right of control over the work situation; or a putative employee’s acceptance of the exercise of power may show that the putative employer has been ceded the right to impose such practices.
  43 While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terns of the parties’ relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.
  (footnotes omitted)
  102
  Their Honours cited with approval a decision of the Privy Council in Narich Pty Ltd v Commissioner of Pay-roll Tax [1983] 2 NSWLR 597, 600 – 601 (Narich) (approving its earlier decision in Australian Mutual Provident Society v Chaplin; sub nom Australian Mutual Provident Society v Allan (1978) 52 ALJR 407, 409 – 410; (1978) 18 ALR 385, 389 – 390 (Chaplin)) in which, subject to the exception where, by subsequent conduct, the parties had been shown to have varied the terms of the written contract, Lord Brandon of Oakbrook said that:
  Where there is a written contract between the parties whose relationship is in issue, a court is confined, in determining the nature of that relationship, to a consideration of the terms, express or implied, of that contract in the light of the circumstances surrounding the making of it, and is not entitled to consider also the manner in which the parties subsequently acted in pursuance of such contract.
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  103
  Their Honours continued to the effect that, in cases where the relationship sought to be characterised was one of either employment, or principal and independent contractor, any understanding that the multifactorial approach had superseded the principles set down in Narich and Chaplin was misconceived [47], and that no decision of the High Court had ever adopted an approach where the terms of the written contract are to be regarded as mere ‘factors’ to be considered alongside other circumstances. Those cases where the court had examined factors involving the post-contract work practices of the parties involved circumstances where the contract was partly written, but also partly oral or, where the written terms of a contract had been varied, where the contract was a sham, or where estoppel was engaged, and are not to be seen as a departure from Narich and Chaplin, but consistent with those same principles. As to the decision in Stevens v Brodribb, their Honours commented that the decision did not suggest that, where one party worked for another subject to a comprehensive written contract, the court should broaden the enquiry beyond the contractual rights and obligations of the parties and perform a multifactorial balancing exercise, exhaustively reviewing the history of all of the dealings between the parties, even though no party disputes the validity of the contract: [55] – [56]. Similarly, the decision in Hollis v Vabu which concerned a partly written, partly oral contract did not, their Honours observed, impugn the task of determining the contractual obligations by which the parties were bound: [57].
  104
  Finally, subject to the qualification that the parties cannot, by attaching a label to their relationship, alter the nature of the contractual rights and obligations they have agreed upon, their Honours observed that the parties are free to agree upon those contractual rights and obligations and that courts should ‘promote certainty’, particularly where the parties have taken steps themselves to avoid uncertainty, by entering into a comprehensive written contract:
  59 Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of the relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties’ rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties’ relationship by a wide-ranging review of the entire history of the parties’ dealings. Such a review is neither
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  necessary nor appropriate because the task of the court is to enforce the parties’ rights and obligations, not to form a view as to what a fair adjustment of the parties’ rights might require.
  60 In this respect, the principles governing the interpretation of a contract of employment are no different from those that govern the interpretation of contracts generally. The view to the contrary, which has been taken in the United Kingdom, cannot stand with the statements of the law in Chaplin and Narich.
  (footnotes omitted)
  105
  The plurality allowed the appeal, finding that McCourt was an employee of Construct. Gordon J reached the same outcome and took an essentially similar approach [162] to Kiefel CJ, and Keane and Edelman JJ:
  The resolution of the central question requires consideration of the totality of the relationship between Construct and Mr McCourt, which must be determined by reference to the legal rights and obligations that constitute that relationship. Where the parties have entered a wholly written employment contract, as in this case, the totality of the relationship which must be considered is the totality of the legal rights and obligations provided for in the contract, construed according to the established principles of contractual interpretation. In such a case, the central question neither permits nor requires consideration of subsequent conduct and is not assisted by seeing the question as involving a binary choice between employment and own business. The totality of the relationship between Construct and Mr McCourt was that of employer and employee.
  106
  Her Honour continued:
  174 The task is to construe and characterise the contract made between the parties at the time it was entered into. The nature of the contracting parties, such as where a contracting party is a separate entity or a partnership, rather than an individual, may suggest that the relationship between the parties is not that of employer and employee. The way that the contractual terms address the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the delegation of work, and where the right to exercise discretion and control resides may together show that the relationship is not one of employer and employee.
  175 Recourse may be had to events, circumstances and things external to the contract which are objective, which are known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract. The nature of the specific job that the purported employee applied for as well
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  as the nature and extent of the equipment to be supplied by that purported employee for that particular job may well be relevant to the question of characterisation of the contract. Indeed, it is often relevant, but not determinative, to observe that the purported employee must supply some uniform, tools or equipment. But again that observation must be made in context. The context is the nature and extent of what is required to be provided under the contract. In many forms of employment, employees provide their own uniform and bring their own tools to work.
  (footnotes omitted)
  107
  Her Honour was plain [185] – [189] that, in cases where the parties had committed themselves to a comprehensive written contract which captured the totality of the relationship, and where the question was whether or not that contract constituted one of employment, an approach which directed itself to a roaming enquiry beyond the contract and what had occurred after the entry into the contract was not guided by principle, or appropriate: [188]. Her Honour observed that neither Stevens v Brodribb nor Hollis v Vabu were cases involving comprehensive written contracts, and both concerned the question of vicarious liability for the acts of a purported employee, a different enquiry which necessarily directs attention to subsequent conduct. Her Honour also commented that, where a contract is partly in writing but also partly oral, subsequent conduct may be admissible to objectively determine the point at which the contract came to be formed, the terms that were agreed (including terms to be inferred by a course of dealing or implied by established custom or usage) and whether the contract had subsequently been varied or discharged: [183], [190].
  108
  Gordon J also allowed that the general principle, that conduct subsequent to the making of a contract should not be used in aid of construction, is subject to exceptions and that, in any event, evidence of subsequent conduct could be called into aid for purposes other than construction of the contract, including to establish whether a contract was formed at all and, if so, when, to demonstrate subsequent variation to the contract, ‘to show that the contract was a “sham” in that it was brought into existence as a “mere piece of machinery” to serve some purpose other than that of constituting the whole of the arrangement’ – derived from Hawke v Edwards (1947) 48 SR (NSW) 21, 23 (Jordan CJ) – and other purposes relating to rights and remedies that might impinge on the terms of the contract, such as statutory rights: [177].
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  109
  The concept of a sham contract or sham clause is dealt with further under the next heading.
  110
  Gordon J concluded that the totality of the relationship between Construct and McCourt was one of employer and employee, with McCourt agreeing to work in the enterprise of Construct by providing his labour to Hanssen. Given that it was a case of a relationship wholly in writing, it was ‘neither necessary nor appropriate’ to have regard to how it was performed and subsequent conduct was irrelevant: [201]. Steward J agreed with Gordon J’s expression of the test for determining whether or not a person is an employee, but dissented in the outcome of the appeal.
  111
  Gageler and Gleeson JJ found that McCourt was an employee of Construct and allowed the appeal, but took a quite different approach to the plurality and Gordon J, finding that McCourt was not employed by Construct ‘merely by reason of having entered into the ASA’ but ‘by reason of what then occurred in the performance of the ASA’: [102]. Their Honours considered the relationship of employment at common law is a relationship which exists in fact – not to be conflated with the contract under which the relationship is established and maintained: [103], [110].
  112
  Their Honours followed Stevens v Brodribb and found that, through the multifactorial approach where each factor must be weighed, with no one being determinative, the common law had adapted to changing social conditions: [120]. Their Honours considered that Narich and Chaplin had introduced uncertainty as to the scope of the enquiry where the contract had been wholly reduced to writing and, in as much as the Privy Council in Narich laid down the principle that the court was not to have regard to the manner of performance of the contract in construing that contract, it had conflated the distinction between the relationship of employment and the contract under which the relationship was established and maintained, and was wrong in principle: [130]. Their Honours found that, while neither Stevens v Brodribb nor Hollis v Vabu concerned a relationship formed purely in writing, it was ‘impossible to understand the detailed factual reasoning actually engaged in by this Court in either Stevens or Hollis as confined to the identification and interpretation of contractual terms’ [136] and that, while contractual terms have always been examined in the cases, that was ‘never to the exclusion of contractual performance’.
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  113
  On that issue, then, (though not in the outcome of the case) the judgments of Kiefel CJ, Keane and Edelman JJ and Gordon J (with whom Steward J agreed, though not in the outcome) must be seen as the majority.
  114
  The point of difference between Gageler and Gleeson JJ and the majority appears to be illustrated in their reasons as follows [133]:
  There will be cases, of which Narich and Chaplin may well have been examples, in which an examination of the manner of performance of a written contract will reveal nothing of significance about a relationship in fact established and maintained by the parties under the contract that cannot be gleaned from an examination of the contractual terms. But there will be cases where, without any variation to the terms of a written contract, the true character of a relationship in fact established and maintained under the contract will be revealed through the manner of the performance of the contract. That will be so where the terms of the written contract are sufficiently opaque or obscure to admit of different manners of performance. And it will be especially so where such a contract is a standard form written contract couched in language that might arguably have been chosen by the putative employer to dress up the relationship to be established and maintained as something somewhat different from what it might turn out to be.
  115
  As I read the judgments of Kiefel CJ, Keane and Edelman JJ and Gordon J, the above two scenarios would be regarded by their Honours as a question of construction in the case of the former opaque terms, and a variation in the case of the latter or, alternatively, a case where the parties put a label on their relationship which was not borne out in the construction of the totality of the relationship.
  116
  At the same time that the court heard the appeal in CFMMEU v Personnel, it also heard the appeal in ZG Operations. Two truck drivers were originally employed but then, years prior to the matters in dispute, had signed contracts by which both became independent contractors (each in partnership with his wife) to provide truck driving services, including each purchasing his own truck. Both had their contracts terminated after 40 years’ service and sued for unpaid superannuation, long service and other statutory entitlements. The trial judge found them to have been independent contractors (and therefore not entitled to those benefits). The Full Court found them to be employees. The High Court reversed that decision.
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  117
  Kiefel CJ, and Keane and Edelman JJ found that the Full Court had fallen into two errors: the first being to take significant account of the manner in which the parties had conducted themselves over the decades in order to consider the totality of their relationship for the purpose of characterising the relationship, and the second being to take account of the imbalance in bargaining power at the time the truck drivers had signed the contracts by which they became contractors, in assessing the reality of the relationship as being that of employment. Again, the plurality emphasised that the parties had chosen to regulate their relationship by a comprehensive written agreement and, there being no suggestion that it was a sham, or had been varied by conduct, the character of the relationship was to be determined having regard to the rights and obligations created by that agreement: [6] – [8].
  118
  Neither decision is authority for the proposition that it is impermissible for a court to have regard to any surrounding circumstances in construing a written contract. Both decisions allow for surrounding context to be taken into account if it casts light on the object and purpose of a contract and for a broader enquiry to be made, notwithstanding a comprehensive written contract, in circumstances where a broader context is relevant to construction of the contract – for example where there are questions of a sham contract or clause, of variation or abandonment of the contract, or where a statutory context is relevant to construction. There was no indication that such factors constitute an exhaustive list. But where the parties have encapsulated their relationship in a comprehensive written agreement, and there are no such factors to be considered, it is the terms of the written contract to which regard must be had and the rights and duties set out in the contract which will determine that relationship, even where a particular contractual right – such as the right to direct the manner of work – may not in practice have been utilised.
  119
  This was emphasised by the Court of Appeal in JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76, decided after CFMMEU v Personnel and ZG Operations. The issue in the case was whether the written contract between a lecturer and higher education provider was one of employment or independent contractor and principal. The contract contained a right on the part of the lecturer to delegate or subcontract his services to another, which the trial judge found to be illusory, as permission was required for such delegation. In following the High Court in CFMMEU v Personnel and allowing the appeal, the court found that, in the absence of any suggestion
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  that
  the clause was a sham, the trial judge had erred in finding [78] that the lecturer
  had only an illusory or chimerical right to subcontract or assign and in considering it to be a hollow or empty right. The point of significance to the characterisation of the relationship … was that Mr Harrison had a right to subcontract or assign, with consent.
  120
  And further [83]:
  At a legal level, it is the existence of the rights which is important, not the question of whether they are likely to be or have in fact been exercised: Brodribb at 24. The question of whether a right is likely to be exercised in the future or whether it was a hollow or empty right, or a ‘chimera’, would be relevant to an argument about sham. In the absence of such an argument, the contract means what it says and the right exists with whatever limitations the parties have agreed between themselves ascertained from an objective construction of the contract.
  121
  Moon Recruitment relied upon CFMMEU v Personnel to advance its case that the arbitrator took into account irrelevant material in reaching his conclusion that Moon Recruitment was, at the relevant time, Mr Horne’s employer.
  122
  Execom distinguished CFMMEU v Personnel, on the basis that this was not a case in which the parties had, as at the time Mr Horne was injured, committed their relationship to a comprehensive written contract, and nor was it a case in which the issue was whether the relationship was one of employment, or principal and independent contractor. Execom argued that the outcome in CFMMEU v Personnel was still of interest, in that the labour-hire business, Construct, was regarded as an employee. That outcome serves little purpose in this case, though, given the different nature of the dispute.
  123
  Execom also sought to rely upon the joint judgment of Gageler and Gleeson JJ for their Honours’ approach to the ‘relationship’ of employment as a matter of fact and something apart from the contract of employment, in support of Execom’s argument that the issue before this court was one of fact, rather than law. That joint judgment cannot, however, be regarded as forming part of the majority in their approach.
  124
  While still dealing with the approach to be taken by a court in characterising a relationship, Execom argued that ‘the essential question … is who had the legal right to control Mr Adam Horne in his work at Echo when he was injured because that’s the essence of an employment
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  contract. Who had the right to control him?’. To phrase the question in
  that manner, however, was contrary to the decision in Stevens v Brodribb, in which the existence of control over the worker was recognised as a significant factor, but not the sole and determining criterion: Mason J (24), with whom Brennan J (47), and Deane J (49), agreed, and in which Wilson and Dawson JJ regarded the control test (36) as being ‘not now a sufficient or even appropriate test’, as opposed to the multifactorial approach. CFMMEU v Personnel did not diminish the aspect of control over the manner of work as a factor, but shifted the focus to the contractual right of control, and not as a determinative factor but as part of the characterisation of the relationship based on the contractual rights and obligations agreed between the parties.
  125
  Moving on from those submissions, the issue of a sham contract was raised in oral submissions by counsel for Execom and, given that the allegation of a sham was one of the scenarios recognised by the majority in CFMMEU v Personnel as justifying a broader enquiry, and the possibility of a contractual right being ‘illusory or chimerical’, or ‘hollow’ or ’empty’ was referred to in JMC Pty Ltd v Commissioner of Taxation, the notion of a sham should be considered.
  What is meant by a sham contract or clause?
  126
  Neither party in this matter argued before the arbitrator or this court that the Execom offer was in its entirety a sham. Written submissions filed on behalf of Execom before the arbitrator, however, submitted that Moon Recruitment had
  fulfilled the role of an employer, but attempted to contrive contractual arrangements to avoid or confuse its role and to avoid paying a significant workers’ compensation premium.
  127
  That submission was made in the context of a submission that parties cannot ‘contractually deem their relationship to be something that it is not’. Those submissions clearly raised the question of whether the resulting Execom offer to Mr Horne involved some artifice, whether it constituted a sham at law or something less than a sham, by which it lacked commercial reality.
  128
  Before this court, Execom submitted that the Execom offer was not a sham unless this court were to find it amounted to a contract of employment. In discussing the Moon Recruitment/Execom agreement, by which Execom agreed to provide a payroll service to
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  Moon
  Recruitment and agreed that it ‘exercises no control or direction over the contractor’, counsel for Execom observed (ts 48):
  It’s in the context of those (indistinct) that Execom have purported to send some documents to Mr Horne on the instructions of Moon. Now, Moon can’t then turn around and try and elevate that document from a document that’s designed to provide only payroll services and say that’s an employment contract. That’s when it becomes a sham.
  129
  And further (ts 49):
  … because quite clearly the intention of Moon, the intention of Execom was a particular type of arrangement. And we say that’s the effect of what was attempted to be done. And if one tries to elevate that or state something different that’s when you get into the sham arguments. But it’s not what was intended. It’s not what it achieved.
  130
  And finally, in later discussion between counsel and the court (ts 57), counsel observed that it was not his submission that the Execom offer to Mr Horne amounted to a sham in so far as it was the provision of a payroll service, but that it would be a sham to suggest that it was a contract of employment.
  131
  The arbitrator found that the Execom offer purported to artificially inflate a payroll agreement into ‘something which it is not’ and declared it to be ‘nonsensical’, though he did not use the word ‘sham’.
  132
  So what is a ‘sham’ in this context?
  133
  In Snook v London and West Riding Investments Ltd [1967] 2 QB 786, 802, Diplock LJ observed:
  As regards the contention of the plaintiff that the transactions between himself, Auto Finance and the defendants were a ‘sham’, it is, I think, necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the ‘sham’ which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities …, that for acts or documents to be a ‘sham’ with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a ‘shammer’ affect the rights of a party whom he deceived.
  (citations omitted)
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  134
  In Australia, in Esanda Ltd v Burgess [1984] 2 NSWLR 139; [1985] ANZ ConvR 32, the respondents, Ms Burgess and Mr Andrews, had entered into two leasing agreements with Esanda to lease a prime mover and trailer. Burgess’s house was mortgaged to secure the money owing. They defaulted on the leases, and the prime mover and trailer were repossessed, and Esanda instituted proceedings also seeking possession of the house.
  135
  The respondents had not been able to afford the deposit required for a hire-purchase agreement. They had entered what purported to be a lease agreement, with no option to purchase the vehicles at the end of the lease. Andrews testified, however, that a sales person employed by Esanda had told him that the lease was a way around the relevant legislation and that, at the end of the lease, he could pay the residual value and the vehicles would be his. On that basis the trial judge found that the agreements were hire-purchase agreements and therefore the money owing was not secured by the mortgage on the house and dismissed the proceedings.
  136
  Esanda appealed. Hutley and Samuels JJA (Priestley JA dissenting) upheld the appeal. Hutley JA accepted that it was ‘notorious’ that lessors would allow lessees to purchase the vehicle at the end of the lease at residual value, but drew the distinction between a common practice in the industry and a contractual obligation on the part of the lessor to sell the vehicle to the lessee. Hutley JA found there to be no proof that the sales person who had made the statement had any authority to contract on behalf of Esanda or that he had spoken with any intent for such a statement to have binding legal effect, as opposed to simply informing the customer of the common practice. His Honour dismissed the respondents’ argument that the lease agreement was a sham (144):
  The respondent endeavoured to support the judgment on the basis that his Honour either had found that the leasing agreement was a sham or this Court should find it was a sham. The object of Esanda in entering into a leasing contract was to avoid the incidents of hire-purchase. The lessee was also anxious to avoid the incidents of hire-purchase. The entering into an agreement to get around the Hire-Purchase Act provided no evidence that the agreement into which they did enter was a sham, in fact it provides clear evidence to the contrary. If both had intended to enter into a hire-purchase agreement, but, in order to cloak that intent, had cast their arrangements in the terms of a leasing agreement, then it could be said that the agreement was a sham. For an agreement to be found to be a sham it is necessary for both parties to intend to enter into an agreement of a different kind and with different
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  incidents from the legal form which they in fact adopt. For example, casting an agreement for security in the form of an absolute transfer so as to deceive the world as to the financial position of the transferee is a common form of sham agreement.
  137
  Like Hutley JA, Samuels JA found that the statement made by the sales person would not have been understood by a reasonable person in the situation of the parties to have been promissory in nature. As to whether the contract was a sham, Samuels JA continued (146) – (147) (referring to the evidence of the statement made by the sales person):
  Hence, that evidence should ultimately have been excluded, unless it was relied on to prove that the leasing agreement was a sham; that is to say ‘that it was never intended by the parties to be operative according to its tenor at all, but was meant to cloak another and different transaction’: Perpetual Trustee Co (Ltd) v Bligh (1940) 41 SR (NSW) 33 at 39; (1940) 58 WN 41. But the evidence falls far short of proving any such thing, it being clear indeed that the leasing agreement was put fully into operation.
  138
  Priestley JA (153) summarised the state of the law thus:
  When parties to an agreement disguise the nature of the transaction they intend to carry out by casting it into a form which makes it appear to third parties as a different kind of transaction evidence is receivable to show the whole of the transaction.
  139
  His Honour continued:
  Although such a transaction attracts the description ‘sham’ and the document or documents in some cases will be wholly inoperative, one or more of the documents concerned may be operative according to its true nature … that is, subject to its true nature being given effect, its terms will be operative between the parties.
  140
  In the High Court decision in Raftland Pty Ltd as Trustee of the Raftland Trust v Commissioner of Taxation [2008] HCA 21 [33] – [36]; (2008) 238 CLR 516, 531 (Raftland) the plurality (Gleeson CJ, Gummow & Crennan JJ) described the term ‘sham’ as ambiguous and uncertain in meaning but which, when correctly used, involves an objective of deliberate deception of a third party, and therefore dishonesty or fraud. Given the element of dishonesty, caution should be employed before adopting the term ‘sham’. But it is not necessary that that element of fraud or deliberate dishonesty be present before it can be said that an agreement does not fully disclose the legal rights and entitlements for which it provides on its face, such that the court is justified in looking beyond the four corners of the
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  agreement:
  Raftland [33] – [36]. Gordon J’s reference in CFMMEU v Personnel [177] to a contract as a ‘sham’ if it ‘was brought into existence as a “mere piece of machinery” to serve some purpose other than that of constituting the whole of the arrangement’ arguably encompassed a broader concept than deliberate dishonesty.
  141
  In Golden Plains [28] Gray J, with whom David J agreed, found that, when considering whether an arrangement is a sham, it is appropriate to receive evidence directly from the parties about their intentions, both as to the terms of the arrangement ostensibly reached, but also as to whether they intended that arrangement to misrepresent the true position to third parties.
  142
  Execom’s submissions to this court and the arbitrator squarely raised the question of whether the Execom offer to Mr Horne artificially presented itself as an employment contract when it was, in reality, an agreement to pay Mr Horne for the work he was performing pursuant to his contract of employment with Moon Recruitment. It was appropriate to make such an argument. The critical factor was that Execom had no contractual arrangement with Echo Marine and yet purported to enter into an agreement with Mr Horne whereby he would work for its client.
  143
  Execom squarely raised the issue of the Execom offer being inflated beyond what Execom was in a position to offer. For that reason, contrary to Moon Recruitment’s submission, it was appropriate and necessary for the arbitrator to have regard to the evidence of the parties’ intentions, both when the Moon Recruitment/Execom agreement was reached and, then, when the Execom offer was made to Mr Horne, to cast light on whether the Execom offer was a sham, in whole or in part or, if not a sham, whether the offer failed to accurately disclose the rights and entitlements of the parties which it purported to govern.
  144
  In concluding that the Execom offer purported to artificially inflate a payroll agreement into ‘something which it is not’ and declaring it to be ‘nonsensical’, the arbitrator found the latter. It was not necessary that the allegation be one of ‘sham’, or that the finding ultimately be made that the offer was a sham, for the arbitrator to be entitled to go beyond the terms of the offer itself to consider the position.
  145
  This was not a case like CFMMEU v Personnel in which it could be said that there was no suggestion that the contract under consideration was a sham, and that the parties accepted it to be genuine.
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  There
  was a suggestion that it did not accurately disclose the rights and entitlements of the parties which it purported to govern. There was an artifice to it, to which I will return later in these reasons. Leaving to one side the description of Mr Horne as a ‘contractor’, which was not relied upon before the arbitrator, it was the involvement of the insurer, whether directly or via an agent (which evidence Moon Recruitment argued was irrelevant) and the fact that both Moon Recruitment and Execom objectively intended that workers’ compensation insurance be taken out, that saved the arrangement between Moon Recruitment and Execom from being characterised as an attempt to contract out of the effects of the Act and avoid the need to take out insurance.
  146
  It was appropriate, then, for several reasons, to steer away from an allegation that the Execom offer represented a sham offer or agreement. Firstly, there was no basis to suggest that Mr Horne, in receiving or potentially accepting the Execom offer, had joined in any intention to cast the form of that agreement in such a way as to deceive a third party. Whatever he did and did not understand about the Execom offer, there was no intention on his part to deceive anyone.
  147
  Second, in so far as the Execom offer was made to Mr Horne in compliance with the Moon Recruitment/Execom agreement, the evidence as to why Execom and Moon Recruitment had agreed that Execom should be the party to take out a workers’ compensation policy to protect the worker, while also agreeing that it was not to employ the ‘contractor’, was to the effect that Execom had been advised by its insurer to take out such a policy. The third party that might potentially have been deceived by the appearance of the Execom offer, therefore, was consulted (directly or through an agent) about the arrangement between Execom and Moon Recruitment. The evident purpose of Execom agreeing to take out the workers’ compensation insurance for the worker was that Moon Recruitment lacked the immediate financial wherewithal to do so, while Execom had the capacity to carry that expense. Ms Moon was very aware of Moon Recruitment’s obligation to have workers’ compensation insurance over the workers pursuant to the Moon Recruitment/Echo Marine agreement and so the Moon Recruitment/Execom agreement was Moon Recruitment’s attempt at achieving that. Moon Recruitment was to reimburse Execom for its expenses. And so, third, this was not an attempt to contract out. It was a flawed attempt to achieve the insurance cover required, when it was required.
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  148
  The execution of the purpose was flawed. Execom argued that, in so far as the Execom offer consisted of an offer that Execom pay Mr Horne his wages, attend to his superannuation benefits and tax withholdings and the like, the offer was genuine but that, in so far as the offer may have purported to employ or engage Mr Horne at the premises of Echo Marine, it could not do so.
  149
  In describing the Execom offer as ‘nonsensical’, and as artificially inflating a payroll agreement into ‘something which it is not’, the arbitrator should not be understood as impugning the document as a sham involving an intention to deceive a third party. Rather, he regarded the submission that the document amounted to an offer of employment at the premises of Echo Marine with which Execom had no contractual arrangement as being ineffective and untenable.
  150
  Given its position that the Execom offer was not a sham, Moon Recruitment relied upon CFMMEU v Personnel for its submission that the arbitrator erred in embarking on a broad enquiry of surrounding facts and agreements to which Mr Horne was not privy, and should have confined himself to construing the Execom offer on its terms, based on the premise that the offer had been accepted by conduct.
  151
  Execom argued that CFMMEU v Personnel was distinguishable on the basis that there was no written contract of employment and the issue was not one of contract interpretation, but of contract formation, and determining at what point Mr Horne became an employee and with whom. I turn now to the basis upon which CFMMEU v Personnel could be distinguished.
  The ‘true employer’ cases
  152
  There is a line of authority referred to as the ‘true employer’ cases, in which the issue to be determined is which of two potential employers had entered into a contract of employment. There is also persuasive recent authority to the effect that this line of authority has survived the High Court decisions in CFMMEU v Personnel and ZG Operations and is not inconsistent with it.
  153
  Pitcher v Langford (1991) 23 NSWLR 142 concerned the question of which of two possible employers, the Pitchers or Mr Langford, was liable to pay compensation to an injured shearer. Like the present case, it was common ground that the worker was entitled to compensation. Eighteen months before his injury,
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  the
  worker had been employed by the Pitchers, who ran shearing teams, working under the direct control of their foreman. Langford ran a sheep station and the Pitchers had conducted the shearing for him for years. They would provide the shearing to Langford for a contract price, with him playing no role in the arrangements of the shearing or the employment of the shearers. At the end of each shearing season, the Pitchers would employ their shearers for the next season.
  154
  A week before the 1985 season commenced, the Pitchers informed Langford that their workers’ compensation insurance premiums had increased to an untenable amount due to their claims history, and they could either pass on the increase to him or he could assume the role of employer and cover the shearers with his (cheaper) insurance. He chose the latter course. In the words of Kirby P (145):
  Thereafter Mr Langford took a number of steps which, it is fair to say, support an argument on the facts that he indeed became the ’employer’ of the Pitchers’ shearers, including the worker. He notified his workers compensation insurer and arranged for an adjustment in premium to be made for these workers. He paid moneys directly to the worker for his work. Later, with a ‘final cheque’, he sent a form bearing his name on which the worker was described as his ’employee’. A similar description was given in a claim for compensation form. When the worker was injured, Mr Langford made a claim for indemnity on his insurer. This was, at first, met and for sixteen months the worker was paid compensation on Mr Langford’s behalf by his insurer. Ultimately, however, the present dispute arose. This took the case to the Compensation Court. There Manser CCJ determined that he was authorised: ‘To look behind what was on the face of it a binding contractual arrangement to determine what was the reality of the situation.’ Looking at the matter that way, his Honour decided that ‘nothing really changed’ between the pre-August 1985 arrangements for the employment of a worker and those which followed the discovery of the higher workers compensation premium.
  155
  The judge at first instance in the Compensation Court, Manser CCJ, had held that the Pitchers had continued to be the employer of the worker, and were therefore liable, from which decision the Pitchers appealed to the New South Wales Court of Appeal.
  156
  The appellate jurisdiction of the Court of Appeal in such a case was confined to errors on a ‘point of law’, which expression had been narrowly defined. Accordingly, Kirby P confined his consideration of the first ground of appeal to whether there was any evidence to sustain the conclusion reached by Manser CCJ, and concluded that there was ‘ample material upon which his Honour could have so concluded’ (146). Kirby P concluded that, while the factual evidence as to which of the
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  two was the true employer presented a real contest, that was a contest
  of fact rather than of law and, given the restrictions upon the Court of Appeal’s jurisdiction, and given that there was evidence to sustain the original finding, that ground of appeal necessarily failed.
  157
  Kirby P found (148) – (149) that, where the issue was ‘whether the contract of employment (if any) which existed at the time the worker was injured’ was between two potential employers, ‘it was necessary to consider whether the worker had established the necessary indicia of the employment contract’ with either and, if so, which.
  158
  The ‘ample material’ pointing to the Pitchers having remained the employer as recited by Kirby P, ‘indeed suggested the continuance of a relationship which had certainly pre-existed, between the worker and the Pitchers’ (146) and included the Pitchers paying for equipment used by the worker, paying the shearers the difference when there was a consumer price index adjustment to the amount payable to the shearers (though they ultimately sought reimbursement from Langford), that the team of shearers remained the same from the season before and the Pitchers’ foreman remained in de facto charge of them, that Langford did not hire the individual workers but took them as a team (they having already been engaged by the Pitchers at the end of the last season) and, finally, that Langford testified that he did not regard himself as having a right to sack any of the shearers, not having hired them, and did not regard himself as their true employer. Kirby P remarked that, while that evidence included a conclusion of law which may or may not have been erroneous, depending on the court’s finding of fact, it did also indicate Langford’s appreciation of the nature of his relationship with the worker.
  159
  Handley JA found that, while there was ‘of course evidence to support the contention of the contractors that the owner had become the true contractual employer of the team’, there was also ‘ample evidence to support the contrary conclusion’ and therefore, like Kirby P, found that the first ground of appeal necessarily failed. Handley JA concluded (161):
  In my opinion the trial judge did not err in holding that the courts are entitled, independently of any statutory power in that behalf, to consider the reality of purported contractual arrangements. No case was sought to be made at the trial that the written agreement between the owner and the worker was a sham … Furthermore no such case was sought to be made in this Court either. But independently of the sham principle the courts can consider what the parties to a contract have done, in order to see whether it has been ignored or abandoned.
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  160
  Handley JA referred to the decision in R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 (R v Foster) – a decision in which the contract had expressly characterised the employees as agents and, on appeal, Dixon, Fullagar and Kitto JJ (151), (155) had considered the ‘real relation’ and the ‘reality of the relation’ to be that of employer and employee – ‘whatever the agreement may say’. Handley JA continued (162):
  Almost all of the matters relied upon by Mr Bruce QC for the appellants namely declaration of the shearers’ wages by the owner, payment of insurance premiums thereon, payment of wages by the owner to the shearers, payment of the tax thereon and the signing of the written agreements are paper matters. Such paper matters can be no more effective than signed agreements in preventing a court from discerning the real nature of the relationship between the parties. For example the payments by cheque to the shearers can be viewed as payments made at the direction and with the authority of the contractors. It is inherently likely that it was Mr Pitcher or his foreman who told the owner the persons to whom the cheques should be made payable and the amounts. The payments to the shearers by the contractors after the award variation can then be seen as reflecting the real relationships between the parties.
  It was open therefore to the trial judge to view the evidence in support of the change in the workers’ employer as paper evidence which did not really alter anything. The owner admitted there was no ‘genuine’ cost-plus arrangement. He also admitted that there was no genuine employment relationship, just one to pay the same amount in different ways, part to the insurance company, part to the men and the balance to the contractors.
  161
  Handley JA concluded (163):
  Adapting the language of Dixon, Fullagar and Kitto JJ in R v Foster, previously quoted, to the present case the judge, in my opinion, found that ‘in practice’ the contractors assumed ‘the detailed direction and control of’ the shearers ‘in the daily performance of their work’ and the shearers ‘tacitly’ accepted their ‘subordination’ to the contractors. The owner also ‘tacitly’ accepted the subordination of his paper employees to the contractors, instead of to himself. Accordingly, in my opinion, the judge did not err in law in directing himself that in the circumstances of this case the existence of de facto control in the contractors established that they were the ‘real’ employers of this worker at the time of his injury.
  162
  In CFMMEU v Personnel, R v Foster was regarded by the plurality of Kiefel CJ, and Keane and Edelman JJ as a case dealing with a variation of contract. Handley JA’s analysis in Pitcher v Langford is
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  capable of being seen as an acknowledgement that the parties might,
  consequent upon the signing of a written contract, vary the agreement between them by deciding to abandon that agreement in favour of a new arrangement, even if the new arrangement was the adoption of the old arrangement. Both Kirby P and Handley JA’s reasons were also capable of being regarded as an example of where an arrangement had been brought into existence as a mere piece of machinery to obtain a better price for insurance, which did not represent the whole of the arrangement between the parties.
  163
  There was no suggestion that the court was restricted in its consideration to only those facts to which the worker was privy.
  164
  In Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 (Shaw v Bindaree) the worker, Mr Shaw, was injured while working in the meat processing plant of Bindaree Beef Pty Ltd (Bindaree). Bindaree asserted that it had been his employer at the time of injury. If employed by Bindaree, Shaw was not entitled to bring proceedings against it because he had not taken certain steps required by legislation. Shaw argued that he had been employed at that time as a trainee by Yolarno Pty Ltd (Yolarno), a related entity, and directed to work in the meat processing plant.
  165
  Shaw had been employed by Yolarno initially as a storeman, then took employment with Bindaree as a labourer and agreed, as part of his employment, that he may be required to enter into a traineeship. Ultimately, he was told that his existing position was to be made a traineeship, which was all that was available, and so he agreed and signed a form by which he was placed on a traineeship, the name of the employer being given as ‘Yolarno Pty Ltd trading as Bindaree’. Shaw argued that, by virtue of that training contract, he became employed by Yolarno. Such a traineeship had to be established under a registered training organisation, and the relevant government department had worked on the basis that Yolarno was the employer of such trainees, given that it was named as such in the form.
  166
  There was evidence that the group training manager for Yolarno had simply followed her predecessor’s practice by writing in ‘Yolarno Pty Ltd trading as Bindaree’, while regarding Shaw as being employed by Bindaree because of the position he was working in when Yolarno offered him the trainee position. Shaw said that he had no knowledge of the corporate structure and merely knew the abattoir traded as Bindaree.
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  167
  In concluding that the employer was Bindaree and not Yolarno, the trial judge found that the form which nominated Yolarno as employer was the product of an error on the part of the training manager and did not reflect the reality that Bindaree was at all times the employer of Shaw for all purposes. His Honour found that the form had created an erroneous impression which was never understood to exist by any of the parties involved at the time.
  168
  On appeal Giles JA, with whom Spigelman CJ agreed, referred [59] to Pitcher v Langford:
  The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the ‘reality of purported contractual arrangements’ (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even where a written contract gives it as the party.
  169
  In finding that Bindaree remained the employer under the training contract for Shaw, Giles JA took into account multiple factors, including that his contract with Bindaree had not expired when he was offered the traineeship, there was no discussion with him as to any change of employer, his contract with Bindaree had specified that he may be required to enter into a traineeship, and that an ensuing traineeship would most naturally be within continued employment by Bindaree, and that Shaw continued to do precisely the same work in the same section and continued to be paid by Bindaree.
  170
  Giles JA continued:
  61 Whether a contract has been entered into is determined on ‘an objective assessment of the state of affairs between the parties’: Ermogenous v Greek Orthodox Community of SA Inc (2001) 209 CLR 95 at [25]; see also Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40] … In Ermogenous v Greek Orthodox Community of SA Inc Gaudron, McHugh, Hayne and Callinan JJ continued at [25], referring to the intention to create legal relations –
  ‘Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.’
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  62 This applies also to determining the entity which entered into the contract. Neither Ms Trevithick’s nor Mr Shaw’s subjective intention can be taken into account. It is not inconsistent with that embargo, however, to take into account whether completion of the second Form giving Yolarno’s name as the employer was a matter of significance in the state of affairs between the parties, and how it came about (as in Pitcher v Langford the signing of the employment contracts was a mere formality). It came about because Ms Trevithick followed her predecessor’s practice. Mr Shaw did not give thought to the particular corporate entity. Both lacked clear consciousness that Yolarno, as distinct from Bindaree, was to be the employer under the training contract, and so far as the evidence showed that was not mentioned between them beyond the name being in the second Form.
  …
  64 In my view, the preferable finding is that, although Yolarno was given as the employer in the second Form, Bindaree continued as Mr Shaw’s employer and was the employer under the training contract … .
  171
  Basten JA was in dissent. His Honour emphasised the objective approach to contractual construction and, while allowing that a need to consider evidence beyond the scope of the text of the written contract would depend upon the issues in the case, considered the document conveyed an unequivocal representation to a reasonable reader – irrespective of what Shaw may have understood – that the person who signed as trainee was entering into a contract with Yolarno.
  172
  Of relevance to this appeal, Basten JA did consider whether, assuming that Yolarno was the employer in the training contract, Bindaree was nevertheless Shaw’s employer for the purposes of the Workers Compensation Act 1987 (NSW) on the basis that Yolarno had (for practical purposes) supplied Shaw to Bindaree, so that he worked for Bindaree. This was a consideration of a provision of the New South Wales legislation which provided
  If the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service or apprenticeship, the latter is, for the purposes of this Act taken to continue to be the employer of the worker while the worker is working for that other person.
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  173
  That provision is nearly identical to the deeming provision in the definition of ’employer’ in s 5 of the Act, reproduced earlier, which formed part of the arbitrator’s reasons for decision.
  174
  On the facts of the case, Basten JA concluded that [106], if that section applied, then Shaw’s employer was Yolarno for the purposes of the Workers Compensation Act, consistent with the view his Honour had reached in any event. Basten JA did caution, however, that reliance upon the statutory scheme to determine the identity of an employer could lead to circular reasoning, and observed that reliance on the statute merely took one back to the question addressed by reference to the general law as to the identity of the employer. That will be mentioned again later.
  175
  In Golden Plains a young man had suffered a severe crush injury to his hand on his second day of work. It was common ground that there was no written contract of employment to be considered. He had been told there was work and had signed some forms connected to receiving his wages into his account and acknowledging safety rules onsite. The issue on appeal concerned the question of which of two companies, which were related companies, had been his employer. As in Shaw v Bindaree, the worker faced a statutory bar to his claim if Golden Plains was his employer, as opposed to Macpri. Golden Plains argued that documentation pointing to Macpri having been the employer was a sham or, in more benign terms used by its counsel at times, ‘the paper side of the arrangement’.
  176
  Gray J summarised the principles applicable to identifying which of two potential employers was the true employer to be as follows:
  33 The touchstone is the practical reality of the relationship. Courts have consistently emphasised that in determining whether a relationship between parties is one of employment or independent contract, the court should focus on the practical reality of the relationship.
  34 The totality of the circumstances surrounding the relationship of the various parties, including conduct subsequent to the creation of the alleged employment relationship, is relevant.
  35 Documentation created by one of more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of the relationship. The documentation may have been brought into existence for other purposes, for example, for tax minimisation or the reduction of insurance premiums,
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  without reflecting the reality of the parties’ relationship. The payment of wages by a particular entity is not conclusive of the existence of an employment relationship. The beliefs of the employees as to the identity of the employer is admissible and is entitled to be given weight.
  177
  Gray J rejected the argument that the employment of the worker by Macpri had been a sham. His Honour found that there were commercial reasons for structuring the business in such a way that Macpri employed the workers and made them available to Golden Plains for its farm management operation, paid them wages, paid superannuation contributions and took out workers’ compensation premiums, in return for which it received a consultancy fee from Golden Plains covering all those expenses. His Honour observed [48]:
  There are understandable commercial reasons why the whole operation should have been structured in this way, with the responsibility for labour being with Macpri. There is no suggestion that to do so was in breach of any law or regulation or would cut across any statutory obligations in respect to workers’ compensation, payroll tax or income tax. This was the way those involved in the overall operation structured the business. It was not a sham. It was a legitimate way of doing business.
  178
  Accordingly, his Honour upheld the decision at first instance that the worker had been employed by Macpri at the time of injury.
  179
  White J, in a separate judgment, also dismissed the appeal. Drawing on the statement of principles by Finn J in C & T Grinter Transport Services Pty Ltd (in liq) & Grinter Transport Pty Ltd (in liq); Ex parte Fitzgerald & Adams [2004] FCA 1148 [20] (Grinter Transport) White J observed [69] that, in cases where the only issue being determined by the court was which of two entities was the employer:

1. Regard is to be had to the totality of the circumstances surrounding the relationship of the parties.
2. The circumstances may include the factors considered in determining whether a given relationship is an employment relationship at all.
3. Events which occurred after the relevant contract was formed may also be considered.
4. It is the reality of the contractual arrangements which is to be considered. Effect may be given to that underlying reality despite the absence of any submission that certain arrangements are a sham.
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5. Payment of wages and issuing a taxation group certificate by one entity is important but not conclusive as to the identity of the employer. It may reflect no more than financial convenience between entities within one corporate group. Nevertheless, such factors will in most cases require active consideration.
6. Documents created by one or more of the entities describing or evidencing their relationship will be relevant, but not necessarily conclusive as to the true character of the relationship. The Court should consider the purpose for the creation of the documents. For example, certain documents may have been prepared for a purpose other than describing the contractual relationship, such as taxation minimisation or reduction of insurance premiums.
7. Conversations and conduct at the time of the engagement of the worker are of considerable significance. The belief of the worker as to the identity of the employer is admissible and should be given due weight.
8. When new employees are engaged to work in a business in which a number of separate corporate entities participate other than as partners, it is open to those controlling the business to select the company which is to be the employer. However, that selection must be consistent with the financial and administrative organisation of the business and not otherwise be a sham.
   180
   To that summary of principle, I add Finn J’s additional observation from Grinter Transport [20], that a contract of service cannot be transferred by one employer to another, or novated as between them, without the employee’s real express or implied consent: see also Nokes v Doncaster Amalgamated Collieries [1940] AC 1014; McCluskey v Karagiozis [2002] FCA 1137; (2002) 120 IR 147 [11] – [12]. That principle informs the willingness of courts in such cases to give consideration to the employee’s knowledge and belief as to which entity employed him. In several of the cases, however, the worker neither knew nor cared particularly which entity within a group of companies had employed him, it being of practical importance only once litigation commenced.
   181
   White J found that the trial judge necessarily determined the question of which entity had employed the worker by reference to the totality of the documentation generated within the overall business – which was not restricted to just the few documents pertaining to the worker specifically – given that the trial judge found that the worker was indifferent as to which entity had employed him at the farm,
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   and
   that the evidence of the witnesses called to testify for Golden Plains was unreliable. White J considered the effect of the financial arrangements between Macpri and Golden Plains – to which the worker would not have been privy – including the payment by Golden Plains to Macpri of sums covering its payment of wages, superannuation and workers’ compensation premiums by way of a simple transfer of the same sums, and the de-registration of Golden Plains as an employer with Workcover at the relevant time, replaced by Macpri, and found that the documentary evidence pointed almost entirely one way in favour of the conclusion that Macpri was the employer. His Honour rejected the idea that the arrangement was a sham, observing [91] that it is not uncommon within a corporate group for one entity to own the assets and another to employ the workers, whether for taxation benefit or to protect the assets from liability from claims for unpaid entitlements, and such arrangements are often quite transparent and achieve precisely what is sought to be achieved.
   182
   Similar in approach to Pitcher v Langford, the judgments in the case support a broad consideration, in a case where the issue is the identity of the employer, of the totality of the evidence including the financial and structuring arrangements between the two competing potential employers and the intention of the two potential entities contending for (or contending to avoid) the role of employer, without the limitation that those facts must be known to the employee, who knew little or nothing of those matters.
   183
   In the Federal Court decision in Gothard, in the matter of AFG Pty Ltd (Receivers and Managers appointed) (in liq) v Davey [2010] FCA 1163 [52] Edmonds J referred to the true employer cases broadly as follows:
   Unsurprisingly, the outcome in cases which have been concerned with identifying an employer of a person or group of persons from two or more possibilities, whether from within the same group of companies or otherwise, has turned on their own facts and, in consequence, the case law in this area is of limited assistance. Nevertheless, it is possible to discern certain general principles that the courts have applied in the identification process. The courts have adopted the position that in undertaking this exercise, they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, where there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer.
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   184
   His Honour continued [60]:
   Aspects of the practical realities of the relationship which have been considered relevant in the cases referred to above, include a consideration of the entity which:
   (a) had practical and legal control and direction of the employees;
   (b) made decisions about hiring;
   (c) made decisions about disciplinary issues;
   (d) made decisions about the level of remuneration;
   (e) actually paid remuneration;
   (f) communicated with employees about leave;
   (g) made decisions about termination of employment.
   185
   The decisions referred to above all pre-dated the High Court decisions in CFMMEU v Personnel and ZG Operations.
   186
   In the post-CFMMEU v Personnel landscape, the decision of Resilient Investment Group Pty Ltd v Barnet and Hodgkinson as liquidators of Spitfire Corporation Ltd (in liq) [2023] NSWCA 118 (Resilient) concerned an application by a liquidator for directions from the court as to how to distribute $2 million in tax offset refunds received on behalf of Spitfire Corporation Ltd (in liquidation) for expenditure on research and development (R&D refunds). Resilient Investment Group was a creditor of Spitfire and held a circulating security interest (what used to be called a ‘floating charge’) over its assets. It was common ground that, if the R&D refunds were circulating assets of Spitfire as at the date of appointment of the liquidator, then those sums had to be applied to first satisfy any outstanding employee entitlements before Resilient’s claim. The trial judge found that the R&D refunds were circulating assets of Spitfire, which finding was overturned an appeal. That determined the appeal outcome.
   187
   Relevant to this matter, though, was another ground of appeal which turned on whether certain employees of the Spitfire group of companies were in fact employed by Spitfire, or one of its subsidiaries, Aspirio Pty Ltd, which was named in each employment contract as the employer. The trial judge considered the totality of the relationship, following Pitcher v Langford and Shaw v Bindaree, and distinguishing
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   CFMMEU v Personnel
   , ZG Operations and a third High Court decision of WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 (WorkPac v Rossato), and found that the workers were employed by Spitfire. Gleeson JA, with whom White and Brereton JJA agreed on this issue, upheld the trial judge on that finding.
   188
   Certain facts were agreed, or not disputed, on appeal. Spitfire was the parent company and sole shareholder for seven wholly owned subsidiaries, including Aspirio. The Spitfire group employed 42 employees, and the employees in question had written employment agreements with Aspirio, although there were various references to ‘the Group’ in those contracts and the employees performed tasks amongst the companies. There was evidence that each business entity in the group conducted different and separate business activities, and the employees were required to follow directions from their individual managers amongst the group.
   189
   There was also evidence that having Aspirio employ most of the employees in the group meant greater administrative efficiencies in matters of human resources, payroll and payment of taxes. The contracts provided for the payment of wages, superannuation and other entitlements by Aspirio, which was also identified as the payer on the employees’ payslips. It lodged and ostensibly paid the workers’ compensation premiums, reported PAYG for the employees through the business activity statements lodged with the Australian Taxation Office, and logged leave entitlements of the employees. But, while Aspirio had a couple of bank accounts, it held no assets, conducted no business separate to the group, had no customers, generated no revenue and operated at a loss every year.
   190
   Spitfire in fact paid the wages out of its own bank account to the employees and/or their superannuation funds, paid the insurance premiums to the workers’ compensation insurers and forwarded withholding tax, and then those sums were added to a loan balance owed by Aspirio to Spitfire. Aspirio did not ever charge Spitfire a management fee or any other amount in connection with being the employer entity. Ultimately, prior to going into administration and then liquidation, Spitfire entered into a deed by which it forgave the loan balance owed by Aspirio. The recitals of the deed (Resilient [19]) recorded that the parties often operated as a single entity and
   as such, loan balances may exist between the parties from time to time as they each enter into commercial arrangements as stand-alone counterparties on behalf of the parties.
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   191
   The trial judge found that the employment contracts were consistent with the employees being retained for the benefit of the Spitfire group generally, rather than Aspirio alone and concluded that, in so far as Aspirio was the employer, it was in substance an agent for Spitfire as an undisclosed principal. The trial judge found that Spitfire was the true employer at least for the purposes of the Corporations Act 2001 (Cth) (by which the employee entitlements received priority over secured creditors).
   192
   On appeal, Resilient argued that the decisions of Pitcher v Langford and Shaw v Bindaree, on which the trial judge had relied, were inconsistent with, or had been overruled by, the High Court in CFMMEU v Personnel, ZG Operations and WorkPac v Rossato. The Commonwealth (which had a right of subrogation to the employees’ entitlements) countered that the trial judge’s finding that Spitfire was the employer could be upheld on two bases: first, that the suggested inconsistency with the three High Court decisions was not relevant in any event, because the identity of the employer was determined by reference to principles of agency and, second, that the ‘true employer’ cases dealt with a different issue to the High Court cases. The Court of Appeal accepted both propositions.
   193
   The issue of the identity of the employer is dealt with at [153] – [185] in the decision. As to the ‘true employer’ cases, Gleeson JA observed:
   161 The Commonwealth also says that the so-called ‘true employer’ cases deal with a different topic to that in the High Court cases, being the identity of the party by whom a putative employee is engaged. That should be accepted. The ‘true employer’ cases are not limited to the statutory context of Pitcher v Langford and Bindaree Beef, but include contracts of employment more generally: see, for example, Golden Plains Fodder Australia Pty Ltd v Millard (2007) 99 SASR 461; [2007] SASC 391 at [33]; Sturesteps v McGrath [2010] NSWSC 169 at [14]-[19]; Re DH International Pty Ltd (in liq) [2017] NSWSC 870; (2017) 121 ACSR 585 at [79]; Gothard at [52]-[64]; Re Branded Media Holdings Pty Limited (in liquidation) [2020] NSWSC 557 at [31].
   162 If it was necessary to decide this question, I would agree that his Honour was correct in distinguishing the three High Court decisions (at J[74]) on the basis that there is a real distinction between the High Court decisions and the ‘true employer’ cases. The former are concerned with ascertaining the ‘character’ or
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   ‘characterisation’ of the parties’ relationship (Rossato at [62], [63]; Personnel Contracting at [59], [174]; ZG Operations at [8]) and dealt with whether an employee was engaged on a casual or permanent basis (Rossato), or whether a worker was an employee or an independent contractor (Personnel Contracting and ZG Operations). By contrast, the ‘true employer’ cases are concerned with ascertaining the identity of the party by whom a putative employee is engaged: see, for example, Gothard v Davey at [52]; Bindaree Beef at [59].
   163 Nor should it be accepted, as Resilient submits, that Pitcher v Langford and Bindaree Beef were expressly or impliedly overruled (by) the three High Court cases. Those cases were not considered by the three High Court cases. Insofar as Pitcher v Langford was cited in a footnote by Gageler and Gleeson JJ in Personnel Contracting at [135], fn 218, that does not assist Resilient’s argument. Read in context, the footnote does not cast doubt on Pitcher v Langford. Nor were Pitcher v Langford and Bindaree Beef impliedly overruled by the High Court cases. As indicated, the ‘true employer’ cases concerning the identity of the employer were not in issue in Personnel Contracting, Rossato or ZG Operations.
   164 It is not to the point, as Resilient submits, that because the judgments of Priestley JA (at 154-155) and Handley JA (at 160-161) in Pitcher v Langford referred to R v Foster; Ex parte Commonwealth Life (Amalgamated Assurances) Ltd (1952) 85 CLR 138 at 151 and 155; [1952] HCA 10, and the High Court said in Personnel Contracting that the relevant passages in Foster are concerned with variation of contract and do not support a court departing from the terms of the written contract in construing the relationship between the parties (at [49]-[52], [179]), that this is to be taken as impliedly overruling the reasoning in Pitcher v Langford. The reasoning in Pitcher v Langford was not limited to the citation of passages from Foster alone. Priestley JA, in dissent, found at 154-155 that the conduct of the parties was not pursuant to their written agreement, ‘but upon the basis of the arrangements in force upon earlier shearings’, being a reference to the nature of the worker’s employment as a shearer. That analysis was consistent with an estoppel; it seems his Honour had in mind a conventional estoppel. Handley JA spoke at 160-162 of whether the parties had ignored or abandoned their written contract. Neither the principles of estoppel nor abandonment of contract were in issue in the three High Court cases.
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   165 The contention that his Honour erred in considering the ‘substance and totality of the relationship’ when determining who was the employer of the relevant employees should be rejected.
   No inconsistency and incoherence in the law
   166 One further matter should be mentioned. It is said that the approach contended for by the Commonwealth leads to inconsistency and incoherence in the law. The spectre of incoherence is misplaced. There is no inconsistency between the application of orthodox contractual principles in determining the character of the parties’ relationship the subject of a written agreement and the application of the principles of agency to determine the parties to a contract.
   194
   The discussion in that decision as to the true employer cases was, strictly, obiter dictum, although it was addressed in detail and involved a point of significance.
   195
   The decision in Resilient, however, was considered in a further decision of the Court of Appeal in Agrigrain Pty Ltd v Rindfleish [2024] NSWCA 295 (Agrigrain v Rindfleish). Again, the case involved the identity of the worker’s employer. Mr Rindfleish had suffered severe physical injuries working at a grain handling facility at Coonamble, and the issue was whether his employer at that time was Agrigrain Coonamble Pty Ltd or the parent company, Agrigrain Pty Ltd. The case was one in which there was no written employment contract, although it was common ground that there must have been an employment contract between the worker and one of the named entities.
   196
   Rindfleish contended that his employer was Agrigrain Coonamble, but sued Agrigrain as the entity responsible for maintenance of the facility and safety onsite. Agrigrain contended that it was his employer which, if true, placed statutory hurdles in his way. Agrigrain was unsuccessful on the point. On appeal, Agrigrain contended that the trial judge had erred in failing to have regard to the totality of the relationship between the parties (relying upon Stevens v Brodribb), in giving insufficient significance to the degree of control that Agrigrain exercised over the worker’s work activities, and in attributing excessive weight to the fact that Agrigrain Coonamble had been the entity that paid his wages.
   197
   Kirk JA, with whom Ward P and Stern JA agreed, referred to CFMMEU v Personnel and the evolution of the principles previously developed to distinguish between an employee and an independent
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   contractor, indicating that, at least for written contracts, the issue was to
   be determined by reference to the terms of the contract. Kirk JA observed, however, [31] that ‘those principles are not directly applicable to the issue here of identity of Mr Rindfleish’s employer’. His Honour found that, where the issue was simply which of the two entities was the party to the employment contract, that was an issue of formation going to the terms of the contract.
   198
   Kirk JA observed that there was no allegation before the court that the contract was a sham, or that the party named as employer was contracting as agent for an undisclosed principal such as arose in Resilient, or that one employment contract had been overtaken in practice by another such as arose in Pitcher v Langford and, therefore, ‘the contractual question here is what a reasonable person in the position of the parties would understand as to the terms and effect of the contract’ [34], referring to Toll v Alphapharm and noting that that principle ‘extends to identifying the parties to the contract’, citing Shaw v Bindaree [61] – [62].
   199
   His Honour continued [34]:
   … Where there are two potential employers, in a case such as this one, the ‘parties’ here can be taken to include both of them such that the question is what a reasonable person in the position of all potentially relevant parties would understand as to which entity was party to the employment contract as employer. For a written contract, assessment of what a reasonable person would understand ‘requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction’: Toll at [40]. For contracts not exclusively in writing, post-contractual material may also be relevant in determining what were the terms of the contract eg Lawrence v Ciantar [2020] NSWCA 89 at [114], and authority there cited; Personnel Contracting at [177] and [190].
   200
   Kirk JA referred to the decision of Resilient and the distinction that the court there accepted between the High Court decisions in CFMMEU v Personnel, ZG Operations and WorkPac v Rossato and the ‘true employer’ cases, observing [35] that that discussion in Resilient was obiter. His Honour continued:
   35 … It is said in The Modern Contract of Employment that the suggestion of such a distinction, and reference to authority preceding the trio of recent cases, ‘is likely to be controversial’ (at [2.020]). There need be no such controversy, nor tension with the High Court decisions, if the statements in Resilient are understood to be addressing the issue of identifying the relevant
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   party to the contract as a matter of contract law. That is how the issue was addressed in this Court’s earlier majority decision in Shaw, which was referred to approvingly in Resilient. As explained, as a matter of contract law regard may be had to surrounding circumstances and, in cases of a contract not wholly written, also to post-contract evidence.
   36 Consistently with the distinction identified in Resilient, the issue of characterising a contractual relationship as one of employment or independent contracting (the characterisation issue) is different from the issue of identifying who are the parties to a contract which it is accepted establishes a relationship of employment (the ‘true employer’ issue). That being said, insofar as post-contract conduct is relevant to the true employer issue it is necessary to identify what sort of conduct might throw light on which entity was the true employer. Notions from the characterisation context may assist in that regard. For example, the nature and degree of control exercised may be relevant to determining whether a person is an employee or contractor … Analogously, identifying who exercises control may be relevant to identifying the true employer. Insofar as account is taken in the true employer context of factors identified in the characterisation context, they should be factors which are still relevant in that context in light of the recent trio of High Court decisions.
   201
   His Honour observed that, even in CFMMEU v Personnel [61] the plurality still accepted that the court could consider the totality of the relationship between the parties in determining the character of the relationship, but on the basis that the analysis was concerned with the rights and duties established by the contract, rather than an investigation of how the relationship between the parties had played out in practice. Kirk JA observed [37] that the expression ‘the totality of the relationship’ is not to be regarded as the legal test in itself, because the issue is one of contract law and, if there is a written employment contract which is not alleged to be a sham or otherwise invalid, or overtaken by some subsequent contract or made on the basis of agency for an undisclosed principal, or such like, then the written contract would supply the answer to the question of the identity of the true employer while, if a contract was not wholly written, then it was permissible to refer to post-contractual conduct, but always with an eye to the ‘ultimate question’ being the contractual question [40]:
   of what a reasonable person in the position of all the potentially relevant parties would understand as to which entity was party to the employment contract as employer, taking account of the permissible evidence.
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   202
   While the discussion of those concepts was obiter in Resilient, it was part of the ratio decidendi in Agrigrain v Rindfleish. While that decision is not binding upon this court, it is persuasive authority as to how this court should approach a ‘true employer’ issue.
   203
   In particular, where the issue is the identity of the employer and, as here, there are two (or more) contenders, the court is not restricted to a consideration of the terms of any written contract there may be in existence, or to the dealings between the two parties named in the contract alone, or to the facts known to both parties as the lowest common denominator, but may consider the background information known to all of the parties where that is necessary to throw light on the purpose and meaning of any contract entered into.
   204
   Phrases like ‘the totality of the relationship’ are not the contractual test itself, and are not to replace the ultimate question of the formation of any contract of employment and the identity of the employer. Where the parties have chosen to commit their relationship to a comprehensive written contract, that may well supply the answer to the question, but where there is ambiguity, suggestions of a sham or, if not a sham, an arrangement which does not reflect the intention of the parties in their performance of the contract (whether because the contract was varied, or replaced, or abandoned), where issues of estoppel or agency are present, or other issues which justify a broader approach to identify the employer, then the court is justified in looking to facts outside the confines of the four corners of any contract. The court in CFMMEU v Personnel did not confine the consideration of the court to the four corners of the contract, and allowed for a broader enquiry where appropriate.
   205
   Applying the principles in CFMMEU v Personnel, which allowed for consideration of the factual matrix in which a contract was entered into to assist in determining its object and purpose, and a broader enquiry where there were issues of variation or abandonment of the contract, or estoppel or agency was raised, or sham was raised, or other factors justifying that broader enquiry, there were factors raised in this appeal which positively required a broader enquiry to be made. Further, this case was distinguishable on the basis of the issue to be determined by the court: namely, which of two putative employers was the employer, given that it was not in issue that one of the parties was.
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   206
   To some extent though, the whole discussion of CFMMEU v Personnel and the ‘true employer’ cases begs the substantive question of whether the parties to the alleged employment contract, namely Mr Horne and Execom, did commit their relationship to a comprehensive written contract by the time Mr Horne was injured on his first day of work, or not. Ultimately, Mr Horne did sign the Execom offer, weeks after his injury. Ironically, since Moon Recruitment was the party arguing for a restrictive view of what material was relevant before the arbitrator, that allegedly post-contract conduct is a piece of evidence in favour of identifying Execom as the employer, although there are other arguable interpretations to be placed on it.
   207
   But Execom’s premise that there was a comprehensive written contract in place and therefore the reasoning in CFMMEU v Personnel carries the day does rely upon a finding that Mr Horne had accepted that written offer from Execom by conduct. The arbitrator declined to make that finding. And so now I turn to the principles in relation to acceptance of an offer by conduct.
   Acceptance of an offer by conduct – legal principles
   208
   Moon Recruitment contends that the Execom offer to Mr Horne was accepted by his conduct in attending the premises of Echo Marine for his first day of work.
   209
   In determining whether a binding contract has been concluded, the law is concerned not with the subjective intentions of the parties, but with the outward manifestations of these intentions: Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 [59] (Mushroom Composters) citing Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422, 428 (Mason ACJ, Murphy & Deane JJ). The court is looking to ‘what each party by words and conduct would have led a reasonable person in the position of the other party to believe’: Toll v Alphapharm [40].
   210
   A contract may be inferred from the conduct of the parties: Brogden v Metropolitan Railway Company (1877) 2 App Cas 666 (Brogden). Mr Brogden was a member of a partnership which owned a colliery in Wales and had supplied coal to the Metropolitan Railway Company for years at varying rates, and eventually suggested the parties should enter into a contract. The company drew one up which specified a variable price for the coal and forwarded it to Brogden. He filled in certain blank spaces, nominated an arbitrator in case of
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   dispute, noted ‘approved’ on the document, signed his own name and
   sent it back, where it was placed in a drawer. It was never formally executed by the company or the partnership, but the parties conducted themselves thereafter in accordance with its terms and, when supply faltered, the ‘contract’ was mentioned in correspondence. Ultimately, Brogden refused to supply the coal on those terms and denied that there was a binding contract. The company was successful in its suit.
   211
   On appeal, the Lord Chancellor (Lord Cairns) observed (672):
   … there is no principle of law better established than this, that even though parties may intend to have their agreement expressed in the most solemn and complete form that conveyancers and solicitors are able to prepare, still there may be a consensus between the parties far short of a complete mode of expressing it, and that consensus may be discovered from letters or from other documents of an imperfect and incomplete description; I mean imperfect and incomplete as regards form.
   212
   The Lord Chancellor found the proposition implausible that, when the parties had clearly been seriously intent on reaching an agreement and had reduced their efforts to writing, it had then suddenly passed ‘entirely out of view, an incomplete and unfinished transaction’: (676). His Lordship referred to conduct following the annotation of the document and said of the conduct (679) that ‘they were supplying coals under a contract, and no contract can be suggested except the contract to which I have already referred’, and (680)
   subject only to approbation, on the part of the company, of the additional term which he had introduced with regard to an arbitrator, that approbation was clearly given when the company commenced a course of dealing which is referable in my mind only to the contract and when that course of dealing was accepted and acted upon by Messrs Brogden & Co in the supply of coals.
   213
   Lord Hatherley found (686) that the conduct of the company in the case amounted to a
   course of action … of such a character as necessarily to lead to the inference on the part of the Defendants that the agreement had been accepted on the part of the Plaintiffs and was to be acted upon by them; and they did act upon it accordingly.
   214
   Lord Selbourne observed (688):
   I by no means say that if nothing had been done upon the footing of the agreement, silence would have given consent in such a sense as to bind the parties on either side.
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   215
   His Lordship found (688) that ‘mere mental consent … and followed up neither by communication nor by action’ did not suffice to establish a contract but that, in the scenario before the court ‘which entirely rests upon fact’ (690), ‘every single circumstance points quite unequivocally to this agreement’ (689).
   216
   In Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 (Brambles v Bathurst CC), Ipp AJA, with whom Mason P agreed, referred to Brogden and Lord Hatherley’s reasons above, before observing [162] that
   … for conduct to amount to implied acceptance of an offer, it must be ‘of such a character as necessarily to lead to the inference on the part of the defendants that the agreement had been accepted on the part of the plaintiffs, and was to be acted upon by them’.
   217
   In Laidlaw v Hillier Hewitt Elsley Pty Ltd [2009] NSWCA 44 [5], Macfarlan JA, with whom Beazley JA agreed, drew from the observations reproduced above from Brambles v Bathurst CC [162] and similar observations of McHugh JA in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, 535 (Empirnall v Machon Paull), the principle that, before a court will infer that a contract was concluded between the parties, the conduct must indicate unambiguously that the parties intended to contract and, ‘it must point to the existence of the contract in the terms alleged in the proceedings’: [9]. It is unnecessary to detail the facts of that case, but Macfarlan JA did not regard an inference drawn by the trial judge in that case as the ‘only’ possibility, and considered that a different sensible explanation ‘was not excluded by the evidence’.
   218
   An offer of employment may be accepted by conduct. In Carey v President of the Industrial Court Queensland [2004] QCA 62 (Carey) a solicitor in the Crown Law Office worked for a period of nine years on the strength of a series of periodical letters announcing and then extending his engagement to work as a legal officer. In legal proceedings it was argued that the letters were mere ‘unilateral announcements’, to which the solicitor had never assented and never been asked to assent. The Court of Appeal (McPherson and Davies JJA and MacKenzie J) found [7] that there was no doubt under the general law that the solicitor’s conduct in continuing to work at the Department, coupled with the continued payment to him of his wages, would have given rise to the inference that a contract of employment had come into
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   existence between them, the terms of which were supplied partly by the
   letters and partly by the common law. The court accepted [9] that, when the solicitor received the final letter extending his work
   his conduct in continuing without dissent to work for the respondent was susceptible of no reasonable inference or interpretation other than that he was agreeing to its terms …
   219
   The court further found [9] that a conclusion to that effect was one of fact, citing McHugh JA in Empirnall v Machon Paull (535), but also observed that the inference to that effect was so compelling that to have ignored it in the face of overwhelming evidence would have amounted to an error of law.
   220
   Post-contractual conduct is admissible on the issue of whether a contract was formed: Brambles v Bathurst CC [25] and the authorities there cited. Evidence of the parties’ subsequent communications is admissible for what light it may cast on their dealings from which the contract was said to have arisen: RJ Baker Nominees Pty Ltd v Parsons Management Group Pty Ltd [2010] WASCA 128 [66].
   221
   To justify the drawing of the inference then that, in attending the premises of Echo Marine for work on his first day, Mr Horne accepted the written offer from Execom, it was necessary that the evidence point unambiguously to that conclusion, and not merely be consistent with that inference while also consistent with a competing explanation, namely that he attended the workplace in fulfilment of a contract of employment with Moon Recruitment. The onus being on Execom in its application, it was for Execom to negative the inference. It could do so by establishing that the evidence did not point unambiguously to that conclusion and was – bearing in mind the standard of proof – as or more consistent with another explanation. I turn now to that finding by the arbitrator.
   The arbitrator’s finding that the Execom offer was not accepted by conduct on 2 September 2019
   222
   Moon Recruitment’s complaint primarily concerns the arbitrator’s overall conclusion that it was Moon Recruitment which was the employer and therefore liable for the workers’ compensation payments. But its argument to the contrary necessarily rested upon the premise that Mr Horne had accepted the Execom offer by conduct in turning up for work on his first day, resulting in the parties (Execom and
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   Mr
   Horne) having committed their relationship to a comprehensive written contract which, when construed objectively, rendered Execom the employer.
   223
   The arbitrator therefore determined two issues: whether the offer sent by Execom to Mr Horne was accepted by him by attending the premises of Echo Marine for his first day of work and then, in any event, which of the two putative employers was the party which contracted with him in such a way that he fell within the definition of ‘worker’ and was therefore his employer within the Act, and liable to make workers’ compensation payments. The onus lay on Execom, it being Execom’s application, to prove that it did not have a written contract with him by the time he was injured or that, if it did, it nevertheless was not his employer within the meaning of the Act.
   224
   The question of whether Mr Horne had accepted the Execom offer by conduct and prior to his injury logically preceded any issue concerning the effect of that alleged contract. The arbitrator found that he did not.
   225
   Moon Recruitment submitted that the existence of a contractual relationship and employment relationship, in any given set of circumstances, is ultimately a question of law, citing Damevski v Giudice [2003] FCAFC 252 (Damevski v Giudice) [60]. The passage referred to, however, in context, concerned the legal characterisation of a relationship in circumstances where an employer had attempted to reframe its employment relationship with its workers to replicate a relationship which was the subject of a ruling in another case, in order to avoid being an employer. It was unsuccessful. Where the only issue is the legal characterisation to be placed on a contract, the question will be one of law. Where the question turns upon the finding of relevant facts, and the drawing of factual inferences from those facts, it will be one of fact. And where the question is a two-step process of first considering the evidence to find the relevant facts, then determining what characterisation ought be put on those facts, it will be a mixed question of fact and law: Marshall v Whittaker’s Building Supply Company (1963) 109 CLR 210.
   226
   The issue before the arbitrator was whether, objectively, Mr Horne’s conduct in presenting for work on 2 September 2019 objectively and unambiguously indicated to a party in the position of Execom that he was thereby accepting the Execom offer sent to him on 30 August 2019. That was a question of fact. Resolving it involved
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   either drawing an inference to that effect or declining to draw an
   inference based on the facts: Carey [9], citing McHugh JA in Empirnall v Machon Paull (535). Importantly, it was accepted before the arbitrator that one of these entities had entered into a contract of employment with Mr Horne.
   227
   If, in deciding that question, the arbitrator took into account irrelevant material, or reached a conclusion that could not be reached on the evidence, then that was an error of law, although the conclusion need not have been in error. But the issue itself was a factual determination. As mentioned earlier, no error of law is involved in a wrong or doubtful finding of fact or inference drawn on the evidence, unless findings have been made without any evidence to support them: Erceg v Galati [31]. It is not the role of this court in determining an appeal to simply substitute its own decision. If there was an evidentiary basis for the finding made by the arbitrator, and no error of law involved, then there is no proper basis for disturbing the decision – not even if another decision might have been reached on the evidence.
   228
   The Execom offer was not executed by Mr Horne until 1 October 2019, a month after he was injured, and was not forwarded to Execom until 10 October 2019. The arbitrator noted [119] that, as the agreement had not been executed at the time of injury, then
   unless the evidence establishes there was acceptance by other means, the Execom/Moon (sic: Execom/Horne) agreement had not been executed at the time of the injury and was not therefore in effect.
   229
   The arbitrator found that Mr Horne turned up to work on his first day in fulfilment of his obligations pursuant to the contract of employment he had entered into with Moon Recruitment to provide his labour to Moon Recruitment’s client, Echo Marine. He found that contract to be ‘established by the following facts and circumstances’ set out at [126] of his reasons:
   Moon is a labour hire organisation. It entered into an agreement with Echo to provide labour services provided by Moon’s employees. Echo required fabricators. Moon advertised in SEEK for fabricators for Echo. Mr Horne responded to that advertisement. Ms Moon spoke to Mr Horne, received and considered his C.V., checked his credentials and referred his details to Echo. She arranged an interview with Echo, arranged a drug and alcohol test and then orally informed Mr Horne that he had been accepted for a three-month contract to work with Echo. Although Mr Horne does not recall any specific discussions with Ms Moon about pay, nonetheless it is clear that in those circumstances he was going to be paid for his services to Echo.
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   230
   It follows that the arbitrator drew the inference that Mr Horne had entered into a contract of employment with Moon Recruitment which was partly oral and partly supplied by law, with the advertisement forming part of the surrounding factual circumstances leading to that inference. The advertisement in SEEK had advertised a three-month position working in a boat building project at a site located in Henderson, with the successful applicant to be paid at a ‘competitive industry hourly rate’ with penalty rates after 40 hours. The company involved was named as Echo Marine.
   231
   Ms Moon testified that Mr Horne had been accepted following the drug and alcohol screen and she had then informed him that he had been accepted to work at Echo Marine. Mr Horne gave consistent but more detailed evidence that Ms Moon had told him he was starting at Echo Marine on the Monday. The dealings between Mr Horne and Ms Moon were the basis upon which the arbitrator found that Mr Horne had ‘already’ reached an agreement whereby he was employed at Moon Recruitment to work at Echo Marine, in keeping with which he had presented for work.
   232
   The arbitrator returned to this finding a little later, when dealing with one of the reasons why he considered that the decision in CFMMEU v Personnel was distinguishable [135]:
   In the current dispute, the purported Execom/Horne agreement was not executed by Mr Horne until sometime after his injury. Moon submits the offer of employment was accepted by Mr Horne’s conduct, by turning up to work at Echo on 2 September 2019. However, as earlier found, there was already a contract of employment in existence, with Moon, and I consider that consistent with the Moon/Echo agreement, Mr Horne turned up at Echo as fulfilling his obligations under the Moon employment contract.
   233
   That was the basis for his finding, namely that, by the time the Execom offer arrived, there was already an employment contract on foot for the reasons articulated in [126] and Mr Horne presented for work accordingly. The same reasoning was repeated later at [143] after the arbitrator had considered the Execom offer and the overall context of the arrangements between Moon Recruitment and Execom and Moon Recruitment and Echo Marine, so that extra facts were added to this conclusion:
   The Execom/Horne agreement does not establish that there was a contract of employment between Execom and Mr Horne in existence on the date of injury. The Execom agreement was not signed by
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   Mr Horne prior to his injury. The fact of Mr Horne attending at work with Echo does not lead to a conclusion that he was thereby accepting employment with Execom. He already had a contract of employment, with Moon. Further, although he had read the Execom agreement, he had not heard of Execom and merely assumed Execom was something akin to a subsidiary of Moon. He had otherwise no contact or prior dealings with Execom.
   234
   Having found that Mr Horne had become Moon Recruitment’s employee, the arbitrator found that the deeming provision in s 5 of the Act meant that he continued to be Moon Recruitment’s employee while he worked for Echo Marine and Moon Recruitment was therefore the entity responsible for the workers’ compensation payments.
   235
   Because the arbitrator considered the two questions, as to whether the Execom offer had been accepted by conduct and whether, in any event, Execom could be the employer, in a compendium way, a series of factors were referred to between those two quoted passages, without a clear delineating structure.
   236
   The arbitrator referred at [128] – [129] to the deeming provision in s 5 which, if Mr Horne had entered into a contract of employment with Moon Recruitment, had the effect that he continued to be employed by Moon Recruitment though his services were temporarily lent or let on hire to another. The arbitrator reasoned that, while Mr Horne was then let on hire to Echo Marine, he ‘continued’ to be employed by Moon Recruitment. In other words, once the arbitrator reached the conclusion that Moon Recruitment and Mr Horne had entered into an employment contract, and he had reached that conclusion, the Act deemed that employment to continue despite the worker being let on hire to another.
   237
   Moon Recruitment argues that the arbitrator erred in taking any account of the deeming provision. That submission will be dealt with under the next heading but, for now, it is sufficient to say that I reject that submission. I do accept that the deeming provision begged the question of whether Mr Horne had entered into a contract of employment with Moon Recruitment. But I do not consider that the arbitrator regarded the deeming provision as having created the contract of employment between Mr Horne and Moon Recruitment, as detailed in [126]. The arbitrator correctly described what the deeming provision achieved.
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   238
   The deeming provision did, however, have relevance to the overriding question of whether Execom was Mr Horne’s employer, and it was in that context that the arbitrator summed up the overall scenario presented by the facts, including the contract reached between Mr Horne and Moon Recruitment and the deeming provision and observed that:
   129 The above facts and circumstances in my opinion lead to a conclusion that the relationship between Mr Horne and Moon has all the hallmarks of a contract of employment, whereby Mr Horne had entered into a contract of employment to work for Moon, in that he was employed by Moon to work for Moon’s client for a fee rendered by Moon, where the fee contained a profit margin over and above the wages paid to Mr Horne.
   130 Otherwise, on what other basis was Mr Horne working at Echo?
   239
   The second sentence quoted above was, I infer, a reference to the fact that Execom had no contractual relationship with Echo Marine.
   240
   The two issues were related to each other, of course. The fact that Moon Recruitment recruited Mr Horne to work at Echo Marine, a fact that Mr Horne patently knew, was relevant to the question of whether he had accepted the Execom offer by conduct. It related to the competing inference that Mr Horne presented to work on his first day in accordance with an employment contract reached with Moon Recruitment for him to work for three months at Echo Marine.
   241
   The fee earned by Moon Recruitment did not cast light on that particular question, and was not referred to in the summary of factors in [126] that referred to Mr Horne’s dealing with Moon Recruitment and the reaching of an agreement between them. It was relevant to the overriding issue as to which entity was the employer. Again, Moon Recruitment argues that the arbitrator erred in taking any account of Moon Recruitment’s arrangement with Echo Marine. That submission will be dealt with under the next heading but, for now, it is sufficient to say that I reject the submission.
   242
   So the arbitrator inferred that Mr Horne presented for work pursuant to a contract of employment that he had entered into with Moon Recruitment to work at Echo Marine. Though the arbitrator did not use these words, it necessarily followed from his finding that Mr Horne’s conduct in presenting for work on his first day did not unambiguously indicate his acceptance of the Execom offer.
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   243
   Although the evidence did not all point in a single direction, I find that there was ample evidentiary basis for the arbitrator’s finding that Mr Horne did not, in presenting for work on 2 September 2019, accept the Execom offer by conduct. Or, to put that another way, I find there was ample evidentiary basis for the arbitrator to decline to draw the inference that, in presenting for his first day of work, Mr Horne must objectively be taken to have been accepting the Execom offer and not, instead, turning up for work pursuant to his agreement with Moon Recruitment. The arbitrator did not refer to all of the evidence below in his reasons though he alluded to it in his summary of the evidence or in his conclusions.
   244
   Moon Recruitment also made specific arguments that there was information provided to Mr Horne in the Execom offer that was not previously provided to him and therefore he must have accepted the Execom offer by conduct. This was part of an overall argument that there was no evidentiary basis for the arbitrator’s conclusion that the offer had not been accepted by conduct or, in the event of an error of law being made out, that the court should review the materials and find there was insufficient basis for the findings made.
   245
   Mr Horne testified that he had not been told by Ms Moon that the documents being sent through would be from another company, and that he thought Execom to be part of Moon Recruitment. The arbitrator did refer in his summary and his reasons to the evidence of Mr Horne to the effect that he did not know Execom to be a different entity and thought it to be the pay division of Moon Recruitment, having previously dealt with other businesses that had other names under the one umbrella.
   246
   That evidence was not irrelevant. His knowledge, or rather his lack of knowledge, as to Execom being a different and unrelated company from the entity he had been dealing with, and his belief that Execom was the pay division of Moon Recruitment had bearing, because an employer cannot unilaterally transfer an employee to another employer without the employee’s consent. The evidence as to what, if anything, Mr Horne had been told about Execom was sketchy. An employee could not consent to his employment being transferred to another entity if he was not given information that it was another entity, nor that his employment was being transferred. It was not inconsistent with Moon Recruitment employing Mr Horne that it should arrange for another entity to provide payroll services to it by paying him his wages: Damevski v Giudice [63], [91]. In so doing,
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   Moon
   Recruitment confirmed its intention that he receive wages for his work and caused that to occur. But it could not unilaterally transfer him, as though he was an asset, to another employer.
   247
   Further, given the ambiguity as to the role that Execom had in this proposed arrangement, the knowledge of the parties was admissible: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337. Mr Horne’s knowledge was admissible as to whether the inference should be drawn that he had objectively indicated his acceptance of the Execom offer by conduct, rather than presented for work in accordance with an oral contract already reached with Moon Recruitment. His lack of knowledge that Execom was a different entity or that this offer was some new proposal distinct from what he had already agreed with Moon Recruitment was evidence tending against the drawing of an inference that he must have accepted the Execom offer in turning up for work on his first day, as opposed to having presented for work as already agreed and on the understanding that these documents were to be signed before he could receive his first pay.
   248
   Mr Horne had testified that he had received the email from Ms Woodman, telling him he was to start at ‘Echo Marine for Moon Recruitment’. The subject heading for the email read: ‘Contract for Moon Recruitment for Echo Marine Group’. The email read:
   Congratulations on your start at Echo Marine Group for Moon Recruitment (subject to a clear DAS) at 49 Clarence Beach Road, Henderson on Monday 2nd September 2019 at 7.00am.
   Please find attached contract, letter, Personal details, Tax and Super form.
   Please fill out all the forms and return them to me together with your contract before Monday the 9th September, 2019.
   Hope you have a good first day and give me a call if you have any queries.
   249
   The email informed him of his start time, on a day he already knew was his start date, at a job he already knew he had obtained, at premises he had already been to, and this email was consistent with the obvious, that he would be paid for his work. On its face it suggested that the author was communicating on behalf of Moon Recruitment.
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   250
   The email did not require Mr Horne to sign or accept the attached contract, or even read it, prior to commencing work on the Monday. The arbitrator did not mention this particular point, although the email was before him and plainly taken into account in his reasons. No finding of fact to that effect was needed – the document spoke for itself. Mr Horne had a full week to digest and fill in any attached forms. The fact that the offer need not be accepted prior to the commencement of work was a factor against drawing the inference that it had necessarily been accepted by conduct in presenting on his first day, and there was no express term in the offer to the effect that commencement at work would constitute acceptance of its terms. While an agreement can be reached without the formal execution being attended to on time, the express requirement was that acceptance occur prior to the first due payment, tending against the inference sought to be drawn. Execom only sent the offer because Moon Recruitment had already selected Mr Horne and told him that he had the job.
   251
   Attached to the email was a letter to Mr Horne commencing ‘Congratulations on your contract with Execom Personnel’, and thereafter containing the same information as the email of the same date, and still with an emphasis on him getting paid for the work. There was an obvious inconsistency between that letter and the email, which the arbitrator remarked upon. And then the Execom offer was itself ambiguous. That will be addressed in detail below under the next heading.
   252
   The arbitrator did state under his heading ‘Background information and issues in dispute’ that Mr Horne read the Execom offer on the day he received it. In fact that finding was generous to Moon Recruitment and was not repeated in the summary of Mr Horne’s evidence. The witness did not testify that he read the Execom offer on the day he received it. He was not asked when he had read it. He agreed that he read it before he signed it, and he signed it on 1 October 2019. The closest the evidence came was his agreement that he knew Execom was involved on 30 August 2019 ‘because they sent you an email’. He did not sign the offer before turning up for work on his first day, and so there was no presumption that he had read it. To the extent that his evidence was overstated, the error favoured Moon Recruitment.
   253
   Moon Recruitment’s main submission was to the effect that the Execom offer had provided Mr Horne with information that had not been provided to him by Moon Recruitment, and therefore his attendance at the workplace on 2 September 2019 could only have
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   been in response to his acceptance of that offer. In written submissions,
   Moon Recruitment highlighted (in purple) matters contained in the Execom offer which ‘were not found in any words or conduct between Horne and Moon Recruitment’.
   254
   Clause 1 of the Execom offer provided that Mr Horne undertook to supply such services for clients of Execom as were set out in the schedule. This was said to be new to Mr Horne. The services were ‘Fabricator Welder’, which Mr Horne already knew. The schedule did not name either Echo Marine or Moon Recruitment as the ‘client’ – more of that under the next heading – but it did provide the ‘address for provision of services’ as ‘Echo Marine Group which is located at 49 Clarence Beach Road, Henderson’. The offer suggested but did not directly claim that Echo Marine was Execom’s client.
   255
   Mr Horne was not privy to the lack of relationship between Execom and Echo Marine because he knew almost nothing about Execom, but the facts of which he was aware must have indicated to him that Moon Recruitment had a client in Echo Marine. The Execom offer did not objectively contradict his understanding that Moon Recruitment and Execom were the same business or in the same group of businesses, with Echo Marine as a client.
   256
   The address for provision of the services was not new to Mr Horne. He already knew he was to work at Echo Marine. Ms Moon had told him that he been successful in getting the job and he testified that she told him he was to start the following Monday.
   257
   The schedule in the Execom offer provided details as to how to arrive and gain access and the person to whom he should speak, with a phone number. The schedule advised him to wear personal protection equipment and told him he would be provided with a hard hat and safety glasses and a clock card. The evidence indicated however that, by the time he received the Execom offer, Mr Horne had already been to Echo Marine to demonstrate his welding capabilities, and Ms Moon had already provided him with fluorescent clothing to meet the client’s safety requirements and told him to go in and meet the foreman, whose name he could not now recall. The arbitrator did not go into quite this level of detail in his summary of his reasons, but he did expressly take into account and accept the evidence of the conversation with Ms Moon whereby she informed Mr Horne that he had the job, and this was the unchallenged evidence.
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   258
   The Execom offer did contain the precise rate of pay that Mr Horne would receive. Execom had that pay rate figure from Moon Recruitment once Ms Moon had selected Mr Horne. Mr Horne testified that did not recall Ms Moon informing him that Moon Recruitment would pay him (consistent with the arrangement that Moon Recruitment had reached with Execom). Ms Moon testified that she did not recall informing Mr Horne what his rate of pay would be. Moon Recruitment submitted, therefore, that the dealings between Moon Recruitment and Mr Horne had left the matter of the pay rate undetermined – which the arbitrator impliedly accepted – and that agreement on price is generally regarded as necessary to a concluded contract. It argued therefore that Moon Recruitment and Mr Horne had not reached a concluded bargain and, therefore, the Execom offer was the only offer on foot when Mr Horne presented for work, leading to the inference of acceptance of that offer by conduct. The arbitrator rejected the argument.
   259
   While it is not necessary to be able to identify a precise offer or acceptance or to identify the precise time at which an offer was accepted, it is necessary to conclude that a reasonable person in the position of each party to the alleged agreement would think there was a concluded bargain: Mushroom Composters [60] and the authorities cited therein. An alleged contract will fail for incompleteness if a term which is regarded as essential at law has not been agreed between the parties: Mushroom Composters [62] and the authorities cited therein.
   260
   While it may be accepted as a general principle in relation to many types of contracts, such as contracts for the sale of goods or the sale of land, that price is an essential term to a concluded bargain, the arbitrator dealt with that submission by his observation that ‘nonetheless it is clear that in those circumstances he was going to be paid for his services to Echo’. In other words, the arbitrator found that a court would necessarily imply a term into any contract of service between Mr Horne and Moon Recruitment that Mr Horne was going to be paid for his services at Echo Marine. To that observation should be added that the advertisement to which Mr Horne responded advertised that the worker would be paid competitive industry rates.
   261
   For a term to be implied into a contract, it must be reasonable and equitable, necessary to give business efficacy to the contract, so obvious that it goes without saying, and must not contradict an express term of the contract: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283. The implication of a term
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   into a contract between Mr
   Horne and Moon Recruitment that he was to receive a reasonable wage for his work would meet such criteria. Such a term would be well capable of enforcement in a court as an implied term. If Execom had never entered the scene, and Mr Horne had presented for work at Echo Marine and not received his wages, Moon Recruitment could not have persuaded a court that it was not liable to pay his wages.
   262
   An argument could even be made, if it came to it, that in providing Execom with the pay rate for Mr Horne and causing Execom to send that information to Mr Horne, Moon Recruitment would be estopped from denying that he was entitled to be paid at that precise rate, because this was not a binary choice between Mr Horne either looking at the Execom email and/or attached documents and thereby necessarily accepting the Execom offer by turning up for work, or ignoring the documents and gaining nothing from them whatsoever.
   263
   But, in any event, the arbitrator decided the issue on the basis that the law would imply a term in an oral agreement between Moon Recruitment and Mr Horne that he would be entitled to be paid for his work. There was a clear basis for finding that such a term would be implied at law. The mechanics of how Mr Horne was to receive his wage were not essential to that agreement. But it was open to the arbitrator to find, as he did find, that the arrangement whereby Mr Horne was to be paid by Execom (at a rate fixed by Moon Recruitment) was a mere payroll function. Payment of wages by a third party is not fatal to the existence of a contract of employment.
   264
   Moon Recruitment argued that, in addition to the pay rate, a number of essential terms had not been articulated by Ms Moon in her dealings with Mr Horne, namely the service he was to provide (he had done his welding test at Echo Marine and the job was for a fabricator), the address he was to work at (he had been there), when, where and to whom to report for duty (again, he had been there and his unchallenged evidence was that he had been told to start Monday and report to the foreman).
   265
   Moon Recruitment also relied upon the fact that it had not provided Mr Horne with a written offer of employment. It was not necessary for Mr Horne to be presented with a written offer of employment by Moon Recruitment. In Damevski v Giudice [84] Marshall J observed:
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   … Although there was no formal offer of a new employment contract, it is not uncommon for two commercial entities to informally enter into a contract. There is no reason to treat an employment relationship any differently. The agreement between the two can be evinced from their conduct.
   266
   Counsel for Moon Recruitment did establish through Mr Horne in cross-examination that he had ‘accepted’ the contents of the Execom offer, but the questioning was, with respect to counsel, so general and so loaded (and the witness so often confused by such questions) that the responses failed to prove anything determinative, and quite rightly did not make it into the arbitrator’s summary. Counsel also established that Mr Horne did not ‘object’ to the contents of the document when it was sent to him, but that also did not advance the case.
   267
   If the question to the effect that, following his dealings with Ms Moon, she had ‘indicated to you that there was a prospect of you getting a job working – doing work for Echo Marine’ was supposed to establish that, prior to receiving the Execom offer, there was only a ‘prospect’ of his getting the job, then the question quite misstated his previous evidence that, following his interview at Echo Marine and his welding test, Ms Moon had contacted him and told him that ‘Echo wanted me to start subject to a blood test for drugs’ and that he was to
   go in there, I think it was the Monday morning. Meet the foreman … Go through all the basic about the company, all the (indistinct) gave me a little box of tools, and then I just started on that Monday.
   268
   At most the witness agreed that he had not received any such written documentation from Moon Recruitment – that was uncontroversial – and that he ‘accepted’ what the Execom offer proposed, but the question as to the latter was insufficiently direct to establish what was meant by it, and what the response would thereby signify. While counsel may have been focused on what the conduct objectively might have signified, there were two competing scenarios under consideration and the questioning did not serve to distinguish whether Mr Horne had accepted the Execom offer by conduct in turning up for work on his first day, or turned up for work in response to his prior dealings with Ms Moon. And, considered from an objective view, the evidence did not all, or substantially, point towards the inference sought to be drawn against Execom.
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   269
   Weeks after the event, Mr Horne signed that Execom offer. The arbitrator did not mention that in his concluding reasons. The evidence was arguably relevant, not as a matter of post-contract performance but, rather, as evidence potentially going to Mr Horne’s state of mind back at the time he presented for work. It might have been regarded as a piece of evidence consistent with the terms of the Execom offer being acceptable to Mr Horne as of 2 September 2019 when he turned up for work, coupled with a desire to later evidence that that acceptance had occurred. The evidence was not compelling, however because, by the time he eventually signed the offer, the landscape had significantly changed. He had been injured and incapacitated. The desire to formalise his financial arrangement at that time by signing the only written offer in existence therefore did not carry weight as it might have, had he not been injured and simply executed the contract substantially later than requested.
   270
   The arbitrator did not dwell on post-contract conduct at all. There was little post-contract conduct in any event, given that Mr Horne was injured on his first day of work. Consistent with his finding, Mr Horne turning up to work was post-contract conduct consistent with his performance of his contract with Moon Recruitment.
   271
   The evidence before the arbitrator referred to in the reasons captured in the preliminary background summary and [126] of the reasons was capable of establishing that Mr Horne had reached a concluded bargain with Moon Recruitment that he was to be employed by Moon Recruitment for the purpose of working as a welder/fabricator at the premises of Echo Marine for three months at a reasonable wage on the basis that he was to perform the tasks required of him at Echo Marine by its supervisors and to start when he did start. There was some additional evidence referred to above which did not detract from that conclusion. The evidence was also capable of establishing that, by presenting for work on 2 September 2019, Mr Horne was acting pursuant to the agreement he had reached with Moon Recruitment and starting at Echo Marine as arranged. The evidence did not unambiguously point to an acceptance of the Execom offer by conduct, because there was another inference that was consistent with the evidence.
   272
   The evidence summarised in [126] of the arbitrator’s reasons justified the finding that Mr Horne had entered into a contract of employment with Moon Recruitment, a contract which was party oral and into which the law would imply certain terms, including that he
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   would be paid at a reasonable rate. The parties were identified,
   there was consideration flowing from both sides, the nature of the work and the timeframe had been identified and the work was on a casual basis. There was further evidence that was not all detailed in the conclusions reached, such as the provision to Mr Horne of Moon Recruitment’s uniform. The evidence was inconsistent as to whether it bore a Moon Recruitment logo.
   273
   Taking into account the background facts which a reasonable person in the position of the parties would have known, namely that Moon Recruitment had a contractual arrangement whereby it was providing staff to Echo Marine, a reasonable person in the position of Mr Horne, whose dealings were with Moon Recruitment as outlined by the arbitrator, would have been led to believe that he had just been employed by Moon Recruitment to work at Echo Marine. A reasonable person in the position of Moon Recruitment and in possession of the background facts which included the basis upon which it had contracted with Echo Marine, would have been led to believe that it had just employed Mr Horne to work at Echo Marine.
   274
   There being an evidentiary basis for the finding, there was no error of law in the finding and no proper basis for this court to disturb the finding made by the arbitrator. On that basis, the Execom offer was not accepted and on foot on 2 September 2019, and the entity which was the employer of Mr Horne as at the time of his injury was Moon Recruitment. Had I found an error of law under the next heading, it is fair to say that a review of the materials before the arbitrator would have led me to the same factual conclusion as the arbitrator on this issue.
   275
   In case I am wrong in the above finding and, in any event, because the arbitrator considered the two issues as one compendium issue, it is necessary to consider the complaint that the arbitrator took into account irrelevant matters in concluding that Moon Recruitment had employed Mr Horne, and Execom had not. I turn to that final issue now.
   Did the arbitrator err in taking into account irrelevant matters in reaching his conclusion that Moon Recruitment had employed Mr Horne?
   276
   Moon Recruitment submitted that, because the onus lay on Execom in its application pursuant to s 71 of the Act to establish that Mr Horne had not been lawfully entitled to workers’ compensation
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   payments from Execom, then it was questionable as to whether it had
   ever been the function of the arbitrator to regard his task as being to decide which of the two parties had been the employer, as opposed to confining his consideration to whether Execom had proved that it did not enter into a contract of employment with Mr Horne and, only if that was established, to then consider Moon Recruitment’s liability.
   277
   I do not accept that proposition. One of the evident purposes of the Act is to ensure that an injured worker is covered by workers’ compensation payments. Section 71(2) empowered the arbitrator in an appropriate case to shift liability to pay compensation from one supposed employer to another, rather than order an injured worker to reimburse money received, leaving him to seek it again from another party. This was an appropriate case, because there was no suggestion that the worker was not entitled to workers’ compensation payments and it was accepted that one of two parties had been liable to make those payments pursuant to the Act. The worker was only potentially ‘not lawfully entitled’ to the payments because they had come from a party not liable to make them. In such circumstances, the issue was a question of which party had liability.
   278
   Any other interpretation requires the party which made the payments to prove in a vacuum that it was not liable to make those payments, without being able to advance the case that another party was liable, which may be the very basis why it was not liable. Such an interpretation is superficial. It is particularly superficial where, as here, an argument was made that an offer of employment by one of the parties had been accepted by conduct. In assessing whether an offer has been accepted by conduct, it is logically necessary to consider any competing inference to determine whether the evidence does point unambiguously towards an acceptance of the offer by conduct. It was appropriate – it was logically necessary – that the arbitrator consider the dealings Mr Horne had with both Moon Recruitment and Execom in order to assess the competing scenarios.
   279
   Execom denied that the Execom offer, even if accepted by conduct, established a relationship of employment in any event. It argued that the Execom offer was merely Execom’s means of providing payroll services to Moon Recruitment as agreed between those two parties, and that an examination of the relevant circumstances indicated that Execom could not have been Mr Horne’s employer, despite it agreeing to arrange workers’ compensation insurance for him.
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   280
   Moon Recruitment argued that its agreement with Execom was irrelevant, as were matters outside the purported written contract between Execom and Mr Horne and that, on the basis that the Execom offer had been accepted by conduct, Execom was his employer. In answer to Execom’s proposition that the Execom offer was merely its means of providing payroll services to Moon Recruitment as agreed, Moon Recruitment pointed to aspects of the Execom offer which went beyond what was required for the provision of a mere payroll service. It further contended that Execom may have chosen to provide those payroll services by employing the worker and if, in so doing, it breached its agreement with Moon Recruitment, that did not alter the objective interpretation to be placed on the Execom offer to Mr Horne.
   281
   As a starting point, I find that the arbitrator was justified in distinguishing CFMMEU v Personnel from the current matter. The basis upon which he did so was twofold: that CFMMEU v Personnel had not involved the application of the Act, and that the contract in that case had been executed by the parties. Both points of distinction were correct, as far as they went, but there is more to be said.
   282
   The court in CFMMEU v Personnel was concerned with determining whether the character of the relationship between Construct and the worker, it being uncontroversial that the relationship was between those two parties, was one of employment, rather than principal and independent contractor. The majority of Kiefel CJ, Keane and Edelman JJ [59], Gordon J [187] – [189] and Steward J [203] on this aspect found the multifactorial approach to be problematic in determining the character of the relationship, at least where the parties have chosen to commit their agreement to a comprehensive written agreement and there is no other issue – such as a question of whether the contract is a sham, or a question of agency, estoppel, or variation or abandonment of a contract, or a particular statutory purpose behind clauses in the contract – to justify or require the court to look beyond its terms. Even then, the court still allowed that the surrounding factual matrix in which a contract was made is still relevant, but its relevance will be determined by the issues to be resolved.
   283
   The issues in this case were different. It was not in issue that Mr Horne had entered into a contract of employment with one of two entities. The issue was not one of characterisation of a relationship established by a comprehensive contract but was, rather, one of contract
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   formation, and the identity of the entity which had engaged Mr
   Horne, whether by written or oral contract, such that he came within the definition of a ‘worker’ in the Act. That served to distinguish the decision in CFMMEU v Personnel from the current matter. The decision in Agrigrain v Rindfleish puts persuasive authority behind the legitimacy of recognising the distinction to be drawn between those cases calling for a characterisation of a relationship based on a comprehensive written contract and a case in which a choice is to be made between two putative employers. But in any event, the majority judgments in CFMMEU v Personnel allowed that differing circumstances would determine the approach to be taken, and the principles in that case were expressly directed to respecting the parties’ decision to commit to a comprehensive written contract.
   284
   The contractual question remains what a reasonable person in the position of the relevant parties would have understood as to the identity of the employer and the terms and effect of any contract. This was also not a binary choice between whether Mr Horne had entered into some sort of contract with Execom or not. It was possible for Mr Horne to have entered into a contract with Execom whereby it was to be the entity which paid him, without that determining the contest between putative employers. The arbitrator found that the Execom offer was not accepted by conduct and on foot at the time Mr Horne was injured but, in any event, the question was as to which of the two entities was his employer.
   285
   In those circumstances, both in determining whether an inference should be drawn that the Execom offer had been accepted by conduct and in determining, in any event, which of the two entities had employed Mr Horne, it was permissible to consider the surrounding circumstances known to the parties – all relevant parties, not just Execom and Mr Horne, but Moon Recruitment too – and the objective purpose and object of the arrangement reached. The process of reasoning the arbitrator embarked upon was an enquiry into what the reasonable person would have understood from the arrangements entered into between Moon Recruitment and Mr Horne, and Execom and Mr Horne, armed with all the background knowledge of the underlying facts which would have reasonably have been available to the parties – Execom, Moon Recruitment and Mr Horne – in order to determine which of the two putative employers was the true employer.
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   286
   The Execom offer to Mr Horne did not occur in a vacuum. Execom had had no dealings with Mr Horne before making the offer to him. It had not recruited him, interviewed him or made any decision concerning him. It did not decide what he would be paid for his services, because Moon Recruitment told Execom what he was to be paid. Mr Horne, for his part, had an erroneous understanding of who Execom might be, a relevant fact in itself as it demonstrated his lack of connection with that business and lack of any knowledge that he may be contracting with a new entity. The Execom offer was only made to Mr Horne because of Execom’s contract with Moon Recruitment.
   287
   That is because a critical contextual fact in this case was that Execom had no contractual relationship with Echo Marine. It had no basis upon which to purport to employ a worker, or engage a contractor, to work at Echo Marine. Its only reason to mention Echo Marine in the Execom offer was because of its contract with Moon Recruitment. In those circumstances, and given the issues to be determined, to confine a consideration of the relevant matters as suggested by Moon Recruitment, such that the Moon Recruitment/Execom agreement was irrelevant, risked placing an interpretation upon the Execom offer which resulted in a commercial fiction with no business efficacy.
   288
   Evidence was led from both Ms Woodman and Ms Moon about Moon Recruitment’s arrangement with Echo Marine but the arbitrator was correct to examine, to the brief extent necessary, the primary evidence of the Moon Recruitment/Echo Marine agreement, the schedule of rates from which was put before him. That schedule established that, as between Moon Recruitment and Echo Marine, Moon Recruitment objectively held itself out as, and agreed that it was, the employer of any worker it sent to Echo Marine. In accepting the assignment of any Moon Recruitment ’employee’, Echo Marine agreed that it accepted Moon Recruitment’s rates and other terms, that rate consisting of ‘the hourly rate to be paid the workers as well as workers compensation, payroll tax, superannuation, PI & PL insurance and our agency margin’.
   289
   Echo Marine therefore had a contractual arrangement by which it was not responsible for arranging mandatory insurance and paying payroll tax, that obligation lying with Moon Recruitment. No evidence was put before the arbitrator to suggest that, as any part of that arrangement, Echo Marine had agreed that Moon Recruitment could nominate another entity to employ the workers and meet those
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   statutory obligations.
   Moon Recruitment was far more than a mere recruitment agency for Echo Marine. It was a labour-hire organisation which agreed to supply its workers to Echo Marine.
   290
   I do not consider that the arbitrator erred in law by having regard to the Moon Recruitment/Echo Marine agreement to the extent that he did. The agreement might have provided some basis upon which Execom could engage a worker instead of Moon Recruitment, or as an agent for Moon Recruitment. It failed to do so. No case law, or other legal basis, was put before the arbitrator to explain how it could be said that Execom had an ability to engage a worker (however that relationship was to be characterised) at the premises of Echo Marine, subject to Echo Marine’s control and supervision, without Echo Marine’s knowledge and consent. The evidence established there was no such knowledge and consent. The arbitrator was correct in both taking this fact into account and in placing significant emphasis on it.
   291
   It is no answer to say that Execom may have breached its agreement with Moon Recruitment by choosing to employ Mr Horne, but yet that was the agreement it reached with Mr Horne. The submission overlooks the point that Execom had no basis upon which to engage a worker to work at Echo Marine. Echo Marine was not irrelevant to this consideration. It occupied the premises that Mr Horne was to attend for work.
   292
   Execom did not even clearly purport to have any agreement with Echo Marine in the Execom offer, which was non-committal as to its relationship with Echo Marine, suggesting but not actually claiming that Echo Marine was it client. As will emerge below, the Execom offer was ambiguous and internally inconsistent. In such circumstances, it was permissible to have regard to the object and purpose for which it was made in order to cast light on its proper construction.
   293
   To that end, it was necessary to understand the basis upon which Execom came to be making such an offer to Mr Horne. And that basis was the Moon Recruitment/Execom agreement. It was not an error of law for the arbitrator to consider this agreement. In CFMMEU v Personnel, the court spent only a small time considering the very basic effect of the LHA, to which the worker was not privy, because his worker’s contract was not impacted by it. That is not the case here.
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   294
   It was clear from the evidence that Ms Moon and Ms Woodman had knowledge of the Moon Recruitment/Execom agreement, because they personally drafted and agreed upon its terms. Both also had knowledge of the Moon Recruitment/Echo Marine agreement: Ms Moon had executed it and Ms Woodman was familiar at least with the manner in which Moon Recruitment dealt with its labour-hire clients, of which Echo Marine was one, and therefore had a basic understanding of that arrangement.
   295
   Mr Horne was not privy to the Moon Recruitment/Execom agreement. There was sketchy evidence about what he may or may not have been told about Execom prior to receiving the Execom offer. The arbitrator did not base his reasons on anything Mr Horne was told. One thing Mr Horne plainly understood, however, is that the Execom offer came to him because of some connection between Execom and Moon Recruitment and the work he was engaged to do at Echo Marine. His understanding that Execom was the pay division of Moon Recruitment contained some kernel of truth. He just had an erroneous understanding that they were related companies.
   296
   A reasonable person in possession of the relevant facts, however, would have been in possession of a basic understanding of the relationship between Moon Recruitment and Execom before executing any agreement with Execom, given that all his dealings to that point had been with Moon Recruitment.
   297
   Mr Horne was not privy to whether or not Execom had a contractual arrangement with Echo Marine. He had, at most, been given to understand or assumed that Execom and Moon Recruitment were the same or related, and must have been aware that Moon Recruitment had an arrangement with Echo Marine sufficient to recruit workers to work there, given that he was recruited to work there. There is no evidence that he asked any questions about whether Execom had a contractual arrangement with Echo Marine.
   298
   According to Moon Recruitment’s submissions, the arbitrator was expected to restrict his reasoning to common known facts, making any knowledge possessed by Mr Horne the lowest common denominator in considering the factual matrix in which the Execom offer was made.
   299
   I reject that approach for several reasons. Firstly, the factual matrix underlying the making of the Execom offer consisted of the facts that a reasonable person in possession of the background knowledge
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   reasonably available to the parties would have known. A reasonable
   person being offered some form of employment or engagement by one company at the premises of a different company would have known, because they would have made it their business to know, whether the company offering the employment had some contractual basis upon which to do so. The fact that Mr Horne made an erroneous assumption and was not armed with the correct factual position does not restrict an arbitrator or a court to an erroneous factual matrix or an absence of knowledge of the basic underlying relevant facts.
   300
   Second, as will be detailed below, the Execom offer was ambiguous and internally inconsistent, justifying recourse to the knowledge and intention of the parties underlying the purpose and object of the contract.
   301
   Third, the agreement under consideration did not have to be found ultimately to constitute a sham at law before the arbitrator could have regard to the underlying facts and purpose of the agreement to determine whether the Execom offer did involve some form of fiction and was a sham, irrespective of whether the worker involved was privy to all of those facts.
   302
   While Moon Recruitment was certainly not arguing that the Execom offer was a sham, Execom (or at least its insurer) was arguing that the offer was merely the means by which Execom was to provide payroll services and that it had not been in a position to offer him any contract for services at Echo Marine because it had no contractual relationship with Echo Marine. The submissions before this court expressly raised the issue of whether the Execom offer amounted to a sham in so far as it might be seen as an offer of employment. It was Execom’s stance that the offer was a flawed attempt at providing payroll services and not a sham unless it was to be interpreted on its face as an offer of employment. Of course, a contract does not become a sham because of a court’s interpretation of it – rather, it is recognised as a sham – but the point of the submission was that the Execom offer might, due to a flawed understanding and drafting attempt, be regarded as something which it was not.
   303
   Although CFMMEU v Personnel could legitimately be distinguished on the basis of the issues to be determined, it was also not inconsistent with the principles in CFMMEU v Personnel for the arbitrator to take into account the broader factual context in which the Execom offer was made, given the ambiguity and inconsistency in
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   the Execom
   offer which, as will be seen below, consisted of purporting to engage a worker on behalf of its client while not clearly identifying who that client was, and both denying any relationship of employment or service, yet also assuming an obligation to take out workers’ compensation insurance. The merest enquiry would expose Execom’s lack of contractual relationship with Echo Marine, which raised the question of a potential sham transaction and/or an attempt to contract out of the provisions of the Act.
   304
   It was only by reference to the underlying factual context of the Moon Recruitment/Execom agreement and the evidence that the insurer, or at least its agent, was consulted that both the Moon Recruitment/Execom agreement and the Execom offer could be seen to be lacking that objective intention to deceive a third party that is an ingredient of a sham transaction. It does not follow, however, that there did not remain an artificiality about the arrangement.
   305
   Further, given that CFMMEU v Personnel was distinguishable on the facts and issues to be considered and, in any event, provided scope for a broader enquiry in various circumstances, and given the issue to be determined in this case, namely which of two potential employers was the true employer, it was proper for the arbitrator to have regard to the factual context underpinning the arrangements made. In a case in which the issue is one of contract formation and the identity of the employer, that relevant factual context included any corporate structure underlying the contractual arrangement and informing the object and purpose of the offer of employment and the commercial purpose underlying the choice of one employer over another, despite the worker’s lack of knowledge, or limited understanding, of such matters. Regard may also be had to applicable legislative schemes where they have a bearing on the question of which entity entered into the contract of employment, without being limited by the worker’s understanding of such matters.
   306
   It follows that I consider that the arbitrator did not err in having regard to the Moon Recruitment/Execom agreement and to the Moon Recruitment/Echo Marine agreement for the purpose of considering the underlying factual context in which the Execom offer came to be made. Those arrangements constituted the objective arrangements reached rather than the witnesses’ subjective understanding of the legal effect of those arrangements. As was dealt with earlier in these reasons, the arbitrator well understood the difference and did not base his conclusions on subjective opinion
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   evidence but, rather, the objective arrangements reached
   , which then informed the contest between the two potential employers, as to which was in fact the employer. I turn now to those contractual arrangements.
   307
   The Moon Recruitment/Execom agreement came first in time, having been executed on 21 December 2015, well before Mr Horne was on the scene. Moon Recruitment was defined as ‘the client’. For a fee, Execom agreed to provide payroll services (paying wages, superannuation contributions etc) to Moon Recruitment for the workers which Moon Recruitment was to provide to its own clients on a labour-hire basis. Execom also agreed to arrange and maintain workers’ compensation insurance for those workers. Moon Recruitment was to reimburse Execom for those expenditures, and pay its fee, within 30 days of receiving its invoice. The arbitrator described that fee as ‘nominal’ by contrast to Moon Recruitment’s agency fee to its own client, in this particular case Echo Marine: [139].
   308
   The agreement overall enabled Moon Recruitment to postpone incurring the expense of wages, superannuation contributions and insurance premiums for the workers until after it had received payment from its own client to whom it had provided the workers on a labour-hire basis. There was evidence, admissible as background facts informing the purpose of this contract and accepted by the arbitrator, that Execom was a larger operation and financially better placed to be able to bear those costs until it was reimbursed by Moon Recruitment, once Moon Recruitment had received its rate from its own client, the host project. Execom and Moon Recruitment were not related companies and this was not a corporate structuring arrangement.
   309
   Moon Recruitment was to ‘make available’ to Execom ‘the contractor’ – ultimately Mr Horne – on the following basis (paraphrased):

• Moon Recruitment had ‘engaged the services’ of the contractor upon its and its customer’s own examination and interview of him;
• the contractor was ‘an Independent Contractor and is not a Direct Employee, servant or agent’ of Execom;
• Execom was to exercise ‘no control or direction’ over him;
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• the contractor would observe and comply with the policies, customs and practices established at Moon Recruitment’s customer’s project, and the contractor would obey all lawful directions of the customer and perform any work for the customer with reasonable care, skill and diligence;
• Execom would not be liable for any loss or damage suffered by Moon Recruitment or its employees, customers or clients as a result of the contract services;
• Moon Recruitment was to arrange public liability and professional indemnity insurance to cover the liability of the contractor while engaged by Execom;
• Moon Recruitment acknowledged its responsibility to pay State payroll tax on behalf of the contractor on the basis that it was ‘closest to the ultimate client and as per State Revenue Office Legislation’;
• Execom was to arrange and maintain workers’ compensation insurance, and cost that to Moon Recruitment; and
• Moon Recruitment would pay Execom for ‘payroll services’ for the contractor at the rate set out in the schedule and would pay ‘all reasonable client approved out of pocket expenses incurred in the performance of the services’ as well as interest on any outstanding amounts.
  310
  The Moon Recruitment/Execom agreement included a schedule which was to be subsequently completed in relation to each individual worker to whom it related, providing him his applicable rates of pay and the nature of the services he was to provide and where. Such a schedule was ultimately completed by Moon Recruitment in relation to Mr Horne, and sent to Execom on 30 August 2019 to be included in ‘the Moon Recruitment and Execom Personnel Standard Contract’ in respect of Mr Horne. The details in that schedule, including the address for the provision of his services and the rates he was to be paid and other details were then clearly inserted as the schedule which formed part of the Execom offer.
  311
  On an objective reading of that agreement, it was the parties’ intention that Moon Recruitment (with input from its own customer/client) would select and interview the worker, that Moon Recruitment would engage his services, that Execom would
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  pay the worker for his work at the project run by Moon
  Recruitment’s customer at a rate to be provided to it, and would also arrange and pay for workers’ compensation insurance cover for him, and then invoice Moon Recruitment for those sums, goods and services tax and its own fee. The income to be made by Execom was the payment it received from Moon Recruitment for providing the payroll service, while every other sum it received from Moon Recruitment was by way of reimbursement. Moon Recruitment gained the benefit of Execom taking prompt care of the required financial arrangements to pay the worker and cover the workers’ compensation insurance premiums immediately, and could thereby postpone the cost of engaging the worker until a later time (once it had been paid by its own customer) for the price of Execom’s fee.
  312
  Objectively, the parties also agreed that the ‘contractor’ would not be an employee, agent or servant of Execom. There is ample case law to the effect that parties cannot change the nature of a relationship by merely attaching a label to it which is inconsistent with that relationship: see, for example, CFMMEU v Personnel [58] (Kiefel CJ, Keane & Edelman JJ). Neither party argued before this court or the arbitrator that Mr Horne was in fact an independent contractor.
  313
  The parties did more than label the worker a ‘contractor’, however: they agreed that Execom would exercise no control or direction over him. Moon Recruitment agreed that the worker would obey the directions of its customer, Echo Marine, in the performance of his work. In contrast to the position in CFMMEU v Personnel [4] (Kiefel CJ, Keane & Edelman JJ), Execom did not by this contract have a contractual right to exercise control and direction over the worker, not even indirectly. Execom had no contractual arrangement with Echo Marine.
  314
  Further, the parties objectively intended that Execom would not be vicariously liable for any loss or damage caused by the worker in his work at the project run by Echo Marine. The distinction between an employee and independent contractor is important because an employer is regarded as vicariously liable for the actions of his employee, while (usually) not vicariously liable for the actions of an independent contractor engaged by him: Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161 [12]. The drawing of that distinction in this agreement further confirms the parties’ objective intention that Execom was not to be the employer of the worker. That was not just a label by which they sought to characterise
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  the
  worker as a contractor. Moon Recruitment acknowledged that it had engaged his services and was to arrange public liability and professional indemnity insurance to cover any loss caused by him, as well as paying State payroll tax.
  315
  Further, apart from such contact as was involved in performing its payroll obligations towards the worker, Execom was plainly not required by its contract with Moon Recruitment to have any other contact with the worker at all. It had no role in recruiting or selecting him, or arranging pre-employment screening or providing him with equipment or training. The agreement also gave no power to Execom to terminate his services, which was consistent with its lack of any role in supervising his performance. Execom only had the right to terminate its agreement with Moon Recruitment. And, if it did so then, because of the Moon Recruitment/Echo Marine agreement, Moon Recruitment would have been obliged to pay the worker while ever he remained working at Echo Marine on a labour-hire basis. Execom’s potential termination of its contract with Moon Recruitment did not terminate Moon Recruitment’s agreement with its own customer to provide the worker and pay him and insure him.
  316
  And so the position was that Execom was to have minimal contact with the worker, who was recruited and supervised by others, at a worksite to which Execom had no connection, to work for a customer with which Execom had no contractual relationship and the parties intended that Execom would not bear the liability for the worker’s actions which would ordinarily attend an employment relationship, and would be fully reimbursed for paying his wages and arranging insurance for him.
  317
  This was not a labour-hire arrangement. Moon Recruitment was not letting the worker on hire to Execom for him to work at its premises or project and charging Execom a fee for that service. Execom was charging Moon Recruitment for its services. In terms of the benefits flowing both ways, it is difficult to see on what genuine commercial basis Execom should be reimbursed by Moon Recruitment for paying its own employee’s wages and, in addition, earn its only profit in the arrangement by being paid for the service of paying its own employee. As an agreement in which Execom earned a fee for providing payroll services to Moon Recruitment in respect of Moon Recruitment’s own employee, however, it mostly made commercial sense.
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  318
  The jarring note in the Moon Recruitment/Execom agreement was that Execom was also to arrange and maintain workers’ compensation insurance for the worker. Pursuant to s 18 of the Act, it was the ’employer’ who was liable to pay compensation to an injured worker, with a corresponding obligation to obtain and keep current a policy of insurance: s 160. There was nothing in the Act suggesting that the obligation to insure was delegable and the Act prohibited any attempt to contract out of its provisions: s 301.
  319
  The terminology in cl 1 of the Moon Recruitment/Execom agreement is instructive, however. Moon Recruitment agreed, for the period specified in the schedule, to ‘make available’ to Execom the named worker for the services there set out. One employer cannot assign an employee to another without that employee’s consent and the language employed elsewhere in the contract plainly sought to avoid any consequence that Execom might thereby become his employer. The obligation in Moon Recruitment to arrange public liability and professional indemnity insurance over the worker, such insurance to cover liability of the worker ‘whilst engaged solely by Execom’ was, I infer, related to the extent of the insurance cover and the fact that this was a casual worker (who might also work elsewhere) rather than an attempt to define the relationship, which was not to be one of employment. And yet, Execom was to arrange the workers’ compensation policy.
  320
  The expression ‘make available’ is inconsistent with Execom becoming the employer (including via the extended definition of worker) of the worker. If Execom was to employ or engage the worker, there was no need for Moon Recruitment to make the worker ‘available’ to it. And there was no need for the worker to be made available to Execom for it to provide a payroll service to Moon Recruitment. Again, given the ambiguity in the agreement, it was permissible to have regard to the evidence concerning the purpose behind that. It was also permissible because, absent the evidence explaining how this came about, there was reason to suspect this aspect of the arrangement was a sham.
  321
  Ms Woodman testified however that, as Execom was unsure about its liability in these circumstances, it consulted its insurer, which advised it to take out a workers’ compensation insurance policy for the workers under this arrangement. The arbitrator accepted that evidence.
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  322
  Ms Moon testified that the agreement was for Execom to provide a payroll service, and Moon Recruitment needed Execom to cover the workers’ compensation insurance. Echo Marine required Moon Recruitment to have workers’ compensation insurance for the workers it provided. Moon Recruitment passed the cost of that workers’ compensation premium to its client, Echo Marine, in its rate. Ms Moon understood that ‘someone’ had to take out workers’ compensation insurance policy for the worker – an inaccurate statement of the law which required the employer within the meaning of the Act to insure the worker. She said that Moon Recruitment would not have entered into the Moon Recruitment/Execom agreement if it had not provided that Execom was to take out the policy. That subjective evidence of Moon Recruitment’s requirements was admissible given the obvious inconsistency in the Moon Recruitment/Execom agreement between the objective intent that Execom was not to be the employer or be vicariously liable for any injury or damage caused by the worker, coupled with its agreement to take out workers’ compensation insurance.
  323
  The arbitrator [141] observed that the requirement in the agreement that Execom take out workers’ compensation insurance for the worker ‘appears more a matter of convenience than anything else’ and considered it to be unclear why Execom’s own insurer had advised it to take out such a policy. By ‘convenience’, I understand him to have meant financial convenience. There was clear evidence upon which to base that observation.
  324
  Tempting though it may have been to simply attribute the status of employer to Execom which agreed to take out a workers’ compensation policy, on the basis that its agreement to that obligation rendered it the employer, such reasoning would be circular, particularly where there exists a possibility of contracting out.
  325
  Moon Recruitment complains that the arbitrator considered the possible reasoning behind the insurer’s advice. It was not improper for him to do so. The arbitrator was justified in at least considering the advice to decide what weight might be attributed to it as, on its face, it might be seen to imply some sort of admission. Having wondered about it, the arbitrator clearly did not place stock in it, and correctly so.
  326
  Given the obligation of an employer to obtain and keep current a policy of insurance, and corresponding obligations pursuant to s 160 of the Act on approved insurance companies, with offence creating
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  provisions and penalties for failure to comply, it is not surprising that
  Execom’s insurer or agent advised it to obtain such a policy, for whatever reason, including erring on the side of caution.
  327
  The advice from the insurance company (or agent) did not amount to an admission on the part of Execom that it was the employer. It did not even amount to evidence that, in giving such advice, the insurance company regarded Execom as the employer. What should be said, however, is that it is apparent that both parties were cognisant of the obligation to insure and took steps, even if they were misconceived, to put that insurance in place. The advice from the insurer was also evidence tending against a suggestion that the Moon Recruitment/Execom agreement and its fulfilment in the Execom offer was an attempt to deceive a third party, being the insurer, or an attempt to contract out of the obligation to insure, given that Moon Recruitment was to reimburse Execom and thereby incur the expense of the insurance in any event, but at a time more convenient to it.
  328
  Moon Recruitment also submitted that the arbitrator erred in taking into account in his reasoning the deeming provision contained within s 5 of the Act and the Moon Recruitment/Echo Marine agreement. I reject both propositions.
  329
  The term ’employer’ was defined in s 5 in multiple ways, including
  where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker whilst he is working for that other person.
  330
  The evident purpose of that deeming provision was to give clarity and certainty of insurance cover for workers in labour-hire arrangements, where certain features typical of employment such as supervision and control might tend, at least practically, to reside in the host project owner while other features of employment including the selection and hiring and payment of wages would reside in the labour-hire provider.
  331
  Moon Recruitment was a labour-hire provider which, according to its agreement with Echo Marine, would charge Echo Marine for ‘work performed by Moon Recruitment Pty Ltd staff’ to Echo Marine. The arrangement reached as between Moon Recruitment and
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  Echo
  Marine was consistent with s 5 of the Act. The obligation to insure lay with Moon Recruitment, which charged Echo Marine a rate which included the price of that insurance.
  332
  Section 5, by itself, does beg the question of whether the worker had entered into a contract of employment with Moon Recruitment. While, at first blush, the arbitrator appeared to reason [128] that the deeming provision in s 5 alone rendered Moon Recruitment the employer of Mr Horne, his reasons read as a whole do not support that conclusion.
  333
  The arbitrator found that Mr Horne had entered into a contract of employment with Moon Recruitment by reason of a combination of facts, which were summarised [126] and which, in short form, revolved around Moon Recruitment agreeing to provide labour for Echo Marine, advertising the job, and then the totality of Ms Moon’s dealings with Mr Horne, culminating in informing him that he had the job, and ending with the implication of a term that Mr Horne would be paid for his services. The arbitrator then referred to the deeming provision, and explained its effect accurately, namely that, as Mr Horne had, as the arbitrator found, entered into a contract of employment with Moon Recruitment, he remained employed by Moon Recruitment when it let him on hire to Echo Marine.
  334
  In a choice between Moon Recruitment and Echo Marine, Moon Recruitment was objectively to be regarded as the employer, and responsible for workers’ compensation insurance, which is how those parties contracted with each other.
  335
  Thus, while the deeming provision could be said to beg the question of whether Moon Recruitment had entered into a contract of employment with Mr Horne, regardless of whether it held itself out to Echo Marine as having done so, it would circumvent the obvious intention of that deeming provision if Moon Recruitment, which let him on hire, purportedly as its own employee, to Echo Marine, was not his employer because it had made him ‘available’ to another entity, and that other entity, Execom, could justifiably say that it had not let him on hire to Echo Marine either, given that it had no contract with Echo Marine.
  336
  Further, it cannot realistically be said that Execom had temporarily lent or let Mr Horne on hire to Moon Recruitment which, according to the Moon Recruitment/Execom agreement, had made Mr Horne ‘available’ to Execom. And any suggestion that Moon Recruitment initially employed Mr Horne and then temporarily lent or let Mr Horne on hire to Execom is of no assistance to Moon Recruitment.
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  337
  The decision to be made by the arbitrator occurred within the context of a protective statutory scheme by which the legislation sought to ensure that an injured worker would be compensated and insurance would be taken out.
  338
  Seen as one of a number of factors taken into account, I do not consider the arbitrator erred at law in giving consideration to the deeming provision in s 5. It is readily apparent that Moon Recruitment did temporarily lend or let Mr Horne on hire to Echo Marine. The purpose of the deeming provision was to promote certainty of obligation to insure and make compensation payments. An interpretation of the facts which was consistent with that purpose was preferable to one which promoted uncertainty, based on an arrangement which, but for the underlying purpose of the Moon Recruitment/Execom agreement which included an acceptance of an obligation to insure, might have been regarded as a simple attempt to contract out.
  339
  The deeming provision was also not irrelevant to the consideration of what the parties objectively intended, given that both Moon Recruitment and Execom should be taken to have been familiar with the statutory obligation of the employer to insure, including the effect of the deeming provision in relation to labour-hire arrangements, and plainly were in fact aware of those obligations. Moon Recruitment was obliged both by law and by its agreement with Echo Marine to have workers’ compensation insurance, but could not financially field the expense prior to receiving payment from Echo Marine, which was plainly too late. Execom was not obliged to insure a worker unless it was its employer within the definitions in the Act, which the parties objectively (and indeed, subjectively) did not intend.
  340
  Moon Recruitment plainly intended to keep its contractual arrangement and the fee structure it had in place with Echo Marine intact. Moon Recruitment complained that the arbitrator had regard to that fee arrangement, by which Moon Recruitment stood rather more to gain in the fee it continued to charge Echo Marine than Execom stood to gain by its fee to Moon Recruitment. The arbitrator considered that as another reason to accept that the purpose of the Execom offer had been to provide payroll services to Moon Recruitment for a fee commensurate with that service in relation to Moon Recruitment’s chosen employee. In line with my previous reasoning as to the justifiably broader enquiry as to the surrounding facts underpinning the Execom offer, I consider the arbitrator did not err in taking that fact into account.
  [2025] WADC 18
  SWEENEY DCJ
  [2025] WADC 18 (PC) Page 101
  341
  There was a fiction about the Moon Recruitment/Execom agreement and the resulting Execom offer, because the parties did not intend that Execom was to become the worker’s employer. I use the word ‘fiction’ rather than ‘sham’, because the insurer, or an agent, was part of the discussion and both Moon Recruitment and Execom intended that the agreement be performed and that Execom provide payroll services and take out workers’ compensation insurance. And so the nebulous expression ‘make available’ was resorted to. The arbitrator also did not use the description ‘sham’. But the arbitrator was justified in finding [138] that ‘to introduce Execom as the employer is completely artificial’.
  342
  Against the relevant background context and those arrangements which were put in place before Mr Horne was on the scene, the Execom offer was made to him. Of course, the arbitrator found that the Execom offer had not been accepted by conduct by the time Mr Horne was injured anyway, and I have found that there was an evidentiary basis on which to make that finding. But leaving that to one side for now, I turn to the terms of the offer itself.
  343
  The agreement, if accepted, was to be between Execom and Mr Horne ‘or nominee acceptable to the client’. Neither Moon Recruitment nor Echo Marine were a party to the agreement. Clause 1 provided that Mr Horne undertook to ‘supply such services for clients of Execom’ as were set out in the schedule, the services being that of ‘Fabricator Welder’. The ‘client’ was not defined in the agreement. The address for the provision of the services, however, was the address of Echo Marine, which was named for the one and only time in the schedule, although not as ‘the client’. And of course Echo Marine was not in fact a client of Execom.
  344
  Moon Recruitment was expressly named in the agreement, but not as ‘the client’. Moon Recruitment could have legitimately been described as a client for the purpose of payroll services, but they were the services Execom was providing, whereas the ‘client’ was the entity to which Mr Horne was to provide his services, at Echo Marine. And there was reference to motor vehicles being driven while on the client’s premises in regard to insurance, which was again suggestive of Echo Marine being the client.
  [2025] WADC 18
  SWEENEY DCJ
  [2025] WADC 18 (PC) Page 102
  345
  Execom agreed to pay Mr Horne at the rate set out in the schedule. He was to keep a timesheet showing full details of all work carried out by him for the client, such timesheet to be signed by an authorised signatory of the client and the timesheet was to be produced to Execom each time he requested payment for services.
  346
  Clause 3 specified that he was at all times an independent contractor, and not an agent or employee of Execom or of Execom’s client for any purpose whatsoever. If the client was Echo Marine, than that was consistent with the Moon Recruitment/Echo Marine agreement, by which the worker was Moon Recruitment’s employee. It also specified that he had no entitlement to sickness pay, holiday pay, long service leave or any entitlement other than the agreed contract payment (which would be consistent with the offer being for three months on a casual basis).
  347
  Mr Horne was to observe and comply with the policies, customs and practices established by the ‘Client/Project’, obey directions of the ‘Client/Project’ and perform work ‘for the Client with reasonable care, skill and diligence’. Those expressions suggested that the client was one and the same as the place of work, which was Echo Marine.
  348
  The offer gave Execom the right to terminate the contract on one day’s notice and the right to terminate the agreement immediately without prior notice if its client became insolvent or a receiver or administrator was appointed. That requirement would more naturally apply to Moon Recruitment in that, if Moon Recruitment went into administration or receivership, Execom could lose its means of reimbursement.
  349
  Clause (j) provided:
  Moon Recruitment shall arrange and maintain Public Liability and Professional Indemnity insurance. Such insurance shall cover liability of contractors whilst engaged solely by Execom Personnel. The Contractor will immediately notify Moon Recruitment or Execom Personnel of an event that is likely to give rise to a claim under the Public Liability and Professional Indemnity insurance.
  350
  The fact that Moon Recruitment was not a party to this offer yet was named, with an obligation imposed upon it by Execom, tended to suggest that it was not the entity that was repeatedly referred to as ‘the client’. There was certainly nothing to correct Mr Horne’s misapprehension that Execom and Moon Recruitment were the same or connected entities, or that Execom was just the pay division of Moon Recruitment.
  [2025] WADC 18
  SWEENEY DCJ
  [2025] WADC 18 (PC) Page 103
  351
  Execom was to arrange and maintain workers’ compensation insurance and Mr Horne was to immediately notify Execom of an event likely to give rise to a claim.
  352
  On balance, the offer objectively implied to a reasonable person not in possession of the background facts that the client was Echo Marine, by various phrases, including the initial reference to ‘supply such services for clients of Execom Personnel as are set out in the schedule’, with Echo Marine named in the ‘address for provision of services’. It is notable that the client was not unambiguously identified, however, in the way that the contractor, Mr Horne was named, as if the author was self-conscious about simply stating that Echo Marine was Execom’s client. And the merest enquiry to clarify the ambiguity would bring to the attention of the reasonable person possessed of the relevant facts the knowledge that Echo Marine was not a client of Execom’s and it had no contractual right to employ or engage any worker to work at Echo Marine.
  353
  The accompanying email sent to Mr Horne, attaching the offer, was headed up ‘Contract for Moon Recruitment for Echo Marine Group’, and continued ‘Congratulations on your start at Echo Marine Group for Moon Recruitment’, while the letter, also attached, congratulated him on his ‘contract with Execom Personnel’. Again, there was nothing there to correct Mr Horne’s misapprehension that Execom and Moon Recruitment were the same or connected entities, or that Execom was just the pay division of Moon Recruitment. The email and letter were inconsistent and ambiguous as to who the employer of Mr Horne really was. Behind the scenes, Execom had a contractual arrangement with only one of those parties. And Mr Horne was only sent the Execom offer after Moon Recruitment had informed him that he had secured the job, and then provided his details to Execom.
  354
  The offer expressly stated that Mr Horne was not to be an employee. It expressly divested Execom of any obligation to supervise, direct or control his work, or to provide any training for him, and the obligation to take out public liability and professional indemnity for the contractor’s liability was placed on Moon Recruitment. It divested Execom of any need to have any contact with him at all, beyond paying him and potentially receiving notification from him if there was to be some insurance claim.
  [2025] WADC 18
  SWEENEY DCJ
  [2025] WADC 18 (PC) Page 104
  355
  On its face, the offer contained certain features consistent with being an offer of employment (including within the extended definition within the Act) and not merely an offer to fulfill a payroll arrangement it had reached with Moon Recruitment: in imposing an obligation on the ‘contractor’ to follow the directions and comply with the requirements of the client and to perform work with reasonable care, skill and diligence, in concerning itself with the insurance of the motor vehicle to be driven at the client’s premises, and in bearing the obligation to take out workers’ compensation insurance for the contractor.
  356
  The obligation on the ‘contractor’ to follow the directions and comply with the requirements of the client and to perform his work with reasonable care, skill and diligence, however, can equally be seen as an intention on Execom’s part to divest itself of control and supervision, consistent with the express terms divesting Execom of supervision and control over the contractor and the express term stating that he was not an employee. Of course, if he was to be an employee by this offer, calling him a contractor would not alter the reality of the relationship, particularly under the definitions of worker in the Act, but the express terms just mentioned are not evidence of an intention that Execom was to be his employer.
  357
  The obligation to take out workers’ compensation insurance for the contractor is, objectively, evidence of intention to employ or engage him. It was inconsistent with the obvious intent to render the worker an independent contractor.
  358
  However, given that this was a case in which the issue was to determine which of two potential employers was the true employer, justifying a broader enquiry, and that the offer was ambiguous and internally inconsistent, the relevant factual matrix in which this offer came to be made to Mr Horne included three key facts: that Execom had no contractual arrangement with Echo Marine and therefore could not unilaterally employ a worker (or engage a contractor) to work at its premises; that despite the intent to divest itself from control or supervision over the worker, it had no ability to control him in any event, not even indirectly, because it had no contractual arrangement with Echo Marine; and, finally, that Execom had entered into an agreement with Moon Recruitment to provide payroll services in relation to Moon Recruitment’s workers and to take out workers’ compensation insurance, for which it would be reimbursed.
  [2025] WADC 18
  SWEENEY DCJ
  [2025] WADC 18 (PC) Page 105
  359
  Seen against that background, there was ample evidentiary basis for the arbitrator to conclude that this offer on the part of Execom to Mr Horne was Execom’s flawed attempt to comply with its contractual arrangement with Moon Recruitment. It did contain features which were superfluous to a mere payroll agreement, as Moon Recruitment submitted, but the underlying factual context in which this offer was made to Mr Horne which, given the nature of the issues in dispute before the arbitrator were relevant, justify the arbitrator’s conclusion [136] that the Execom offer ‘in essence artificially inflates a payroll agreement into something which it is not’. He was justified in finding [138] that
  Execom had no contract with Echo and it was in the context of the Moon/Echo agreement that Mr Horne obtained his employment. To then introduce Execom as the employer is completely artificial …
  360
  And otherwise, the obligations contained within the Execom offer were consistent with the provision of payroll services. In keeping with that intention, according to the email and letter which accompanied the offer, Mr Horne was not required to sign the offer and fill in the necessary financial forms until a week after he had commenced work, in time for his first pay cycle, but obviously not in time for his whole first week at work.
  361
  It was not the objective (nor even the subjective) intention of those parties that Execom was to become employer to those workers. Execom had no ability to unilaterally employ a worker (or even engage a contractor) at Echo Marine. It is no answer to that proposition to suggest that Execom may have been in breach of the Moon Recruitment/Execom agreement by employing Mr Horne, but still chose to employ him. There was also no suggestion in this case that Moon Recruitment had engaged with Echo Marine as an agent for Execom as an undisclosed principal, and the Moon Recruitment/Execom agreement makes it plain that it did not. This was also not a case in which there was but one potential employer, where an estoppel was asserted against a party which had held itself out as an employer, by a worker who changed his position accordingly. Nor was it a question of whether the worker was an employee, or a contractor.
  362
  The objective interpretation to be placed on the Execom offer, consistent with the commercial purpose for which Execom became involved at all, was that it was the means by which Moon Recruitment
  [2025] WADC 18
  SWEENEY DCJ
  [2025] WADC 18 (PC) Page 106
  was to ensure that its employee, Mr
  Horne, was paid in a timely manner and that workers’ compensation insurance was put in place, even though the latter intention fell foul of the Act, in that it was the employer which was obliged to insure the worker.
  363
  One final matter to be mentioned: the payroll tax revenue ruling, published by the Department of Finance: Office of State Revenue (undated) which was in the papers before the arbitrator and was alluded to in the Moon Recruitment/Execom agreement does not assist Moon Recruitment. The document was before the arbitrator because of evidence that it was the reason why the Moon Recruitment/Execom agreement obliged Moon Recruitment to pay payroll tax over the worker.
  364
  Counsel for Moon Recruitment pointed to it as an indicator that it was not unheard of for labour-hire businesses to ‘on-hire’ workers to another labour-hire business. The fact that the department thought it appropriate to make the ruling, whenever that occurred, suggests that that is so, or at least was at the relevant time.
  365
  The revenue ruling explained ‘the payroll tax implications of an employment agency arrangement involving multiple employment agents (chain of on-hire)’ and contained a diagram showing an example where an employment agent (Agent 1) on-hires a worker to another employment agent (Agent 2) who then on-hires the worker to its client and, in those circumstances, the Commissioner of Taxation would regard Agent 2, being ‘the employment agent closest to the client’, as the agent liable to pay payroll tax.
  366
  The diagram bore no similarity to the arrangement reached in this case, however. Moon Recruitment recruited the worker, who worked at the premises of its client, Echo Marine. On the basis of the revenue ruling, Moon Recruitment was certainly liable to pay the payroll tax, consistent with the understanding of the parties at the time. If any on-hiring occurred, it occurred to an agent which had no relationship with the client. Execom did not on-hire Mr Horne to Moon Recruitment, in order that Moon Recruitment could in turn provide his services to its client Echo Marine. The Moon Recruitment/Execom agreement provided that Moon Recruitment was to make Mr Horne ‘available’ to Execom, while it was Moon Recruitment which let the worker on-hire to Echo Marine. The payroll tax ruling then rendered Moon Recruitment liable.
  [2025] WADC 18
  SWEENEY DCJ
  [2025] WADC 18 (PC) Page 107
  367
  There were ways in which Moon Recruitment could have fulfilled the function of a recruiter and introduced Mr Horne to Echo Marine and, by agreement with Echo Marine and Mr Horne, nominated another entity such as Execom to be the employer, while perhaps continuing to serve some purpose as agent to that employer in terms of dealing with the worker, for a fee. There are obvious commercial reasons why that may not have been attractive though, if it was considered. Alternatively, Moon Recruitment could have reached an agreement with Execom whereby Execom provided payroll functions and merely temporarily financed the workers’ compensation premiums, with Moon Recruitment as the named employer. But the Execom offer to Mr Horne did not achieve either of those options.
  Conclusion
  368
  In APP 66/2022, the arbitrator did not err in law in taking irrelevant matters into account. Further, there was an evidentiary basis for his findings on both issues, namely whether the Execom offer had been accepted by conduct on 2 September 2019 and whether it was Execom which was the employer, or Moon Recruitment. Although the appeal raised questions of law to be considered, no error of law was involved and so I do not grant leave to appeal. In any event, I consider the conclusion the arbitrator reached to have been correct.
  369
  As to APP 65/2022, it appears that all parties and the arbitrator were not alive to any issue with the description of ‘Moon Recruitment’ in A104376 and ‘Kerrie Moon t/as Moon Recruitment’ in A105048. It was just not the focus of the dispute and was overlooked, it seems, by everybody. The parties, particularly Ms Moon, would have known better than the arbitrator whether the descriptions were correct or not. A court or tribunal cannot be said to have made an error of law if the matter was not raised for determination at the hearing: Nugawela v Medical Board of Australia [2023] WASCA 92 [64]. Nor was there an error on the face of the orders made. The orders made were consistent with each other. In those circumstances, no error of law has been made out and no question of law involved so as to justify giving leave to appeal in APP 65/2022.
  370
  This court has power to amend the orders made to make any correction in the description of the liable party which ought to be made, upon being satisfied that there was a misdescription. This court has power ‘upon hearing an appeal’ to make ‘any further or other decision, as to costs or otherwise’ as the court thinks fit. I do not see that power
  [2025] WADC 18
  SWEENEY DCJ
  [2025] WADC 18 (PC) Page 108
  as dependant upon a successful appeal
• clearly the making of a costs order would not be dependent upon a successful appeal. Otherwise it would be necessary to remit the matter to the arbitrator to correct the description. Providing nothing has changed in the interim, I do not consider that to be necessary on the basis discussed with the parties at the outset of the hearing, and I will hear from the parties as to the appropriate orders to be made.
  371
  Some proof of incorporation of Moon Recruitment at the relevant time will be required prior to the making of final orders. I did not find formal evidence of incorporation in the papers before the arbitrator. If it is there, the court can be taken to such evidence. Alternatively, prior to the making of any final orders, leave can be given to add it to the materials before this court: s 247(6) of the Act.
  372
  Should the additional evidence not reveal an error in the description, then the orders made by the arbitrator will stand. Should the additional evidence confirm what counsel for Moon Recruitment and Ms Moon understands to be the case, namely that Moon Recruitment was, as at 2 September 2019, incorporated, then an amendment can be made.
  Postscript
  373
  On 3 April 2025 I published this decision, and the decision in the related matter of Kerrie Moon t/as Moon Recruitment v Execom Software Pty Ltd t/as Execom Personnel [2025] WADC 20. Counsel for the applicant/appellant in both appeals then furnished the court (with leave as discussed in [371] above) with documentation from the Australian Securities & Investments Commission proving that Moon Recruitment Pty Ltd was registered as a company from 11 August 2015, which registration was current as at the date of Mr Horne’s injury.
  374
  No opposition being raised by the other parties in each appeal, orders were made amending the name of the first respondent in A105048 before the arbitrator from ‘Kerrie Moon t/as Moon Recruitment’ to ‘Moon Recruitment Pty Ltd’ with corresponding amendments to the orders made by the arbitrator on 2 November 2022 and, likewise, amending the name of the first respondent in A104376 before the arbitrator from ‘Moon Recruitment’ to ‘Moon Recruitment Pty Ltd’ with corresponding amendments to the orders made by the arbitrator on 2 November 2022. The applications for leave to appeal in each matter before this court were then dismissed.
  [2025] WADC 18
  SWEENEY DCJ
  [2025] WADC 18 (PC) Page 109
  I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
  DD
  Associate to Judge Sweeney
  2 APRIL 2025