WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. No. 33 of 1987. Between Christine Dorothy Olsen trading as Wainui Working, Applicant and Vilroy Holdings Pty Ltd trustees for John Mantle Marine Charter Company Unit Trust, Respondent. Before Mr Commissioner J.A. Negus. The 11th day of March 1987. Reasons for Decision. THE COMMISSIONER: By this application, lodged pursuant to section 29 (b) (ii) of the Industrial Relations Act 1979, the applicant seeks an order from the Commission that the respondent company should pay her an amount of $27 779.26 that being the moneys owing to her in accordance with her contract of service. The respondent company does not dispute the amount owing to the applicant but questions the jurisdiction of this Commission in the matter because in the respondent's view the applicant had the status of an independent contractor and if that be the case it is not competent for this Commission to issue the order which is sought. The applicant Christine Olsen, gave evidence regarding the work she had performed for the respondent company during the period of their associa- tion and Mr David Grundy, who represented the company, did not challenge the accuracy or veracity of her story. The dispute between the parties lies in the interpretation they would urge the Commission to place on those facts. It seems that Ms Olsen, who is an industrial engineer, has set up in business as a management consultant. In that capacity, she was involved in advising Mr Grundy and his fellow directors on various matters connected with the establishment of a charter boat operation which was aimed at servicing the tourist market associated with the America's Cup yacht races. From early February until late May of 1985 a number of tasks were performed by Ms Olsen for an agreed payment of $25.00 per hour. The money was not paid because there was a cash flow problem. From 10 June 1985, it was agreed that Ms Olsen would work solely for the respondent company at the reduced rate of $18.00 per hour. A careful record was kept of the hours worked and she was paid $230 each week. The balance above that amount was written into the books as a loan to the company. From 18 October 1985 the weekly payment was increased to $300. On 1 July 1986 the hourly rate was increased to $20.00 and following an enquiry by the Taxation Department the company began to make PAYE tax deductions from the weekly payments. 938 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. Ms Olsen says that despite her view at the time that she was an independent contractor, on reflection she believes she was in fact an employee. She was given the title of Operations Manager. She worked solely for the company and at all times under Mr Grundy's direction or control. The regular hours of work were 8.30 a.m. to 5.00 p.m. but she often worked evenings and was rostered for weekend duties. Lunch breaks were often not taken. She initiated correspondence on behalf of the company, but all letters were signed by Mr Grundy. The company provided the workplace and all stationery items or other tools of trade. She helped Mr Grundy to appoint other employees but she had no power to dismiss them. She was covered by the company's Workers' Compensation insurance policy and taxation was withheld from her weekly payments by instruction of the Taxation Department. Mr Grundy relied on letters written to the company by Ms Olsen to support his assertion that she was not an employee. He referred to letters of 6 February 1985 and 15 May 1985 (Part of Exhibit 1). The second of those letters reads in part:— . . . The current rate is $25.00 per hour which was negotiated on the understanding that the money would be paid when funds became available. By the end of the week (17.5) approximately 40 hours will have accrued. I am still prepared to wait for that money until funds become available. However, in order to advance the project at the necessary pace I will, with your approval, work from Monday onwards exclusively on your project for a minimum of 12 hours per week at the new rate of $18.00 per hour. I also agree to work whatever further hours are required at this rate but will defer acceptance of payment until funds become available. Eventually I propose that I work for you for a minimum of 12 hours per week and a maximum you shall set or 40 hours whever (sic) is the shorter. in this way I will be on contract to you at an hourly rate and you will not be responsible for the payment of; sick leave, annual leave — with its loadings, workers compensation (sic), or the deduction of income tax as I will remain self employed . . . Mr Grundy did not agree with Ms Olsen's view of the degree of control exercised by him over her activities. He suggested also that the workers' compensation coverage was arranged without his knowledge or approval. The impression I gained during the hearing was that Ms Olsen's recollection of events and details was likely to be more precise and accurate than Mr Grundy's. Little of any moment turns on that impression because the parties were generally in agreement as to the salient facts of the matter. In considering the status of the relationship between Ms Olsen and the respondent company one can be guided by the remarks of Bray C. J. in R. Allen ex parte AMP Society (1977) (16 SASR 237). It seems to me then, that at the present time there is no magic touchstone. The Court has to look at a number of indicia and then makes up its mind into which category the instant case should be put. It is a question of balancing the indicia pro rata and con . . . But the power of control over the manner of doing the work is very important, perhaps the most important of such indicia (p. 248). The letter from Ms Olsen to the company and Mr Grundy's understanding of the situation are not matters for serious consideration. The Commission is required to take into account all of the factors identified and to assess the true nature of the relationship. No single factor will decide the issue but it is well established that a declaration by the parties or their expressed attitude is of little import. 67 W.A.I.G. In Ferguson v. John Dawson and Partners (Contractor) L & B (1976) 1 WLR 1213, Megaw L.J. in the judgment for the majority of the Court of Appeal stated:— My own view would have been that a declaration by the parties, even if it were incorporated in the contract, that the workman was to be, or was to be deemed to be, self employed, an independent contractor, ought to be wholly disregarded — not merely treated as being conclusive — if the remainder of the contractual terms, governing the realities of the relationship, showed the relationship of employer and employee ... I find difficulty in accepting that the parties, by a mere expression of intention as to what the legal relationship should be, can in any way influence the conclusion of law as to what the relationship is (p. 1222). On the material placed before me in this application, I find that Ms Olsen was indeed an employee of the respondent company from 10 June 1985 until the relationship was ended by mutual consent. That part of the claim which relates to moneys owing for services performed prior to 10 June 1985 will be dismissed. The application will be determined by an order for payment to the applicant of an amount of $24 641.50. I have arrived at that figure by subtracting from the agreed amount a sum of $3 137.75 which the applicant identified as relating to the earlier services. BEFORE THE