I agree with the conclusion reached in the majority opinion but I cannot agree with the construction given the act in reference to independent contractors. My views are that there is no provision in the act which expressly provides that any particular contractual labor relationship such as master and servant and independent contractor shall be included or excluded. The glossary of the act contains definitions of who are to be considered as employers, what constitutes an employing unit and what is employment within the act, but the language used does not indicate that the division line between those employments that are within and those that are without the act is marked by any of the common-law concepts of a relation of master and servant or independent contractor. In considering a similar argument advanced as to the relation of master and servant in Miller, Inc. v. Murphy, 379 Ill. 524, *Page 105 it was said: "It is also plain that the provisions of the statute differ from common-law concepts of employment where the relation of master and servant exists." See also Rozran v.Murphy, 381 Ill. 97, to the same effect.
The Unemployment Compensation Act was adopted for the purpose of alleviating to some degree the poverty and distress that accompanies unemployment. As a solution of such problem it was provided that the employer should contribute certain amounts and the employee should add a certain percentage of his wages to the creation of a reserve to be drawn upon for the benefit of the employee in periods when he could not obtain employment. As a guide to the interpretation and application of the statute, section 1 declares that the public policy embodied in the adoption of the act shall be the betterment of the conditions of the employee and his family and to safeguard the public against burdensome obligations of furnishing aid to those who, through no fault of theirs, could not obtain employment. The purposes of the act, the conditions it was intended to correct and the ones who are the intended beneficiaries are of importance in considering the meaning of the act and the employments it was intended to include.
Subparagraph (e)(1)(B) of section 2 directs that for the year 1940 and thereafter an employer means any employing unit that has or had in its employment six or more individuals for a specified minimum of time. This definition of an employer is not complete for it relates back to another question as to what constitutes an employing unit. Subsection (d) of section 2 defines an employing unit to mean "any individual or type of organization including any partnership, association * * * which has or subsequent to January 1, 1936, had in its employ one or more individuals performing services for it within this State." It will be noted that the remaining provisions of subsection (d) deal with particular labor relationships, principally those relating to contractors or subcontractors. *Page 106 The majority opinion holds that there is sufficient in these provisions to show an intent to exclude a relation of independent contractor from the act. Allowing for a rearrangement of the language used to the end that the intent may be more readily discerned, it would read that any employer of labor who qualifies as an employing unit and who has contracted with or has under his control any contractor or subcontractor, who has been engaged to perform labor which is part of the employer's usual trade, occupation, profession or business, then such employing unit shall be deemed to employ each individual who is in the employ of such contractor or subcontractor unless the facts disclose one or more of the conditions, viz: first, (a) that the employees of the contractor or subcontractor are not to be deemed to be the employees of the employing unit if the contractor or subcontractor is in fact actually available to perform work for anyone who may wish to contract with him, and (b) if such contractor or subcontractor is also found to be engaged in an established trade, business or enterprise independent of the one in which the employing unit is engaged, or secondly, unless the employing unit, as well as each contractor or subcontractor, is an employer by reason of subsection (e) of section 2 or subsection (c) of section 3. It is expressly provided that if such contractor or subcontractor is an employer by reason of subsection (e) of section 2 or subsection (c) of section 3, he alone shall be liable to contribute to the fund on account of such employees, measured by the wages of the individuals in his employment.
It will be observed that these latter provisions were evidently designed for the purpose of making certain that the employees of contractors and subcontractors would be within the purview of the act and entitled to its benefits, either as employees of the contractor or subcontractor, who are themselves employing units, or as employees of the employing unit who engaged the contractor or subcontractor to perform the services. It is well known that *Page 107 those who engage to render services as contractors or subcontractors are oftentimes employed under terms that create a relation of independent contractor, but it does not follow that the provisions of the statute referred to evidence an intent to make the relationship of independent contractor the guide by which the act shall be applicable. Suppose one contracts under terms creating a relationship of independent contractor to perform services and he has no employee, then the foregoing provisions have no application to him. Under the definition of an employing unit in subsection (d) of section 2, he would be deemed to be an employee of the employing unit which contracted with him notwithstanding the terms of the contract created a relationship of independent contractor. This is not to hold that his employment would be within the act, for it might well be that he would, by the definition of subsection (d) of section 2, be an employee of the employing unit and yet the services might be rendered under such circumstances as to make his employment outside the scope of the act.
Paragraph (1) of subsection (f) of section 2 provides that subject to other provisions of the act "employment" shall mean any service performed prior to July 1, 1940, which was employment as defined in this section prior to that date, and any service performed after June 30, 1940, by an individual for an employing unit. The essentials of the definition are (1) that there shall be an employing unit; (2) that there shall be an individual who renders the service and (3) that the individual shall render the service pursuant to employment by the employing unit. The general definition of employment refers to the character of the service as "any service performed by an individual for an employing unit." Paragraph (5) of subsection (f) of section 2 provides that services performed by an individual shall be deemed to be employment subject to the act unless and until the conditions stated in subparagraphs (A) (B) and (C) are proved. The general *Page 108 definition of employment as contained in paragraph (1) of subsection (f) of section 2 and paragraph (5) of said subsection would include services such as those performed by the employees in question unless the conditions under which the services rendered are excluded by subparagraphs (A) (B) and (C) of paragraph (5) are found to have been proved.
In my view there is nothing in any of the foregoing subparagraphs that excludes an employment from the operation of the act merely because it was rendered under circumstances creating a relation of independent contractor. The act is remedial social legislation and should be construed and applied to meet the purposes for which it was designed. In marking the boundaries for its application there is evidence of a studied purpose to disregard former concepts of the relation of master and servant and independent contractor as sole guides and to place the applicability of the act upon other grounds. (Rozran v.Durkin, 381 Ill. 97.) Cases from other jurisdictions adopting this view are cited in the Rozran case.
Mr. JUSTICE GUNN joins in the foregoing special concurrence.