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Al Anzi v Skyview Formwork Pty Ltd

Al Anzi v Skyview Formwork Pty Ltd

Case [2024] NSWPIC 662 2 December 2024

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Al Anzi v Skyview Formwork Pty Ltd [2024] NSWPIC 662
APPLICANT:	Ali Al Anzi
RESPONDENT:	Skyview Formwork Pty Ltd
MEMBER:	Fiona Seaton
DATE OF DECISION:	2 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits; applicant alleges he was a worker; contract was entirely oral; consideration of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd and Secretary, Attorney-General’s Department v O’Dwyer; Held – on a consideration of contractual obligations, the subsequent conduct of the parties and applying the multifactorial test, finding made that the applicant was not a worker or deemed worker.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was not a worker pursuant to s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) at the time of the injury on 8 May 2020. 2. The applicant was not a deemed worker pursuant to cl 2 of Schedule 1 of the 1998 Act at the time of the injury on 8 May 2020. 3. The applicant is not entitled to the payment of weekly benefits compensation from 11 June 2021 pursuant to s 37 of the Workers Compensation Act 1987. The Commission orders: 4. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant Mr Ali Al Anzi alleges he was employed by the respondent Skyview Formwork Pty Ltd as a form worker and labourer. He was injured on 8 May 2020 when the 100mm wide beam he was standing on collapsed causing him to fall three metres to the ground. He suffered serious injuries to his head, left eye, left knee, left arm, lower back and neck in the fall.
Liability for the injury was accepted by icare on 23 November 2020 for conjunctival haemorrhage, left eye, strain of muscle, fascia and tendon at neck level, sprain of unspecified site of left knee, strain of muscle, fascia and tendon of lower back and concussion, at an interim pre-injury average weekly earnings rate of $2,000.
The respondent issued dispute notices under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) on 24 April 2021 and 1 March 2022 disputing liability on the basis that the applicant is not a worker.
The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 26 July 2024 claiming weekly benefits compensation from 11 June 2021.
The dispute was listed for conciliation conference and arbitration hearing for determination of whether the applicant was a worker pursuant to s 4 of the 1998 Act or a deemed worker pursuant to cl 2 Schedule 1 of the 1998 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant was a worker pursuant to s 4 of the 1998 Act or a deemed worker pursuant to cl 2 Schedule 1 of the 1998 Act at the time of injury on 8 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Al Anzi v Skyview Formwork Pty Ltd

Details

AGLC: Al Anzi v Skyview Formwork Pty Ltd [2024] NSWPIC 662
Case: [2024] NSWPIC 662
Decision Date: 2 December 2024

CaseChat Overview and Summary

In the case of Al Anzi v Skyview Formwork Pty Ltd, the applicant, Mr Al Anzi, sought to establish his entitlement to workers' compensation benefits on the basis that he was a worker under the applicable legislation. The dispute arose from an oral agreement for construction work, which Mr Al Anzi claimed was sufficient to classify him as a worker. The matter was heard in the Fair Work Commission, where it was necessary to determine the validity of Mr Al Anzi's claim.

The primary legal issue before the Commission was whether Mr Al Anzi qualified as a worker under the relevant workers' compensation legislation. This involved assessing the nature of his relationship with Skyview Formwork, given that the agreement was entirely oral. The Commission had to consider whether Mr Al Anzi was an independent contractor or an employee, and if he could be deemed a worker within the statutory framework. The decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd and Secretary, Attorney-General’s Department v O’Dwyer provided guidance in evaluating the multifactorial test required to distinguish between workers and independent contractors.

The Fair Work Commission applied the multifactorial test to the evidence presented, including the terms of the oral agreement, the conduct of the parties, and the nature of the work performed. The Commission found that Mr Al Anzi did not meet the criteria to be classified as a worker. The oral agreement did not specify terms of employment, and the subsequent conduct of both parties did not establish a worker-employer relationship. Furthermore, the Commission determined that the overall control and dependency present in the relationship did not align with the characteristics of a worker. Consequently, the Commission held that Mr Al Anzi was not a worker or a deemed worker under the legislation.

As a result, the Commission dismissed Mr Al Anzi's claim for weekly benefits. The decision underscored the necessity of a clear and documented agreement to establish worker status and highlighted the importance of distinguishing between workers and independent contractors in workers' compensation claims.

Orders