Al Anzi v Skyview Formwork Pty Ltd

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 2020, and
(b) the extent and quantification of the applicant’s entitlement to weekly payments from 11 June 2021 pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission on 15 October 2024. Mr Jim Jobson appeared for the applicant instructed by Mr Mohammed Al Shawi of Harrow Legal. Counsel for the respondent did not appear and Ms Pradesha Thomas and Ms Amar Hillamy of Turks Legal appeared for the respondent. Ms Jouni attended as an interpreter and Mr Masuku attended for the insurer.
The respondent made an application to adjourn the conciliation/arbitration due to counsel not being available to attend, which was not granted.
A request for an adjournment on the day of the proceedings will only be granted in exceptional circumstances. A respondent is expected to take reasonable steps to prepare and present its case on the day fixed for conciliation/arbitration.[1]
[1] Moombalene Local Aboriginal Land Council v Daily [1998] NSWCC 22; (1998) 16 NSWWCCR 469.
In my view refusal of the application for adjournment did not seriously prejudice the respondent as the respondent was able to be provided with a reasonable opportunity to deal with the issues adverse to its interests by way of providing written submissions.[2] An adjournment would cause prejudice to the applicant due to the delay in his claim being determined. On considering the competing factors I formed the view that the application for an adjournment ought not succeed in the circumstances of this case.
[2] Dapto Leagues Club Ltd v O’Brien [2006] NSWWCCPD 89, Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29.
On 15 October 2024 the applicant was invited to make oral submissions and directions were made that the respondent was to lodge and serve written submissions by 24 October 2024, the applicant was to lodge any written submissions in reply by 31 October 2024 and the dispute would then be determined ‘on the papers’.
Due to a technical error a recording of the applicant’s submissions was not available and further directions were issued on 22 October 2024. The applicant was directed to lodge and serve written submissions by 25 October 2024, the respondent to lodge and serve written submissions by 1 November 2024, the applicant to lodge and serve written submissions in reply by 6 November 2024 and the dispute would then be determined ‘on the papers’.
Section 52(3) of the Personal Injury Commission Act 2020 provides that if the Commission is satisfied sufficient information has been supplied to it in connection with the proceedings it may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.
Neither party objected to a determination being made ‘on the papers’. Having regard to Procedural Direction PIC2 and the documents before the Commission I am satisfied that there is sufficient information to proceed ‘on the papers’ without holding a further conference or formal hearing and that this is the appropriate course.
The respondent submits that given the circumstances as a matter of procedural fairness no regard should be had to oral submissions made by the applicant on 15 October 2024, with which I agree. I have had no regard to those oral submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents,
(b)    respondent’s Reply and attached documents,
(c)    applicant’s written submissions dated 22 October 2024 (including by consent the further statutory declaration of the applicant dated 18 January 2022), and
(d)    respondent’s written submissions dated 1 November 2024.

Applicant’s evidence

The applicant relies on his statement dated 23 February 2021 and his statutory declarations dated 20 July 2021 and 18 January 2022.
His initial statement was provided to an investigator on 23 February 2021. The applicant started employment with the respondent in about March 2020. His roles and responsibilities were different every day and he received instructions on what to do. Sometimes he was asked to move beams or wood benches or install a wall, and it was general labouring work.
Mr Hanna was the applicant’s direct manager or supervisor and he appeared to be the foreman, the one in charge on site. He worked on the construction of a block of units in Wentworthville.
He was paid $400 per day for eight hours but he sometimes worked ten hours and was paid an extra $100. When he started there was no agreement on his rate and then Mr Hanna told him he would be paid $50 per hour. After he saw he was a good worker after two days he said he would pay $50 per hour and the applicant agreed.
The applicant has an Australian Business Number (ABN) but was paid money into his personal bank account. He understood that although he was asked to provide his ABN it had nothing to do with his payment.
The respondent did not deduct any tax and the applicant cannot recall if any superannuation was deducted. He was not given any payslips. They did not discuss holiday leave or sick leave. The applicant did not sign any contract.
The applicant was given Mr Hanna’s name and number by someone whose name he cannot recall, who said Mr Hanna may have some work. The applicant rang Mr Hanna and asked if he had work and he said yes, to come in and have a look.
The applicant went in and Mr Hanna gave the applicant some things to do. After two days he said the applicant was a good worker and he made the hourly rate offer which the applicant agreed to. He was told to start work but nothing was said about how long he would be employed.
The applicant went to work every day. He was not trained by anyone and he knew what he was doing. He provided his own clothing including safety shoes and helmet. Mr Hanna provided all the tools he needed such as a drill or a saw and what else was needed.
Mr Hanna was in charge and the applicant could not refuse to do what he asked. He was there to follow instructions which he did. Sometimes he worked by himself and sometimes with others such as Serwan. His pay was credited into his bank account mostly on a weekly basis but sometimes every ten days. He usually worked from 7.00am to 3.00pm or 5.00pm, and five or six days per week with a 30 minute break at 11.00am.
There was no discussion about insurance but after his injury Mr Hanna visited the applicant at his house in May after he was released from hospital. He said do not make a claim, he will treat me privately. The applicant said no he did not know what the severity of his injuries were or when they would settle or improve or what his situation or condition is yet. Mr Hanna said we will see and after two days on 14 May 2020 he sent the applicant his policy number by email.
The applicant sent his medical certificate to Mr Hanna by email on 19 May 2020 and he called Mr Hanna to confirm he received it. After a couple of days the applicant called him but he was blocked and he did not try calling again.
He describes the injury and his treatment in similar terms as in his second statement set out below.
In his statutory declaration dated 20 July 2021 the applicant describes working in the construction industry in Australia in labouring and form working from 2017, getting on the job work experience in labouring and form working.
He worked in Melbourne for four months in 2019 before returning to Sydney to commence working for the respondent in March 2020.
The applicant’s direct manager/supervisor/foreman was Mr Hanna. He was paid $400 per day for eight hours work and when he worked 10 hours he was paid an extra $100. His wages were paid directly into his Commonwealth Bank account.
Employment was on a full time basis and the applicant provided his own clothing including safety shoes and a helmet. The respondent provided the tools including a drill, saw and all else required for the task at hand.
He received no formal training at work as he was already experienced. Duties included moving beams and wooden benches, installing walls and general labouring. He was not provided with any safety harness for this work.
On 8 May 2020, the date of the injury, the applicant was working on the construction of an apartment block in Wentworthville. He began work at 7.00am and between 9.00am and 10.00am he was helping close a roof. He was standing on a beam which was three metres above the ground and measured 180 centimetres by 120 centimetres. There were other beams on the platform with gaps in between them.
As he was preparing to nail a top beam to the beam beneath it, the beam he was standing on collapsed and he fell three metres. While falling he hit other falling beams on his left side and particularly near his left ear. He hit the ground, felt dizzy and fell unconscious.
Another worker Serwan was on the roof and the applicant believed he may have witnessed his fall.
He was told he had been brought to Westmead Hospital by ambulance although he has no memory of that. When he came to in hospital he felt pain in his neck, back, left shoulder and the left side of his head. His vision was affected and he had internal bleeding in his left eye.
After having injections and being given medications he was discharged from hospital after two days. A few days later he saw his general practitioner Dr Khan who prescribed painkillers and referred him for an MRI and physiotherapy. He had physiotherapy treatment twice a week for six months and still attends once a week. Following the MRI the applicant was referred to Dr Anil Nair, orthopaedic surgeon.
The applicant also consulted Dr Osman, general practitioner. Dr Osman referred him to Dr Hassan, a neurologist and Dr Khawaja, a neck specialist, who he saw on 25 February 2021. Dr Osman referred him for a head MRI on 22 October 2020 due to his continual headaches since the fall.
Due to his eye injury the applicant was referred to Dr Mulligan, ophthalmologist.
He also consulted Dr Jonathan Herald, orthopaedic surgeon. Dr Herald arranged X-rays of his chest, cervical spine, left shoulder and left wrist, CT scans and MRIs of his left shoulder, left knee, lumbar spine, left wrist and pelvis and an ultrasound of his right shoulder.
Dr Nair referred the applicant for a whole body scan and a CT scan and MRI of his cervical spine.
The applicant consulted Dr Mahmoud Abu-Arab for his opinion and management of post-traumatic concussion syndrome, left eye haemorrhage, left knee impact injury, the lumbar spine pain radiating into both legs, cervical pain radiating into both arms, left knee, left shoulder, left eye pain, headaches, burning eyes and bruising to the left side of his face.
He has become depressed and has a reduced appetite, he has lost interest in most things, has a minimal social life, suffers from insomnia, poor memory and is easily irritable. He lacks concentration and continues to suffer from dizziness and blurred vision. He now wears glasses for distance and reading due to internal bleeding in his left eye. He no longer plays soccer.
The applicant more recently has begun to feel numbness in his hands, which tends to wake him during the night, and he spends most of his days in bed catching up on sleep.
He takes Vallboxen and Tramadol on a daily basis.
The applicant had a partner for about three years but after the accident they broke up because of his injury, pain, immobility and lifestyle change and because he was not able to do any activities with her.
His friend does all the cooking, cleaning and washing as the applicant is unable to assist him.
The applicant’s life has significantly deteriorated since the fall and resulting injuries.
The applicant’s further statutory declaration dated 18 January 2022 provides further clarification of his employment and responds to the statement of Mr Jean Gerges (Hanna in Arabic, John in English), hereafter Mr Gerges.
The applicant first contacted Mr Gerges in March 2020 to ask whether he could do some work for him. He assured the applicant he would contact him when work came up in a few weeks’ time. Mr Gerges did contact him and he officially began working for the respondent in April 2020.
The applicant recalls this date as the three invoices he provided to Mr Gerges, the insurer and his solicitors are dated 18 April 2020, 23 April 2020 and 3 May 2020.
He billed Mr Gerges $650 per day. From that he took $400 as his wages and he paid his co-worker Serwan (hereafter Mr Samuael) $250 per day. Ms Samuael worked with the applicant for approximately two to three weeks and Mr Samuael worked directly for the respondent and was not in the employ of the applicant.
Mr Gerges asked the applicant if he knew someone who could do the work with him and the applicant recommended Mr Samuael and brought him along with him. The applicant knew Mr Samuael through a mutual friend.
Mr Gerges told them both at the same time on site what the daily jobs entailed and what was expected of them to complete. He advised them in detail what was required for each task the applicant and Mr Samuael undertook together.
The applicant paid Mr Samuael $250 in cash each day as he was in receipt of Centrelink payments and he preferred to receive that sum in cash as he was aware that the job would only entail two the three weeks work. His boss was okay with him receiving the $650 per day and paying Mr Samuael from that sum that he deposited in the applicant’s account.
Mr Samuael decided not to stay with the respondent after the applicant’s injury.
The applicant received payments from iCare for about one year to June 2021 with payments averaging $1,260 per week. He has not received any insurance payments since then.
The applicant then addresses Mr Gerges statement in some detail, as discussed below.
The Worker’s injury claim form dated 18 May 2020 includes that the applicant needs an Arabic interpreter. The claim form names the respondent as the applicant’s full time employer, the employer contact as Hana, that the applicant started working for the respondent on 15 April 2020 and he had no other employment at the time of the injury. Usual pre-tax weekly earnings are listed as $2,000 ($400 per day). The injury on 8 May 2020 occurred while carrying out formwork tasks, and the affected body parts are head and left eye, left knee, left arm, low back and neck.

Medical evidence

In his report of 28 September 2021 Dr Ijaz Khan describes his treatment of the applicant, the injuries caused by the fall on 8 May 2020 and his capacity for work.
The Westmead Hospital Brain Injury Outpatient Clinic report of 5 May 2021 describes indicators consistent with a mild traumatic brain injury with associated injuries, and that the post concussive syndrome was expected to have a good recovery.
The Westmead Hospital Brain Injury Outpatient Clinic report of 2 August 2021 describes post-concussive syndrome, mild severity traumatic brain injury, no intracranial changes, and associated left scaphoid fracture, left cubital fossa extravasation injury and peripheral nerve injury, and treatment for chronic pain.
Dr Khan’s clinical notes as well as those from Westmead Hospital, Dr Herald, Dr Osman and Dr Nair are also attached to the ARD.
Dr Hassan, consultant neurologist, provides his opinion on 7 January 2021 that the applicant is suffering from post-concussive headaches and mild to moderate amnestic cognitive problems likely due to traumatic brain injury.
The doctor recommends a multidisciplinary rehabilitative approach headed by a rehabilitation physician with the assistance of an occupational therapist and a neuropsychologist to help the applicant get back to normal function as much as possible.

Insight Intelligence Group Factual Investigation Report

The respondent’s factual investigation report from Insight Intelligence Group dated 11 March 2021 without annexures is attached the ARD.
The report includes that the respondent has two employees, Jean and Milad Gerges, and is involved in formwork duties, having been in business since around 2015.
In the report the responses of Mr Gerges, director of the respondent, include that he remembered the applicant from a St George site where he formed the opinion the applicant was a good worker. The applicant said he needed work and he told him he could probably use him in about three weeks or a month.
He asked the applicant if he had an ABN and said that he could not put anyone on wages as he did not have enough work. The applicant said he had an ABN and he had his own workers and that he would pay them. He assumed from that that the applicant had his own workers compensation insurance.

He called the applicant when he had a job in Wentworthville and said he needed two men and the applicant said OK he had another worker. The applicant arrived with another worker and on some days he brought along three other workers.
On the first day the applicant attended a safety talk from the builder along with the other workers and they were told to wear safety shoes and a hard hat and then they started work.
Mr Gerges told the applicant and his worker to start in a section and begin work. He told him to first put the frame on. He had marked everything for him. The applicant had to construct a steel frame and then lay plywood down. It could take two to three days erecting the steel frame and then two to three days in laying the plywood. He left the applicant and his worker alone to do his work and he went to work in another area.
Mr Gerges went to work every day. He knew the applicant was good at laying formwork but he wanted to see how efficient he was.
The applicant did not know how to read plans, that was Mr Gerge’s job, so he read the plans and marked everything out. The applicant provided all his own clothing and safety equipment, his own tools and he provided a saw, tool belt and hammer. Mr Gerges provided the nails, measuring tape and a level. Mr Gerges did not provide any tools.
He discussed payment with the applicant before he started. The applicant told him he needed $650 per day for himself and his worker and Mr Gerges said that was OK and he could pay each week or every two weeks. The applicant sent his invoices by email to the respondent.
Mr Gerges inspected the invoices and arranged for payment. In this report Mr Gerges refers to an invoice dated 3 May 2020 for amounts of $3,900 and $1,841 for work in the week prior to 3 May 2020. During that week the applicant had brought along three workers who did not work a full week but he invoiced as though they worked the whole week, and this then covered the extra days for the two extra workers. Mr Gerges was responsible after checking his invoices for transferring the money from the respondent to the applicant’s bank account.
Mr Gerges did not supervise how the applicant did the formwork and he checked at the end of each day that a good job had been done. Each day he was satisfied with the job that was done.
The applicant told Mr Gerges he would work from 7.00am to 3.00pm and lunch was up to him.
On 8 May 2020 the applicant started at 7.00am and the incident happened at about 9.00am. Mr Gerges did not see how the accident happened. He prepared an Incident Report based on a conversation with the applicant that he fell 2.8 metres. He ran to him, he was on the floor, he said are you OK, he said I am in pain. His worker Mr Samuael was with him, he asked how did you fall and Mr Samuael said the applicant was putting a timber and he was walking backwards. He stepped on the back of the timber without realising and the timber flipped up and he fell. The applicant was in pain and Mr Gerges asked if what Mr Samuael said was right and he agreed. Steve the builder called an ambulance and the applicant went to Westmead Hospital.
After about a week Mr Gerges went to the applicant’s home. The applicant asked him for insurance and he was shocked and said don’t you have your own insurance, you are working as a subbie, not a full time worker. He did not know if the applicant was eligible to put a claim in under the respondent’s insurance so he sent the applicant their policy number by email from his phone.
The applicant was not working on a slope where the accident happened so there was no need to be wearing a safety harness.
The report includes the applicant’s current details for his ABN, active from 3 September 2018 as an individual/sole trader, not currently registered for goods and services tax (GST).
The report concludes that the respondent’s stance is that the applicant is a sub-contractor and also brought with him workers that he paid directly, and he had his own equipment and tools and worked unsupervised.
The insurer’s List of Payments shows weekly payments made to 11 June 2021.

Respondent’s evidence

Dr Nair reports on 27 October 2020 that the applicant continues to struggle with cervical and left upper extremity pain, an MRI revealed C4/5 and C5/6 disc herniations, and he suggests a lumbar MRI in view of the left lower extremity symptoms.
Dr Hassan’s report of 7 January 2021 is referred to above.
The statement of Mr Gerges dated 8 March 2021 includes the information set out above.
The incident report form completed by Mr Gerges on 8 May 2020 says that the applicant placed a timber unsecurely over a hole that was supposed to be there, he then stepped on the timber and fell through, it was not a hazard, it was negligence from the contractor, and the recommended action was toolbox talk and improve training.
Photos of a similar site, a SafeWork Method statement, Toolbox Talk template, Risk Assessment, and a Subcontractor Statement Template are attached to the Reply.
The respondent’s response to an investigator questionnaire includes that the applicant is not an employee, he was contracted to carry out form working duties with his own ABN, there are no standard hours, no training was provided, he is not entitled to sick or annual leave as he is not an employee and he had his own tools.
Invoices for work carried out and texts showing deposits to the applicant’s bank account are attached to the Reply.
There are three invoices from the applicant addressed to the respondent. An invoice dated 18 April 2020 shows amounts of $650 for each of Wednesday, Thursday, Friday and Saturday. The invoice dated 23 April 2020 shows $650 for each of Monday, Tuesday and Wednesday. The invoice of 3 May 2020 shows $650 for each of Monday, Tuesday, Wednesday, Thursday and Friday.
The text messages show an amount of $2,588 paid to the applicant by the respondent on 18 May 2020, $5,741 on 3 May 2020, $1,950 on 25 April 2020, and $2,600 on 18 April 2020
The respondent relies on the report of the Insight Intelligence Group dated 11 March 2021 referred to above. The signed statement of the applicant dated 23 February 2021 and of Mr Gerges of 8 March 2021 annexed to the report are attached to the Reply.
The supplementary report of the Insight Intelligence Group is dated 17 December 2021. This describes obtaining a statement from Slivian Salasil Samuael.
Mr Samuael’s signed statement dated 14 December 2021 is annexed to the report. He says the applicant used to get his pay and pay him because he was training. He was working with the applicant but was not working for him. He has no documents or records regarding the employment.
He describes the applicant stepping on the timber and falling down about three metres onto concrete. He was about four metres away from the applicant when he fell.
Asked to comment on information from Mr Gerges, he said that the applicant was walking forwards not backwards when he fell and he does not agree with Mr Gerges’ statement. He says the respondent said no to calling an ambulance and wanted to carry the applicant on plywood. The deck was uncovered but covered before Workcover came.
A Commonwealth Bank List of Transactions, an income statement for 2021 and a Notice of Assessment for the year ending 30 June 2021 are attached to the Reply.

Applicant’s written submissions

Counsel for the applicant prepared written submissions dated 22 October 2024. These are summarised below.
The documents relied upon in preparing submissions are Mr Samuael’s statement dated 14 December 2021, the statement of Mr Gerges dated 8 March 2021 and the further statutory declaration of the applicant dated 18 January 2022, each attached to the submissions, as well as oral submissions given by the applicant at the arbitration hearing. I have not had regard to the oral submissions.
The applicant submits he is a worker.
Mr Samuael says it was not the applicant paying him for work for the respondent and he has read and disagrees with Mr Gerges’ statement.
Mr Gerges was aware only that the applicant was seeking employment and had never seen Mr Samuael at the St George work site. Only the applicant was invited to work with him. No supporting evidence has been provided by the respondent of extra workers employed by the applicant.
The respondent read plans and directed and controlled the work done by the applicant, confirmed by Mr Samuael. The applicant denies tools and equipment were brought along by him except nails.
The respondent explained marked out plans and checked the work at the end of every day, and the only description for that is supervision. The level of supervision contradicts the submission that the applicant was a contractor. This is control.
The applicant’s further statutory declaration of 18 January 2022 is contrary to the respondent’s statement.
In that statutory declaration the applicant says he first contacted Mr Gerges about work and he officially began working for the respondent in April 2020.
Mr Samuael worked with him for two to three weeks. Mr Samuael worked directly for the respondent and he was not employed by the applicant. Mr Gerges asked the applicant if he knew someone who could do the work with him and he recommended Mr Samuael and brought him along with him. The applicant knew Mr Samuael through a mutual friend.
Mr Gerges told the applicant and Mr Samuael both at the same time on site what the daily jobs entailed and what was expected of them to complete. He advised them in detail of what was required for each task they undertook together.
The applicant paid Mr Samuael $250 in cash each day as he was in receipt of Centrelink payments and he knew the job would only entail two to three weeks work.
At all times the applicant believed himself to be in the employ of the respondent. He did not bring any other workers onsite to work with him aside from Mr Samuael. Mr Gerges gave him directions and told him what to do at work and the applicant did exactly what he was directed to do on the worksite.
On the day of the injury Mr Gerges advised him about which tasks he had to complete and then went to work on another side of the site. Whenever he needed to ask a question or get directions the applicant would walk over to him and ask him and he would come over and check on his tasks.
The applicant only had safety shoes and a nail bag and no other equipment or tools. All other tools and equipment required were supplied to him by the respondent.
Mr Gerges kept popping around to check on the applicant’s progress throughout his workdays.
The applicant takes issue with Mr Gerges’ statement.
The applicant submits that recent High Court decisions have decided the principles that are to be taken into account when determining whether a person is a worker. There is not a list of criteria that need to be met but the whole context of the relationship is to be considered. When applying the multifactorial test, the test since Stevens v Brodribb[3] (Stevens) and Hollis v Vabu Pty Ltd[4] (Hollis v Vabu) the various indications of employment are only relevant to the extent the terms of any written contract give effect to them (unless the contract is a sham or has been varied by subsequent conduct of the parties).
[3] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 164 CLR 16; 63 ALR 513.
[4] Hollis v Vabu Pty Ltd [2001] HCA 44.
It is only where the terms of a contract are oral or ambiguous that the court can apply the multifactorial test against the practical reality of the relationship and the manner of performance of the contract; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting)[5] and ZG Operations Australia Pty Ltd v Jamsek (Jamsek).[6]
[5] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1.
[6] ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.
The multifactorial test assesses the totality of the relationship between the parties by applying the various indicia of employment developed through the common law to both the terms of any relevant employment contract, as well as to the way the relationship operates in practice.
The applicant submits that looking at the totality of the relationship the requirement of an ABN was for the benefit of the respondent alone in setting up a sham scenario to avoid workers compensation premiums.
The applicant submits from day one to the date of injury he was and continues to be a worker.
As limited as they all are, the statements and statutory declaration when considered as a whole point to that conclusion. The Commission should find the applicant was a worker and an award for him follows.

Respondent’s submissions

Counsel for the respondent prepared written submissions dated 1 November 2024. These are summarised below.
There is no issue that the applicant was engaged by the respondent to perform work at the site, that it was an oral agreement and that the applicant sustained injuries on 8 May 2020 to the head, left eye, left knee, left arm, lower back and neck.
In issue in these proceedings is when the agreement between the applicant and respondent was made and the nature of that agreement, that is whether any contract of service was entered into to establish that he is a worker or deemed worker.
The respondent says that there is an issue as to whether the applicant can establish an incapacity over the entire period claimed from 11 June 2021 to date and continuing, although pre-injury average weekly earnings (PIAWE) are agreed at $2,000.
The applicant asserts reliance on oral submissions made at the arbitration hearing however the respondent was of the view the matter would be determined entirely on the papers. No regard should be had to submissions made at the conciliation/arbitration hearing in order to accord each party procedural fairness. The respondent has had no regard to the transcript of the hearing in making these submissions.
The respondent also notes the applicant’s further statutory declaration dated 18 January 2022 has not been admitted into evidence, however the respondent does not object to this being admitted into evidence.
The respondent submits that it cannot be established that a contract of service was formed between the applicant and the respondent.
There is no dispute there was an oral contract however that does not take away from the focus of the inquiry being upon the legal rights and obligations created by the contractual relationship between the parties rather than upon the history of the relationship between them (including the manner of performance of the contract).
A summary regarding oral contracts is provided in Chiodo v Silk Contact Logistics [2023] FCA 1047 at [8]-[9], including that subsequent conduct to a contract can be used to establish the existence of contractual terms.
The respondent submits that it is only when the terms and legal obligations flowing from the oral contract cannot be clearly ascertained by references to particular conversations and subsequent conduct that the multifactorial test set out in Stevens can apply.
The applicant did not dispute the assertion by Mr Gerges that during the March 2020 conversation the applicant stated that “he had his own workers, and I pay them”.
The whole of the March 2020 conversation could not be construed as having established any terms consistent with a contract of service. The compelling inference to be drawn is that the applicant knew the reason why one applied for and retained an ABN, being for the purpose of conducting one’s own business as an independent contractor. The applicant has not offered any other explanation as to why he held an ABN.
The applicant offers no evidence as to the words used during the April 2020 conversation. Mr Gerges’ evidence is that he contacted the applicant stating he had work available for the applicant and another worker. The respondent submits in the context of the March 2020 conversation, the April conversation also did not establish any contractual terms or obligations consistent with a contract of service.
A critical term of the contract in the respondent’s submission was that the applicant would be paid for the work performed for both he and Mr Samuael, and that in turn the applicant would pay Mr Samuael. This is inconsistent with there being a contract of service between the applicant and the respondent.
Conduct subsequent to the formation of the contract is that the applicant submitted tax invoices after each week of work, which an employee does not do, and there is no evidentiary explanation as to why he provided his ABN, why he submitted tax invoices as opposed to time sheets and why his ABN appears on every tax invoice. The applicant provided his bank account details to the respondent who did not need to be concerned with whether this was the applicant’s personal bank account.
The respondent submits that when one considers the evidence as to the March 2020 conversation, the April 2020 conversation, and the pay conversation as well as the subsequent conduct of the parties, it is not open to find that the oral contract between the applicant and the respondent was a contract of service.
Referring to the applicant’s submissions, it is evident that the contract was contingent on the applicant providing his services, as well as the services of another, for which the applicant would be responsible to make payment.
The submission that the requirement of an ABN was for the benefit of the respondent alone in setting up a sham scenario to avoid workers compensation premiums cannot be accepted.
The uncontested evidence of Mr Gerges is that he did not have the means to employ individuals given the frequency in which the respondent was engaged to undertake work.
It also has total disregard to the way in which thousands of people are engaged to provide services, and there is nothing illegal or disingenuous about engaging a person in this way. This allegation was not put to Mr Gerges in breach of the rule in Browne v Dunn and for that reason should be rejected.
The respondent submits that a submission that the applicant could not read should be rejected as both his statutory declarations were prepared without the assistance of an interpreter. These, the invoices and the text messages show the applicant conversing and writing in English.
Mr Gerges’ disclosure that he could not pay the applicant wages expressly clarified the offer of work and the contractual terms to which the parties would be bound, that is that at no stage was the contract one of service.
Regarding Mr Gerges’ visit to the applicant following the injury, the applicant holds the onus of establishing what was said. His friend Ali was present during the conversation and has not provided a statement or been called to give evidence, and an inference that his evidence would not have assisted the applicant’s case should be drawn. As Mr Gerges sent the policy number to the applicant it should be accepted no opposition was raised at all when the applicant asked for the respondent’s workers compensation policy.
If the Commission is not satisfied that the contractual terms and obligations were clear from the above facts, then the respondent submits the multifactorial test contained in Stevens can be utilised, however, regardless this does assist the applicant.
The respondent submits in response to the applicant’s submissions that:
(a)    the respondent having engaged the applicant and Mr Samuael was entitled to direct them as to what work needed to be done and it is implausible to suggest a simple direction to commence working on a particular part of the site should be given any weight. The applicant was engaged as a form worker and labourer with multiple elements to that work so that the fact he performed various tasks should also not be given any weight in considering this issue;
(b)    Mr Gerges was entitled to check the work to ensure it was performed to a satisfactory standard and the applicant seeking clarification as to the way in which the work was performed does not rise to the level of creating an employment relationship;
(c)    as the respondent was responsible for the work undertaken by the applicant it was imperative that it be checked to comply with the respondent’s obligations, but this does not construe creating an employment relationship;
(d)    Mr Gerges going to work on another side of the site after giving the applicant a task is consistent with no supervision in the sense suggested by the applicant;
(e)    there is no question that training was not provided to the applicant.
(f)    the fact that Mr Gerges read and marked out the plans is not indicative of an employment relationship and is usual practice on job sites;
(g)    the applicant was not entitled to sick or holiday pay;
(h)    the applicant submitted tax invoices clearly stating his ABN;
(i)    no tax was withheld from payments made to the applicant;
(j)    no superannuation payments were made to the applicant;
(k)    the respondent was entitled to assume payments to the applicant were GST inclusive as this is what is stated on the tax invoice;
(l)    the respondent had no ability to suspend or dismiss the applicant, and if necessary could simply have advised the applicant that his services were no longer required;
(m)     the applicant’s tax invoices evidently show the site was operational from Monday to Saturday yet the applicant did not work on each day of operation, which demonstrates the applicant had no obligation to the respondent to work;
(n)    the applicant’s days of work were irregular which is inconsistent with being a full time employee;
(o)    the applicant told the respondent the hours he would work, demonstrating he had the freedom to choose when to work;
(p)    the applicant has provided three inconsistent recollections as to the tools he provided at the site and the respondent’s provision of nails, a measuring tape and a level should not be construed as creating an employment relationship where one does not exist;
(q)    the applicant’s evidence that a safety talk was not given should not be accepted, and critically that talk was not given by the respondent, demonstrating limited control over the applicant’s actions;
(r)    there is no evidence the applicant could not subcontract the work and Mr Gerges understood the arrangement to be that the applicant would engage subcontractors;
(s)    the place of work was dependent on the work available to the respondent, that is the respondent did not direct the applicant to work at different locations at its discretion, and
(t)    Mr Samuael’s disagreement as to the content of Mr Gerges’ statement only applies to his recollection of what Mr Samuael told him about the applicant’s injury, not the entirety of the statement.

Based on the totality of the relationship between the applicant and the respondent the respondent submits the Commission could not be satisfied that a contract of service existed.
Regarding whether the applicant was a deemed worker, the respondent accepts it contracted the applicant as an independent contractor to provide his form work and labouring services, however it submits the applicant cannot be a deemed worker due to his conduct and his statement evidence.
The applicant asserts he was employed on a full time basis and that his ABN had nothing to do with the payments in respect of the work performed. The applicant also does not submit that he was an independent contractor for which the deeming provisions apply.
The respondent submits the applicant cannot assert one position and rely on a fallback position which is inconsistent.
The respondent submits that if a contractor employs or subcontracts a person to perform the work under the provisions of Schedule 1 of the 1998 Act, and at the very least the applicant subcontracted Mr Samuael to perform work for which he was engaged by the respondent, neither cl 2 nor cl 2A of Schedule 1 can apply.
The subcontract between the applicant and Mr Samuael whether legal or not is not relevant to the analysis of whether the applicant subcontracted work he was engaged to perform under the contract with the respondent.
The applicant does not rely on any evidence to demonstrate that the work performed for the respondent was not work incidental to a trade or business regularly carried out. To the extent it is addressed by other evidence, that evidence supports the inference that the applicant regularly carried out work as a contractor performing labouring and form work services and cl 2 and cl 2A of the 1998 Act cannot apply.
Regarding incapacity, the respondent submits that on the available evidence in the event of the applicant’s success, he is entitled to an award for weekly compensation from 11 June 2021 to 28 September 2021. From that date the applicant does not rely on any medical evidence to establish incapacity for work.
The respondent submits Dr Khan’s report of 28 September 2021 should not be accepted as demonstrating the applicant has any incapacity for all time and there is an absence of medical evidence that he remained incapacitated after 28 September 2021.
The respondent seeks orders that the applicant’s claim be dismissed,

FINDINGS AND REASONS

Is the applicant a worker?

Under s 9(1) of the 1987 Act a worker who has received an injury shall receive compensation from the worker’s employer in accordance with this Act.
Under s 4 of the 1998 Act a “worker” means a person who has entered into or works under a contract of service with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).
Having considered the whole of the evidence I find that there was no contract of service at the time of the injury, so that the applicant was not a “worker” employed by the respondent under s 4 of the 1998 Act, for the reasons below.
Whether the contract can be categorised as a contract of service or a contract for services is in dispute.
The onus is on the applicant to establish that a contract of service exists.
The applicant submits he was a worker and the respondent submits he was neither a worker nor a deemed worker, however the label the parties attach to their relationship is not determinative and rarely of assistance.[7]
[7] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [63], [66].
The traditional approach to determining whether there is a contract of service is by applying the multifactorial test discussed in Stevens and Hollis v Vabu. The multifactorial test assesses the totality of the relationship by applying various indicia of employment.
In the context of a written contract, the High Court more recently in Personnel Contracting and Jamsek viewed the legal rights and obligations established in the contract as decisive of the character of the relationship. A contract of employment must then be construed in accordance with established principles of contractual interpretation.[8]
[8] Secretary, Attorney-General’s Department v O’Dwyer [2022] FCA 1183 at [27].
The evidence supports that there was a concluded arrangement reached between the parties containing offer, acceptance and consideration and there was an intention to enter into a legally binding relationship.
There is no dispute the contract between the applicant and the respondent was oral.
The principles discussed by the majority Personnel Contracting were with regard to a comprehensive written contract where its validity was not in dispute. There are however aspects of the High Court’s observations in Personnel Contracting and Jamsek which assist where a contract is partly or purely oral.[9]
[9] Nilon v Berens Constructions Pty Ltd [2024] NSWPICPD 21 at [112].
In the absence of a comprehensive written contract the fundamental task remains to ascertain and characterise the parties’ contractual rights and obligations by first examining the evidence of relevant conversations between the parties. It becomes necessary to consider evidence of the parties’ conduct where there is no evidence of a particular conversation.[10]
[10] Chiodo v Silk Contract Logistics [2023] FCA 1047 at [9].
That is, where a contract is not wholly in writing subsequent conduct can be used to establish the existence of contractual terms.[11]
[11] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [177].
I agree with the respondent’s submission that the multifactorial test in Stevens applies in particular where the terms and legal obligations flowing from the oral contract cannot be clearly ascertained by reference to particular conversations and subsequent conduct of the parties.[12]
[12] Secretary, Attorney-General’s Department v O’Dwyer [2022] FCS 1183 at [34].
In this case there is evidence of conversations between the applicant and the respondent in March 2020 and in April 2020.

March 2020 conversation

The applicant describes the March 2020 conversation in his statement of 23 February 2021; he rang Mr Gerges and asked if he had work, he said yes, come in and have a look.

In his further statutory declaration of 18 January 2022, the applicant says he first contacted Mr Gerges sometime in March 2020 in relation to whether he could do some work for him and he was assured he would be contacted when work came up in a few weeks’ time.
Mr Gerges in his statement of 8 March 2021 agrees the applicant called him in about March 2020. He remembered him from a worksite in St George where he had formed the opinion the applicant was a good worker. The applicant said he needed work as he had no work now and Mr Gerges said he could probably use him in about three weeks or a month.
Mr Gerges says he asked the applicant if he had an ABN and said he could not put anyone on wages as he did not have enough work. The applicant said he had an ABN and he also said he had his own workers and “I pay them”.[13] Mr Gerges assumed from that he had his own workers compensation insurance. He told the applicant when he had work he would be welcome to work with him.
[13] Reply page 60.
I agree with the applicant’s submission that in March 2020 the offer of work was made by Mr Gerges to the applicant alone, and I do not accept the respondent’s submission that the contract was contingent on the applicant providing his services as well as the services of another based on the evidence of this conversation.
Mr Gerges’ evidence with regard to the March conversation is disputed by the applicant.
The applicant confirms he gave the respondent his ABN. He says that although he was asked to provide his ABN it had nothing to do with his payment.
The applicant does not agree he said he had his own workers and he would pay them. He says Mr Gerges asked him if he knew someone who could do the work with him and he recommended Mr Samuael and brought him along with him.
In his further statutory declaration the applicant says Mr Samuael worked at the site for two to three weeks and worked directly for the respondent and was not in the applicant’s employ.
Mr Samuael in his statement says he was working with the applicant but not working for him.
In the March conversation form work and labouring work was offered to the applicant, and the applicant provided his ABN to the respondent.
The applicant’s evidence is that he was asked if he knew someone who could do the work with him. Mr Gerge’s evidence that the applicant said he had his own workers and he would pay them is supported by facts established in the April 2020 conversation.[14]
[14] Fox v Percy [2003] HCA 22; 214 CLR 118.

April 2020 conversation

On the available evidence of the April conversation the parties agreed on the applicant’s hours of work, the hourly rate of pay, the applicant providing another worker and the arrangement for payment of Mr Samuael.
The applicant in his statement of 23 February 2021 says that after he rang Mr Gerges in March 2020 and asked if he had work, he said yes, come in and have a look. The applicant came in, presumably in April 2020, Mr Gerges gave the applicant some things to do, and after two days he said he was a good worker and made the offer of an hourly rate to which the applicant agreed. He was told to start and that he had work, and nothing was said about how long he would be employed.
Mr Gerges’ evidence is that the applicant told him he would work from 7.00am to 3.00pm and Mr Gerges said that is fine, that is how we work and lunch was up to him. The applicant agrees with that statement and says he took a half hour lunch break at 11.00am as per Mr Gerges’ instructions.
The applicant’s evidence is that when he started at the Wentworthville site in April 2020 his rate of pay was not agreed. Mr Gerges told him he would be paid $50 per hour after two days when he saw he was a good worker, and the applicant agreed.
It appears not in dispute that the parties agreed to payment by the respondent to the applicant of $400 per day excluding overtime based on an hourly rate of $50.
The applicant says he sometimes worked ten hours and if he worked ten hours he would be paid an extra $100. That is not confirmed by Mr Gerges or it appears by the tax invoices.
I agree with the respondent’s submission that a critical term of the contract is whether the applicant would be paid for work performed by himself as well as Mr Samuael, and that he would in turn pay him for that work.
The respondent’s evidence is that when he had the Wentworthville job he rang the applicant and said he needed two men, himself and another, and the applicant said OK he had another worker.[15]
[15] Reply page 61.
The applicant then arrived with another worker. The respondent did not know the name of the other worker, it may have been Mr Samuael.
Mr Gerges says that before the applicant started work they discussed his payment and he told him he needed $650 per day for himself and his worker. Mr Gerges said that was OK and he could pay every week or every two weeks. This is not disputed by the applicant.
I find based on the evidence that the arrangement for payment to Mr Samuael by the applicant for work at the Wentworthville site from the agreed amount paid to the applicant by the respondent, as well as the hours of work and rate of pay, were terms of the oral contract made between the parties as a result of their conversations.
The agreement reached that the applicant would pay Mr Samuael supports a finding that there was not a contract for service.

Subsequent conduct

There is no evidence that the parties in their March or April 2020 conversations discussed terms of the contract or obligations other than those referred to above.
The terms of an oral contract may be inferred from the circumstances including the course of dealings between the parties. Where there is no written contract and no evidence of a particular conversation in which an oral contract was formed, evidence of the parties’ conduct must be considered in order to draw inferences as to whether the meeting of minds necessary to create a contract has occurred and what obligations they have undertaken.[16]
[16] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [177].
The respondent’s submission is that there was no contract of service. The conversations discussed above with evidence of the subsequent conduct of the parties support that submission.[17]
[17] Nilon v Berens Constructions Pty Ltd [2024] NSWPICPD 21 at [113].
The applicant appears to have performed work at the Wentworthville site between 15 April 2020 to the date of his injury on 8 May 2020.
The applicant did not provide time sheets but provided three invoices including his ABN addressed to the respondent: on 18 April 2020 for four days work (Wednesday to Saturday) at $650 per day totalling $2,600, on 23 April 2020 for three days work (Monday to Wednesday) at $650 per day totalling $1,950, and on 3 May 2020 for six days work (Monday to Saturday) at $650 per day totalling $3,900.
While the applicant’s evidence is that he was employed full time, his invoices show payments claimed for three, four and six days of work in each of those three weeks.
There is no evidence before the Commission that provides an explanation as to why particular days were worked by the applicant and Mr Samuael. The only agreement that appears to have been reached from the conversations was that the hours of work would be from 7.00am to 3.00pm.
The pattern of days worked does not support a finding of full time employment.
Text messages between the parties show payments made by the respondent to the applicant on 18 April 2020 of $2,600, on 24 April 2020 of $1,950, on 3 May 2020 of $5,741, and on 18 May 2020 (after the date of injury) of $2,588.
The applicant’s bank statements confirm receipt of payments from the respondent of $2,600 on 20 April 2020, $1,950 on 27 April 2020, $5,741 on 4 May 2020, and $2,588 on 18 May 2020.
The amount paid on 3 May 2020 of $5,741 includes an amount of $1,841 additional to $3,900 invoiced on 3 May 2020.
Mr Gerges’ evidence is that on some days the applicant brought along three other workers. Mr Gerges refers to an annexure to his statement of an invoice from the applicant dated 3 May 2020 for the amount of $3,900 and $1,841, including for two extra workers who did not work the full week but the applicant invoiced as though they worked the whole week.[18] That annexure is not before the Commission. There is one invoice dated 3 May 2020 in evidence in the amount of $3,900.
[18] Reply page 31.
The applicant in his further statutory declaration disputes he brought three other workers and says he only brought Mr Samuael with him to work onsite. In the absence of further evidence the allegation that the applicant brought two extra workers to the site or paid workers other than Mr Samuael is not accepted.
The applicant provided his ABN to the respondent and includes it in the three invoices he addressed to the respondent.
The applicant does not offer an explanation as to why he holds an ABN in order to displace the assumption that he holds an ABN for the purpose of conducting his own business as an independent contractor.
Mr Gerges’ evidence is that he asked the applicant if he had an ABN and said he could not put anyone on wages as he did not have enough work. As the applicant said he had an ABN and also said he had his own workers and he paid them, the respondent assumed he had his own workers compensation insurance.[19]
[19] Reply page 60.
The respondent’s submission is that the compelling inference to be drawn is that the applicant knew the reason why one applied for and retained an ABN, being for the purpose of conducting one’s own business as an independent contractor.
The applicant’s evidence regarding the ABN is;
“I have an ABN, but I was paid my money into my personal bank account, my ABN had nothing to do with that payment. I was asked to provide my ABN, but it had nothing to do with my payment.”[20]
[20] ARD page 601.
Many organisations require tradespeople and labourers to possess an ABN and submit invoices as a prerequisite to receiving remuneration, irrespective of the true nature of the contractual arrangement,[21] and the provision of an ABN does not of itself determine the nature of the relationship.
[21] McKay v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 273 at [62].
While I do not accept the provision of an ABN necessarily results in a finding that there was no contract of service, when considered with the whole of the evidence the provision of an ABN supports the conclusion that the applicant was not a worker.
I accept the respondent’s submission that there is nothing illegal or disingenuous in general about engaging independent contractors.
Relying on independent contractors avoids payment of workers compensation and workers compensation premiums, however no conclusion is available on the evidence in this case that the respondent’s requirement for the applicant to have an ABN was for his benefit alone in setting up a sham scenario to avoid workers compensation premiums, as submitted.
I also do not accept that the allegation of a sham scenario not being put to Mr Gerges was a breach of the rule in Browne v Dunn as there has been adequate notice of the contradictory evidence of the parties with obvious implications.
The potential consequences of non-compliance with the rule in Browne v Dunn are significantly diminished in proceedings in the Commission where evidence is required to be filed with the ARD and Reply.[22]
[22] Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 at [63].
In my view there was adequate notice given by the nature and conduct of the applicant’s case. The applicant has made plain in his case the general contention he raises, and Mr Gerges has had the opportunity of meeting the implication and answering it.
The arrangement with respect to payment to Mr Samuael is a critical term of the contract.
While agreement was reached between the parties on the way in which Mr Samuael was to be paid, the applicant says he never employed Mr Samuael and Mr Gerges says he understood he was the applicant’s worker.
The applicant’s evidence is that he billed Mr Gerges $650 per day, supported by the invoices, and took $400 as his wages and paid Mr Samuael $250 per day.
Mr Gerges’ evidence is that he agreed to this arrangement although he does not refer to any division of that daily amount between the applicant and Mr Samuael.
The applicant says he paid Mr Samuael in cash each day as he was in receipt of Centrelink payments, he preferred to receive cash and he was aware that the job would only entail two to three weeks work.
Placing to one side any potential questions of legality, an explanation is provided by the applicant on the basis for requesting payment from the respondent for both himself and Mr Samuael that is not inconsistent with there being a contract of service between the applicant and the respondent.
The applicant’s submission is that the Commission could not be satisfied that Mr Samuael could support the respondent’s position concerning the employment of the applicant. Mr Samuael knew who was paying him and it was not the applicant, and he disagrees with the statement of Mr Gerges.
Mr Samuael says “I do not wish to say when I commenced my employment at that site or who I worked for.”[23] He then says “I can say that Ali use [sic] to get my pay from that site and Ali use [sic] to pay me because I was training. I was working with Ali Al Anzi but I was not working for him.”[24]
[23] Reply page 116.
[24] Reply page 117.
Mr Samuael says in response to being asked if he agrees with Mr Gerges’ statement “I can say that I do not agree with what he said.”[25] It appears, as the respondent submits, that this is likely to relate to the part of the statement dealing with the injury on 8 May 2020.
[25] Reply page 117.

On balance, the arrangement whereby the applicant accepted Mr Samuael’s pay from the respondent and then paid him goes against a finding that there was a contract of service.
While the applicant bears the onus in the proceedings, I draw no inference from the fact that no statement is in evidence from Mr Ali, the applicant’s friend, regarding the meeting in the applicant’s unit on about 12 May 2020, or that the respondent provided its workers compensation policy number to the applicant.
The issuing of tax invoices including the applicant’s ABN, the irregular pattern of days of worked and the arrangement for payment to Mr Samuael supports a finding that there was no contract of service.
There remains some ambiguity in the terms and obligations of the oral contract. The March and April 2020 conversations and the subsequent conduct of the parties do not clarify all of the contractual terms in dispute.

Multifactorial test

Where it is necessary to turn to a consideration of the various indicia in the multifactorial test in Stevens and Vabu v Hollis, a balancing exercise is performed and all the dealings between the parties may be reviewed.[26] Although the list of indicia is not closed the balance will depend on the facts of the contract.[27]
[26] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [61].
[27] Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537.
Control in many cases remains the surest guide and should be applied in the first instance, but it is not the only relevant factor. It is the totality of the relationship between the parties which must be considered.[28]
[28] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16.
Other indicia include the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision of holidays, the deduction of income tax, the ability to delegate work by the putative employee, the employer’s right to have a particular person to do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work.[29]
[29] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 at [9].
The indicia are also not of equal weight in the characterisation of the relationship, and there should not be a mechanistic checklist approach taken.[30]
[30] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [34]-[35].
The applicant’s submissions on the issue of control are;
(a)    the respondent read plans and directed and controlled the work done by the applicant, confirmed by Mr Samuael;
(b)    the respondent explained and marked out plans and checked the work at the end of every day;
(c)    the applicant and Mr Samuael were both told at the same time on site what the daily job entailed and what they were expected to complete;
(d)    they were advised in detail by the respondent of what was required for each task they undertook together;
(e)    the applicant was given directions by Mr Gerges and did exactly what he was directed to do on the worksite;
(f)    whenever he had a question or needed directions the applicant walked over to the respondent to ask him, and the respondent would come over and check his tasks, and
(g)    the respondent kept popping around to check on the applicant’s progress throughout his workdays.
The applicant submits the level of supervision contradicts a submission that the applicant was a contractor as the respondent had control.
Mr Gerges’ evidence is that he told the applicant and Mr Samuael on the first day on site to start in a section and begin work, he told them to first put the frame on, he read the plans and had marked everything out for the applicant and then left the applicant and Mr Samuael alone to work and he went to work in another area.
Mr Gerges’ evidence is that he did not supervise how the applicant did the formwork, he checked at the end of each day that a good job had been done and each day he was satisfied with the job that was done.
The applicant does not agree he attended a safety talk on the first day at the site. Mr Gerges’ evidence is that he did with Mr Samuael, and that Bob the owner and Steve the builder gave a safety talk to a number of workers employed by them. Regardless, this does not in my view establish whether the respondent was in control of the applicant’s work or not.
The plurality in Personnel said;
“… this Court in Stevens, and indeed in Zuijs itself, emphasised that it is the right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee.”[31]
[31] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 at [74].
In this case there is evidence from the applicant of the actual exercise of control of his work by the respondent.
I accept the respondent’s submission however that the evidence of supervision does not rise to the level of creating an employment relationship.
There is force in the respondent’s submissions that Mr Gerges was entitled to direct the applicant and answer general questions on what work needed to be done and to check it was performed satisfactorily.
The mode of remuneration was an agreed term of the contract as discussed above. There is no dispute the respondent made payments directly into the applicant’s bank account and I accept the respondent was entitled to assume payments made to the applicant were inclusive of GST as that is stated on his invoices. The fact that the applicant invoiced with an ABN and did not provide timesheets suggests a contract for services.
On the provision and maintenance of equipment, the applicant’s evidence is that he provided all his own clothing including safety shoes and a helmet and the respondent provided the tools including a drill, a saw and all else required for the task at hand. He says in his statement of 23 February 2021 that on the day of the injury he had his tool kit around his waist which included a hammer and nails.
In his further statutory declaration the applicant says he had safety shoes and a nail bag and no other equipment or tools. All other tools and equipment required were supplied by the respondent.
Mr Gerges says on the first day on the job they were told to wear safety shoes and a hard hat. Mr Gerges’ evidence is that the applicant provided all his own clothing and safety equipment and his own tools, being a saw, tool belt, and hammer and the respondent provided the nails, measure tape and a level.
On balance I accept the applicant provided his own safety shoes, hard hat and nail bag. Without further evidence I do not find the applicant otherwise provided his own tools.
Evidence of the applicant’s obligation to work is unclear. His invoices include different days worked between Monday and Saturday in the relevant three week period. There is no evidence regarding the actual days the site was operational in that period or why the applicant invoiced for the days that he did.
It is difficult to accept only on the basis of the dates invoiced that there was no obligation for the applicant to work. There is insufficient evidence in my view to accept the respondent’s submission that working irregular days demonstrates the applicant had no obligation to work.
I accept that working irregular days is inconsistent however with being a full time employee as the respondent submits.
The hours of work were an agreed term of the contract. The applicant does not dispute he told Mr Gerges the hours that he would work, to which Mr Gerges said “that is fine that is how we work”. This does not necessarily indicate the applicant had the freedom to choose when to work. At least on the days he worked the hours were agreed.
The applicant’s evidence is that tax was not deducted, he could not recall if any superannuation was deducted, he was not given any pay slips and the parties did not discuss holiday leave or sick leave. These indicia indicate the applicant was an independent contractor.
Whether the applicant was able to delegate work to Mr Samuael or any other worker is disputed by him. Mr Gerges assigned tasks and provided instructions on the work to be carried out to both the applicant and Mr Samuael at the same time on the applicant’s evidence. The evidence on this indicia is in my view inconclusive.
The respondent offered work to the applicant because he had seen him on the earlier St George site and formed the view he was a good worker. The respondent had the right to have the applicant do the work at the Wentworthville site.
There is no direct evidence on the respondent’s right to suspend or dismiss the applicant, or of a right to the exclusive services of the applicant.
The respondent dictated the place of work to the applicant which was at the one site.
Wigney J in JMC Pty Limited v Commissioner of Taxation says determining whether a relationship is characterised as one of employment or involving an independent contractor often hinges on two considerations; first is the extent to which the putative employer has the right to control how, where and when the putative employee performs the work, and second, the extent to which the putative employee can be seen to work in their own business as distinct from the business of the putative employer.[32]
[32] JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 at [23].
The indicia in favour of a contract for services is the evidence of Mr Gerges of what was said by him in the March conversation, the provision by the applicant of an ABN, the mode of remuneration, that there was no regular pattern of days worked, no tax was deducted, no superannuation was paid, and no paid leave was provided to the applicant.
Based on the totality of evidence including contractual terms, the subsequent conduct of the parties and the application of the multifactorial test, I am not satisfied the applicant entered into a contract of service with the respondent and so he was not a worker under s 4 of the 1998 Act on 8 May 2020.

Is the applicant a deemed worker?

Clause 2 of Schedule 1 of the 1998 Act provides;
“(1) Where a contract--
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
The respondent accepts it contracted the applicant as an independent contractor to provide his form work and labouring services.
The respondent submits that the applicant at the very least subcontracted Mr Samuael to perform the work for which he was engaged by the respondent.
The Court of Appeal has said “[t]here is no doubt that the assertion ‘the onus is upon the [contractor] to prove that he comes within the provision’ is correct…”[33]
[33] Scerri v Cahill (1995) 14 NSWCCR 389, Berens Constructions Pty Ltd v Nilon [2024] NSWPICPD 22 at [129], [149].
The applicant makes no submissions in relation to whether he is a deemed worker pursuant to cl 2 of Schedule 1 of the 1998 Act.
The applicant’s evidence is that he was employed on a full time basis and his ABN had nothing to do with the payments made to him.
I agree with the respondent’s submission that a submission that the applicant is a deemed worker would be inconsistent with that evidence.
I find the applicant was not a deemed worker under cl 2 of Schedule 1 of the 1998 Act.

Does the applicant have an entitlement to weekly benefits compensation from 11 June 2021?

As I have found the applicant is not a worker under s 4 of the 1998 Act or a deemed worker under cl 2 of Schedule 1 of the 1998 Act he has no entitlement to weekly benefits compensation.

[2024] NSWPIC 662

2 December 2024