Amalgamated Pest Control Pty Ltd v Chaaya

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Amalgamated Pest Control Pty Ltd v Chaaya [2015] NSWWCCPD 53
APPELLANT:	Amalgamated Pest Control Pty Ltd
RESPONDENT:	Nadim Chaaya
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6183/14
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	24 April 2015
DATE OF APPEAL HEARING:	26 August 2015
DATE OF APPEAL DECISION:	3 September 2015
SUBJECT MATTER OF DECISION:	Whether claimant a worker or, in the alternative, a deemed worker under the Workplace Injury Management and Workers Compensation Act 1998; consideration of the relevant indicia; consideration of the “ultimate question”, namely, whether the claimant worked in and for his own business or in the business of another; application of principles in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366; 279 ALR 341; whether claimant carried on a trade or business; application of principles in Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J Jobson, instructed by Stiles Lawyers
Respondent:	Mr W Nicholson, instructed by Brydens Compensation Lawyers
ORDERS MADE ON APPEAL:	1.       For the reasons given by the Arbitrator, and the additional reasons in this decision, the Arbitrator’s determination of 20 April 2015 is confirmed. 2.       The matter is remitted to the Registrar for the making of such further orders as are necessary to give effect to the Arbitrator’s determination.

INTRODUCTION

1. This is an appeal against an Arbitrator’s finding that the claimant was a worker within the meaning of that term in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). For the reasons given by the Arbitrator, and the additional reasons in this decision, the Arbitrator’s determination is confirmed. In the alternative, if the claimant was not a worker, he was a deemed worker under cl 2(1) of Sch 1 to the 1998 Act.

BACKGROUND

1. The appellant, Amalgamated Pest Control Pty Ltd, is in the pest control business. It asserts that it has developed certain business procedures and systems, together with a distinctive and valuable name, image and reputation associated with pest control. It conducts its business by issuing licences to licensees wishing to carry on a pest control business in accordance with what it describes as “the System and the Image”.

2. The respondent claimant, Nadim Chaaya, entered a “Technician Licence Agreement” (the Agreement) with the appellant on or about 19 April 2010. The Agreement described Mr Chaaya as the “Licensee” and the appellant as the “Licensor”. The Agreement required Mr Chaaya to pay to the appellant a $1,000 establishment fee and $5,000 for the cost of training. He commenced work as an “Amalgamated Pest Control Technician”, under the terms of the Agreement, at about the same time as he signed it. While performing work as a pest…