Askew v Donald Noel Spence t/as Don's Guttering and Roofing Services
[2023] NSWPICPD 13
•22 March 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Services [2023] NSWPICPD 13 |
APPELLANT: | Robert Askew |
RESPONDENT: | Donald Noel Spence t/as Don’s Guttering and Roofing Services |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W86/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 22 March 2023 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 6 May 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – whether the appellant was a “worker” within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 – On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (Number 3) [2011] FCA 366 discussed – application of the relevant principles where the contract is oral –Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 discussed – JMC Pty Limited v Commissioner of Taxation [2022] FCA 750; Secretary, Attorney General’s Department v O’Dwyer [2022] FCA 1183 applied – section 352(5) of the 1998 Act – requirement to show error – Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 applied – drawing of inferences – Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr D Adhikary, counsel | |
| Shanahan Tudhope Lawyers | |
| Respondent: | |
| Mr F Doak, counsel | |
| Hall & Wilcox | |
DECISION UNDER APPEAL | |
MEMBER: | Mr J Wynyard |
DATE OF Member’s DECISION: | 6 May 2022 |
INTRODUCTION AND BACKGROUND
On 18 May 2021, Mr Robert Askew (the appellant) was performing roof repairs on a two-storey residence when he stepped backwards over the guttering and fell approximately four metres to the ground below. He suffered significant injuries.
On the day of the injury, the appellant was performing the work through an arrangement with Mr Donald Noel Spence, who operated a roof and gutter repair business under the name of Donald Noel Spence t/as Don’s Guttering and Roofing Services (the respondent). The appellant had been working in the roof repair business since about 1986. He performed roof cleaning and repair work for various clients and in about 2018 or 2019, also began to perform work for the respondent.
The appellant made a claim for workers compensation for his injuries, alleging that he was a “worker” as defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The claim was denied. The respondent asserted that the appellant was conducting his own business and was not a worker within the meaning of the 1998 Act, or a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act.
The appellant commenced proceedings in the Personal Injury Commission (the Commission), initially alleging that he was either a worker or a deemed worker within the meaning of the 1998 Act. The matter proceeded to arbitration before a general member of the Commission on 25 March 2022, at which time the appellant discontinued the allegation that he was a deemed worker and proceeded on the basis that he was a worker as defined in s 4 of the 1998 Act.
The Member issued a Certificate of Determination on 6 May 2021. He determined that the appellant was not a worker within the meaning of the 1998 Act and entered an award for the respondent. The appellant appeals that decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the appeal to be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, the documents and submissions that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The appellant’s evidence
The appellant provided a statement dated 29 November 2021.[1] He advised that he had primarily been working in the roof repair business since about 1986 or 1987. He said that he had been performing roof cleaning, repairing, and painting for the respondent since about 2018 or 2019. He advised that there was no written agreement between the respondent and him. He described how the arrangement generally came about. He said that:
(a) customers would retain the respondent for the purpose of roof repairs, painting or cleaning;
(b) the respondent would contact the appellant about performing the work;
(c) the respondent would explain the nature of the required job, advise of the location, tell him what work was required, and provide any relevant commencement or completion time;
(d) the respondent would explain the dimensions of the roof, the size of the job and the amount the appellant would be paid;
(e) the appellant would confirm whether he was available;
(f) the night before commencement of the job, the appellant would usually call the respondent and confirm the details, and
(g) the respondent would let the customer know the time that the appellant would commence work.
[1] Application to Resolve a Dispute (ARD), pp 2–7.
The appellant said that he would not attend the job site to assess the work prior to commencement and he would not speak to the customer prior to the commencement day to discuss the work he was asked to perform. He added that the respondent set the rate of pay for each job, he was not invited to quote for the job, and he had no opportunity to negotiate the payment he was to receive. He advised that the respondent usually would pay a set rate of $500 for roof cleaning, repairs or painting. He said that the rate might slightly vary, for instance if the job was smaller and would take less time. The appellant said that the payment would be directly deposited into his bank account, and he was not required to issue a tax invoice. He said that he was responsible for paying his income tax.
The appellant advised that he was unaware of how much the respondent charged the customer, or how much profit the respondent made. He added that if there were any losses, such as when the customer failed to pay for the job he had performed, it was the respondent’s responsibility.
The appellant confirmed that, at the time of the accident, he held a valid contractor’s licence and had his own Australian Business Number (ABN). He did not have a workers compensation policy or an income protection policy. He said he did not advertise his services, except for having signage on his vehicle.
The appellant asserted that he worked exclusively for the respondent in the month leading up to his injury and he had no work scheduled to occur after the day of the injury. He provided a schedule of deposits paid into his bank account by various bodies, including the respondent, in respect of work done by him from 18 May 2020 to 30 April 2021.[2]
[2] Appellant’s statement, [18].
The appellant advised that he did not subcontract the work he was engaged to perform for the respondent. He said that the respondent supplied all the materials that he required, which the appellant would pick up on the way to the job. He said, however, that he often supplied his own equipment, such as a ladder, harness, pressure cleaner, a tile cutter and spray paint machine. He advised that he was not supplied a vehicle, so he drove his own vehicle to the various sites. He said that when he arrived at the worksite, he would introduce himself to the customer as working for the respondent. The appellant added that on the worksite, he was generally left to do the work by himself without any supervision or further instruction, and if there was a customer complaint, it would be dealt with by the respondent.
The appellant believed that none of the workers engaged by the respondent (including himself) were required to wear a uniform. He pointed out that his name was nominated on the respondent’s website as one of the respondent’s team and provided a print-out from the website taken on 26 November 2021.
The appellant gave details of the accident and the severe permanent injuries he suffered as a consequence of the incident.
The appellant provided copies of his bank statements for the period from 24 April 2020 to 31 May 2021.[3] The schedule of deposits from various bodies listed in the appellant’s statement correlated with the moneys paid into that bank account.
[3] ARD, pp 8–27.
The appellant also provided his taxation returns for the financial years ending 30 June 2019 and 30 June 2020.[4] The 2019 return disclosed a gross business income of $45,250, total expenses of $19,243, which included costs, purchases, motor vehicle expenses and repairs and maintenance, leaving a taxable net business income of $26,007 for that year. The 2020 return showed a gross business income of $41,650 and total expenses of $13,678 resulting in a taxable income of $27,972.
[4] ARD, pp 71–94.
The respondent’s evidence
The respondent requested further particulars about the appellant’s working arrangements and the requests and the appellant’s responses were tendered in evidence by the respondent. The appellant’s legal representatives responded to the requests for further particulars on 7 July 2021.[5] The responses were consistent with the information provided in the appellant’s statement. The respondent adduced no other evidence.
[5] Reply to Application to Resolve a Dispute (reply), pp 9–13.
The appellant’s further evidence
The appellant’s legal representatives also responded to queries made by Illawarra Insurance Adjusters Pty Ltd.[6] The legal representatives confirmed the information provided in the appellant’s statement. In addition, the appellant’s legal representatives advised that the appellant would choose his hours of work but would work within the commencement and finishing time frame set by the respondent. He would also choose when he took breaks and the manner in which he performed the work. Further, the appellant said that he had worked on the site where the injury occurred one week prior to the injury, then had a break before returning to the job.
[6] Reply, pp 14–26.
THE MEMBER’S REASONS
The Member identified the issue for determination, which was the single issue of whether the appellant was a worker within the meaning of the 1998 Act. He noted that the facts as set out in the appellant’s statement were not challenged by the respondent. He accurately summarised those facts, observing that the appellant was engaged by a number of different entities, generally on a project-by-project basis. He also observed that the appellant was nominated on the respondent’s website as a member of the respondent’s business team.
The Member summarised the submissions of both parties. He noted that the appellant asserted that he was a worker at the time he suffered injury, relying on Dickinson v Chapman;[7] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (Number 3);[8] Malivanek v Ring Group Pty Ltd;[9] Jafarian v Wildfire Interiors Pty Ltd,[10] and Hollis v Vabu Pty Ltd.[11]
[7] [2022] NSWCA 2.
[8] [2011] FCA 366 (On Call Interpreters).
[9] [2014] NSWWCCPD 4 (Malivanek).
[10] [2021] NSWPICPD 24 (Jafarian).
[11] [2001] HCA 44 (Hollis).
The Member considered that an analysis of the relevant indicia identified in the factual evidence was required. He noted that the appellant submitted that the contract was a casual employment contract confined to the performance of the work agreed between the parties at the time of the injury. He further noted the respondent’s submission that the evidence should be considered as a whole, and that the evidence was unambiguous that the appellant was an independent contractor at the time of the injury.
The Member referred to the principles discussed in Jafarian, in which Parker SC ADP dealt with the same argument put by the appellant in that case and determined that the approach taken by the relevant Member of considering the totality of the evidence was the correct approach. The Member further referred to Bromberg J’s judgment in On Call Interpreters in which his Honour observed that, as a practical matter, if the person:
(a) worked as an entrepreneur in his own business, performing the work in and for the person’s business, and
(b) was representing that business and not the business receiving the work, in the performance of that particular work,
then the person was likely to be an independent contractor.
The Member turned to the question of identifying what was the “particular work”, as referred to by Bromberg J in On Call Interpreters. The Member briefly recited the relevant facts in On Call Interpreters and observed that the issue in On Call Interpreters related to the nature of the particular work performed by the interpreters over the entire period of their engagement with On Call Interpreters. He said that this fact “involved the emphasis on the entrepreneurial and business ownership aspect of the questions posed by Bromberg J.”[12] He considered that the respondent’s submissions, which alluded to the distinction, were well made. He further considered that, on that basis, the appellant’s submission that the particular contract was limited to the actual contract being performed at the time of injury fell away.
[12] Askew v Donald Noel Spence t/as Don's Guttering and Roofing Services [2022] NSWPIC 200 (reasons), [71].
The Member turned to the question of whether the appellant was an entrepreneur, owning and operating his own business. He observed that the appellant had been self-employed since 1986 or 1987, had engaged with different entities, generally one project at a time. He noted that the bank statements showed that the appellant had undertaken work for the respondent on more than 20 occasions and that the appellant had undertaken work for numerous other clients in addition to that performed for the respondent. The Member referred to the appellant’s evidence that he displayed advertising for his business on his vehicle, he held a contractor’s licence in respect of roof cleaning, painting and repairing, and had an ABN. The Member also referred to the appellant’s taxation returns, in which the appellant described his income as business income and claimed business expenses. He pointed out that those facts were accepted.
The Member concluded that the facts demonstrated that the appellant was promoting his own business, and it could be inferred that this was intended to increase his reputation in the industry, which was demonstrated by the bank statements. The Member considered that, applying On Call Interpreters, whether the appellant worked as a representative of his own business or the respondent’s business should be assessed in the context of the appellant owning and operating his own business since 1986 or 1987. He concluded that, on the basis of his reasons already expressed, the appellant was clearly working as a representative of his own business.
The Member noted that the appellant’s submissions were that On Call Interpreters supported the notion that the contract under consideration was just one of the many contracts the appellant undertook since the commencement of the roofing work business. The Member said that, when looking at the entirety of the work performed, the appellant was working as a representative of his business and the goodwill was “self-evident.” The Member added that the bank records disclosed that, as the appellant worked, his business succeeded and much of the work came the appellant’s way by “word-of-mouth”, rather than advertising, so that:
“any inference suggested by the particular contract must be seen from the broader perspective that the performance of [the appellant’s] roofing work was always for the promotion of his own business.”[13]
[13] Reasons, [84].
The Member proceeded to address the indicia relied upon by the appellant to establish that the appellant was a worker, in the event that he was wrong in concluding that the appellant was at all times promoting his own business. The Member referred to the appellant’s submission that, in the month leading up to the injury, the appellant had only performed work for the respondent. The Member rejected that submission, saying that this was merely happenstance, rather than an indicator of exclusivity or control. The Member observed that the appellant had commenced work at the premises the week before he was injured and returned after a break, which did not constitute evidence that the appellant was under the control and direction of the respondent.
The Member referred to the appellant’s submission that each contract formed between the appellant and respondent was an indicator that the appellant was not operating his own business. The Member considered the appellant’s submissions about his evidence recorded in his statement as to how the engagement with the respondent was arranged and concluded that that evidence was not sufficient. The Member agreed with the respondent’s submission that every contract has a commencement and finish date regardless of whether it was a contract of employment or otherwise. He observed that the rate of pay was for a set fee payable at the completion of the work, which was more consistent with the work of an independent contractor and the appellant had the option of refusing the work, which again was more consistent with the appellant operating his own business.
The Member referred to the evidence that the appellant:
(a) would not attend the work site prior to commencing the job;
(b) would not independently speak with the customer about the nature and scope of the work, and
(c) was not invited to quote or provide a fee estimate for the work.
The Member observed that when those facts were considered in isolation, they may suggest that the appellant was not operating a business and were consistent with the appellant being an employee, but the other “aspects of the manner in which the contract was performed [did not corroborate] that impression.”[14]
[14] Reasons, [90].
The Member considered that the fact that the appellant would not have seen the actual work required prior to the starting day was a “neutral indicator,” as was the fact that the appellant would introduce himself as working for the respondent. The Member agreed with the respondent’s submission that it would be unlikely that the appellant would seek to explain the nature of his contractual relationship with the respondent.
The Member turned to the evidence as to the appellant’s payment arrangements, including that the respondent did not deduct taxation or pay superannuation, holiday or other leave and that there was no hourly rate or overtime. The Member considered that those matters, as well as the appellant being paid a lump sum at the end of the contract, were more consistent with the appellant being a sub-contractor who owned and operated his own business. The Member noted that the taxation returns were consistent with that conclusion. He rejected the appellant’s submission that the payment arrangements for the particular work performed were irrelevant.
The Member considered the appellant’s submission that the work was repetitive, which the appellant submitted was an indication that the appellant was an employee. The Member referred to Bromberg J’s observations in On Call Interpreters and said that Bromberg J had actually regarded continuous and repetitive work as indicative of work performed by an independent contractor, but in any event, there was no evidence that the work done on the particular contract was repetitive. The Member formed the view that the conduct of the appellant’s business had involved repetition and continuity over the entire period the business was in operation, which was a strong indicator that the appellant was an independent contractor.
The Member said that the appellant’s submission that he did not advertise his business was inconsistent with the signage on the appellant’s vehicle. He further referred to the appellant’s submission that the signage on the vehicle was irrelevant to this particular contract. He observed that the appellant claimed his vehicle expenses for taxation purposes and thus it was part of the service that the appellant provided in operating his own business, as was the provision of the equipment the appellant provided. The Member thought that the specialist equipment provided by the appellant was more likely to have been the type of equipment provided by an employer to an employee if there was an employment relationship. The Member also considered that the provision of paint and other materials was not an indicator that the appellant and respondent were in an employment relationship whereby there was control over the appellant. He said that the arrangement was probably a matter of convenience.
The Member observed that the only elements of control were the start and finish dates, there were no set hours of work, no supervision and the appellant was not prohibited from doing other work. He concluded that there was no control or direction exercised by the respondent which would suggest that the appellant was an employee.
The Member referred to the evidence that the appellant was portrayed on the respondent’s website. The Member concluded that that was not evidence that the appellant was the respondent’s employee. He noted that at best it could be considered that the appellant was part of the respondent’s team, as was the respondent and the respondent’s son, and was more likely consistent with a list of the trades people who would help to perform the work the respondent sourced. He added that the appellant’s appearance on the website did not suggest more than that the appellant was a sub-contractor for the respondent.
The Certificate of Determination issued on 6 May 2022 records:
“The Commission finds:
1. The applicant was not a worker pursuant to s 4 of the Workplace Injury Management and Workers Compensation Act 1998.
The Commission determines:
1. There is an award for the respondent.”
GROUNDS OF APPEAL
The appellant brings four grounds of appeal, asserting that the Member:
(a) Ground 1: erred in law by misapplying the legal test and not considering whether the relationship between the appellant and the respondent operative at the time of the appellant’s injury was one of service;
(b) Ground 2: erred in law by failing to engage with the submissions made on behalf of the appellant;
(c) Ground 3: erred in fact by drawing inferences that were not available on the evidence, and
(d) Ground 4: erred in law and/or fact by failing to provide adequate reasons for his conclusions.
SUBMISSIONS
As to Ground 1
The appellant’s submissions
The appellant refers to its submissions made about Bromberg J’s observations in On Call Interpreters at [208], summarised by me at [24] above and to the Member’s observations about the “particular work” performed. The appellant points to the Member’s conclusions about the appellant’s submission that:
(a) the phrase meant the actual work performed at the time of the injury was not borne out by the facts considered by Bromberg J and thus fell away, and
(b) the term related to the actual contract being performed at the time of the appellant’s injury could not be sustained.
The appellant submits that the Member’s consideration of the “particular work” was far more expansive than the appellant’s submissions, which affected the manner in which he dealt with the indicia going to whether the appellant was an employee. The appellant submits that the Member erred in law by misapplying the relevant test and by not having regard to the relevant contractual relationship, when the Member concluded that:
(a) when considering whether the appellant was a representative of his own business, the assessment must be made in the context of the appellant having operated his own business since 1986 or 1987, and
(b) the appellant was clearly performing the work as a representative of his own business.
The appellant refers to Marinic v RPC Interiors Management Pty Ltd,[15] in which the worker operated his own business as well as working for the respondent. The appellant says that, in that case, the worker had agreements to work with other businesses, which was consistent with how the worker carried on the business over many years and did not constantly work for the respondent. The appellant points to the conclusion arrived at by the then Arbitrator that Mr Marinic was an independent contractor, which Snell DP found on appeal was wrong. The appellant quotes from the decision of Snell DP, in which the Deputy President observed that:
(a) there was a distinction between the contract with the respondent and the arrangements made with other entities;
(b) the issue to be determined was whether the relationship with the respondent which was operative at the time of death was one of master and servant, and
(c) the Arbitrator asked himself the wrong question by failing to properly consider the conditions of the contract with respondent.
[15] [2019] NSWWCCPD 11 (Marinic).
The appellant repeats his submission that the relevant enquiry was an evaluation of the relationship which existed between the parties at the time of the injury. The appellant asserts that the Member did not have regard to the relevant contract, took into account irrelevant relationships, failed to have regard to the indicia, had regard to the wrong issue and asked himself the wrong question.
The appellant further asserts that the Member failed to have regard to the observations of Bromberg J in On Call Interpreters that a consideration of the work the person was performing was required, together with a consideration of whether, when performing the work, the person was doing that work in his capacity as an entrepreneur or representative of the business. The appellant says that it was not open to the Member to expand the enquiry into one of involving the particular work over the entirety of the person’s employment. The appellant submits that the facts in On Call Interpreters do not detract from the assertion that the enquiry in this case is limited to the specific work performed by the appellant with the respondent (the relevant employer).
The appellant refers to Jafarian, in which Parker SC ADP confirmed the Senior Member’s decision that the arrangement between the appellant and parties other than the respondent were irrelevant. The appellant says that the Member in this matter was referred to the first instance decision in Jafarian and, when both decisions are read together, it is apparent that the correct enquiry is in respect of the relationship that existed between the person and the putative employer, particularly the relationship that existed at the time of the injury.
The appellant submits that the Member considered the indicia from the perspective of the entirety of the appellant’s business dealings, instead of applying the indicia to the relationship the appellant had with the respondent. The appellant contends that the determination of the matter is affected by this error.
The respondent’s submissions
The respondent asserts that the first appeal ground lacks clarity, but “appears to be that the Member took too wide a view of the work relationship between the appellant and the respondent, which the appellant says should have been confined to the specific work he was performing at the date and time of the injury.”[16] The respondent submits that this approach, which was a submission made at arbitration, cannot be accepted.
[16] Respondent’s submissions, [8].
The respondent contends that the Member’s reasons demonstrate that the Member did not apply the test set out in On Call Interpreters to the whole of the appellant’s work history. The respondent submits that the Member rejected the appellant’s argument that a consideration of the “particular work” should be limited to the specific activity performed by the appellant at the time of the injury. The respondent says that the nature of the arrangements between the appellant and the respondent had been in place since 2018 or 2019, which the Member acknowledged. The respondent submits that, when the Member’s reasons are read in that context, the Member’s conclusion in respect of the particular work was consistent with the test set out by Bromberg J in On Call Interpreters and discloses no error. The respondent submits that the Member’s conclusion is consistent with the reasoning of Parker SC ADP in Jafarian, an authority relied on by the appellant and referred to by the Member.
The respondent asserts that the appellant’s reliance on Marinic is misplaced. The respondent submits that the observations made by Snell DP in Marinic do not support the appellant’s submission that the enquiry is restricted to the arrangements in respect of work being performed at the time of the injury. The respondent asserts that what is required is the identification of the relevant circumstances, which are the circumstances in which the relationship between the parties was formed which were operative at the time of the injury.
The respondent contends that the error identified in Marinic was completely different to the approach taken by the Member in this case and that the appellant misunderstood the Member’s finding. The appellant asserts that the Member did not have regard to the whole of the appellant’s business dealings or take into account dealings other than those with the respondent. The respondent contends that the appellant has failed to demonstrate error on the part of the Member and this ground of appeal should be dismissed.
As to Ground 2
The appellant’s submissions
The appellant refers to the High Court authority of Dranichnikov v Minister for Immigration and Multicultural Affairs,[17] in which Gummow and Callinan JJ observed that the failure of a decision-maker to respond to a clearly articulated argument based on established facts amounts to at least a failure to afford the party natural justice. The appellant also refers to McCallum JA’s observations (with McFarlan and Meagher JJA agreeing) in Wang v State of New South Wales[18] that such a failure was a constructive failure to exercise jurisdiction, and that it is necessary for the decision-maker to engage with “the nature and materiality of the argument in the context of the proceedings.”[19]
[17] [2003] HCA 26, [24].
[18] [2019] NSWCA 263 (Wang).
[19] Wang, [63].
The appellant asserts that the Member committed an error of law by failing to give any, or proper, regard to the submissions made by the appellant at arbitration. The appellant contends that, in reaching the conclusion that the Member came to in the manner that he did in respect of what constituted the particular work, the Member concluded that the appellant was an entrepreneur. The appellant asserts that the Member did not engage with the appellant’s submissions in relation to the first limb referred to by Bromberg J in On Call Interpreters, that is, the particular work performed by the appellant.
The appellant submits that the Member also failed to engage with his submissions in relation to the application of the first instance decision and the appeal decision in Jafarian. The appellant contends that, if the Member had engaged with his submissions in relation to the application of Jafarian, it would have been apparent to the Member that the correct interpretation of the particular work would have been, in this case, the arrangement between the appellant and the respondent at the time of his injury.
The appellant further submits that the Member failed to engage with his submission that the working relationship with the respondent was similar to that of a casual employee. The appellant says that, while the Member noted that submission, he did not refer to the submissions in his reasoning process.
The appellant refers to the Member’s reasons at [92]–[93], in which the Member evaluated the evidence in relation to the non-payment by the respondent of taxation or superannuation, holiday pay or leave entitlements, the payment was not at an hourly rate, there was no provision for overtime and the system for payment was a lump sum. The appellant refers to the Member’s conclusion that those matters were consistent with the common arrangements with a sub-contractor and submits that had the Member considered those matters with the appropriate “circumspection”, he would have noted that those matters were also a common feature of most casual contracts of service.
The appellant says that the Member noted his submission that he did not advertise his work, which was an indicator that the appellant did not operate his own business and that the signage on the appellant’s vehicle was irrelevant to the particular work the appellant did for the respondent. The appellant points out that the Member dealt with this submission under the subheading of whether the appellant was “performing the work as a representative of his own business or of the respondent?”
The appellant submits that the Member’s observation that the appellant’s submission turned a blind eye to the signage on the appellant’s work vehicle indicates that the Member failed to engage with the appellant’s arguments because:
(a) the submission about the signage was made in relation to the first element of the test put forward by Bromberg J, and not the second element;
(b) the appellant did not submit that he did not advertise his business, and
(c) the appellant did not deny the signage on the vehicle but explained the relevance of the signage to the context of the dispute to be determined.
The appellant refers to the Member’s reasons in respect of the equipment the appellant provided, which the Member considered to be more akin to the type of equipment provided by the owner of a business rather than an employee. The appellant asserts that the Member failed to give regard to his submission that the equipment was the type of equipment that any tradesman would use, the equipment was to be used to apply the materials provided by the respondent and would enable him to perform his employment duties.
The appellant further asserts that the Member did not engage with his submissions that the appellant could not delegate the work he was required to perform. The appellant cites the decision of Roche DP in Malivanek to say that, in assessing whether a worker is a servant or independent contractor, the power to delegate is an important factor.
The appellant submits that the above submissions were relevant to the issue to be determined and were necessary to the Member’s consideration and thus the failure to engage with those submissions has affected the Member’s determination.
The respondent’s submissions
The respondent submits that the submissions made by the appellant in respect of this ground of appeal fail to demonstrate how the Member erred and how, on the basis of the evidence, the Member ought to have arrived at a different conclusion. The respondent submits that the appellant is attempting to have the matter re-heard, which is not within the ambit of s 352(5) of the 1998 Act.
The respondent asserts that the Member provided a detailed analysis of the evidence in relation to the test set out by Bromberg J in On Call Interpreters and addressed the appellant’s submissions in his reasons at [82] and thereafter. The respondent describes the aspects of the Member’s reasons relied on by the appellant as “minor.”
The respondent cites a passage from the decision of Roche DP in Singh v FTW Products Pty Limited,[20] in which the Deputy President observed that it is not for a Presidential Member to comb through the Member’s findings in search of error.
[20] [2007] NSWWCCPD 230, [63].
The respondent submits that no error is disclosed in the Member’s reasons and this ground of appeal should be rejected.
As to Ground 3
The appellant’s submissions
The appellant refers to Bradshaw v McEwans Pty Ltd,[21] Nguyen v Cosmopolitan Homes[22] and Seltsam Pty Ltd v McGuiness[23] as authorities relevant to the drawing of inferences and submits that the Member drew a number of inferences from the primary facts that were not reasonable which ultimately led to the Member drawing the wrong conclusions.
[21] (1951) 217 ALR 1 (Bradshaw), [5].
[22] [2008] NSWCA 246 (Nguyen), [54].
[23] [2000] NSWCA 29 (Seltsam).
The appellant submits that, when ascertaining whether the appellant was an entrepreneur at [81] of his reasons, it was not clear what facts the Member was referring to when he determined that the facts he had recited demonstrated that the appellant was promoting his own business in order to increase his reputation. The appellant refers to the various facts noted by the Member leading to that conclusion and submits that that evidence did not provide a reasonable basis for the conclusions reached by the Member. The appellant says that even if the bank statements were taken into account, the whole of the evidence was not sufficient to support the Member’s conclusions. The appellant asserts that the Member failed to disclose how the evidence led him to draw the inferences that he drew.
The appellant refers to the Member’s observation that the appellant relied on word of mouth to promote his business, so that the “inference suggested by the particular contract must be seen from the broader perspective that the performance of [the appellant’s] roofing work was always for the promotion of his own business.”[24]
[24] Reasons, [84].
The appellant asserts that the inferences drawn by the Member from the evidence were not reasonably open to him. The appellant says that the unchallenged evidence of the appellant was not that the roofing work was always performed for the promotion of his own business. The appellant points to his evidence that he introduced himself to the customer as working for the respondent and the respondent would usually contact the customer to advise the customer that the appellant would attend the following day. The appellant adds that the respondent’s website identified the appellant as part of the respondent’s team. The appellant reiterates that it was not open to the Member to draw the inferences that he drew and asserts that the evidence indicates that the Member ought to have found to the contrary.
The appellant further refers to the Member’s consideration that the supply of materials, supplied and paid for by the respondent, did not go to show that the appellant was not operating his own business because it was likely a matter of convenience between the parties. The appellant again asserts that this inference was not open to the Member. The appellant says that there was no evidence that the reason for the arrangement that the respondent would pay for the materials without seeking reimbursement was a matter of convenience. The appellant reiterates that the inference was not available, particularly because the unchallenged evidence established that the work to be performed was arranged solely by the respondent and the appellant took no part in the arrangement. The appellant asserts that, in circumstances where he had no role to play in the arrangement, it would not make sense for the appellant to purchase the materials.
The appellant points to the Member’s conclusion that the appearance of the appellant on the respondent’s website was a “neutral’ indicator”. He submits that it was not reasonable, or supported by the evidence, for the Member to conclude that the inclusion of the respondent and his son made it more likely that the respondent was listing the tradesmen who performed the work, and that the appearance of the appellant was suggestive of the respondent being a sub-contractor. The appellant asserts that those conclusions were inconsistent with the fact that the work performed by the appellant was represented as an activity performed by the respondent’s business. The appellant adds that the Member failed to disclose the evidentiary foundation for his conclusions.
The appellant concludes that the Member’s consideration of the relevant indicia was affected by those errors, affected how the Member viewed the factual circumstances and thus resulted in the dispute having miscarried.
The respondent’s submissions
The respondent maintains that the substance of the appellant’s complaints disclose that the ground is clearly an attempt to have a re-hearing at the Presidential level. The respondent points to the appellant’s criticism of the Member’s finding that the appellant was promoting his own business and did so to increase his reputation as a reliable roofing contractor. The respondent contends that the various factual matters that formed the basis of the finding were those discussed at [74]–[80] of the Member’s reasons.
The respondent then observes that the appellant acknowledged the factual basis of the finding when he submitted that those reasons did not provide a proper basis for the Member to have arrived at the conclusions he found. The respondent adds that the appellant has failed to demonstrate that the Member’s conclusion that the appellant was performing the work as a representative of his own business was wrong. The respondent says that the appellant’s argument is simply that the Member should have reached a different conclusion.
The respondent refers to the appellant’s criticism of the Member’s conclusions which were based on the fact that the respondent provided the materials at his own cost and the appearance of the appellant on the respondent’s website. The respondent submits that On Call Interpreters as well as Hollis establish that the determination of the question of whether a person is working in his own business involves consideration of several indicia, and that was the task undertaken by the Member in his consideration of the evidence.
The respondent asserts that it is not open to the appellant to criticise the Member for reaching a conclusion that was different to the case put forward by the appellant at the arbitration. The respondent points to the observation made by the appellant that, as established in Raulston v Toll Pty Ltd,[25] a preference by the Presidential Member for a different inference to be drawn is not sufficient to disturb the Member’s conclusion. The respondent submits that it must be shown that the decision is wrong. The respondent submits that the appellant has failed to establish that the Member was wrong, and Ground 3 of the appeal should be dismissed.
As to Ground 4
[25] [2011] NSWWCCPD 25.
The appellant’s submissions
The appellant relies on his submissions made in respect of Ground 2 and submits that the failure by the Member to deal with appellant’s submissions also constitutes error of the kind referred to in Waterways Authority v Fitzgibbon.[26] That is, that the Member failed to examine all of the relevant material available in the dispute before him.
[26] [2005] HCA 57, [130] (Fitzgibbon).
The respondent’s submissions
The respondent submits that the precise nature of the appellant’s complaint is unclear but submits that there is no proper basis put forward by the appellant for a finding that the Member had erred. The respondent says that this ground of appeal should be dismissed.
THE RELIEF SOUGHT
The appellant submits that the errors identified, either individually or as a whole, have affected the outcome. Accordingly, the Member’s decision should be revoked, and the matter remitted to a different Member for re-determination.
The respondent submits that no error is demonstrated in respect of the Member’s findings and the appeal should be dismissed.
CONSIDERATION
This matter proceeded to arbitration on 25 March 2022 and the Member issued his decision on 6 May 2022. On 9 February 2022, the High Court handed down two decisions in relation to the approach to be taken in assessing whether a contract to perform work constitutes a contract of service or a contract for services.[27] Those authorities were not the subject of submissions at the arbitration and the Member did not refer to them in his decision. The parties were therefore given the opportunity to make submissions in the appeal as to the application of those authorities to the issue in dispute in this matter.
[27] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting); ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek).
The appellant submits that the authorities did not have direct application to this matter because the contracts under consideration in both authorities involved a written contract between the parties and in this matter, there was no written contract. The appellant submits that the common law principles continue to apply in determining whether or not the appellant was an employee where the contract is an oral contract.
The respondent agrees that the decisions do not have direct application to this matter because, in this case, there was no written contract between the appellant and the respondent. The respondent submits that the Member appropriately analysed the effect of the oral contract in its performance and arrived at the correct conclusion.
I do not agree with the submissions of the parties that the High Court decisions have no direct application to this case. The relevant principles established by those authorities were helpfully summarised by Wigney J in JMC Pty Limited v Commissioner of Taxation[28] as follows:
[28] [2022] FCA 750 (JMC).
“The fundamental principles established by the judgments of the majority of the justices in Personnel Contracting and Jamsek may be shortly summarised as follows.
First, where the rights and duties of the parties are comprehensively committed to a written contract, the legal rights and obligations established by the contract are decisive of the character of the relationship provided that the validity of the contract has not been challenged as a sham, or that the terms of the contract have not been varied, waived or are subject to an estoppel: Personnel Contracting at [43], [44], [47], [59] (Kiefel CJ, Keane and Edelman JJ), [172] (Gordon J, Steward J relevantly agreeing at [203]). The task is to construe and characterise the contract made between the parties at the time it was entered into: Personnel Contracting at [174] (Gordon J).
Second, in order to ascertain the relevant legal rights and obligations, the contract of employment must be construed in accordance with the established principles of contractual interpretation: Personnel Contracting at [60] (Kiefel CJ, Keane and Edelman JJ), [124] (Gageler and Gleeson JJ), [173] (Gordon J). In that respect, regard may be had to the circumstances surrounding the making of the contract, as well as to events and circumstances external to the contract which are objective, known to the parties at the time of contracting and which assist in identifying the purpose or object of the contract: Personnel Contracting at [174]-[175] (Gordon J); Jamsek at [61] (Kiefel CJ, Keane and Edelman JJ), referring to Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352. The nature of the specific job that the putative employee applied for and the nature and extent of any tools or equipment they have to supply for that job may also be relevant: Personnel Contracting at [175] (Gordon J). It is, however, generally not legitimate to use in aid of the construction of a contract anything which the parties said or did after it was made: Personnel Contracting at [176] (Gordon J).
Third, and flowing from the first two principles, the characterisation of the relationship between the parties is not affected by circumstances, facts or occurrences arising between the parties that have no bearing on their legal rights: Personnel Contracting at [44] (Kiefel CJ, Keane and Edelman JJ), [173]-[178] (Gordon J); Jamsek at [109] (Gordon and Steward JJ). A ‘wide-ranging review of the entire history of the parties’ dealings’ is neither necessary nor appropriate: Personnel Contracting at [59] (Kiefel CJ, Keane and Edelman JJ); see also [185]-[189] (Gordon J). For a ‘matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties’: Personnel Contracting at [61] (Kiefel CJ, Keane and Edelman JJ) (emphasis added).
It follows that the fact that the parties’ subsequent conduct may not have precisely aligned with their contractual rights and obligations, or the fact that a particular contractual right may have never been exercised or utilised, will generally be irrelevant when it comes to characterising the relationship. That is so unless the manner in which the parties conducted themselves after entering into the contract was such as to establish that the contract was a sham, or that the contract had been varied, or that certain rights under the contract were subject to an estoppel.
Fourth, the contractual provisions that may be relevant in determining the nature of the relationship include, but are not limited to, those that deal with the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax, the delegation of work and the right to exercise direction and control: Personnel Contracting at [113] (Gageler and Gleeson JJ); [174] (Gordon J), referring to Brodribb at 24 (Mason J); see also 36-37 (Wilson and Dawson JJ).
...
Fifth, the characterisation of the relationship as one of service or employment involving an employer and employee, as opposed to a relationship involving an independent contractor providing services to a principal, often hinges on two considerations. The first consideration is the extent to which the putative employer has the right to control how, where and when the putative employee performs the work: Personnel Contracting at [73]-[74] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); see also Brodribb at 24 (Mason J) and 36-37 (Wilson and Dawson JJ). The second is the extent to which the putative employee can be seen to work in his or her own business, as distinct from the business of the putative employer – the so-called ‘own business/employer’s business’ dichotomy: Personnel Contracting at [36]-[39] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); cf [180]-[183] (Gordon J). Neither of those considerations are determinative and both involve questions of degree.
...
Sixth, a ‘label’ which the parties may have chosen to describe their relationship is not determinative of the nature of the relationship and will rarely assist the court in characterising the relationship by reference to the contractual rights and duties of the parties: Personnel Contracting at [63]-[66] (Kiefel CJ, Keane and Edelman JJ); [127] (Gageler and Gleeson JJ); [184] (Gordon J). The parties’ ‘legitimate freedom to agree upon the rights and duties which constitute their relationship’ does not ‘extend to attaching a ‘label’ to describe their relationship which is inconsistent with the rights and duties otherwise set forth’ – to permit otherwise would elevate the freedom to ‘a power to alter the operation of statute law to suit ... the interests of the party with the greater bargaining power’: Personnel Contracting at [58] (Kiefel CJ, Keane and Edelman JJ).
The characterisation of a relationship as being either one of employer and employee, or one involving the engagement of an independent contractor, is ultimately an evaluative judgment that takes into account the totality of the parties’ contractual rights and obligations. The exercise may not necessarily be straightforward because, in some cases at least, the parties’ contractual rights and obligations may point in different directions. The evaluative exercise also should not be approached on the basis that there is some checklist against which ticks and crosses may be placed so as to produce the right answer. Some degree of uncertainty is unavoidable, particularly in the case of many modern-day work or service contracts.”[29]
[29] JMC, [16]–[27].
I accept that the above observations are a fair summary of the principles enunciated in Personnel Contracting and Jamsek. The above observations were considered by Goodman J of the Federal Court in Secretary, Attorney General’s Department v O’Dwyer,[30] in which the contract was an oral contract. His Honour observed:
“In the present case, the Tribunal found that there was no written contract, but did find that there was an oral contract. The Tribunal then did not take the approach set out in Personnel Contracting and Jamsek of considering whether the terms of that contract gave rise to an employment relationship. Instead, the Tribunal applied the ‘multi-factorial approach’ that was disapproved in Personnel Contracting and Jamsek. This is seen in particular in the Tribunal’s adoption of the multifactorial approach at paragraphs [16] to [18] of the Reasons and its subsequent application of that approach, which led to the conclusion expressed at paragraph [36] of the Reasons that: ‘I am not satisfied that the manner in which Bryan performed the duties of his office marked him as an employee ...’
Thus, the appeal turns on whether the approach to be taken to determining whether an employment relationship has been created as explained in Personnel Contracting and Jamsek is limited to written contracts or extends to oral contracts (as in the present case) or to contracts which are partly written and partly oral. In my view, the approach taken in Personnel Contracting and Jamsek also applies where there is no wholly written contract, for the following reasons.
First, the foundational reasoning of the plurality in each of Personnel Contracting and Jamsek (Kiefel CJ, Keane and Edelman JJ) is that the focus of the inquiry is 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).
Secondly, in the context of that foundational reasoning, there is no reason to distinguish between wholly written contracts and other contracts. This is so despite there being greater scope in the case of oral contracts for subsequent events to be considered as part of the process of identification of the terms agreed between the parties (see Personnel Contracting at 130-131 [177], 132-133 [183], 134-135 [188] and 135 [190] per Gordon J).
Thirdly, in Personnel Contracting at 108 [57], the plurality noted that Hollis involved a contract that was partly oral and partly in writing and approved an observation that Hollis ‘does not alter or even challenge the orthodox principle that courts are not concerned with what has ‘actually occurred’ in a relationship, but rather with ‘the obligations by which the parties [are] bound’. See also Gordon J at 135 [190]. Further, at 108 [59], the plurality stated that a reason why a wide-ranging review of the entire history of the parties’ dealings is unnecessary and inappropriate is that the task of the court is to enforce the parties’ rights and obligations, not to form a view as to what a fair adjustment of those rights might require. These observations apply with equal force to contracts which are not wholly in writing.
Thus, the fundamental task – the ascertainment and construction of the terms of the legal rights and obligations of the parties, rather than an assessment of the history of the relationship between the parties throughout the life of the contract, including the manner of performance of the contract – remains the same regardless of the form of the contract in question.”[31]
[30] [2022] FCA 1183 (O’Dwyer).
[31] O’Dwyer, [28]–[33].
It is apparent, therefore, that the High Court’s observations in Personnel Contracting and Jamsek should also be applicable, where relevant, to the construction of oral contracts relating to the question of whether the contract is an employment contract.
Ground 1: The Member erred in law by misapplying the legal test and not considering whether the relationship between the appellant and the respondent operative at the time of the appellant’s injury was one of service
The legal test referred to by the appellant is that observed by Bromberg J in On Call Interpreters. His Honour said:
“Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a ‘practical matter’:
(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”[32]
[32] On Call Interpreters, [208].
The appellant says that the Member misapplied the test when he rejected the appellant’s submission that the “particular work” meant the actual work performed by the appellant when he was injured and, in the context of having conducted his own business since 1986 or 1987, the appellant was performing the work as a representative of his own business.
The appellant points to Marinic as being factually similar to this matter. In that decision, Snell DP found that the contract with the respondent should be distinguished from the arrangements the appellant made with other entities. The appellant further refers to Jafarian, in which Parker SC ADP confirmed the Senior Member’s decision that the arrangement between the appellant and parties other than the respondent were irrelevant.
In this case, the manner in which the appellant conducted his business with others was different to the arrangement he had with the respondent. The arrangements with others came about by direct contact between the appellant and the client, whereas in the arrangement with the respondent, the appellant had no direct contact with the client in respect of the negotiations to perform the work for the respondent. The specific arrangements between the appellant and the respondent were thus distinctly different and called for an evaluation of the relationship that existed between them, not that which related to the appellant’s long term business practices. The “particular work” was therefore the work performed under the arrangement with the respondent.
However, the Member proceeded to determine the matter in the alternative by applying the relevant indicia to the terms of the arrangement between the appellant and the respondent in respect of that particular work.[33] Section 352(5) of the 1998 Act provides that an appeal is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. It is thus necessary for any error identified to have affected the Member’s ultimate conclusion.[34] If the Member was wrong to reject the appellant’s submission that the “particular work” was the work performed by the appellant for the respondent, in the context of the Member having determined the issue on an alternate basis, it cannot be said that the error has infected his ultimate determination.
[33] Reasons, [85]–[99].
[34] Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45.
The appellant submits that the Member considered the indicia from the perspective of the entirety of the appellant’s business dealings, instead of applying the indicia to the relationship the appellant had with the respondent. This complaint is not made out. It is clear that in his consideration (in the alternative) of the nature of the arrangement between the appellant and the respondent, the Member applied the indicia to the appellant’s evidence as to the arrangements between the respondent and him, and not to the evidence about the work he performed directly with clients obtained by him.
It follows that this ground of appeal fails.
Ground 2: The Member erred in law by failing to engage with the submissions made on behalf of the appellant
The appellant asserts that the Member failed to give any, or any proper, consideration to his submissions at arbitration when he determined that the appellant was an entrepreneur in his own business. The appellant points to his submissions that:
(a) the “particular work” to be considered was the work performed by the appellant for the respondent;
(b) the facts in this case are similar to Jafarian;
(c) the engagement of the appellant was consistent with that of a casual employee;
(d) the appellant did not advertise his work and the signage on his car was irrelevant to the engagement with the respondent;
(e) the equipment provided by the appellant was the type of equipment any tradesman would use in order to enable him to perform his duties, and
(f) the appellant did not have the power to delegate the work.
The appellant asserts that the Member’s failure to engage with those submissions has resulted in error in his ultimate determination.
The Member provided a detailed summary of the appellant’s submissions at [19]–[47] and [54]–[60]. The Member acknowledged the appellant’s submission on more than one occasion that the contract between the appellant and respondent was one of casual employment, which was confined to the actual work the appellant did for the respondent, so that the wider circumstances were not relevant.[35] The Member also discussed the appellant’s reliance on, and the application of Jafarian.[36]
[35] Reasons, [63]
[36] Reasons, [65]–[67].
In his reasons that followed, the Member again (correctly) recorded what he understood to be the submissions from both parties as to what he described as “two different approaches to the manner in which the nature of the contract should be determined.”[37] The Member noted that the same issue was raised in Jafarian, and that the appellant in that case had been found to be an independent contractor. The Member quoted from Parker SC ADP’s reasons, in which the Acting Deputy President observed that:
“The [then] Senior Arbitrator was aware of the distinction between the appellant’s business and the proposition that the appellant sought to establish in the proceedings, namely that he was on this occasion on 15 February 2018 a worker employed by the respondent …”.[38]
[37] Reasons, [63].
[38] Jafarian, [118].
The appellant’s complaint that the Member did not engage with his submissions is not borne out in a consideration of the whole of the Member’s reasons. He was clearly aware of the case put by the appellant and, in his alternative reasons, dealt with the appellant’s submission that the contractual requirements with other entities were not relevant to the question before him. He proceeded to consider the phrase “particular work” and recited the facts in On Call Interpreters. He observed:
“This then was the factual background to the dispute Bromberg J was addressing, and his use of the phrase ‘particular work’ must be seen in that light. The issue related to the nature of the work done by the interpreters during the currency of their dealing with On Call Interpreters over the entire period of On Call Interpreters’s business since 2003. His Honour’s examination of the relevant indicia was concerned with the performance of the work under consideration, namely, the ‘particular work’ that the interpreters were performing in that industry. That accordingly involved the emphasis on the entrepreneurial and business ownership aspect of the questions posed by Bromberg J at [208].”[39]
[39] Reasons, [71].
It is apparent that the Member engaged with the appellant’s submissions that the particular work to be considered was that limited to the work with the respondent and proceeded to consider whether the appellant was acting as an entrepreneur in his own business when engaged by the respondent. It is further apparent that at [95]–[96] of his reasons (summarised by me at [36] above), the Member dealt with the appellant’s submissions in relation to the signage on the vehicle and the provision by the appellant of his own tools.
The allegation that the Member erred by failing to engage with the appellant’s submissions is without foundation. Ground 2 of the appeal therefore fails.
Ground 3: The Member erred in fact by drawing inferences that were not available on the evidence
In the present matter, both parties submitted to the Member in relation to the elements that made up the contractual arrangements between the appellant and the respondent in terms of the rights and obligations of the parties and how the oral contract ought to be construed. The Member firstly determined the question of whether the appellant was an independent contractor or an employee in accordance with the question posed by Bromberg J at [208] in On Call Interpreters. Neither party has submitted that that approach was wrong in terms of the application of Personnel Contracting and Jamsek.
The Member expressed his determination as a “prima facie” conclusion that, in conducting the work for the respondent, the appellant was promoting his own business and that it “may” be inferred that he did so to increase his business. The manner in which the Member expressed that determination suggests that it was not conclusive of the issue. The Member then proceeded to determine the matter on an alternate basis by applying the indica relevant to the terms of the oral contract, in the event that he was wrong in respect of his first determination.
In my view, the matters taken into account by the Member in his alternate determination, about which both parties made submissions, were not inconsistent with the principles enunciated in Personnel Contracting and Jamsek.
The appellant submits that the Member drew a number of inferences which were not reasonable and thus the Member drew the wrong conclusions. The appellant refers to the Member’s conclusions at [81] that:
(a) the appellant was promoting his own roof work business when he engaged in the arrangement with the respondent, and
(b) it may be inferred that the appellant performed the work in order to increase his business reputation.
The appellant asserts that this was the only reasoning under the heading of whether the appellant was “an entrepreneur” and it was not clear what facts the Member was referring to. Immediately prior to this paragraph, the Member recited a number of uncontested facts[40] under the heading:
“Is the person an entrepreneur?
Owning and operating a business”
[40] Reasons, [74]–[80].
The facts relied upon by the Member are summarised by me at [26] above. It is clear from his reasons at [74]–[80] that those facts were the basis for his conclusion that the appellant was operating as an entrepreneur in his own business when performing work for the respondent. The appellant acknowledges the Member’s consideration of those facts but submits that they do not provide a reasonable basis for his conclusion, and it is not apparent “how” or “why” he reached that conclusion.
The appellant relies on the authorities of Bradshaw, Nguyen and Seltsam as to the drawing of inferences from the proven facts.
In Bradshaw, the High Court observed:
“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.”[41]
[41] Bradshaw, 5.
In Seltsam, Spigelman CJ said:
“It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists.”[42]
And:
“The test is whether, on the basis of the primary facts, it is reasonable to draw the inference.”[43]
[42] Seltsam, [84].
[43] Seltsam, [88].
I would add that in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher,[44] Beaumont and Lee JJ observed that:
“The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The Court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the Court may not have been inclined to make but not a choice the trial judge should not have made.”[45]
[44] [1992] FCA 184 (Hamsher).
[45] Hamsher, [24].
Those observations were adopted by Roche DP in Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden.[46] Deputy President Roche considered various authorities as to the drawing of inferences and said:
“To conclude, as the Arbitrator did, that the darkness reduced the time Ms Wickenden and Ms Thomas had to react, and that it therefore contributed to the accident, required the drawing of an inference. The drawing of an inference is ‘an exercise of the ordinary powers of human reason in the light of human experience’. In a civil case, ‘you need only circumstances raising a more probable inference in favour of what is alleged.’
Though it is correct that there is no direct evidence that Ms Thomas failed to see the cattle because of darkness, as a matter of commonsense and general human experience, the compelling conclusion is that the darkness reduced the time that both Ms Wickenden and Ms Thomas had to react and avoid a collision. …
… It was an inference reasonably open on the evidence. Error is unlikely to be established where all that is shown is that the trial judge [or Member] made a choice between competing inferences, being a choice that the appellate court might not have made but not a choice the trial judge [or Member] should not have made.”[47] (citations omitted)
[46] [2014] NSWWCCPD 13 (Wickenden).
[47] Wickenden, [31]–[33].
The appellant refers to the evidence that:
(a) the appellant introduced himself to the client as working for the respondent;
(b) the respondent usually contacted the client the day prior to the work being performed, and
(c) the appellant was promoted as part of the respondent’s team on the website.
The appellant submits that, on the basis of that evidence, it was not reasonable for the Member to infer that the work the appellant undertook was always for the promotion of his own business. The appellant asserts that that evidence, together with the evidence that the respondent would supply the materials, pointed to the contrary conclusion.
As I indicated at [92] above, in order for the appellant to succeed, he must establish error on the part of the Member and that the error affected the outcome. Even if the Member’s first determination was inconsistent with the High Court authorities of Personnel Contracting and Jamsek, a point which was not raised and which I do not determine, or was otherwise wrong, in the circumstances in which the Member determined the matter, any error in respect of the first determination cannot have affected the outcome. For those reasons, the Member’s ultimate alternate determination was not affected by any such error.
The appellant submits that the inference drawn by the Member that the supply of materials was not indicative of the appellant being employed by the respondent because it was a matter of convenience of not having to seek reimbursement was not open to the Member. The appellant says that there is no evidence about the appellant having to otherwise seek reimbursement if he paid for the materials. The appellant asserts that he had no role to play in the arrangement to secure or perform the work and so it would not make sense for the appellant to purchase the materials.
I do not accept that the appellant had “no role to play” in the arrangement between him and the respondent. The parties had reached an agreement between them, which required the appellant’s acceptance of the arrangement, provision of his own equipment and performance of the actual work, at a time that was convenient to him. It is clear that the terms of the oral agreement between the appellant and the respondent were that the appellant provided his own equipment, and the respondent provided the materials. It may well have been convenient for the parties to attend to those matters in the manner that they did, with the appellant collecting the materials on his way to the job. The only obvious alternative would be that the appellant was to purchase the materials himself. I do not consider that the inference drawn by the Member that it was undoubtedly convenient for the appellant to collect the materials purchased by the respondent rather than purchase them himself was a choice between inferences that should not have been made.
While the fact that the respondent arranged for the provision of the materials was a factor to be considered, it was not determinative, and I do not consider that the Member erred in the manner required in reaching the conclusion that this evidence was not indicative of an employer/employee relationship.
The appellant points to the Member’s observations about the appearance of the appellant on the respondent’s website, and the Member’s conclusion that that evidence was not suggestive of anything more than that he was a sub-contractor who was provided work by the respondent. The appellant submits that there was no basis in the evidence, and it was not reasonable for the Member to infer and conclude that the presence of the respondent and his son on the website made it more likely that the respondent was nominating the tradesmen who assisted in the completion of the work. The appellant says that the Member’s conclusions were inconsistent with the unchallenged fact that the work the appellant performed was represented as work undertaken in the respondent’s business.
The Member pointed to the caption on the respondent’s website that indicated nothing more than that the appellant was a member of the respondent’s team and observed that:
“There was no identification of the contractual status of each person, and in the totality of the circumstances relating to the performance of the particular contract, [the appellant’s] appearance on the respondent’s website is not suggestive that he was any more than a sub-contractor.”[48]
[48] Reasons, [99].
The Member clearly considered the inclusion of the appellant on the website in the context of the totality of the evidence going to the issue before him and concluded that he could not draw an inference from that evidence that the relationship between the parties was one of employer and employee. That conclusion was open to him.
The appellant submits that the effect of those errors is that the Member’s consideration of the relevant criteria miscarried because they impacted how the Member viewed the factual circumstances. I do not accept that the Member erred in the manner asserted by the appellant, and this ground of appeal fails.
Ground 4: The Member erred in law and/or fact by failing to provide adequate reasons for his conclusions
The entire submissions made by the appellant in respect of this ground of appeal were as follows:
“As a corollary to the submissions made under ground 2, the Appellant submits that the Member’s failure to address the submissions noted in respect of that ground of appeal, the Member’s failure also involved error pursuant to [Fitzgibbon].
The Appellant submits that the Member’s failure to engage with those submissions has meant that he failed to examine all of the material relevant to the dispute which was before him.”[49]
[49] Appellant’s submissions, [96]–[97].
The reference to Fitzgibbon is consistent with the appellant’s contention that a failure to consider all of the relevant material is an error of law.
The assertion made is dependent upon error being identified under Ground 2, that is, that the Member failed to deal with the appellant’s submissions, which is a complaint not made out. The submissions bear no relevance to the asserted ground of appeal, which is a complaint about the adequacy of the Member’s reasons. The appellant points to no aspect of the Member’s reasons that were inadequate and nor does he point to any material that the Member overlooked or disregarded.
It follows that this ground of appeal has not been made out and fails.
CONCLUSION
The appellant has not succeeded in establishing error on the part of the Member and the appeal is dismissed. The Member’s Certificate of Determination is confirmed.
DECISION
The Member’s Certificate of Determination dated 6 May 2022 is confirmed.
Elizabeth Wood
Deputy President
22 March 2023
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