Askew v Donald Noel Spence t/as Don's Guttering and Roofing Services
[2022] NSWPIC 200
•6 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Services [2022] NSWPIC 200 |
| APPLICANT: | Robert Askew |
| RESPONDENT: | Donald Noel Spence t/as Don’s Guttering and Roofing Services |
| Member: | John Wynyard |
| DATE OF DECISION: | 6 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant fell off roof and sustained catastrophic injuries rendering him paraplegic; whether applicant was a worker; Held- Applicant was a self-employed contractor; consideration of phrase “performance of particular work” in On Call Interpreters; totality of evidence addressing the various indicia to be considered; applicant claim that only the indicia relating to the particular contract were relevant rejected; in any event, even on such a restrictive approach; the indicia did not indicate an intention to create an employment contract; award respondent. |
| determinations made: | 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. |
STATEMENT OF REASONS
BACKGROUND
Robert Askew (the applicant) is a 61-year-old married man who suffered a catastrophic injury on18 May 2021. His injury was accurately described in the Application to Resolve a Dispute (ARD):
“[Mr] Askew was spray painting the surface of the tiled roof of the property, when he stepped over guttering, and fell off the roof about 4 meters to the ground below. The injuries included a fractured spine at multiple levels, lacerated finger on left hand and rib fractures. Mr Askew was diagnosed with a spinal cord injury resulting in permanent paraplegia.”
Mr Askew’s spinal cord injury has permanently affected his bladder, bowel, and sexual function. He has lost the function and sensation of his lower limbs. He is wheelchair bound and requires assistance in his activities of daily living.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) Was the applicant a worker as defined by s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
PROCEDURE BEFORE THE COMMISSION
On 25 March 2022 the matter was heard at telephone conciliation/arbitration. Mr Dewashish Adhikary of counsel appeared for the applicant, instructed by Messrs Shanahan Tudhope, and Mr Fraser Doak of counsel appeared for the respondent, instructed by Messrs Hall & Wilcox.
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 Personal Injury Commission (the Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents lodged during the hearing by the respondent, and
(d) two photographs of Mr Askew’s vehicle.
Oral evidence
No application was made.
FINDINGS AND REASONS
Accepted facts
There is no contest as to the facts, which have been established by the applicant’s unchallenged statement and the particulars given on his behalf and by the respondent. The contest herein concerns which inferences may be drawn from the facts.
Mr Askew had been working in the roof repair industry since 1986 or 1987. In the reply to a request for particulars, Mr Askew said that he had been self-employed since then, and engaged by a number of different contractors and companies. These engagements had been generally on a project-by-project basis. He was first engaged by the respondent in late 2018 or early 2019.[1]
[1] Reply p 16.
Mr Askew held a valid contractor’s licence, which had been valid since 1997 and was due to expire on 7 May 2023,[2] and he had his own ABN. He used his own vehicle during his engagements. A photograph of it showed that it carried on its back and sides advertisements for ‘Dulux’ and ‘B & B Roof Restorations’, the latter including four photographs of different roofs. B &B Roof Restorations was Mr Askew’s business.
[2] Late documents lodged during the hearing.
The respondent set up an account at the Mt Druitt Bunnings store and other suppliers through which it purchased the required materials, which Mr Askew would collect and take to the work site.
The contract between Mr Askew and the respondent was oral, and had adopted the practice whereby Mr Don Spence, the respondent’s owner, would call Mr Askew with work to be done. Mr Spence would describe the dimensions of a particular roof, the size of the job, and the payment arrangements. He would also describe the nature of the work and advise Mr Askew of the relevant commencement and completion dates.
Mr Askew did not assess the proposed work personally, neither did he discuss the proposed work with the customer. He did not quote or give an estimate but worked for a fixed price which varied slightly depending on the particular engagement. Generally the price was $500 for repairs, $500 for painting and $500 for re-pointing. Payment was made directly to Mr Askew’s personal account without tax invoices being issued. Mr Askew was responsible for paying his own tax.
The respondent operated a website, donsgutteringandroofingservices.com.au, which featured six generic silhouettes of “Our Team”, under each of which a name was placed. The names were:
· Don Spence;
· Jake Spence;
· Michael;
· Robert;
· Craig, and
· Russell.
“Robert” was a reference to Mr Askew.
Mr Askew did not have any work organized for other customers in the month prior to his accident, although he did perform such work from time to time.
A breakdown within Askew’s statement of his bank statement between 18 May 2020 and 20 May 2021 showed that over that period he had received income from:
· Don’s Guttering (eleven entries);
· Julie Mangion (two entries);
· Charles McKay;
· Trevor Harrison (two entries);
· Access Digital;
· Paul Maklouf;
· Les Oliver (two entries);
· Colombarge Prabath (two entries);
· Lee Ser Hui;
· Richard Hoff;
· Ravij Lochlan;
· Mt Druitt;
· Xie Zhang;
· Joseph Raphael Van;
· Sharman Singh;
· Daniel Roig (two entries), and
· Pawlak Shana Nicole.
Bank statements for the period 24 April 2019 to 24 July 2020 showed a similar pattern of deposits from different entities, there being 15 deposits from “”Bateman’s Bay,” 11 from the respondent and sundry others of either one or two payments from different depositors.[3]
[3] Late documents lodged during the hearing.
In his letter of particulars Mr Askew estimated that he was providing roofing maintenance services to approximately one or two clients per week as well as the work he did for the respondent.[4] Mr Askew did not subcontract any of the work given to him by the respondent.
[4] Reply p 20.
SUBMISSIONS
Mr Adhikary
20. Mr Adhikary discontinued the claim regarding whether Mr Askew was a deemed worker. He stated that the case was concerned simply with whether the provisions of s 4 of the 1998 Act have been complied with as to whether Mr Askew was a worker. He noted the injury on 18 May 2021 and acknowledged that the issue was how to characterise the employment contract between the respondent and Mr Askew.
21.Mr Adhikary submitted that the relevant indicia in this case would indicate that Mr Askew was a worker at the time he suffered his injury. I was referred to Dickinson v Chapman[5]; On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (Number 3)[6]; Malivanec v Ring Group Pty Ltd[7]; Jafarian v Wildfire Interiors Pty Ltd[8] and Hollis v Vabu Pty Ltd.[9]
[5] [2022] NSWCA 2.
[6] [2011] FCA 366: 279 ALR 341 (On Call Interpreters).
[7] [2014] NSWWCCPD 4.
[8] [2021] NSWPICPD 24 (Jafarian).
[9] [2001] HCA 44: (2001) 207 CLR 21.
22.Mr Adhikary based his submissions, to a large extent, on the observations of Bromberg J in On Call Interpreters. Mr Adhikary referred to His Honour’s dicta at [208] and said it was an important point that the focus in considering the status of the employment contract is not on the history of the relationship, but rather on the particular work being performed at the time of the injury.
23.Mr Adhikary submitted that the test of whether a person was an independent contractor was whether that person was an entrepreneur who owned and operated his own business. He submitted that the arrangement between Mr Askew and the respondent did not indicate such a situation.
24.Mr Adhikary referred to the history of the relationship between Mr Askew and the respondent. He submitted that there was a clear distinction to be made between the evidence of the previous history and the circumstances that pertained at the time of the particular contract when Mr Askew suffered his injury. He submitted that the relevant indicia pointed to an employer/employee relationship between the respondent and Mr Askew.
Indicia
25.Mr Adhikary referred to the fact that Mr Askew did not advertise apart from the sign on his vehicle. He acknowledged that Mr Askew was self-employed, and was able to do other work whilst working for the respondent. However in the circumstances of the engagement with the respondent, the practice of the parties was that the duration of the contract was set by the respondent, who set the rate payable, and it was the respondent who contacted the customer. The rate of pay was not dependent on the hours worked, and was paid irrespective of whether the respondent was paid on time.
26.Mr Adhikary submitted that the applicant’s appearance on the respondent’s website gave rise to an inference that Mr Askew was being represented as an employee of the respondent.
27.Mr Askew did not take the economic risk involved in the respondent’s business, Mr Adhikary submitted. The risk was being taken by the respondent. Mr Askew did not regard himself as being at risk, as was illustrated by the fact that he had no insurance.
28.In referring to the indicia that the work be repetitive, Mr Adhikary submitted that the work Mr Askew was doing could be seen as repetitive in the sense that he was engaged by the respondent to do the work, it was not work he had found himself, and the client for whom the applicant was doing the work had no connection with Mr Askew’s own business.
29.It was unchallenged that Mr Askew personally performed the work, Mr Adhikary said.
30.Mr Askew did not engender any goodwill for his business, Mr Adhikary said. No goodwill was created by the work performed by Mr Askew. The evidence showed that to all intents and purposes the only dealing the customer had was with the respondent, and that when Mr Askew did attend the worksite, he introduced himself as an employee of the respondent. Mr Adhikary referred again to the website. He submitted that it showed the applicant as a member of the respondent’s team, “which could only imply that he was an employee to anyone who was viewing that page.”
31.Mr Adhikary again referred to the question of advertising. He said that whilst the photos tendered at the hearing showed that Mr Askew had a sign on his vehicle, that was not determinative. It showed no more than Mr Askew drove his own vehicle and that he needed to transport his own tools to perform the work and to collect the materials from the supplier and travel to the work site. Those matters were part of Mr Askew’s duties as a worker and the fact that there was an advertisement on the vehicle did not conflict with the primary inference that this particular contract could be characterised as being one of service, Mr Adhikary argued..
32.In assessing Mr Askew’s tangible assets, Mr Adhikary submitted that Mr Askew had tools and equipment, but in context they were provided in order to do the work for the respondent, particularly the tools needed in his day-to-day work. It was common that employees would provide tools needed for the day-to-day work, Mr Adhikary said. It was significant that in the overall scheme the provision of the required materials were from the respondent. Whilst the use of tools was a neutral indictor, the arrangement regarding the supply of materials was indicative of a contract of service, it was argued. It demonstrated the control exercised by the respondent over the applicant’s work and was typical of an employee.
33. Mr Adhikary submitted that the level of skill required to perform the work was not suggestive of a trade or profession. Mr Adhikary contended that there was no reason to find that the work undertaken by Mr Askew required any special skill because there was no evidence.
34.Mr Adhikary submitted that the evidence showed that Mr Askew had not been compliant with the regulatory requirements of business such as GST, taxation and insurance requirements.
35.Mr Adhikary submitted that ultimately a consideration of the above criteria would establish that when the applicant was working for the respondent, he was doing so as an employee and not as part of his own business.
36.Mr Adhikary referred to Bromberg J’s opinion at [208] of On Call Interpreters, that Mr Askew could still be found to be a worker if it were found that he, in the performance of the particular work, was not performing the work of an entrepreneur who owns and operates a business, but was doing that work as a representative of the business receiving his work.
37.As to whether the work the applicant was doing provided an opportunity for profit and involved the risk of loss, Mr Adhikary submitted that the applicant’s evidence was unchallenged that he was being remunerated as an employee for the work he performed, and there was no element of risk and profit involved in this case. The amount of the remuneration was set by the respondent without any opportunity for the applicant to negotiate. The applicant bore no financial risk for the work he was undertaking as he was paid the set amount regardless of the arrangement made between the respondent and the customer, and regardless of whether there were any difficulties with payment between the customer and the respondent.
38.As to the element of control, Mr Adhikary referred to Zuijs v Wirth Brothers Pty Ltd[10] which held that there should be lawful authority by the putative employer to command, so far as there is scope for it, and that there had to always be some room for it, if only in incidental or collateral matters. The evidence showed that the respondent had such control, Mr Adhikary argued. He submitted that in any event the element of control was not determinative of itself.
[10] [1955] HCA 73; (1955) 93 CLR 561.
39.Mr Adhikary submitted that the economic activity was portrayed as that of the respondent, again submitting in this context that the applicant introduced himself as working for the respondent, the work performed was arranged with the respondent, and the applicant had no contact with the customer aside from when he introduced himself.
40.Mr Adhikary submitted that it was not relevant whether the applicant’s economic activity was integrated with that of the respondent, as there was no evidence from the respondent as to integration. Mr Adhikary nonetheless referred to the applicant’s presence on the respondent’s website as a member of the respondent’s team.
41.Mr Adhikary referred to the question as to what extent the person providing the economic activity was financially self-reliant, as distinct from being economically dependent upon or organizationally tied to the business receiving the activity. Mr Adhikary argued that this indicium did not have a great bearing on the facts of this case. He submitted that it did not appear that the applicant had been economically dependent on the respondent to the extent that it would suggest an employment relationship, but equally the lack of such dependence ought not to be seen as “pointing the other way.” This was because:
(a) there was no evidence that there was any requirement for exclusivity with the employment;
(b) the applicant said that the work he undertook with his own business did not conflict with the work he was performing with the respondent;
(c) the situation was similar to that of a casual employee with multiple employers, and
(d) the benefit of the working arrangement was that the applicant was not tied to a specific job. He could work for the respondent when he was available.
42.Goodwill was clearly not an issue, Mr Adhikary repeated, as whilst the respondent was obtaining the goodwill from its conduct with its customers, the applicant had no opportunity to obtain any goodwill under these circumstances.
43.As to the question of remuneration, and whether the arrangement in that regard was dependent upon the time spent on the activity, or the final outcome, Mr Adhikary argued that although the arrangement appeared to be outcome based, there was evidence to support a submission that, in smaller jobs, there was a time based consideration.
44.As to the provision of equipment and the element of control exercised over the use of the applicant’s tools and equipment, Mr Adhikary repeated that the evidence showed that whilst the applicant provided his own tools, it was the respondent which had arranged when he should use them, and the respondent supplied the materials on which he was to use the tools. This showed the respondent had the capacity to control and direct management of the applicant’s tools and equipment because the applicant had to use them for the purpose the respondent had arranged. This, Mr Adhikary contended, was comparable with the common situation in the workforce where a tradesperson arrives with his tools and equipment, and is told by management where and when to use them.
45.Mr Adhikary concluded that the appearance of the applicant on the respondent’s webpage, his introducing himself as working for the respondent, and the fact that the work was arranged by the respondent all indicated that the respondent characterised the nature of the work as being for the purpose of its business. The economic activity could be thus characterised as being part of the respondent’s business, and that appearance reflected the reality, Mr Adhikary said.
46.Mr Adhikary referred to [219] of On Call Interpreters with regard to the question of tax arrangements and leave entitlements as being indicia. Mr Adhikary submitted that such matters were not determinative, and that the relationship between the parties had to be considered in the light of all the indicia, which he contended overwhelmingly showed that Mr Askew had been an employee when he suffered his tragic accident.
47.Mr Adhikary submitted that the applicant had been forthright with matters that would not necessarily have assisted him, such as the advertising on his truck, his possession of a current contractor’s license and that he undertook other work. There was no evidence from the respondent, and no cross-examination had been sought, so that the applicant’s evidence ought to be accepted.
48.Accordingly Mr Adhikary submitted that I would be “comfortably satisfied” that the applicant was not operating a business, or that if he was when he engaged in work for the respondent, he was doing so as an employee.
Mr Doak
49.Mr Doak agreed that the evidence was largely from the applicant and a number of agreed documents but noted that the focus of the applicant’s submissions was the decision of On Call Interpreters. Mr Doak submitted that the dispute in On Call Interpreters was whether there was a contract for independent contractors extant in the arrangement between the antagonists, whereas the relevant question before the Commission was whether Mr Askew was a worker.
50.There was something of a distinction with On Call Interpreters therefore, as the issue in this case was simply whether Mr Askew was an employee of the respondent. The indicia spoken about by Justice Bromberg were largely concerned with the question of whether the persons were running their own business, and self-evidently you can be running your own business but still not be an employee, Mr Doak said.
51.The better approach, Mr Doak said, was, that taken in Hollis v Zabu Pty Ltd,[11] rather than a very focused analysis of each of the indicia in On Call Interpreters, (although Mr Doak allowed that some indicia had relevance). Mr Doak submitted that the facts in Hollis had more similarity with the present case, and the issue was the same, namely whether the contract was for service or services.
[11] [2001] HCA 37 (Hollis).
52.In the present case the evidence overwhelmingly showed that the applicant was not an employee and indeed was operating a business on his own account, not just for the respondent but for others as well, Mr Doak said.
53.Mr Doak submitted that the appropriate starting point in any analysis of the evidence was how the arrangements between the parties were viewed as a practical matter. In most cases the indicia could lead one way or the other, for the obvious reason that the parties themselves never sat down and considered each indicia before starting their relationship, and accordingly inferences had to be drawn from “the prism of hindsight,” Mr Doak stated.
54.There were however some matters in the evidence that were significant, Mr Doak said. As I have largely accepted Mr Doak’s analysis no useful purpose is served by rehearsing them. Mr Doak’s submissions were recorded and a transcript will be available if required.
Mr Adhikary
55.In response, Mr Adhikary submitted that his reliance on On Call Interpreters was not concerned with the question then before the Federal Court, but with the indicia Bromberg J discussed in considering the issue. Justice Bromberg referred to case law in discussing them, including Hollis, Mr Adhikary submitted, and On Call Interpreters had been adopted within the Commission in Malivanec and Jafarian.
56.Mr Adhikary referred to Mr Doak’s analysis of Mr Askew’s bank records and the evidence that he operated his own business. Mr Adhikary submitted that these matters were not relevant, as they related to a separate business of the applicant. The relevant contract was that between the applicant and the respondent at the time of the injury.
57.Equally, Mr Adhikary contended, the receipt of sporadic payments evidenced in the bank statements were not inconsistent with an employment relationship in this specific contract. The reference to On Call Interpreters was important, Mr Adhikary submitted, because there does exist in our society a form of contract called casual employment. This class of contract is where there is no continuing part time or full time employment, and it is the employment itself that is sporadic. There was nothing inconsistent in the evidence of Mr Askew taking employment on a sporadic basis with his thus being an employee on each occasion that the respondent hired him.
58.Mr Adhikary submitted that the respondent was also in error in submitting that there was no exclusivity in the relationship of the parties. This was incorrect because each sporadic employment was limited to its particular timeline, as I understood Mr Adhikary. Furthermore, Mr Adhikary submitted that there was no evidence from the respondent regarding exclusivity in any event.
59.With regard to the submissions by the respondent that the business practice seen from a practical viewpoint was indicative of a contractor relationship, Mr Adhikary submitted that there was no inconsistency in those arrangements if it were remembered that the specific contract was a casual employment contract.
60.I would not accept the submission that the 2021 tax return had not yet been lodged because it was not yet due, in conformance with the practice of contractors not to file until March/April, as was asserted by the respondent, Mr Adhikary said. The injuries occurred in May 2021 and that explains the non-filing of the 2021 tax return.
61.With regard to the payment arrangements, Mr Adhikary submitted that there was no evidence to contradict the applicant’s evidence as to whether the respondent paid the applicant on a GST included basis or whether he was paid by reference to the ABN. This made reference to the tax returns irrelevant, Mr Adhikary said.
DISCUSSION
62.Section 4 of the 1998 Act defines a worker as follows:
“In this Act-
worker means a person who has entered into or works under a contract of service or a training contract 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) …”.
63.As can be seen from the nature of the submissions, the identification of the terms of the alleged contract depends on an analysis of the indicia within the evidence as to the arrangement intended between the parties.
64.There have been two different approaches to the manner in which the nature of the contract should be determined. Mr Adhikary submitted that the only relevant contract was what he described as a casual employment contract. This was confined to the performance of the actual work agreed between the parties at the time of the injury. Any consideration of the wider conduct of the applicant’s business was accordingly irrelevant.
65.Mr Doak, on the other hand, submitted that the evidence had to be considered as a whole, and that the history of Mr Askew’s occupation as a roofing contractor showed unambiguously that Mr Askew was an independent contractor when he suffered his catastrophic accident.
66.The distinction sought to be made by Mr Adhikary was discussed in Jafarian, in which the third ground of appeal considered by ADP Parker raised the same issue. The appellant (who had been found to be an independent contractor) submitted that the Senior Arbitrator had “lost sight of the principal enquiry he was required to make, i.e. at the time of injury, was the appellant working in and for his own business as a representative of that business, or for the business receiving the work and as a representative of that business.”[12]
[12] From [71].
67.The appellant alleged that the Senior Arbitrator had failed to address that question and those proposed by Bromberg J in On Call Interpreters. In confirming the decision below, Parker ADP said at [118]:
“118. The 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...…”
68.Parker ADP noted that the totality of the evidence had been considered by the Senior Arbitrator, and his approach had been correct.
69.A perusal of the background to Bromberg J’s decision in On Call Interpreters also illustrates the misconception on which Mr Adhikary based his fundamental submission. In On Call Interpreters, his Honour stated at [208]:
“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.”
What was the “particular work”
70.In On Call Interpreters, the ‘particular work’ his Honour referred to was not otherwise mentioned, apart from the reference to ‘the work’ at [208(ii)] . The definition of the phrase ‘particular work’ attains some significance as it has been assumed by the applicant to mean the actual work being performed at the time of the injury. This assumption is not born out by the facts that Bromberg J was considering.
71.The respondent to On Call Interpreters was the Commissioner of Taxation, who had disallowed an objection from On Call Interpreters regarding its liability to contribute to the statutory superannuation payable to what On Call Interpreters had treated as its independent contractors, the interpreters who provided the interpreting and translation services. The matter commenced by Notice of Motion, and his Honour delivered his first judgement dismissing an application for adjournment on 16 February 2010.[13] In discussing the facts, Bromberg J noted that the applicant’s outstanding and unpaid liability with regard to superannuation guarantee contributions totaled, as at 5 February 2010, over $4.3 million, and that there were up to 200 alleged employees (the interpreters and translators) who were owed unpaid superannuation contributions. The assessments dated back to 2003.
[13] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation [2010] FCA 255.
72.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].
73.Mr Doak alluded to this distinction in his submissions, and I think they are well made.
74.The construction of On Call Interpreters advanced by Mr Adhikary, that the term related only to a particular contract, thus falls away. His submission that this enquiry was limited only to the circumstances of the actual contract being performed at the time of his client’s horrendous injury thus cannot be sustained. I now move to the central questions raised by the evidence.
Is the person an entrepreneur?
Owning and operating a business
75.The history of his business was given by Mr Askew in his statement. He had been self employed since 1986/87, and had conducted his business since by engaging with a number of different contractors and companies, usually one project at a time.
76.He had commenced his relationship with the respondent since 2018/2019.
77.The bank statements showed that between 24 April 2019 and 20 May 2021 Mr Askew had performed work for the respondent on over 20 occasions. The statements also demonstrated that Mr Askew had performed contracts for many other people, as I have listed above in relation to the 28 May 2020 - 20 May 2021 bank statement.
78.Mr Askew stated that he performed work for different customers, approximately one to two clients per week, in addition to the work he did for the respondent. He had his own vehicle with advertising displayed thereon for his own business, photographs of which are in evidence.
79.The Public Register lodged as a late document showed that Mr Askew had held a Contractor Licence no 80432C since 7 May 1997 which endorsed conditions that he was licensed since 22 June 2002 for:
· roof cleaning only;
· paint roof tiles only;
· repair roof tiles only, and
· minor trade work for roof tiles only.[14]
[14] AALD.
Mr Askew had his own ABN number 11 506 028 172. He described himself as carrying on a business in his 2019 and 2020 tax returns, and he described his business activity as “Roofing materials installation n.e.c.”.[15] Mr Askew claimed business expenses as part of his tax arrangements.
[15] ARD pp ARD pp 75, 80, 87, 92.
These matters I have described as accepted facts, as the applicant and the respondent took a practical approach to the evidence and both exchanged particulars and, as Mr Adhikary conceded, Mr Askew was forthright about his activities in his statement, without attempting to avoid the damaging aspects of it.
Was Mr Askew an entrepreneur?
82.Prima facie, the facts I have just detailed demonstrate that Mr Askew was promoting his own business and it may be inferred that he did so to increase his reputation as a reliable roofing tradesperson so that further work would come his way, as the analysis of his bank statements demonstrated.
Was Mr Askew performing the work as a representative of his own business or of the respondent?
83.This second question from [208] of On Call Interpreters also speaks of “the work,” which, in the absence of any other indication, must relate back to his Honour’s description of “the performance of particular work” he identified in posing the question. Thus, when applied in context the pattern of the work performed by the interpreters the question encompassed an interpretation of whether they were working for the agency in the nature of the performance over the period of the relationship.
84.It follows that consideration of whether the applicant worked as a representative of his own business or of the respondent’s must also be assessed in the context of his owning and operating his own business since 1986/87. For the same reasons as I discussed above from [67] Mr Askew was clearly performing the work as a representative of his own business.
85.Mr Adhikary’s submissions were made on the assumption that Bromberg J at [208] was limiting the consideration of his questions to one of the many contracts Mr Askew had performed over that 30 plus year period, but looked at from the perspective of the entirety of his business Mr Askew was performing the work as a representative of his own business. Mr Askew’s goodwill was self-evident, as was the fact that he performed the work as a representative of his own business. Mr Askew’s bank records demonstrated that as he worked, his business succeeded. The standard of his work was such that he kept getting work, and much of it was, as he said himself, from word-of-mouth.[16] He stated that he relied on 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 Mr Askew’s roofing work was always for the promotion of his own business.
[16] Applicant’s statement p 2 [8].
86.However, if I am wrong in this conclusion, I make the following findings regarding the indicia Mr Adhikary relied on.
87.Mr Adhikary relied on the fact that in the month leading up to the accident Mr Askew had worked only for the respondent. This was not an indicium as to the nature of the contract between Mr Askew and the respondent. It was simply happenstance, and was not indicia as to either exclusivity or control. I note that Mr Askew had started work on the site the week before, and had returned after a break, which was not an indication that he was under the control and direction of the respondent.[17]
[17] Applicant’s statement ARD p 6 at [26].
88.It was submitted that the formation of each contract with the respondent as described by Mr Askew was an indication that Mr Askew was not operating a business at the time he performed the work for the respondent. Mr Askew said:[18]
[18] ARD p 2 [10].
“10. I had no written agreement with DGS in relation to the work I was performing. The general practice for the work I performed for DGS was as follows:
a. Customers would engage DGS for various services.
b. Mr Don Spence, of 5 Gird Place, Blacktown NSW 2148 (‘Don’) was the owner of DGS. He would call me, and explain the nature of a particular job that DGS wanted me to perform including the location, the nature of the work to be performed, and any relevant commencement or completion times.
c. Don would describe the dimensions of a particular roof, and the size of the job, and would tell me the rate of pay for the work (discussed in greater detail below).
d. I would confirm that I was available for the particular job.
e. I would then typically call Don the night before the job commenced to confirm the details, and Don would then contact the customer to confirm the time that I would be arriving at the work site.”
89.This gloss may not be accepted. Firstly, as submitted by Mr Doak, any contract requires a commencement and completion time, be it for a contractor or an employee. Secondly, the “rate of pay” was clarified as being a set fee, payable on completion, with a small variation depending on the size of the job, which again is more compatible with the existence of an independent business. Thirdly, the fact that Mr Askew had the option of refusing the offer of work was consistent with the maintenance by the applicant of a business, as he would not have been able to take work had he already been contracted with another contractor. Again, that arrangement was more consistent with the relationship between a contractor and sub-contractor.
90.It was submitted that the manner in which the contract was performed however was indicative that Mr Askew was not owning and operating a business. Mr Adhikary relied on Mr Askew’s statement that:[19]
[19] ARD p 3 [11].
“11. In relation to the work that DGS asked me to perform:
a. I would not attend a job site in order to assess the nature or scope of the work prior to commencement.
b. I would not independently speak to the customer to confirm the scope or nature of the work prior to commencement.
c.I was not invited to quote or provide a fee estimate to DGS in relation to the work that DGS asked me to perform.”
91.Seen in isolation there are elements which might perhaps suggest that Mr Askew did not own or operate a business. An employee would arrive to start work without previously having seen the scope of the work, and an employee would not have had any interest in the scope of the work to be done, nor in its cost. In Mr Askew’s case his conduct might also have been so interpreted, except that no other aspects of the manner in which the contract was performed corroborated that impression.
92.In context, the system adopted whereby Mr Askew would simply arrive at the address arranged by the respondent without previously seeing the actual work needed was a neutral indicator, as was the practice whereby Mr Askew would introduce himself as working for the respondent. I accept Mr Doak’s submission that it was improbable that a person in Mr Askew’s position would embark on an explanation to the customer of the exact contractual nature of his arrangement with the respondent.
93.With regard to the payment arrangements, the respondent did not withhold tax payable from Mr Askew’s remuneration, neither did it contribute to superannuation or make any provision regarding the ordinary emoluments an employee might expect such as holiday pay or leave. There was no hourly rate at which Mr Askew’s rate of pay could be assessed, and there was no provision for overtime. The system of payment was consistent with that of a sub-contractor who owned and operated an independent business. The respondent simply deposited a lump sum in Mr Askew’s bank account.
94.Similarly, the tax returns of Mr Askew reflected that position. Even had Mr Adhikary been correct that the proper approach to the question was to examine only the particular contract being performed at the time of the injury, I do not accept that the payment arrangements for that particular work were irrelevant, as was submitted.
95.Mr Adhikary submitted that the work was repetitive, which as I understood him, was an indication that Mr Askew did not own or operate a business and could be seen as an employee. To the contrary, Bromberg J regarded the performance of work on a continuous and repetitive basis as being an indicium of an independent business.[20] There is in any event no evidence to suggest that the actual work done on this particular contract by the applicant was repetitive. He had worked on the site the week before, and it would not accordingly seem that there was any repetition in the actual work being done. I would observe, however that the operation of Mr Askew’s business had involved repetition and a continuity of activities over the period he had been running his business as a roofing contractor since 1986/87 and accordingly is a strong indicator that he was an independent contractor.
[20] On Call Interpreters at [210], [217], [213] and [240].
96.Mr Adhikary also submitted that the applicant did not advertise his business as being an indicator that Mr Askew did not own or operate a business. That, with respect, turned a blind eye to the advertisements on his work vehicle for Mr Askew’s business, which I understood Mr Adhikary to contend were irrelevant when considering the particular contract. Mr Askew said:[21]
[21] ARD p 5.
“21. I did have, and often used, my own tools to complete the DGS work. This included a ladder, harness, pressure cleaner, tile cutter, and spray paint machine. DGS did not supply a work vehicle, and so I used my own vehicle for travel to and from the various DGS worksites. I supplied my own safety harness and non-slip shoes (Dunlop Volleys).”
97.As I have indicated, Mr Askew claimed the use of his vehicle for tax purposes, and it was clearly a part of the services he offered in owning and operating his own business. Similarly, Mr Adhikary had to concede that Mr Askew supplied his own tools and equipment. It can be seen that the applicant supplied a comprehensive set of equipment specifically designed for use in his business of roofing work. It was consistent with the equipment the owner and operator of a business would have to perform his work, rather than the type of equipment that an employee might bring with him. Such specialised equipment would be more probably supplied by the employer if the contract were one for service.
98.The supply of materials in the context of the particular contract I also do not find to be indicative that Mr Askew did not operate or own a business. It was no doubt convenient to both parties for Mr Askew to pick up the materials from Bunnings and other suppliers, where they had been already paid for by the respondent, rather than purchase them himself and seek recompense later. Mr Askew described the materials in his statement:[22]
[22] ARD p 5 at [20].
“DGS supplied the materials for all work that I carried out or performed for DGS, including the materials used during the work at the time of my injury. DGS would purchase the relevant materials, such as spare tiles, batons, sealer and topcoats, and other perishable materials required for a particular job, from a local Bunnings and other suppliers (such as Spectra Colour Paints) in and around the Mount Druitt area. I would then collect the materials from those suppliers, and transport them to the particular worksite.”
99.Mr Adhikary argued that the requirement for Mr Askew to collect the materials was an example of the control that was being exercised by the respondent. The question posed by Bromberg J in that regard was whether the putative employer controlled and directed, or had the capacity to control and direct the manner in which the economic activity was being carried out.[23] As was conceded by the applicant, the only elements of control were the commencement and completion dates of the contract. There were no set hours of work, no supervision and no prohibition on Mr Askew doing other work. Mr Askew was left to perform his work by himself. There was accordingly no control or direction exercised that suggested that Mr Askew was other than the owner and operator of his business.
[23] On Call Interpreters at [261] and [218].
It was further submitted that Mr Askew’s stylised inclusion on the respondent’s website was an indication that he was holding himself out as an employee, but his appearance was equally consistent with what the caption on the website said – that he was a member of the respondent’s team. Without more, that indicium was neutral. The owner of the respondent and his son, Messrs Don and Jake Spence appeared in the same silhouetted representation, which makes it more likely that the respondent was listing the tradesmen who helped complete the contracts it sourced. 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, Mr Askew’s appearance on the respondent’s website is not suggestive that he was any more than a sub-contractor who took work form the respondent.
For the above reasons therefore, there is an award in favour of the respondent.
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