Baigorri v Workers’ Compensation Regulator

Case [2024] ICQ 2

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Baigorri v Workers’ Compensation Regulator [2024] ICQ 2

PARTIES:

HORACIO AUGUSTO BAIGORRI

(Appellant)

v
WORKERS’ COMPENSATION REGULATOR

(Respondent)

FILE NO/S:

C/2023/30

PROCEEDING:

Appeal

DELIVERED ON:

28 February 2024

HEARING DATE:

30 November 2023

MEMBER:

Davis J, President

ORDERS:

1.        The appeal is allowed.

2.        The orders made in the Queensland Industrial Relations Commission on each of 22 June 2023 and 11 July 2023 are set aside.

3.        The appellant’s claim for compensation is remitted to WorkCover to be considered according to law.

4.        By 4pm on 6 March 2024 the appellant shall serve written submissions on costs of the proceeding before the Queensland Industrial Relations Commission and this Court.

5.        By 4pm on 13 March 2024 the respondent shall file written submissions on costs in reply.

6.        Each party may file and serve an application in existing proceedings to make oral submissions on costs by 4pm on 20 March 2024.

7.        In the absence of any application to make oral submissions being filed by 4pm on 20 March 2024 the question of costs will be dealt with on the papers without oral submissions.

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – PERSONS ENTITLED TO COMPENSATION – WHO IS A WORKER OR EMPLOYEE – where the Appellant contracted with Allied Express Transport Pty Ltd (Allied) to provide courier services – where by the contract the Appellant was a “contract carrier” – where by the terms of the contract the Appellant provided and maintained a vehicle – where the Appellant conducted no courier business before he contracted with Allied – whether he was a “contractor” – whether the work to be done pursuant to the contract with Allied was incident to a business regularly carried on by the Appellant – whether the work performed pursuant to the contract constituted a business – whether the Appellant was a worker

LEGISLATION:

Industrial Relations Act 2016 s 557

Superannuation Guarantee (Administration) Act 1992 (Cth) s 12(1), s 12(3)

Vocational Education, Training and Employment Act 2000 s 11, s 12.

Workers Compensation and Rehabilitation Act 2003 s 7, s11, s 561, sch 2, sch 6.

CASES:

ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146 cited

Alcan (NT) Aluminia Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 cited

Baigorri v Workers’ Compensation Regulator [2023] QIRC 190 related

Baigorri v Workers’ Compensation Regulator (No 2) [2023] QIRC 201 cited

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 cited

Cam v Cousins Interstate Transport Pty Ltd [1964] NSWR 1288 cited

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 cited

Ex parte McLean (1930) 43 CLR 472 cited

Higgins v Jackson (1976) 135 CLR 174 related

Hollis v Vabu Pty Ltd (2001) 207 CLR 21 considered

Humberstone v Northern Timber Mills (1949) 79 CLR 389 followed

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 followed

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 cited

Continue reading Baigorri v Workers’ Compensation Regulator

Sign in free to access the full text

Details
AGLC
Baigorri v Workers’ Compensation Regulator [2024] ICQ 2
Case
[2024] ICQ 2
Decision Date

CaseChat Overview and Summary

In the matter of Baigorri v Workers’ Compensation Regulator, the appellant, Mr Baigorri, sought to establish his entitlement to workers' compensation following an injury sustained while performing courier services for Allied Express Transport Pty Ltd. The crux of the legal dispute revolved around whether Mr Baigorri qualified as a "worker" under the Workers' Compensation and Rehabilitation Act (WCR Act) when he entered into a contractual arrangement with Allied as a "contract carrier." The decision was made by the Queensland Industrial Relations Commission (QIRC) and subsequently appealed to the court.

The legal issues at the heart of the case were whether Mr Baigorri was a "contractor" rather than a "worker" under the WCR Act and whether the work he performed for Allied was incident to a business regularly carried on by him. The court had to determine if the contract was one of service or a contract for services and whether Mr Baigorri conducted a business beyond the contract with Allied. The analysis focused on the terms of the contract and the nature of the work performed under it.

The court meticulously reviewed the contractual obligations and the control exerted by Allied over Mr Baigorri. It noted that while Mr Baigorri was an independent contractor under the contract, the degree of control and direction imposed by Allied suggested a relationship more akin to employment. However, the court ultimately concluded that Mr Baigorri did not conduct a business regularly beyond the contract with Allied. Consequently, he qualified as a "worker" under the WCR Act, entitling him to compensation. The appeal was allowed, and the case was remitted to WorkCover for reconsideration in light of the court's decision.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders made in the Queensland Industrial Relations Commission on each of 22 June 2023 and 11 July 2023 are set aside.

3. The appellant’s claim for compensation is remitted to WorkCover to be considered according to law.

4. By 4pm on 6 March 2024 the appellant shall serve written submissions on costs of the proceeding before the Queensland Industrial Relations Commission and this Court.

5. By 4pm on 13 March 2024 the respondent shall file written submissions on costs in reply.

6. Each party may file and serve an application in existing proceedings to make oral submissions on costs by 4pm on 20 March 2024.

7. In the absence of any application to make oral submissions being filed by 4pm on 20 March 2024 the question of costs will be dealt with on the papers without oral submissions.

Background

Background to the litigation

The appeal is brought under s 561 of the WCR Act. It is an appeal by way of rehearing as that term is generally understood and is not limited by s 557 of the Industrial Relations Act 2016 to errors of law or jurisdiction.[2] Here, the facts are not in dispute and the decision of the QIRC primarily turned on the construction of provisions of the WCR Act.[2]Turay v Workers’ Compensation Regulator (2023) 326 IR 28.The facts Allied Express Transport Pty Ltd (Allied) operates a carrier transport business. Mr Baigorri was for a number of years employed by a company called Technofibre. He sustained an injury while working and, upon his return to work, learned that Technofibre had relocated its business to Western Australia. Mr Baigorri declined an offer of employment in Western Australia. By late 2014 Mr Baigorri was looking for other employment. For various personal reasons, he thought he would turn to courier driving. He made enquiries of a company other than Allied but that came to nothing. He did though, acquire a van and some other equipment for use as a courier. Allied advertised for drivers and Mr Baigorri responded. Mr Baigorri signed a contract with Allied. By that point, he had not done any work as a courier. The general structure of the contractual arrangements is;(a)Mr Baigorri is a “contract carrier” (Recital B);(b)Allied contracts with its customers to arrange for a contract carrier to courier their goods (Recital A);(c)Mr Baigorri is an “independent contractor” (clause 8.1);(d)Allied will allocate the performance of its contracts of carriage with its clients to Mr Baigorri (and no doubt others) (clause 3.1(a));(e)Mr Baigorri is to provide and maintain a vehicle for his use as a contract carrier (clauses 3.2 – 3.7); and(f)Allied will pay prescribed rates of remuneration to Mr Baigorri as a contract carrier (clause 4.1). The clear intention of the contract is that Mr Baigorri will only perform work for Allied, at least with the vehicle he supplies, in order to fulfil his obligations under the contract. In particular;(a)he must wear an Allied uniform (clause 2.1); and(b)the vehicle may be painted, signed and fitted with decals “in Allied Express’s colours” and at Allied’s discretion (clauses 3.20 and 4.6). Mr Baigorri, as a contract carrier, is in many ways under the direction and control of Allied;(i)he must wear an Allied uniform (clause 2.1) and other nominated clothing (clause 2.4);(ii)he must perform the work himself rather than through any employee, unless consent is obtained from Allied (clause 3.8);(iii)he must provide nominated paperwork, together with “any other document(s) reasonably requested by Allied Express” (clauses 3.1 and 3.25);(iv)Allied may fit signs to Mr Baigorri’s vehicle (clauses 3.20 and 4.6). That is at Allied’s “discretion” (clauses 4.4(d) and 4.5);(v)Allied may paint and otherwise decorate the outside of Mr Baigorri’s van as its sees fit (clause 4.6);(vi)the allocation of contracts of carriage is in the discretion of Allied (clause 3.1)[3]; and(vii)either party may terminate the contract at will; Allied may do so on only 7 days’ notice (clause 11.2).[3]By implication.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

That construction is consistent with the general policy of the provisions and with what decided cases there are. The general policy of the provisions is to look past the particular legal structure of the arrangements, which might constitute a “contract for services” and include the person as a “worker” where if, in substance, the contract is one of service. That is so the statute provides where the work is not incident to a business “regularly carried on by the contractor”.Conclusions Mr Baigorri does not qualify as a “worker” by force of s 11(1) of the WCR Act. Mr Baigorri qualifies as a “worker” by force of s 3 of Part 1 of Schedule 2 of the WCR Act because:(a)He made a contract with Allied for the performance of work.[45](b)The contract was not a contract of service but a contract for services.(c)He was thereby a “contractor”.(d)He did not conduct a business beyond the “contract for the performance of work” with Allied.(e)The work to be performed pursuant to the contract with Allied was not incident to a business regularly carried on by him.(f)Therefore, he was a “worker” within the meaning of the WCR Act.[45]The written contract with Allied. It follows that the appeal should be allowed. The costs of the proceedings in the QIRC were awarded against Mr Baigorri and separate reasons were given.[46] There is no separate appeal against that order[47] but the costs order flowed as a consequence of Mr Baigorri’s defeat in the appeal.[46]Baigorri v Workers’ Compensation Regulator (No 2) [2023] QIRC 201.[47]Made on 11 July 2023. The costs order made in the QIRC ought to be set aside and the parties given an opportunity to make submissions as to costs of the proceedings before the QIRC and this Court on appeal. The orders are:1.The appeal is allowed.2.The orders made in the Queensland Industrial Relations Commission on each of 22 June 2023 and 11 July 2023 are set aside.3.The appellant’s claim for compensation is remitted to WorkCover to be considered according to law.4.By 4pm on 6 March 2024 the appellant shall serve written submissions on costs of the proceeding before the Queensland Industrial Relations Commission and this Court.5.By 4pm on 13 March 2024 the respondent shall file written submissions on costs in reply.6.Each party may file and serve an application in existing proceedings to make oral submissions on costs by 4pm on 20 March 2024.7.In the absence of any application to make oral submissions being filed by 4pm on 20 March 2024 the question of costs will be dealt with on the papers without oral submissions.

Ratio Decidendi

Legal Principle Established

The critical findings of the QIRC are:“[108] This evidence[17] persuades me that Mr Baigorri was carrying out a business when doing courier work for Allied in that he conducted the activity to make a profit in respect of which he owned tangible assets, met regulatory requirements and used business transactional systems. Mr Baigorri does not dispute that his contract with Allied was a contract for services.[109] The purpose or policy objective of sch 2, pt 1, s 3 of the Act is not to extend the protection of the Act to a contractor who starts and then conducts a business and, in doing so, bears the risk of lost income and medical expenses from personal injury arising out of or in the course of undertaking that business.[110] Mr Baigorri, by entering into the contract, expressly agreed that he personally accepted the risk of lost income and medical expenses from any injury he suffered in the course of performing the contract courier work for Allied. Clause 5.2 (b) of the contract provided that Mr Baigorri would, either by himself or where agreed in co-operation with Allied, obtain and maintain a '…Workers' Compensation Insurance Policy to cover the Contract Carrier, and any person who may from time to time be employed by the Contract Carrier.' Mr Baigorri's evidence was that he took out insurance which covered public liability and injury or sickness, or as he put it: '… Income protection, basically'.…[115] If the business of a courier is to load parcels into a vehicle for delivery, then the sorting of parcels, at the point of collection, as a preliminary step to locating and loading parcels to be delivered into the vehicle, is incident to the business of a courier. The sorting of parcels at the point of collection so as to be able to load deliverable parcels is obviously naturally related to or connected with the business of a courier. To suggest that because a more involved sorting of parcels was required, so as to locate deliverable parcels, is not incident to courier work, strains the ordinary meaning of the phrase '… incident to' and is contrary to common sense.” (footnotes omitted)[17]The evidence referred to at paragraph [107] which appears at paragraph [11] of these reasons.Consideration Over the last quarter of a century or so, the High Court has, in a number of cases, considered the appropriate approach of Australian courts to statutory construction.[18][18]K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Alcan (NT) Aluminia Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; SAS Trustee Corporation v Miles (2018) 265 CLR 137; and Unions NSW v New South Wales (2019) 264 CLR 595. In R v A2; R v Magennis; R v Vaziri[19] the High Court authoritatively summarised and stated these principles as follows:“32The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.33Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.34This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.35The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a ‘substantial miscarriage of justice’ within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.36These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.37None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, ‘if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance’. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.” [20] (footnotes omitted)[19](2019) 269 CLR 507.[20]Followed in Minister for Immigration Citizenship Migrant Services and Multicultural Affairs v Thornton (2023) 97 ALJR 488 at [54].