Bartlett v Simon Blackwood (Workers' Compensation Regulator)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Bartlett v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 209
PARTIES:	Bartlett, Neil (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	WC/2013/82
PROCEEDING:	Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)
DELIVERED ON:	10 December 2014
HEARING DATES:	31 March 2014 28 and 29 July 2014
MEMBER:	Industrial Commissioner Thompson
ORDERS:	1. The Appeal is dismissed. 2. The Decision of the Regulator is confirmed. 3. The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ decision of Simon Blackwood (Workers' Compensation Regulator) ‑ s 11 of the Act "Who is a worker" ‑ Appellant bears onus of proof ‑ standard of proof ‑ witness evidence ‑ Bielek was a "worker" in accordance with s 11 of the Act ‑ Appeal dismissed ‑ decision of Regulator confirmed ‑ Appellant to pay Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
CASES:	Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 550
APPEARANCES:	Mr M. Dalton, Counsel instructed by Williams Graham Carman Lawyers for the Appellant. Mr F. Lippett, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Decision

Neil Bartlett (Bartlett) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q‑COMP Review Unit (Q‑COMP) released on 15 February 2013. Since the filing of the Appeal, a number of amendments have been made to the Act which include the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q‑COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
The decision of the Regulator was to set aside the decision of WorkCover Queensland (WorkCover) to reject an application for compensation of Cameron Bielek (Bielek), and substitute a new decision that Bielek was a "worker" in accordance with s 11 of the Act.
Relevant Legislation

The Legislation pertinent to this Appeal is s 11 of the Act:

"11 Who is a worker
(1) A worker is a person who works under a contract of service.
(2)Also, schedule 2, part 1 sets out who is a worker in particular circumstances.
(3)However, schedule 2, part 2 sets out who is not a worker in particular circumstances.

(4) Only an individual can be a worker for this Act.".

Nature of Appeal

The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.

Standard of Proof

The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".

Evidence

In the course of the proceedings, evidence was provided by six witnesses.

The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists

The witnesses for the Appellant were as follows:

·       Brock Hohnberg (Hohnberg);
·       Bartlett;
·       Billy‑Joe Bartlett (Billy‑Joe Bartlett); and
·       Ashleigh Hatfield (Hatfield).

The witnesses for the Regulator were as follows:

· Michelle Barratt (Barratt); and
· Bielek.

Appellant
Hohnberg

A Stone Mason by trade, Hohnberg in February 2012 was the owner of a residential property at 4 Angelita Close, Malanda and had engaged Bartlett to undertake construction work on the building structure at that address in the form of finishing off the verandas. Bartlett was known to him on the basis of having married Bartlett's niece in 2010 and they had contact at family functions which included Hohnberg's engagement party and wedding.
The work undertaken by Bartlett including battening out sections of the roof and in all was completed in three days (Saturday, Sunday and Monday). On the Saturday and Sunday, Hohnberg was on site from 8.00 am to 4.00 pm for the purposes of tidying up after Bartlett and Billy‑Joe Bartlett who were the only people on the job.
Under cross‑examination, Hohnberg was vague in terms of his recollection of contact between himself and Bartlett regarding the actual days when the work was performed [Transcript p. 1‑15]. He confirmed there was no other person (other than Bartlett and Billy‑Joe Bartlett) either on site or wandering about the fringes of the construction site [Transcript p. 1‑17].
Bartlett
Bartlett resided at Battle Camp Station which is located about 90 kilometres north‑east of Cooktown with his partner (Hatfield) and their four children. They run the property themselves which produces calves to sell to market with Bartlett (a qualified builder) undertaking building work as a sole trader. On occasions he engages subcontractors to do "painting, chipping, plumbing, electrical".
He had first met Bielek a few years prior to him coming to live at Battle Camp in December 2011 and encountered him again at a neighbour's property in December 2011 where it appeared Bielek "was going through a bit of a rough spot". Bartlett offered him a place to "put his head down" with no requirement to undertake any work for Bartlett or pay room and board but to just keep his room tidy and help around the house.
Bielek arrived at Battle Camp on 31 December 2011 with his ute and seven dogs just as the Bartlett's were about to leave to visit family for New Year's Eve. They returned a couple of days later. During the time of their absence Bielek had kept an eye on their dogs. On his return, Bartlett had cause to chastise Bielek in relation to drug usage and having a "few of his mates" on the property without Bartlett's approval.
Bartlett's evidence went to issues involving Bielek's time at Battle Camp which included:
·       a visit to Cooktown;
·       dogs left behind for Bartlett to look after including an injured dog; and
·       teaching Bielek skills such as how to pack a wheel bearing.

On 9 February 2012 Bielek returned from Cooktown (second visit) and as Bartlett was about to depart to Malanda to undertake Hohnberg's building work. He had concerns about leaving him with the family following the "drug issue". He informed him that he could either accompany Bartlett to Malanda or make arrangements to stay elsewhere. Bielek decided to "tag along" with Bartlett.
Bartlett had entered into a contract with Hohnberg to finish the house after Hohnberg had fallen out with the previous builder. They left Battle Camp on the morning of 10 February 2012 (Friday) arriving in Malanda late in the afternoon. He dropped Bielek at his Grandparent's house at which time Bielek asked if he could come to the job site the next day. On the basis of not being allowed on the job site, Bielek agreed to accompany him and was picked up at 7.00 am the following morning.
Bartlett described the work to be completed as:
·       steel beams to be welded on;
·       posts cut off at right height;
·       cleats welded on beams;
·       pole plate on the wall; and
·       rafters and battens on the veranda.
To assist with the work he had engaged Billy‑Joe Bartlett (his uncle's stepson) a person that he had only met a couple of times previously and has not used him as a subcontractor since that job. Whilst they carried out the work on the Saturday, Bielek who was wearing thongs and shorts was instructed not to enter the work site and spent the day in Bartlett's Toyota Landcruiser, smoking, listening to music and reading. The vehicle was parked some nine metres from the boundary of the job site. Bielek did not enter the job site on the Saturday nor was he instructed to perform any work. Bartlett described the work undertaken on the Saturday and in particular that he and Billy‑Joe Bartlett had battened a side each in respect of the veranda which was a one person job.
At the conclusion of work he dropped Bielek at his Grandparent's house where upon he was asked by him if he could attend the job site the following day. Bielek was picked up on the Sunday morning and as was the case the previous day he remained off site and was not instructed to perform any work. Hohnberg was present on the site on the Sunday cleaning up after the previous builders and left the site at lunchtime. At the end of the day Bartlett dropped Bielek off at his Grandparent's but on this occasion there was no request to attend the job site the next day.
On the Monday (at around "smoko" time) he received a call from Bielek who said he had fallen off a brick wall the previous day and hurt his back. Bielek refused to answer questions put by Bartlett about the incident and when told about Bartlett's departure to return home did not seek a lift. At the end of the day he commenced the journey home which was to be in stages as he had a couple of days work to finish on a job at Lakeland. The job at Malanda was not completed and would have required a number of visits to get the job to the lockup stage however the owner went bankrupt and of the $32,000 owed to Bartlett, he "never got a cent". This led to a falling out with Hohnberg as he had to put (unsuccessfully) a caveat on the job. The $32,000 was described as a progress payment.
A week after he returned home (around 23 February 2012) he rang Bielek to tell him to come and look after his dogs which he agreed to do. There was no mention of his back or falling off the wall. On 25 February 2012 whilst mustering cattle along the main road, he observed Bielek and another man in a vehicle with the dogs. Bielek was informed at that time one of the dogs had died with that being the extent of the conversation. He had not seen Bielek in person since that date.
Bartlett gave evidence of having or caused to be made two payments to Bielek. Firstly on 17 January 2012 a payment of $700 was made to enable him to have a dog released from a veterinary clinic. Bartlett had used the same veterinary practice and as Bielek had used him as a reference they decided to give him the money. The payment was considered to be a loan with money being deposited into Bielek's bank account on 17 January 2012. Despite it being a loan it was Bartlett's opinion he did not "realistically" expect to be repaid the money from Bielek.
On 17 February 2012 a second payment was made by the Bartlett's of $600 for the purpose of a loan to assist Bielek have his vehicle repaired as the vehicle was un‑roadworthy. The vehicle had been left on a neighbour's property. He had no way of working to pay back the loans as "his back was too sore to work" and he was not capable of physical work. The money was deposited into Bielek's bank account by Hatfield as also happened with the first loan. To date neither amount had been repaid.
After Bielek had lodged a claim for workers' compensation he had a telephone conversation with Barratt (a WorkCover Claims Officer) on 27 March 2012. He did not recall telling her Bielek had worked for him on 13 February 2012 as a labourer but recalled telling her he had "ended up coming to work that day but not as a labourer". He told her Bielek had not performed any work nor received any payment. He recalled telling the WorkCover Claims Officer that Bielek owed money and was helping out around the place to make life easier for his partner. Bielek whilst at Battle Camp was provided with accommodation plus food at no cost. There was recall of telling Barratt that Bielek had told him on 13 February 2012 he had a sore back and did not know when he might return to work but they were not his words he had just repeated what Bielek had told him. It was a response to a question from the WorkCover Claims Officer.
In a second conversation with Barratt at the beginning of May 2012 he recalled telling her that they had lent Bielek two amounts of money and they were not amounts given for work. A comment to Barratt had been that they had been helping him out at the place related to Bielek's presence at Battle Camp.
Under extensive cross‑examination, Bartlett firstly accepted that despite Bielek having a potential workers' compensation claim on false allegations and he would not answer questions how he allegedly injured his back on 14 February 2012 he had still offered him a lift back to Battle Camp [Transcript p. 1‑42]. Bartlett believed Bielek had made up a tale about being injured to stay in Malanda to party [Transcript p. 1‑43]. On the trip from Battle Camp to Malanda, Bielek had requested a loan of $600 to repair his vehicle which had been agreed by him. Bartlett had not sought to recover the loans of $700 and $600 from Bielek because it was hard "to get blood out of a stone" [Transcript p. 1‑45].
He further accepted that three years prior to offering him accommodation and food at Battle Camp he met Bielek just once when Bielek's vehicle was bogged. The offer of accommodation had no time limit and he would not have to do any work in return [Transcript p. 1‑45]. On occasions whilst Bielek was at Battle Camp he was given fuel (without charge) for his vehicle [Transcript p. 1‑46].
Bartlett did not accept Bielek had been offered a Caretaker role at Battle Camp [Transcript p. 1‑50] or that he had paid him $50 per day (in cash) to watch the property from 18 December 2011 [Transcript p. 1‑52]. Bielek had never been offered paid construction work with Bartlett [Transcript p. 1‑53]. The material for the Malanda job had been delivered on site having been purchased from an Atherton hardware store [Transcript p. 1‑55].
Bartlett had carried out building work at Lakeland Downs for six months in 2012 but he denied that Bielek had worked on that job and that the payment of $700 to him was for that work [Transcript p. 1‑58]. Bartlett resisted a number of propositions regarding Bielek being on the Malanda site indicating he was not allowed on the site because Bartlett did not want him there [Transcript p. 1‑59].
Prior to going to Malanda, Bielek had been unable to lift anything physical because of a back condition [Transcript p. 1‑67]. In late 2011/early 2012 he was in a position where he had some spare money due to having sold Battle Camp but after giving the $1,300 to Bielek as a loan had had not lent anybody any money [Transcript p. 1‑68]. Although previously he had loaned young men monies which had been repaid [Transcript tp. 1‑69].
With regards to his claim on Hohnberg for $32,000 he had put a caveat on in March 2012 and tried to sue him in April 2012 [Transcript p. 1‑71]. The $32,000 included work he had completed earlier [Transcript p. 1‑71]. The labour component was $15,000 [Transcript p. 1‑72].
In his conversation with WorkCover Officers he conceded he had told them:
·        Bielek owed him money;
·        Bielek did random jobs for him around the house;
·        Bielek ended up coming to work on 13 February 2012;
·        that Bielek did fall ‑ he told him he had fell; and
·        Bielek had a drug history.
Bartlett accepted that spending 10 hours a day over the Saturday and Sunday at the ute doing nothing would be "mind numbingly boring" [Transcript p. 1‑74].
In re‑examination, of the $32,000 owing for the Malanda job there was an allocation for future work in relation to windows and the roof. Bartlett had previously been lent money to others who had lent him a hand doing work on his property. Since 2012 he had neither given away free cash or labour.
Billy‑Joe Bartlett
A Carpenter of nine years standing, Billy‑Joe Bartlett was a step‑cousin of Bartlett and had only recently renewed his acquaintance. Having relocated from the Northern Territory, he and his wife were living with Bartlett's father who had informed him that his son had some work on and contact was made.
In February 2012 he worked for Bartlett on a job at Malanda, travelling up each day from Gordonvale. On his arrival he met Bartlett and Bielek who were at the site. From the time of the initial conversation, Bielek remained in Bartlett's vehicle which was parked 20 metres from the front of the house. The employment arrangement was for him to subcontract to Bartlett although there was no rate agreed prior to his commencement.
He described the work undertaken on the Saturday recalling that Bielek never came on site nor did he witness Bartlett giving him any instruction. At the conclusion of work on the Saturday he returned to Gordonvale returning the next morning.
On the Sunday, along with Bartlett, he cut and fixed battens and at no time did he see Bielek on site. A little later that morning Hohnberg arrived at the site and carried out work relating to cleaning up the site. Bielek remained at Bartlett's vehicle as he had done the previous day and did not come on site.
Billy‑Joe Bartlett worked there again on Monday for a half day and in terms of remuneration he received a total of $808.50 from a charged out hourly rate of $35 per hour plus GST. Since the Malanda job he had not undertaken any further work for Bartlett. He concluded his evidence‑in‑chief by describing the process relied upon to install battens. It was also his experience that people not working on a site were not permitted on that site.
Under cross‑examination, he described once again the work involved with the installation of battens [Transcript p. 1‑91]. On the Sunday, each time he looked in the direction of Bartlett's ute he observed Bielek reading a newspaper, sitting down, smoking and listening to music on the vehicle's radio [Transcript p. 1‑92]. When pressed, he gave evidence of observing Bielek reading the newspaper whilst seated in the vehicle and at the back of the vehicle which in total was for a period of 45 minutes [Transcript p. 1‑93]. He conceded that he did not know whether Bielek was at the ute all day or not [Transcript p. 1‑94].
Billy‑Joe Bartlett also had difficulties recalling the time of year in which the work was performed [Transcript p. 1‑95]. The words used regarding Bielek "hanging around the ute" were his own words. He had never written down a version of what happened at the Malanda job, however Bartlett's lawyers had written one for him eight to nine months previous [Transcript p. 1‑95]. There had been no instruction about what evidence he had to give to the Commission with him being here to tell the truth [Transcript p. 1‑96].
Billy‑Joe Bartlett had not been aware Bielek was living at Bartlett's house at the time or of how he had travelled to the Malanda job [Transcript p. 1‑97]. On the Sunday he had eaten his lunch near Bartlett's vehicle with evidence Bielek never ate at the time but was smoking which, on recollection, was described as rude [Transcript p. 1‑98]. At no time did he ever speak to Bielek [Transcript p. 1‑99]. Billy‑Joe Bartlett had not negotiated a rate prior to the job, giving evidence he had previously worked for family and friends without knowing what payment he would receive. He had no idea of what work he was to undertake or the duration of the project [Transcript p. 1‑100].
The payment from Bartlett was made into his bank account on 17 February 2012 [Transcript p. 1‑102]. He had never had a conversation with Bartlett about Bielek not being allowed on site, giving evidence that he "didn't know that he [Bielek] was not allowed to go on the job site" [Transcript p. 1‑103].
In re‑examination, Billy‑Joe Bartlett in response to a question from the Bench indicated he had recently contacted Bartlett about work and would "work for him again in a flash".
Hatfield
Bartlett's partner of 17 years, Hatfield gave evidence of Bielek living at Battle Camp after having met him on a neighbouring property in December 2011. Prior to the offer to stay at the property they had only met him on one previous occasion being in 2008 or 2009 when he had become bogged in the Lakefield National Park. The offer of accommodation was not unusual as Bartlett had previously assisted others with nowhere to live. He had arrived on 31 December 2011 with his seven dogs in a utility that had front end damage.

Shortly after Bielek's arrival, the family departed to spend New Year in the Daintree returning two days later to find Bielek not at the house and drug taking utensils on a table on the front veranda. When he arrived about an hour later he informed them he had been on a hunting and fishing trip at which time she witnessed Bartlett admonishing him in regards to the drug use, consuming his beer and taking their ute without permission. She was not aware of any arrangement for Bielek to undertake work on their property.
Bielek left the property a couple of days later and was away for two weeks during which time she had to look after his dogs, two of which had injuries. On his return he stayed for about a week before leaving and returning on 9 February 2012. Bartlett left for Malanda on 10 February 2012 and took Bielek with him as Hatfield did not feel it appropriate another male should remain in the residence without Bartlett's presence.
Bielek, whilst staying at Battle Camp had informed her of being in a motor vehicle accident previously, having suffered head and back injuries which left him with ongoing pain which he self‑medicated by the taking Panadol regularly. She gave evidence of her knowledge of the arrangement with Bielek to stay at the property which required him to do general duties of cleaning up around the house "that you would do if you were a guest in somebody's house". They had never employed caretakers at the property and whilst Bielek was at the property it was the wet season which was their "down time".
Two payments were made by them to Bielek with the first being $700 given on 17 January 2012 which was a loan to meet a veterinary bill. She trusted Bielek to pay that money back when he was in a position to do so. A second payment of $600 was made on 17 February 2012 which was a loan to assist with repairs to his vehicle which was agreed to by Bartlett in the course of their trip to Malanda. Despite not repaying any monies from the $700 loan it was her understanding he was trying to but he had not worked. The $600 was paid by internet transfer at the same time she made all other similar transfer payments. Bielek did not return to Battle Camp with Bartlett and the next time she saw him was on 25 February 2012 on the main road near their property which was also the last time she had seen him.
The first time she became aware of Bielek's workers' compensation claim was when WorkCover (Barratt) telephoned her about the claim at which time she advised that Bielek was not their worker.
Under cross‑examination, Hatfield confirmed she had never had a discussion with Bielek about whether or not he would be required to do any work in return for accommodation nor did she speak to him about a requirement to do any work [Transcript p. 1‑112]. Hatfield confirmed that prior to Bielek arriving at Battle Camp and after he had spent some time at other accommodation but it was not clear to her that his tale about having nowhere to stay might not be the truth [Transcript p. 1‑115]. It was put that it was not logical or true to say Bielek had nowhere to say and Hatfield replied "You'd have to ask Cameron [Bielek] that". On an unspecified date Bielek had told her "I'm very thankful that Neil offered for me to stay here as I have nowhere to stay" [Transcript p. 1‑116].
In terms of the $700, Bielek had asked for the money to pay his veterinary bill and Bartlett had rang her from Malanda on the day of travel advising that he agreed to give Bielek $600 [Transcript p. 1‑117]. Whilst in Malanda, Bartlett had rung every night but apart from the first night she never mentioned Bielek [Transcript p. 1‑118]. She had little or no understanding of the concept of workers' compensation because they had not employed anyone [Transcript p. 1‑119]. She believed that Bielek would repay the money as Bartlett had previously lent money on two occasions and it was paid back. She recalled him (Bartlett) making two loans of $50 which were repaid plus a business loan of $1,000 that was repaid [Transcript p. 1‑120].
Regulator
Barratt
Barratt had been employed by WorkCover for six years and in 2012 was engaged as the claims representative who determined Bielek's claim for workers' compensation. The process involved includes the preparation of communications reports where the claims officer takes notes of telephone conversations with persons involved in a claim for workers' compensation. These documents [Exhibit 9] were tendered in the proceedings with Barratt giving evidence in respect of processing of claims and of the training provided by WorkCover. In the first instance the claim was rejected on the basis of Bielek not being a worker.
Under cross‑examination Barratt was questioned regarding the claim documentation which identified the claim for compensation being made on or about 16 March 2012 rather than 2 February 2012. Barratt accepted that the American dating system had been used on the printout [Transcript p. 2‑7]. As a claim's manager her case load was of 35 to 40 matters running at the same time which resulted in approximately 75 per cent of her work time being on the phone to doctors, providers, employers and injured workers. On each occasion of a telephone call she would take notes at that time utilising hands‑free headsets [Transcript p. 2‑9]. Barratt gave evidence of being trained to initial each entry on Verbal and Unsuccessful Communication Reports and of that being her practise [Transcript p. 2‑10]. Barratt was confident her entries were accurate [Transcript p. 2‑11] however acknowledged a mistake in the "reasons for decision" letter sent to Bielek. Whilst it was possible to make a typo with a word or number, did not accept she got actual information wrong [Transcript p. 2‑12]. Barratt refused to accept that on occasion the context was sometimes lost in her notes [Transcript p. 2‑13]. She also confirmed her notes had reflected what Bartlett had told her including "Cameron [Bielek] did fall, but he was not a worker. He was helping me out" [Transcript p. 2‑14].

Bielek

Bielek in evidence stated that in December 2011 he was staying with his parents on a farm in Cooktown which they had been sold five years earlier but his parents had remained working for the new owner.

After Christmas 2011 his parents moved to Mareeba where they lived in a caravan which had the capacity to accommodate him. At the same time he was helping build a set of cattle yards when he again met Bartlett who was known to him from when he had become bogged around 2008 and Bartlett had helped him out. At the time he was using a crowbar and shovel in connection with his work around the construction of the cattle yards.
Bielek had been involved in a motor vehicle accident some years earlier where he sustained fractures to his skull but did not suffer any injuries to his back leaving him fit to perform physical work as at December 2011.
Within two days of the December 2011 contact with Bartlett he received a telephone call from him offering some caretaking work at Battle Camp for a period during the wet season. The proposition was not unusual as a lot of stations take holidays in the wet season. The standard caretaker rate was $400 per week. Upon accepting the offer for which no payment arrangement had been struck, he arrived at Battle Camp prior to New Year on the understanding his role including feeding dogs, horses and chickens.
He arrived at Battle Camp in a Toyota Hilux utility which had a cage fitted to transport his dogs. The cage weighed around 120 to 130 kilograms and whilst it was easier to manage with two people, he (in December 2011 and January 2012) was able to manage it on his own. The Bartlett family left the next day and he remained on the property. On their return he was paid $200 (in cash) for half a week's work. In Bartlett's absence, Bielek drank a carton of Bartlett's beer but denied he used drugs on the veranda.
In the period following he was absent from the property at the time visiting Cooktown and in between the absences he helped Bartlett with station work that included checking fences. There was an offer of some work as a labourer assisting Bartlett with building work at a Tablelands location. There was no actual money amount discussed but he was told he would be paid "a lot better" if he came away building.
He accepted the offer and travelled to Malanda with Bartlett where he stayed at his Grandparent's house. On the Thursday they undertook a gyprock sheeting job in Malanda and then went off to Palmerston returning to Malanda on the Saturday afternoon. On the Sunday morning Bartlett picked him up and they travelled to Hohnberg's job where Hohnberg and Billy‑Joe Bartlett were present. He undertook work on the Sunday which included:
·        working up on the trusses;
·        marking out where battens went; and
·        laying out battens.
He assisted Billy‑Joe Bartlett as he fixed the battens and the other work associated with that task. After battening for the entire day he returned to his Grandparent's place and the next morning he had his Grandma call Bartlett to inform him that Bielek could not work as he had fallen off the roof at "smoko time" on the Sunday and he was going to the doctor. In describing the incident, he stated:

"I've just sat down off the rafters, placed the drill down, gone to step back onto the blocks, and kind of kept stepping down off the blocks…"

After he fell off the roof he went around to the other side of the building and told Bartlett what happened and had "a bit of a whinge" about not wanting to be up there. After sitting down and having a smoke Bartlett told him to "hurry up and either keep working or walk up the road". Bartlett was concerned about his drill saying "I hope you didn't break me drill. It's an expensive drill".
Bielek immediately felt extreme pain in his lower back and whilst he continued to work battening out he was in discomfort for the whole day. He mentioned the pain to Bartlett and not wanting to get back on the roof but was told to "either keep working or there's the road". There was no conversation with Billy‑Joe Bartlett about either falling off the roof or having a sore back.
Following his visit to the doctor on the Monday he rang Bartlett and informed him he had a medical certificate who then said words to the effect "if you can't work, you can't work". On the Tuesday Bartlett informed him he would be going to Cairns to do a few jobs and would let him know when he was heading back to Battle Camp. Bielek stayed with his Grandparents in Malanda and eventually found his own way back to Battle Camp two and a‑half weeks later.
In the company of a mate Bielek returned to Battle Camp and picked up his dogs and gear and as he was leaving he had conversations with Hatfield and Bartlett informing Bartlett how hurt he was without a great deal else being said. In an earlier phone call to Bartlett he had been told there was no light duties work and he should come and grab his animals and go and get better.
The payments he received from Bartlett were $1,300 in total for two lots of billing work he had done. There was $700 for working on Bill Ready's farm with Bartlett on a roof job (three and a‑half days) and the $600 was for three days work at Malanda. There was no arrangement for a loan to meet a veterinary bill and he had not used Bartlett as a reference with veterinary practice. Further there was never a loan made by Bartlett to assist with repairs to his vehicle.
Other evidence‑in‑chief from Bielek included:
·        in December 2011 he was not having a "rough trot";
·        he was never shown how to sharpen a chainsaw by Bartlett;
·        prior to arriving at Battle Camp he was able to pack bearings; and
·        Bartlett had given him permission to use the "farm ute" at Battle Camp.
Under cross‑examination Bielek recalled meeting Bartlett in 2008 and again in December 2011 whilst he was working on cattle yards for Colin Donaldson [Transcript p. 2‑39]. A couple of days later Bartlett offered him some caretaking work without mention of what the payment would be which was not a worry for him as it was up to the person offering to set the rate. There was a general rate of $400 per week [Transcript p. 2‑40]. He arrived at Battle Camp between Christmas and New Year in 2011 and for caretaking duties was paid $400 in two payments of $200 [Transcript p. 2‑41].
On the arrival date at Battle Camp Bielek conceded there was a possibility he had told lawyers acting for the Regulator he arrived in mid December 2011 but was unsure if that was the case. Prior to coming to Battle Camp he had a damaged Toyota Hilux and one of his dogs had been injured on Boxing Day [Transcript p. 2‑43]. Bielek was unable to provide an exact date of his arrival and could not be sure it was not New Year's Eve [Transcript p. 2‑44]. He was also unsure whether the Bartlett's had left that afternoon or the next morning [Transcript p. 2‑45]. Bielek was unsure of the number of days they were away despite giving evidence of being paid for eight days caretaking duties [Transcript p. 2‑46].
On the first occasion he went to Cooktown he took his dogs with him [Transcript p. 2‑47] and confirmed prior to that Bartlett had given him permission to use the farm ute and to consume a carton of his beer [Transcript p. 2‑47]. He accepted he had smoked cannabis while the Bartlett's were away from the property [Transcript p. 2‑48]. Bielek accepted it would have been difficult for him to stay in the area once his parents relocated, however denied ever telling Bartlett he had nowhere to live [Transcript p. 2‑49].
On 8 February 2012 he accompanied Bartlett to a job in Palmerston where he undertook work which entailed "digging holes etcetera finishing about the Friday". There was no discussion about what payment he would receive for the work [Transcript p. 2‑51]. Previously there had been work undertaken at Lakeland (Bill Ready's job) and also a night at Palmerston for which he was paid on 17 January 2012. From 18 January 2012 until he left for Malanda he had remained at Battle Camp [Transcript p. 2‑54]. Bielek was questioned regarding a bank transaction document that had him conducting a number of transactions between 18 and 24 January 2012. There was also transactions at Cooktown on 7 and 8 February 2012 [Transcript p. 2‑56] with Bielek's evidence being he was with Bartlett on 8 February 2012 on the way to Palmerston via Cooktown [Transcript p. 2‑57]. Bielek denied being away from Battle Camp for a number of weeks in January 2012 [Transcript p. 2‑58].
Regarding his use of medication, he took anywhere from four to eight Panadol tablets a day (as needed) for headaches from a car accident [Transcript p. 2‑58]. At the time of the car accident he had been driving under the influence of alcohol [Transcript p. 2‑59] but he had not suffered a back injury as a result of that accident. Bielek denied telling Dr Gibbs on 13 February 2012 that he had a pre‑existing injury to his back from the car accident [Transcript p. 2‑60] also denying providing the same information to Dr Smith on 14 March 2012. He recalled having a muscle strain to his back at some earlier time when he was doing farming work [Transcript p. 2‑61].
Following the car accident on a visit to a chiropractor it was found he had a fracture to his pelvis that had not been picked up at the time of the accident. He had informed WorkCover of that injury. The only ongoing problems from the car accident were with his eye and skull fractures that took four years to heal [Transcript p. 2‑62].
Bielek did not accept he left Battle Camp on 10 February 2012 to travel to Malanda, maintaining his earlier position of leaving prior to that date and undertaking other building work in Palmerston and Malanda [Transcript p. 2‑67].
Monies paid for his caretaking duties were paid in cash with the only the payments into his bank account being for the building work [Transcript p. 2‑68]. He recalled informing WorkCover the $600 paid into his bank account on 17 February 2012 was for building work on 10, 11 and 12 February [Transcript p. 2‑69]. However he had no recall of informing WorkCover he had received $50 per day for station work [Transcript p. 2‑70]. In terms of the condition of his motor vehicle at the time he arrived at Battle Camp, it was his evidence it was damaged as a result of hitting a kangaroo but was serviceable [Transcript p. 2‑73].
Sometime in February 2012 he spoke to Bartlett and was told Hatfield could not continue to look after his dogs and he needed to come and get them which he did on or around 25 February 2012 [Transcript p. 2‑78]. Bielek maintained he worked on Hohnberg's job on the Sunday only [Transcript p. 2‑85]. Hohnberg had arrived on the job quite late in the day around 4.00 pm [Transcript p. 2‑86]. He worked with Billy‑Joe Bartlett on the Sunday in work related to the battens [Transcript p. 2‑88].
On the Sunday he had fallen off the roof at around 10.00 am to 10.30 am and was "made" to keep working despite being in a lot of discomfort [Transcript p. 2‑88]. He recalled telling Barratt there were no witnesses to the event and that Bartlett was on the job site as well [Transcript p. 1‑89]. Bielek had some difficulty recalling precise details of phone conversations involving himself and Bartlett in the time immediately after 13 February 2012 [Transcript p. 92‑93].
Bielek continued to deny that the amounts paid into his bank account ($700 and $600) were for loans for a veterinary bill and repairs to his vehicle [Transcript p. 2‑99].
In re‑examination Bielek gave evidence relating to the geographic locations of Lakeland Downs, Palmerston, Mareeba and Malanda in respect of Battle Camp.

Submissions
Regulator

The issue before the Commission revolves around whose evidence is preferred, what the Commission made of each witness and the stark difference in the various accounts.
The evidence of Bielek it was conceded was all over the place with dates and various ancillary things. He became confused in the course of a detailed and competent cross‑examination displaying a lack of recollection and giving the appearance of being an unreliable witness.
The starting point in the case of Bielek was his lifestyle which tells you the sort of person he is and it would seem he "marches to the beat of a different drum" in that he is not interested in building wealth but is a simple soul who lives a very simple life.
Bielek was not accustomed to an environment like the Commission but was open and willing at times to concede he was mistaken with some of the detail in his account of what had happened. In terms of honesty:
·        he unhesitatingly agreed he had smoked cannabis;
·        he did not attempt to minimise his level of usage; and
·        his failure to declare cash payments to Centrelink.
The ultimate question is whether he presented as a person with the capability to have the guile to make up a somewhat detailed series of lies and stick to them. It was not a simple lie about whether he was employed by Bartlett or not. He went into detail about:

·        the type of work done;
·        location of various jobs; and
·        hiring by Bartlett as a caretaker.

He did not present as a person with a level of deviousness or with the capacity to maintain a procession of lies.

The questions of Bielek around why he had not raised issue with Bartlett about the quantum of pay was no different to that of Billy‑Joe Bartlett who had not negotiated a rate prior to the commencement of the work. Issues around errors in dates were not confined to Bielek with Bartlett also having difficulties which is understandable due to the passing of time.
Hohnberg's evidence was that Bielek was not on site or around the ute that was within 10 to 15 metres of his property which was contrary to Bartlett's evidence of him hanging around the ute all day Saturday and Sunday reading the paper and smoking. All in all it was submitted that Hohnberg's evidence did not assist either side.

The evidence of Hatfield was the subject of criticism in respect of a great deal of her knowledge relied upon what Bartlett had told her and she presented as a person who would say anything that was necessary to say to support her husband. In relation to Bielek not having access to other accommodation while he was at Battle Camp she had denied the undeniable. She was not a witness on whom reliance could be placed.
On the evidence of Bartlett there was a likelihood of him lying which started with him allegedly offering Bielek (an almost complete stranger) accommodation that might have gone on for years without a conversation about such an offer with his partner which was said "just beggar's belief". The claim that Bielek had nowhere to stay when the evidence is considered did not make any sense at all. The fact that an almost complete stranger arrived at Battle Camp on the same day they were leaving for the New Year and was entrusted to mind their property made no sense at all unless he had actually been employed as a caretaker otherwise it just happened to be a coincidence he turned up on the day in question.
On the $700 payment allegedly given as a loan to pay a veterinary bill, it had been argued they did not want their veterinary to be out of pocket and it might teach Bielek to handle his finances if the money was paid into his account. Interestingly there was no evidence of Bartlett or Hatfield ever asking Bielek if he had fixed up the veterinary bill.
The aspect of helping people out financially through their generosity previously related to "them boys" and not a 25 year old man like Bielek. There was no evidence of Bielek being in trouble and he was not a callow youth. The young boys to whom Bartlett referred turned out to be three young indigenous boys who arrived at Bartlett's property because their parents and grandparents had asked Bartlett if they could come to the property.
Bartlett had continually stated Bielek had been told not to go anywhere near the Malanda site and it was implied that Bartlett "would take him on" if he had entered the property. Claiming such an instruction whilst it does not make sense does not help the theory Bielek was not employed on the site. The site itself was not a multi‑level commercial building with cranes and other equipment hovering about.
The notes made by the WorkCover Officers were said to be monumentally wrong by Bartlett with Bartlett claiming they were wrong when he said Bielek was not a labourer, that turned into the positive that he was a labourer but on all other things, the officers managed to get it right.
There were issues around Bartlett saying he had offered Bielek a lift back to Battle Camp hard on the heels of Bielek coming forward with completely false allegations he had fallen off the roof. It was put to Bartlett his trust had been betrayed by Bielek and in spite of this Bartlett not only offered him a lift but went ahead with giving him a loan of $600 after he had been told a serious lie. Bartlett was clear that he did not expect to get the $600 back but was prepared to part with the money to a person who claimed to have been injured on a job that he was not even on.
The claim by Bartlett that Bielek spent ten hours on the Saturday at the ute (off site) smoking and reading and backed up to do the same again on the Sunday in circumstances where he had grandparents in Malanda was said to be fascinating. Bartlett had, according to the evidence, spoken to his wife on 10 February 2012 about the prospect of making the $600 loan to Bielek but had not said a word to Hatfield about offering accommodation that might have gone on for years to a complete stranger.
Bartlett portrayed himself as a wonderful human being yet set out in the case of Hohnberg to recover $32,000 for work valued at the time at $15,000. He had set out to "dud" his own family member for $17,000. That was said to be the true measure and Bartlett is simply not to be believed.
The evidence of Bielek tended to confirm his version of events.
Appellant

[100]There was no reconciling the two accounts and to accept Bielek's account of the formation of the relationship, the meeting and the coming to Battle Camp, the Commission would have to reject the evidence of Bartlett and Hatfield. To accept Bielek on whether or not he was a worker, there would need to be a rejection of the evidence of Bartlett, Hohnberg and Billy‑Joe Bartlett meaning his evidence would have to be accepted against the evidence of those four witnesses.

On Bielek coming to Battle Camp, there was some consistency about the initial meeting but there was inconsistent evidence on the date upon which he arrived and it cannot be the case he arrived in mid December 2011. The importance of the arrival date at Battle Camp matters as to what monies Bielek says he was paid to caretake the property in and around New Years and then the various periods Bielek was absent from Battle Camp.

[102]The actions of Bielek in being able to freely come and go shows as is the Appellant's claim he was not working for them or tied to them. He was a young man who goes on with life, and could come and go as he pleased which was confirmed by his bank statements.
[103]In context of other construction work, particularly the Lakeland and Palmerston jobs, the evidence of Bielek that he had worked there was a lie and he had simply taken something he had heard to be used in spinning his lie. The Palmerston job, according to the evidence of Bartlett, had never happened and there were inconsistencies with the evidence around these jobs as there was about the gyprock job said to have been done in Malanda and which Bartlett did not know anything about.
[104]The most important problem with Bielek's account on the sequencing of these jobs is when his Westpac Bank statement [Exhibit 10] is examined. On 6, 7 and 8 February 2012 they show him in Cooktown with a withdrawal being made in Cooktown on 8 February 2012 which makes his position a lie. The dates are consistent with a departure from Battle Camp on 10 February 2012 for Malanda which invites a finding Bielek was not in Palmerston building sheds.
[105]The evidence of Bartlett and Billy‑Joe Bartlett was clear that they were on the Malanda job on the Saturday and Sunday, worked all day and Bielek was off site. In the case of Bielek he had nominated 13 February 2012 as the date of injury as opposed to 12 February 2012 which might be forgiven along with one or two inconsistencies but in this case there were a litany. He claimed to have been on the site for one day and that Hohnberg who he had met (off site) the previous day turned up at 4.00 pm in the afternoon. That was not Hohnberg's evidence and there is no reason to reject that evidence. Hohnberg, as pointed out by Counsel for the Regulator, was in no one's camp and if anything he would have a grudge to bear against Bartlett who took a very hard line in relation to the contract against him. There were inconsistencies in Bielek's evidence with regards to his meeting with Hohnberg at Bartlett's sister's place and his presence on the Malanda job. Bielek had been caught out and was said to have "dropped an absolute clanger" which could not be retrieved in re‑examination. Bielek's evidence should be rejected. On the issue of Billy‑Joe Bartlett not tying down a rate for the job prior to commencement and Bielek doing the same, it can be reconciled by the fact that Billy‑Joe Bartlett was doing a one‑off job for a relative and Bielek was entering into a long‑term business arrangement.
[106]The evidence around Bielek's Grandmother calling Bartlett at 5.30 am was described as strange as Bielek's evidence was he tried to call Bartlett at 6.15 am because he could not get out of bed and was contrary to Bartlett's evidence. Bielek had told WorkCover on 19 February 2012 that he had rang Bartlett. The conversation between Bielek and Bartlett about returning to Battle Camp on the evidence is likely to have occurred on 20 February 2012 and not the day Bielek first visited the doctor or the day after.

The WorkCover document recorded Bielek first saw the doctor on 23 February 2012 which was not right as he saw Dr Gibbs on 13 February 2012. The notes record on 25 February 2012 Bielek stating he was "sacked" which was said to be the use of language to demonise Bartlett. There is reference in the notes to being paid $600 for three days' work but it is not clear if it refers to station or building work although Bielek's evidence is he does not get paid for station work. The claim by Bielek in the WorkCover notes (1 May 2012) lists the working dates in Malanda as 10, 11 and 12 February 2012 and were not right as he was obviously working on 12 February 2012 only. The notes contained inconsistencies around the injury to his dog at Christmas time in terms of who ran over his dog.

[108]Bielek claimed to have been not paid for three weeks of work through some loose commercial arrangement seeking to demonise Bartlett as a "bad person. Doesn't pay me money. Taking advantage of me". The actual position is that Bielek had taken advantage of Bartlett's good nature. Bielek's exchanges with WorkCover were not reliable or credible and his failure to declare "cash payments" to Centrelink showed him as someone who was willing to defraud the government.
[109]Findings of credit are relevant in respect of key events including:
· whether Bielek was engaged as a station hand or caretaker; and
· two payments into Bielek's account ‑ were they loans for payment of a veterinary bill and damage to his vehicle.

On a conversation between Bartlett and Vanja Perisic (Perisic) (WorkCover) on 27 March 2012, which was a disputed conversation, there was a notation stating:

"He [Bielek] ended up working on 13 February as a labourer. He was owing me money, so he would do random jobs here to pay me back what he owed".

Bartlett disputed this entry stating Bielek was not doing labouring work for payment. It may be Bartlett was not clear in his conversation with Perisic but, of course he was dealing with a Government agency and Bartlett was not a particularly sophisticated person.

[111]Bartlett also contested an entry in the WorkCover record of 2 May 2012 which stated "Cameron [Bielek] did fall, but he was not a worker. He was helping me out ‑ I never paid him".

[112]Barratt was unprepared to accept fallibility claiming 100 per cent accuracy, despite managing 30 to 40 files, spending 75 per cent of the day on conversations with different people. The comment in question was not really an error but just contextual, a recording issue.
[113]Bartlett had been portrayed as a "hard" person in his dealings with Hohnberg and Bielek but that does not prevent him from being a generous person. He was a country man who would help other people. The matter with Hohnberg was business and he felt he had an entitlement.

The evidence of Bartlett was credible and reliable as was the case with Hatfield, Billy‑Joe Bartlett and Hohnberg whose evidence should be accepted by the Commission and it should be found that Bielek was not a worker on 12 February 2012.
Regulator in reply

[115]There were no matters of law to which the Regulator sought to reply, however leave was sought and granted to allow a further submission in respect of an oversight.

The submission questioned the alleged absence of any conversation between Bartlett and Billy‑Joe Bartlett about Bielek being on the job site at the time Billy‑Joe Bartlett was being requested to give evidence in the proceedings.
Note: Counsel for the Appellant was afforded the opportunity to respond indicating nothing much turned on this point.
Conclusion
The issue for determination is the discrete point being whether Bielek on 12 February 2012 was, pursuant to s 11 of the Act, a "worker" in the employ of Bartlett at the time he is alleged to have suffered a personal injury as a result of falling from a brick wall on a building site at 4 Angelita Close, Malanda.
Prior to consideration of the evidence relating specifically to 12 February 2012, it is necessary in the circumstances to examine matters leading up to that date.

[119]The case advanced on behalf of the Appellant was that in or around 2008 Bartlett met Bielek for the first time when he and two others had become bogged and had sought the assistance of Bartlett and Hatfield in being extricated from their predicament. Bartlett, having not seen nor heard from Bielek following that incident runs into Bielek next in December 2011 on a neighbour's property where Bielek was helping the neighbour construct a set of cattle yards.
[120]Bielek was said to be doing it tough with nowhere to live which prompted Bartlett to offer him accommodation at Battle Camp in the same house shared by his partner and their three daughters at no financial cost and for an indefinite period of time with the only requirement being that Bielek keep his room tidy and help with domestic duties around the house.
[121]There was no evidence that Bartlett had discussed with his partner the intention of having a young male, who could reasonably be described as an "almost complete stranger" move into the family home geographically located in an isolated area or how such an arrangement would work when Bartlett was absent from Battle Camp undertaking his building activities.

Bielek offered a different version in that in December 2011 he was not having a rough time and within two days of meeting Bartlett for only the second time he had received a telephone call from Bartlett offering him caretaking work at Battle Camp for the period of the wet season.
Nevertheless it would appear that on or around 31 December 2011 Bielek arrived at Battle Camp in a ute with a dog cage containing his seven dogs. Bartlett and his family likely left Battle Camp that afternoon leaving Bielek at the property for a period of time it would seem between two and four days where according to Bartlett his only role was to look after Bartlett's dogs.

[124]On return to Battle Camp Bartlett had issues with Bielek who in his absence had driven the farm ute, drank a carton of his beer, both without authority and of more concern there was evidence of drug taking at the family home. Upon making inquiries Bartlett found that Bielek had brought a "few of his mates" on to the property without Bartlett's consent causing him to chastise Bielek.

Despite contradictory evidence regarding time spent away from Battle Creek by Bielek between 1 January and 8 February 2012, it is suffice to say there were numerous occasions where Bielek had left the property and certainly evidence to support he was at times in Cooktown. These absences would tend to "fly in the face" of evidence given from Bartlett that Bielek had been offered the free accommodation at Battle Camp because he had nowhere to stay with there seemingly being ample accommodation available to Bielek in this period.

There was disputed evidence about whether Bielek had been paid relatively small amounts of cash by Bartlett for caretaking and station work in January 2012 however there was no doubt that on 17 January 2012 Bartlett transferred an amount of $700 into Bielek's personal bank account. Bielek claimed the monies were payment for construction type work he undertook with Bartlett, naming a property at Lakeland owned by Bill Ready as the location where the work had been done.

[127]Bartlett's version was the $700 was a loan given to Bielek to assist with paying an outstanding veterinary bill and that he had no expectations of Bielek ever repaying the loan. Bartlett and Hatfield had justified the loan on the basis of the veterinary work having been performed at the same veterinary practice they used and in effect did not want their reputations damaged by an association with Bielek if he failed to pay his bill.

The position that emerged in the proceedings was that Bielek's dog was injured on Boxing Day 2011 and treated prior to his arrival at Battle Camp on 31 December 2011 thus the account was incurred at a time when Bielek had only met Bartlett on two occasions in his entire life and had no direct or indirect ties with Bartlett that could reasonably infer his failure to pay the account could reflect negatively on Bartlett or Hatfield. There was no evidence of any enquiry having been made of Bielek as to whether the $700 had been paid towards his veterinary account. The position of Bartlett is not supported by corroborative evidence other than from Hatfield who gave a version contrary to Bartlett in respect of her expectations of Bielek repaying the alleged $700 loan.

[129]On consideration of the evidence of Bielek in terms of his description of work performed on Bill Ready's property, I would conclude the likelihood of a payment of $700 for work performed is a more likely proposition than the scenario advanced by Bartlett and Hatfield which in many respects could be readily described as "fanciful".
[130]In terms of the Malanda job, the evidence of Bartlett and Bielek was at odds throughout the proceedings even failing to agree as to travel arrangements from Battle Camp to Malanda. Bartlett gave evidence of Bielek not being able to stay at Battle Camp in his absence due to concerns with his drug usage and of Bielek deciding to "tag along" rather than stay elsewhere. Bartlett gave evidence of leaving Battle Camp on 10 February 2012 and arriving in Malanda on the Friday evening. Bielek's evidence was that they left Battle Camp on 8 February 2012 and undertook a gyprock job in Malanda before travelling to Palmerston to undertake further work with Bartlett eventually returning to Malanda on 11 February 2012. There was evidence of Bielek accessing services in Cooktown on 7 and 8 February 2012 in the form of bank statements which documented payments made on the respective days.
[131]It must be said that the evidence of Bielek was, at times, less than satisfactory, particularly in respect of his recall of dates when certain events were said to have occurred and his recollection was certainly tested in the course of cross‑examination. Bartlett remained firm in his recall of the travel date on which they had left Battle Camp for Malanda.

They remained at odds as to when the job at Angelita Close commenced with Bartlett stating work commenced on Saturday 11 February 2012 and Bielek offering Sunday 12 February 2012 as the first day on that job. Hohnberg and Billy‑Joe Bartlett supported Bartlett's version, both giving evidence of being on the job on the Saturday. Whilst the actual day work commenced on the site is not necessarily a "game changer" it, in my view, could have commenced on the Saturday and equally could have started on the Sunday. At least a level of consistency exists in the differing versions in that work was being performed on the critical date of 12 February 2012.

[133]Bartlett's version which had work commencing on the Saturday was he refused to allow Bielek onto the site and he spent the entire day in or around Bartlett's vehicle reading a newspaper, smoking and listening to music. This occurred in the midst of a North Queensland summer with there being no evidence of the vehicle being parked in an area that may have afforded Bielek respite through some form of shade and whilst it is difficult to imagine the level of discomfort Bielek would have been exposed he "put his hand up" to repeat the process the following day. Billy‑Joe Bartlett supported the version proffered by Bartlett indicating he had observed Bielek on both days and was able to do so from the job site.

Hohnberg, for whom the work on Angelita Close was being undertaken, gave evidence of being on site on the Saturday and Sunday between the hours of 8.00 am and 4.00 pm for the purposes of tidying up after Bartlett and Billy‑Joe Bartlett but at no time did he see anyone else either on site or wandering about the fringes of the construction site. Hohnberg identified the work being performed to include battening out sections of the roof. Bartlett and Billy‑Joe Bartlett's evidence in respect of Hohnberg was he attended the site on the Sunday only.

[135]Bielek gave evidence of Bartlett picking him up from his Grandparent's house on the Sunday morning and of commencing work onsite which included assisting Billy‑Joe Bartlett with work associated with battening out. In the course of undertaking that work he had fallen off the roof at around "smoko time" and immediately informed Bartlett who was less than sympathetic to his predicament and in effect forced him to continue working despite his pain and discomfort.
[136]In examining the evidence to this stage of the Appellant's witnesses, there appears to be a number of inconsistencies worthy of note:
·        Bartlett and Billy‑Joe Bartlett state Bielek remained at the vehicle off site for both days, able to be observed from the site;
·        they further were in unison that Hohnberg attends the site on the Sunday only;
·        Hohnberg gave evidence of being on site on both Saturday and Sunday contrary to Bartlett and Billy‑Joe Bartlett; and
·        Hohnberg is unable to support the crucial position of Bartlett and Billy‑Joe Bartlett of Bielek being in and around Bartlett's vehicle on the days in question.

The only consistent evidence appears to be Bielek was not on site however this may not necessarily be credible evidence.
[137]It cannot be ignored that both Hohnberg and Billy‑Joe Bartlett, through their family situations, are relations of Bartlett in one form or another and it is relevant to consider their evidence may well have been manufactured to assist Bartlett therefore raising the issue of credit as an important factor for consideration.

There was agreement that Bielek was not on site at Angelita Close on 13 February 2012 and in the course of that day Bartlett fielded a call from Bielek in which he was advised of Bielek falling off a brick wall the previous day and of suffering an injury. Bartlett's evidence was Bielek refused to answer questions put by him about the incident and that Bielek did not seek to return to Battle Camp with him.
On Bartlett's return to Battle Camp he instructs Hatfield to pay into Billy‑Joe Bartlett's bank account on 17 February 2012 an amount of $808.50 contained in an invoice presented to him on 13 February 2012 for 21 hours of work. The invoice didn't identify the dates of work that had been undertaken, was tendered in the proceedings [Exhibit 7] in the most pristine condition considering it was purported to have been completed on site at the end of the job and then carried by Bartlett in the work vehicle back to Battle Camp via another job at Lakeland.

[140]Bartlett also instructed Hatfield to make a payment of $600 into Bielek's bank account on 17 February 2012 which he evidenced was a loan agreed on 10 February 2012 with Bielek to assist with repairs to his damaged vehicle. Bartlett denied the $600 payment was for work performed by Bielek giving evidence that Bielek's "back was too sore to work" and he was not capable of physical work. Bielek in evidence denied having ever suffered a back injury beyond a strain some years earlier and was in fact performing physical work with a crowbar and a shovel on the day he met Bartlett in December 2011. Bielek claimed the $600 payment was for construction type work he did with Bartlett on three jobs, one of which was the Angelita Close job on 12 February 2012.
[141]For Bartlett's version to be accepted it would have to be found that the $600 was a further loan made to Bielek, again without any expectations of ever being repaid, and made in circumstances where Bielek was, at the time claiming, said to have suffered an injury on a job site that Bartlett said he had never been on and Bielek had not returned to Battle Camp on 13 February 2012 leaving his seven dogs in the care of Bartlett and Hatfield.
[142]Bartlett and Hatfield provided evidence of Bartlett's previous generosity to persons by way of a business loan of around $1,000 which was repaid and of giving, on a couple of occasions, an amount of $50 to some young indigenous boys. There was no evidence of any previous "gifts" of a level that had been afforded to Bielek either prior to or after those loans and it is unlikely Bartlett could be described as a philanthropist on the evidence before the Commission.
[143]There was evidence from Barratt of conversations with Bartlett and Hatfield of which notations appeared in the Verbal and Unsuccessful Communications Report [Exhibit 9] including the following statements attributed to Bartlett:
· "27 March 2012
·He was never on our payroll.
·He ended up working on 13 February 2012 as a labourer but there was no set up payment.
·He was owing me money so he would do a random job here and there to pay me back what he owed me.
·He did tell me that on 13 February 2012 he had a sore back and did not know when he might be able to come back to work.
·I am not sure if we have a policy with WCQ.

· 1 May 2012
·E stated IW owed him money and was paying off a debt.

· 2 May 2012
·Cameron did fall but he was not a worker he was helping me out ‑ I never paid him.
·Cameron hung around and did nothing on the worksite.
·I never saw him fall ‑ he stated he fell."

[144]The telling aspect of the abovementioned notations was the concession from Bartlett that Bielek on 13 February 2012 worked as a labourer. In addition it was attributed to Bartlett that Bielek would do "random jobs here and there" to pay back monies owing to Bartlett and further Bielek had informed him on 13 February 2012 that he did not know when he would be able to come back to work. Barratt had testified to the veracity of information contained in the documentation and of the training provided by WorkCover acknowledging there could be "typos" with regards to numbers and letters which in this case may reasonably explain the entry of 13 February 2012 which had Bielek working when most likely the date was 12 February 2012. The difficulty in addressing that issue was the WorkCover Officer who made the entry for 27 March 2012 did not give evidence in the proceedings.
[145]There is no doubt in my mind based upon the evidence adduced in the proceeding that on 12 February 2012 Bielek was on site at 4 Angelita Close, Malanda where he undertook labouring duties under the direction of Bartlett which constituted a contract of service. Payment in the form of $600 was made by Bartlett to him on 17 February 2012 for work performed on 12 February 2012 and the days immediately preceding that date.
[146]As mentioned earlier the issue of credit was an important factor for consideration in the determination of the Appeal. As such, I would indicate the evidence of all witnesses with the exception of Barratt, had elements that brought their evidence into the domain of unreliable evidence lacking in credit although in the case of Bielek his deficiencies were more around dates and times rather having fabricated evidence to support a position.
[147]In the case of the Appellant, there was an "air" of there having been a manufactured proposition developed in particular around Bielek's non‑participation in work activities on the Angelita Close site on 12 February 2012 which was not borne out by the evidence of those witnesses who gave evidence on behalf of the Appellant.
[148]The fact that as previously mentioned all the witnesses for the Appellant were in one form or another relations of Bartlett or, in the case of Hatfield, his long‑term partner, is not the reason I have preferred the evidence of Barrett and Bielek to their evidence. It was simply their evidence lacked standing at a level where the Commission could consider such evidence reliable and truthful as was also the case with Bartlett's evidence.
Finding
[149]Having considered the evidence, material and submissions before the proceeding, I make the following finding:

· On 12 February 2012 Bielek was for the purposes of s 11 of the Act a "worker" in the employee of Bartlett employed under a contract of service.

[150]The Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 15 February 2013 is confirmed.
[151]The Appellant is to pay the Respondent's costs of and incidental to this Appeal to be agreed or, failing agreement to be the subject of a further application to the Commission.

[152] I order accordingly.

[2014] QIRC 209

10 December 2014