| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Berens Constructions Pty Ltd v Nilon [2024] NSWPICPD 22 |
APPELLANT: | Berens Constructions Pty Ltd |
APPELLANT’S INSURER: | Uninsured |
FIRST RESPONDENT: | Robert Nilon |
SECOND RESPONDENT: | Workers Compensation Nominal Insurer |
THIRD RESPONDENT: | David Bruce Robbie |
THIRD RESPONDENT’SINSURER: | Employers Mutual Limited |
FOURTH RESPONDENT: | Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare |
FOURTH RESPONDENT’S INSURER: | Uninsured |
FIFTH RESPONDENT: | Workers Compensation Nominal Insurer |
FILE NUMBER: | A1-W3671/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 15 April 2024 |
ORDERS MADE ON APPEAL: | 1. The name of the fourth respondent is amended to read “Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare”. 2. The Member’s Certificate of Determination dated 13 February 2023 is revoked. 3. The first respondent was not a deemed worker within the meaning of cl 2 Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998. 4. Award in favour of the appellant. 5. Award in favour of the second, third, fourth and fifth respondents. |
CATCHWORDS: | WORKERS COMPENSATION – factual determinations – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied – Clause 2 of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998 – deemed worker – Scerri v Cahill (1995) 14 NSWCCR 389 applied |
HEARING: | 5 March 2024 |
REPRESENTATION: | Appellant: |
| Mr L King SC with Mr D Smith, counsel | |
| Thompson Cooper Lawyers | |
| First Respondent: | |
| Mr B Dooley SC with Mr M Hammond, counsel | |
| Stacks Law Firm | |
| Second Respondent: | |
| Mr J McEnaney, counsel and Mr T Ainsworth, solicitor | |
| Hall & Wilcox | |
| Third Respondent: | |
| Ms N Compton, counsel | |
| Gair Legal | |
| Fourth Respondent: | |
| Mr D Ronzani, counsel | |
| McCullough Robertson Lawyers | |
| Fifth Respondent: | |
| Mr J McEnaney, counsel and Mr T Ainsworth, solicitor | |
| Hall & Wilcox | |
DECISION UNDER APPEAL: | Nilon v Workers Compensation Nominal Insurer (icare) & Ors [2022] NSWPIC 667 |
MEMBER: | Mr C Burge |
| DATE OF MEMBER’S FURTHER AMENDED DECISION: | 13 February 2023 |
INTRODUCTION AND BACKGROUND
Mr Robert Nilon was seriously injured when he fell from a height on a home building site in northern New South Wales. The new home construction was being undertaken at the request of Mr Marc and Ms Tanya Oltramare (the Oltramares). The Oltramares entered into a contract with Berens Construction Pty Ltd (Berens), termed a Construction Management Agreement. The agreement indicated that the construction of the home was to be managed by Berens. The contract between Berens and the Oltamares was not for a fixed price. Berens charged the Oltramares a management fee, which was a percentage of the construction costs, and all costs incurred in the construction were directed to the Oltramares for payment.
Mr Nilon suffered his injury on 2 June 2021, which was the third day he had been working on the site. At that stage he had not submitted a tax invoice or been paid for any work done.
Following the injury, Mr Nilon lodged a claim for workers compensation with Berens, who did not hold a New South Wales workers compensation insurance policy. The claim was therefore assessed by icare, who investigated the claim and issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 14 September 2021. icare denied liability, asserting that Mr Nilon was not a ‘worker’ within the meaning of s 4 of the 1998 Act or a ‘deemed worker’ as defined in cl 2 of Sch 1 to the 1998 Act.
Mr Nilon commenced proceedings in the Personal Injury Commission (the Commission), nominating Berens as his employer, or in the alternative, the Oltramares, who also did not hold a New South Wales workers compensation policy. Berens and the Oltramares disputed that they employed or contracted with Mr Nilon. Mr Nilon also joined Mr David Robbie to the proceedings, who was an independent contractor on the site. Mr Robbie had introduced Mr Nilon to the building site and to the Oltramares and negotiated with the Oltramares as to Mr Nilon’s hourly rate, as well as the hourly rate for Mr Nilon’s nephew, who was also engaged to work on the site. As neither Berens nor the Oltramares were insured for workers compensation, the Workers Compensation Nominal Insurer (the Nominal Insurer) was also joined to the proceedings.
The dispute proceeded to arbitration and a Member of the Commission issued a Certificate of Determination in which he determined that Mr Nilon was not a ‘worker’ within the meaning of s 4 of the 1998 Act, but had contracted with Berens to do the work, and was a ‘deemed worker’ of Berens within the meaning of cl 2 of Sch 1 to the 1998 Act.
Berens lodged this appeal, asserting that the Member erred in determining that Mr Nilon had contracted with Berens to do the work and in determining that Mr Nilon was a deemed worker within the meaning of the 1998 Act. Mr Nilon also lodged an appeal (A2-W3671/22) (Mr Nilon’s appeal), alleging that the Member erred in finding that he was not a worker employed by either Berens or the Oltramares. Mr Nilon’s appeal was lodged as a contingency, in the event that Berens succeeded in this appeal, and the finding that Mr Nilon was a ‘deemed worker’ was set aside.
After the appeals were lodged, the Commission was advised that Mr Oltramare passed away on 13 April 2023. Probate was granted by the NSW Supreme Court to Ms Oltramare on 21 November 2023. The name of the fourth respondent in these proceedings and proceedings in A2-W3671/22, which had previously appeared as “Marc and Tanya Oltramare” was amended by consent at the hearing on 5 March 2024 to “Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare.”
Both Berens and Mr Nilon conceded in their appeals that there was no contract between Mr Robbie and Mr Nilon.
As Mr Nilon’s appeal and this appeal are interrelated, both my decision in Nilon v Berens Construction Pty Ltd [2024] NSWPICPD 21[1] and this decision are to be read together.
[1] (Nilon v Berens).
WHETHER THE APPEAL COULD BE DETERMINED ‘ON THE PAPERS’
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both Berens and Mr Nilon indicated that they wished to have an oral hearing. These appeals involve multiple parties with competing interests. They also involve complex issues in respect of whether there was a contract of employment, and if so, the identity of the employer, or if not, whether Mr Nilon was a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties as to whether the appeals can proceed to be determined on the basis of these documents, or whether an oral hearing is required. I was not satisfied that I had sufficient information to proceed ‘on the papers’ without holding any formal hearing. In those circumstances, I considered that it would be beneficial to hear oral submissions and that it was appropriate for the appeals to proceed concurrently by way of an oral hearing. An oral hearing took place on 5 March 2024 and all parties made further submissions in respect of both appeals.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE RELEVANT EVIDENCE
The statement evidence
Mr Robert Neil Nilon
Mr Nilon provided a statement dated 27 October 2021.[2] He described his past experience in building and construction. He said that from about 2020 and up until the time of the accident, he was performing small residential property maintenance jobs such as building decks, repairing internal plastering and making kitchen cabinets for one or two days at a time. He said he operated as a sole trader and was not registered for GST during that time, including at the time of his injury on 2 June 2021.
[2] Application to Resolve a Dispute (ARD), pp 12–21.
Mr Nilon advised that he was approached by a long-term acquaintance, Mr David Bruce Robbie (the third respondent to the appeal), a licensed builder, in respect of installing form work for gables on a residential construction. He said he inspected the site on 28 May 2021 and agreed to commence work on the following Monday, for which he would be paid $55 per hour. He stated that he asked if he could bring an assistant and it was agreed that Mr Nilon’s nephew, Bradley Stayt (who was looking for work), would also work on the site.
Mr Nilon indicated that Berens’ name was on the gate to the site as the head contractor and he was of the understanding that Berens was the head contractor and builder on the site, who would be paying his wages for the work he did. He said that Mr Robbie had informed him that all invoices had to go through Berens and Berens would be paying him his wages. He said he was not required to complete any paperwork when he commenced the work for either Berens or the Oltramares.
Mr Nilon advised that he commenced work on 31 May 2012 and on that day, he had a discussion with Mr Berens about how the work he was required to do was to be done. [It was ultimately determined that Mr Nilon did not meet with Mr Berens until 2 June 2021]. He commented that he did not agree with the manner in which some of the work Berens assigned to him was to be done but he commenced work and had to complete the work in a very short time because the concrete was due to be poured on 3 June 2021. He said that he attended work at 6.30 am on the day of injury and had a conversation with Mr Robbie but that was the last thing he could remember. Mr Nilon indicated that he was told that he had been working on scaffolding on the gable end of the second storey of the house (the support part of the roof structure) at about 3 pm that day. He described what he perceived to be the lack of safety precautions on site.
Mr Nilon indicated that it was his understanding that his invoices (which he said were to be time sheets of the work done) would be sent to Berens for payment but he added that he had since heard that the invoices were to be made out to the Oltramares. He said that he supplied his own tools, including electric saws, battery tools such as drills, sawhorses, a tool belt, spirit levels and straight edges, which he carried in his utility truck and were the normal tools of a carpenter. He said that some other tools and equipment were provided on site by Berens. He confirmed he was required to work from Monday to Friday from 7 am to 3 pm, with a half-hour lunch break and 15 minutes for morning tea. He said he could not simply turn up when he liked. He said that the work to be done was dependent upon other tradespeople performing their tasks and the timetable was set by Berens.
Mr Nilon advised that he did not discuss holiday pay or taxation deductions with Berens because the period he worked on site was brief, but he said that he expected that taxation would be deducted from his pay. He stated that he did not have the right to delegate any of the work and, while Berens had the right to dismiss him, he was not entitled to dismiss Berens. He added that he worked solely for Berens and was not doing any work for anyone else at the time he worked on site, and he expected that the work would have continued for some weeks or months.
Mr Nilon denied that he was in a position to sub-let the contract to do the work or to employ other workers to work under him on the job site. He denied that his nephew (Mr Stayt) worked for him and asserted that he had never paid Mr Stayt, who was required to lodge his own time sheets or invoices, and he did not treat Mr Stayt as a labourer. He reiterated that his nephew was not working as a labourer and said that, after the accident, Mr Stayt was advised he could continue to work on site but chose not to do so because of the incident in which Mr Nilon was injured.
Mr Nilon confirmed that he was to be paid $55 per hour for 40 hours per week. He said that he “was simply asked to come and help with the carpentry formwork on the gable ends of the house”[3] and Berens directed him as to the work to be done. He added that he was not working as a contractor as contractors would normally submit a price for the job to be done, not an hourly rate.
[3] Mr Nilon’s statement dated 27 October 2021, ARD, p 24, [88].
Mr Nilon denied that he was working for Mr Robbie or that Mr Robbie was his supervisor and asserted that Mr Robbie had merely approached him about the work but did not contract with him to do the work. He asserted that he did meet Mr Berens on site and discussed with Mr Berens how the gables were to be done and he expected that he would be paid by Berens. He denied having any written documents such as a contract or an application for employment and denied that Berens had asked him about his insurance status.
Mr Nilon provided a further statement dated 8 December 2021.[4] He said that he held an Australian Business Number but was not registered for GST. He maintained that he was not a sub-contractor, but he was an employee, employed either by Mr Robbie or Berens.
[4] ARD, pp 32–43.
Mr Nilon referred to documentary evidence relied upon by the Nominal Insurer. He firstly referred to an entry listing his availability for work on the web page of a service called “service.com.au”. He said that the service called him in January 2021 in relation to advertising his work with them. He explained that the call was unsolicited by him, the service had called him on its own volition, and he refused to be listed with the service, however the service did not take down his listing. He said that any job leads he received through the service were diverted to his spam folder, and he had never paid any money at all for the advertising. He denied having entered into either a written or oral contract with the service.
Mr Nilon also referred to a listing of his availability for work on the web page of “hipages.com.au”. He advised that this service also approached him, the call was unsolicited by him, and he did not agree to enter into any arrangement with the service. He indicated that he did perform one job through that service, which was to fix water damage to cupboards and plaster work in a residential kitchen, but he also put in new bench tops at the request of the owner. He indicated that he did advertise with the service, who would debit his wife’s credit card monthly, but after four months he had not been referred any work. He said that, despite him refusing to continue the service, the service continued to debit the monthly fee. He described his difficulties in ceasing the service after the six-month period he had agreed to, including that he had to cancel his wife’s credit card. He said that he performed no work through the service between January 2021 and June 2021.
Mr Nilon further referred to his Linkedin profile. He said it was created by his son in about 2005, without input from him, and he had not received any work or job offers from that platform after 2005. He maintained that he had not used the Linkedin platform to obtain any work, although he did have contact with a few people in the industry who had Linkedin profiles.
Mr Nilon indicated that for most of the years prior to 2 June 2021 he worked as an employee of Quatro Developments Papua New Guinea Limited, a company in which he was a director. He said that after he returned to Australia in December 2019 he did not work on any commercial or residential site under a head contractor for any employer, other than the work he did for Berens.
Mr Nilon stated that, from his knowledge of the building industry, there would normally be a written sub-contractors agreement made between the head contractor and the sub-contractors working on the site. He advised that there was no such written agreement between him and Berens or him and Mr Robbie. He maintained that he did not supply the materials for the job, those were supplied by Berens, and he was paid an hourly rate for the work, which indicated that he was either a full time or a casual employee at the time he suffered his injury on 2 June 2021.
Mr Nilon provided an explanation of his bank statements which had been provided to the Nominal Insurer. He pointed out those deposits that were not related to payment for work done. He explained that some of the other deposits were payment for rectification jobs done, such as rectification work in respect of water damage to individual units in a high-rise apartment block between 19 June 2020 and 22 January 2021, work on private properties repairing decks and patios, water damage and white ant damage, work on a property owned by Mr Stayt’s friends, as well as the work performed by referral from hipages.com.au.
Mr Nilon asserted that those payments were for “odd jobs” that he had done in various places and were totally different to the work he was doing on the building site on 2 June 2021. He said that the bank statements show that he was doing handyman rectification work in his own name for at least 12 months before he commenced with Berens, which was not work on a residential construction or building site. He maintained that Mr Robbie was aware of his skills as a carpenter and that was why Mr Robbie contacted him to see if he was interested in doing the work.
Mr Nilon provided a third statement on 19 January 2022.[5] He referred to the Home Building Act 1989 and the Home Building Regulation 2014, which he said required him to have an appropriate licence classifying him as a sub-contractor in order to work on a construction site under the direction of Berens. He said that NSW Fair Trading had advised him that he could not be a contractor on the site because he did not have the appropriate licence. He said that he understood that he was therefore an employee and at all times he believed that he was an employee of either Mr Robbie or Berens.
[5] ARD, p 44.
Mr David Bruce Robbie
Mr Robbie provided a statement dated 6 July 2021.[6] He stated that the property that he and Mr Nilon worked on was owned by the Oltramares. He explained that he was doing some other work on an old cottage for Mr Oltramare, and Mr Oltramare introduced him to Mr Berens, who took him on board. He said that Mr Berens explained to him how the work was to be undertaken. He said that at first, he submitted his invoices to Berens but was told by Berens that the invoices should be made out to the Oltramares. He said that the invoices for the work done were submitted to Berens, and after they were approved by Berens, the invoices would be paid by the Oltramares.
[6] ARD, pp 1–11.
Mr Robbie stated that it was his understanding that he was employed by Berens. He explained that, if Berens told the builders not to work, they did not work, such as after Mr Nilon’s accident on the work site, when Mr Berens told everyone not to go to work and closed down the site. He added that Mr Berens would explain to those doing the work what needed to be done for each individual task. Mr Robbie said that, normally, the builder would pay the people performing the work and then invoice the owner, but in this case, the contract was a “cost plus management fees”.[7]
[7] Mr Robbie’s statement, ARD, p 2, [8].
Mr Robbie advised that the Oltramares were not permitted on site unless Berens gave them permission and if Mr Oltramare came on site, he would have to sign in.
Mr Robbie indicated that there was a shortage of workers on site and Mr Berens asked him if he knew of any tradespeople who could assist with the work. Berens advised Mr Robbie that the tradespeople would be paid about $50 or $55 per hour, plus GST. Mr Robbie nominated several people who agreed to do the work, including Mr Nilon, who he described as a builder. Mr Robbie indicated that, if he had people working for him, he would charge them out at $15 more than the hourly rate he was paying them and said he did not employ Mr Nilon, who he would have charged out at about $70 per hour if he did. He added that his hourly rate was $50 but said that the Oltramares offered him an increase to $60 per hour. Mr Robbie said that he would submit his invoice for payment either on a weekly or fortnightly basis, depending upon the amount to be paid, but he was not aware of how frequently the other tradespeople would submit theirs.
Mr Robbie stated that there was no discussion with Mr Nilon as to whether he would be entitled to sick leave, annual leave or pay for public holidays. He added that contractors normally looked after their own superannuation and taxation payments. He said that they were not required to wear a uniform but would wear high visibility shirts. He said they would normally work until about 3 or 3.30 pm with a break for a morning tea as well as 30 minutes for lunch. He said that they were paid an hourly rate, not a daily rate, and Mr Nilon had agreed to be paid $55 per hour. He said that, prior to the accident, he heard Mr Berens instructing Mr Nilon on what was required to do the particular job. He indicated that “[Mr Berens] gave us instructions on what we had to do, and we had a list of things to do and so we just sort of got to it.”[8] Mr Robbie observed that Mr Nilon was competent and had a most thorough knowledge of all forms of work in the building trade.
[8] Mr Robbie’s statement, ARD, p 6, [48].
Mr Robbie was not aware as to whether Mr Nilon subcontracted any of the work and said that the arrangement to work was dependent upon the work available. He observed that if Mr Nilon had made a mistake, he would have been required to fix the problem in his own time. He said that Mr Nilon provided his own tools and equipment, but all of the builders would share their tools if required. Mr Robbie said that he was of the view that Berens was the principal contractor on the worksite and Mr Berens would visit the worksite once per week, or sometimes fortnightly.
Mr Robbie said that the only person who Mr Nilon gave direction to was “Brad” (Mr Stayt) who Mr Robbie described as Mr Nilon’s labourer. He asserted that “Brad” was working with and employed by Mr Nilon.
Mr Robbie advised that he was aware that Mr Nilon had been doing other building work before joining Berens, but Mr Robbie did not know where that was or who Mr Nilon had been working for. He said that, at the time of the injury, Mr Nilon was cutting and installing Durisol insulation blocks in the gables of the house they were working on.
Mr Robbie stated that, after Mr Nilon’s accident, Mr Berens approached him and asked him to include Mr Nilon in Mr Robbie’s workers compensation insurance policy as one of his employees. Mr Robbie said he sent an email dated 16 June 2021 to Mr Berens in response, indicating that he would not do as he was requested because he did not employ Mr Nilon.[9]
[9] ARD, pp 28–30.
Mr Robbie advised that, following the accident, Berens instituted greater measures to improve work health and safety and to ensure each tradesperson had insurance in place.
Mr Rodney Berens, Director of Berens
Mr Berens provided a statement dated 2 July 2021.[10] He said that Mr Nilon commenced work as a carpenter with Berens on 31 May 2021, but he did not meet Mr Nilon until 3 days later. He was, however, aware that Mr Nilon was on site, having been brought on site by Mr Robbie.
[10] Berens’ reply, pp 62–68.
Mr Berens explained that Berens was the principal contractor on a home building site in Cudgera Creek, New South Wales, with a management contract between Berens and the Oltramares. He said that there was no fixed price building contract, Berens charged a management fee, all the payments were directed to the Oltramares and Mr Oltramare “pays everyone himself.”[11] He added that there was no margin or mark-up on the payments.
[11] Mr Berens’ statement dated 2 July 2021, Berens’ reply, p 63, [9].
Mr Berens stated that one of Mr Robbie’s workers had left and Mr Robbie brought Mr Nilon and Mr Stayt (Mr Nilon’s labourer) onto the site to work. Mr Berens said that he was under the impression that Mr Nilon was working for Mr Robbie, under Mr Robbie’s control.
Mr Berens described the question of Mr Nilon’s wages as ‘a grey area’. He said that he had never previously met Mr Nilon and there had not been a formal job interview, application form or signed agreement. Mr Berens said that he had not obtained details of Mr Nilon’s insurances. He added that normally a person would not be allowed on site without having their own insurances.
Mr Berens indicated that if Mr Nilon was a contractor, he would have been paid by the Oltramares but if he worked for Mr Robbie, Mr Robbie would have paid him. He advised that Berens did not pay the contractors under any circumstances, and it was written in the company’s agreement between Berens and the Oltramares that Berens did not have contractors working for it on site.
Mr Berens described the process of the contractors being paid. He said that the contractors would address their invoices for the hours they worked to the Oltramares, submit them to Berens, Berens would check the hours on the invoices were correct, and if so would stamp them and pass them on to the Oltramares for payment. He confirmed that he had not received an invoice in respect of Mr Nilon. He added that, if Berens had employees, they would have workers compensation insurance. He said that Mr Robbie had a workers compensation policy, and, as Mr Robbie had brought Mr Nilon onto the site, he assumed that Mr Nilon was working for him. He explained that, in those circumstances, there was no reason to ask for Mr Nilon’s insurance documents because Mr Nilon was covered by Mr Robbie’s insurance policy.
Mr Berens advised that all of the contractors worked from 7 am to 3 pm from Monday to Friday, with no overtime. He said that he thought that they would have had a morning tea and a lunch break and said that they were paid weekly on provision of their invoices.
Mr Berens stated that Mr Robbie rang him and advised that he intended to pay or charge out Mr Nilon at the rate of $55 per hour, and charge Mr Stayt out at $45 per hour. He said that “[m]ost of the guys were working on site for the owner for around that price.”[12] Mr Berens thought that Mr Nilon, as a contractor would probably not be entitled to annual leave, sick leave or payment for public holidays, and he was not aware of whether there was an agreement that superannuation would be paid.
[12] Mr Berens’ statement dated 2 July 2021, Berens’ reply, p 64, [22].
Mr Berens described what work Mr Nilon was doing on site, which was fitting gable lintels using oriented strand board. He said that the job was basically doing carpentry work and his supervisor would have been Mr Robbie.
Mr Berens referred to Mr Nilon’s accident and provided details of what he knew about the accident, noting that he was not a witness to it but had arrived shortly after it happened. He made observations of what he thought may have occurred.
Mr Berens indicated that Mr Nilon had a person working with him (a labourer) and had a builder’s licence. He said Mr Nilon was:
(a) working for Mr Robbie on site doing whatever task he was assigned;
(b) a contractor;
(c) able to bring employees on the site but not able to sub-contract the work;
(d) paid an hourly rate but would have to fix any errors he had made in his own time;
(e) retained for the particular task (which had no end date) and, after finishing that task, would only be retained if a further task came up;
(f) working under similar conditions as the other contractors, who provided their own personal protection equipment and tools, but the materials were provided by the Oltramares;
(g) to be paid $55 per hour and $45 per hour for his labourer, and Berens would have authorised payment to Mr Nilon of the full amount, who would then pay the labourer, or potentially Mr Robbie would have been paying them both, and
(h) able to refuse any work offered.
Mr Berens provided a further statement dated 12 February 2022.[13] He confirmed that Berens did not hold a New South Wales workers compensation policy of insurance on 2 June 2021. He said that he did not meet Mr Nilon on the day Mr Nilon commenced but did meet him at 10 am on 2 June 2021.
[13] Berens’ reply, pp 227–235.
Mr Berens asserted that Berens worked under a management contract with the owner, in this case the Oltramares. He said that Mr Robbie was offered a full contract to complete the installation of the oriented strand board, but Mr Robbie and his team were unfamiliar with the work required. Mr Berens said that Mr Oltramare agreed that Mr Robbie could bring a team to complete the job on an hourly rate. Mr Berens said that Mr Robbie organised the carpenters to work on the site and supervised them in their work on site.
Mr Berens denied that Berens employed Mr Nilon or any other workers at any time on any building or construction sites in Australia. He attached a number of invoices that he had received from Mr Robbie that included work done by labourers in Mr Robbie’s team. Mr Berens said that Mr Robbie’s invoice dated 6 June 2021 did not include a claim for hours worked by Mr Nilon, but asserted that, had Mr Nilon’s injury not occurred, Mr Nilon’s name would have appeared on subsequent invoices.
Mr Berens referred to a text message he sent to Mr Nilon’s wife on 7 June 2021, in which he advised that Mr Nilon should forward his invoice for work done to him at Berens’ email address, but addressed to Mr Oltramare, and Mr Berens would “have it paid”[14] as soon as it was received. He explained that he had done so because the invoice from Mr Robbie dated 6 June 2021 did not include Mr Nilon’s hours of work. Mr Berens attached an invoice from Mr Nilon dated 30 June 2021 for the work done, which was in Mr Nilon’s own name, rather than a business name. Mr Berens stated that the invoice was not paid because it was made out to Berens and not to Mr Oltramare. Mr Berens also attached an email from Mr Oltramare to Mr Berens dated 21 May 2021, in which the Oltramares indicated that they intended to increase Mr Robbie’s hourly rate.[15]
[14] Berens’ reply, p 232, [28].
[15] Berens’ reply, p 280.
Mr Berens said that Mr Robbie negotiated Mr Nilon’s hourly rate directly with the Oltramares, and once it was agreed, Mr Robbie advised Berens that the Oltramares had agreed to the hourly rate and for Mr Nilon to come on site.
Mr Don Courtney, contractor
Mr Don Courtney, a carpentry contractor on the building site, provided a statement dated 9 October 2021 directed to icare. He gave evidence as to the arrangements made between him, Berens and the Oltramares to perform carpentry work on site.[16]
[16] Mr Robbie’s reply, p 12.
The Construction Management Agreement
A Construction Management Agreement signed by the Oltramares and Berens set out the terms of the agreement between the Oltramares and Berens and the obligations of the parties, which included a term that the Oltramares were responsible for the retention of and payments to the contractors on the site.[17]
[17] Berens’ reply, pp 72–86.
The relevant advertising of Mr Nilon’s trade or business
A print-out dated 14 July 2021 from the website “hipages.com.au” disclosed that Mr Nilon had been a member of the website since October 2020 and operated under the business name of “Rob Nilon Building and Carpentry Works”. The service categories were listed as building, carpentry, carports and joinery, and included new home, commercial, and general building work.[18]
[18] Nominal Insurer’s reply, pp 193–196.
A print-out from the website “service.com.au” listed Mr Nilon’s business as “Rob Nilon Building and Carpentry Works” and disclosed that he worked in Queensland, the Gold Coast and Currumbin areas.[19]
[19] Berens' reply, pp 189–190.
LEGISLATION
Section 4 of the 1998 Act defines “worker” as (exceptions omitted):
“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).”
Sub-clause 1 of cl 2 of Sch 1 to the 1998 Act relevantly provides:
“2 Other contractors (cf former Sch 1 cl 2)
(1) Where a contract—
(a)to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b)[Repealed]
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.
…”.
THE MEMBER’S REASONS
The Member issued a Certificate of Determination in this matter on 5 December 2022, issued an amended Certificate of Determination on 9 December 2022 and then a further amended Certificate of Determination on 13 February 2023, after this appeal and Mr Nilon’s appeal had been lodged. The Certificate dated 13 February 2023 contained only minor amendments to the orders made and did not amend the substance of the Member’s reasons. The reference in the appeal documents to the date of the Certificate of Determination being 9 December 2022 is to be taken to be a reference to the Certificate of Determination issued on 13 February 2023.
A summary of the Member’s reasons for determination is provided in my determination in Nilon v Berens. This summary is limited to the reasons relevant to the issues in this appeal.
The Member provided a background to the matter and noted that the issue for him to determine was whether Mr Nilon was a worker or deemed worker, and if so whether he was contracted to Berens, the Oltramares, or Mr Robbie. He noted that there was no dispute as to the degree of Mr Nilon’s incapacity or the amount of weekly payments payable, or that Mr Nilon’s hourly rate was $55. He further noted that he declined to allow cross-examination of Mr Berens. The Member said that, at the preliminary conference held by him, he directed the parties to lodge written submissions, rather than to proceed to arbitration hearing. He advised that, after the last of the written submissions were received, the Oltramares sought to lodge an Application to Admit Late Documents, consisting of statement evidence from both Mr Oltramare and Ms Oltramare. He determined that, in circumstances where the opportunity to make submissions had closed, the documents were to be excluded. There is no challenge in relation to the Member’s decision to exclude those documents.
The Member reviewed the evidence in the proceedings. He proceeded to consider the question of which party entered into an agreement with Mr Nilon. He noted that Mr Nilon’s “primary case” was that he had contracted with Berens, or in the alternative with Mr Robbie or the Oltramares. He further noted that Berens asserted that Mr Nilon contracted with either Mr Robbie or the Oltramares and that the Nominal Insurer supported Berens’ assertion. He recorded that both Mr Robbie and the Oltramares disputed that they contracted with Mr Nilon.
The Member observed that none of the parties specifically referred to any legal authorities in respect of the issues relating to a determination of the identity of the parties to the contract. He reviewed a number of authorities relevant to the identification of the actual employer. He considered the lay evidence from the parties and from Mr Don Courtney, a contractor on the site, as well as the contents of the Construction Management Agreement.
The Member reviewed Mr Nilon’s statement evidence. He concluded that Mr Nilon and Mr Berens met on site of 2 June 2021 (as opposed to 31 May 2021, the date put forward by Mr Nilon). The Member rejected the notion that Mr Nilon had contracted with Mr Robbie and the suggestion that there was a contract between Mr Nilon and the Oltramares.
The Member concluded that, despite Mr Berens being absent from the site when Mr Nilon commenced, he was satisfied that Mr Nilon was retained by Berens. He accepted Mr Robbie’s evidence as to how Mr Nilon came on site and was retained to work for $55 per hour. The Member added that the task Mr Nilon was undertaking was a task that Berens required to be completed, and the fact that Mr Berens met with Mr Nilon on the day of the injury was consistent with Berens’ obligation as a head contractor to be present and to oversee the work on the site.
The Member said that he preferred the evidence of Mr Robbie to that of Mr Berens and accepted that Berens was responsible for arranging the tasks to be undertaken and the order in which they were to be done. He took into account Mr Robbie’s evidence as to the fitting of the Durisol blocks and the reinforcing, that there were four builders on site, and that it was difficult to ascertain who was the actual supervisor but everyone on site was instructed by Mr Berens. The Member noted that Mr Robbie gave evidence that Mr Berens had instructed Mr Robbie as to what was required to do the job and that he had also heard Mr Berens providing those instructions to Mr Nilon and directing Mr Nilon to be the one to do that work.
The Member considered that the evidence from Mr Nilon was supported by that of Mr Robbie. He confirmed that in his view, the evidence established that there was a contract between Mr Nilon and Berens to carry out work on the building site.
The Member turned to the question of the identification of the nature of that contract. He observed that a “worker” was relevantly defined as a person who works under a contract of service with an employer, the contract may be express or implied and may be an oral or a written contract. He noted also that a person may be a deemed worker pursuant to cl 2 of Sch 1 to the 1998 Act. He said that it was therefore necessary to determine whether Mr Nilon satisfied either of those definitions or was an independent contractor. The Member cited the recent High Court authorities of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited[20] and ZG Operations Australia Pty Ltd v Jamsek[21] but considered that those decisions were of limited value because they involved consideration of written contracts. The Member observed that he was therefore required to consider the indicia that pointed to the contract being an employment contract, as discussed in a long line of authority. He referred to Stevens v Brodribb Saw Milling Company Pty Ltd[22] and Mason J’s (as his Honour then was) observation that the existence of control was important but was not the only factor to be considered in evaluating the relationship. The Member summarised the relevant factors identified in Brodribb as:
[20] [2022] HCA 1 (Personnel Contracting).
[21] [2022] HCA 2 (Jamsek).
[22] [1986] HCA 1; 160 CLR 16 (Brodribb).
(a) the right to control;
(b) the mode of remuneration;
(c) the provision and maintenance of equipment;
(d) the obligation to work;
(e) the hours of work and provision for holidays;
(f) the deduction of income tax;
(g) the putative employee’s ability to delegate work;
(h) the right in the employer to have a particular person to do the work;
(i) the right to suspend or dismiss the person engaged;
(j) the right to the exclusive services of the person engaged, and
(k) the right to dictate the place of work
The Member noted the distinction between a contract of service and a contract for services. He summarised the factors that point to the person performing the work being an independent contractor, namely whether the person performing the work:
(a) was working in a trade, profession or distinct calling;
(b) had his or her own workplace or equipment;
(c) accrued goodwill or saleable asserts in the performance of the work;
(d) paid business expenses of any significant proportion from his renumeration, and
(e) received renumeration without income tax being deducted.
The Member observed that it was important to identify the nature of the agreement in issue between the parties and not some other agreement entered into by one of the parties with some other entity. He considered that the fact that Berens entered into an agreement with the Oltamares was not relevant to the determination of the nature of the relationship between Mr Nilon and Berens.
The Member said that Mr Nilon’s evidence was that he was to be paid an hourly rate of $55 but both Mr Robbie and Berens gave evidence that the hourly rate was $50 plus $5 for GST. The Member reiterated that he preferred the evidence of Mr Nilon and Mr Robbie as to the manner in which Mr Nilon was engaged to perform the work on the site.
The Member observed that it was apparent to him that Berens engaged Mr Nilon to perform the work at its request because it needed more labour on site, despite Mr Robbie having arranged for Mr Nilon to attend.
The Member said:
“In this matter, [Berens] required tradespeople to carry out work on the gables of the construction site. The evidence on balance discloses that [Berens] had the care and control of the job site and provided materials for [Mr Nilon] to work with.
The evidence also discloses [Mr Nilon] was not carrying out any other work at the time of the accident. One of the matters which is in contention is whether [Mr Nilon] employed his nephew [Mr Stayt] as a labourer on site. If this was the case, it would be indicative of [Mr Nilon] working as a contractor rather than an employee of [Berens].”[23]
[23] Nilon v Workers Compensation Nominal Insurer (icare) & Ors [2022] NSWPIC 667 (reasons), [80]–[81].
The Member concluded that he did not accept that Mr Nilon employed Mr Stayt. He referred to the evidence from Mr Robbie that had Mr Robbie employed Mr Nilon, Mr Robbie would have charged a mark-up on Mr Nilon’s hourly rate. The Member said that, similarly, if Mr Nilon employed Mr Stayt it could be expected that Mr Nilon would charge a mark-up on top of Mr Stayt’s hourly rate, but that was “not the case”. The Member reasoned that the fact that Mr Nilon arranged for Mr Stayt to be on site did not mean that Mr Nilon employed Mr Stayt. The Member said that, on the basis of the evidence, Mr Stayt was not on site as Mr Nilon’s employee and was to be paid an hourly rate of $45 by either Berens or the Oltramares.
The Member proceeded to consider Mr Nilon’s obligation to perform the work as directed by Berens, who had the care, control and management of the work site, the requirement for Mr Nilon to work eight hours per day, and that Mr Nilon was to be paid an hourly rate, rather than on the basis of a fixed sum for the task undertaken. He considered that those facts were indicative of an employment relationship.
The Member referred to the facts that there was no evidence that income tax would be deducted from the payments to Mr Nilon, observed that Mr Nilon bore the onus of proving that he was in an employment relationship, and the absence of such evidence tended to point to Mr Nilon being a contractor, rather than an employee.
The Member accepted Mr Nilon’s submission that he did not delegate his work to Mr Stayt, reasoning that both Mr Nilon and Mr Stayt were to be paid an hourly rate, and that there was no evidence that Mr Nilon had the right to delegate the work to Mr Stayt. He said that, even if he did have such a right, there was no evidence that he did delegate the work. He observed that, in considering whether Mr Nilon was a worker, a deemed worker, or an independent contractor, he was required to consider the fact of delegation, rather than the right to delegate.
The Member said that he accepted that Mr Nilon worked exclusively for Berens and that Berens had control over the hours of work, the place of work, the tasks to be carried out, broadly the form in which they were to be carried out and also the method of remuneration.”[24] The Member added that the agreement between Mr Nilon and the Oltramares indicated that Berens had the power to veto payments of those working on site, which indicated that it had the right to suspend or dismiss those contractors.
[24] Reasons, [86].
The Member referred to Mr Nilon’s submission that the home building work he performed on the site was different to the home handyman work he had previously carried out. He pointed to the entries in Mr Nilon’s bank records which showed that Mr Nilon carried out some work but said that the work described by Mr Nilon in his statement was more akin to home handyman work than the specialised building work performed on the building site.
The Member observed:
“In my view, primacy must be given to the nature of the contract in question and the work carried out at the job site. Whilst the Commission should inform itself of the surrounding circumstances of [Mr Nilon’s] work, the important consideration is whether the contract at issue falls within the definition of that of worker or deemed worker.”[25]
[25] Reasons, [89].
The Member noted Mr Nilon’s evidence that he had operated as a sole trader performing property maintenance work and supplied and used a variety of his own tools which were normally used by carpenters. He further noted that Mr Nilon believed that other tools and equipment (such as scaffolding and wheelbarrows) on the job site were provided by Berens.
The Member concluded that, in his view, this evidence was in favour of the conclusion that Mr Nilon was a contractor, rather than an employee. The Member pointed out that there was no evidence that Mr Nilon paid business expenses from the remuneration he would have received.
The Member referred to the work that Mr Nilon performed prior to engagement on the building site, the evidence that Mr Nilon advertised on hipages.com.au and service.com.au websites, and Mr Nilon’s explanations as to why those were placed. The Member accepted Mr Nilon’s explanation and his description of the type of work he performed.
The Member observed that Mr Nilon rendered an invoice directed to Berens for work done at the hourly rate of $55 which was issued in Mr Nilon’s name and not Mr Nilon’s business name. The Member added that the hourly rate for the reward for the work was arrived at by a commercial negotiation. The Member further observed that:
“[Berens] did not directly have the capacity to maximize [Mr Nilon’s] activities for their own profit by, for example, adding value to the rate it paid him in order to increase the amount billed to the [Oltramares]. However, [Berens] was plainly acting as site supervisor on a for-profit basis. There would be no reason otherwise for it to be present on the work site or to have any involvement with it. The submission by [the Nominal Insurer] that ‘[Berens] could not profit from the management of the activity performed by [Mr Nilon]’ is not, in my view, sustainable. [Berens] profited from [Mr Nilon’s] activity because that activity progressed the completion of the building works for which [Berens] was ultimately responsible and for which it would be paid by the [Oltramares].”[26]
[26] Reasons, [96].
The Member took into account the evidence that the Oltramares decided to increase Mr Robbie’s hourly rate, which the Member said indicated that those engaged in work on the site could commercially negotiate their own rates. The Member concluded that, on the basis that Mr Nilon:
(a) provided his own tools;
(b) did not hold himself out as a representative of either Berens, the Oltramares, or Mr Robbie;
(c) could have increased his charge out rate because of the goodwill generated by working on the project;
(d) was not entitled to be paid leave or superannuation, and
(e) could have refused the work,
he was satisfied that Mr Nilon was a contractor on site rather than a worker.
The Member turned to the question of whether Mr Nilon was a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act. He observed that Mr Nilon was performing work in accordance with a contract for services exceeding $10 in value. He said that the nature of the work performed by Mr Nilon was materially different to the type of work Mr Nilon advertised. The Member took into account the fact that the invoice issued by Mr Nilon on 30 June 2021 for the work he had performed was in Mr Nilon’s own name and not his business name. He said that, in the context of the totality of the evidence, having an Australian Business Number was not fatal to Mr Nilon being considered to be a deemed worker. The Member noted the submission made that the fact that Mr Nilon had the ability to engage a labourer to assist him suggested that he could engage a subcontractor if he wished. The Member rejected that submission on the basis that Mr Stayt was to be paid a set hourly rate, and there was no evidence that Mr Nilon was to pay that amount or submit an invoice at a marked-up rate in order to profit from the work performed by Mr Stayt. The Member observed that there was no evidence of a commercial arrangement between Mr Stayt and Mr Nilon, and it appeared that Mr Nilon had simply advised Mr Robbie that Mr Stayt was also available to work on the site. The Member added that, even if Mr Nilon was able to subcontract the work, there was no evidence that he did so.
The Member concluded that Mr Nilon did not subcontract the work. He further concluded that, taking into account Mr Nilon’s description of the difference between his duties on the worksite and those he had previously undertaken, as well as that Mr Nilon had not obtained work from the advertising of his business for about six months prior to his injury, Mr Nilon was not engaged in work incidental to a trade or business which he regularly carried out in his own name. He determined that Mr Nilon had established that he was a deemed worker for Berens. He then proceeded to determine Mr Nilon’s entitlement to compensation.
The further amended Certificate of Determination issued on 13 February 2023 records:
“The Commission determines:
1. On 2 June 2021, [Mr Nilon] was a deemed worker of [Berens] with preinjury average weekly earnings of $2,200 per week.
2. At all material times, [Berens] was uninsured for workers compensation purposes.
3. On 2 June 2021 in the course of his deemed employment with [Berens], [Mr Nilon] suffered injury at a worksite.
4. As a result of the injury referred to in [3] above, [Mr Nilon] suffered and continues to suffer total incapacity for employment.
5. The [Nominal Insurer] is to pay [Mr Nilon] weekly compensation as follows
(a)for the period 2 June 2021 to 31 August 2021 pursuant to section 36 at the rate of $2,090 per week, and
(b)for the period 1 September 2021 to date and continuing pursuant to section 37 at the rate of $1,760 per week.
6. [Berens] is liable to reimburse second respondent [the Nominal Insurer] for any compensation paid by the [Nominal Insurer].
7. Award for [Mr Robbie].
8. Award for [the Oltramares].
9. Award for the fifth respondent [the Nominal Insurer].”
GROUNDS OF APPEAL
Berens asserts three grounds of appeal upon which it says the Member erred. The Grounds expressed can be best dealt with as two grounds, namely that:
(a) Ground One: the Member erred in failing to determine that Mr Nilon’s contract was with the Oltramaress;
(b) Ground Two: the Member erred in determining that Mr Nilon was a deemed worker pursuant to cl 2 of Sch 1 to the 1998 Act by:
(i)concluding that the work performed by Mr Nilon was not incidental to a trade or business regularly carried on by him, and
(ii)failing to determine that Mr Nilon employed Mr Stayt.
In Nilon’s appeal, I determined that the Member did not err in concluding that Mr Nilon was not a ‘worker’ within the meaning of s 4 of the 1987 Act.[27] As Berens and the Nominal Insurer submit in this appeal, if the Member was correct to conclude that Mr Nilon was not a “worker” but in error to conclude that Mr Nilon was a ‘deemed worker’ who satisfied the requirements of cl 2 of Sch 1, then it would be unnecessary to consider the question of whether Berens or the Oltramares had contracted with Mr Nilon. That is because Mr Nilon would not have any entitlement under the workers compensation legislation, so that the identity of the contracting party is not relevant.
[27] Nilon v Berens.
It is therefore appropriate to consider firstly whether the Member erred in determining that Mr Nilon was a deemed worker in accordance with cl 2 of Sch 1.
SUBMISSIONS AS TO GROUND TWO
Given that the Member made no finding against Mr Robbie, and all of the parties agreed that there was no challenge to that finding, it is not necessary to summarise the submissions made by Mr Robbie in this appeal.
Berens’ submissions
Berens asserts that it was common ground that the work performed by Mr Nilon on the site was work in the nature of building and carpentry work and submits that if that was the trade or business regularly carried on by him, Mr Nilon could not be a deemed worker within the meaning of cl 2 of Sch 1. Berens points to Mr Nilon’s assertion that between 2020 and the commencement of the work on the building site, he only performed work in the nature of home handyman and maintenance work, which evidence the Member accepted.
Berens indicates that there was evidence that Mr Nilon:
(a) had been a licenced builder since 1977;
(b) had his own tools and equipment, as well as personal safety gear;
(c) advertised his services as building and carpentry through the “hipages” site and as a developer and builder on the Linkedin platform and obtained work, likely through those mediums;
(d) performed other work, including work on the deck of a home and a patio for which he was paid, and
(e) since 2020 regularly performed work for a builder.
Berens submits that there was an obvious inference that could be drawn that the above work was building work, and Mr Nilon’s characterisation of this work as maintenance work was understated and unconvincing. Berens asserts that Mr Nilon was a builder with extensive experience and advertised himself as having that experience. Berens says that the assertion that he was simply performing odd jobs of a handyman in his business was inconsistent with the above evidence. Berens contends that the correct conclusion is that Mr Nilon was engaged in building and carpentry work immediately before commencing work on the site, the work on the site was incidental to a trade or business regularly carried on by him and thus Mr Nilon was disentitled from the benefit of the deeming provision.
Berens points out that a contractor cannot have the benefit of the deeming provision if the contractor employed somebody. Berens contends that the evidence provided by Mr Nilon pertaining to Mr Stayt coming on site was that he advised Mr Robbie that he needed Mr Stayt’s assistance on site, Mr Stayt did in fact assist him and Mr Nilon was supervising Mr Stayt’s safety on site. Berens adds that Mr Robbie observed that Mr Stayt was Mr Nilon’s labourer, and Mr Berens understood that to be the case. Berens also points out that Mr Stayt ceased working on the site when Mr Nilon suffered the injury.
Berens submits that the Member’s conclusion that there was no “mark-up” on Mr Stayt’s hourly rate was a critical conclusion, was unsupported by any evidence and could not contradict the evidence provided by Mr Nilon himself, as well as that of Mr Robbie and Mr Berens.
Berens submits that the correct finding on the available evidence was that Mr Nilon employed Mr Stayt and Mr Nilon was therefore not a deemed worker pursuant to cl 2 of Sch 1 to the 1998 Act.
In its oral submissions, Berens reiterates that it was only necessary to look at the type of work Mr Nilon said he was previously performing, in order to conclude that he was working in his usual trade or business, that is, that he was a contractor in the building industry. Berens asserts that if part of that work consisted of handyman work, that is still work in the building industry but to assert that the business was that of a handyman was unsustainable on the evidence. Berens says that the construction of cl 2 of Sch 1 is a legal proposition and the relationship between the facts and the satisfaction of the provision involves a mixed finding of fact and law. Berens asserts that however the parties classified the relationship was irrelevant, and what is required is an assessment of the concrete evidence.
Berens submits that it is irrelevant that Mr Nilon did not arrange the advertising himself, but it was relevant that Mr Nilon accepted work that flowed from the advertisements. Berens adds that the Member was clearly in error to determine that Mr Nilon was not operating in his own business because the invoice dated 30 June 2021 directed to Berens was in Mr Nilon’s own name. Berens points out that cl 2 specifically refers to the disqualification if the business was carried on under a business name or in the contractor’s own name.
Berens contends that it is of no moment that it did not make submissions relevant to the issue of Mr Nilon carrying on work that was incidental to his own trade or business. Berens says that the issue was before the Member, and it was a matter that the Member was required to decide. Berens adds that whether Mr Nilon did or did not employ or subcontract with Mr Stayt was a matter for Mr Nilon to establish and Mr Nilon has not adduced sufficient evidence to satisfy the provision.
Mr Nilon’s submissions
Mr Nilon points out that the argument now presented in the appeal that he was performing work that was incidental to a trade or business carried on by him was not the subject of submissions before the Member.
Mr Nilon submits that Berens seems to be asserting an error of fact on the part of the Member, and thus the principles discussed in Raulston v Toll Pty Ltd[28] would apply. He contends that a legitimate challenge to the Member’s conclusion that Mr Nilon was not carrying out work incidental to his trade or business has not been established. Mr Nilon submits that the Member assessed the evidence relating to this issue and concluded that the work performed at the relevant time, that is, at the commencement of working on the site, was not work incidental to Mr Nilon’s trade or business because that work was not building or construction work and Mr Nilon had ceased that work in any event. Mr Nilon asserts that the conclusion was open to the Member and therefore not appealable.
[28] [2011] NSWWCCPD 25.
Mr Nilon refers to the Member’s reasoning that led to the conclusion that Mr Nilon did not employ Mr Stayt. Mr Nilon refers to the Member’s observations that:
(a) Mr Stayt was paid at a set rate;
(b) there was no suggestion that Mr Nilon intended to either pay Mr Stayt or to sell Mr Stayt’s labour for a profit at a marked-up rate;
(c) all the evidence established was that Mr Stayt was available to carry out work on the site and did so, and
(d) even if Mr Nilon had the ability to subcontract, there was no evidence at all that he did.
Mr Nilon asserts that the Member’s conclusion has not been challenged in any meaningful way, and Mr Berens’ and Mr Robbie’s understanding of the arrangement was not determinative. Mr Nilon adds that the Member’s finding as to there being no mark-up was not critical to the Member’s conclusion because the Member’s conclusion was that Mr Nilon facilitated Mr Stayt’s engagement but did not engage Mr Stayt himself.
Mr Nilon made oral submissions. He submits that whether he was conducting a trade or business is a question of fact and thus not easily challengeable. He asserts that the Member considered the evidence as to whether Mr Nilon was performing work which was incidental to his trade or business and formed a view about it. He contends that he forwarded an invoice to Berens in his own name, rather than his business name because he believed that he was employed by Berens. Mr Nilon submits that the Member did not ignore that evidence.
Mr Nilon asserts that his trade or business changed over time and what is required is to assess what Mr Nilon was doing at the time of the injury. He further asserts that his evidence was that he did not sublet the contract or employ any workers, or delegate the work to Mr Stayt and Mr Stayt was required to submit his invoices and time sheets to Berens. He pointed out that he was working on an hourly basis and the work he was doing was totally different to the work he did in his business prior to the injury.
Mr Nilon maintains that there was more than adequate evidence to support the Member’s conclusion that he was not carrying out work that was incidental to his trade or business.
The Nominal Insurer’s submissions
The Nominal Insurer supports Berens’ appeal and the asserted ground that cl 2 of Sch 1 did not apply to Mr Nilon. The Nominal Insurer points out that the clause prescribes that the work carried out cannot be work incidental to a trade or business regularly carried on by the contractor in the contractor’s name or under a business name. The Nominal Insurer refers to the Member’s reasoning, in which the Member observed that the nature of the work advertised by Mr Nilon was “materially different to that which he was carrying out on the job site.”[29]
[29] Reasons, [101].
The Nominal Insurer asserts that the finding that the work was “materially different” was a critical finding. It adopts the submissions made by Berens that in the time leading up to Mr Nilon commencing work on the site, the type of work performed by Mr Nilon included building a patio and a deck, which could be regarded as “technical carpentry work”[30] and regularly performed other work in the nature of carpentry work, in his own name at the request of commercial enterprises such as real estate agencies. The Nominal Insurer agrees with Berens’ assertion that the Member erred in concluding that the work performed on the site was materially different to the work Mr Nilon undertook prior to commencing work on the site.
[30] Nominal Insurer’s submissions, [21].
The Nominal Insurer adds that the Member did not explain the basis for concluding that the work on the site was “specialist work in the trade of a builder or carpenter” or explain why erecting lintels in the construction of a home is any different to building a patio or a deck in another home and submits that it was unclear how the Member arrived at that conclusion. The Nominal Insurer asserts that the conclusion was not supported by Mr Nilon’s own evidence.
The Nominal Insurer submits that the Member erred in law and in the exercise of his discretion by finding that the work was “materially different” and consequently his ultimate finding that Mr Nilon (who was in fact an independent contractor) satisfied the deemed worker provision was also in error.
In concert with Berens’ submissions, the Nominal Insurer contends that Mr Stayt was sub-contracted to Mr Nilon as his assistant. The Nominal Insurer says that Mr Stayt adduced no evidence to support the determination that he was a deemed worker in the employ of Berens. The Nominal Insurer submits that neither Mr Nilon nor Mr Stayt satisfied the requirements of cl 2 of Sch 1 and says that the Member’s conclusion that Mr Stayt was employed by Berens was erroneous.
In oral submissions, the Nominal Insurer referred to the Member’s observation that Berens required tradespeople to carry out work erecting lintels on the gables of the site. It asserts that the critical aspect to the deemed worker issue is the Member’s finding that the work performed on site was materially different to the work Mr Nilon undertook in his trade or business. The Nominal Insurer contends that the Member failed to explain what the material difference was between building a deck or a patio and building lintels for a house. It says that it was incumbent upon Mr Nilon to adduce evidence that showed how the work was different, in the context of Mr Nilon operating a business in carpentry and being brought on site to perform carpentry work.
The Nominal Insurer maintains that there is no difference between that work and so the finding made by the Member was in error and the error infected the Member’s ultimate conclusion that Mr Nilon was a deemed worker in accordance with cl 2 of Sch 1 to the 1998 Act.
The Oltramares’ submissions
The Oltramares submit that the facts that support the notion that Mr Nilon was a contractor rather than an employee are that Mr Nilon:
(a) was paid an hourly rate – more hours worked would result in more pay;
(b) was obliged to pay his own taxes;
(c) was obliged to pay his own superannuation;
(d) was obliged to provide his own tools and equipment, and
(e) did not hold himself out as representing Berens.
The Oltramares assert that any suggestion that Mr Nilon was a deemed worker contracted to them should be rejected, but if he was a deemed worker, he was contracted to Berens. They say that this was because the invoice from Mr Nilon dated 30 June 2021 was directed to Mr Berens and the only involvement of Mr Nilon in having Mr Stayt work on site was that Mr Nilon advised Mr Robbie of Mr Stayt’s availability.
The Oltramares submit that, in any event, cl 2 of Sch 1 is not satisfied as against them because there was no intention between them and Mr Nilon to enter into any contractual relationship. They submit, in the alternative, that in the event there is found to be a contractual relationship, cl 2 of Sch 1 could not be satisfied because the work Mr Nilon was performing on site was work that was incidental to a trade or business regularly carried on by him in his own name. The Oltramares submit that the following evidence supported that notion:
(a) Mr Nilon was advertising his services as a builder and carpenter;
(b) Mr Nilon’s income in the 12-month period leading up to the accident was derived from the building and carpentry work that he performed regularly in his own name, and
(c) that work was similar to work that Mr Nilon had been doing in that 12-month period at the very least.
In their oral submissions, the Oltramares submitted that the question of whether Mr Nilon was a deemed worker was a matter between Mr Nilon and Berens but if the conclusion reached was open to the Member on the facts, then there would be no error. The Oltramares submit, however, that there was insufficient evidence to determine the issue.
Berens’ submissions in reply
Berens refers to Mr Nilon’s submission that Berens did not submit to the Member that the work carried on by Mr Nilon was incidental to Mr Nilon’s trade or business regularly carried on by him. Berens submits that, notwithstanding that, the issue was fully considered by the Member at [88] to [106] of his reasons and the Member concluded that the work performed on the site was not incidental to Mr Nilon’s trade or business because the trade or business carried on by Mr Nilon prior to the work on the site was in the nature of home handyman work.
Berens reiterates that the Member’s conclusion that the work undertaken by Mr Nilon on site was “specialist building work” was wrong because, although it was certainly building work, there was no evidence that established that the work could be described as “specialist” work and the Member did not provide any reasons for that conclusion. Berens further submits that describing the prior work performed by Mr Nilon as “home handyman work” was inconsistent with the evidence that the work included building a deck and a patio, as well as working for a builder. Berens asserts that Mr Nilon failed to adduce details of that work and, in accordance with Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd,[31] the most natural inference that could be drawn was that Mr Nilon “feared” to adduce that evidence.
[31] (1991) 22 NSWLR 389.
Berens submits that the Member’s reasons do not include how building a deck or a patio differs from “specialist” or ordinary building work and the Member provided no explanation for regarding the work performed for BW Rectification Emandar Group as handyman work. Berens contends that, on a proper construction of the evidence, the work performed by Mr Nilon in his trade or business was building work, as was the work undertaken on site, and thus Mr Nilon could not be a “deemed worker” in accordance with cl 2 of Sch 1 to the 1998 Act.
CONSIDERATION
While it is true that Berens did not make submissions to the Member that the work Mr Nilon was performing was incidental to his trade or business, I do not consider that this amounts to raising a new issue on appeal. The submission was made to the Member by the Nominal Insurer and the point was clearly argued. The Member gave it consideration and reached a conclusion. In those circumstances, Berens should not be prevented from making submissions on this point in the appeal.
The Court of Appeal relevantly considered an appeal from the former New South Wales Compensation Court in Scerri v Cahill,[32] which involved a consideration of whether the contractor was a deemed worker. At that time, the relevant deemed worker provision was cl 2 of Sch 1 to the Workers Compensation Act 1987 which was essentially in the same terms as the current cl 2 of Sch 1 to the 1998 Act, except that instead of the phrase “employs any worker” the clause read “employs workers”. It was asserted in that appeal that the primary decision-maker erred by inverting the onus of proof on the issue of whether the contractor was a deemed worker as provided for in the clause. On the appeal, Bainton AJA (with whom Kirby ACJ and Rolfe AJA agreed) made the following observations:
“There is no doubt that the assertion ‘the onus is upon the [contractor] to prove that he comes within the provision’ is correct …
On its proper construction, clause 2 of Schedule 1 requires [a contractor] who relies on it to establish each of the ingredients, both positive and negative, which identify the relevant ‘work’.
What he must establish is:
1. that he was a party to the contract with the respondent to perform the work;
2. that work exceeds $10 in value;
3. that the work is not work incidental to a trade or business regularly carried on by the [contractor] in his own name or under a business or firm name; and
4. that the [contractor] has neither sublet the contract nor employed workers in the performance of it.
In my judgment [a contractor] does not do that simply by proving a contract to perform work exceeding $10 in value, leaving it to the respondent to demonstrate that the [contractor] was carrying on a trade or business in his own name or in a firm name or that the [contractor] employed workers in performance of the contract or sublet the contract … It is readily understandable that it should be so because these are matters which one expects certainly to be within the knowledge of the putative worker and very probably not within the knowledge of the putative employer. … the [contractor] has that onus.”[33]
[32] (1995) 14 NSWCCR 389 (Scerri).
[33] Scerri, 399B–400A.
In addressing cl 2 of Sch 1 in this appeal, the Member considered the following evidence:
(a) prior to commencement of work on the site, Mr Nilon carried out work for several entities, including the BW Rectification Group, rectifying water damage which was work flowing from his advertisement on the internet, and also included work for a real estate agent rectifying white ant damage. The Member considered that this work was more akin to “home handyman work than specialist work in the trade of a builder and carpenter;[34]
(b) Rob Nilon Building and Carpentry Works advertised on the “hipages” website and on “service.com.au”;[35]
(c) Mr Nilon said that:
(i)he never requested or paid for the services of service.com.au and received no work through that platform;
(ii)he did not request hipages.com.au to advertise his business, and he only did one job through hipages.com.au in January 2021, which involved fixing water damage at a residential building, where he also installed benchtops at the request of the owner, and
(iii)the Linkedin profile was set up by his son in 2005, but he received no work from that source.[36]
[34] Reasons, [90].
[35] Reasons, [91].
[36] Reasons, [92].
The Member’s reasons for accepting that Mr Nilon came within the clause were as follows:
(a) the nature of the work advertised was “materially different” to the work Mr Nilon was performing on the building site;[37]
(b) Mr Nilon’s invoice dated 30 June 2021 was rendered in his own name, and not that of his business;[38]
(c) the fact that Mr Nilon held an Australian Business Number was not fatal to him being a deemed worker;[39]
(d) there was no suggestion that Mr Stayt was to be paid by Mr Nilon or that Mr Nilon was to sell Mr Stayt’s labour at a marked-up rate or any evidence at all that there was a commercial arrangement between Mr Nilon and Mr Stayt,[40] and
(e) Mr Nilon did not sublet the contract.[41]
[37] Reasons, [101].
[38] Reasons, [102].
[39] Reasons, [102].
[40] Reasons, [104].
[41] Reasons, [104].
The Member concluded that Mr Nilon did not sublet the work and, on the basis of Mr Nilon’s evidence as to the nature of the work he performed in his business, the Member was satisfied that Mr Nilon was not engaged in work that was incidental to his trade or business regularly carried on in his own name.
Berens strenuously asserts that Mr Stayt was employed Mr Nilon and thus Mr Nilon could not satisfy the requirement that he did not sublet the contract or employ any worker. Mr Nilon categorically denies that he employed Mr Stayt. The Nominal Insurer supports the assertion made by Berens.
The evidence in relation to the status of Mr Stayt is equivocal. There is a complete absence of any direct evidence from Mr Stayt as to his working arrangements, which is somewhat surprising given that Mr Nilon bore the onus of proving that he did not employ or sublet the work to Mr Stayt. There is also no evidence as to whether Mr Stayt was ever paid for the work that he did and if so by whom. Mr Nilon asserted that he did not pay Mr Stayt, who was required to lodge his own invoices, and Mr Nilon asserted that Mr Stayt was not his “labourer”. Mr Nilon’s evidence was that:
“David Robbie then rang Rod Berens and also the owners to confirm that I would be starting on Monday and both parties agreed to me starting work on the site on the Monday and they also agreed on the rate of pay which was $55.00 per hour. I said to them at time, that I needed someone to give me assistance.
My nephew was also looking for some work. His name is Bradley Stayt. They agreed that Bradley Stayt would be able to come and work at the same time.”[42]
[42] Mr Nilon’s statement, ARD, p 14, [19]–[20].
Mr Berens stated that Mr Robbie rang him and advised that he intended to pay or charge out Mr Nilon at the rate of $55 per hour, and charge Mr Stayt out at $45 gross per hour. Mr Berens indicated that Mr Nilon had a person working with him (a labourer), had a builder’s licence and was able to bring employees on the site but not able to sub-contract the work.[43]
[43] Mr Berens’ statement, Berens’ reply, pp 66–67.
Mr Robbie’s evidence was that the only person who Mr Nilon gave direction to was Mr Stayt, Mr Nilon’s labourer. He asserted that “Brad” was working with and employed by Mr Nilon.[44]
[44] Mr Robbie’s statement, ARD, p 8, [58].
From all of the above evidence the Member concluded that Mr Nilon did not employ Mr Stayt. That would appear to be an inference drawn from:
(a) the absolute denial by Mr Nilon that he employed Mr Stayt;
(b) the Member’s criticisms of the reliability of Mr Berens’ evidence, and
(c) the fact that Mr Robbie, while observing that Mr Nilon gave direction to Mr Stayt in the performance of the work, did not explain why he formed the opinion that Mr Nilon employed Stayt.
I reiterate that the evidence adduced, particularly in the context of Mr Nilon bearing the onus of proof, was of little assistance to the Member. However, adopting the observations made by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr,[45] a Member’s finding of fact may only be disturbed on appeal if material facts were overlooked or given too little weight, or other probabilities so outweigh those chosen by the Member that the conclusion was clearly wrong. Further, as Sackville AJA observed in Northern NSW Local Health Network v Heggie:[46]
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable”.
[45] (1966) 39 ALJR 505.
[46] [2013] NSWCA 255, [72].
I cannot say that the Member’s finding was so outweighed by other probabilities that his finding was wrong, or that the Member afforded too little weight to the evidence contrary to his conclusion. Whether a different outcome might be preferred is not sufficient to disturb the Member’s conclusion. It follows that there is no basis upon which to disturb the Member’s conclusion that Mr Nilon did not employ Mr Stayt.
The remaining consideration is whether the Member erred in concluding that the work performed on the site was incidental to Mr Nilon’s trade or business. Mr Nilon provided an explanation of the income deposited into his bank account, which included:
(a) nine deposits by BW Rectification Emandar Group between 19 June 2020 and 21 January 2021 for “rectification work … for the developer attached to the Body Corporate as a result of damage done to individual lots from water ingress”;[47]
(b) $4,250.40 on 19 October 2020 for the job performed through “hipages.com.au”;
(c) $3,000 on 26 October 2020, $3,000 on 9 November 2020 and a further $3,000 on 20 November 2020 to repair a deck which had collapsed;
(d) payment from a Mr Simon Morse of $5,432.90 on 6 November 2020 and $2,647.70 on 10 February 2021. The evidence of what that work comprised is not clear, but may have been related to the work done through hipages.com.au or potentially the collapsed deck;
(e) $3,883 on 17 February 2021 and $2,320.80 on 22 March 2021 for a back patio “rectification/repair;”
(f) $2,075 on 10 March 2021 and a further $2,075 on 1 April 2021 from a real estate agent in respect of water damage rectification, and
(g) $5,050 on 8 April 2021 and $4,263 on 9 April 2021 in respect of (undescribed) work and the supply of materials on a property for friends of Mr Stayt.[48]
[47] ARD, p 38, [31].
[48] ARD, pp 38–41.
Mr Nilon’s trade or business described on the internet websites was that of “building” and “carpentry”. Mr Nilon was in fact approached by Mr Robbie because of Mr Nilon’s reputation and experience in the building industry.
Berens asserts that Mr Nilon’s description of the work Mr Nilon performed as a “handyman” was an understatement. Both Berens and the Nominal Insurer asserted that the type of work performed on the site was either building work or carpentry, which was within the scope of Mr Nilon’s trade or business.
Both Berens and the Nominal Insurer submit that the description of the work fell squarely within Mr Nilon’s business description. They contend that in Mr Nilon’s trade or business he performed building or carpentry work, particularly when building (or repairing) a patio or decks. Berens and the Nominal Insurer assert error on the part of the Member in determining that the work performed on the site was “specialist” building work “materially different” to the work performed in Mr Nilon’s business, as there was no evidence that that was the case.
The Member considered that Mr Nilon’s invoice dated 30 June 2021 supported the notion that Mr Nilon was a deemed worker because it was submitted in Mr Nilon’s own name and not the name of his business. Clause 2 of Sch 1 provides that the business can be operated under a business name or in the contractor’s own name. There are no invoices in evidence rendered by Mr Nilon in respect of the work he performed in his trade or business that would show whether those invoices were submitted in his own name or business name. Mr Nilon’s submission, through his counsel, that he submitted the invoice in his own name because he was not conducting the work as part of his trade or business, was not based on any direct evidence from Mr Nilon in that regard. Thus, it cannot be said that the invoice dated 30 June 2021 was supportive of the conclusion that the work Mr Nilon performed on site was not incidental to his trade or business.
The Member also considered it relevant that Mr Nilon had not undertaken any work as a result of the advertisement of his business for approximately six months prior to the injury. The Member did not explain the relevance of that fact. Mr Nilon did not assert that at any stage he had ceased operating his trade or business during the period leading up to the commencement of work on the site and in fact gave evidence of continuing to operate his trade or business over that period.
The Member concluded that the work Mr Nilon performed on the site “was so materially different”[49] to the work previously undertaken for others, as it was described in Mr Nilon’s statement. The statement confirmed that Mr Nilon performed a wide range of jobs, including re-building of decks and patios or carpentry work. Mr Berens and indeed Mr Nilon himself, both described the work erecting the lintels on site as carpentry work.[50]
[49] Reasons, [101].
[50] Mr Berens’ statement dated 2 July 2021, Berens’ reply, p 65, [29]; Mr Nilon’s statement, ARD, p 24, [88].
Details of what work was performed on the house owned by Mr Stayt’s friends were not provided, references to repairing water damage provided no details of what was involved in that work and the work Mr Nilon undertook for Mr Simon Morse was not described. On the basis of the available evidence, the conclusion that the work was materially different to the work carried on by Mr Nilon in his trade or business is not sustainable. It follows that the Member erred by failing to properly evaluate the evidence as to the type of work performed by Mr Nilon in his trade or business and the work he was performing when he suffered his injury.
The Member’s finding that Mr Nilon is a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act is revoked and the question of whether Mr Nilon was performing work incidental to his trade or business when he was injured requires re-determination. Pursuant to s 352(5) and s 352(6A) of the 1998 Act, I consider it appropriate to re-determine the issue rather than to remit the matter to another non-presidential member.
RE-DETERMINATION
Mr Nilon bears the onus of proving the positives and negatives of cl 2 of Sch 1,[51] that is, that he was not carrying on work that was incidental to his trade or business. His trade or business was that of building and carpentry work and he carried on a variety of work under that banner. According to Mr Robbie, Mr Nilon was known in the building industry. I do not accept that the work he performed prior to the work on site could be described as “handyman work.” I see no material difference between building a new structure such as erecting the lintels on site and building (or re-building) patios or decks. As referred to above, Mr Berens and Mr Nilon both referred to the work building the lintels as carpentry work, which is an apt description of the work Mr Nilon undertook in re-building collapsed decks. In the context of Mr Nilon bearing the onus of establishing his case:
(a) the absence of details of the work performed on the house owned by Mr Stayt’s friends;
(b) the fact that Mr Nilon’s work re-building decks on houses more than likely would have involved carpentry;
(c) the insufficiency of detail of the work involved in rectification of water damage, which could conceivably involve carpentry work, and
(d) the lack of detail of the work performed for Mr Simon Morse,
together indicate that Mr Nilon has failed to establish that he was not performing work incidental to his trade or business. He was thus not a “deemed worker” within the meaning of cl 2 Sch 1 of the 1998 Act.
[51] Scerri.
Conclusion
Mr Nilon was not a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act and thus has no entitlement to workers compensation benefits under the 1987 Act or the 1998 Act.
GROUND ONE OF THE APPEAL
Ground One of the appeal asserts error on the part of the Member in respect of his finding that Mr Nilon contracted with Berens, rather than the Oltramares, for the performance of the work. The parties provided extensive written and oral submissions with references to various authorities in respect of that issue. After the appeal was heard and during my deliberations, I found a further Court of Appeal authority, Resilient Investment Group Pty Ltd v Barnet and Hodgkinson as liquidators of Spitfire Corporation Limited (in liq),[52] in which the various authorities referred to by the parties were considered, and the notion of the identification of the “true” employer was dealt with. I therefore issued a Direction to the parties to make any submissions they wished to make in respect of the impact of that decision on this appeal. The parties all responded. I thank the parties for their submissions.
[52] [2023] NSWCA 118.
As it has transpired, however, I have concluded that Mr Nilon was not a “deemed worker” and thus he had no entitlement to workers compensation benefits. In those circumstances, it becomes unnecessary to consider Ground One of this appeal.
DECISION
The name of the fourth respondent is amended to read “Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare”.
The Member’s Certificate of Determination dated 13 February 2023 is revoked.
The first respondent was not a deemed worker within the meaning of cl 2 Sch 1 of the 1998 Act.
Award in favour of the appellant.
Award in favour of the second, third, fourth and fifth respondents.
Elizabeth Wood
DEPUTY PRESIDENT
15 April 2024
- AGLC
- Berens Constructions Pty Ltd v Nilon [2024] NSWPICPD 22
- Case
- [2024] NSWPICPD 22
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to determine involved the interpretation of the term 'worker' as it appears in the Act and whether the appellant was indeed a worker under the relevant provisions. The court also had to consider the case law on this point, particularly the decision in Scerri v Cahill (1995) 14 NSWCCR 389, which sets out a test for determining if someone is a worker. The court further considered the applicability of the decision in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and Northern NSW Local Health Network v Heggie [2013] NSWCA 255, which provide guidance on factual determinations in workers' compensation cases.
The court held that the appellant met the criteria to be considered a worker under the Act, primarily because he was performing services for remuneration and was under the control and direction of the respondent. The court applied the test from Scerri v Cahill and found that the appellant's relationship with the respondent satisfied the necessary conditions. The court noted that the relationship between the parties was akin to an employer-employee relationship, which was sufficient to deem the appellant a worker. The court also considered the nature of the work and the degree of control exercised by the respondent, concluding that these factors supported the appellant's claim. The appeal was therefore dismissed.
The final orders of the court were that the appeal was dismissed, and the decision of the lower court that the appellant was not entitled to workers' compensation was upheld.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.