Bird v Reid
[2014] VMC 32
•12 June 2014
| IN THE MAGISTRATES COURT OF VICTORIA | D10603437 |
AT MELBOURNE
| LUKE BIRD | Plaintiff |
| v | |
| CHRISTOPHER & JULIANNE REID | Defendant |
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MAGISTRATE: | Magistrate B.R. Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3, 4 June 2014 |
DATE OF DECISION: | 12 June 2014 |
CASE MAY BE CITED AS: | Bird v. Reid |
REASONS FOR DECISION
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Catchwords:
Workers Compensation - Rejection of Claim – Plaintiff Undertook Various Tasks on Building Site - “Worker” – Whether Under a Contract Of Employment “Or Otherwise” – Performs Work at Employers Direction, Instruction or Request – Accident Compensation Act 1985 s 5(1) “worker”
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Johnstone | Nowicki Carbone |
| For the Defendant | Ms R Kaye | Thompson Geer |
HIS HONOUR:
1 Mr Bird injured his back while performing manual activities on a building site for about one and a half days on 21 and 22 February 2012. The building site was actually the home of the Defendants, Mr and Mrs Reid, who conduct a bricklaying business and have done so since about 1994.
2 Mr Reid was bricklaying on those days on his own home with two of his employees, a qualified bricklayer “Grant” and an apprentice “Brad”. The Reids deny that Mr Bird was a “worker” within the meaning of the Accident Compensation Act 1985 (“the Act”) when he was on their site. That is the only issue for me to decide. There was no submission that he was a “deemed worker”. The Reids accept that he suffered injury on their site and that he has a consequential incapacity for work.
3 Mr Bird is a 24 year old man who had previously worked as a labourer in various industries, but more importantly on about 50 different building sites after leaving school during Year 10. He got such work through his stepfather who is a plumber and other contacts.
4 None of those jobs involved a written contract of employment. In fact, he said he never inquired about, let alone agreed on, any rate of pay before starting any of those jobs. Either during or at the end of the first week, he would accept or negotiate an hourly rate. If he did not like the nominated rate, he would leave that job.
5 He was generally paid about $100 to $120 per day. He would work up to two to four weeks, or even a few days, on each site. He did general work on those sites such as shovelling, sledgehammer work, shifting tiles and bricks and taking some measurements, etc.
6 The parties agreed on facts, some of which I have already referred to. As I have set out above, the Reids agreed that they have a bricklaying business, the work site was their home and the issues of injury and incapacity.
7 I will briefly summarise the other agreed facts.
8 Mr Bird wanted to get a bricklaying apprenticeship and contacted the Australian Brick & Blocklaying Training Foundation Limited about information to commence an apprenticeship. They suggested he contact Mr Christopher Reid as a possibility.
9 On 20 February 2012, Mr Bird phoned Mr Reid and asked whether he could start an apprenticeship. It was agreed in evidence that Mr Reid had told him that he had no need for an apprentice.
10 After that conversation Mr Bird attended the home under construction and did general bricklayer's labouring type work from about 7.00 a.m. on each of 21 February 2012 (all day) and 22 February 2012 (until lunch time), when he ceased after suffering injury.
11 It was agreed that at no time before Mr Bird leaving the site on the Tuesday was there any form of remuneration discussed, or even raised, between Mr Reid and Mr Bird for his attendance on either day. The later evidence was that no remuneration has been paid in any event.
12 Mr Bird gave evidence. He said he told Mr Reid that he was experienced on building sites. After being told by Mr Reid that he was not looking for an apprentice, he asked whether there something he could help him with. Mr Bird said that he maintained he wanted work for a couple of days per week so that Mr Reid could pass his name on to others. Mr Bird told Mr Reid that his partner was pregnant and he wanted work.
13 He said that Mr Reid said he "had work for him". He said that Mr Reid then told him, or later texted, the address and time for the next day.
14 The following day Mr Bird arrived about 7.00 a.m. at the Heathmont home address. He thought that Mr Reid and two “apprentices” arrived about 7.30 a.m. He initially offered to take in some tools and carried in bags of cement.
15 One of the two apprentices asked him if he had mixed “mud”, that is cement, for bricks. He said that he had in the past. He mixed some and took it to the scaffolding. He said he was told by Mr Reid it needed a special dye and had to take it back. He said he mixed about six to eight loads of cement during the day, taking it by barrow and shifting it up two layers of scaffolding by shovel.
16 At Mr Reid's direction, he sorted a stack of bricks between “firsts” and “seconds” quality. He helped the lifting of bricks onto the scaffolding but was too slow stacking up top. He then went down to do so at the bottom.
17 He said he was given some gloves by Mr Reid during the day. He had no lunch that day, but continued to work with Mr Reid.
18 He said he finished about 5.00 to 5.30 p.m.. He told Mr Reid when he left he would see him the next day. He said Mr Reid agreed to that. He also asked Mr Reid whether he was happy with him. Mr Reid said that he was.
19 During the latter part of the day, he had some low back pain to the left side and leg, but did not think much of it. He did not want to say anything to Mr Reid as he wanted to get work or a career out of his time there. He thought that he would be all right the next day.
20 On the next day, he arrived before Mr Reid and did much the same type of work, i.e. mixing cement, taking it by shovel up the scaffolding and moving bricks. He said he did not talk much to Mr Reid that day. He said Mr Reid did not tell him what to do on the second day.
21 During the morning his back got worse. He tried taking cement up the scaffolding by bucket to see if that was easier. He did about ten loads and an apprentice told him not to do it that way.
22 About lunchtime, he told Mr Reid that he was hurting and that he had done something to his back. He said Mr Reid said very little. He did not have any money for a taxi. He borrowed Mr Reid's phone to call his girlfriend and a taxi. He took the taxi to his girlfriend's workplace to get some money and then went to his doctor.
23 He said he thought he would be paid, but was not. He did not contact Mr Reid at all until about a week later. He telephoned him and said that he needed to get some details from Mr Reid to make a worker's compensation claim. He said Mr Reid told him "you never worked for me". This shocked him and he was not sure what he replied. He asked about his two days pay, but did not remember what Mr Reid said. He could not say whether there was any more conversation.
24 He has had no further contact with Mr Reid since that conversation until the first day of this hearing. He has not been paid anything by the way of wages or made any claim, except for that final phone call. He signed his claim form but did not know who ticked the description of his job as "trainee".
25 Mr Reid then gave evidence. As at February 2012 Mr Reid said he employed two apprentices, two bricklayers and two subcontractors. If he needed an apprentice, he said he would usually call the Holmesglen TAFE and ask them to send a pre-apprentice for their work-training component. If he was happy with them he would take them on as an apprentice. He said there is about a $5 per day compulsory training wage, but he would pay more if they did well.
26 He had employed one apprentice who had started as a work experience student. Sometimes, he has taken over apprentices from other bricklayers who were unable to continue their apprenticeship obligations. He had not received or paid any people from the Bricklayers Board. He presumed they sent Mr Bird to him because Mr Reid featured in some of their advertising.
27 He had employed bricklayer labourers in the past, but not for about one year before. He generally paid them about $20 per hour. He does the on-site supervision work and his wife does the books and related tasks as part of the business.
28 As at February 2012, he said he had one other worksite as well as his own home site. He had employed other workers since 1994. He had another experienced person supervising his other site. He was coping on his own home site and did not need a labourer. He was paying a wage to the two workers on his home site. He denied at any time wanting, asking or agreeing with Mr Bird to be a labourer on-site.
29 During his evidence, he gave two reasons why he allowed Mr Bird to come on-site. He said that after Mr Bird told him his girlfriend was pregnant, he felt sorry for him. He thought that if Mr Bird performed well on site he could recommend or give a “leg-up” to Mr Bird to be used as a referee. Later, he said that Mr Bird could do what an apprentice does on-site so that he could better appreciate the work of an apprentice bricklayer.
30 He did not tell Mr Bird that there was no obligation to do things. He agreed that he asked him to sort out a pile of bricks into “firsts” and “seconds”, shift some cement and put bricks onto the scaffolding. He said he did not see him mix any cement. Others would have done these things on-site, so it did not matter to him if Mr Bird did not do them. He did not hire anybody else after Mr Bird to do that work. He said he did not discuss any start time or finish time with Mr Bird. Mr Reid said that he was always on site from about 7.00 a.m. and generally worked until dark, which as well after 5.00 p.m. at that time of the year.
31 He thought that Mr Bird left at about 4.00 p.m. on the first day. There was no discussion then. The next day he did not speak much to Mr Bird. He said Mr Bird came up to him and said that he had hurt himself. He told him to take it easy and go if he wanted to. There was no discussion about returning. He believed that he could have let Mr Bird borrow his mobile phone.
32 The only contact with Mr Bird after the second day was Mr Bird calling him about a week later. This was only for some details for a worker's compensation form, which he thought related to his full name and address. He agreed he may have been abrupt with Mr Bird, but was flabbergasted by the call and suggestion that he had employed Mr Bird. He said he was not trying to avoid a valid worker's compensation claim.
33 That was the completion of Mr Bird's evidence. There was no other evidence called by either party.
34 As previously stated the only issue for me to decide as to whether Mr Bird was a “worker” within the meaning of s.5 of the Act. Pursuant to s.5 of the Act, the relevant parts of the definition of “worker” are as follows:
"A worker means an individual
(a) who;
(i) performs work for an employer or;
(ii) agrees with an employer to perform work - at the employer's direction, instruction or request whether under a contract of employment (whether express implied oral or in writing) or otherwise;
35 In her submission Counsel for the Reids submitted there were three issues in this case; (1) was there a contract of employment?, (2) do the words "or otherwise" in the definition cover this case? and (3) was there an employment relationship between the parties? I took this to mean whether he was working at the direction, instruction or request of Mr Reid.
36 She submitted that Mr Bird needs to satisfy the court a combination of (a) and (c) or (b) and (c) as I have expressed.
37 In her final address, she made extensive submissions on the question as to whether there was a contract of employment. However, in his final address Counsel for Mr Bird conceded there was no contract of employment here in the sense that there was no completed contract as such. At the very least, he agreed that there was no agreement, or even discussion, as to payment or wages. Neither party had turned their mind to the issue prior to or during the time that Mr Bird was on site.
38 I believe it was quite appropriate for Mr Bird’s Counsel to make that concession. Thus, I do not need to fully consider the Reids’ full submissions as to the contract issue, though some aspects will need to be considered.
39 Certainly, I need to consider the question as to whether there was any employment relationship between the parties. This should be done first as my findings will be relevant to determine the applicability of the “or otherwise” provision. Both counsel referred to the eight indicia of a work relationship in Elazac Pty Ltd v Sheriff [2011] VSCA 405 at para. 30.
40 The Court of Appeal pointed out therein that "modern authority is to the effect that it is the totality of the relationship between the parties which must be considered". As to the eight indicia set out in that case, this was in the context as to whether the work relationship in that case between those parties was one of a “contract of service” as opposed to a “contract for services”.
41 I am satisfied in this case that Mr Reid did not intend there to be any employment relationship between his business and Mr Bird. I accept his evidence that he felt sorry for Mr Bird who told him that his girlfriend was pregnant. I do not believe that he was exploiting Mr Bird for unpaid work. He was happy for Mr Bird to perform tasks on his worksite with a view to Mr Bird getting experience as to bricklaying work with a view to him appreciating bricklaying work, especially as to a future apprenticeship.
42 Mr Bird may have been able to use that experience with a view to Mr Bird either using Mr Reid as a referee or Mr Reid referring him on to someone else for an apprenticeship. In short, this was an informal work experience situation not coming within s.5F, which covers formal work experience students.
43 Although Mr Reid asked him to do separate tasks such as sorting bricks and putting them onto scaffolding, I accept that this was for Mr Bird's experience rather than work as such for Mr Reid. Mr Bird did not replace anybody on site and more importantly was not replaced after he left. He was free to stay as long as he liked or leave when he liked. He was free to return if he liked.
44
I had a number of difficulties with Mr Bird's evidence as to whether he considered himself to be in a work relationship with the Reids. As I pointed out, there was no discussion whatsoever about pay, hours, conditions or period of employment etc. There was very little, if any, discussion of
Mr Bird's past experience. He did not even have the Reid's business address or other details at any time, except for Mr Reid's name and his telephone number.
45 I also have difficulty in accepting that he never had any wage negotiations whatsoever prior to starting work at about 50 different previous building sites. At best, it would indicate some naivety on his part or maybe the fact that the earlier employers on other sites would give him a trial unpaid period before deciding whether to take him on. This would give doubtful coverage under the Act anyway (see, Dietrich v. Dare (1980) 30 ALR 307).
46 Although Mr Bird says that he believes now that he was in a paid work relationship, his conduct did not indicate that at the time. After leaving the site at lunchtime on the second day, he did not contact Mr Reid until about a week later. If he actually thought he was in a paid working relationship at the time, I would have thought that he would have contacted Mr Reid to let him know what was happening, if only to preserve his job. In addition, he made no request for wages at any time apart from that one request at the end of that one phone call. There has been no further attempt to get his wages.
47 Further, as he had no money on him for the taxi on the second day, I would have thought that he might have asked for some wage payment prior to leaving the site. Instead, he asked to borrow Mr Reid's phone to call his girlfriend, then go to his girlfriend's work and get some money before going to the doctor. That is further indication that he did not believe that he was in a working relationship with the Reids at the time.
48 His signed claim form indicated a tick for “trainee” as to his belief as to the working relationship rather than the “casual” or “part-time” options which may be more relevant to the actual work that he described.
49 I accept that he did not fill in the claim form himself. However, the person who did so (which was probably his doctor), had at least some discussion with him in order to fill in the balance of the claim form. Mr Bird acknowledged that he did sign the claim form.
50 Counsel for Mr Bird submitted that I should accept that there was some intention to create legal relations on behalf of both parties and that the lack of discussions as to wages was the only thing that prevented there being a contract of employment here. I do not accept that is the case.
51 At the very least, there was no mutuality of intention by the parties. There was no intention to create legal relations in this case by either party in any view, having regard to my findings that I have previously made.
52 In the circumstances I do not accept that a reasonable person would accept that there was any contract or intention whatsoever to enter a contract as submitted by Mr Bird’s Counsel (see, Toll v. Alphapharm [2004] HCA 52 at paras. 39-40 and Ermogenous v. The Greek Orthodox Community [2002] HCA 8 at para. 35).
53 Finally, I need to consider the relevance of the words "or otherwise" in the definition of “worker” in s.5 of the Act. These words were introduced into the Worker's Compensation Act definition as far back as 1922. As the authors point out in the loose-leaf publication Workers Compensation-Victoria (Butterworths (1980) at para. [1422.1], these words in the definition are "somewhat perplexing". They state that maybe the "full impact of these words is not yet understood". That annotation in August 1987 was made some 65 years after those words were introduced into the Act. Neither counsel was able to point to, nor was I able to find, a single case over the last 92 years where a person has been included as a “worker” pursuant to those words “or otherwise” in the definition.
54 After the Hanks report on workers compensation the government introduced Act 80 of 2010. It is clear from the Explanatory Memorandum to that Bill that the government at least initially intended to repeal the words “or otherwise” as being unnecessary. However, for some unknown reason the words were retained in the legislation.
55 The Explanatory Memorandum points out in the past that those words may have captured certain persons undergoing practical training in a workplace, for example student nurses, but the words are "ambiguous".
56 The Explanatory Memorandum thus picks up the dicta of Mr Justice Gray in Eres v. Deer Park Installations (unreported, Supreme Court, del. 2 November 1994) who referred to the original 1922 parliamentary debate concerning the introduction of those words into the Worker's Compensation Act, citing the sentence;
"The additional words, 'or otherwise' mean that not only an apprentice but a person who has paid a premium such as a pupil nurse and others in similar position will now come under the Act."
57 In Bailey v. Rowe ([1935] VLR 135 at p.139) in considering the definition of worker “under a contract of service or apprenticeship or otherwise”, Mr Justice Martin stated that the words “or otherwise” should be treated ejusdem generis with the words that preceded them.
58 Later, Mr Justice Gray in Eres pointed out that Justice Gillard in Bailey v. Victorian Soccer Federation [1976] VR 13 considered the words “or otherwise” were used to cover certain fictional contracts of employment. However, Mr Justice Gray points out that this conclusion would appear to be rebutted by the 1922 parliamentary debate, which I have already discussed.
59 With respect, I accept Justice Gray's view which may explain the lack of use of those words in the determination of worker's compensation cases since 1922.
60 I find that the words “or otherwise” are not applicable to the actual relationship between Mr Bird and the Reids. There was no formality in their arrangement, whether by way of contract “or otherwise”. There was no mutuality of obligation or work relationship between them. Thus, in all the circumstances Mr Bird was not a “worker” within the meaning of the Act.
61 These proceedings will be dismissed.
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