Birss v VWA
[2024] VCC 904
•24 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-05400
| WAYNE JOHN BIRSS | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 16 May 2024 | |
DATE OF JUDGMENT: | 24 June 2024 | |
CASE MAY BE CITED AS: | Birss v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 904 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – preliminary hearing pursuant to rule 47.04 to determine if the plaintiff was a “worker” – entitlement to compensation
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Elazac Pty Ltd v Shirreff [2011] VSCA 405; Eastern Van Services Pty Ltd v Victorian WorkCover Authority and Anor [2020] VSCA 154; Ansett v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247; Moore v Goldhagen [2024] VSCA 25; Bedeux v Transport Accident Commission [2016] VSCA 127
Judgment: Preliminary question answered in favour of the defendant. Ruling that the plaintiff was not a “worker”
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
Introduction
1Mr Wayne Birss (“the plaintiff”) is now 50 years of age. He has worked as a bricklayer for about thirty years. He has essentially operated as a sub-contractor, going from job to job, when the pay and the conditions, or the location of the work, suited him. Sometimes he invoiced the work and was paid via an ABN, and at other times he worked for cash. He has never employed staff, held WorkCover insurance or run a business.
2The way the plaintiff has worked – and continues to work – as a bricklayer appears the quintessential sub-contractor approach to the work of a tradesperson.
3Mr Declan Hughes (“Hughes”) operated a bricklaying business. But, unlike the plaintiff, he operated his business through a company, Belfast Construction Pty Ltd (“Belfast”), held WorkCover insurance and engaged contractors as needed to help him with the work.
4Consistent with how he ran his business, during 2016, Hughes advertised on Gumtree looking for a bricklayer to help him out. The plaintiff answered the advertisement and did some work for Hughes, although whether that was for a day, or for several months, is a fact in dispute. Whatever the amount of work performed, it was paid by Hughes in cash to the plaintiff.
5The next contact between Hughes and the plaintiff was in or about August 2017, when Hughes contacted the plaintiff to see if he could help him out with a job that he had taken on for a builder in Grange Road, Glenhuntly (“the Grange Road job”).
6On 21 August 2017 the plaintiff was at the Grange Road job, laying bricks (or more accurately, laying blocks) at the request of Hughes, when the plaintiff fell from a scaffold (or possibly some type of makeshift scaffold) and hurt his right ankle (“the incident”).
7Soon after the incident, the plaintiff and Hughes had a disagreement. That seemingly motivated the plaintiff to call WorkSafe to report the incident, which in turn led to the plaintiff sending a WorkCover claim for compensation (“the claim”) to Hughes for injury suffered because of the incident.[1]
[1]Plaintiff’s Second Further Amended Court Book (“PSFACB”) 4.
8In the WorkCover claim form, the plaintiff described himself as a sub-contractor and said he had commenced working for the employer on approximately 8 August 2017 at an hourly rate of $37.50.[2] On several occasions in the claim form, the plaintiff described Declan Hughes as the employer.
[2]PSFACB 5.
9In response to the claim, the Employer Injury Claim Report was completed by Hughes, on behalf of Belfast. Hughes recorded that the company did not usually have workers and that the plaintiff was only contracted for two days. Hughes wrote that the plaintiff would not provide an ABN and demanded cash on the last day. He wrote that the plaintiff only worked two days, was paid $150 per day, and described the plaintiff a “casual worker”.[3]
[3]PSFACB 6-7.
10WorkSafe then arranged an investigation report and obtained statements from Hughes and from another bricklayer who had been working with the plaintiff on 21 August 2017, Mr Patrick Collins. The investigator tried to speak to the plaintiff about the incident but was unable to get him to participate in the investigation.
11The end result was that the plaintiff’s claim for statutory benefits under the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) was accepted by Allianz, as a WorkCover claims agent, on behalf of Belfast.
12As part of the claim, the plaintiff received ‘no fault’ benefits under the Act, including an accepted claim for an impairment benefit.
13In fact, the plaintiff continues to have an accepted claim for statutory benefits, although he has apparently not claimed any ongoing expenses or payments for some considerable time.
This proceeding and a preliminary issue
14Next, consistent with the acceptance of the claim, the plaintiff lodged a “serious injury” application in respect to a claimed “serious injury” to his right ankle. That application was rejected and so, by Originating Motion dated 3 October 2023, the plaintiff sought the leave of the Court to commence a common law proceeding on the basis he had suffered a “serious injury” within the meaning of s325 of the Act.
15The “serious injury” proceeding was set down for hearing on 9 May 2024. However, as part of the pre-trial process, notwithstanding the acceptance of the claim, the Victorian WorkCover Authority, as the defendant in the “serious injury” proceeding, raised as an issue whether the plaintiff was “a worker” within the meaning of s3 of the Act (“the preliminary question”).
16Therefore, the parties agreed to vacate the “serious injury” hearing and instead proceed with a preliminary hearing pursuant to r 47.04 of the County Court Civil Procedure Rules 2018 to resolve a question of whether the plaintiff was a “worker” for the purposes of the Act.
17The resolution of the preliminary question should be seen in the context of the dearth of objective evidence about the arrangement between the plaintiff and Hughes/Belfast. Further, as I shall discuss, the evidence from both sides was limited and unreliable for the purpose of answering the preliminary question.
18To highlight the uncertainty of the arrangement and lack of objective evidence, it is a curious scenario whereby the plaintiff described himself as a sub-contractor to Hughes in the claim form, but now disavows that to claim he was a “worker” for Belfast. On the other hand, the defendant now disavows itself of the description by Hughes that the plaintiff was a casual worker for Belfast.
Agreed facts
19The background set out so far is extracted from the evidence and I do not consider it to be controversial.
20But, at the request of the Court, before evidence was led and tendered, the parties filed a Statement of Agreed Facts,[4] which is reproduced as follows:
[4]Exhibit P1.
“1.In this proceeding, the Plaintiff alleges, and the Defendant denies, that he was employed by Belfast Construction Pty Ltd (‘Belfast Construction’).
2. The Plaintiff suffered injury in an incident (‘the incident’) when he fell from scaffolding on Monday 21 August 2017 at a building site located at 103-105 Grange Road, Glenhuntly [sic] (‘the site’). At the time of the incident, other persons were also working on said scaffolding being Patrick Collins and Declan Hughes.
3. Belfast Construction was:
(a)the bricklaying contractor at the site, having contracted with the principal contractor being the builder; and
(b)deregistered on 5 February 2018.
4. As at August 2017, the Plaintiff had an active Australian Business Number (ABN 44 521 040 347).
5. At all material times Declan Thomas Hughes (‘Hughes’) was the sole director, shareholder and company secretary of Belfast Construction.
6. Belfast Construction operated a business providing bricklaying services.
7. Belfast Construction had sourced the bricklaying job at the site and liaised with their client, the builder. Belfast Construction was ultimately responsible to the builder for the quality of the work. At the site, Belfast Construction only provided bricklaying services.
8. The Plaintiff was undertaking bricklaying at the site on Friday 18 August 2017 and Monday 21 August 2017, at the request of Hughes. There is a dispute between the parties as to whether the Plaintiff was on site earlier than 18 August 2017. While working at the site on 18 and 21 August 2017:
(a)the Plaintiff had no direct contact with the builder;
(b)the Plaintiff did not employ or engage any other person to assist him or do the work. The Plaintiff did the work himself;
(c)the Plaintiff received instruction from Hughes as to what to do;
(d)Hughes allocated work to various persons engaged by Belfast Construction including the Plaintiff;
(e)the Plaintiff worked with other persons to lay bricks (those persons also having been engaged by Hughes) Patrick Collins (bricklayer) and a labourer ‘Nial’;
(f)Hughes worked with the Plaintiff and other persons sub-contracted at the site.
9. The Plaintiff supplied his labour, work boots and his own hand tools.
10. Belfast Construction Pty Ltd supplied:
(a)materials including bricks, blocks, mortar and a cement mixer; and
(b)the scaffolding.
11. As to the remuneration and the like:
(a)the Plaintiff was to be paid by Belfast Construction for the time worked (the Plaintiff says the rate was $350 per day, subject to rain, and the Defendant says the rate was $30 per hour);
(b)the Plaintiff was not paid by completion of a specific task, by reference to the amount he achieved or the material he produced;
(c)Belfast Construction did not pay GST to the Plaintiff;
(d)the Plaintiff was responsible for paying income tax;
(e)there was no holiday pay, long service leave or superannuation to be paid by Belfast Construction Pty Ltd;
(f)the Plaintiff was paid in cash. There is a dispute as to whether he was paid for all the work done.
12. The Plaintiff did not provide Belfast Construction with an invoice in respect of work done in August 2017.
13. At all relevant times, Belfast Construction paid for and held a WorkCover insurance policy including as at 21 August 2017.
14. Hughes was present at the site on 18 August 2017 and 21 August 2017, along with another [sic] bricklayers Patrick Collins and a labourer ‘Nial’.
15. Hughes requested the Plaintiff and the other bricklayers to attend the site from 7.00am to 3.30pm. Hughes also directed persons working for Belfast Construction at the site as to break times.
16. The Plaintiff had provided bricklaying services for Belfast Construction Pty Ltd on a previous occasion in approximately 2016. There is a dispute between the parties as to the duration of this period.
17. There was no written agreement between the Plaintiff and Belfast Construction Pty Ltd in either 2016 or 2017.”
What is in dispute?
21Before evidence was called or tendered, each party filed a statement of disputed facts, although both statements highlighted some agreed facts, some in dispute and leaned towards submissions. The parties’ statements of disputed facts are reproduced as follows.
Plaintiff’s Statement of Disputed Facts
22The plaintiff’s Statement of Disputed Facts[5] was set out as follows:
[5]Exhibit P3.
“1.As at September 2016 or August 2017, the plaintiff did not have a registered business name and was not operating through a registered business name.
2.The plaintiff first came into contact with Declan Hughes in 2016 though an advertisement on Gumtree.
3.The plaintiff provided bricklaying services to Belfast Construction Pty Ltd (Belfast) for a month or two at in 2016 at job sites in Greensborough and Altona. In respect of said work, he provided his labour and some hand tools only. He worked at the job sites with Hughes each day. He worked full time hours. He worked hours set by Hughes. Belfast sourced the job, provided supervision, provided the materials and equipment beyond hand tools.
4.Shortly before the plaintiff started working with Belfast in August 2017, Hughes telephoned the plaintiff and asked him to come and work for him again. Hughes said works to the effect of ‘can you come and work for me’, ‘I have a lot of work on’, ‘I am busy’. Hughes also said he would be paid $350 per day, or per hour pro rata if there was rain. He said the plaintiff would be working full days. Hughes did not say that the work was temporary or limited. The plaintiff had no other jobs lined up after this job. He expected ongoing work. The plaintiff was provided with ongoing work until he was injured.
5.The plaintiff generally worked 7am to 3.30pm although he accepts that he might have been a bit late on some days.
6.The plaintiff next worked with Hughes and for Belfast for about a week in August 2017. Hughes told the plaintiff what to do, and when to do it. The plaintiff was not at liberty to do things how he wanted them to be done. The plaintiff did things based on what Hughes wanted. If the plaintiff did something wrong, Hughes would say something. Hughes provided instruction on correcting things or doing it differently. Hughes controlled how the plaintiff worked.
7.The plaintiff had been on the job site at Grange Road for about a week before Patrick Collins. The plaintiff was working full time in that week commencing on Monday 14 August 2017 or most of the week.
8.On Friday 18 August 2017, Hughes walked down to the ATM on the corner of Grange Road and North Road and took out $200 to $300 in cash. He said works to the effect of ‘I’ll give you a couple of hundred dollars now for the weekend and we will sort the invoices out next week.’ Hughes did not pay the plaintiff further for that work and monies remain outstanding.
9.Subsequent to the accident, the plaintiff had multiple telephone conversations with Hughes while he was in hospital and also discharged. He does not recall the dates. He asked to be paid and said works to the effect that Hughes owed him money, he was in a wheelchair and a cripple. There was an argument and Hughes said words to the effect that the plaintiff was not to call him again, that he would call the police if the plaintiff contacted him again and that he would say the plaintiff was not onsite. Hughes also said that he cannot give the plaintiff any money as he was going on a holiday. The plaintiff called Hughes a snake.
10. The plaintiff did not work for any other person while working for Belfast. The Plaintiff was expected to be available to work full time for Belfast.
11.The plaintiff’s entitlement to claim medical expenses and weekly payments in respect of his accepted WorkCover Claim Form dated 24 August 2017 has not been terminated by the insurer and remains ongoing.
12.As at August 2017, the plaintiff held no valid WorkCover insurance or public liability insurance policy. Belfast did not ask or require the plaintiff to hold any insurance including WorkCover insurance. Belfast as at August 2017 held valid WorkCover insurance.”
[sic]
Defendant’s Statement of Disputed Facts
23The defendant’s Statement of Disputed Facts[6] was set out as follows:
[6]Exhibit D2.
“1.The Plaintiff has at all material times been an independent contractor performing bricklaying services, including in relation to Belfast Construction Pty Ltd.
2.The Australian Business Number (ABN 44 521 040 347) was registered to the Plaintiff on 23 March 2000 and remains active.
3.The Plaintiff provided bricklaying services to Belfast Construction Pty Ltd for one day in September 2016, not one month as alleged by the Plaintiff.
4. When the Plaintiff was engaged to provide bricklaying services to Belfast Construction Pty Ltd in September 2016:
(a)there was no discussion of ongoing bricklaying services being required;
(b)the Plaintiff did so as an independent contractor; and
(c)the Plaintiff was paid cash and did not invoice Belfast Construction Pty Ltd.
5. The Plaintiff provided bricklaying services to Belfast Construction Pty Ltd at the building site located at 103-105 Grange Road, Glen Huntly (‘the site’) for two days (18 and 21 August 2017) in August 2017.
6. When the Plaintiff was engaged to provide bricklaying services to Belfast Construction Pty Ltd in August 2017:
(a)there was no discussion of ongoing bricklaying services being required;
(b)the Plaintiff did so as an independent contractor; and
(c)the Plaintiff was paid cash and did not invoice Belfast Construction Pty Ltd.
7. The Plaintiff was subject to only general instruction by Declan Thomas Hughes (‘Hughes’) who was the sole director, shareholder and company secretary of Belfast Construction Pty Ltd.
8. Hughes provided only general supervision to the Plaintiff in relation to the provision of bricklaying services at the site.
9. The Plaintiff was one of three independent contractors providing services to Belfast Construction Pty Ltd at the site in August 2017. The other two were a bricklayer (Patrick Collins) and a labourer (‘Nial’).
10. Hughes requested the Plaintiff and the other bricklayers to attend the site from 7.00am to 3.30pm, however the Plaintiff would start after 7.00am and finish before 3.30pm.
11. On 21 August 2017, the Plaintiff arrived at the site at approximately 8.30am to 9.00am.
12. The Plaintiff was at all material times free to provide bricklaying services to other parties (that is, other than Belfast Construction Pty Ltd).
13. Subsequent to the incident on 21 August 2017, the Plaintiff told Hughes to pay him $5,000 or he would report him.”
Definition of worker under the Act
24Before turning to the evidence and the parties’ contentions, I note the relevant definition of a “worker” under the Act.
25Section 3 of the Act defines a worker as follows:
“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; or
(b)who is deemed to be a worker under this Act”
26The plaintiff did not seek to argue that he was a deemed worker under the Act. Rather, the plaintiff argued that he was a “worker” within the meaning of the definition in accordance with general common law principles.
27On the other hand, the defendant argued that the plaintiff had not been engaged as an employee but rather as a sub-contractor to perform limited bricklaying services for the defendant, as opposed to having been engaged under a contract of service.
Legal principles
28The legal principles are well-known and not in dispute. The parties agreed that the common law test must be applied to determine if the plaintiff was a “worker”.
29The common law test was set out and discussed in Elazac Pty Ltd v Shirreff (“Elazac”).[7] The Court in Elazac said:
[7][2011] VSCA 405.
“… Whilst earlier authorities often regarded “control” as the determinative factor in deciding whether someone was an employee or an independent contractor, later authorities have recognised that control (or, more particularly, the right to exercise control) is only one of a number of possibly relevant factors (albeit an important one) in determining the issue. Modern authority is to the effect that it is the totality of the relationship between the parties which must be considered. Relevant factors in determining the nature of the relationship between a person who engages another to perform work and the person so engaged include:
(a) the degree of control which the former can exercise over the latter;
(b) whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
(c) whether or not the person engaged can set their own hours of work;
(d) the method of payment (and, in particular, whether payment is determined by hours of service or output or production);
(e) whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
(f) whether or not the person engaged employs employees and/or conducts his business in partnership;
(g) whether or not there is a power to delegate (send someone else to perform the work); and
(h) whether or not the person engaged considered the relationship as one of independent contractor.
Further, whilst earlier authorities supported the proposition that if a person engaged had more technical or specialist skill than the person who engaged him, then the person engaged was more likely to be an independent contractor, more modern authority recognises that it is relatively commonplace to employ employees who have particular technical skills or expertise that are not possessed by those employing them. The fact that a person engaged to perform work has particular expertise no longer, of itself, provides any great support for a conclusion that that person is an independent contractor.”[8]
[8]Elazac Pty Ltd v Shirreff (supra), paragraphs [30]ꟷ[31].
30More recently, in Eastern Van Services Pty Ltd v Victorian WorkCover Authority and Anor[9] (“Eastern Van Services”) Tate, Kyrou and Niall JJA confirmed that the common law test applied to a determination of “worker” under the Act. The Court in Eastern Van Services described the approach at common law as requiring a multi-factorial approach of weighing various indicia, where control is only one, albeit important, factor in the relationship.[10]
[9][2020] VSCA 154.
[10] Eastern Van Services (supra), paragraph [36].
31In the context of agreed legal principals, the resolution of the dispute in this proceeding turns mostly on factual conclusions.
Evidence
32The plaintiff relied on affidavits sworn by him on 6 June 2023, 8 May 2024 and 9 May 2024. He gave oral evidence as to the contents of his affidavits and the arrangement with Belfast.
33The defendant relied upon an affidavit sworn by another bricklayer, Mr Patrick Collins (“Collins”) on 7 May 2024, which exhibited a witness statement he provided to an insurance investigator on 19 September 2017. In addition, the defendant relied upon an affidavit sworn by an employee of Allianz, Mr Warwick Spalding (“Spalding”) on 7 May 2024 and exhibits to that affidavit.
34The defendant tendered a statement provided by Hughes to an insurance investigator on 14 September 2017. This was allowed as an exception under the Evidence Act 2008, because the Court was satisfied that Hughes could not now be located and was reasonably thought to have left Australia.
Plaintiff’s affidavit evidence
35In his first affidavit, the plaintiff described how he came to work with Belfast:
“In about early August 2017 I started working as a bricklayer for my employer. I previously worked for the same employer in about 2014. In about August 2017 Declan Hughes, who was the Director, telephoned me and asked me to come and work for him again.”[11]
[11]PSFACB 71 at [7].
36The plaintiff swore a supplementary affidavit on 8 May 2024, [12] to address the circumstances of his employment with Belfast. He maintained that he was an employee of Belfast and said that “this is the company who paid me, run by Declan Hughes”.
[12]PSFACB 79.
37He then expanded on that as follows:
“3.Prior to my injury, I worked with Belfast in 2016. It was his business. I believe we met on Gumtree where he advertised for a job. I worked for Belfast for a month or two at a job site in Greensborough and Altona in 2016. I laid bricks. I provided my labour and some hand tools only. I worked with Declan at the job site each day. I worked full time hours. I worked hours set by Declan. I was paid via an ABN. Belfast through Declan sourced the job, provided supervision, provided the materials and equipment beyond my hand tools.
4.Between when I last worked for Belfast in 2016 and re-commenced working for Belfast in 2017, I did some other jobs.
5.Shortly before I started working with Belfast in 2017, Declan Hughes rang me and said words to the effect of ‘can you come and work for me’ and ‘I have a lot of work on’ and ‘I am busy’. In addition to that, Declan said that he would pay me $350.00 per day. It worked out to be about $43.75 per hour, I was meant to be working for full days, only finishing early if there was rain, where I would be paid for the hours I had worked up until the rain put us off. Based on the above words, I assumed that it was full time work and that it was ongoing. Declan didn’t say that it was temporary or limited. I had no other jobs lined up after this job. I expected ongoing work. Declan did provide me with ongoing work, before I was injured.
6.I worked at the job site in Grange Road with Declan. He was at the job site every day. The job was his job – I didn’t source the work. It was his equipment, beyond the handtools [sic]. I took his instruction. He told me what to do and when to do it. He worked and liaised with the builder, not me. I wasn’t at liberty to do things how I wanted them to be done. I did them based on what Declan wanted. If I did something wrong, Declan would say something. He said he was responsible for the job and the work. He had contact with the client, I didn’t. I worked as part of Belfast’s team of workers.
7.I was paid via an ABN. Declan did not pay tax on my behalf. I was not paid superannuation. I don’t remember giving Declan invoices. This is because I was paid per day, on a regular basis. As a team, we generally worked 8-hour days although this varied with weather and job demands. Our hours were 7am to 3.30pm and I generally started around this time. I didn’t have a choice as to when I started. I might have been a bit late on some days. Declan dictated when we started, had breaks and finished. Declan would say ‘come on boys, its smoko now’ or ‘its lunch now’. We had one break around 11am, although this varied depending on how much mortar was mixed up. We had breaks together, as a team. I had no control over the days that I worked, the hours that I worked or the breaks that I took. This was dictated by Declan. I worked within a team, supervised by Declan. Declan was on site, every day. He supervised the Belfast team which included me, Patrick Collins and two labourers. I do not remember the names of the labourers. I have no contact details for Patrick Collins or the labourers now and am not in contact with them. Declan instructed us what to do and gave me instruction on correcting things or doing it differently. He also controlled how I worked. On the day I was injured, I was working on the scaffold that Declan had set up. I was working with a co-worker, Patrick Collins, who also was on the scaffold when it collapsed. I was working on scaffold because Declan has instructed us to and it was his equipment.
8.I didn’t supply the bricks. Declan or the builder did. I supplied my labour and skills, plus a couple of hand tools. The other equipment such as scaffolding, was provided or organised by Declan. I used his equipment together with the rest of the team.
9.On the day that I was injured, the scaffolding (that had been set up by Declan) collapsed and Patrick and Declan fell as well as me. Declan was working on the scaffolding with Patrick and me. I believe that Patrick had started working on the job a day or so before my injury, and I had been there a week or so before him.
10.In 2017 and before I injured myself, I had worked at the same Grange Road address/job for Belfast for about a week before I injured myself. I was working full time in that week.”[13]
[13]PSFACB 80-82.
38The plaintiff provided further details about his work with Belfast in a second supplementary affidavit that he swore on 9 May 2024:[14]
“1.I worked for Belfast Construction Pty Ltd (Declan Hughes) during the week ending Friday 18 August 2017. My memory is that I worked the full week from Monday, although I am not 100% sure. I worked either the full week or most of the week.
2.On Friday 18 August 2017, Declan walked down to the ATM on the corner of Grange Road and North Road and took out $200 or $300 in cash. He said words to the effect of I’ll give you a couple of hundred dollars now for the weekend and we will sort the invoices out next week. I was to be paid $350 per day.
3.I did not provide an invoice for this job as I was injured.
4.Declan did not pay me for my work at this job beyond the $200 or $300 in cash. We had multiple telephone conversations with Declan while I was at hospital and also when I had been discharged. I do not recall the dates. I asked to be paid and said words to the effect that he owed me money and that I was in a wheelchair and a cripple. We had an argument and he said words to the effect of that I was not to call him again, that he would call the police if I contacted him again, and that he will say I was not onsite. I remember he said words to the effect that he cannot give me any money as he was going on a holiday. I then said he was a snake.
5.In the financial year ending 30 June 2018, I declared income from work of $1690 according to my tax returns. $200 or $300 of this was paid to me by Belfast Constructions [sic] Pty Ltd. The rest was from other jobs.
6.On previous occasions that | had worked for Belfast Constructions [sic] Pty Ltd, | had been paid by bank transfer. This is how I was usually paid. I no longer have access to the bank account that I was using in 2016 and 2017 because it is closed and was closed at least a few years ago. I no longer have in my possession the bank statements from that time. I no longer have copies of any of the invoice books that I used to use beyond my current one.”[15]
[14]PSFACB 84.
[15]PSFACB 84-85.
39As is apparent, in the 24 hours between swearing affidavits on 8 May 2024 and 9 May 2024, the plaintiff changed his evidence about how he was paid. This highlights the unreliability of much of his evidence.
Plaintiff’s oral evidence
40The plaintiff was the only witness to give oral evidence. In his oral evidence, he was cross-examined about what he had said in his affidavits and about what was contained in some of the other documentary evidence.
41The plaintiff confirmed that he had held an ABN since 22 March 2000, that his ABN was still current[16] and, throughout the years that he had worked as a bricklayer, he had used his ABN.[17]
[16]Transcript (“T”) 38, Line (“L”) 26-28.
[17]T 39, L 10.
42It was suggested to the plaintiff that he worked one day with Hughes in 2016. He said the first time he “worked with Mr Hughes it would have been approximately a month, maybe a couple of weeks, but it wasn’t one day”.[18]
[18]T 40, L 8-11.
43The plaintiff was then cross-examined about his third affidavit and his sworn evidence that when he worked for Belfast on previous occasions, he had been paid by a bank transfer. He accepted there had been a change between his affidavits about payments from Belfast. He said he had been sure he had been paid by bank transfer, but when he received copies of his ANZ bank accounts – only after he had been required to make proper discovery – had he realised the payments were not in there.[19]
[19]T 42, L 1-5.
44He was then cross-examined about his use of invoice books to write up jobs that he had performed. He said any relevant invoice books for the work with Belfast were now unable to be located. He was asked by the Court whether he had worked for builders or individuals and said, “I subcontract out to other bricklayers”,[20] and that he had been doing that sub-contracting work for “24 years, since my ABN, pretty much”.[21]
[20]T 43, L 18-19.
[21]T 43, L 23-25.
45The plaintiff said that he still considered himself as a sole trader and he had probably sub-contracted out to dozens of other bricklayers. He accepted that Belfast was just one of those dozens. He accepted broadly that the work with Belfast was the same as the work he did for other bricklayers.[22]
[22]T 44.
46The plaintiff then gave evidence of his recent employment, how he was using his ABN, and provided an invoice upon which he was paid.[23]
[23]T 47.
47When asked how his current arrangement compared to the one with Belfast, he said “It’s a similar arrangement. A bricklayer will say ‘I have got a lot of work. I need help, mate, I’ve got a lot of work’.”[24]
[24]T 47, L 28-31; T 48, L 1.
48Pausing here, his evidence about his current work was almost a carbon copy of how he came to work at the Grange Road job in August 2017.
49Next, the plaintiff explained broadly how the bricklaying trade operated in the manner he had described with potential employers, saying “We have got a lot of work. Can you start now?”.[25]
[25]T 48, L 8-10.
50The plaintiff then said about his work as a bricklayer:
“… So his Honour was asking about builders. It's the same situation, isn't it, if you are doing work for another bricklayer? If you are subcontracting to another bricklayer, they say, ‘Look, I have got work on’. You come along and do the work until it runs out; is that the situation?---I have worked with bricklayers before and they say, ‘Can you give us a hand for a few days. That's all that's in this job’, and I have worked for other bricklayers who have said, ‘We have got heaps on. When can you start? We need to get this work done’, and then we go in there and then we have got that job and then we have got that job. So it just depends.
It's a bit insecure, isn't it, patching it all together from one job to the next; is that fair to say?---I just take their word of mouth on it, yes. If they say they have got a lot of work and I reckon they are not a bad sort of guy to work for. I have had bricklayers ring me and ask me to go and work for them and I'm not a big fan of theirs so I say, ‘No, thanks. I'm right.’
I didn't quite hear that. You said, ‘if I'm not a big fan’ - - -?---Yes, you know, like it's a pretty hard trade and some people don't want to pay the money that you think you should get, or the job might be too far away, sir. I wouldn't want to live in Ferntree Gully and travel to Melton, you know, the traffic. So I wouldn't go there. I wouldn't travel that far.
With [sic] when Mr Hughes rang you in 2017 and said ‘Can you come and work for me. I have got a lot of work on, I'm busy’, that's what you have said in your affidavit?---Yes, sir. It's the same sort of thing that the other bricklayers have said over the years, isn't it?---If someone said they have got a lot of work and ‘Can you come and help me, I have got a lot of work’ or ‘too much work’, yes.”[26]
[26]T 48, L 26 – T 49, L 29.
51Regarding the possibility of ongoing work with Belfast, the plaintiff said Hughes did not say that it would be for any period, just that he was really busy and had a lot of work on.[27]
[27]T 50, L 21-24.
52In respect to his work, the plaintiff accepted that he could afford to be a little bit “picky and choosy”[28] as to the sorts of jobs that he took on and that from time to time he did not accept jobs.
[28]T 51, L 11-12.
53The plaintiff was then cross-examined about his WorkCover claim form. Broadly, the cross-examination confirmed the contents of it.
54The plaintiff was next cross-examined about the day of the incident and whether it was to be the last day on the job. It was suggested that he had only worked 18 and 21 August 2017 with Belfast, but he said he would not agree with that.[29] He said he believed he had started earlier in the week before the incident and that he worked “all up” for maybe five days but did not recall exact dates.[30]
[29]T 56, L 2-3.
[30]T 56, L 9-11.
55He was cross-examined about his second affidavit, where he said he was paid per day on a regular basis. He accepted that he was paid some money by Hughes on the Friday before the incident, but no other payment was made to him. Therefore, he conceded in cross-examination that his affidavit was incorrect and that he was in fact not paid on a regular basis or daily.[31]
[31]T 57, L 17.
56Turning again to the number of days worked with Belfast at the Grange Road job and what he had said in his affidavits, the plaintiff eventually said he believed he worked four or five days in total or at least “something like that”.[32]
[32]T 60, L 23.
57The plaintiff explained how he did not invoice Hughes for the work he performed because of an argument they had after the incident. It was suggested that he did not provide invoices because in fact he was not owed any money, and he said “No. I think I was owed some money”.[33]
[33]T 65, L 21-22.
58The plaintiff was cross-examined about his tax returns, which can be summed up as saying that he did not seem to know much about them, and there must be a real doubt about the accuracy of at least some of the returns and how they had been constructed, or at least reconstructed.
59The plaintiff was questioned about the work leading up to the incident. He was asked about whether persons he had previously worked for might tell him to fix up some of the work he had done if they were unhappy with it.
60Regarding any direction to fix up work he had done, he was asked in re-examination about what would happen if there was a problem with the work he had performed and said that “Declan would say “fix it up. Pull it down and fix it up”. But when asked what he did in that scenario he said, “I don’t believe that that would happen”.[34]
[34] T 80, L 23-30.
61Overall, as I understood his evidence, the plaintiff laid blocks at the Grange Road job without any direction by Hughes to “fix it up” or “pull it down”. I interpret this evidence as the plaintiff attempting to convey what he would have done in such a hypothetical scenario, to emphasise the control that Hughes had over the job. But I do not accept there is evidence of Hughes ever providing any such direction to him. In fact, the plaintiff gave no evidence of Hughes giving him any direction at all about the work he was doing.
62Also, during re-examination, the plaintiff was asked how far into the job they were when the incident happened. He said they were building a wall on the ground floor of a multi storey unit development.[35]
[35] T 75, L 16-21.
63The plaintiff said he considered Hughes to be his boss. It was Hughes who had access to the job site. The plaintiff himself had never operated under a business name, never purchased bricks or mortar, and had never quoted for a job in his 30 years in the trade.[36]
[36] T 76, T 77.
Patrick Collins
64In an affidavit sworn 7 May 2024, Collins said that in August 2017 he was performing a job as a sub-contracted bricklayer for Belfast for an hourly rate of pay.[37]
[37] Further Amended Court Book of the Defendant (“FADCB”) 14.
65Collins also adopted a statement he provided to an insurance investigator on 19 September 2017.[38] That statement adds little to the issue now before the Court. Collins described himself as a sub-contractor for Belfast but gave no other useful evidence of that arrangement. The balance of his statement is about the incident.
[38] FADCB 18.
66The short point from the Collins affidavit is that he had a sub-contract arrangement with Hughes and did not consider himself to be a worker. The evidence from Collins is limited, but the plaintiff did not go so far as to submit that Collins was also a “worker”.
Declan Hughes
67Turning in more detail to the statement from Hughes dated 14 September 2017,[39] much of it is directed to the circumstances of the incident and other complaints he raised about the plaintiff’s conduct, none of which I attach much weight to or find useful for this proceeding. But some of the irrelevant evidence about the incident seems at odds with the Collins evidence, and raises an issue about the reliability of Hughes, in the context of the comments I have already expressed about his evidence.
[39] FADCB 38.
68Hughes said he first met the plaintiff in 2016 and they worked together for one day in 2016. He then said he contacted the plaintiff as he was under pressure to finish a job and that the plaintiff started with him on Friday 18 August 2017. He said they had no contract drawn up and the plaintiff told him he wanted to be paid cash. He said the plaintiff did not provide him with an invoice or an ABN.
69Hughes said that the plaintiff was required to lay blocks. He said the rate of pay was $30 per hour. The plaintiff was required to provide his own hand tools and protective equipment. There was a builder with overall responsibility for the site.
70Leaving to one side some of the irrelevant and possibly inflammatory and inaccurate evidence in the Hughes statement, much of what he said is consistent with the plaintiff’s evidence and the agreed facts. Where there is disagreement, it is mostly about the number of days the plaintiff worked for Hughes in 2016 and then in August 2017, and how much the plaintiff was to be paid.
71Hughes does not say in his statement why he considered the plaintiff to be a casual worker, or what he meant by that term, when he completed the employer claim report on behalf of Belfast.
Warwick Spalding
72Warwick Spalding (“Spalding”) is employed as a technical improvement manager at Allianz Workers Compensation (Vic) Pty Ltd (“Allianz”), who are the claims Agent for Belfast.
73In an affidavit sworn 7 May 2024,[40] Spalding set out matters relevant to the lodgement and acceptance of the plaintiff’s WorkCover claim. He then said he believed the material relied on to accept the plaintiff’s WorkCover claim in fact points to a conclusion that the arrangement was not one under which the plaintiff was performing work as an employee and was instead one as a subcontractor. He said that “the decision to accept the claim for compensation over-looked that this was an issue that required further exploration”.[41]
[40] FADCB 21.
[41] FADCB 23.
74It is unclear what, if any, expertise Spalding relied on to enable him to express an opinion about whether the plaintiff was a “worker”. I note that there was no attempt by the defendant to qualify him as an expert.
75Next, Spalding set out the reasons why he considered the decision to accept the claim to be incorrect. But he qualified his evidence to say that, in his opinion, the issue as to whether the plaintiff was a “worker”, “deemed worker” or sub-contractor required further consideration before accepting the claim.
76Clearly, the Spalding evidence was provided to meet the sting of a suggestion that the acceptance of a claim for statutory benefits by Allianz is a significant admission against the defendant in this proceeding.
77Spalding’s evidence to an extent does meet the sting of the admission. As he explained, a different operator at Allianz may have come to a different conclusion, and the issue should have been investigated further before the claim was accepted. But he does not go so far to say that the claim should now be terminated, which has not happened.
78Therefore, I consider that Spalding’s evidence does not completely undo any admission from the acceptance of the claim. Rather, what his evidence highlights is that, with the benefit of hindsight, Allianz should have further investigated the claim before accepting it and that further investigation of the claim – which to some extent is what this Court is now being asked to do – may have caused a different decision to be made about the claim.
Credit
79As I have mentioned, broadly there is a level of unreliability of much of the evidence, in part due to the lack of objective evidence.
80But regarding credit, the plaintiff was critical of the credit of Hughes, while the defendant was critical of the evidence of the plaintiff.
81Obviously, the plaintiff was unable to cross-examine Hughes as to the contents of his statement and to test his credit, and Hughes’ evidence needs to be evaluated in that context. Some of the evidence in his statement does appear to be coloured by the subsequent dispute with the plaintiff and is mostly directed to how the incident happened. But, regardless of any credit point, the fact is that the Hughes statement does not contain much relevant evidence for the preliminary question.
82On the other hand, the defendant in its written submissions asserted that no credit issue arose, in part because Hughes made his statement at an early time and without the involvement of lawyers.
83The defendant further submitted that, as Hughes now could not be located, it had been denied the opportunity to provide sworn evidence from him to rebut what the plaintiff had said in evidence. However, that is a submission that should be tempered to the extent that it invited the Court to speculate that Hughes would have rebutted what the plaintiff said in evidence. At the end of the day, the defendant elected to proceed to hearing and to rely on Hughes’ statement.
84The defendant also highlighted the consistency of what Hughes had said in his statement, as opposed to the numerous inconsistencies and inaccuracies throughout the plaintiff’s sworn evidence.[42]
[42] Defendant’s written submissions dated 23 May 2024, [26] and [27].
85Having considered the whole of the evidence, I conclude that there is limited relevant evidence in the Hughes statement. Overall, his evidence of the arrangement with the plaintiff to work for him is vague, but perhaps that reflects the nature of the arrangement. Much of his statement refers to the incident and some of what he said seems at odds with what Collins and the plaintiff had to say about the scaffold and so there is an unreliability in some of what he had to say in the statement.
86Next, regarding the credit of the plaintiff, having seen him in the witness box, I consider that he was doing his best to answer questions asked of him. But that cannot mask the fact that some of his evidence, including about the days worked with Belfast, how he was paid and the claimed employment arrangement, shifted over the course of his evidence. Much of his affidavit and oral evidence had a ring of reconstruction about it and was far from compelling for a conclusion that he was a “worker”.
87There is no escaping the fact that some of the evidence of the plaintiff is unreliable. Whether that is a credit point is irrelevant. For what it is worth, I do not consider that the plaintiff has set out to give false evidence. He was asked to recall events from many years ago, with no objective evidence and, at the risk of repetition, the whole arrangement with Hughes was a very loose one.
88What is relevant is that it is the plaintiff who has the overall onus to establish that he was a “worker”. There is no escaping the fact that much of his evidence was unreliable, highlighted by the shifting evidence in his recent affidavits. In my opinion, the criticism he made about Hughes’ evidence applies equally to much of the plaintiff’s evidence. In other words, the two key players to this dispute each provided unreliable evidence and limited reliable evidence of the arrangement between them.
Contentions
89The parties’ contentions have effectively already been set out, but for completeness can succinctly be summarised.
90Each party sought to highlight the evidence in support for or against a conclusion that the plaintiff was a “worker” in the context of the agreed legal principles.
91The plaintiff urged the Court to accept the plaintiff as a witness of truth and to place little weight on the statement from Hughes.
92Then, in his written submissions, the plaintiff highlighted the evidence that he said was in his favour, as against the evidence that was against him. He submitted that most of the facts were agreed and not in dispute. He submitted that Belfast exercised control over him, which was not determinative but was an important factor. Overall, he submitted that most of the Elazac factors weigh in his favour.
93The plaintiff further submitted that the conduct of Allianz in accepting the claim was “a very significant evidentiary admission” in the Ansett v Taylor[43] sense. He submitted that the evidence from Spalding did not properly explain why the claim was accepted and said no more than that Spalding would have arrived at a different decision. Therefore, this did not rebut the admission from the acceptance of the plaintiff’s claim under the Act.
[43] [2006] VSCA 171.
94On the other hand, after highlighting what it submitted was the unreliability of the plaintiff’s evidence, the defendant then set out in its written submissions what it said was the evidence that supported a conclusion that the plaintiff was not a worker, consistent with the approach in Elazac.
95Next, regarding the acceptance of the claim for statutory benefits, the defendant submitted that the evidence from Spalding provided an adequate explanation that the acceptance of the claim should not have occurred. As in Sednaoui v Amac Corrosion Protection Pty Ltd,[44] the defendant submitted that it had provided an explanation and, in addition, had provided evidence from Collins and Hughes to explain the relationship between the plaintiff and Belfast.
[44] (2017) 52 VR 247.
Analysis
The acceptance of the claim for statutory benefits
96It is convenient at this stage to resolve the issue of any admission arising from the acceptance of the claim for statutory benefits.
97First, I accept that acceptance of the claim is an admission that is capable of being taken into consideration as part of the relevant evidence. The acceptance of a claim for statutory benefits by a specialist WorkCover claims Agent is relevant evidence. But it cannot be used in isolation.
98Second, it is also an admission that can be rebutted.
99Third, I consider that the Spalding evidence does provide a measure of rebuttal to the acceptance of the claim for statutory benefits. What Spalding highlights, in my opinion, is the lack of clear, objective evidence of the relationship between the plaintiff and Belfast and whether that was correctly considered at the time the claim was accepted.
100As Spalding says, when the claim was accepted, there was no evidence from the plaintiff, other than the claim form. Therefore, any admission created by the acceptance of the claim needs to be weighed against the evidence from the plaintiff that is now before the Court.
101Fourth, Spalding set out in his evidence how he considered that the issue of whether the plaintiff was a “worker” or a “deemed worker” under the Act should have been considered further before the claim was accepted. Again, in that context, I accept that the fact that there was nothing from the plaintiff, other than his claim form, when the claim was accepted is a relevant consideration.
102Fifth, Spalding does not give evidence of the basis for accepting the claim. The letter from Allianz to the plaintiff also does not specify how or why the claim had been accepted, it simply recorded that the claim had been accepted and then set out the benefits available to injured workers.[45]
[45] PSFACB 8.
103There have been several recent decisions of the Court of Appeal regarding the acceptance of a claim for statutory benefits in the context of what were said to be admissions. I consider that those authorities urge a degree of caution on a trial Judge to not elevate the claimed admission to something that it is not.
104As an example, recently in Moore v Goldhagen[46] Beach, Niall JJA and J Forrest AJA, in an appeal regarding a damages trial where there arose an issue of the admission that flowed from the acceptance of a claim by the Transport Accident Commission for statutory benefits, after approving of what Kaye J said in Bedeux v Transport Accident Commission,[47] their Honours said such an admission may have little or no evidentiary weight, depending on the facts of the case.
[46] [2024] VSCA 25.
[47] [2016] VSCA 127.
105In this proceeding, the defendant, via its claims Agent, had available the plaintiff’s claim form, the employer’s response and statements from Hughes and Collins. Based on that material, the claim for statutory benefits was accepted. But the defendant did not have any evidence from the plaintiff, despite attempts to obtain a statement from him.
106Seen in that context, Spalding’s evidence meets some of the sting of the admission. Where the plaintiff has the overall onus, the claim was accepted without any evidence from him, which I accept should have been pursued before a decision was made about the claim.
107Pausing, the plaintiff made a forensic decision not to cross-examine Spalding. Obviously, there is now more evidence from the plaintiff that he could have put to Spalding, but he chose not to do that.
108In my view, the acceptance of the claim by reason of a decision of a WorkCover agent, without any useful evidence from the plaintiff and certainly without the benefit of the evidence available to the Court, is not an admission that should be elevated to something that it is not. It is no more than an admission that a claim for statutory benefits was accepted based on the information available at the time. It is not an admission that in isolation resolves the issue in dispute. The issue in dispute needs to be considered based on the whole evidence.
109In that context, I do not accept that the acceptance of the claim for statutory benefits is a “very significant” evidentiary admission.
The Elazac approach
110Turning next to the evidence, it is not easy to reach a conclusion on whether the plaintiff was a “worker”, where there is a paucity of reliable or objective evidence.
111On one view, the agreed facts are the extent of any reliable evidence of the arrangement between the plaintiff and Belfast, although at the end of the plaintiff’s oral evidence and a consideration of his affidavits, it could also be said that not all the so-called agreed facts are properly able to be agreed.
112To answer the question of whether the plaintiff was a “worker”, each side highlighted the evidence and the conclusions they urged in a way consistent with the approach in Elazac.
113Regarding the approach in Elazac, the common law test is not a “tick the box” approach. It is the whole of the evidence that must be weighed to reach a conclusion. Elazac sets out the type of evidence that will ordinarily need to be considered for a conclusion, as well as emphasising, amongst other things, that control of itself is not determinative of the result.
114Therefore, I have followed the approach the parties took and considered the evidence consistent with the approach in Elazac, keeping in mind that it is not a prescriptive approach of all relevant considerations. Ultimately, it is the conclusions drawn from the evidence that answer the question.
How often did the plaintiff work for Belfast?
115The plaintiff’s evidence of the work he did with Belfast (or with Hughes) in 2016 was vague and uncorroborated, despite his early assertion that his bank statements would reveal the payments made to him during 2016. Having considered all the evidence, I do not accept that it was several months’ work in 2016.
116Whether it was for one day in 2016 as Hughes said, or for more than one day, I am unable to say. Ultimately not much turns on this issue, other than to reflect the unreliability of some of the plaintiff’s evidence and the lack of objective evidence.
117The plaintiff’s evidence about the days worked for Belfast in August 2017 was also vague and uncorroborated. There is no dispute that he worked on 18 and 21 August 2017, and was paid an amount of cash on 18 August 2017, roughly consistent with what he was owed for a day’s work ‘cash in hand’. His claim form is wrong where he said he commenced on 8 August 2017. Whether he worked an extra two or three days before 18 August 2017 is hard to say. But, ultimately, not much turns on how many days he worked in August 2017. On any view, it was a very loose arrangement and, at its highest, was for no more than five days.
118For completeness, having considered the evidence, I doubt the reliability of Hughes’ evidence that the day of the incident was to be the plaintiff’s last day at the Grange Road job.
Was the work to be ongoing?
119I accept that Hughes told the plaintiff he was busy and needed help.
120But there is no evidence of anything other than that Hughes needed help at the Grange Road job. I am not satisfied that it was going to be an ongoing arrangement beyond that job. At the highest, the evidence is that Hughes was busy, and the plaintiff hoped it would be ongoing. The plaintiff did not suggest they discussed jobs other than the one that was underway when the incident occurred.
No objective employment agreement
121There was no contract of employment. There was no discussion regarding taxation, holiday leave, annual leave, or superannuation. Whatever the arrangement was, it was probably no more than a phone call, a request for help and a brief discussion about cash payment.
122The plaintiff wanted to be paid cash in hand, consistent with the work he did for Hughes back in 2016. The plaintiff did not suggest that he negotiated a different working arrangement or payment arrangement in 2017 to the one that existed in 2016. As transpired during his evidence, he was not paid regularly for his work with Belfast; in fact, he was not directly paid at all by Belfast, but rather was paid by cash on 18 August 2017 after Hughes withdrew money from an ATM.
Who was the plaintiff engaged by?
123Next, regarding a consideration of whether the plaintiff was a “worker” with Belfast, despite the agreed facts, there is no reliable evidence that, at any time, Hughes mentioned that the work would be for Belfast.
124As I said earlier about the plaintiff’s evidence, some of it was unreliable and had a ring of reconstruction. His affidavit evidence that he was to work for Belfast has more than a hint of reconstruction, especially given the contents of his claim form.
125The agreed facts and the parties’ statements of disputed facts highlight the unsatisfactory nature of much of the evidence. The agreed facts at paragraph 8 recite that the plaintiff was undertaking bricklaying work at the request of Hughes. I consider that to be a sound evidentiary conclusion. But, in paragraph 11 of the agreed facts, it is said that the plaintiff was to be paid by Belfast for the time worked. I do not consider that to be a sound evidentiary conclusion.
126The plaintiff gave no reliable evidence of any discussion that he had with Hughes about the involvement of Belfast. I consider that the method of cash payment means it likely that the plaintiff thought he was working for Hughes.
127Having considered the whole of the evidence, including the plaintiff’s oral evidence, the agreed facts are not as useful as might have been hoped. It may be that at some point Hughes intended to pay the plaintiff with cash from Belfast. But there is simply no evidence of a discussion where it was agreed that Belfast would employ or pay the plaintiff.
128To illustrate this point, in his claim form, the plaintiff nominated “Declan Hughes” as the employer. Compare that to the evidence in his first affidavit where he said he lodged a WorkCover claim nominating Belfast as the employer.
129I conclude that an arrangement was entered into for the plaintiff to undertake bricklaying at the request of Hughes, for which he was to be paid cash. I do not accept that the plaintiff considered himself to be an employee of Belfast when he entered into that arrangement.
The characterisation of the relationship by the parties
130Staying for a moment with the characterisation of the relationship between the plaintiff and Hughes, I return to the anomaly that is thrown up by the claim documents, where the plaintiff nominated himself as a sub-contractor, yet Hughes nominated the plaintiff as a casual employee of Belfast. The claim documents support a conclusion that, whatever arrangement the parties intended to create, if they intended to create one, it was at best a very uncertain arrangement.
131In any event, the characterisation by the parties of the relationship between them, just like the acceptance of the claim for statutory benefits, while relevant, is not determinative of the result.
Control
132The issue of control is not determinative, but it is an important consideration.
133The plaintiff supplied only his labour, protective clothing, and hand tools. The location of the work, the work itself (including the cost to the builder) and at least to some extent, the hours of work were all under the control of Belfast, as the contractor with responsibility for the work, even if a builder had overall control of the work site.
134But the issue of control needs to be considered in the context of the factual conclusions already set out. As already mentioned, the plaintiff was engaged to lay bricks/blocks. There is no suggestion that he was closely supervised or controlled by Hughes/Belfast when performing those duties. There is no evidence that Hughes ever told him to fix anything or pull a wall down. The evidence is that, weather permitting, the plaintiff arrived at the site and laid blocks, using his own skill as a bricklayer, until it was time to knock off for the day.
135Further, the arrangement with Hughes/Belfast is an arrangement of a type that the plaintiff has had with dozens of bricklayers over his 30 years in the trade. He has never held his own WorkCover Insurance, employed staff, quoted jobs, or run a business.
136Broadly, the plaintiff has operated as a bricklaying gun for hire. When offered work as a bricklayer and when the job has suited him (as in the rate of pay, the location and the type of work involved) then he has accepted the work, at times using invoices to claim payment and at other times working for cash. When a job is finished, he moves on to the next one that he finds and accepts.
137Therefore, there was control in that Hughes had the overall control of the job, but other than that level of broad control, there is no suggestion of Hughes managing what the plaintiff was doing.
138There is no evidence that the plaintiff was compelled to stay until the end of the Grange Road job, and no evidence that plans had been made for him to continue on beyond the help he was providing to Hughes at that time.
139The work at the Grange Road job, including the duration that he was to be on site, was work that the plaintiff was free to accept or reject, just as he has done on many occasions over the years. There is no suggestion of an employment relationship of a worker who had no choice but to turn up at work on a nominated day and do what was asked of him by the boss, or risk being dismissed.
140In fact, the objective evidence disclosed only one occasion of the plaintiff working in a scenario which might be akin to a traditional employer and employee relationship, as evidenced by a payment summary for income received in the 2017/2018 tax year from M & E Homes Pty Ltd.[48]
[48] FADCB 122.
141At first blush, the way the plaintiff worked, and continues to work, looks very much like a sub-contract arrangement, where he is retained to provide his services as a bricklayer.
142If I concluded that the plaintiff was a “worker” in this proceeding, it would effectively mean that on each occasion he has worked over the last 30 years, he has been a “worker”. That sits uncomfortably with the way he has organised himself, free to pick and choose the types of work and where he works, as well as the applicable method of payment, the lack of tax deducted, the lack of any sick or holiday leave or superannuation.
143In other words, on the facts of this proceeding, there was no more or less control exercised over the plaintiff than in most, if not all, of the jobs he has done over the last 30 years of his trade as a bricklayer.
144Therefore, I do not accept that the issue of control on the facts of this proceeding weigh heavily in favour of the plaintiff.
145As the Court of Appeal said in Eastern Van Services, a measure of control by a principal does not make the relationship one of employment.[49] On the facts of this proceeding, the level of control was not at a level that is compelling for a conclusion that the plaintiff was a “worker”. Equally, it was at a level consistent with a conclusion of a sub-contract arrangement.
[49] Eastern Van Services (supra), [102].
Delegation
146The plaintiff submitted that the fact that he did not operate a business, or delegate work, or engage anyone else to work with him, worked in his favour. I accept that to be an accurate statement.
147But equally, those facts might work in his favour if it was being argued that he was an “employer”, which of course is not the argument in this proceeding.
148Further, those facts of themselves do not prove that he was a “worker”. Those facts equally support a conclusion that he operated as a sole trader and sub-contractor, who plied his trade as requested and when the terms suited him.
Summary
149The plaintiff contended that most of the Elazac factors weighed in his favour. But, for the reasons expressed to this point and as I will briefly summarise, I disagree.
150First, where the plaintiff has the overall onus, he did not provide any useful evidence before the claim was accepted, and equally in this proceeding, he did not provide much reliable or useful evidence for the preliminary question.
151Second, there is no evidence that the usual terms of a job that a “worker” would agree with an employer, such as sick or holiday leave, superannuation, or taxation, were ever discussed between the plaintiff and Hughes. Therefore, the conclusion must be that such terms were not discussed.
152Third, all that was agreed, in response to a request for help because Hughes was busy, was that the plaintiff would lay blocks at the Grange Road job, and in return would be paid in cash for that work.
153Fourth, other than an expectation or a hope by the plaintiff of ongoing work because Hughes was busy, there is no evidence that Hughes offered ongoing work beyond the Grange Road job.
154Fifth, there is no evidence that Hughes asked the plaintiff to work at the Grange Road job for an agreed period of time. The plaintiff did not suggest he locked himself in for a set period of time. Having agreed to help out because Hughes was busy, the plaintiff could still come and go if he wanted, for example, if he got a better offer. There is no suggestion that either party had to give the other a period of notice to bring the arrangement to an end.
155Sixth, while there was a measure of control by Hughes, it was limited and not compelling for a conclusion that the plaintiff was a “worker”. Just as some aspects of the work were in the control of Hughes, other aspects remained in the control of the plaintiff, consistent with an agreement to perform services for Hughes, as opposed to a contract for service.
156Seventh, the way the plaintiff has operated for over thirty years is the starting point and it does not weigh in his favour. He did not suggest that he has been a “worker” each time he put mud on a brick during his working life.
157Therefore, overall, the way the plaintiff has worked for thirty years; the way he arranged the work with Hughes; the limited terms that were discussed or agreed with Hughes; and the limited control by Hughes over the way the plaintiff was working when the incident occurred all tend to the conclusion that he was not a “worker” for Belfast when assessed in accordance with common law principles.
158Finally, the whole of the evidence does not support a conclusion that the plaintiff was a “worker”. In that setting, the acceptance of the claim, without the benefit of the evidence now before the Court, does not displace the factual conclusions drawn from a consideration of the whole of the evidence now available.
159The lack of objective evidence of any employment arrangement, the unreliability of the plaintiff’s evidence, and the evidence from Spalding, highlight the unreliability of the decision to accept the claim. Of course, Allianz did not have the benefit of the evidence, especially from the plaintiff, that the Court now has.
160Therefore, while the acceptance of the claim is relevant evidence, and is part of the factual matrix, when the whole of the evidence is weighed, it is not an admission that can displace the factual findings now made by the Court.
Conclusion
161Therefore, for the reasons given, the answer to the preliminary question is “no”, the plaintiff was not a “worker” for the purposes of the Act as at the happening of the incident.
162The parties are directed to co-operate to provide my Chambers with a minute of the appropriate orders to give effect to these reasons.
163Alternatively, I will hear from the parties as to consequential orders.
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