MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Broadsword Builders P/L v Q-COMP [2010] QMC 18
PARTIES:
BROADSWORD BUILDERS PTY LTD
(appellant)
v
Q-COMP
(respondent)
FILE NO/S:
MAG34603/10(3)
DIVISION:
Industrial Magistrates Court
PROCEEDING:
Appeal against decision of Q-COMP
ORIGINATING COURT:
Industrial Magistrates Court at Brisbane
DELIVERED ON:
12 November 2010
DELIVERED AT:
Brisbane
HEARING DATE:
26 July 2010
MAGISTRATE:
Lee G
ORDER:
Q-COMP’s decision dated 8 January 2010 is confirmed. This means the appeal is unsuccessful.
CATCHWORDS:
INDUSTRIAL LAW – WORKERS COMPENSATION – APPEAL AGAINST ADMINISTRATIVE DECISION – Q-COMP – Calculation of premiums – meaning of “worker” – independent contractors – whether satisfy the three elements of “results test” in s 2(a) Part 1 Schedule 2 of the Workers Compensation and Rehabilitation Act 2003 to fall outside definition of deemed worker
Workers Compensation and Rehabilitation Act 2003 (Qld), s 11, s 48, s 50, Schedule 2 Part 1 (s 2)
Workers Compensation and Rehabilitation Regulation 2003 (Qld), r 113
Brett Holt Plumbing Pty Ltd v Q-COMP [2005] QIC 13; 178 QGIG 255 cited
Cachia v Haines (1994) 179 CLR 403; [1994] HCA 14 cited
Reliable Couriers Pty Ltd v Q-COMP [2005] 180 QGIG 255 applied
SPE Pty Ltd v Q-COMP and Fuller (C/2010/19) 10 August 2010 applied
Sterling Estates Development Corp Pty Ltd v Malouf [2003] NSWCA 278 considered
COUNSEL:
S Crawford (director) for appellant
P O’Neill for respondent
SOLICITORS:
Appellant appeared on own behalf
Respondent appeared on own behalf
Broadsword Building Pty Ltd (Broadsword), a company in the business of housing construction, appeals pursuant to section 550 of the Workers Compensation and Rehabilitation Act 2003 (“the Act”)[1] from a decision of Q-COMP dated 8 January 2010[2] which confirmed WorkCover’s earlier decision[3] to conclude that three certain entities were workers with the consequence that amounts paid to them as wages are to be taken into account in determining Broadsword’s premium.
[1] In Division 1 (Appeals to Industrial Magistrate or Industrial Commission) of Part 3 (Appeals);
[2] Exhibit 3;
[3] Exhibit 1 – WorkCover’s reasons for decision dated 11 November 2009;
The matter came to light when WorkCover conducted an audit of Broadsword’s policy in October to November 2009 for the 2007/08 years. As a policy holder, Broadsword was obliged to file an annual return for all workers employed (section 50). It was discovered that Broadsword’s return for the 2007/08 year did not include payments made to the three entities concerned.
In confirming WorkCover’s decision, Q-COMP found that entities Owen Conohan, Dave’s Excavator (David van Rooyen) and Ben’s Bobcat (Ben Gilmore) were workers within the meaning of section 11(2) of the Act
This appeal is not an appeal in the strict sense. It is a hearing de novo to be conducted as a full trial where both parties call evidence in support of their cases and witnesses are subject to cross examination: see for example Labaj v. WorkCover Queensland [2003] QIC 155; 174 QGIG 370 (17…
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- Case
- [2010] QMC 18
- Decision Date
CaseChat Overview and Summary
The court examined whether Broadsword could establish that the workers met all three elements of the "results test": the worker must be under a contract for services, not under a contract of service, and have a profit-making motive. The court considered the evidence provided by Broadsword and the submissions made by Q-Comp. The court concluded that Broadsword had not provided sufficient evidence to satisfy the "results test." Therefore, the workers should be classified as employees for the purposes of workers' compensation. The court also rejected Broadsword's request for indemnity costs, finding that the appeal lacked merit and that Broadsword had not demonstrated any extraordinary circumstances warranting such an award.
The court confirmed the decision of Q-Comp dated 8 January 2010, upholding the classification of the workers as employees. The court granted the parties liberty to apply for costs on five business days' notice if they could not resolve the question of costs between themselves. This means that Broadsword's appeal was unsuccessful, and the decision of Q-Comp stood. Broadsword was not entitled to indemnity costs, and the parties were given the opportunity to seek costs if they could not agree on the matter themselves.
Orders
Orders of the court
Q-COMP’s decision dated 8 January 2010 is confirmed. This means the appeal is unsuccessful.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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