BSA Ltd v Victorian Workcover Authority - [2018] VSCA 265

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0030

BSA LTD (ACN 088 412 748)	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	First Respondent
-and-
TAL YORESH	Second Respondent
-and-
CLOUDLESS VISION PTY LTD (ACN 110 660 252)	Third Respondent

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JUDGES:	TATE, McLEISH and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 September 2018
DATE OF JUDGMENT:	23 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 265
JUDGMENT APPEALED FROM:	[2018] VSC 46 (McDonald J)

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ACCIDENT COMPENSATION – Contractor providing services to principal – Individual sole employee of contractor – Contractor engaged solely by principal – Contract provisions detailed and highly prescriptive – Whether principal deemed employer of individual deemed worker – Whether contractor carrying on ‘independent trade or business’ in provision of services to principal – Whether contractor subject to control or subordination by principal – Whether contractor dependent on principal for existence in relevant period – Principal deemed to be employer of individual – Leave to appeal granted – Appeal dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 s 4(3), sch 1 cl 9 – Humberstone v Northern Timber Mills (1949) 79 CLR 389 considered.

WORDS AND PHRASES – ‘carrying on an independent trade or business’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P M O’Grady QC with Mr L M Stanistreet	Aitken Partners
For the First Respondent	Mr M F Fleming QC with Ms A L Robertson	Maddocks Lawyers
For the Second Respondent	Mr A E Klotz	Lardners Solicitors
For the Third Respondent	No appearance

TATE JA:

I have had the advantage of reading the reasons of McLeish JA, in draft form. I agree, for the reasons his Honour gives, that leave to appeal should be granted but the appeal dismissed.

McLEISH JA:

The Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) includes within the definition of ‘worker’ a person who is deemed to be a worker, including under cl 9 of sch 1 to the Act which is entitled ‘Contractors’. Clause 9 does not apply in respect of a contractual arrangement between a principal and a contractor if, in providing services to the principal, the contractor ‘is carrying on an independent trade or business’. This expression has not previously been considered by this Court.

The applicant (‘BSA’) provides installation, servicing and upgrading services to telecommunications providers. At the relevant time, it held a contract with Foxtel for the installation and maintenance of satellite television equipment in Victoria. The third respondent (‘Cloudless Vision’) is a corporation of which the second respondent (‘Mr Yoresh’) was the sole employee, relevantly until 18 May 2015. At the relevant time, Cloudless Vision and BSA were parties to a contract for Cloudless Vision to install and upgrade satellite television equipment for Foxtel customers.

In circumstances explained more fully below, the first respondent, the Victorian WorkCover Authority (‘the Authority’) determined that Mr Yoresh was a deemed worker, in respect of whom BSA was the employer. In particular, the Authority determined that, in providing services to BSA, Cloudless Vision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSCA 265
Decision Date: 23 October 2018

CaseChat Overview and Summary

BSA Ltd commenced proceedings in the Supreme Court of Victoria against the Victorian Workcover Authority, seeking to challenge the authority's determination that BSA Ltd was liable to pay workers' compensation to an employee of a subcontractor. The dispute arose following an injury sustained by the subcontractor's employee during work on a project at a client's premises. The key issue before the court was whether BSA Ltd, as the principal contractor, was to be deemed the employer of the injured worker under the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013.

The central legal question pertained to the interpretation of the statutory provisions concerning the deemed employer under the Act, specifically focusing on the criteria that would deem a principal contractor to be the employer of a subcontractor's employee. The court needed to determine if BSA Ltd was carrying on an independent trade or business in providing services to the principal and whether it was subject to control or subordination by the principal, and if it was dependent on the principal for its existence during the relevant period. The court had to balance these factors with the broader legislative intent to provide compensation for workplace injuries.

The court held that BSA Ltd was to be deemed the employer of the injured worker. The reasoning was based on the highly prescriptive nature of the contract between BSA Ltd and the principal, which indicated a lack of independence in BSA Ltd's operations. The court found that BSA Ltd was not carrying on an independent trade or business and was subject to significant control and subordination by the principal. Additionally, BSA Ltd's dependency on the principal for its existence during the relevant period further supported the conclusion that BSA Ltd was the deemed employer. The court also considered the precedent set by Humberstone v Northern Timber Mills, applying similar reasoning to the facts at hand. The appeal was dismissed, and leave to appeal to the Court of Appeal was granted.

The final orders of the court confirmed BSA Ltd's liability for workers' compensation payments to the injured employee, aligning with the statutory interpretation that deemed BSA Ltd as the employer under the circumstances.

Orders