BSA Ltd v Victorian WorkCover Authority - [2018] VSC 46

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT & INDUSTRIAL LIST

S CI 2015 04703

BSA LIMITED (ACN 088 412 748)	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY (and others according to the schedule)	Defendants

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 7 December 2017
DATE OF JUDGMENT:	13 February 2018
CASE MAY BE CITED AS:	BSA Ltd v Victorian Workcover Authority & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 46

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WORKCOVER – Deemed employer – Deemed worker – Third defendant not carrying on an independent trade or business in the provision of services to the plaintiff – Plaintiff deemed to be the employer of the second defendant – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 4(3), sch 1 cl 9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P H Solomon QC with Ms C Harris SC	Aitken Partners
For the First Defendant	Mr M F Fleming QC with Ms A Robertson	Maddocks
For the Second Defendant	Mr A Klotz	Lardners Solicitors
For the Third Defendant	No Appearance

HIS HONOUR:

Introduction

On 22 December 2014 Mr Yoresh was injured whilst performing work for Cloudless Vision Pty Ltd (‘CV’) in respect of a contract entered into between CV and BSA Limited (‘BSA’) on 12 June 2012 (‘the 2012 contract’). CV had contracted with BSA to install and upgrade satellite television communication equipment for Foxtel’s end-users.

In December 2014 CV was a registered employer under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’). It had been issued a certificate of insurance by Allianz Australia Workers Compensation (Vic) Ltd (‘Allianz’) for the period 1 July 2014 to 30 June 2015.

As at 22 December 2014 Mr Yoresh was a director and the sole employee of CV. After his injury Mr Yoresh completed and lodged a worker’s injury claim with Allianz, against the policy of CV. By letter dated 21 January 2015, that claim was rejected by Allianz as the agent of the first defendant (‘VWA’).

Mr Yoresh subsequently lodged a further claim with Allianz against the workcover policy of BSA. By letter dated 11 February 2015, Allianz on behalf of the VWA notified Mr Yoresh that it had accepted this claim. It did so on the basis that Mr Yoresh was deemed to be a worker of BSA on 22 December 2014.

On 6 March 2015, BSA requested reasons for this determination, which were provided on 2 April 2015. BSA subsequently objected pursuant to s 79 of the Act to the acceptance of the claim against it.

On 13 July 2015 VWA made a written determination, as provided for by s 84 of the Act, that Mr Yoresh was a ‘deemed worker’ of BSA and BSA was the correct employer of Mr Yoresh. VWA determined that sch 1, cls 9(1) and (5) of the Act, dealing with the circumstances in which an individual is deemed to be a worker and the principal is deemed to be the individual’s employer,…

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] VSC 46
Decision Date: 13 February 2018

CaseChat Overview and Summary

The dispute between BSA Ltd and the Victorian WorkCover Authority involved the interpretation of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The plaintiff, BSA Ltd, sought to hold the defendant, Victorian WorkCover Authority, responsible for a workplace injury sustained by a contractor. The plaintiff argued that the defendant, as the deemed employer, should be held liable for the injury under the provisions of the Act. The case was heard in the County Court of Victoria.

The primary legal issue before the court was whether the third defendant was carrying on an independent trade or business in the provision of services to the plaintiff. If the third defendant was found not to be carrying on an independent trade or business, the plaintiff would be deemed the employer of the second defendant, and the Victorian WorkCover Authority would be the employer under the Act. The court had to determine whether the third defendant's activities were independent or if they constituted a single economic enterprise with the plaintiff.

The court found that the third defendant was not carrying on an independent trade or business in the provision of services to the plaintiff. The court reasoned that the third defendant was effectively an extension of the plaintiff's business, and therefore, the plaintiff was deemed the employer of the second defendant. As a result, the Victorian WorkCover Authority, as the deemed employer, was held responsible for the workplace injury. The court's interpretation of the Act's provisions led to the conclusion that the plaintiff's argument was successful, and the defendant's liability was established.

The final orders of the court included a determination that BSA Ltd was the employer of the second defendant and that the Victorian WorkCover Authority was the deemed employer. The court held the defendant liable for the workplace injury and awarded damages to the plaintiff. The court's decision clarified the application of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and established the responsibilities of the parties involved in the case.

Orders