Celic v Henley Arch Pty Ltd (ACN 15 007 316 930); Celic v Victorian WorkCover Authority (Ruling)
[2021] VCC 396
•16 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05695
| RATKO CELIC | Plaintiff |
| v | |
| HENLEY ARCH PTY LTD (ACN 15 007 316 930) | Defendant |
-AND-
Case No. CI-19-04714
| RATKO CELIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2021 | |
DATE OF RULING: | 16 April 2021 | |
CASE MAY BE CITED AS: | Celic v Henley Arch Pty Ltd (ACN 15 007 316 930); Celic v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 396 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Accident Compensation – whether plaintiff is a “worker” according to clause 9 of Schedule 1 of the Workplace Injury Rehabilitation and Compensation Act 2013
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Wrongs Act 1958
Cases Cited:BSA Ltd v Victorian WorkCover Authority & Ors [2018] VSC 46; BSA Ltd v Victorian WorkCover Authority [2018] VSCA 265; Moya v Group Messengers Pty Ltd & Anor [2019] VCC 2155; Humberstone v Northern Timber Mills [1949] HCA 49; Moya v Group Messengers Pty Ltd & Anor [2019] VCC 2155
Ruling: At the time the plaintiff sustained his injury, he was not a “worker” employed by the defendant Henley Arch Pty Ltd.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith with Mr C Hangay | Zaparas Lawyers |
| For the Defendant Henley Arch Pty Ltd | Mr D McWilliams | Meridian Lawyers |
| For the Defendant Victorian WorkCover Authority | Mr J Ruskin QC with Ms J Clarke | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1There are two proceedings. Ratko Celic is the plaintiff in both. Henley Arch Pty Ltd (“Henley Arch”) is the defendant in one and the Victorian WorkCover Authority, the defendant in the other. These parties seek a ruling as to whether Ratko Celic is a “worker” for the purposes of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2The Act defines the word “worker” in two ways. First, it is what the parties referred to as the common law definition. Second, it is where the Act deems a person to be a worker according to clause 9 of Schedule 1 of the Act. The parties agree Mr Celic is not a “worker” under the common law definition.
3The resolution of that issue will see one of the two proceedings disappear, for if Mr Celic is a “worker”, then his serious injury application will proceed. If not, then the proceeding against Henley Arch will proceed. The inability to run concurrent proceedings stems from the opening words of s326 of the Act, which provides relevantly:
“A worker who is … or may be, entitled to compensation in respect of any injury arising out of, or in the course of, or due to the nature of, employment must not, in proceedings in respect of the injury, recover any damages for pecuniary or non-pecuniary loss except –
(a) … or
(b) … or
(c) as permitted by and in accordance with this Division … .”
4Paragraphs (a) and (b) provide other exceptions, which do not apply here.
5Section 3 of the Act defines “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.”
6Sub-section 4(3) of the Act provides:
“Part 1 of Schedule 1 provides that, for the purposes of this Act, certain persons are deemed to be workers or employers.”
7Part 1 of Schedule 1 is entitled “Persons deemed to be workers or employers”. Of the nineteen clauses in that Part, only clause 9 has relevance here.
8Sub-clause 1 provides:
“This clause applies if –
(a) an entity (the principal), in the course of, and for the purposes of, a trade or business carried on by the entity, enters into a contractual arrangement with another entity (the contractor) for the provision by the contractor of services (not being transport services within the meaning of clause 8) to the principal for reward in respect of a relevant period; and
(b) the provision of the services by the contractor under the contractual arrangement is not ancillary to the provision of materials or equipment by the contractor to the principal under the contractual arrangement; and
(c) at least 80 per cent of those services are, or are to be, pursuant to the contractual arrangement, provided by the same individual (the individual) being—
(i)the contractor; or
(ii)if the contractor is a partnership, an individual member of the partnership; or
(iii)if the contractor is a body corporate—a member, director, shareholder or employee of the body corporate; or
(iv)if the contractor is the trustee of a trust—a person who may benefit under that trust or is an employee of the trustee; and
(d)the gross income of the contractor that is, or is to be, derived from the provision of the services pursuant to the contractual arrangement is, or is to be, at least 80 per cent of the total gross income of the contractor earned from services of the same class provided by or on behalf of the contractor in the relevant period.”
9Sub-clause 2 provides:
“ This clause does not apply in respect of a contractual arrangement if the Authority determines that, in providing services to the principal, the contractor is carrying on an independent trade or business.”
10For the purposes of sub-clause 1, sub-clause 9 defines the meaning of the expression “relevant period”:
“… in relation to services provided under a contractual arrangement referred to in subclause (1), means –
(a)the financial year in which those services are, or are to be, provided; or
(b)if those services are, or are to be, provided in 2 consecutive financial years—
(i)the 12 month period beginning on the date on which those services are first provided pursuant to the contractual arrangement; or
(ii)the 12 month period ending on the date on which those services cease, or are to cease, to be provided;
services includes results (whether goods or services) of work performed.”
Circumstances
11Mr Celic is now forty-three. He was born in the former Yugoslavia. The war in the former Yugoslavia saw the end of his education at the age of fourteen. Following the example of a sister, he emigrated to this country in 2000.
12After arriving in this country, he worked in a warehouse for about four years. In about 2005, he started working for himself in tiling, concreting and screeding. To gain work, he advertised in local newspapers.
13In 2007, he started a business called “Boys with Tools”. Initially, he had a partner in the business but after five or six months the partner left. Thereafter, Mr Celic ran the business on his own. At no time has he employed anyone in this business.
14With the business, “Boys with Tools”, Mr Celic did not advertise although in late 2007, he had business cards made, which he used until 2010.
15On 26 September 2008, he started working with Henley Arch as a contractor. He supplied his own labour, glue, grout and spacers. Henley Arch provided tiles and aluminium angles. Generally, Henley Arch provided pre-mix screed. Occasionally when there was an urgent need, it asked him to buy that product.
16This arrangement lasted until about December 2012 when Mr Celic obtained employment with a construction company called Corplex Property Services (“Corplex”). He was paid a wage for full-time work. Unusually, Mr Celic owned certain equipment which he hired to Corplex for reward.
17His employment with Corplex lasted until April 2015. He became dissatisfied with Corplex and contacted Henley Arch about work. From about June 2015, he resumed working for Henley Arch.
18Because it is relevant to the issue of “relevant period”, I will say something more about his employment with Corplex. Corplex paid Mr Celic for his labour and also paid him for the hire of his equipment. He invoiced Corplex for his labour and separately invoiced Corplex for the hire of this equipment. There are other points to note:
(a) Mr Celic worked for Corplex after sending the last of his equipment invoices, dated 10 February 2015.[1] He worked for it until April 2015;
(b) Corplex made payments to Mr Celic in April 2015. These payments are described in Mr Celic’s bank statements as “wages”;
(c) where the payments are described as “wages”, the amount of the entries for 19 February, 26 February, 5 March, 12 March, 19 March 26 March, 1 April and 9 April 2015 are each for $1,106.31. The last such entry on 15 April 2015 is for $9,430.65. All of these entries carry the same description “CPS Wages Corplex”.
[1] Transcript at p 19
19In early January 2016, Mr Celic started working at a display village in Rockbank under the direction of Henley Arch. Chris Gray directed him as to how to do the job. Although Mr Gray asked him to work on other houses at Rockbank, he could not due to his back pain. Mr Celic stopped work on 29 March 2016. Absent this injury, Mr Celic would have worked to 30 June 2016 because there was plenty of work which Mr Gray wanted him to do.
20Between early January 2016 and 29 March 2016, Mr Celic experienced increasing pain in his lower back. He attributes the onset and increasing levels of pain to the work he was performing and the way he performed it.
21During the second engagement with Henley Arch:
(a) there was no written document containing the terms of his engagement with Henley Arch. He was engaged orally and usually advised of his work through a job or purchase order. Sometimes, he was told verbally and given a job or purchase order afterwards. He did not quote for each job. He was paid at a flat rate. He would invoice his work and was paid on his invoice;
(b) he worked alone, supplying his own clothes, tools, glue and grouting for tiling. His t-shirts displayed the name of his own business, “Boys with Tools”. His work sometimes went beyond tiling to include some minor construction work. If, however, Henley Arch made a suggestion about how he did his work, he would adopt it;
(c) Henley Arch supplied Mr Celic with the tiles, aluminium angles and the materials for screed and pre-mix screed;
(d) Mr Celic was paid differently depending on the work he performed. If it was tiling, he was paid per square metre of the tiles laid and, even then, the rate varied according to the type of tile. If he did handyman work involving only labour, he would quote for the job;
(e) Henley Arch did not deduct income tax from the sums it paid him;
(f) Henley Arch did not make statutory superannuation contributions for Mr Celic. He did not accrue annual or long service leave entitlements. There were no sick leave entitlements. He had an income protection insurance policy in case illness prevented him working;
(g) Mr Celic reported to a supervisor of Henley Arch, Chris Gray. Mr Gray inspected Mr Celic’s work when it was finished;
(h) although Henley Arch gave him plenty of work, there were times when it did not. He then “did small jobs on the side”. However, his supervisor, Chris Gray, insisted on Mr Celic giving the work from Henley Arch priority. He also insisted Mr Celic perform Mr Gray’s work first and only if Mr Gray had run out of work could Mr Celic approach other supervisors of Henley Arch for work;
(i) there were no set hours and they varied according to the job. He was expected to finish any job without interruption. He could not replace himself with another person if he was ill;
(j) Mr Celic always regarded himself as a contractor to Henley Arch and not an employee;
(k) although not trained as a tiler, Mr Celic learnt the trade through experience. He was sufficiently skilled so as to not need supervision or direction over how to do his work;
(l) in 2008, he received a booklet entitled “The Henley Plantation Site OH and S Induction Booklet”. He also received other documents from Henley Arch but did not read all of them. This booklet contained sections relevant to the work of contractors.
22During this second engagement with Henley Arch, Mr Celic undertook some work for other businesses: Integrated Constructions and Tapia Homes.
23Mr Celic made a claim for compensation. On 30 March 2017, an authorised agent rejected his claim on four grounds. First, Mr Celic alleged he hurt his back on 25 February 2016. However, the agent asserted on that day he was not working with Henley Arch but was working on a “private job”. Second, on medical grounds, it said Mr Celic had not sustained an injury arising out of or in the course of his employment with Henley Arch. Third, it denied he was a “deemed worker”, for he was operating an independent trade or business. Fourth, his claim for compensation was not lodged as soon as practicable after the incapacity from the injury.
Parties’ submissions
Mr Celic
24In a written submission, Mr Celic drew attention to s4(3) and clause 9 of Part 1 of Schedule 1 of the Act. He pointed to the authorised agent’s notice determining Mr Celic was carrying on an independent trade or business, ostensibly within the meaning of sub-clause (2) of clause (9) of Part 1 of Schedule 1.
25In relation to clause 6 and the issue of “relevant period”, he submitted paragraph (a) does not apply because the services provided span two consecutive financial years, 2014-2015 and 2015-2016. Mr Celic started under the contractual arrangement in about May 2015 and ceased on 29 March 2016.
26As an aid to interpreting paragraph (b), Mr Celic submitted an interpretation yielding the greatest benefit to the worker. He relied upon a passage from the Explanatory Memorandum to the Bill.
27Mr Celic submitted the “relevant period” was 30 March 2015 to 29 March 2016. Even though (b)(i) contemplates services provided for more than twelve months and over consecutive years, he submitted considering the entire twelve months is a much more accurate means of determining the “true working relationship” between the parties.
28Mr Celic submitted he derived greater benefit from his proceeding under the Wrongs Act 1958 than under the Act for these reasons:
(a) he will not need to establish suffering a “serious injury”;
(b) he will be able to claim past and future domestic assistance and the cost of future medical expenses. These are unavailable because of s224 of the Act;
(c) there is a slightly less discount for future loss of earnings under the Wrongs Act than the Act (5 per cent against 6 per cent); and
(d) he avoids the potentially “draconian” effect of s344 of the Act as to costs.
29Having regard to the above period, Mr Celic submitted he was carrying out his own independent trade or business for the purposes of clause 9(2) and for part of the period, Mr Celic was employed by Corplex.
30From late May 2015 and afterwards, Mr Celic was engaged by Henley Arch. He wore clothing bearing the name of his business “Boys with Tools”. He held himself out as a person independent of Henley Arch, not its employee. In the same period, he performed for persons other than Henley Arch. Henley Arch did not control how he worked but only where he was to work.
31If Mr Celic’s relationship with Henley Arch does not come within clause 9(2), then his gross income during the relevant period shows he earned less than 80 per cent from Henley Arch, thereby not satisfying clause 9(1)(d). On his calculations, in the relevant period, his gross income came from four sources: Henley Arch ($44,312.76); Tapia Homes ($3,636.00); Integrated Construction ($575.00), and Corplex ($11.643.27). On those figures, the gross income from Henley Arch is 73.64 per cent of the total and, as such, clause 9(1)(d) is not satisfied.
32Mr Celic submits he is not a “worker” under the Act.
Henley Arch
33Henley Arch made two written submissions. It submitted Mr Celic is deemed a “worker” under Part 9 of Schedule 1:
(a) his services were not ancillary to the provision of materials or equipment (the evidence does not establish they were);
(b) at least 80 per cent of the services were provided by Mr Celic. He employed no-one and, if ill, was not allowed to substitute someone;
(c) his gross income was at least 80 per cent of the total gross income of the same class provided by him. If the relevant period is 1 June 2015 to 31 May 2016, then it is greater than 80 per cent and if the period is 1 June 2015 to 31 May 2016, it is still greater than 80 per cent if one disregards the Corplex income because it is not derived from services of the same nature as those provided to Henley Arch. Part of his income from Corplex was for the hire of equipment. This is not income from his labour. Henley Arch submits the relevant period is 1 June 2015 to 31 May 2016.
34Henley Arch submitted the relevant period should be the period from 1 June 2015 to 31 May 2016. It submitted “the relevant period” related to the contracting parties. With competing relevant periods, the Explanatory Memorandum says the one which gives the worker the greatest benefit is to be preferred. The greatest benefit for him is gaining access to the benefits under the Act such as weekly payments of compensation and the payment of medical and like benefits..
35To Mr Celic’s submission of “greatest benefit” in the Explanatory Memorandum, Henley Arch submitted Parliament could not have contemplated a comparison of benefits under the Wrongs Act with those under the Act. Using the greatest benefit test, it submitted the greatest benefit lay with the Act. For the purposes of statutory benefits, there was “no fault’ liability. There were the additional benefits including home help, domestic assistance and medical and like expenses available under the Act.
36Referring to BSA Ltd v Victorian WorkCover Authority,[2] it submitted clause 9(1) is satisfied and the question is whether the exclusion in clause 9(2) applies – whether Mr Celic’s business was independent of Henley Arch’s business. In the BSA case, at paragraphs [102] and [103], the Court set out the factors to be considered:
(a) whether the contractor would employ personnel or sub-contract to another party without approval of the principal – [no];
(b) whether, having committed to work for the principal, the contractor was required to attend upon customers at times stipulated by the principal;
(c) whether the contractor was required to deal with customers in ways closely prescribed by the contract, including contracting at certain times before attending and performing the work in accordance with stipulated requirements;
(d) whether the contractor was required to use specific tools that were supplied by the principal;
(e) whether the contractor billed the customers directly or whether the principal attended to that task;
(f) whether the contractor presented itself to the outside world (including its own customers) as having an existence independent of the principal, including such things as using the branding or symbols of the principal.
[2][2018] VSCA 265
37The Victorian WorkCover Authority made a submission that its determination of 30 March 2017 was, in effect, not justiciable in this Court. Henley Arch submitted the notice implied the issue could be revisited on the basis of more information.
Victorian WorkCover Authority
38The Authority submitted Mr Celic is not a deemed worker under clause 9 of the Act.
39After a gap, Mr Celic resumed providing services to Henley Arch on 1 June 2015 and ceased on 29 March 2016. He has not worked since then. Mr Celic provided services to Henley Arch over two consecutive financial years. Accordingly, sub-clause 9(6)(a) does not apply. Sub-clause 9(6)(b) applies, because Mr Celic provided those services in two consecutive financial years rather than in more than two such years.
40Sub-clause 9(6)(b) raises two possible methods of calculation. In sub-clause 9(6)(b)(i), the period starts on 1 June 2015. In sub-clause 9(6)(b)(ii), it is the twelve months ending on 29 March 2016. The Authority submits the latter is the relevant period.
41In submitting for the latter, the Authority referred to a passage under the heading of “Definitions” from the Explanatory Memorandum to the Bill.[3] Despite the reference to “greatest benefit”, it is the period of twelve months which is important in order to ascertain “the true working relationship between the contracting parties”.
[3] At p 329
42If one applies sub-clause 9(6)(b)(i), then the period from 1 June 2015 to 29 March 2016 is less than twelve months. If one applies sub-clause 9(6)(b)(ii), then one can achieve twelve months by using the period 30 March 2015 to 29 March 2016. The latter application conforms with the expression “the 12 month period” and is consistent with the Explanatory Memorandum. For that period, Mr Celic’s earnings total $60,167.03, of which $44,312.76 relates to Henley Arch. This figure includes four payments made after 29 March 2016 for services provided before that date.
43The Authority submits the work performed by Mr Celic for Henley Arch and Corplex are “services of the same class”. Mr Celic’s hiring of equipment to Corplex is not of the same class and should be excluded from the calculations.
44Applying sub-clause 9(6)(ii) to the period identified, Mr Celic earned $44,312.76 from services provided to Henley Arch and $15,854.27 from other sources, or 73.6 per cent. Since this is less than 80 per cent, the Authority submitted he is not a deemed worker.
45In light of that finding, the Authority submits there is no need to consider clause 9(2), since clause 9(1) applies.
46Relying, by analogy, on a ruling of her Honour Judge Hinchey in Moya v Group Messengers Pty Ltd & Anor,[4] the Authority submits the determination of the Authority under clause 9(2) is not justiciable in this Court at least.
[4] [2019] VCC 2155
Discussion
47No one submits Mr Celic is a “worker” at common law or, more precisely, for the purposes of paragraph (a) of the definition of “worker” in s3 of the Act.
48For the purposes of clause 9, the parties to the contractual arrangement are Mr Celic and Henley Arch.
Relevant period
49Mr Celic provided services to Henley Arch between June 2015 and March 2016. This period spans two consecutive financial years. Since the services were not provided in one financial year, one looks to paragraph (b) of the definition of “relevant period”. What the paragraph requires is a twelve-month period: a continuous period of twelve months.
50Looking then at sub-clause 6(b)(i), starting at 1 June 2015 when Mr Celic commenced again with Henley Arch, then one does not attain twelve months when he ceases work on 29 March 2016. Literally, it cannot apply. Parliament sets the conditions for the deeming process. If they are not met, then nothing is deemed.
51Looking at sub-clause 6(b)(ii), if one starts on 29 March 2016 and works backwards, then a period of twelve months is achieved, which ends before Mr Celic started with Henley Arch. Accordingly, the “relevant period” is the twelve-month period ending on the date on which the services ceased to be provided to Henley Arch, namely, 29 March 2016.
52I agree with Henley Arch that Mr Celic’s comparison between the recovery of damages under the Act and under the Wrongs Act could not have been intended by Parliament. It would take a highly specialised knowledge of both schemes to make the comparison, which I doubt would be possessed by Parliament. If the intention was to create a greatest benefit test, then the ability to access the benefits under the Act is what Parliament had in mind.
At least 80 per cent
53Sub-clause 9(1)(c) requires two things: First, at least 80 per cent of the services are provided by the contractor to the principal in the relevant period. Second, at least 80 per cent of the contractor’s total gross income in the relevant period is derived from the provision of services to the principal. The gross income earned in the relevant period must be from the “same class” as that provided to the principal.
54The services provided by Mr Celic to Henley Arch and to others in the relevant period were in the “same class”. The services provided to Corplex were of the same class as those provided to Henley Arch.
55For the period 30 March 2015 to 29 March 2016, Mr Celic’s gross earnings were $60,167.03, comprising:
(a) Henley Arch - $44,312.76;
(b) Tapia Homes - $3,636.00;
(c) Integrated Construction - $575;
(d) Corplex - $11,643.27.
56On those figures, which I accept, Mr Celic does not satisfy the test in sub-clause 9(1)(d), for he did not receive from the principal, Henley Arch, at least 80 per cent of his total gross income earned from services of the same class. On those figures, he earned 73.6 per cent. Accordingly, he is not deemed to be a “worker” and Henley Arch is not deemed to be his employer in the relevant period.
57Henley Arch questioned the nature of the payments of “wages” made by Corplex. They are described in Mr Celic’s bank statements as “wages”. There are 8 payments each of $1,106.31 and a final one of $9,430.65. Mr Celic was not examined about the nature of this payment. Mr Celic made it clear his last equipment invoice was dated 10 February 2015 and that he continued working for Corplex after that date. The bank entries, excluding the last, imply he continued working for Corplex until April 2015. Although the final payment was nearly nine times the size of his earlier payments, there is no legitimate basis to infer the final payment related to equipment hire or something other than gross income.
58Finally, there was no direct evidence about the extent of the services, as opposed to gross income, provided by Mr Celic to Henley Arch and others in the relevant period. I suppose the parties assumed the services were uniform and the percentage of gross income mirrored the percentage of services. That is a reasonable assumption.
Independent trade or business
59One would turn to sub-clause 9(2) only if sub-clause 9(1) operated to deem the contractor a “worker”. As I have found, it does not so operate. It is unnecessary to deal with this issue. However, it was the subject of submissions and I will deal with it on the assumption Mr Celic is deemed to a be a worker under sub-clause 9(1).
60Henley Arch submits, during the relevant period, Mr Celic had surrendered the independence of his business and worked essentially as an operative arm of Henley Arch. This takes up the words “independent trade or business” appearing sub-clauses 9(2) and 9(3).
61This brings one to BSA Ltd v Victorian WorkCover Authority & Ors.[5] At first instance, McDonald J referred to two dictionary definitions of the word “independent” and said:[6]
“Of particular relevance in the current proceeding are the following parts of the definitions set out above:
Not in a position of subordination or subjection
Not subject to external control or rule
Not dependent on something else for its existence.”
[5][2018] VSC 46 (“BSA”)
[6] (ibid) at paragraph [37]
62On appeal, McLeish JA said of “independent” in this context:[7]
“There is little doubt about the meaning of the words ‘trade’ and ‘business’, at least in the present context. As far as ‘independent’ is concerned, the primary judge helpfully identified dictionary definitions that could intelligibly be applied. Given that the purpose of the definition is to decide whether a person should be deemed to be a worker employed by a particular entity (the principal), it is appropriate to apply a definition that addresses the nature of the relationship between the principal entity and the contractor with whom that individual is connected in one of the ways described in cl 9(1)(c). On that basis, and recognising always that it is necessary to apply the statutory language rather than any gloss, ‘independent’ in my opinion here refers to a contractor’s trade or business which is not subject to control or subordination by the principal and which does not depend on the principal for its existence in the relevant period … .”
[7] [2018] VSCA 265 at paragraph [77]
63Although McLeish JA disparaged the comment in the Explanatory Memorandum of a “rare instances”, it would be most unusual for a contractor to satisfy sub-clause 9(1) and yet carry on an independent trade or business in the relevant period in the sense characterised by McLeish JA. The expressions “not subject to control or subordination” and “does not depend on the principal for its existence” are near absolutes.
64Applying this definition of “independent”, Mr Celic did conduct a trade or business independently of Henley Arch:
(a) unlike Cloud Vision in the BSA case, Mr Celic was not required to provide copious details about his employees to Henley Arch. Apart from employing none, Henley Arch insisted Mr Celic did the work, not someone else. This point is equivocal. While Henley Arch knew the quality of Mr Celic’s work, it would not have such knowledge of a substitute;
(b) how Mr Celic did his work was up to him. Henley Arch did not instruct him how to do the work except on the display village at Rockbank. It did tell him where to work. Henley Arch inspected Mr Celic’s completed work. Again, this is equivocal;
(c) although Henley Arch provided Mr Celic with the materials for him to do his work, it did not provide the tools by which he did it. The provisions of materials is an indication of control for independent contractors often profit through their supply of materials. But Mr Celic worked on large projects where his provision of materials would be unusual although it did occasionally happen;
(d) Mr Celic gave his business a name - “Boys with Toys”. He did not advertise the business. He possessed business cards but did not use them after 2010;
(e) Mr Celic was paid on his invoice on the completion of a job. There was no regularity of payment (weekly or fortnightly). The calculation of his payment varied according to the kind of work. He was not paid a set amount in a set period;
(f) Mr Celic did not enjoy the usual indicia of employment – any form of leave (sick, annual and long service); compulsory superannuation contributions; the provision of work clothes; and the deduction of income tax from his payments;
(g) Mr Celic viewed himself as an independent contractor to Henley Arch. This has marginal value in what is a legal issue;
(h) during the relevant period, slightly less than three quarters of his income came from Henley Arch, leaving slightly more than a quarter coming from other sources. In the relevant period, his financial existence was heavily, not exclusively, dependent on Henley Arch;
(i) when he was first engaged by Henley Arch, Mr Celic was given an OH&S Induction booklet and other documents. He gave the booklet a cursory reading and paid no regard to it afterwards. The booklet is concerned with occupational health and safety. The appendix “Contractor Agreement” is anomalous. Since the booklet is aimed at both employees and contractors, it says nothing about Mr Celic’s status.
65While the circumstances of the BSA case and Humberstone v Northern Timber Mills[8] pointed strongly in one direction in terms of “independence”, the facts in this case are less clear cut. However, on balance, I agree with the Authority’s decision that Mr Celic, in the relevant period, was conducting an independent trade or business. He had not surrendered his independence despite his financial reliance upon Henley Arch. During the relevant period, he was his own man, carrying on his business as an independent contractor.
[8] [1949] HCA 49
Authority’s determination
66I found the reasoning in the authorised agent’s determination confusing. It seems to rely on aspects of clause 9 to conclude Mr Celic is not a worker employed by Henley Arch. But that criticism is immaterial. Contrary to the Authority’s submission, its determination, through its agent, is justiciable in this Court in this proceeding or otherwise. Section 264(1) gives jurisdiction to this Court to enquire into, hear and determine any question or matter arising under the Act out of any decision of the Authority. The Authority decided to reject Mr Celic’s claim for statutory benefits. In part, it did so by asserting he was not a “worker”. That is plainly a question or matter arising out of the Authority’s decision. If it were necessary, this Court could determine the issue raised by clause 9(2).
67Section 264(1) was not specifically raised in the written submissions of the parties although the Authority referred to it in footnote 21 of its written submissions. The Authority referred to the conclusion of Judge Hinchey in Moya v Group Messengers Pty Ltd & Anor.[9]Again, if it were necessary to say, I would disagree with her Honour’s conclusion in reliance upon s264(1).
[9] [2019] VCC 2155 at paragraphs [70] and [71]
68For completeness, contrary to Henley Arch’s submission, parties cannot by agreement confer jurisdiction on a court where none exists.
Conclusion
69At the time Mr Celic sustained his injury, he was not a “worker” employed by Henley Arch.
70Apart from the form of the orders or declarations the parties would ask me to make, I will hear them on the question of costs.
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