Clark v Lewis t/as Ben Lewis Dozer Hire

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Clark v Lewis t/as Ben Lewis Dozer Hire [2024] NSWPIC 709
APPLICANT:	Anthony Charles Clark
RESPONDENT:	Ben Lewis Trading as Ben Lewis Dozer Hire
MEMBER:	Rachel Homan
DATE OF DECISION:	18 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for medical and related treatment expenses in respect of a cervical spine injury when a tree was pushed onto the applicant; whether the applicant was a “worker” or “deemed worker” when he sustained the injury; the applicant operated a heavy machinery haulage business and had provided services to the respondent previously as an independent contractor; whether a separate contract of service was created to perform tree-felling work; Stevens v Brodribb Sawmilling Co Pty Ltd, Hollis v Vabu Pty Ltd, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, and On Call Interpretersand Translators Agency Pty Ltd v Commissioner of Taxation (No 3) considered and applied; Held – the applicant was a “worker” in the course of employment with the respondent at the time he sustained the injury; in the alternative, the applicant was a “deemed worker’; order for the respondent to pay incurred treatment expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was a “worker” who received an injury to his cervical spine in the course of employment on 16 April 2020 for the purposes of ss 9 and 4(a) of the Workers Compensation Act 1987. 2. The respondent to pay the applicant’s reasonably necessary incurred medical and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987, up to $10,000, upon production of accounts, receipts and/or Medicare notice of charge.

STATEMENT OF REASONS

BACKGROUND

Mr Anthony Charles Clark (the applicant) sustained an injury to his cervical spine on
16 April 2020 when a tree was pushed on top of him.
These proceedings concern whether, at the time the injury occurred, the applicant was a “worker” in the course of employment with Ben Lewis trading as Ben Lewis Dozer Hire (the respondent).
Liability to pay compensation in respect of the injury was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 2 May 2023.
These proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 4 October 2024. The applicant sought weekly compensation and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for incurred medical and related treatment expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 16 December 2024. The applicant was represented by Mr Simon Hunt of counsel, instructed by Ms Anderson of Somerville Laundry Lomax Solicitors. The respondent was represented by Mr Paul Stockley of counsel, instructed by Mr Mitas of Lee Legal Group. A representative from the insurer was also present.
During the conciliation conference the applicant withdrew his claim for weekly compensation. The parties agreed that a general order for the payment of medical and related treatment expenses incurred up to $10,000 would be appropriate in the event the liability question was determined in favour of the applicant.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether, at the time of the injury, the applicant was a “worker” as defined in s 4 of the 1998 Act;
(b) whether, at the time of the injury, the applicant was a “deemed worker” pursuant to cl 2 of Schedule 1 to the 1998 Act, and
(c) whether the incurred treatment expenses were reasonably necessary as a result of a compensable injury pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 13 December 2023 and 1 October 2024.
In his first statement, the applicant recorded his employment history. Notably, the applicant had performed work operating machinery such as excavators for a previous employer.
The applicant applied for an Australian Business Number (ABN) in February 2019. On or around January 2020, the applicant registered business name, “ACC Haulage”, and commenced operating a business as a sole trader. The applicant purchased a low loader trailer and prime mover and performed work floating heavy machinery as well as transporting hay, concrete pipes and barriers, portable buildings and boats.
The applicant said that on some jobs he would operate machinery, usually an excavator, at the request of clients. The applicant had used an excavator owned by his father-in-law but later purchased an excavator for approximately $75,000.
The applicant had operated excavators at the request of clients through the business on a few occasions prior to the incident and would usually charge an hourly fee for doing so, which was less than the hourly rate charged for machinery haulage.
Most of the work the applicant performed operating an excavator was for a local sugar mill. The applicant would be called in to move cane between trucks or clear drains.
The applicant said he undertook all his own quoting, invoicing and administrative work. The number and frequency of jobs depended on the distances travelled and the time of year.
The applicant gave evidence regarding the incident on 16 April 2020. The applicant said the respondent had approached him or day or so prior to the incident and engaged his business to float machinery including an excavator and bulldozer for a job at Woombah Woods Caravan Park.
The applicant had done work floating machinery for the respondent through his business previously as well as during his former employment.
The applicant said he collected part of the machinery and delivered it to the caravan park on or about 15 April 2020. On 16 April 2020, the applicant arrived with the excavator at approximately 7:30am.
The applicant stated that when he finished unloading the machinery, Mr Lewis asked the applicant whether he was available to give him a hand cutting the tops of trees he had already felled and piling them up with the use of an excavator. The applicant told Mr Lewis that he had nothing else scheduled that day and was available to help him but if another job came up he would have to leave. Mr Lewis agreed to pay the applicant $35 per hour and asked that he invoice him as float hire.
The applicant said that Mr Lewis directed the applicant to pile up trees that he had cut down the previous day. In order to pile up the trees, the applicant had to cut the heads off the trees using a chainsaw. The applicant was wearing a high visibility vest and his hat and sunglasses. The applicant had been performing this work for a couple of hours at the time of the incident.
The applicant had exited the excavator and was leaning over a felled tree using the chainsaw when Mr Lewis pushed a tree with the bulldozer in his direction causing the tree to land on the applicant, knocking him unconscious. When the applicant woke up, he was pinned down under the tree and could not move. Mr Lewis did not know the applicant was under the tree and pushed a second tree down in the same direction. The second tree did not hit the applicant but pushed the first tree further into the ground.
When the accident was discovered, the trees were removed and an ambulance called. The applicant was transferred to Gold Coast University Hospital where he was found to have three fractured vertebrae in his cervical spine and two broken ribs.
The applicant said he later issued two invoices to the respondent, one for floating the machinery and a second invoice for his labour in assisting to cut the trees. The second invoice described the work as “hourly float hire, 1.5 hours at Woombah Caravan Park”, in accordance with Mr Lewis’ instructions.
In his supplementary statement, the applicant sought to clarify aspects of his previous statement. The applicant stated,
“At the commencement of operating the business ACC Haulage (“the Business”), it was intended that the primary service offered would be the floating of heavy machinery. However, I also intended to provide operating services including the operation of excavators.
Prior to the injury on 16 April 2020, I had not operated machinery as part of the Business apart from driving machinery on and off the low loader. I was however qualified to operate machinery and had operated machinery as an employee of other businesses previously as set out in my prior statement.
The services I provided to Mr Ben Lewis on 16 April 2020, including the operation of the excavator, was the first occasion I had operated an excavator as part of the Business’ services since its commencement.
The next occasion I recall operating machinery as part of the Business was in or about September 2021 when I provided operating services for the Clarence Harvesting Co-Operative Ltd.”
The applicant clarified that he purchased his own excavator on or about August 2022.
The applicant said that the only time he operated machinery which he did not own or which was not owned by his father-in-law was on the date of injury after delivering machinery to
Mr Lewis.
Attached to the supplementary statement was a transaction summary and tax invoice for the purchase of an excavator in August 2022.
The applicant also attached invoice details for his business for the period from
1 November 2018 to 31 August 2024.
Prior to 16 April 2020, most of the invoices were described as being for work transporting equipment including picking up and delivering excavators, tractors, cane harvesters, bales and other equipment.
On 25 April 2020, an invoice was issued to the respondent described as “15/4/2020 Pick up bulldozer from lewis Lane. Deliver to Woombah” and “15/4/2020 Pick up 20 ton excavator from Lewis Lane. Deliver to Woombah”.
On 3 May 2020 a further invoice was issued to the respondent described as “Pick up 20 ton excavator from Woombah. Deliver to Taloumbi Brooms Head Road” and “Pick up bulldozer from Woombah. Deliver to Taloumbi Brooms head Road”.
A third invoice was issued to the respondent on the same date for an amount of $231 being for “Hourly Float Hire 1.5 hours at woombah caravan park”.

Mr Lewis’ evidence

The respondent’s insurer procured a factual investigation report from Worksite Investigations, dated 27 April 2023. As part of the investigation, a statement was obtained from Mr Lewis. An unsigned copy of the statement is attached to the report.
Mr Lewis gave evidence that he operated his business as a sole trader and tended to work alone. The main focus of his business was the felling and clearing of bush and land to remove trees. Mr Lewis’ clients were typically farmers or local government agencies.
Mr Lewis operated a bulldozer and excavator.
Mr Lewis said he used earthmoving equipment to loosen the root structure around the base of a tree then pushed his bulldozer against the tree trunk to fell it. After trees were felled,
Mr Lewis would burn the fallen trees or cut them up and remove them from the property. The trees were cut up with a chainsaw.
Mr Lewis said he first met the applicant in approximately 2018. After he purchased his own low loader truck, Mr Lewis had hired the applicant on a contract basis per job to transport his earthmoving equipment. The applicant had not done any on-site work for Mr Lewis at any time prior to 16 April 2020.
Mr Lewis stated that as a truck loader contractor, the applicant was responsible for all aspects of workplace safety or coordination while performing his trucking work.
On 16 April 2020, the applicant dropped off a bulldozer at Woombah Woods Caravan Park. The site was fenced off from the public. There were two areas where trees needed to be felled.
Mr Lewis said that after unloading the earthmoving equipment from his truck, the applicant said he was looking for more income as he had just started his contracting business.
Mr Lewis said the applicant could do some work for him for the remainder of the day. The applicant agreed to stay and do so.
All contract negotiations were verbal in nature. There was no written contract in place at any time.
Mr Lewis asked the applicant if he knew how to use a chainsaw. The applicant responded “yes” as he had done work using a chainsaw in his brother’s fencing contracting business.
Mr Lewis and the applicant agreed that he would be paid an hourly rate. There was an unwritten rule that they did not discuss the hourly rate. The applicant would have known that Mr Lewis would pay him fairly for a good day’s work. The arrangement in place was that the applicant would complete the work and send Mr Lewis an invoice. Mr Lewis had the applicant’s ABN from his truck contracting.
The applicant was not to be paid superannuation, holiday leave, parental leave or sick leave as part of the engagement. The engagement was strictly that of a contractor. The applicant was responsible for paying his own income tax and other relevant taxes after receiving money from Mr Lewis under his business structure. Mr Lewis did not ask for a copy of the applicant’s workers compensation insurance or any other types of insurance.
The applicant was engaged to perform tree cutting duties as part of the forest clearing work.
All equipment, including the chainsaw, was supplied to the applicant by Mr Lewis’ business. Mr Lewis provided a 22 tonne Volvo excavator for the applicant’s use. The applicant was a competent excavator operator. The applicant was not expected to provide his own equipment for the work to be completed. There was no uniform. The applicant could have terminated his arrangement at any time without the need to advise Mr Lewis in advance.
Mr Lewis completed a verbal induction process. The applicant was not required to hold a license or any particular qualification for the work.
Mr Lewis said he ensured the applicant was wearing a set of safety boots, long pants and long sleeved high-vis shirt.
Mr Lewis said he had completed a site safety check the previous day.
Mr Lewis said that after speaking with the applicant about doing work as a tree cutting contractor, he explained the safety arrangements on-site. The applicant was only to move around the site by the perimeter fencing and not to walk through the centre of the site.
Mr Lewis explained that the applicant needed to use an excavator to lift trucks before cutting them with a chain saw. The applicant understood.
Mr Lewis observed the applicant use the excavator to pinch and grab the logs and use the chainsaw to cut the trees. The applicant appeared competent.
Mr Lewis gave instructions to the applicant that he would be pushing trees over with the bulldozer in an area designated ‘Area B’ and that he should only come to Area B when
Mr Lewis had stopped felling trees there and moved to ‘Area A’. The applicant understood this instruction. Mr Lewis told the applicant that they would be rotating between Area A and Area B to keep them safely separated at all times.
Mr Lewis proceeded to Area B and commenced pushing trees over. Mr Lewis was on his sixth tree when he shut down the machine to inspect the trees. Mr Lewis heard a chainsaw idling and spotted the applicant pinned under the branches of tree 5. Mr Lewis rendered assistance.
Mr Lewis said the applicant had clearly disregarded his instructions about site safety and where to walk on the site.
Mr Lewis said he had not had any other sub-contractors perform chainsaw work for him since then.

Applicant’s submissions

The applicant referred to his statement evidence and noted that the language in that statement was not tied to time. Some of the comments with regard to the nature of the applicant’s business referred to the conduct of the business after the incident on
16 April 2020.
The applicant’s statement evidence with regard to the purchase of the prime mover and trailer was consistent with the business’ financial statements from 30 June 2020. The applicant did not own an excavator at the time of the incident. The business records showed that the applicant did not purchase an excavator until August 2022.
The applicant gave evidence that prior to the injury on 16 April 2020 he had not operated machinery as part of the business apart from driving machinery on and off the low loader. The applicant submitted that his business only involved transporting and driving machinery on and off the loader. The applicant’s supplementary statement explained that his use of excavators, predominantly at sugar mills, occurred post injury.
The applicant observed that Mr Lewis had approached the applicant to arrange for equipment to be transported. The discussion around other work occurred after the applicant had arrived at the site.
The applicant noted that there was no written contract between him and Mr Lewis with regard to the tree felling work. An assessment of the overall circumstances was required to determine whether that work occurred in the context of an employment relationship.
The applicant referred to Mr Lewis’ statement and noted that he also drew a distinction between the tree clearing work and the trucking work.
Mr Lewis agreed that there was a verbal contract for the tree felling work to be performed at an hourly rate. Mr Lewis had control of the site, which was fenced off. Mr Lewis had planned two work areas.
Although Mr Lewis’ evidence suggested that he viewed the arrangement as a contractor one, the Commission was required to look at all of the circumstances.
Mr Lewis’ evidence confirmed that all of the equipment for the tree cutting work was supplied by Mr Lewis’ business, including the excavator and chainsaw. The applicant was not expected to provide any equipment of his own.
Although Mr Lewis agreed that the applicant could leave at any time to do work for his own business, Mr Lewis had provided an induction and made sure the applicant was using appropriate personal protective equipment. Mr Lewis explained the site safety arrangements and gave specific directions as to where the applicant needed to be. Work was done according to Mr Lewis’ direction. Mr Lewis observed the applicant to make sure he was competent to perform the work. Other workers were also on-site.
The applicant submitted that it was clear that there were two separate activities. One was the transportation of equipment, which was clearly within the applicant’s business operations. The tree felling was a very different activity and occurred under Mr Lewis’ control and direction.
The only factors weighing against a finding that the applicant was a “worker” were the fact that the applicant had an ABN and issued invoices under the ABN for the work.
In the alternative, the applicant submitted that he was a “deemed worker”.
The applicant referred to the business invoices and noted that all of the entries up until the day of the injury involved picking up and delivering equipment. There were no entries for land crew or excavation work.
The first entry for excavation work was dated 14 May 2021 and referred to a short shift using a 20 tonne excavator. Similar entries could be found in August, September and October 2021.

The applicant submitted that at the time of the injury his business concerned the transportation of equipment. The business did not involve excavation work and such work was not being done on a regular basis. The purchase of an excavator occurred well after the injury. Although the applicant was running a business at the time of the injury, the tree-felling work was not part of that business. Although excavation work was later added to the business it was also not part of the business as at the date of injury.
There was no suggestion that the applicant had employed anyone to work for him. The value of the work shown on the invoice showed what the applicant was paid for the tree felling work. The value of that work was greater than the threshold.
The applicant submitted that at the time of injury he was both a deemed worker and a worker as relevantly defined.

Respondent’s submissions

The respondent observed that the factual evidence from the applicant and Mr Lewis was largely consistent. The only difference between their evidence related to the hourly rate.
The respondent submitted that the applicant was undoubtedly running a business at the time of the injury. The applicant had entered into a contract with the respondent for the delivery of equipment.
The statement evidence said nothing about the return of the equipment. It was unclear whether, upon delivery of the equipment, the relevant contract between the applicant and the respondent was discharged. An issue arose as to whether the applicant had entered into a new contract to perform the tree felling work and whether the character of the work changed.
The respondent submitted that the invoices gave little insight into this question. While there were two invoices they did not distinguish between the work for which they were issued.
If there was no new contract and the clearing work was merely a change or adjustment to the original contract, then it could not be said that the applicant was a worker or deemed worker. Neither party gave evidence as to what would happen at the end of the job. The evidence suggested one contract.
If the parties entered into a new contract, the applicant’s case was stronger. However, the language used by both the applicant and respondent did not suggest that the applicant became a casual employee of the respondent. The applicant’s evidence was that he could perform the clearing activities for as long as it suited him during his down time. The applicant did this type of work from time to time in association with his haulage business. Both parties agreed that the applicant would invoice for the work. The respondent submitted that even if there was a new contract it was not a contract of employment.
With regard to whether the applicant was a “deemed worker”, the respondent submitted that the evidence established that the applicant was carrying on a business regularly. The issue was whether what the applicant was doing at the time of the accident was incidental to that business.
The respondent submitted that the expression, “incidental” in this context referred to a connection. The exclusion in cl 2 applied even if the work was only incidental to the business. The question was whether tree clearing was incidental to the applicant’s haulage business.
The respondent submitted that the machinery delivery took the applicant to the work site. It resulted in the engagement with Mr Lewis to perform tree felling work. It connected him to the activity which caused the injury. The activity was undoubtedly “incidental” to the applicant’s business.
The applicant’s evidence was that from time to time he would do other work as part of the business. The applicant subsequently acquired his own excavator.
The respondent submitted that there was no challenge to either witness’ credit. However, the level of detail in the evidence was lacking. It was the applicant’s onus to establish that he was a worker or deemed worker.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a “worker” who has received an “injury”’ shall receive compensation from the worker’s employer in accordance with the Act. The term “injury” is relevantly defined in s 4 as it applies to this case as:
“4     Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The term “worker” is relevantly defined in s 4 of the 1998 Act as meaning “a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing)”.
The workers compensation legislation deems certain other persons to be “workers”. Section 5 and Sch 1 of the 1998 Act deals with the concept of deemed employment of workers. Schedule 1, cl 2 provides as follows:
“Outworkers and other contractors
2 (1) Where a contract:
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) [Repealed]
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
Section 2A of the 1987 Act provides that the definitions in the 1998 Act apply to the word “worker”: where it appears in the 1987 Act.
The facts in this case are largely uncontroversial. There is no dispute that the applicant operated a business and performed work for the respondent under a contract for services when transporting machinery to the Woombah Woods Caravan Park site.
The evidence also establishes that there was a verbal agreement between the applicant and respondent for the applicant to perform tree cutting work at the site for which the applicant would be remunerated upon issuing an invoice. It was in the course of performing that work that the applicant sustained the injury.
The proper characterisation of that agreement is what remains in dispute.
The respondent has submitted that all of the work performed by the applicant for the respondent on the day in question may have been under a single contract for services, the terms of which were altered in the course of the discussion between the applicant and
Mr Lewis following the delivery of the excavator.
In my view, the evidence is more consistent with there being a separate contract for the tree felling work. I have formed this view noting that separate invoices were issued for the delivery of the two machines to the Woombah Woods Caravan Park site (Inv 070) and the tree felling work (Inv 076). A further invoice was issued for picking up the machinery from the Woombah site and delivering it to other locations at a later date (Inv 075).
The manner in which the haulage work and the tree felling work was performed was also very different. There is no suggestion that the haulage work was performed under the supervision or control of the respondent. Mr Lewis gave evidence that the applicant was responsible for all aspects of workplace safety and co-ordinating that work. He was not involved at all.
In contrast, the evidence establishes that the tree-felling work was performed under the supervision and control of Mr Lewis. Mr Lewis had fenced off the site and designated two work areas. Mr Lewis provided the applicant with the equipment required to perform the work, being the chainsaw and excavator. Mr Lewis gave the applicant a safety briefing and detailed instructions on how he was to perform the work. Mr Lewis observed the applicant use the equipment and satisfied himself that he was competent to perform the work.
Proceeding on the basis that there was a separate contract for the tree-felling work, the issue becomes whether that work was done under a contract of service or a contract for services. The relevant case law indicates that this question is to be resolved by looking at the "totality of the relationship between the parties".
In the leading case of Stevens v Brodribb Sawmilling Co Pty Ltd,[1] the High Court set out a number of relevant indicia. These include, but are not limited to:
[1] [1986] HCA 1.
•      the mode of remuneration;
•      the provision and maintenance of equipment;
•      the obligation to work;
•      the timetable of work and provision for holidays;
•      the deduction of income tax;
•      the right to delegate work;
•      the right to dismiss the person;
•      the right to dictate the hours of work, place of work and the like, and
•      the right to the exclusive services of the person engaged.
In Hollis v Vabu Pty Ltd[2] the High Court reiterated that the “totality” of the relationship must be considered and said the factors set out in Stevens were merely a guide to establishing the nature of the relationship.
[2] [2001] HCA 44.
More recently, in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd ,[3] the plurality said,
“In Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd, it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to "the totality of the relationship between the parties". It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.”
[3] [2022] HCA 1.
In that case and ZG Operations Australia Pty Ltd v Jamsek,[4] which was heard at the same time, the High Court found that where there exists a comprehensive written contract, that should be the starting point in determining the nature of the relationship. There is no written contract in this case.
[4] [2022] HCA 2.
In On Call Interpretersand Translators Agency Pty Ltd v Commissioner of Taxation (No 3),[5] Bromberg J said:
“Whether a person is an employee or alternatively an independent contractor is to be answered by reference to an objective assessment of the nature of the relationship that person has with the entity that takes the benefit of that person’s work.”
[5] [2011] FCA 366.
His Honour went on:
“The majority in Hollis ... said, the distinction between an employee and an independent contractor is ‘rooted fundamentally’ in the fact that when personal services are provided to another business, an independent contractor provides those services whilst working in and for his or her own business, whereas an employee provides personal services whilst working in the employer’s business: at [40]. Unless the work is being provided by an independent contractor as a representative of that entrepreneur’s own business and not as a manifestation of the business receiving the work, the person providing the work is an employee.
...
Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a ‘practical matter’:
(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”
Justice Bromberg set out a list of indicia which are useful in considering whose business an activity is performed in:
“The second element – ‘Whose business is the economic activity being performed in and for?’, raises the following indicia for consideration:
Does the provision of the economic activity provide an opportunity for profit and involve the risk of loss: Roy Morgan (2010) at [47]; Market Investigations at 185; Lee Ting Sang at 382; or is the payment made largely consistent with the remuneration that an employee would have received for providing the activity?: Hollis at [54]; Commissioner of Taxation v Barrett [1973] HCA 49; (1973) 129 CLR 395 at 405-407; Yaraka Holdings at [41] and [49];
In that respect and in relation to profit:
- to what extent is the reward for the provision of the activity negotiable and negotiated commercially?: Hollis at [54];
- to what extent does the putative owner/entrepreneur have the capacity to manage the activity so as to maximise the potential for profit?: Hollis at [58]; Roy Morgan (2010) at [47]; Market Investigations at 185; Lee Ting Sang at 382;
In that respect and in relation to risk:
- to what extent is the agreed payment contingent upon the person providing a satisfactory result (i.e. are there financial consequences for poor performance)?: Roy Morgan (2010) at [47]; Yaraka Holdings at [49];
- who bears the risks associated with providing any equipment or assets required for the performance of the economic activity?: Hollis at [56].
Does the putative business or the putative employer’s business control and direct or have the capacity to control and direct the manner in which the economic activity is carried out?: Hollis at [43]-[45], [49] and [57]; Stevens v Brodribb at 24 and 35-36; Roy Morgan (2010) at [49].
Is the economic activity represented or portrayed as the activity of the putative business or that of the putative employer’s business?: Hollis at [50]-[52] and [57]; Yaraka Holdings at [43];
To what extent is the person providing the economic activity integrated with the business receiving the activity?: Stevens v Brodribb at 26-27 and 35-36; Hollis at [57];
To what extent is the person providing the economic activity financially self-reliant from, as opposed to, economically dependent upon or organisationally tied to, the business receiving the activity?: Re Porter: Re Transport Workers Union at 184-185. Exclusivity is suggestive of an employment relationship: Commissioner of Taxation v Barrett at 407. However, it does not follow that a person who provides casual or part-time work to multiple purchasers is not an employee: Yaraka Holdings at [34] and [36]; Sgobino v State of South Australia (1987) 46 SASR 292at 308;
Is the person providing the economic activity free to employ his or her own means (employees or contracted agents) to produce the activity or must that person personally perform the work?: Stevens v Brodribb at 24-26 and 38; Neale v Atlas Products (Vic) Pty Ltd [1955] HCA 18; (1955) 94 CLR 419at 425 and 428; Yaraka Holdings at [41]; and see [285] below;
To whose business does any goodwill created by the economic activity enure?: Hollis at [48]; Stevens v Brodribb at 37; Roy Morgan (2010) at [46]; Yaraka Holdings at [52];
In contracting to provide the economic activity has the person agreed to provide an outcome or result?: Neale v Atlas Products at 425; Roy Morgan (2010) at [42];
To what extent is the person providing the economic activity doing so with his or her own tools and equipment?: Hollis at [56]; Sweeney at [32]; Roy Morgan (2010) at [41]; Yaraka Holdings at [37]-[40]; Market Investigations at 185; Lee Ting Sang at 382;
If the person is providing their own equipment, to what extent can the person be directed in the management and control of that equipment?: Stevens v Brodribb at 26;
Have the parties involved characterised the economic activity as that of the owner/entrepreneur being performed in and for that person’s business, or alternatively as part of the receiving business, and to what extent does that characterisation reflect the reality?: See [188] to [200] above.”
His Honour went on at [219]:
“Whether or not income tax has been withheld and whether annual, long service or sick leave is afforded are often also used as relevant indicators: Stevens v Brodribb at 37; Yaraka Holdings at [44]-[48]. It is not incorrect to have regard to these factors, but there are differing views as to the inference which should be drawn from such arrangements: Wesfarmers Federation Insurance at [40]-[42]. Reliance on these factors may involve circularity of reasoning particularly where these factors are based upon the self-assessed and objectively incorrect label that the parties have attached to their relations: see Hollis at [37] and Owens and Riley at 140. Further, it is necessary to appreciate that casual employees are not ordinarily entitled to leave or sick pay: Sgobino at 293 and 308; Yaraka Holdings at [50].”
Applying the relevant authorities to the facts of this case, I find there are several factors that weigh against a finding that the applicant was working under a contract of service;
·        the applicant owned and operated a business and had done other work for the respondent as an independent contractor;
·        the agreement reached between the parties was that the applicant would invoice the respondent using his business’ ABN for the work performed and this was in fact done;
·        it was agreed that the applicant could cease work at any time in order to take on other jobs for his business;
·        there was no discussion with regard to the payment of tax, superannuation, leave or other entitlements;
·        the language used by both the applicant and Mr Lewis in their statement evidence was suggestive of a principal/contractor relationship;
·        the applicant did not perform work exclusively for the respondent;
·        the applicant’s own evidence was that he did intend to provide operating services, including the operation of excavators as part of the business, and
·        the applicant had subsequently performed work operating an excavator as part of his business’ services after the injury.
Looking at the particular arrangement in place between the parties, however, it is clear that it was the respondent’s business which had been engaged by Woombah Woods Caravan Park to provide tree felling services. There is no evidence that the applicant had previously offered tree felling services as part of his business although he did have previous experience operating an excavator and using a chainsaw in his brother’s fencing business.
Although the evidence is inconsistent with regard to the rate at which the applicant was to be paid, both the applicant and Mr Lewis indicate that the applicant was to be paid an hourly rate as opposed to a sum for completion of job or task.
There is no evidence to suggest that payment was contingent upon the applicant producing a particular outcome or result or performing the work to a particular standard. It was respondent’s business which bore the commercial and reputational risk should the applicant’s work not be completed or performed satisfactorily.
The equipment required for the performance of the work was all provided by the respondent.

As indicated above, the evidence suggests that the work activities were performed under the control and direction of Mr Lewis. Mr Lewis gave instructions as to how and where the work activities were to be performed and supervised the work.
The evidence suggests that it was the applicant’s particular skills and experience using an excavator and chainsaw which were required by the respondent. The evidence does not suggest that the applicant could have used an employee or subcontractor to produce the work. The expectation was that the applicant would personally perform the work.
The relevant indicia in this case are finely balanced. After careful consideration of the totality of the relationship between the parties, however, I am satisfied that the contract between the applicant and the respondent was one of employment or service. Although I accept that Mr Lewis and perhaps in fact the applicant viewed the agreement as a contract for services, I am not satisfied that this was a proper characterisation of the arrangement.
I find that the applicant was a “worker” who received an injury in the course of employment for the purposes of ss 9 and 4 of the 1987 Act.
Having made this finding, it is strictly unnecessary to consider whether the applicant was also a “deemed worker”.
For completeness, however, I accept that there was a contract to perform work exceeding $10 in value. I accept that the applicant regularly carried on a business in his own name. I accept that the applicant neither sublet the contract nor employed any other worker.
The only area of controversy is the question of whether the work was incidental to the business regularly carried on by the applicant.
The fact that the applicant had not previously performed work operating excavators as part of his business prior to the injury is not of itself determinative. The evidence establishes that the business had only been operational for a few months prior to the injury. The applicant’s own evidence was that he intended to provide operation services at some stage as part of his business offerings.
There is no evidence, however, that the applicant had at any time provided tree felling services, including the use of chainsaws, as part of his business offerings. The applicant’s description of his subsequent excavator work was that it involved moving objects, including cut sugarcane, or clearing drains, using his own or his father-in-law’s excavator. I accept that the work being performed at the time of the injury was of a different character.
I accept the respondent’s submission that the term “incidental” is used in cl 2 of Sch 1 of the 1998 Act to refer to work “connected with, related to or associated with” a business regularly carried on.
There is no doubt that the applicant came to be offered the work as a result of his business’ dealings with the respondent. It was the conduct of the applicant’s business which brought him to the Woombah Woods Caravan Park site on 16 April 2020 and led him to have the conversation with Mr Lewis in which the work was offered.
I am not satisfied however that those connections are sufficiently material or of a nature as to render the tree-felling work “incidental” to the business regularly carried on by the applicant.
To the extent that it is necessary to do so, I would also find that the applicant was a “deemed worker” in accordance with cl 2 of Sched 1 to the 1998 Act for the purposes of s 9 and 4 of the 1987 Act.
Having made the findings above, it is appropriate that orders be made for the respondent to pay the applicant’s reasonably necessary incurred medical and related treatment expenses pursuant to s 60 of the 1987 Act, up to $10,000, upon production of accounts, receipts and/or Medicare notice of charge.

[2024] NSWPIC 709

18 December 2024