Coverbid Pty Ltd t/as Eclipse Couriers v Geary
[2012] NSWWCCPD 36
•6 July 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Coverbid Pty Ltd t/as Eclipse Couriers v Geary [2012] NSWWCCPD 36 | ||||
| APPELLANT: | Coverbid Pty Limited t/as Eclipse Couriers | ||||
| RESPONDENT: | Francis Geary | ||||
| INSURER: | Allianz | ||||
| FILE NUMBER: | A1-9793/11 | ||||
| ARBITRATOR: | Ms J Connelly | ||||
| DATE OF ARBITRATOR’S DECISION: | 28 March 2012 | ||||
| DATE OF APPEAL DECISION: | 6 July 2012 | ||||
| SUBJECT MATTER OF DECISION: | Contractor taken to be worker; Sch 1 cl 2 to the Workplace Injury Management and Workers Compensation Act 1998; sufficiency of reasons | ||||
| PRESIDENTIAL MEMBER: | Acting President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | DLA Piper Australia | |||
| Respondent: | Thurlow Fisher Lawyers | ||||
ORDERS MADE ON APPEAL: | 1. The Arbitrator’s findings, orders and determinations recorded in Certificate of Determination dated 28 March 2012 are confirmed. 2. The appellant is to pay the worker’s costs of the appeal. | ||||
BACKGROUND
Mr Francis Neil Geary was engaged as a courier driver by Coverbid Pty Ltd trading as Eclipse Couriers (the appellant) on 8 October 2009. Mr Geary performed that work until he was injured on 14 January 2010. Mr Geary ceased work and consulted his general practitioner, Dr Hettiaratchi. He was referred to Dr Popoff, orthopaedic surgeon, for investigation of a right shoulder injury. Mr Geary has undergone two surgical procedures to that shoulder. It is alleged that the right shoulder injury has given rise to whole person impairment.
Mr Geary made a claim for workers compensation benefits against the appellant. That claim was declined upon the basis that, at the time of injury, Mr Geary was not a worker within the meaning of that term as defined in the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
An Application to Resolve a Dispute (the Application) was filed with the Commission on Mr Geary’s behalf in November 2011. That Application sought orders for weekly payments, medical expenses and a lump sum in respect of the alleged whole person impairment. The Application came before Arbitrator Connelly for conciliation and arbitration on 23 February 2012. Mr Geary amended the Application by withdrawal of the claim in respect of ongoing weekly payments.
The matter proceeded to arbitration and the Arbitrator reserved her decision. A Certificate of Determination was issued on 28 March 2012 accompanied by a Statement of Reasons (Reasons). That Certificate made the following notation, orders and determinations:
“The Commission determines:
1. By consent the claim for weekly compensation is discontinued.
2. The Application to Admit Late Documents filed by the respondent on 16 December 2011 is admitted into evidence.
3. On 14 January 2010 the applicant was a deemed worker under clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 when he suffered an injury to his right shoulder, arm and hand.
4. The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment as follows:
Date of injury: 14 January 2010
Body part referred: Right upper extremity
Documents to be sent to the AMS: Application to Resolve a Dispute and Reply.5. The respondent is to pay the applicant’s section 60 expenses.
6. The respondent is to pay the applicant’s costs as agreed or assessed.
7. I certify this matter as complex and order an uplift of the costs payable to both sides of 10 per cent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The issues in dispute raised in the grounds of appeal are whether the Arbitrator erred in the following respects:
(a) failing to properly consider or address all the relevant evidence;
(b) failing to give any or any sufficient reasons for her decision, and
(c) finding that Mr Geary was to be taken to be a worker employed by the appellant upon application of cl 2 of Sch 1 to the 1998 Act to the facts.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE ARBITRAL PROCEEDINGS
The parties were each represented by counsel at the hearing before the Arbitrator. That hearing was recorded and a transcript (T) has been produced and made available to the parties. The documentary evidence before the Commission was summarised by the Arbitrator at [9] of her Reasons. No oral evidence was adduced at the hearing.
The evidence
It is proposed to attempt a summary of only that evidence relevant to the issues raised before the Arbitrator and those which have arisen on this appeal.
Mr Geary’s evidence
There is a written statement by Mr Geary dated 15 July 2011 in evidence. Mr Geary came to Australia from New Zealand in 1969. His work history is summarised at [6] of that statement. During approximately 25 years prior to the injury received by Mr Geary in January 2010 he was employed as follows:
“• TNT Carpets Limited for 2½ years.
· From 1988 to 10 February 2006 by the Respondent as a courier.
· Between 13 February 2006 and 4 June 2007 by CCS as a courier.
· From 15 June 2007 to 25 September 2009 – by Dash Express as a courier.
· From 8 October 2009 to 14 January 2010 by the Respondent as a Courier.”
The circumstances of his engagement as a courier by the appellant is summarised at [8] of the statement where the following matters appear:
“(i) I worked daily for the Respondent logging on each day at 6.30am.
(ii) I did not work for anyone else nor could I work for anyone else whilst I worked with the Respondent.
(iii) I did not have a trading name and did not work on my own account.
(iv) I did not advertise as a business entity nor seek work in that manner.
(v) I did not employ any person.
(vi) I did not issue invoices to the Respondent.
(vii) I answered to Phil Riley, principal of the Respondent.
(ix) I was shown a document setting out the terms and conditions of my employment but was never provided a copy.
(x) There did exist a protocol for time off work including giving notice.
(xi) The Respondent would determine the manner in which work was to be undertaken in that it would dictate how goods were to be loaded, their mode of delivery.
(xii) I did supply my own vehicle however it was a condition that the vehicle was ‘badged’ with the Respondent’s decal.
(xiii) I was required to, and did wear a uniform supplied by the Respondent.”
At [15] of the statement Mr Geary makes reference to an invoice dated 23 October 2009 which is a document relied upon by the appellant. A copy is annexed to the statement and Mr Geary states that he did not create that document but rather that it had been created by the appellant.
Evidence of Mrs Sang-Fay Geary
There is a statement made by Mr Geary’s wife, Sang-Fay Geary, dated 5 July 2011. Mrs Geary states that she is dependant upon the earnings of Mr Geary and that she has not worked since March 2010 at which time her employer, Worldwide Printing Pty Ltd “went into liquidation”. It is further stated that Mrs Geary has had “no dealings with [the appellant]”.
Mr Geary has tendered in evidence a number of partnership tax returns in respect of the years between 2005 and 2010. The partnership name is recorded as “Geary and Turnbull”. It is common ground that Mr Geary’s partner, S F Turnbull, is his wife. The main business activity of the partnership is described in those documents as “transport operation nec”. Those documents are addressed in the course of discussion below.
Mr Geary tendered a copy of a Business Activity Statement (BAS) filed with the taxation authority in respect of the period January to March 2011. That statement records no sales in respect of that period. Non-capital purchases are noted as totalling $1,542. I note that the copy which is in evidence does not bear a date nor is it signed. A refund of $140 was noted in that document.
Appellant’s evidence
The following documents relevant to the issues raised on this appeal were attached to the appellant’s Reply:
(a) an extract from the Australian Business Register concerning registration of the trading name “Geary and Turnbull”. That registration occurred on 1 November 1999. The entity, described as a family partnership, was allotted Australian Business Number 82 342 882 012;
(b) registration and insurance details concerning a truck/trailer registered in the name of Mr Geary;
(c) copy of correspondence from Mr Philip Riley, managing director of the appellant addressed to the appellant’s insurer Allianz Workers Compensation which is undated. That correspondence included the following matters:
“1. Mr Geary was paid by direct deposit into his partnership business account.
2. A Recipient Created Tax Invoice was generated for all work done and furnished to Mr Geary for reconciliation.
3. Mr Geary paid his tax. He was paid the rate per job as per NSW Courier Contract Determination plus the GST applicable, he was responsible for all costs associated with carrying out his duties.
4. Mr Geary had sole responsibility for the hours worked.
5. Mr Geary was responsible to supply all equipment i.e. vehicle, fuel and associated equipment.
6. Mr Geary could and did refuse work and he had full control as to how the work was completed.
7. Mr Geary worked for several other companies during the financial year, he worked for Eclipse for approx. 3 months from 08/10/09 to 14/01/10. Mr Geary was not held to an exclusive contract with Eclipse and I do not know if he worked for other entities in his time with us.
8. At no time did Mr Geary report an injury to Eclipse management or any of its employees.”, and
(d) a document bearing the appellant’s letterhead and headed “Terms of Engagement 8 October 2009” which is addressed to Mr Neil Geary. That document appears to be incomplete and is unsigned. On the face of the document it appears to relate to terms and conditions of Mr Geary’s engagement by the appellant. There is also a separate document containing “bank details” of an account conducted by Mr Geary and his wife, an ATO code and the ABN number noted at [16 (a)] above.
Submissions before the Arbitrator
Reliance was placed by Mr Geary’s counsel upon the decision of the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 in support of the submission that all relevant indicia of his relationship with the appellant establish that he was at relevant times a worker within the meaning of the 1998 Act. That argument was not further developed.
Emphasis was placed by counsel upon the alternative argument that Mr Geary was, on the evidence, a “deemed worker” having regard to the provisions of cl 2 of Sch 1 to the 1998 Act.
It was put that the value of the subject contract exceeded $10 as stipulated in the relevant clause and that the work “wasn’t work incidental to trade or business directly carried on [by Mr Geary]”. It was put that Mr Geary was, at relevant times, working exclusively for the appellant. The “disentitling provisions” in the clause did not, it was argued, have application.
The appellant argued that Mr Geary was “carrying on a trade or business” at the relevant time. It was emphasised in argument that Mr Geary utilised his own truck; he was not paid sick pay, holiday pay, long service nor superannuation; he paid for petrol, and was paid a flat rate for work done.
It was further argued that Mr Geary “has a partnership which receives the money from the contract”. That partnership had been conducted “for many years… including 2010”. The tax returns demonstrate, it was argued, that Mr Geary “makes a loss which again is contra to him being a worker”.
The content of the tax returns in evidence, in particular details concerning deductions establish, it was argued, that Mr Geary was carrying on a trade or business.
Reference was made by counsel to “the contract”. It was put that, should weight be given to that document, it would be seen that Mr Geary “is allowed to work for other people and, he was to take out insurance”. A conclusion would be reached, it was put, that Mr Geary was running his own business. A BAS had been prepared “in the partnership name”.
Counsel for the appellant made reference in submissions to the “bank details” in evidence which, it was put, demonstrated that the partnership conducted the relevant account.
In reply, counsel for Mr Geary argued that “carrying on a business is not the test. The test is [is performance of the contract] incidental to a trade or business carried on by [Mr Geary]”.
Counsel argued that, should any weight be given to the document said to contain terms of the contract, that document is one addressed to Mr Geary. It is clear, it was argued, that the appellant was dealing with Mr Geary. It was further put “it’s a contract, it’s with [Mr Geary]”.
The Arbitrator’s decision
The Arbitrator addressed firstly Mr Geary’s allegation that he was at relevant times a “deemed worker” pursuant to cl 2 of Sch 1 to the 1998 Act. The Arbitrator summarised relevant authority including the judgment of Dixon J in Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389 (Humberstone) and that of Mahoney JA in Wathen v AUT Holdings Pty Ltd [1977] 51 WCR 1, as well as those matters addressed by Bainton AJA as found in the decision of the Court of Appeal in Scerri v Cahill (1995) 14 NSWCCR 389 (Scerri).
The Arbitrator noted that there was no dispute between the parties that Mr Geary was “a party to a contract with the respondent to perform work” and that “the value of the work exceeded $10”. The Arbitrator made brief reference to the evidence of Mr Geary and his wife and made a finding (at [27] of Reasons) that “[Mr Geary] has neither sublet the contract nor employed others to perform it”.
The Arbitrator made further reference to Mr Geary’s evidence and the content of an “invoice” that was in evidence. Following reference to the decision of Roche DP in Pasqua v Morelli Constructions Pty Ltd [2009] NSWWCCPD 153 the Arbitrator made the following findings (at [32] and [33]):
“32. Mr Geary has clearly previously conducted a transportation business. However once he contracted to work exclusively with the respondent on 8 October 2009 the evidence is that he ceased conducting his business. In my view therefore, at the date of injury he was not regularly carrying on a trade or business in his own name or a business name. It follows that the work he was undertaking on 14 January 2010 when he was injured was not incidental to a trade or business regularly carried on by him.
33. Taking this finding into account, in addition to the other negative and positive indicia as set out in Scerri, which are not in dispute, I am comfortably satisfied that the applicant is a deemed worker within the meaning of clause 2 of Schedule 1 of the 1988 [sic] Act.”
The Arbitrator proceeded to observe that there was “no need to consider the alternative argument that the applicant is a worker”. The orders and determinations as noted at [4] above were then made.
SUBMISSIONS, DISCUSSION AND FINDINGS
The Arbitrator has found that Mr Geary is to be taken to be a worker employed by the appellant in accordance with the provisions of cl 2 Sch 1 to the 1998 Act which provides:
“2 Other contractors
(cf former Sch 1 cl 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.
(2) (Repealed)
(3) A person excluded from the definition of worker in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”
The Arbitrator’s determination concerning Mr Geary’s entitlement to the benefits of the workers compensation legislation was made upon the basis of those findings which I have noted at [29] above.
Ground one
The appellant’s first ground of appeal suggests that, in reaching her conclusion concerning that entitlement, there had been a failure on her part “to properly consider or address all of the relevant evidence”. That ground is closely associated with the complaint made in ground two that the Arbitrator had failed to give any or any sufficient reasons for her decision.
The appellant is correct in its reliance upon that which was stated by Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 (at [130]) in support of its assertion that “failure to examine all of the material relevant to a particular issue” constitutes error.
The appellant’s submissions concerning ground one appear to identify the “particular issue” as being “whether [Mr Geary]… was a worker or deemed worker of [the appellant]” (at 2.9.4 of submissions).
Those submissions acknowledge that the Arbitrator made “brief reference” to argument raised on its behalf, but complains that there was a failure to “consider the financial documents which indicated [Mr Geary’s] partnership made a loss in 2010”.
There can be no complaint made by the appellant that the Arbitrator had disregarded the evidence of a loss suffered by the partnership in 2010. That evidence is expressly noted at [20(g)] of Reasons and the Arbitrator acknowledges that that evidence is relied upon, with other evidentiary material, in support of the argument that Mr Geary was neither “an employee or a ‘deemed worker’”.
Whilst it is correct, as put on behalf of the appellant, that there is no further express reference made by the Arbitrator to the evidence demonstrating a loss in the year 2010, the Arbitrator’s ultimate conclusion was founded upon her view of the evidence as a whole. In my view, evidence of such loss was of no consequence given the reasoning found at [29] of Reasons where it was stated:
“There is no dispute that the applicant was a contractor. He had run a business for many years. However at the time of his injury he says he was working solely and full time for the respondent. The applicant’s vehicle was badged with the respondent’s logo and he was wearing a uniform provided by the respondent. The applicant was not advertising his business. There is no evidence that contradicts the applicant’s evidence in this regard, and these factors are consistent with the applicant’s assertion that he was not operating his own business whilst he was performing work for the respondent.”
The Arbitrator had earlier made reference to the reasoning expressed by Dixon J in Humberstone. It was stated by his Honour concerning the operation of the words now found in cl 2 of Sch 1:
“I think that the purpose of the exception or exclusion expressed by the words in question was to confine the benefit of the conclusive presumption which it establishes to persons who do not conduct an independent trade or business, who are not holding themselves out to the public under their own or a firm or business name as carrying on such a trade or business and who do not in the course of that trade or business, as an incident of its exercise, undertake the work by entering into the contract. The provision will thus cover men who work for the principal but have no independent business or trade and men who though carrying on an independent trade or business undertake a contract outside the scope or course of that trade or business. The word ‘trade’ is capable of including any handicraft and in that sense it may seem to lack the element of systematic practice or holding out which the idea of openly conducting a distinct or independent trade or business and seeking custom implies. But a consideration of the policy of the provision as well as of its text appears to me to show that the distinction it seeks to draw is between on the one hand an independent contractor whose relation with the principal is special or particular either because it is outside the course of the general business of the contractor or the general practice of his trade or because he has no such general business or is not a general practitioner of his trade, and on the other hand an independent contractor who performs work successively or perhaps concurrently for his customers or others in the course of a definite trade or business carried on systematically or who holds himself out as ready to do so.”
It is clear, in my opinion, that the Arbitrator had concluded that Mr Geary had a “special or particular” relationship with the appellant in the sense intended by Dixon J in the passage cited above. Such conclusion had been reached having regard to all the evidence recorded by the Arbitrator including the evidence concerning a loss suffered by the partnership in 2010. That conclusion was open to the Arbitrator and her reasoning is clear. No error under this first ground has been made out.
Ground two
This ground suggests error of the Arbitrator in failing to provide any or any sufficient reasons for her decision. That such a duty to provide sufficient reasons exists is clear (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (per McHugh JA at 279)).
The submissions made in support of this ground appear to be a challenge to the Arbitrator’s finding that Mr Geary was at relevant times a “deemed worker” in the employ of the appellant. The authorities cited, which include Scerri, Turner v Stewardson [1961] WCR 176, and Djuric v Kia Ceilings Pty Ltd [2011] NSWCA 34, are each concerned with the proper application of the provisions of cl 2 to the proven facts. The argument as advanced has little to do with any suggested failure to give reasons, and is more an attack upon the Arbitrator’s finding that Mr Geary at the date of injury was not regularly carrying on a trade or business in his own name or a business name. That finding, as observed by the Arbitrator at [32] of her Reasons, led inevitably to the conclusion that “the work [Mr Geary] was undertaking on [the date of injury] was not incidental to a trade or business regularly carried on by him”.
The only argument raised which appears to relate to an apparent failure to give sufficient reasons appears at [9] of submissions where it is suggested that the Arbitrator’s finding that Mr Geary was a “deemed worker” was made “without considering the totality of the evidence, in particular, the date [Mr Geary] re-joined the appellant; the terms of the document entitled Terms of Engagement, and the financial records [demonstrating a loss in 2010]”.
No argument is advanced concerning the relevance of the date Mr Geary “rejoined” the appellant, and that matter may thus be disregarded. I have earlier addressed the question concerning the Arbitrator’s reasoning relevant to the “financial records” when dealing with the first ground of appeal. No persuasive argument has been advanced that the Arbitrator’s treatment of that evidence constitutes a failure to provide sufficient reasons for her decision.
With respect to the complaint that the Arbitrator had failed to consider the document entitled Terms of Engagement it is clear, in my opinion, that the Arbitrator has considered that evidence and, for the reasons expressed at [18] of Reasons, has determined that “little, if any weight, can be attached to this document”. The Arbitrator was there repeating that observation made by her during submissions concerning the admission of that document (at T7). Both counsel, in the course of submissions, acknowledged the indication given by the Arbitrator as to her likely evaluation of that evidence. The Arbitrator’s reasons for concluding as she did are plainly stated and, in my view, were such as to readily lead her to the conclusion reached. It is not, therefore, surprising that no further reference was made to that document in the course of the Arbitrator’s reasoning.
As earlier expressed I am of the opinion that the Arbitrator’s conclusions had been reached following a consideration of all the evidence. That evidence had been evaluated following an expression of sufficient reasons for either acceptance or rejection. This ground has not been made out and must be rejected.
Ground three
This ground challenges the Arbitrator’s factual conclusion that Mr Geary “was a deemed worker within cl 2”. Whilst no additional submissions have been advanced in support of this ground, reliance is placed upon argument advanced concerning the earlier two grounds.
I have addressed those arguments above, each of which have been rejected. In reaching her conclusion the Arbitrator was guided by the following succinct statement of those facts which are to be proven to establish entitlement to rely upon the terms of cl 2 made by Bainton AJA in Scerri (at 399) being:
“1. that he was party to a contract with the respondent to perform work;
2. that work exceeds $10 in value;
3. that the work is not work incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name; and
4. that the applicant has neither sublet the contract nor employed workers in the performance of it.”
The Arbitrator correctly found that there was no dispute concerning the matters enumerated in [1], [2] and [4] of his Honour’s summary. The appellant has failed to establish error concerning the Arbitrator’s findings as to matters noted at [3]. This ground must be rejected.
For the reasons stated the appeal fails and must be dismissed. The Arbitrator’s findings, orders and determinations should be confirmed.
DECISION
The Arbitrator’s findings, orders and determinations recorded in Certificate of Determination dated 28 March 2012 are confirmed.
COSTS
The appellant is to pay Mr Geary’s costs of the appeal.
Kevin O'Grady
Acting President
6 July 2012
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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