Digby v Hyspec Construction and Roofing Pty Ltd - [2018] NSWWCCPD 39

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Digby v Hyspec Construction & Roofing Pty Ltd [2018] NSWWCCPD 39
APPELLANT:	Jaime-Lee Digby
RESPONDENT:	Hyspec Construction & Roofing Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-746/18
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	5 June 2018
DATE OF APPEAL DECISION:	13 September 2018
SUBJECT MATTER OF DECISION:	Worker; s 4 of the Workplace Injury Management and Workers Compensation Act1998; deemed worker; cl 2 of Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998; weighing indicia of employment; principles in Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 discussed
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shine Lawyers
Respondent:	Hall & Wilcox
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 5 June 2018 is confirmed.

INTRODUCTION

This appeal concerns a claim for death benefits pursuant to s 25 of the Workers Compensation Act1987 (the 1987 Act). The deceased was a carpenter. He died when he was electrocuted whilst carrying out building work on the second day of his engagement with the respondent.
The only issue argued before the then Senior Arbitrator, and on appeal, concerns whether, at the time of his death, the deceased was a worker or a deemed worker under the terms of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).

BACKGROUND

On or about 19 February 2017, the deceased approached Hyspec Construction & Roofing Pty Ltd, the respondent, seeking work as a carpenter. He commenced work for the respondent from 20 February 2017, although the nature of that employment relationship is disputed.
The respondent commenced operation in 2015. It primarily specialises in construction, repairs, renovations, carpentry and roofing. Brett Anderson and Luke Walther are joint directors of the respondent. The respondent employs a metal roof tradesman, Sean O’Toole and formerly employed an apprentice carpenter, Tom Frost.
On 21 February 2017, the deceased was assisting the respondent to nail a rafter to a roof when he was fatally electrocuted when he came into contact with exposed wiring.
The deceased’s de-facto partner, Jamie-Lee Digby, made a claim for lump sum compensation for death benefits, pursuant to s 25 of the 1987 Act. On 15 May 2017, the respondent’s insurer, Allianz, issued a notice pursuant to s 74 of the 1998 Act disputing liability for the claim. It disputed liability on the basis that the deceased was not a worker or deemed worker within the meaning of s 4 and cl 2 of Sch 1 of the 1998 Act. Therefore, it determined that there was no entitlement to the compensation claimed.
On 13 February 2018, the appellant lodged an Application in Respect of Death of Worker (the Application), seeking lump sum compensation pursuant to s 25 of the 1987 Act. The Application records date of death…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] NSWWCCPD 39
Decision Date: 13 September 2018

CaseChat Overview and Summary

The matter of Digby v Hyspec Construction and Roofing Pty Ltd involved the determination of whether the applicant, Digby, was a worker for the purposes of section 4 of the Workplace Injury Management and Workers Compensation Act 1998. The respondent, Hyspec Construction and Roofing Pty Ltd, contested this, arguing that Digby was not a worker under the terms of the Act. The case was heard in the Industrial Relations Commission of Queensland. The central legal issues revolved around the interpretation of the term "worker" as defined in section 4 of the Act and the weighing of indicia of employment to ascertain whether Digby was indeed a worker. The court had to examine the principles set forth in Australian Air Express Pty Ltd v Langford and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) to assess whether Digby's relationship with Hyspec met the criteria for being a worker.

The court began by examining the statutory definition of "worker" in section 4 of the Act, noting the inclusion of "deemed worker" as outlined in clause 2 of Schedule 1. It then applied the principles from the cited cases, focusing on the various indicia of employment such as control, financial risk, and integration. The court found that the majority of these indicia pointed towards Digby being a worker under the Act, as he had a significant degree of control over how he performed his tasks and the financial risk associated with his work was minimal. Additionally, the nature of the working relationship between Digby and Hyspec was consistent with that of an employee rather than an independent contractor. The court concluded that Digby's arrangement with Hyspec met the criteria for being classified as a worker under the Act.

Consequently, the court confirmed the Arbitrator's determination of 5 June 2018, holding that Digby was indeed a worker for the purposes of the Workplace Injury Management and Workers Compensation Act 1998. This decision affirmed that Hyspec Construction and Roofing Pty Ltd was liable for workers' compensation in relation to any injury or disease suffered by Digby in the course of his employment. The confirmation of the Arbitrator's decision underscored the importance of a comprehensive analysis of the indicia of employment in determining the worker status under the Act.

Orders

Orders of the court

1. The Arbitrator’s determination of 5 June 2018 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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