Djukic v Tactical Cargo Solutions Pty Ltd (under external administration)

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Djukic v Tactical Cargo Solutions Pty Ltd (under external administration) [2010] NSWWCCPD 123
APPELLANT:		Slobodan Djukic
RESPONDENT:		Tactical Cargo Solutions Pty Ltd (under external administration)
INSURER:		GIO General Limited
FILE NUMBER:		A1-3303/10
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:		16 August 2010
DATE OF APPEAL DECISION:		22 November 2010
SUBJECT MATTER OF DECISION:		Section 4 of the Workplace Injury Management and Workers Compensation Act 1998, definition of worker; Schedule 1 clause 2 of the Workplace Injury Management and Workers Compensation Act 1998, deemed worker
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:		M D Di Re Solicitor & Attorney
Respondent:		Hicksons
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 16 August 2010 is confirmed.

BACKGROUND TO THE APPEAL

1. Mr Slobodan Djukic, who is 51 years of age, is an electrician by trade. He completed his trade education in the former Yugoslavia and was there employed as an electrical mechanic with a state owned company. Following the civil unrest in that region Mr Djukic relocated to Subotica, Serbia where he remained until 1996. Mr Djukic arrived in this country in February 1996 as a refugee in the company of his wife and daughter.

2. In 1997 Mr Djukic’s qualifications were, following completion by him of a refresher course at Granville College TAFE, recognised by the authorities in this State. He obtained an electrician’s license in 1998 and commenced work with an organisation known as Stowe Australia.

3. In May 2000, whilst employed by Stowe Australia, Mr Djukic established a business known as Hoxton Communications, which business provided the services of an electrician. He worked in that business after his normal hours of work and on weekends as a sole trader.

4. The position held by Mr Djukic with Stowe Australia was made redundant in March 2003 following which he continued conducting his own business as an electrician.

5. In February 2007 Mr Djukic entered into an arrangement with Tactical Cargo Solutions Pty Limited (the respondent) concerning the performance of electrical work at the respondent’s premises at Botany. The detail of that arrangement and its duration is addressed hereunder. In February 2008 agreement was reached between Mr Djukic and the respondent concerning the performance of electrical work at the respondent’s new premises at Milperra. The terms of that agreement are addressed hereunder. That work commenced on 25 February 2008 and Mr Djukic, from time to time, forwarded an invoice to the respondent in respect of work done.

6. On Saturday 10 March 2008 Mr Djukic was injured whilst working at the respondent’s premises when he fell from a ladder. He was transported to hospital and has since undergone medical treatment for his injuries including surgery to his cervical spine.

7. In August 2008 Mr Djukic made a claim against the respondent for workers compensation benefits. That claim was declined on behalf of the respondent by its insurer. A notice of that decision was given…