Dobson v Contower and Communications Pty Ltd

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION

Case No. J12935198

RICHARD DOBSON	Plaintiff
v
CONTOWER & COMMUNICATIONS PTY LTD	Defendant

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MAGISTRATE:	J GRAINGER
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 August 2019
DATE OF DECISION:	24 October 2019
CASE MAY BE CITED AS:	Dobson v Contower & Communications Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VMC011

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CATCHWORDS - Workers Compensation – Rejection of Claim – “Worker” – Whether the Plaintiff was an employee of the Defendant – Workplace Injury Rehabilitation and Compensation Act 2013 s.3 “worker”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Bailey	Arnold Thomas & Becker Solicitors
For the Defendant	Mr Scully	Russell Kennedy Lawyers

HER HONOUR:

BACKGROUND

The plaintiff, Richard Dobson (Mr Dobson) has made a claim for compensation against the defendant, Contower & Communications Pty Ltd (Contower) under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act).

In summary, Mr Dobson claims that:

(a) on around 23 January 2018 he was employed by Contower, a company that was constructing wireless towers for the National Broadband Network (NBN), as an excavator and concreter,

(b) at all relevant times he was a worker as defined by section 3 of the Act,

(c) on 7 April 2018, he suffered injuries arising out of or in the course of his employment with Contower when he attempted to lift a heavy steel reinforcing rod,

(d) his employment was a significant contributing factor to his sustaining his injuries,

(e) he is incapacitated for his pre-injury employment,

(f) this incapacity is, and has been at all relevant times, materially contributed to by his injuries, and

(g) he is entitled to weekly payments of compensation and payment or reimbursement of reasonable medical and like expenses from 7 April 2018 and ongoing.

Mr Dobson made a WorkCover claim on 17 April 2018. Contower’s authorised insurer rejected the claim on the basis that Mr Dobson was not a worker under the Act.

Mr Dobson issued proceedings in this court on 5 November 2018.

Whilst Contower denies in its defence dated 8 January 2019 all of Mr Dobson’s claims as set out in paragraph 2 above, Contower conceded at the beginning of the hearing on 9 August 2019 that if I was satisfied that Mr Dobson was a worker as defined by the Act, Mr Dobson was entitled to weekly payments of compensation and payment or reimbursement of reasonable medical and like expenses from 7 April 2018 and ongoing.

DEFINITION OF A WORKER UNDER THE ACT

Section 3 of the Act defines a worker as 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 the Act.

Mr Dobson contended that he performed work for Contower at its direction, instruction or request under a contract of employment or, in the alternative, he is deemed to be a worker by the operation of clause 9 of schedule one of the Act, which provides:
9 Contractors
1)    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.

2) 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.

3) The Authority may make guidelines as to the circumstances in which it may determine that a contractor, in providing services to a principal, is carrying on an independent trade or business.

4) The Authority must ensure that guidelines made under subclause (3) are published and are generally available.

5) If subclause (1) applies -

a) the individual is deemed to be a worker in respect of the relevant period, and

b) the principal is deemed to be the employer of the individual in respect of the relevant period, and

c) the total amount paid or payable by the principal to the contractor under the contractual arrangement, less—

i) the applicable prescribed percentage (if any), or

ii) if there is no applicable prescribed percentage, the part of that total amount not attributable to the provision of labour -

iii) is deemed to be remuneration.

6) In this clause -

"principal" includes a group, or one or more members of a group, within the meaning of section 431
"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.

FACTORS TO BE CONSIDER WHEN DECIDING WHETHER AN INDIVIDUAL IS AN EMPLOYEE OR CONTRACTOR

Whether an individual is an employee or contractor may be determined by a number of factors. These include:

(a) the degree of control which the person who engages another to perform work can exercise over the person who had been engaged,

(b) whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services),

(c) whether or not the person engaged can set their own hours of work,

(d) the method of payment (and, in particular, whether payment is determined by hours of service or output or production),

(e) whether or not income tax is deducted and holiday pay or long service leave or superannuation is paid,

(f) whether or not the person engaged employs employees and/or conducts his or her business in partnership

(g) whether or not there is a power to delegate (send someone else to perform the work),

(h) whether or not the person engaged considered the relationship as one of independent contractor.[1]

[1]Elazac Pty Ltd v Sherriff [2011] VSCA 405 at para 30.

This list is not exhaustive and whether a worker is an employee or contractor may be determined by a factor other than those listed above.[2]
[2] Abdalla v Viewdaze Pty Ltd t/a Malta Travel (2003) 122 IR 215.

10. The totality of the relationship between the parties must be considered.[3]

[3]Elazac Pty Ltd v Sherriff [2011] VSCA 405 at para 30.

11. In addition, there are no rules as to the weighting given to the factors in the decision making process.

MR DOBSON’S EVIDENCE

12. Mr Dobson’s evidence, including the evidence he gave during cross-examination and re-examination, can be summarised as follows.

Mr Dobson’s qualifications

13. Mr Dobson, who is 57 years old, is a qualified concreter with a certificate III from the Kangan Institute. He is also qualified to operate excavators, bobcats, front end loaders, bulldozers, cranes over 100 tonnes and tower cranes. He is qualified as an occupational health and safety manager/supervisor and has an occupational health & safety construction card.

Mr Dobson’s work history

14. Mr Dobson worked as a concrete and excavator for over 30 years on commercial and residential sites. For most of this time, he has been self-employed. Before working for Contower, Mr Dodson did not have any experience in the telecommunications industry and did not have any experience with electrics, earthing or welding.

15. Mr Dobson obtained an ABN for ‘Dobson’s Cartage’ in around 1991. Mr Dobson was a sole trader, registered for GST and did his own BAS statements and income tax. He denied that his former partner’s daughter, Zoe Lucas worked for him. Mr Dobson said that Ms Lucas only helped him do things on the computer as a favour, which he did not pay her for. Ms Lucas sometimes signed emails if she sent them and sometimes helped him with getting his payments from his previous employers.

16. Mr Dobson obtained a new ABN in 2017 and had a sign advertising his concreting services on his trailer. However, he did not receive any calls in the 18 months before he started working for Contower.

17. In 2017, Mr Dobson worked for a few employers, including James Agius Constructions Pty Ltd (James Agius) and MAP Concreting Pty Ltd (MAP), but they did not have any work for him after Christmas. He worked as an independent contractor for MAP and was paid on an hourly rate after he had submitted his invoice. Mr Dobson also worked as an independent contractor for James Agis. He issued James Agis with invoices, use his own car and hand tools and used their equipment (larger tools) and materials.

The discussions between Mr Dobson and Mr Oates on 22 January 2018

18. On Sunday 21 January 2018, Mr Dobson met Darren Oates, who is the director of Contower, at a service station. Mr Dobson and Mr Oates chatted about work and Mr Oates suggested that Mr Dobson come and see him about an employment opportunity because Mr Dobson had everything Mr Oates needed skills wise such as being a qualified concreter and being able to operate an excavator.

19. The following day, Mr Dobson met Mr Oates and Shane Coxhill at Mr Oates’ home, where they discussed Mr Dobson joining Mr Oates’ team. Mr Oates told Mr Dobson that his business was constructing wireless towers for the NBN, that they needed Mr Dobson’s full attention to obtain their goals, that he would need to work solely for them seven days a week and that he would need to live away from home at times. Mr Oates told Mr Dobson that he would be paid $50 an hour, a travel allowance if he travelled over 50 or 60 km and a living away from home allowance. Mr Oates told Mr Dobson that he would be given as much work as he wanted for as long as he wanted and that after the business had finished constructing the towers, the business would start an expansion program with NBN which would be under a five year contract. Mr Oates also told him that he would get a company car in the future.

20. Mr Dobson accepted Contower’s job offer that day and some tools were dropped off at his home that evening. Mr Dobson was also asked to collect a camera that he needed to take photos each day.

The work performed by Mr Dobson for Contower – the first two weeks

21. Mr Dobson started work for Contower the following day, which was Tuesday 23 January 2018. This job was in the western suburbs, followed by a job at a site in Bellbrae.[4] Initially Mr Dobson was told this job would take one day but it took three days and Mr Dobson stayed in Anglesea or Bellbrae for three nights. Mr Dobson was also told to collect some materials from another site on the way and to operate a bobcat at another site at Balliang East in the first few days. He also worked at sites at Nar Nar Goon the following two weeks, then at Marcus Hill, Bellbrae and Little River the week after. He continued to work at Nar Nar Goon, Marcus Hill and Little River, and then later at sites at Strathbogie and Moorooduc.

[4] Mr Dobson’s evidence was that his first job was at Anglesea, but it is clear from his invoices and the evidence of Mr Burke and Mr Oates that the location of his first work site was Bellbrae, which is close to Anglesea.

22. Mr Dobson explained that initially he was just told about the Bellbrae site and then was told the locations of the other sites as the jobs came up. Mr Dobson’s evidence was that he was working continuously, and that Mr Oates or Mr Coxhill would call him in the morning to tell him where to go and give him instructions.

23. Mr Dobson also had a discussion with Shane Coxhill in relation to insurance and superannuation. Mr Coxhill told Mr Dobson that Contower wanted him to get started and that he would be covered by Contower’s insurance until he organised his own. However, Mr Dobson did not have time to arrange his own insurance before the accident on 6 April 2018 because he was working for Contower six or seven days every week. Mr Dobson also provided details of his superannuation account to Contower but he could not say when this was or who details were given to.

24. Mr Dobson used his own car and trailer to travel to and transport materials to the various sites because the company car Mr Oates mentioned at the meeting on 22 January 2018 never eventuated. Mr Dobson painted his trailer white so that he could keep it on the various sites.

25. Mr Dobson also used his own sundry hand tools. Contower provided Mr Dobson with the formwork, cables and pipes. Adrian Burke, Contower’s procurement manager bought the materials they needed.

26. Mr Dobson received training in relation to Contower’s paperwork, including induction forms, safe work method statements and site access forms from other Contower employees or contractors who were doing concreting for Contower. These employees or contractors explained what paperwork Mr Dobson had to fill out every morning.

27. Mr Dobson’s duties included filling out forms, helping with and supervising the construction work including marking out the job, digging the hole with the excavator, completing the form work/steel fixing, putting up fences, installing gates, constructing driveway access and landscaping. Mr Dobson would also help with other work if he had no concreting work to do. Each tower took four to six weeks to complete, depending on the availability of parts.

28. Mr Dobson was given a plan for each tower that was being erected but, in the beginning, he received no other training or guidance. Mr Dobson read the plan to determine where the placement points were. Mr Dobson described Contower’s systems as being ‘different to what [he was] used to’, particularly when the site was in the middle of the bush, and ‘a little beyond’ his experience. This meant Mr Dobson had to learn how to do tasks from other people at the site. Sometimes he asked for help from Mr Oates or Mr Coxhill if there was no one on site to show him how to do something. In particular, Mr Coxhill told him how to set out a job. At other times, someone from Vision Stream, the company that Contower was constructing the towers for, would show him how to do something. Mr Dobson’s work was always checked to make sure it complied with Contower and Vision Stream’s standards. However, Mr Dobson was not told how to do the concreting work and was given the responsibility to do this work as he saw fit.

29. Initially, he started work between 6.30am and 7am. Mr Dobson could not decide what time he was going to start because he had to be at the safety meeting that was held every morning before anyone could start work. Nor could he decide not to work on a particular day because he had other plans. Mr Dobson had to turn up every day and take the work seriously. There was no set finish time and Mr Dobson was not paid overtime.

30. Mr Dobson provided Contower with weekly invoices and was paid weekly. The invoices set out which sites he had worked at, the number of hours he had worked and where and the number of days he had spent away from home. Mr Dobson paid his own tax and the invoices were inclusive of GST, which meant that Mr Dobson had to declare the invoices in his BAS statements. Ms Lucas would have prepared the invoices for Mr Dobson. Mr Dobson was not ever paid annual leave or sick leave.

The work performed by Mr Dobson for Contower after the first two weeks

31. After two weeks, Mr Dobson was made a supervisor by Shane Coxhill. Mr Dobson was told by Mr Coxhill that Contower wanted to make a new team for him to supervise and Mr Coxhill asked him to supervise the existing team in the meantime. Mr Dobson received a $5.00 per hour pay rise when he was made supervisor.

32. Mostly Mr Dobson supervised Dale Batton, who is a labourer. However, there were other concreters, electricians, engineers and unskilled labourers at each site, but not always the same people. Mr Dobson did not know whether these people worked for Contower or Vision Stream and whether they were employees or contractors. Mr Dobson supervised up to six people at a worksite and each day it was a surprise as to who would show up because Contower had trouble retaining people. Mr Dobson made sure everyone signed on before they started work.

33. After he was made a supervisor, Mr Dobson had to learn about Contower’s paperwork, systems and how they worked, and NBN systems and procedures. There was a large amount of paperwork to be completed such as forms in relation to site access, work procedures and safety procedures. Some of the forms were Contower’s forms but most of the forms were Vision Stream’s forms. Mr Dobson started work at 6am after he was made a supervisor so that he could fill in the various forms and get the other workers to sign the forms at the start of each day. He did this ‘off his own bat’ to start the paperwork early.

34. Mr Dobson also signed forms on behalf of Contower and was authorised to accept deliveries on behalf of Contower. He was also Contower’s representative on site and liaised with people from Vision Stream who came to the site once a week or fortnight, as Mr Oates and Mr Coxhill only turned up on site every now and again if there was a problem. Mr Dobson also liaised with Vision Stream’s area manager who came to the Little River worksite every day, because Vision Stream were using that site as a model for good safety procedures and cleanliness.

35. Mr Dobson said when he had previously worked on construction sites, all he had to do was sign on, show them his ‘ticket’ and establish that he was competent for the job. He had not had to supervise people before.

36. Contower gave Mr Dobson a laser to check levels and an iPad when he was made a supervisor. Mr Dobson kept the laser and iPad with him at all times.

37. Mr Dobson used the iPad to take photos of the construction work. He took the photos after each step in the construction was completed. The photos had to be taken in a way that complied with the ‘Golden Photo Book’. The Golden Photo Book was a Vision Stream document. Mr Dobson then sent the photos to Contower, so that they could check that each step had been completed in accordance with Vision Stream’s requirements before the photos were forwarded to Vision Stream. Mr Dobson also made daily reports to Mr Oates or Mr Coxhill to let them know what was going on and to discuss whether he needed anything for the next day and if he needed more workers.

38. Mr Oates also gave him a Bunnings card to buy any necessary hardware when Mr Burke was not available. Mr Dobson did not have to ask permission from anyone before he bought necessary materials.

39. Around one month after Mr Dobson started work for Contower,[5] he completed a first aid course at Contower’s request so that he could be the on-site first aid officer. Contower paid for the course.

[5]On 6 February 2018 according to Mr Dobson’s invoice at Court Book page 142.

40. Mr Dobson worked on many different sites. Each time he was sent to a new site, he was given a new set of plans and a ‘start up’ book. He also used the iPad and Golden Photo Book at every site.

41. Once one job was finished, he was sent to the next job. Usually Mr Oates or Mr Coxhill would tell him where he was working at the end of a working day or early the next morning. He was often called by Mr Oates or Mr Coxhill during the day and directed to go to another worksite where he was needed. On some days, he was directed to go back and forth between two sites. Mr Dobson did not have any say in relation to which sites he was to work at.

42. Mr Dobson did not have his own employees and was not able to delegate any work to other people. However, on 5 April 2018, his friend Scott Persson worked with him for one day. Mr Dobson arranged for Mr Persson to work with him because Contower was short of workers and he knew Mr Persson was a ‘good hand’. Mr Dobson asked Mr Oates or Mr Coxhill if he could ask Mr Persson to do the work. They asked about his qualifications and agreed he could do the work. Contower paid Mr Persson for the day’s work.

43. Mr Dobson did not work for anyone else whilst he was working for Contower except for perhaps a small Saturday morning job. Mr Dobson worked for Contower full-time and did not have any time to work for anyone else.

44. Mr Dobson believed he was an employee of Contower.

45. Mr Dobson agreed during cross examination that the invoices he provided to Contower show that:

(a) He worked just over 40 days between 23 January 2018 and 7 April 2018.

(b) The invoices do not support his evidence that he was working full time during this period.

46. However, Mr Dobson maintained that he believed that he was required to work full time during this period.

47. Mr Dobson was injured on 6 April 2018 and the following day was the last day he worked for Contower. Mr Burke came to his home to pick up the tools owned by Contower that day.

48. In relation to the report from the Matter of Fact investigator, Mr Dobson said that the report contained some things he did not say. For example, the report did not accurately describe the work he performed or set out the tower construction methods. Mr Dobson agreed he was paid a total of $21,536.00 by Contower between 23 January 2018 and 7 April 2018, as set out in the report. Mr Dobson also believed he might have told the investigator that Contower had promised to give him a work car and that this may have been left out of the investigator’s report.

CONTOWER’S EVIDENCE

49. Adrian Burke and Darren Oates gave evidence on behalf of Contower.

ADRIAN BURKE

50. The following is a summary of Mr Burke’s evidence including the evidence he gave during cross examination.

Mr Burke’s role

51. Mr Burke’s role with Contower was to procure contractors and to make sure the necessary equipment and materials were on-site. Contower provided materials such as concrete and steel for the cage and other formwork. Mr Burke would also arrange for the concrete to be poured once the excavation work had been done by the contractors.

52. The contractors had various roles including excavating foundations, doing concrete work and doing rigging work. All of the contractors had contracts. None of them were employees.

53. Mr Burke was not a director of Contower, did not pay any wages and had no role in relation to accounts.

54. Contower had contracts to construct towers on eight to ten sites across Victoria. It usually took around eight weeks to construct a tower. Mr Burke needed to procure equipment and materials because Contower had ongoing jobs and ongoing contracts. Mr Burke was able to obtain discounts for bulk buying.

55. Mr Burke would visit sites if equipment or materials were missing. When the concreting work was being done, Mr Burke would arrange for three contractors to be on site.

Mr Burke’s dealings with Mr Dobson

56. In January 2018, Contower did not know how long the tower construction work was going to last. Contower worked on 15 sites in 2017 and 2018 but has not been given any work by Vision Stream since Christmas 2018. Contower did not have five years’ worth of work in January 2018.

57. In January 2018, Mr Burke met Mr Dobson either on-site or in Contower’s office in Otway near where he lived. Mr Dobson had ‘put up his hand’ to do contract work and came to the office to pick up the plans for the tower. He was not at the original meeting between Mr Dobson and Mr Oates and was not privy to any discussions between them in relation to employment arrangements for the work Mr Dobson would perform. Mr Burke did not discuss pay with Mr Dobson because this is not his area.

58. The sites Contower was working on were opened up by Vision Stream. If Contower had a site opening up, Mr Burke would contact Mr Dobson to see if he was available and if he was, he would instruct Mr Dobson where he should go and give Mr Dobson the plans to look at. Whilst he had other contractors who could do the work, he asked Mr Dobson first because he was the closest and available. Sometimes Mr Dobson called Mr Burke to see when a site was opening up. This was usually a couple of days before the job started. Mr Dobson never said he was not available but sometimes said he had some things to do. Sometimes the start date would be delayed and he would call Mr Dobson to let him know. Mr Dobson was reliable.

59. Mr Burke recalled that Mr Dobson had worked on four sites, being Bellbrae, Nar Nar Goon, Little River and Strathbogie. Mr Dobson spent a week or two at each site, depending on the size and complexity of the site (in relation to how easy it was to access and excavate) and the stage that the construction was up to.

60. Mr Dobson was expected to be at the worksite between 6.30am and 7.00am but the start time was left up to the contractors.

61. Sometimes Mr Oates or Mr Coxhill would direct Mr Dobson to go to a different worksite. Mr Dobson followed their instructions.

62. Initially, other Contower contractors showed Mr Dobson how to do the work and he received training from them.

63. Mr Dobson looked after the excavation work. This meant he had to make sure that the hole was the right size and that the steelwork was placed in the hole correctly before the concreting work was done. Whilst Mr Dobson’s main expertise was as a concreter, he also did some form work/steelwork and was sometimes asked to help another contractor with the job if they were behind due to delays. Mr Dobson was not involved in any of the rigging work. It usually took around a week to complete the concreting but sometimes it took two or three weeks. The concreting work at Bellbrae was very quick.

64. Mr Dobson supplied his own tools, such as hammers and drills. Contower supplied Mr Dobson with the excavator and any tools that were site specific.

65. The work done by the contractors was inspected a couple of times along the way. An engineer inspected the excavation work, someone else inspected the steelwork and the concreting work was tested. Vision Stream also had a project manager who inspected sites.

The work performed by Mr Dobson for Contower after the first two weeks

66. After two weeks, Mr Dobson was made a supervisor and ran the sites as the head contractor. Mr Dobson was supervising other contractors appointed by Contower in this role. Some of these contractors did not have the necessary skills and were working under Mr Dobson’s guidance because Mr Dobson had to make sure the work was done properly.

67. During cross examination, Mr Burke agreed that the concreting work was very specific, that the contractors needed specific skills and had to do work in a particular way to comply with Vision Stream’s requirements. This included taking photos of the work that had been performed numerous times each day, such as taking photos of the site with pegs and photos of the excavation. Mr Burke also agreed that some days over 100 photos were taken and that the Golden Photo book set out how the site should look, which meant that Mr Dobson had to perform his work in a particular way.

68. Mr Burke denied that the oversight of the work being performed was considerable. Mr Burke said that the oversight was ‘no more than normal’ and no more than ‘what it’s ever been’.

69. Mr Dobson was told by Contower when the concrete was to be poured and then he had to get the site ready by that date. Sometimes Mr Dobson would call him if he finished the concreting work early. It was up to Mr Dobson to decide how the work was progressing and it was his responsibility to get the work done based on the plans and the Golden Photo Book. The oversight in relation to the photos that had to be taken in accordance with the Golden Photo Book was due to Vision Stream’s requirements, not Contower’s.

70. Mr Dobson kept Mr Burke updated in relation to which part of the process he was up to and he could not go to whichever site he wanted and do whatever he liked. Mr Dobson had to meet other contractors at the site at particular times, such as surveyors, or people from Vision Stream in relation to the site handover. Mr Burke was conscious of Mr Dobson’s movements at all times. When Mr Dobson was not doing concreting work, he sometimes did other labouring work.

71. Once the job was done, Mr Dobson would ask him when another site was coming up. Contower was very busy at the time so there was usually not much of a delay between one job being done and another starting.

72. Mr Dobson was a contractor. He invoiced Contower weekly or fortnightly or at the end of a job. Mr Dobson was paid hourly. If Mr Dobson had no work, he would do other work in between jobs and then make himself available for the next job.

73. Whilst Mr Dobson was the ‘main’ or ‘head’ contractor on each job, he had nothing to do with how the site was run. Vision Stream provided the plans for the construction of the towers, which were given to Mr Dobson by Mr Oates or Mr Burke. Mr Dobson’s job was to look at the plans to see how the job was to be done. Mr Dobson was not given any instructions but had to follow Contower’s procedures. Mr Dobson relied on his concreting skills, which included excavating and formwork, to do the job.

74. Contower had another head contractor during the time Mr Dobson worked for them who worked on other jobs and who sometimes came to Melbourne.

75. Vision Stream had forms on-site that the contractors had to sign and Mr Dobson filled in some Vision Stream forms on behalf of Contower. The forms had to be passed by Vision Stream and the contractors had to be inducted. Contower also had forms on-site. Mr Dobson had to put his own information on the form. When the rigging crew arrived, they had to fill out their own forms.

76. Contower supplied Mr Dobson with a laser level. Mr Dobson was supposed to give the laser level back between jobs if it was required on another job or there was going to be two weeks or a month between jobs, but he could keep it if it looked like he was going to start a new job, because this was convenient. Mr Burke could not recall if Mr Dobson was ever asked to give back the laser level between 23 January 2018 and 7 April 2018. This was also the case in relation to the iPad that Contower gave Mr Dobson. Contower gave Mr Dobson the laser level and the iPad because they were not cheap items.

77. If a contractor needed any materials or equipment, Mr Burke would organise them. This was not Mr Dobson’s job. Mr Dobson had a Bunnings card in Contower’s name because he was a head contractor. Mr Dobson could buy something small if he needed it and then give the invoice to Contower for reimbursement if there was no Bunnings store close by. Mr Dobson was obliged to look after the Bunnings card and give it back if there was a long time between one job finishing and another job starting. Contower cancelled Mr Dobson’s card after he was injured.

78. As the head contractor, Mr Dobson signed for deliveries but other people could also accept deliveries on behalf of Contower. Mr Dobson was Contower’s onsite was representative.

79. Mr Dobson arranged for someone to give him a hand for a couple of days. This person was working under Mr Dobson’s instructions. This person invoiced Contower as agreed between him and Mr Dobson.

80. Around the time of Mr Dobson’s injury, Mr Burke formed the view that Mr Dobson’s work at the Moorooduc site was defective. Mr Dobson was unable to remedy the defects because of his injury. Another contractor did the remedial work. As an independent contractor, Mr Dobson had to cover the cost of the remedial work. Mr Dobson was not asked to pay to remedy the work. It was not Mr Burke’s call to ask him to pay to remedy the work

DARREN OATES

81. The following is a summary of Mr Oates’ evidence including the evidence he gave during cross-examination.

82. Mr Oates is the director and owner of Contower. He is also a director of Oates Roofing Pty Ltd. He presently spends 90% of his time working for Oates Roofing.

83. Contower has been building wireless communication towers since 2013. Its contracts are with Vision Stream and Contower has to put in a tender for the construction of each individual tower.

The discussions between Mr Dobson and Mr Oates on 22 January 2018

84. Mr Oates agreed with Mr Dobson’s evidence that they met at a service station in January 2018, started talking about work, that Mr Oates provided Mr Dobson with his contact details and that they met again at his home a day or two later. Adrian Burke or Shane Coxhill were also at this meeting. Mr Coxhill was an IT specialist. He was not a director or owner of Contower.

85. During this meeting, Mr Dobson told him that he had experience in construction and concreting but not in telecommunications. Mr Oates would have told him that Contower had work coming up and that they would give him an opportunity because he came across as knowing his stuff. Mr Oates explained what Mr Dobson had to do, how things worked and that there would be some regional work.

86. Mr Oates agreed to pay Mr Dobson $50 and $55 an hour based on his experience. Mr Oates also told Mr Dobson that he would be able to charge for travel but would not receive any other allowances. Mr Oates told Mr Dobson Contower would not pay him any superannuation or his GST and Mr Dobson did not ask Contower to withhold any income tax for him. As far as Mr Oates knew, Mr Dobson had not given Contower his superannuation details and if he had, his office staff would not have taken them because Contower does not pay its contractors superannuation. Despite this, Mr Oates agreed in cross-examination that he had recently paid one of Contower’s contractors superannuation but only because he did not want to ‘go through grief’ and not because he had to.

87. Mr Oates did not give Mr Dobson any indication as to how long work would be available and denied having told Mr Dobson that Contower had five years’ worth of work. The construction of the towers was due to take two years and whilst there was going to be an expansion project, this had nothing to do with concreting.

88. Mr Oates also denied having told Mr Dobson that he would be covered by Contower’s insurance. Contower’s contractors are required to have their own public liability insurance and income protection insurance. Contower’s officer staff might have checked this with Mr Dobson. Mr Dobson agreed during cross-examination that he had assumed Mr Dobson had his own insurance. He also agreed that it was very important for contractors to have their own insurance, which they did 90% of the time, although they were covered by Contower’s public liability insurance. His evidence was that it was likely that Mr Dobson provided evidence of his insurance to the office staff, although if he could not afford his own insurance, he was covered by Contower’s insurance.[6] Mr Oates also agreed that he would have told Mr Dobson that he was covered by Contower’s insurance but that they preferred him to have his own insurance.

[6] Whilst Mr Oates did not state what type of insurance he was referring to, I infer from his earlier evidence, where he specifically referred to everyone on site being covered by Contower’s public liability insurance that he was also referring to public liability insurance in this instance.

89. Mr Oates described Mr Dobson as being out of work, desperate for work and wanting full-time work. However, he denied that he offered Mr Dobson full-time work. Mr Oates also denied telling Mr Dobson that Contower had lots of work coming up and that he may need to work seven days a week. Mr Oates’ evidence was that he did not know how much work was coming up and that Mr Dobson could have been asked to work up to 7 or 10 days because Contower was required to do the work in a short period of time. The arrangement was that contractors worked when there was work and when there was no work, they didn’t work. Mr Oates agreed he told Mr Dobson that he needed his full attention during the build. Mr Oates could not recall discussing any end date for the work with Mr Dodson.

90. Mr Oates denied telling Mr Dobson that he would get a company car. Mr Oates said that there was not enough work to sustain full time workers. He also said that Mr Dobson could use his own car and trailer to take materials to the various sites.

91. Mr Oates denied that he told Mr Dodson that the standard starting time was 6.30am or 7am.

The work performed by Mr Dobson for Contower

92. Based on what he has previously been told, Mr Dobson started work on 23 January 2018.

93. Mr Dobson’s job was to lay the foundations for the tower and when he finished his work, give the electricians or other contractors a hand, or go home and do other work. If Mr Dobson was working in an isolated area, he did other tasks. Ninety percent of Mr Dobson’s work was concreting and steel fixing.

94. Mr Dobson was given on the job training by other Contower contractors such as Wayne Deacon and John Hawkesworth. However, Mr Oates denied that Mr Dobson’s role was more involved than if he was doing concreting for a driveway or that telecommunications work involved more intricacies. Mr Oates’ evidence was that constructing the tower in accordance with the plans was a ‘simple process’ and ‘pretty standard stuff’ although he agreed it had to be done in a way that reflected the photos in Vision Stream’s Golden Photo Book.

95. Mr Dobson had his own tools including screeds and shovels. Contower provided any tools that the contractors did not have and a fair amount of equipment through Vision Stream and Ericsson. Vision Stream required Contower contractors to have iPads because Contower was paid based on the photos the contractors took. This was a standard requirement in Vision Stream’s contracts, which were the same for every job. Contower also provided contractors with consumables.

96. However, in cross-examination Mr Oates said Mr Dobson turned up without any tools and that iPads were provided to a site for everyone to use and not to a particular person. He also said that if he knew someone was continuing on to do more work for Contower and if he trusted that person, they might hold onto the iPad between jobs. This was despite the fact that iPads were relatively expensive and his evidence was that he was never sure when he would next need a contractor and that a contractor might do their own jobs. Mr Oates’ evidence was that the office staff decided who would have an iPad and that this was not part of his area in the business. If Mr Dobson was not asked to give the iPad back between jobs, this was probably because the office staff had forgotten to chase this up with him.

97. Most contractors had their own laser level but contractors were allowed to use Contower’s tools. Mr Oates could not understand why Mr Dobson would have kept the laser level between jobs because Mr Dobson did not have enough work to justify that.

98. If the contractors needed materials, they could go to Bunnings or a hardware store. Every contractor had a Bunnings card. The Bunnings card was not a credit card but an ID card. The contractors had to show their driver’s licence and the Bunnings card in order to put purchases on Contower’s account and to get a 5% discount. Contower gave the contractors Bunnings cards because they did not expect contractors to pay for materials themselves, particularly if they were working in an isolated area.

99. Mr Dobson was paid an hourly rate after he gave Contower an invoice. Contractors were not paid per line item because there were so many different trades on site.

The only time he communicated with Mr Dobson was to tell him where the next job was. He did not direct Mr Dobson to work anywhere. He would only ask him if he was available to work and if he wasn’t, he would call another contractor on their list. Sometimes Mr Oates told Mr Dobson that Contower had no work for him the following week. Sometimes contractors called him to say that they were doing their own work. Mr Dobson turned down work sometimes. All contractors turned down work sometimes because they had other work to do.

Contower always needed more labourers because they had to meet targets in a short time. Mr Dobson asked permission for his friend to work with him. The office staff would have checked that this person had the correct qualifications and tickets.

However, Mr Oates also denied that Mr Dobson ever worked with only one or two other people. His evidence was that each job needed three to four people and sometimes as many as six people.

Mr Oates agreed that he, Mr Coxhill or Mr Burke would call Mr Dobson and tell him which site to go to and when. He also agreed that they would give directions to Mr Dobson in relation to where he needed to be over the course of the day. If they were short of people at a particular site, they could call Mr Dobson and ask him to leave the site he was at and help out at the other site. Mr Oates would call Mr Dobson once a day to make sure everything was under control and to find out if he needed anything. Mr Burke may have been in contact more often during the day.

Mr Oates was uncertain whether the photos that Mr Dobson took were sent to Contower and Vision Stream or just Vision Stream.

If there was a problem on site, Vision Stream’s field manager would go to the site. Mr Coxhill mostly worked in the office.

The only time that Mr Dobson represented Contower on site was when he worked at the Moorooduc site, shortly before he was injured. There was at least one week between the Strathbogie site finishing and the Moorooduc site starting.

Mr Oates denied that Mr Dobson worked for Contower on an ongoing basis and that he worked for them every week between 23 January 2018 and 7 April 2018. He maintained during cross-examination that Mr Dobson would work on one site then renegotiate a contract to work on another site. His evidence was that Mr Dobson only helped out with other work for Contower after finishing his concreting work if he didn’t have ‘his own work’ to do and that Mr Dobson took ‘lots of time off to do his own stuff’. When it was put to him during cross-examination that Mr Dobson only once said he was unavailable to work because he had to attend a funeral, Mr Oates gave evidence that he could not recall this and that he had no idea what Mr Dobson did in his spare time. However, at no time did Mr Oates tell Mr Dobson he could not say no to Contower’s request that he work for them because Contower couldn’t provide work all the time.

Mr Oates denied that he was happy with Mr Dobson’s work early on.

Whether Mr Dobson was made a supervisor

Mr Oates denied that he discussed the supervisor role with Mr Dobson or that he was made a supervisor. This was because Contower did not have supervisors. He also denied that Mr Dobson received a pay increase for being supervisor. Mr Oates’ evidence was that there was a ‘fair chance’ that Mr Dobson said that he knew what he was doing and was gaining enough experience to justify a pay increase. In re-examination, Mr Oates explained that he was referring to Vision Stream field managers when he was giving evidence about ‘supervisors’. He also gave evidence that Contower appointed some contractors as leading hands to manager builds and that Mr Dobson had ‘stuck up his hand’ to try that. However, he could not mark out a site or set up a site to start a job.

In relation to Mr Burke’s evidence that Mr Dobson was providing guidance to less experienced workers, Mr Oates said that he struggled to understand how that could be the case after working there for two weeks when other guys had been working there for four years.

Mr Oates’ evidence was that all of the contractors were responsible for the site and would offer to do various things. In relation to Mr Burke’s evidence that Mr Dobson was a head contractor, Mr Oates’ evidence was that there were two to six contractors on each site depending on where the construction work was up to and Vision Stream’s requirements. Generally, there were four concreters is on-site, one of which was the head concreter. The head concreter needed to be experienced because Contower would not get paid if the work was not done correctly.

Mr Oates also said that if Mr Dobson had been made a head contractor, he would be ‘bankrupt’ because Mr Dobson could not even set out the site and did not know what he was doing. Mr Oates’ evidence was that Mr Dobson was responsible for the Strathbogie site being shut down after he walked off the site and then he blamed everybody else. Mr Dobson did not get along with the other guys and they did not get along with him. Mr Oates was desperate for workers so gave Mr Dobson the opportunity to start another job. After giving Mr Dobson a second chance, he then built the footings the wrong way.

Mr Oates agreed that part of Mr Dobson’s role was to ensure that all the Vision Stream forms were filled in. Mr Oates denied that any of the forms were Contower’s forms and gave evidence that he did not know what forms Mr Burke was referring to when he gave evidence that some of the forms were Contower’s forms. The only document that was Contower’s document was a job overview sheet which provided the contractors with information in case they weren’t reading the plans properly. This document did not have to be signed by anyone.

Mr Oates denied that Mr Dobson signed any Vision Stream forms of behalf of Contower. All of the contractors had to sign Vision Stream forms that acknowledged their safety processes.

All of Contower’s contractors had to complete the first aid course because they could not work on-site without having done the course. Mr Oates denied that Mr Dobson was told that he needed to do the course to be the on-site first aid officer. Mr Oates could not say whether Contower had paid for the course or not because sometimes it did and sometimes it didn’t.

Mr Oates visited the various sites from time to time but mostly worked on his roofing business. Vision Stream provided on-site supervisors every day to ensure the work was being done properly.

Mr Dobson was given the responsibility to do the work properly but he could not run the job himself because he had no idea and no experience.

Mr Dobson was not specifically authorised to take deliveries. Anyone on site could take deliveries.

Mr Dobson injured himself on a site where he had done the footings incorrectly. It took a long time and cost a lot to fix the mistake. Mr Oates did not try to recoup the cost of fixing the mistake from Mr Dobson because he did not have any money.

Shane Coxhill

Shane Coxhill attended the meeting with Mr Dobson on 22 January 2018. However, Mr Coxhill was not called to give evidence on Contower’s behalf. Mr Oates’ evidence was that Mr Coxhill, who was his neighbour, had not worked for Contower for over seven months and was in Thailand with his wife looking after her parents who were unwell.

Mr Dobson contended that as Mr Coxhill lives in Victoria, Contower has failed to adequately explain why it did not call Mr Coxhill and that I should infer in accordance with the rule in Jones v Dunkel[7] that the uncalled evidence would not have assisted Contower’s case.
[7](1959) 101 CLR 298.

Whilst the explanation given by Mr Oates for why Contower did not call Mr Coxhill is inadequate, I have not drawn any adverse inference from this.

MR DOBSON’S CONTENTIONS

Mr Dobson contended that, having objectively balanced all of the relevant factors and having attributed the appropriate weight to each factor, the court should be well-satisfied that when Mr Dobson was injured on 6 April 2018, he was working for Contower as an employee on an ongoing basis, and was a worker as defined by the Act because he was performing work for Contower at its direction, instruction or request.

In relation to the degree of control that Contower could exercise over Mr Dobson, Mr Dobson contended that the evidence showed that:

(a) When Mr Dobson started working for Contower, its contractors or employees trained Mr Dobson in relation to Contower and Vision Stream procedures, including how the construction work was to be done.

(b) Contower directed Mr Dobson where to be each day and what work he was to perform at which site.

(c) Whilst the requirement to provide photos of each step of the construction process was a Vision Stream requirement, Mr Dobson had no legal relationship with Vision Stream.

(d) Contower directed, instructed and required Mr Dobson to provide the photos to Vision Stream, which sometimes numbered over 100 each day. This is not a normal or common practice and indicates that Contower had significant control over Mr Dobson.

(e) Mr Dobson was not given ‘free reign’ to do the concreting work as he saw fit. Rather, Mr Dobson had to ensure that his work conformed with the plans given to him by Contower and the photos in the Golden Photo Book, which required him to do his work in a very particular way.

(f) Mr Dobson did not have the skills to run a project himself without supervision (according to the evidence of Mr Oates).

In relation to whether Mr Dobson was supplying his work and skill or equipment, Mr Dobson relied on Contower’s concession that the evidence showed that he was supplying his work and skill to Contower, which supports his contention that he was an employee.

In relation to whether Mr Dobson could set his own hours of work, Mr Dobson contended that the evidence showed that:

(a) Mr Dobson did not work Monday to Friday, which was due to the nature of the work, but Mr Dobson was akin to a casual employee who did not have set hours but who is on call.

(b) If Mr Dobson finished his own work at a site, he was often sent to another site by Mr Burke, Mr Oates or Mr Coxhill to do other work, which is inconsistent with Mr Dobson being an independent contractor who entered into five separate contracts in relation to each work site.

In relation to the method used to pay Mr Dobson, Mr Dobson contended that the undisputed fact that that he had an hourly pay rate, he was paid weekly on the production of an invoice that set out how many hours he had worked and where, and that his payment was not determined by the completion of his work at a particular site supports his contention that he was working for Contower as an employee, not as an independent contractor.

In relation to whether Contower deducted income tax on Mr Dobson’s behalf or paid him superannuation, holiday or sick pay or long service leave, Mr Dobson contended that whilst the evidence showed that he was not paid superannuation, holiday or sick pay or long service leave and Contower did not deduct income tax on his behalf, these matters are not fatal to Mr Dobson’s claim that he is an employee.[8]
[8]Batten v Ginevra Nominees [2013] VCC 839 at para 73 (h).

In relation to whether Mr Dobson engaged employees, Mr Dobson contended that the evidence showed that:

(a) Mr Dobson did not have any employees.

(b) Ms Lucas was not paid for helping Mr Dobson with computer generated invoices and emails

(c) Mr Dobson did not employ Mr Persson to work for him.

In relation to whether Mr Dobson had the power to delegate his work to another person, Mr Dobson contended that the evidence showed that:

(a) He could not delegate his work to other people because on the one occasion that he arranged for someone else to help him, he had to ask permission to so from Mr Burke and Mr Burke satisfied himself that Mr Persson was suitably qualified before he gave that permission.

In relation to other relevant factors, Mr Dobson contended that the following evidence supports Mr Dobson’s contention that he was an employee of Contower:

(a) Contower set Mr Dobson’s rate of pay without negotiating with him.

(b) Contower increased Mr Dobson’s rate of pay after two weeks without negotiating with him.

(c) Whilst Mr Oates agreed during cross-examination that it was very important that contractors had their own insurance, Contower did not require Mr Dobson to provide evidence that he had his own insurance before started working for them or any time before he was injured on 6 April 2018.

(d) Mr Burke’s evidence that Mr Dobson was Contower’s representative on site and that he accepted deliveries on Contower’s behalf, taking into account that it was unlikely that Contower would authorise any random contractor to sign for expensive deliveries.

(e) Mr Burke’s evidence that Mr Dobson signed documents on Contower’s behalf.

(f) That after having worked for Contower for two weeks, Mr Dobson was asked by Mr Coxhill to supervise other employees or contractors working for Contower. Mr Dobson’s evidence should be accepted in relation to this because it is supported by the fact that he was given a pay rise after two weeks of working for Contower and Mr Burke’s evidence that he was made a supervisor after two weeks and was expected to provide guidance to less experienced contractors or employees. It is also unlikely that Mr Oates gave him the pay rise ‘out of the goodness of his heart’.

(g) Mr Dobson did not work for anyone else whilst he was working for Contower.

(h) Contower gave Mr Dobson a Bunnings card with his name on it and Contower’s name on it. Mr Oates’ evidence that all contractors were given a Bunnings Card should be rejected because this is inconsistent with Mr Burke’s evidence that he was the procurement manager. Accordingly, this makes the fact that Mr Dobson was given a Bunnings Card significant.

Contower gave Mr Dobson an iPad and a laser level, paid for by Contower. Mr Dobson was not asked to return these items whilst he was working for Contower and he kept them until after he was injured. Given that these items are relatively expensive, this is inconsistent with Contower’s claim that Mr Dobson was an independent contractor, who had not been given an assurance that he would have ongoing work.

(j) Contower paid for Mr Dobson to complete a first aid course, which is inconsistent with Contower’s claim that Mr Dobson was an independent contractor, who had not been given an assurance that he would have ongoing work.

Mr Dobson also contended that his evidence should be preferred to the evidence of Mr Oates and Mr Burke as he was a forthright witness and much of his evidence was corroborated by Mr Burke or by documents on which he relied. In relation to the witness statement he gave to the investigator from Matter of Fact, Mr Dobson gave evidence that the statement contained errors before any of the inconsistencies were put to him. In relation to the promise to provide him with a company car, it would be unfair for an inference to be drawn that this was a recent invention on the basis that Mr Dobson did not mention this to the investigator in circumstances where Mr Dobson could not be expected to know all of the matters the court would be considering when deciding whether or not he was a worker as defined by the Act. There was nothing put to Mr Dobson during cross-examination to cast doubt on his evidence and his credibility should remain intact.

In contrast, much of Mr Oates’ evidence was inconsistent with Mr Burke’s evidence, such as whether Mr Dobson had been made a head contractor, and at times he attempted to avoid questions or did not answer questions directly. For example, Mr Oates was reticent to answer questions in relation to what he said to Mr Dobson during the meeting on 22 January 2018 and he took some time to acknowledge that some of the documents that Mr Dobson had to sign were Contower’s documents.

CONTOWER’S CONTENTIONS

Contower contended that Mr Dobson was not a worker under the Act when he was injured and that the injury did not arise out of or in the course of his employment with Contower.

Contower contended that the evidence of Mr Burke and Mr Oates showed that Mr Dobson was an independent contractor because he entered into a contract with Contower to provide contracting services and that a new contract was entered into for each of the five sites Mr Dobson worked at. For example, Mr Dobson last worked at the Strathbogie site on 15 March 2018 and then started working at the Moorooduc site on 19 March 2018. Each time a new site opened, Mr Burke would ascertain whether Mr Dobson was available to work at that site and that is when the new contract began.

In relation to the degree of control that Contower could exercise over Mr Dobson, Contower contended that the evidence showed that:

(a) Mr Dobson worked at five different sites under five separate contracts

(b) Even if Mr Dobson was supervising others or the head contractor, he was providing concreting services and was not working as an employee for Contower

(c) Mr Dobson was only responsible for ensuring the contractors signed the safe work method statements when they arrived at the site each morning.

(d) Mr Dobson was engaged to perform the concreting work based on his own skills and qualifications although Contower conceded Mr Dobson asked for help when he was ‘out of his depth’.

(e) Mr Dobson was told by Contower’s representatives where to go because he did not know where the other sites were.

(f) Whilst Mr Dobson was given instructions via plans and photos, the performance of the work was up to him.

(g) Vision Stream provided all or most of the documents, including the plans for the construction of each tower, which Mr Dobson had to comply with, and they had the ultimate control over Mr Dobson, not Contower.

In relation to whether Mr Dobson was supplying his work and skill or equipment, Contower conceded that the evidence showed that:

(a) Mr Dobson was supplying his work and skill.

(b) Mr Dobson did not perform any work beyond his skills other than some labouring work.

In relation to whether Mr Dobson could set his own hours of work, Contower contended that the evidence showed that:

(a) It is a common practice in the building industry to start at 6.30 or 7.00am.

(b) Mr Dobson did not work a consistent number of hours each day and could finish whenever he wanted to as long as the work was completed within the time frame specified by Vision Stream.

In relation to the method used to pay Mr Dobson, Contower contended that the evidence showed that:

(a) Whilst on the face of it, Mr Dobson was paid like a casual worker, this was explained by Mr Oates who gave evidence that it was impracticable to pay each contractor per line item because there were too many contractors doing different things on site.

(b) In any event, less weight should be given to this factor.

In relation to whether Contower deducted income tax on Mr Dobson’s behalf or paid him superannuation, holiday or sick pay or long service leave, Contower contended that the evidence showed that:

(a) Mr Dobson’s invoices included GST.

(b) Contower did not pay Mr Dobson superannuation.

(c) When Mr Dobson was unable to work on one day, he was not paid any leave for that day.

In relation to whether Mr Dobson engaged employees or had the power to delegate his work to another person, Contower contended that the evidence showed that:

(a) Ms Lucas did administrative work for Mr Dobson.

(b) Mr Dobson engaged Mr Persson to work for him and supervised his work because he knew Contower was short of staff.

In relation to whether Mr Dobson believed he was an employee or an independent contractor, Contower contended that the evidence showed that:

(a) Whilst the start of the working relationship between Mr Dobson and Contower was ‘odd’ and there was no formal written agreement, there was no evidence of Contower having made Mr Dobson an express offer of employment.

(b) Mr Dobson was not required to attend a medical examination.

(c) Mr Dobson used his own car and trailer and advertised his concreting services on his trailer.

(d) Mr Oates did not promise Mr Dobson ongoing work.

(e) Mr Dobson’s evidence was that he considered himself an independent contractor when he was working for MAP under an arrangement that was the same as the arrangement he had with Contower.

In relation to whether Mr Dobson was authorised to represent Contower, it contended that the evidence showed that:

(a) All contractors were given Bunnings cards as a practical solution for when they needed materials.

(b) All contractors were able to sign or accept deliveries on behalf of Contower, which was necessary because there were no Contower employees at the various work sites and it is a stretch to suggest that Mr Dobson was authorised by Contower to do this.

In relation to whether Mr Dobson was a credible witness:

(a) Mr Dobson did not tell the investigator from Matter of Fact that Contower had agreed to insure him in the event of a workplace accident, pay him superannuation or give him a company car, which is inconsistent with his evidence. This suggests this evidence was a ‘late invention’ to strengthen his case.

(b) Mr Dobson did not work five or six days a week as he told the investigator. In the week starting 11 March 2018, he only worked three days, in the week starting 18 March 2018 he only worked one day, and there were two other weeks when he worked less than five days.

(c) Accordingly, Mr Oates’ evidence of what was discussed at the meeting on 22 January 2018 should be preferred over Mr Dobson’s evidence.

Taking into account all of the circumstances of this case, and considering the totality of the relationship between Mr Dobson and Contower, the court should find that:

(a) Mr Dobson was not supervised by Contower.

(b) Mr Dobson was not authorised to represent Contower.

(c) The arrangement between Mr Dobson and Contower was informal.

(d) Only the payment arrangements were formal.

(e) The agreement between Mr Dobson and Contower was that Mr Dobson would provide concreting services to Contower and that Mr Dobson was an independent contractor, not a worker.

DISCUSSION AND FINDINGS

In relation to the parties’ submissions about the credibility of the witnesses, whilst Mr Dobson clearly overstated how often he worked for Contower between 23 January 2018 and 7 April 2018 and failed to mention some of the things he alleged Mr Oates told him during their meeting on 22 January 2018 to the Matter of Fact investigator, I agree with his contention that he is a credible witness and that he has not ‘recently invented’ some of his evidence.

I also agree with Mr Dobson’s contention that Mr Oates’ evidence was less forthright for the reasons set out in paragraph 133 above. In addition, on several occasions, Mr Oates gave contradictory evidence. For example, he initially gave evidence that he only communicated with Mr Dobson to tell him where the next job was, but later said that he spoke to Mr Dobson every day to make sure everything was under control. He also said Mr Dobson had his own tools but later claimed that he had turned up without any tools. Mr Oates also denied that he was happy with Mr Dobson’s work early on but gave evidence that Mr Dobson was given a pay rise after two weeks because he knew what he was doing and had gained enough experience to justify a pay rise. However, I have not made any findings that are based solely or substantially on my assessment of the witnesses’ credibility.

Having considered the whole relationship between Mr Dobson and Contower, including its nature and circumstances, I am satisfied that Mr Dobson was an employee of Contower and a worker within the meaning of the Act.

I have arrived at this conclusion for the following reasons, which are not set out in order of importance or significance.

THE ELAZAC FACTORS

The degree of control Contower exercised over Mr Dobson

Control or, more particularly, the right to exercise control, is an important factor in determining whether a person is a contractor or an employee. The issue of control falls to be considered not merely by reference to what control was actually exercised, but also by reference to the level of control which could be exercised.[9]
[9]Elazac Pty Ltd v Sherriff [2011] VSCA 405 at para 35.

I am satisfied that Contower exercised a significant amount of control over the manner in which Mr Dobson performed his work and the places he was to work, which supports his contention that he was an employee.

Whilst Mr Dobson was a qualified and experienced concrete and excavator, Mr Oates and Mr Burke agreed with Mr Dobson’s evidence that other Contower contractors provided Mr Dobson with training in relation to how Contower required things to be done. In addition, Mr Oates’ evidence was that he spoke to Mr Dobson every day to make sure ‘everything was under control’ and Mr Burke’s evidence was that Mr Dobson kept him updated throughout the day, he was conscious of Mr Dobson’s movements at all times, and that Mr Dobson could not go to whichever site he wanted or do whatever he liked.

In addition, whilst Mr Dobson was responsible for reading the plans for each site and following the plans, Contower required him to do his work in accordance with the Golden Photo Book and constantly send Contower photos throughout the day, which were used to confirm that he was complying with the Golden Photo Book.

In my view, it makes no difference that the Golden Photo Book was a Vision Stream document, because it is apparent from Mr Burke and Mr Oates’ evidence that Contower was contractually obliged to ensure that its contractors or employees met all of Vision Stream’s requirements in relation to occupational health and safety procedures and construction methods and that Contower exercised significant control over its contractors or employees to ensure that they met all of Vision Stream’s requirements. Mr Burke and Mr Oates agreed that Mr Dobson was required to send many photos to Contower throughout the day so that either Contower or Vision Stream could ensure that the work was proceeding in accordance with Vision Stream’s requirements, which were also Contower’s requirements. This was the reason Mr Dobson was given an iPad. Mr Oates also gave evidence that Contower was paid based on the photos the contractors took and that it would not get paid if the work was not done correctly.

I also reject Contower’s contention that Vision Stream had the ultimate control over Mr Dobson. Vision Stream had no control over Mr Dobson because it had no contract or legal relationship with Mr Dobson.

Further, the evidence of Mr Dobson was that Mr Burke, Mr Oates or Mr Coxhill would direct Mr Dobson what to do and where to work and when on a daily basis. Mr Burke and Mr Oates agreed with Mr Dobson’s evidence in relation to this and the tax invoices Mr Dobson submitted to Contower also show that except for the last three weeks, Mr Dobson worked at different sites from week to week and in five out of 11 weeks, he worked at different sites throughout the week. It is clear that Mr Dobson had no control over where he worked on a day to day basis.

I also accept Mr Dobson’s evidence that on occasions, he was instructed by Mr Oates, Mr Burke or Mr Coxhill to do other work after he had finished his concreting work. This was not disputed by Mr Oates and is consistent with his evidence that Contower was short of workers during the time that Mr Dobson was working for Contower and that Contower had to meet targets in a short time.

Having found that Contower had a significant amount of control over Mr Dobson, I consider a considerable amount of weight should be placed on this factor. However, I acknowledge that control is only one of a number of relevant factors in determining whether Mr Dobson was an employee or contractor.[10]

What Mr Dobson supplied to Contower

[10]Boehm v Strongback Pty Ltd [2011] VSC 463 at para 18.

The supply of work and skill, as opposed to the supply of equipment or its performance, is a factor indicating the existence of an employee/employer relationship.[11] In this case, it was not in dispute that Mr Dobson was supplying his work and skill to Contower.
[11]Batten v Ginevra Nominees [2013] VCC 839 at para 73 (e).

It was also not in dispute that Mr Dobson was a skilled and experienced concreter and excavator, which, according to earlier authorities, supports the proposition that he was more likely to be an independent contractor. However:

[M]ore modern authority recognises that it is relatively commonplace to employ employees who have particular technical skills or expertise that are not possessed by those employing them. The fact that a person engaged to perform work has particular expertise no longer, of itself, provides any great support for a conclusion that that person is an independent contractor.[12]

[12]Elazac Pty Ltd v Sherriff [2011] VSCA 405 at para 31.

The evidence in relation to this factor also supports Mr Dobson’s contention that he had an employee/employer relationship with Contower.

The extent to which Mr Dobson could set his own hours

I agree with Contower’s contention that Mr Dobson did not work a consistent number of hours each day and that it is a common practice in the building industry to start work at 7am.

However, I also agree with Mr Dobson’s contention that whilst he did not work for Contower from Monday to Friday, he was akin to a casual employee who did not have set hours but who was on call. This is consistent with Mr Burke’s evidence that he always called Mr Dobson first because he was always available, that Mr Dobson was reliable, that he was never not available when he called him and Mr Dobson’s evidence that he did not work for anyone else during the time he worked for Contower, which is supported by his tax returns for this period.

I am also satisfied that Mr Dobson was required by Contower to start work at 7am. Mr Dobson’s invoices show that he started every day at 7.00am and Mr Burke’s evidence was that he was expected to be at the work site between 6.30am and 7am. Further, it seems to me to be unlikely that Contower’s contractors or employees could start whenever they wanted, as Mr Oates claimed, given his evidence that Contower ‘had to meet targets in a short time’ and that Vision Stream had strict occupational health and safety procedures in place, which Contower contractors or employees had to comply with, which required contractors or employees to sign particular forms and to attend an induction or safety meeting at the start of each day before they could start work.

This factor also supports Mr Dobson’s contention that he was employed by Contower.

How Mr Dobson was paid

Mr Dobson was paid by the hour at the end of each week after he had submitted his invoice to Contower. His payment was not determined by output, production or on completion of a specific task. In particular, his payment was not determined by the completion of his work at a particular site.

Whilst I accept Mr Oates’ evidence that it was impractical to pay each contractor per line item, he did not explain why, if Mr Oates was an independent contractor who had a separate contract for each site, he did not ask Mr Oates to provide a quote for his concreting services for each site and ton invoice Contower on the completion of each site.

This factor also points to an employer/employee relationship rather than to Mr Dobson being a contractor and is a significant factor.

Whether Contower withheld Mr Dobson’s income tax and paid his superannuation, annual leave or sick leave

Matters such as whether income tax, superannuation and leave entitlements were paid by Contower are important.[13] In this case, there is no dispute that Contower did not withhold income tax on behalf Mr Dobson and did not pay him superannuation. In addition, I am satisfied that when Mr Oates and Mr Dobson met on 22 January 2018, Mr Oates did not tell Mr Dobson Contower would pay him superannuation, particularly where there is no written evidence that Mr Dobson provided details of his superannuation fund to Contower’s office staff.
[13]Batten v Ginevra Nominees Pty Ltd [2013] VCC 839 at para 43.

Nor is there any dispute that Mr Dobson was not paid annual leave or sick leave.

If income tax had been deducted and these other amounts paid, that would be quite a strong supporting factor in favour of an employer/employee relationship. However, I agree with Mr Dobson’s submission that the absence of these matters is not fatal to the existence of a contract of employment.[14] Nonetheless, this factor points to Mr Dobson being a contractor rather than an employee and is an important factor that favours Contower’s contentions.

Whether Mr Dobson could employ other people or delegate work to other people

[14]Batten v Ginevra Nominees Pty Ltd [2013] VCC 839 at para 73.

Whilst I accept that Mr Dobson arranged for Mr Persson to work with him for one day, his evidence was that he first obtained permission for this from Mr Oates. Mr Oates agreed that this was the case and his evidence was that Contower’s office staff would have checked that Mr Persson had the correct qualifications and tickets. This is inconsistent with Mr Dobson being able to employ other people or delegate or subcontract the work he was doing for Contower.

In addition, Contower paid Mr Persson’s wages for the day. In these circumstances, I am satisfied that Mr Persson was not working for Mr Dobson.

I also accept Mr Dobson’s evidence that whilst Ms Lucas helped him to prepare and email invoices to companies he had worked for, she was not paid for this work and accordingly, was not an employee.

The fact that Mr Dobson did not employ others and could not delegate his work to others is significant and supports Mr Dobson’s contention that he was an employee.

Whether Mr Dobson considered that he was an employee or a contractor

Mr Dobson’s evidence was that during the meeting on 22 January 2018, Mr Oates asked him to ‘join the team’ and that he would be given as much work as he wanted for as long as he wanted. He also gave evidence that Mr Oates told him he would be paid superannuation and would get a company car.

Mr Dobson also gave evidence that whilst Mr Coxhill told him he needed to organise his own insurance, Contower wanted him to get started and that he would be covered by Contower’s insurance until he organised his own, he failed to do before he was injured.

Mr Oates denied that he said any of these things and agreed during cross-examination that Mr Dobson was covered by Contower’s insurance until he got his own insurance.

As set out in paragraph 169 above, I am not satisfied that Mr Oates told Mr Dobson that Contower would pay him superannuation.

Similarly, I am not satisfied that Mr Oates told Mr Dobson that he would get a company car. This seems highly unlikely to me given that on 22 January 2018, Mr Dobson had not yet done any work for Contower and Mr Oates would not have known whether Mr Dobson was as skilled and experienced as he had represented and whether Mr Dobson could actually fulfil the requirements of the role. It seems more likely to me that if there was any discussion about a company car, it was raised as being a mere possibility at an unspecified time in the future if the working relationship between Mr Dobson and Contower went very well.

However, I prefer Mr Dobson’s evidence in relation to whether Mr Oates told him there would be ongoing work. This is because Mr Oates’ evidence was that Contower was short of workers in January 2018 and he agreed that he told Mr Dobson he needed his full attention. In addition, Mr Burke’s evidence was that Contower was very busy at this time and had ongoing jobs and ongoing contracts. I consider it likely that in these circumstances, Mr Oates would have told Mr Dobson that Contower could provide him with ongoing work.

I also accept Mr Dobson’s evidence that Mr Coxhill told him that he should start work and that he would be covered by Contower’s insurance until he organised his own.

Mr Dobson also gave evidence that he considered himself an employee. However, when Mr Dobson completed the Workcover Worker’s Injury claim form, he described himself as a ‘contractor’.

In addition, it is unclear to me whether at the time Mr Dobson accepted Mr Oates ‘job offer’, he had turned his mind at all to the nature of the legal relationship he had with Contower, particularly considering the lack of formality in relation to how Mr Dobson and Mr Oates reached their agreement on 22 January 2018.

In these circumstances, I am unable to conclude that Mr Dobson believed that he was an employee.

This factor does not favour Mr Dobson. However, again, I do not consider that it is fatal to his case.

OTHER RELEVANT FACTORS

I agree with Mr Dobson’s contention that the following evidence is also relevant to whether he was an employee or a contractor and support his contention that he had an employee/employer relationship with Contower.

Whether Mr Dobson was doing work for others while he was also working for Contower

I accept Mr Dobson’s evidence that he did not work for any other people or companies whilst he was working for Contower, except perhaps one small Saturday morning job. Mr Dobson’s evidence is consistent with his tax returns for the relevant period.

I also accept his evidence that whilst his trailer was advertising his concreting services for some of the time that he was working for Contower, he was not actively seeking other work because he had been asked by Mr Oates to give Contower’s work his full attention and when he began to work for Contower, it was his understanding that Contower had a lot of work for him.

I consider this evidence to be important evidence that favours Mr Dobson’s contentions.

The extent to which Mr Dobson represented Contower

Conduct of an enterprise in which persons are identified as representing that enterprise, should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise.[15]
[15]Hollis v Vabu Pty Ltd (2001) 207 CLR 21.

I am satisfied that Mr Dobson was representing Contower when he:

(a) signed Vision Stream documents on its behalf, which Mr Burke agreed Mr Dobson did,

(b) accepted or signed for deliveries on its behalf, and

(c) used the Bunnings card in Contower’s name to buy materials on Contower’s account.

However, I also accept Mr Oates’ evidence that anyone on site could accept or sign for deliveries on Contower’s behalf and that all contractors were given Bunnings cards as many of the sites they were working on were isolated and they needed to be able to buy materials without being out of pocket.

Whilst this factor supports Mr Dobson’s contention that he was an employee, it is not a significant or important factor.

Supply of tools and equipment

Whilst Mr Dobson supplied his own hand tools, Contower supplied him with an iPad, a laser level, the excavator and all materials, including the concrete, which Mr Burke arranged to be poured at each worksite.

Again, whilst this factor supports Mr Dobson’s contention that he was an employee, it is not a significant or important factor.

The first aid course

Contower required Mr Dobson to attend a first aid course. Contower paid Mr Dobson for the hours he spent at the course and for the course itself.

Whether Mr Dobson was made a supervisor after two weeks

I accept Mr Dobson’s evidence that after having worked for Contower for two weeks, Mr Dobson was asked by Mr Coxhill to supervise other employees or contractors working for Contower. Mr Dobson’s evidence is supported by the fact that he was given a $5.00 pay rise after two weeks of working for Contower. I also agree with Mr Dobson’s contention that it is unlikely that Mr Oates gave him the pay rise ‘out of the goodness of his heart’ or that he received the pay rise because Mr Dobson had demonstrated that he knew what he was doing and had gained enough experience to justify a pay rise.

Mr Dobson’s evidence is also consistent with Mr Burke’s evidence that he was made a supervisor or head contractor after two weeks and was expected to provide guidance to less experienced contractors or employees.

Whether the work was ongoing or a series of negotiated contracts

It is clear from the invoices that Mr Dobson submitted to Contower that Contower provided Mr Dobson with ongoing work between 23 January 2018 and 6 April 2018. Mr Dobson worked at least one day every calendar week between these dates, and for four or more days in seven out of 11 weeks. He also worked at more than one site in four out of 11 weeks and only worked at one site for consecutive weeks during the last three weeks that he worked for Contower, which was when he was working at Moorooduc. Whilst there was one seven day period in February when Mr Dobson was without work, this by itself is not sufficient to support Contower’s contention that Mr Dobson had distinct contracts for each work site.

CONCLUSION

Having considered the whole relationship, including its nature and circumstances, the manner in which Mr Dobson undertook his work duties, and in particular, the extent to which Contower exercised control over Mr Dobson, how Mr Dobson was paid, that he did not employ other people and was unable to delegate his work to others without first obtaining Contower’s permission, I am satisfied that Mr Dobson was an employee of Contower.

This is notwithstanding that Contower did not withhold income tax from the amounts it paid Mr Dobson, did not pay Mr Dobson superannuation, holiday pay or long service leave and I have been unable to find that Mr Dobson considered himself an employee.

The factors supporting the proposition that the relationship between Mr Dobson and Contower was one of employer/employee seem to me to comfortably outweigh those to the contrary. However, as Bowman J observed in Batten v Ginevra Nominees Pty Ltd,[16] it is not simply a question of adding up the factors for and against such a proposition and then arriving at a conclusion. Weight also must be attributed and it seems to me the weight of the evidence supports the conclusion that an employer/employee relationship existed between Mr Dobson and Contower.
[16][2013] VCC 839.

I am ‘well satisfied’ that when regard is had to all of the circumstances, the true nature of the relationship between Mr Dobson and Contower was that of employer and employee and that Mr Dobson is a worker under the Act.

Having found that Mr Dobson is a worker under the Act, I do not need to consider whether Mr Dobson is deemed to be a worker under the Act.

In light of the concession made by Contower at the start of the hearing that if Mr Dobson is a worker under the Act, he is entitled to weekly payments of compensation and payment or reimbursement of reasonable medical and like expenses from 7 April 2018 and ongoing, I order that Contower pay compensation to Mr Dobson at the appropriate rates, and pay or reimburse his reasonable medical and like expenses from 7 April 2018 onwards and continuing, which amounts are reserved with liberty to apply.

[2019] VMC 11

24 October 2019