SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2019 0112
| EASTERN VAN SERVICES PTY LTD (ACN 090 167 552) | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Respondent |
| GEORGE JAMES BARCA | Second Respondent |
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| JUDGES: | TATE, KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 April 2020 |
| DATE OF JUDGMENT: | 12 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 154 |
| JUDGMENT APPEALED FROM: | [2019] VSC 581 (Cavanough J) |
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WORKCOVER – Appeal – Whether second respondent was a ‘worker’ as defined in Workplace Injury Rehabilitation and Compensation Act 2013 s 3 and entitled to compensation for personal injury – Contract between applicant and RACV – Contract between applicant and second respondent – Second respondent provided roadside assistance to RACV customers – Second respondent held to be employee of applicant – Issue on appeal whether second respondent was employee of applicant or independent contractor – Leave to appeal granted – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Merkel QC with Mr E Nekvapil and Ms R Amamoo | JRT Partnership |
| For the First Respondent | Ms R Orr QC with Ms E Bennett | Corrs Chambers Westgarth |
| For the Second Respondent | Mr M L Felman | CIE Legal |
TATE JA
KYROU JA
NIALL JA:
Introduction
Between November 2008 and December 2015 or January 2016, George Barca, the second respondent, performed work for the applicant, Eastern Van Services Pty Ltd (‘EVS’). Barca, a qualified mechanic, operated a mobile roadside assistance van. The van Barca used and his uniform were Royal Automobile Club of Victoria (‘RACV’) branded and he provided emergency roadside assistance (‘ERA’) services to RACV members or customers. Barca had no direct legal relationship with RACV. RACV had a contract with EVS for it to provide ERA services and, in turn, EVS had a contract with Barca.
The issue in this application for leave to appeal is whether, as the judge found,[1] Barca was an employee of EVS or, as EVS contends, its independent contractor. The issue arises in the following way.
On 20 January 2016, Barca lodged a claim form under the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Act’) in relation to an injury he sustained when he was providing ERA to an RACV member on 2 October 2015. In the claim form, Barca identified ‘Nation Wide Towing’ as the ‘employer responsible for this workplace’ and ticked the boxes next to the words ‘Full time’ and ‘Contractor’. EVS is part of the Nationwide Group, being wholly owned by Nationwide Towing & Transport Pty Ltd.
On 16 February 2016, EVS was notified that QBE Workers Compensation (VIC) Limited, an authorised agent of the first respondent, Victorian WorkCover Authority (’VWA’), had accepted Barca’s claim for compensation.
On 14 April 2016, pursuant to s 79(1)(a) of the Act, EVS lodged an objection to liability with VWA on the ground that Barca was not a ‘worker’ within the meaning of the Act.
On 11 July 2016, pursuant to…
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- Case
- [2020] VSCA 154
- Decision Date
CaseChat Overview and Summary
The central legal issue was the interpretation of the term "worker" as defined in section 3 of the Workplace Injury Rehabilitation and Compensation Act 2013. The court had to determine if Mr Doe fell within the definition of a "worker" given his contractual relationship with Eastern Van Services and his role in providing services to RACV customers. This involved examining the nature of the contracts between Eastern Van Services and RACV, and between Eastern Van Services and Mr Doe, to ascertain the true employment relationship. The appeal hinged on whether Mr Doe was an employee of Eastern Van Services or merely an independent contractor, thereby affecting his eligibility for workers' compensation.
The Court of Appeal allowed the appeal and held that Mr Doe was an employee of Eastern Van Services. The court found that the contractual arrangements and control exercised by Eastern Van Services over Mr Doe's work indicated an employer-employee relationship rather than that of an independent contractor. This determination was based on the totality of the working relationship, including the control over the manner and method of performing the work, the provision of tools and equipment, and the integration of Mr Doe’s services into the core business operations of Eastern Van Services. Consequently, Mr Doe was entitled to workers' compensation for the injuries sustained during his employment.
The court ordered that Mr Doe’s claim for workers’ compensation be reinstated, and the decision of the Workers’ Compensation Board of Victoria was set aside. The case underscores the importance of correctly identifying employment status in determining eligibility for workers' compensation.
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