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Eastern Van Services Pty Ltd v Victorian WorkCover Authority

Eastern Van Services Pty Ltd v Victorian WorkCover Authority

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Case Copied 12 June 2020 66 min read

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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.
[1]Eastern Van Services Pty Ltd v Victorian WorkCover Authority [2019] VSC 581 (‘Reasons’).

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] VSCA 154
Decision Date: 12 June 2020

CaseChat Overview and Summary

In the matter of Eastern Van Services Pty Ltd v Victorian WorkCover Authority, the applicant, Eastern Van Services, sought to appeal a decision of the Workers’ Compensation Board of Victoria regarding the eligibility of the second respondent, Mr John Doe, for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013. Mr Doe had been employed by Eastern Van Services to provide roadside assistance services to customers of RACV, a vehicle club, under a contractual agreement. The dispute centred on the classification of Mr Doe’s employment status: whether he was an employee of Eastern Van Services or an independent contractor, which would determine his entitlement to compensation for injuries sustained while performing his duties.

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.

Orders