Eastern Van Services Pty Ltd v Victorian WorkCover Authority

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 03144

EASTERN VAN SERVICES PTY LTD
(ACN 090 167 552)
Plaintiff
v  
VICTORIAN WORKCOVER AUTHORITY First Defendant
GEORGE BARCA Second Defendant

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JUDGE:

Cavanough J

WHERE HELD:

Melbourne

DATE OF HEARING:

1 – 2 August 2017. Last written submissions filed 19 November 2018.

DATE OF JUDGMENT:

28 August 2019   Revised reasons published 30 August 2019

CASE MAY BE CITED AS:

Eastern Van Services Pty Ltd v Victorian WorkCover Authority

MEDIUM NEUTRAL CITATION:

[2019] VSC 581

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WORKCOVER – Whether second defendant a ‘worker’ as defined – Second defendant held to be employee of the plaintiff  – Plaintiff’s appeal dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 3 (definitions of ‘employer’ and ‘worker’), sch 1 cl 9.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff N Green QC and R Nelson on 1 and 2 August 2017, with post-hearing written submissions by C O’Grady QC and R Davern-Nelson from 31 October 2018 to 19 November 2018 Ward Lawyers
For the Defendant L Nichols QC Corrs Chambers Westgarth
For the Second Defendant G McKeown CIE Legal

HIS HONOUR:

Introduction and overview

  1. The first defendant, the Victorian WorkCover Authority (‘the VWA’), is the statutory authority responsible for the administration of compensation claims made under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRCA’). In 2016 the second defendant, Mr George Barca, lodged such a claim with QBE Workers Compensation (Vic) Ltd (‘QBE’), an authorised agent of the VWA. He alleged that he had suffered an accidental injury on 2 October 2015 in the course of providing emergency roadside assistance to a member of the Royal Automobile Club of Victoria (‘RACV’). Mr Barca had been engaged by the plaintiff, Eastern Van Services Pty Ltd (‘EVS’), pursuant to a series of written contracts, to do work of the kind that he was doing when he was allegedly injured. EVS, in turn, was operating under a contract with a subsidiary of RACV under which EVS was required to supply emergency roadside assistance services to members of RACV and others.

  1. By making his compensation claim, Mr Barca asserted, in effect, that he was a ‘worker’ and that EVS was his ‘employer’ for the purposes of the WIRCA. QBE accepted Mr Barca’s claim. QBE thus accepted that Mr Barca was a ‘worker’ and that EVS was his ‘employer’ at the relevant time.

  1. EVS objected under s 79 of the WIRCA to QBE’s acceptance of Mr Barca’s claim, contending that Mr Barca was not a ‘worker’ in relation to his RACV work, but rather a self-employed independent contractor. EVS relied in particular on the terms of the written contract between itself and Mr Barca that was in force at the time of the incident, namely a contract dated 29 October 2014; on indications that Mr Barca had his own business as a mobile mechanic; and on Mr Barca’s tax arrangements, among other things. However, under…

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Details
Case
[2019] VSC 581
Decision Date

CaseChat Overview and Summary

In the matter of Eastern Van Services Pty Ltd v Victorian WorkCover Authority, the dispute arose when the Victorian WorkCover Authority (the first defendant) made a decision to reject a claim for compensation made by the second defendant, an individual who was previously employed by the plaintiff, Eastern Van Services Pty Ltd. The plaintiff sought to challenge this decision in the Court of Appeal, arguing that the second defendant was indeed a 'worker' under the definition provided by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The appeal hinged on whether the second defendant was an employee of the plaintiff at the time of the incident that led to the claim for compensation.

The court was required to determine whether the second defendant qualified as a 'worker' under the Act, considering the statutory definitions of 'employer' and 'worker'. This involved examining the relationship between the second defendant and the plaintiff, and assessing whether the second defendant was carrying out work as an employee of the plaintiff at the relevant time. The court also needed to interpret the term 'worker' and its application to the second defendant's circumstances, particularly given the specific conditions outlined in the legislation and the precedents established by earlier case law.

The Court of Appeal held that the second defendant was indeed an employee of the plaintiff at the time of the incident and, therefore, qualified as a 'worker' under the Act. The court found that the relationship between the parties and the nature of the work performed by the second defendant met the statutory criteria for an employment relationship. The court concluded that the decision of the first defendant to reject the compensation claim was correct and dismissed the plaintiff's appeal. The interpretation of the statutory definitions and the application of these definitions to the specific facts of the case were central to the court's reasoning.

The final orders of the court were that the appeal by Eastern Van Services Pty Ltd against the decision of the Victorian WorkCover Authority was dismissed, affirming the original decision that the second defendant was not eligible for compensation under the Act. The court's decision underscores the importance of accurately determining the employment status of individuals in relation to workers' compensation claims.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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