Eastern Van Services Pty Ltd v Victorian WorkCover Authority - [2019] VSC 581

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

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.

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.

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…

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: [2019] VSC 581
Decision Date: 28 August 2019 Revised reasons published 30 August 2019

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.

Orders