Faultless Constructions Pty Ltd v Workers Compensation Nominal Insurer (iCare)
[2022] NSWPIC 653
•25 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Faultless Constructions Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Anor [2022] NSWPIC 653 |
| APPLICANT: | Faultless Constructions Pty Limited |
| FIRST RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| SECOND RESPONDENT: | Moslah Alsalmi |
| senior Member: | Elizabeth Beilby |
| DATE OF DECISION: | 25 November 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim pursuant to section 145 the Workers Compensation Act 1987, Held – the claimant was not a deemed worker. |
determinations made: | 1. The applicant is not liable to reimburse the first respondent (being the Workers Compensation Nominal Insurer (Icare) the sum of $36,160.06 being specified in the Notice to Reimburse issued pursuant to s145(1) of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
On 10 September 2021, Moslah Alsalmi (second respondent) was attending premises in Yagoona Sydney. When he sustained injuries. A claim was made against the Workers Compensation Nominal Insurer in respect of weekly benefits and medical expenses.
A statutory notice issued pursuant to s 145 of the Workers Compensation Act 1987 seeks repayment of the sum of $36,160.06 from the applicant company. The notice was issued after some $30,958.96 was paid in respect of weekly benefits and $5,201.10 was paid in respect of medical expenses.
Faultless Constructions Pty Limited (the applicant) disputes that they are liable to reimburse the said sum on the basis that Mr Alsalmi was not a deemed worker.
The Nominal Insurer appeared at the hearing of this matter but elected to make no submissions in relation to any issue in dispute.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) was Mr Alsalmi a deemed worker pursuant to cl 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents;
(b) Reply to the Application and attached documents, and
(c) Application to Admit Late Documents dated 4 July 2022, 12 July 2022 and 30 August 2022
I will not outline the relevant evidence.
Kirolos Georges
Kirolos Georges is the owner and sole director of Faultless Constructions Pty Limited (Faultless). He has prepared a statutory declaration sworn 18 November 2021.[1] The statutory declaration attempts to explain the business relationship between Moslah Alsalmi (the claimant) and Faultless.
[1] Application page 27
Mr Georges explains that he operated his business as a sole trader contracting to do electrical installation and repair work including residential solar system installations.
In March 2021, Faultless engaged the claimant as a subcontractor to undertake the fixing of solar panels to residential roofs and other small repair jobs as agreed from time to time.
Mr Georges says that the arrangement with the claimant was that he wanted to be paid per job and not per hour. Mr Georges explained that an Australian Business Number would be required and then there would be a price agreed for each job performed.
Mr Georges says he assisted the applicant in obtaining an ABN and helped him to look for it online. The claimant had an ABN and the ABN details are annexed to the statement.[2] The business entity is therein described as a sole trader.
[2] Application page 40.
Mr Georges explained that the terms of the sub-contractual agreement were that he would pay the claimant a base rate of $650 for the affixing of up to 18 solar panels to a single storey residence. If unforeseen complications arose the claimant would contact Mr Georges and an additional amount would be negotiated.
The claimant was free to choose who he employed and subcontracted to for the provision to him of any other person working there, he was also free to reject any work and free to subcontract to any other companies in any way he wished. Indeed Mr Georges explains that the claimant would often bring his brother-in-law to do work with him and Mr Georges did not pay the brother-in-law directly but would pay the claimant who he understands would then pay for the additional labour expended by the brother-in-law.
Of some significance, Mr Georges explained that the claimant would sometimes reject work from him as he was working outside Sydney or working for other contractors. I observe this is consistent with the text messages that have been supplied which enquire whether the claimant would be free from his commitments with other contractors outside of Sydney.
Mr Georges has sworn a statutory declaration dated 18 November 2021.[3]
[3] Reply page 30.
Mr Georges has prepared a second statement dated 8 July 2022.[4] The statement further addresses evidence given by the claimant in this matter. In reply to the statement he makes it clear that the claimant was free to engage labour of his choice and assist with his work. indeed it was observed he would often come with his brother-in-law or cousin and the applicant did not pay or engage the labour that Mr Alsalmi brought with him.
[4] Late documents filed 12 Jul 2022 page 1.
In relation to tools provided, Mr Georges says that Mr Alsalmi did not use the applicant’s ladders and provided his own. There were occasions that they would share Makita batteries for tools.
So far as direction is concerned, Mr Georges says that he just directed as to which direction the panels were to be installed that is, to the north, to the east, to the west, to the south and then Mr Alsalmi installed them according to the relevant proposal.
Mr Georges says that Mr Alsalmi provided paper invoices and requested that the payment be made in cash as much as possible. Indeed, Mr Georges comments that he does not own an A-frame fold-out aluminium ladder and quite clearly understands that the ladder was provided by the claimant.
Moslah Alsalmi
Mr Alsalmi has sworn a statement prepared after an interview on 30 November 2021.[5]
[5] First respondent’s Reply page 76.
Mr Alsalmi provides some information in relation to the commencement of their employment however little detail is given. His evidence is limited to there being a verbal agreement with the applicant’s owner which was to the extent that he would instal solar panels onto residential roofing.
Mr Alsalmi contradicts the applicant’s evidence and says that he never worked with any relatives and in addition the applicant company provided all the tools and equipment he used including A-frame or similar opening lockable ladders.
Mr Alsalmi says that he was not able to sub-contract out the work and the applicant company directed how it was to be undertaken and how it was to be performed. At the same time he was free to reject any job he felt was too difficult.
Mr Alsalmi says there was indeed one week where he rejected work as he was outside the Sydney area helping his brother.
If Mr Alsalmi was unavailable he would text Mr Georges and inform him he was unavailable.
In relation to the particular execution of duties, Mr Alsalmi said that he was provided with verbal instructions on the installation process and was supervised on the first few installations and that he then completed the installations on an ongoing basis by himself.
In relation to payment, Mr Alsalmi says that he did not provide any invoice for his work and did not provide an ABN although he did have one.
Payments were made directly into the bank account and also in cash. Tax was not deducted nor was any superannuation paid.
Mr Alsalmi said he was paid an agreed job rate of $400 per installation with some additional payment if the work was more complicated.
Mr Alsalmi was not required to work regular hours but only on a needs basis.
Text messages
Text messages have been produced between both Mr Alsalmi and Kirolas Georges.
The relevant parts of the text messages to my mind are as follows:
“S: Bro I’m working tomorrow.
Reply: that’s good bro! What about Thursday next week? If you’re working that’s all good I have a guy I can ask I just wanted to make sure you’re working.
S: thank you bro.
Reply: all good bro, so you’re busy on Thursday?
S: maybe not.
Reply: I can’t talk bro I transferred you money today, I will call you when I can talk.
S: yeah right.
Reply:no worries, I’ll send $1,600 u should of got it all coming through soon bro, and if you want minimum $650 bro that’s too much money if you’re happy with $450 and I pay for the material and fuel ok no problem, if not then like you said don’t worry about it, I’ll call you later when I can talk.”
Matthew Nguyen
Matthew Nguyen has sworn a statement taken prepared after an interview on 1 December 2021.[6]
[6] Reply page 70.
Mr Nguyen was employed by the applicant as an apprentice electrician. He has been in their employment since August 2021.
Mr Nguyen understood that the claimant was a sub-contractor and observed that he provided his own tools and used his own ladders. In particular he recalled several ladders including an A-frame type extendable aluminium or similar ladder.
Mr Nguyen was present when the claimant sustained his injury and is able to give direct evidence in relation to how that injury occurred when he fell approximately 1.5 metres from the rung of the ladder. Following the fall Mr Nguyen assisted the claimant and also took the ladder that he had fallen from and placed it back into the claimant’s truck.
Surveillance material
A surveillance report has been prepared by NKG Management Services dated 10 August 2022.[7] The surveillance material clearly shows the claimant working installing solar panels at premises in Eastwood New South Wales. There was no evidence adduced by the claimant to suggest either that this was not him or further that he did instal the panels.
[7] Late application dated 30 August 2022.
It is clear that the surveillance was taken a lengthy period after the index event.
Consideration
The claim made against the applicant is on the basis that Mr Alsalmi was a deemed worker as provided by cl 2 of Schedule 1 to the 1998 Act which provides:
“(1) Where a contract--
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.
(3) A person excluded from the definition of
‘worker’ in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”The applicant in this case denies that the claimant was either a worker or a deemed worker within the meaning of the 1998 Act.
In relation to deemed worker, in order for the statutory notice to be correct, it must be established that:
(a) they were both parties to a contract;
(b) the work exceeded $10 in value;
(c) the work done was not incidental to a trade or business regularly carried on by the claimant under his or her own business name, and
(d) he did not sublet the contract to employ any other workers in the performance of the contract.
The evidence before me is that the claimant did indeed have an ABN number in his own name which had been in operation since 2017. There was no satisfactory explanation to me as to what he did under that name but there must have been some purpose to have it.
Of some significance is that the claimant says that he was worked as a roofer and labourer since 2012. By inference, I find that the ABN must have had something to do with performing the work of a roofer or labourer. That leads to a conclusion that the work was incidental to a trade regularly carried on by the claimant under his own name, namely that of a roofer.
What I do find somewhat compelling and instructive is the text messages together with the claimant continuing to work in August 2022 as a roofer. The text messages to my mind illustrate that the claimant was indeed free to work for someone else and indeed he did do outside of Sydney.
The crucial link however is that I am persuaded, on balance, that Mr Alsalmi indeed have engage others to assist in in his work. There is clear evidence from Mr Georges that he observed and indeed met persons who were assisting Mr Alsalmi in the execution of his work.
Mr Alsalmis executed statement does not put this in dispute, in fact he does not address it at all merely to say he did not employee ‘family members’. For the evidence to be probative I would have needed evidence that he did not employ anyone, not just family members. There is an unsigned statement[8] which does address this issue, however given it is unsigned I can give it no weight.
[8] Reply page 23
I am therefore persuaded that the claimant did indeed employ person(s) to assist him in the performance of the contract. Whilst it is somewhat unknown who exactly that was be it a family member or someone else, I find as a matter of fact that he did indeed retain someone at times to assist him in the performance of that work.
The applicant challenged the statutory notice on the basis that the claimant was not a deemed worker. [9] The applicant has been successful in that regard.
[9] Application page 663 and applicant’s submissions.
I feel like I should make some short commentary in relation to whether the claimant was a worker.
When I look at the indicia of employment, If I was asked to consider the question of worker, I would not have found in favour of the claimant for the following reasons.
Firstly, it appears to me that no tax or superannuation was paid in the performance of the work. The claimant was not paid on an hourly rate but rather on a ‘per job’ rate.
Secondly, the claimant was free to accept or reject work at will.
Thirdly, in relation to the provision of tools, I find on the evidence before me that the ladder that was provided to perform the duties was indeed provided by the claimant as opposed to the applicant. I am persuaded by the evidence of Mr Georges that he did not own one of those ladders and further the evidence of Mr Nguyen who says that the claimant provided the ladder and indeed after the incident he put the ladder back in the claimant’s truck.
I therefore find that the claimant was not a deemed worker of the applicant company. The applicant is therefore not liable to pay the sum pursued on the statutory notice.
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