Formula One Container Service Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Formula One Container Service Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2025] NSWPIC 561
APPLICANT:	Formula One Container Service Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Wilhelm Konrad Purkis
MEMBER:	Josephine Bamber
DATE OF DECISION:	17 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); application pursuant to section 145 (an uninsured employer) for a determination as to its liability to reimburse the nominal insurer for payments it made in respect of the injury to the second respondent; the parties agreed the only issues in dispute were whether the second respondent was a worker employed by the applicant and/or whether he was a deemed worker under Schedule 1.2 of the 1998 Act; principles in Malivanek v Ring Group Pty Ltd applied; Held – the order made pursuant to rule 62 of the Personal Injury Commission Rules 2021 joining the second respondent to the proceedings is revoked; the second respondent was a deemed worker under Schedule 1.2 of the 1998 Act employed by the applicant; the applicant concedes it did not have a policy of workers compensation insurance for injury occurring to the second respondent; the applicant is liable and ordered to reimburse the nominal insurer for the payments it has made.
DETERMINATIONS MADE:	The Commission determines: 1. The order made on 4 October 2024 pursuant to rule 62 of the Personal Injury Commission Rules 2021 joining Wilhelm Konrad Purkis to the proceedings is revoked. 2. Wilhelm Konrad Purkis was a deemed worker under schedule 1.2 of the Workplace Injury Management and Workers Compensation Act 1998 on 26 January 2024 employed by the applicant. 3. The applicant concedes it did not have a policy of workers compensation insurance for injury occurring on 26 January 2024 to Wilhelm Konrad Purkis. 4. The applicant is liable, and is ordered, to reimburse the Workers Compensation Nominal Insurer for the payments it has made as claimed in its Notice dated 2 September 2024 issued pursuant to s 145 of the Workers Compensation Act 1987 in the amount of $115,963.75. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Wilhelm Konrad Purkis alleges he was employed by the applicant, Formula One Container Service Pty Ltd, as truck driver when he sustained injury on 26 January 2024.
It is agreed that at that time the applicant did not have a policy of workers compensation insurance.
The Workers Compensation Nominal Insurer (WCNI), the first respondent, issued a Notice pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) dated 2 September 2024 seeking reimbursement from the applicant for payments it had made to and on behalf of Mr Purkis in the amount of $115,963.75.[1]
[1] WCNI’s Reply p 212.
The Generic Application has been filed by the applicant pursuant to s 145(3) of the 1987 Act seeking a determination of its liability in respect of the payments set out in the Notice.
The issues in dispute are confined to whether Mr Purkis was a worker under s 4 of the 1987 Act and whether he was a deemed worker under schedule 1.2 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Should the applicant fail to succeed in establishing that it does not have liability in relation to the matter, the quantum of the payments are not disputed.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter proceeded in arbitration hearing on 17 July 2025. Mr Dennis Epstein, counsel, appeared on behalf of the applicant instructed by Mr Troung, solicitor, Mr Do and Ms Boyer. The WCNI was represented by Mr Tim Ainsworth, solicitor.
Previously on 4 October 2024 the alleged worker, Wilhelm Konrad Purkis, was joined to the proceedings by order of the Division Head Mr Capel. At the arbitration hearing he was represented by Mr Joseph Hallion, counsel, instructed by Mr Lorenzo Gutierrez, solicitor from Premier Lawyers. Mr Hallion sought for the order that had been made under rule 62 joining his client to the proceedings to be revoked. He foreshadowed this application in the conciliation phase of the proceedings and briefly outlined the reasons for his application at the start of the proceedings. Notwithstanding that I considered there are practical reasons for having a worker joined to proceedings brought by an uninsured employer pursuant to s 145 of the 1987 Act, I acceded to Mr Hallion’s application and revoked the order joining Mr Purkis to the proceedings.
Mr Hallion and the other parties agreed to the Commission considering the documents filed on behalf of Mr Purkis.
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

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Generic Application and attached documents;
(b)    WCNI Reply and attached documents;
(c)    Application to Lodge Additional Documents dated 20 January 2025 attaching the Reply and supporting documents filed on behalf of Mr Purkis;
(d)    Application to Lodge Additional Documents dated 24 January 2025 attaching financial documents filed on behalf of Mr Purkis;
(e)    Application to Lodge Additional Documents dated 29 January 2025 attaching statements from Huu Danh Do and Xen Ong filed on behalf of the applicant, and
(f)    four Applications to Lodge Additional Documents dated 17 July 2025 filed by the applicant attaching:
(i)statement of issues in dispute dated 17 July 2025;
(ii)Payslips from Foodboss Logistics Pty Ltd;
(iii)statements of Wilhelm Purkis dated 15 April 2024 and 25 February 2025 and
(iv)statement of Aisa Purkis dated 25 February 2025.

Oral evidence

There was no oral evidence. The legal representatives of the parties made oral submissions which have been sound recorded and a written transcript (T) has been made from that recording.

FINDINGS AND REASONS

I have summarised the various witness’s statements that are relevant to the issues in dispute. I have not summarised the medical evidence since injury and quantum of the payments made by WNCI to and/or on behalf of Mr Purkis are not in dispute. There was no written contract between the applicant and Mr Purkis.

Wilhelm Purkis’s statements

Mr Purkis has provided statements dated 15 April 2024, 20 January 2025 and
25 February 2025.
In his first statement[2] Mr Purkis said he worked for Mr Do five days per week, normally 40 to 55 hours. Mr Do is the director of the applicant, he is often referred to as “Danny”.
[2] WCNI’s Reply p 45 and in ALAD 17 July 2025.
Mr Purkis says he is an experienced truck driver having held his B double licence since 1999. He says he was employed as a permanent part time worker with an agreed hourly rate of $40 and he was not paid penalty rates for weekend work or if he worked over eight hours in a day. He says he was asked for his ABN and he asked Mr Do, who was going to cover insurance, and he was told that he did not need insurance as he was Mr Do’s employee. He says he had no idea if Mr Do was paying tax. He said he was not working under his ABN. He states he had no secondary employment when working for Mr Do. He says he used Mr Do’s truck and did whatever he was told to do by Mr Do or his manager, Xen.
Mr Purkis describes the accident and his subsequent medical treatment. I have not summarised this information as the only issues in dispute are whether he was a worker or deemed worker. He confirms he was not supplied with a uniform but said he had to provide his own PPE such as safety boots, vest, short and pants and gloves. He said he could not sub-contract any of the work. He said he was not engaged for a fixed period. He said he did not provide a warranty or guarantee his work. He says he is not registered for GST and he issued invoices to advise the number of hours he worked during the week. He was paid direct into his bank account each Friday. He says he was not able to refuse any work offered by Mr Do.
In his statement dated 20 January 2025[3] Mr Purkis says in his interview with Mr Do on about 31 December 2023 there was no mention of the payment of tax. He says he believed he was applying for a position as an employee. He was advised post-accident by his accountant that no tax or superannuation was paid by Mr Do. He denies that Mr Do told him tax and insurance was his responsibility. He says when he provided Mr Do with his ABN he specifically asked Mr Do who was going to cover insurance and Mr Do was very reassuring confirming he would be his employee.
[3] Purkis’ Reply p 6.
He says Mr Do was in total control of his schedules and hours he needed to work. It was his truck and he was not allowed to take it home or use it for additional work with someone else. Mr Purkis says he did not sublet his contract or employ any workers to assist him with his duties. The truck was provided by Mr Do and he did not have to pay for petrol or maintenance and he did not supply any tools or equipment. He did not have to clean the truck. He says at the end of each job Mr Do would confirm completion by phone or CB radio and allocate a new task. He says Mr Do could listen to conversations between the drivers via the CB radio and he could intercept internal conversations and provided further instructions concerning the tasks they were working on.
In his statement dated 25 February 2025[4] Mr Purkis says he does not recall Mr Do asking him to do work that he was unable to perform because he had to work for a friend. He says he did occasionally work weekends for another employer, Foodboss. He said that Foodboss provided him with a truck and uniforms and he was employed on a causal basis, randomly when they needed someone to cover loads. He explains deposit entries in his bank statements were from friends, neighbours and his ex-wife. He says following his accident all these people helped by lending him money. He also says he deposited money from winning at poker machines at the Crown Hotel. Finally, he states on 12 July 2024 $15,000 was paid to him by icare as back pay.
[4] ALAD 17 July 2025 p 1.
His wife Aisa Purkis has also made a brief statement dated 25 February 2025.[5] Aisa Purkis’s statement does not have probative information as she did not hear the conversation
Mr Purkis had with Mr Do when they met at Milperra in December 2023. She says on the way home at the time Mr Purkis told her he would be working for Mr Do during weekdays when work was available and they had agreed to a flat hourly rate of $40 per hour. She says she assisted Mr Purkis with his bookkeeping and because English is not her first language she occasionally made mistakes such as using the wrong ABN.

Huu Danh Do’s statements
[5] ALAD 17 July 2025 p 2.

Mr Do has provided statements dated 15 May 2024[6] and 24 January 2025.[7] In his first statement he says he runs the applicant’s company which delivers shipping containers from the port to customers. He says he operates the business from his home and he does not employ staff. He says he only has contractors. He states he has four trucks which he stores at a yard at Milperra. He also states he started the business in March 2022 and has about two sub-contractors and he also works with them.
[6] Application p 7.
[7] ALAD 29 January 2025 p 1.
He says the prior year (2023) he advertised on Gumtree for a driver but he made no mention in the advertisement of the pay or whether it was to be full or part-time. He no longer has a copy of the advertisement. He says in about December 2023 Mr Purkis contacted him by phone. I note at [3] of this statement Mr Do says he requires the services of an interpreter but it seems from the contents of [12] when he relates this phone call and subsequent meeting in [16] he was able to communicate with Mr Purkis.
Mr Do says, in response to his questions, Mr Purkis told him he had a maritime security card to enter a port terminal, had an ABN and had experience in container delivery.
Mr Do says Mr Purkis asked him about the rate of pay, which he replied was $40 per hour including GST and Mr Do said he would call Mr Purkis when he needed him. Mr Do relates that they subsequently met at a customer’s yard at Smithfield and they discussed payment. He states that Mr Purkis said when he finished a job he would send an invoice, which Mr Do agreed would be paid the same day.
At [17] Mr Do says he told Mr Purkis it was his responsibility to pay tax and insurance and he said that was ok. In his second statement Mr Do says $40 per hour was a higher rate than employees would get, which was about $22 per hour. He says Mr Purkis wanted to be paid immediately and he organised payment would be through Pay ID which would be done by his sister, Anh Do, who worked from home. He denies saying to Mr Purkis that he was to be his employee.
Mr Do says he rang Mr Purkis on 2 January 2024 and told him to go the next day to Milperra to get the truck. Mr Do says he met him there and he asked Mr Purkis what licences he had and he replied he had an MC double licence which enabled him to drive a truck. He drove
Mr Do’s truck to the Patrick’s terminal where the port company would load the container onto the truck and Mr Purkis would have to lock the container onto the truck. Mr Do says he did not provide training and Mr Purkis said he had undergone the Patrick’s induction. Mr Do says the process was for Mr Purkiss to drive to the customer’s premises where another of Mr Do’s drivers would attend and using a truck with a side lifter, lift the container off Mr Purkis’s truck after the container had been unlocked by Mr Purkis. In his second statement Mr Do said he met Mr Purkis at every customer’s site on the first day with another truck that had the side lifter and he helped him remove the container.
Mr Do says at the end of each day Mr Purkis would ring and tell him he had finished and ask if there was work the following day. Mr Do says on two occasions Mr Purkis said he could not work because he had to work for a friend. Mr Do also states there was no work between 19 January to 26 January because they had no work. In his second statement Mr Do said he rang Mr Purkis twice to work on weekends but he said he could not do that because he had to work for a friend and that he had had the arrangement with his friend for many years.
Mr Do says Mr Purkis did not need to fill up the truck with petrol nor did he wear a uniform.
Mr Do states on 26 January 2024 Mr Purkis took a container to Smithfield and he met the other driver and together they had to lift the container and apparently the stabiliser leg of the side lifter had slipped and hit Mr Purkis in the face.
Mr Do states the other driver, Xen, contacted him and the ambulance and Mr Purkis was taken to Westmead Hospital. He says the police and Safe Work came to the job site and
Mr Do went and met them and filled out a form and he gave a statement to Safe Work.
Mr Do says after this Mr Purkis started texting him requesting money and he gave him $1,000 or $2,000 in addition to his pay. He says he only gave him money because he felt sorry for him and he had young children. Mr Do states his understanding was that he was not an employee and because of that reason he did not have workers compensation insurance. In his second statement he says after the accident Mr Purkis’s wife rang him to ask for money and he went to their home and gave her $1,000 in cash and said it was a loan. He said he thinks he went back a week later and gave her another $500. At these times
Mr Purkis was in hospital.
In his second statement Mr Do he says the advertisement he placed for a driver was put on What’s App on 12 December 2023 stating “Looking for HC driver, must have experience with side loader and have MSIC access card. Please contact Danny on (telephone number)”. He says he annexes a copy of the What’s App message however, it is not attached. A copy is attached to Mr Purkis’s statement dated 20 January 2025.
He says the reason he advertised for a driver was to replace a permanent driver who was going on holidays in December. He says he paid for petrol for all of his contractors and he never requested Mr Purkis work Monday to Friday, he had the choice of when he wanted to work. He also states he only intercepted his CB radio when he needed Mr Purkis to do something.

Xen Ong’s statements

Mr Ong’s first statement has the date 23 April 2024 in its heading but it is not signed. He says he is not sure how Mr Purkis was employed whether full time, part-time, causal or a contractor. Mr Ong says he gave the instructions each day as he runs the day’s work and manages the business for Mr Do. He says on 26 January 2024 he was at Preference Floors, Smithfield when Mr Purkis arrived and parked his truck and unlocked the pins from the trailer ready for the containers to be unloaded with the side lifter. He described how the accident happened and that he saw Mr Purkis on the ground unresponsive with his face bloody and his cheek hanging off his face. Mr Ong says he thought Mr Purkis was “gone” and he called the ambulance. He says about five minutes later Mr Purkis “came to” and the ambulance came and took him to hospital.
Mr Ong confirmed that none of them wore a uniform. He does not know whether Mr Do had a workers compensation policy or how Mr Purkis was paid.
Mr Ong provided a further statement dated 24 January 2025, which is signed. He says he is an independent contractor, with his own ABN and company and he has his own workers compensation insurance. He works for an hourly rate of $40. He says as far as he is aware that Mr Purkis was hired because he was on holidays and when he returned he was still working for Mr Do. He says he did one or two jobs with him before the final job when he injured himself. He says he did not have much to do with him and he was not aware of the arrangements Mr Purkis had with Mr Do.

Invoices

Tax invoices bearing dates 5, 12, and 19 January 2024 addressed to “Formula One Containers Service Pty Ltd” from “Bill Purkis Transport”, “ABN 58-018-318-958”, show jobs performed on various dates with the hours worked and a total for each job and with the request “please pay to PAY ID”. A phone number is given but I have not reproduced it to avoid identity theft, nor have I reproduced his address.[8]
[8] Application pp 20-22.
An ABN search reveals the above ABN number is held by Wilhelm Purkis.[9]
[9] Application p 18.
At pages 23 to 50 are various SMS text messages from “Bill” to “Danny”.

Foodboss Logistics Pty Ltd

Payroll advice statements have been filed showing payments from Foodboss Logistics Pty Ltd to Wilhelm Purkis in the pay periods to 26 June 2023 to 21 January 2024. The payments are described as wages and tax is deducted and superannuation paid. In January 2024 the hours worked in each weekly pay period were 9.5, 9.75 and 9 for what appears to be one overtime shift in each weekend.

Determination

I will refer to the parties’ submissions where relevant in my determination. I do not intend to reproduce them verbatim as they have been recorded and a written transcript is available, made from the recording.
The difficulty in this case is that there is no written contract between the applicant and
Mr Purkis. The only persons with knowledge of the terms between them are Mr Purkis and Mr Do and they give opposite accounts of key aspects of their conversations. Each has a reason to lie. Mr Do is the director of the applicant and his company did not have workers compensation insurance. Mr Purkis sustained serious injuries on 26 January 2024 and wished to receive compensation from WCNI. He is still in receipt of payments. Therefore, each person has a significant financial reason to give a version of the conversation to suit themselves.

Neither Mr Do or Mr Purkis were cross-examined and no applications were made to do so.
They agree on the following facts:
(a)    on 12 December 2023 an advertisement was placed on What’s App seeking a driver. “Looking for HC driver, must have experience with side loader and have MSIC access card. Please contact Danny on (telephone number)”. However, there is nothing in that advertisement to indicate what was to be the proposed employment status of the driver;
(b)    Mr Purkis rang Mr Do in response to this advertisement;
(c)    they met on 31 December 2023 at Milperra where a conversation took place between Mr Do and Mr Purkis;
(d)    Mr Purkis would be paid $40 per hour;
(e)    he did not wear a uniform;
(f)    the truck was supplied by Mr Do and he paid for petrol;
(g)    Mr Purkis did not engage workers to assist him performing the duties for the applicant;
(h)    there was no discussion about whether Mr Do would deduct tax or pay superannuation, and
(i)    it is evident from Mr Purkiss’s invoices he did not charge Mr Do GST.
Mr Do denies he said to Mr Purkis that he was his employee. He denies Mr Purkis asked him when he supplied his ABN who was going to take care of insurance. Mr Do denies that he said that he would.
Mr Purkis said he had no secondary employment when working for Mr Do yet Mr Do says he offered Mr Purkis a weekend shift on two occasions and Mr Purkis declined saying he “had work for a friend”. Mr Purkis does not recall this conversation but he says he did occasional work for Foodboss Pty Ltd.
“Worker” is defined in s 4 of the 1998 Act to mean a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). There are a number of exceptions but they do not apply to the facts in this matter.
The following matters discussed by Roche DP in Malivanek v Ring Group Pty Ltd[10] need to be considered:
“[165] However, as the control test is not determinative, that is not the end of the analysis. The other indicia that must be considered include the provision of tools and equipment, the method of remuneration, the arrangements about hours of work and the provision of holidays, the obligation to work, the arrangements about taxation, and the capacity to delegate work (Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 at 24 (Stevens v Brodribb)).
[167] The method of remuneration is a less than ideal indicator that must be treated with care. A contract that gives a quote for a specific outcome is often associated with an independent contractor relationship, but that will not always be so. Remuneration at an hourly rate, as opposed to remuneration for a specific outcome, may be consistent with an employer/employee relationship or an independent contractor relationship (see the discussion on this topic in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 at [277] (On Call Interpreters)).
[170] regularity of hours suggests an employer/employee relationship.
[171] there were no arrangements for holidays or sick pay and this points to an independent contractor.
[172] no obligation to work points strongly to an independent contractor relationship.
[173] no deduction of tax and charging of GST points strongly to an independent contractor relationship.
[174] no power to delegate strongly points to an employer/employee relationship.”
[10] [2014] NSWWCCPD 4, Malivanek.
A consideration of these matters in this case results in some facts supporting an employer/employee relationship and some pointing to an independent contractor relationship.
The evidence about control I find tends to support an employee relationship notwithstanding that Mr Do relies on the fact there was no training. Mr Purkis relies on the fact that Mr Do or Xen managed each removalist job and he did what he was told. In addition, the respondent submitted that the evidence is that Mr Purkis was told when to drive the truck, where to drive the truck and when to start and finish by Mr Do on behalf of the applicant.[11] I accept these are facts that do point to an employee/employer relationship.
[11] T39.
The provision of tools and equipment I find suggests an employment relationship existed because the applicant provided the truck. It paid for petrol and maintenance. The trucks were kept when not in use at the Milperra yard as required by the applicant and were not available for Mr Purkis’s private use. The fact that Mr Purkis supplied his own PPE gear in terms of work boots and clothing I find does not detract from this finding.
The payment of $40 per hour can be considered a factor supporting both scenarios. However, the fact that Mr Purkis did not charge the applicant GST is more consistent with an employment relationship. Yet the invoices of Mr Purkis, referring to Bill Purkis Transport and use of his ABN, I find are more consistent with an independent contractor arrangement. The evidence is silent as to the payment of sick pay and annual leave. It later transpired that the applicant did not deduct taxation or pay superannuation, which are facts indicative of an independent contractor arrangement.
The evidence about obligation to work is not certain. Mr Do says Mr Purkis refused two weekend shifts as he had a prior arrangement to work for a friend. Mr Purkis does not recall this but I am inclined to accept Mr Do’s recollection as later Mr Purkis does give evidence about working for Foodboss and this appears to be weekend shifts. However, the ability to decline shifts can be viewed equally as consistent with casual employment or being an independent contractor.
The fact that Mr Purkis did not work exclusively for the applicant is an equivocal fact. I find there is no evidence that he did work other than for Foodboss and he worked for them as an employee, as discussed further below.
There is no evidence that Mr Purkis had the power to delegate his work for the applicant and this suggests an employment relationship.
The respondent submitted that Mr Purkis did not have the ability to manage the activity in a way that would maximise the profit for himself and he had no risk in relation to how the job was performed. The risk was held by the applicant.[12] I accept these are factors that are consistent with an employee relationship.
[12] T39.
The main factual dispute is the contents of the conversations between Mr Do and Mr Purkis about insurance coverage and him requiring Mr Purkis to use his ABN. I simply cannot tell who is telling the truth on the available evidence.
The applicant’s counsel submitted that Mr Xen Ong’s evidence is relevant, that he has his own insurance and is an independent contractor. However, I do not accept that just because Mr Ong has this type of arrangement with the applicant means that Mr Purkis also did.
Because I find below that Mr Purkis was a deemed worker of the applicant, it is unnecessary to make a definitive finding about whether he was a worker.

Deemed worker

Schedule 1.2 of the 1998 Act provides for the situation where a contractor is deemed to be a worker employed by the contracting party. It states:
“(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.”
At [186] in Malivanek Roche DP stated:
“In Scerri v Cahill (1995) 14 NSWCCR 389, Bainton AJA (Kirby ACJ and Rolfe AJA agreeing) held (at 399D) that, to rely on cl 2 of Sch 1, an applicant must establish that:
(1) he (or she) was a party to a contract with the respondent to perform work;
(2) the work exceeded $10 in value;
(3) the work is not work incidental to a trade or business regularly carried on by the applicant in his (or her) own name or under a business or firm name, and
(4) the applicant has neither sublet the contract nor employed workers in the performance of it.”
In the subject matter before me both Mr Do and Mr Purkis agree there was an oral contract between them for Mr Purkis to perform removalist work and the work exceeded $10 in value.
I reject the submissions of the applicant’s counsel that because Mr Purkis did work for Foodboss he was carrying on business as a truck driver.[13] I find it cannot be concluded that Mr Purkis, just by undertaking the employment with Foodboss, was engaging in work incidental to a business regularly carried on by him in his own name, or under a business or firm name. The reason for this finding is the fact that Mr Purkis’s work for Foodboss was clearly as an employee of that company. As submitted by the respondent, the payslips described the amounts paid to Mr Purkis as “wages” and tax was deducted with superannuation paid.[14] Quite simply Mr Purkis was not carrying on a business when performing this work, he was an employee of Foodboss.
[13] T28.
[14] T41.
The applicant has the onus of proof. It has not established that Mr Purkis was carrying on a business regularly under his name or a firm name. He did refer to himself as “Bill Purkis Transport” and listed his ABN on the invoices but I find these facts, without more details, do not establish he falls outside the deemed worker provision. I consider a powerful fact against such a conclusion is that Mr Purkis did not charge the applicant GST on his invoices. Furthermore, there is no evidence that Mr Purkis sublet the contract or employed anyone to perform the work.
Therefore, I find Mr Purkis is deemed to be employed by the applicant because of schedule 1.2 of the 1998 Act.
Accordingly, I find that the applicant is liable, and is ordered, to reimburse the WCNI for the payments it has made as claimed in its Notice dated 2 September 2024 issued pursuant to s 145 of the 1987 Act in the amount of $115,963.75.

[2025] NSWPIC 561

17 October 2025