Gabi Duta Pty Ltd t/as Gabi's Agricultural Labour Services v Caldaras
[2008] NSWWCCPD 61
•19 June 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Reported Decision: Gabi Duta Pty Ltd (t/as Gabi’s Agricultural Labour Services) v Caldaras (2008) 7 DDCR 439 | ||||||
| CITATION: | Gabi Duta Pty Ltd t/as Gabi’s Agricultural Labour Services v Caldaras [2008] NSWWCCPD 61 | |||||
| APPELLANT: | Gabi Duta Pty Ltd t/as Gabi’s Agricultural Labour Services | |||||
| RESPONDENT: | Ional Carolan Caldaras | |||||
| INSURER: | Allianz Australia Workers Commission (NSW) Limited | |||||
| FILE NUMBER: | WCC9797-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 28 February 2008 | |||||
| DATE OF APPEAL DECISION: | 19 June 2008 | |||||
| SUBJECT MATTER OF DECISION: | Formation of a contract of employment; meaning of “camp or place”; whether worker was on a journey from his place of abode to a “camp or place” within the meaning of section 10(3)(e)(ii) of the Workers Compensation Act 1987. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Hicksons | ||||
| Respondent: | Macarthur Law Group | |||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 28 February 2008 is confirmed. | |||||
| The Appellant Employer is to pay the Respondent Worker’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
Ionel Caldaras (‘the Respondent Worker/Mr Caldaras’) was born in Romania in 1980 and came to Australia in 1990. From 1 August 2004 until 1 October 2004, he worked for Gabi Duta Pty Ltd (‘the Appellant Employer/Duta’), an agricultural labour services company run by Gabriel Duta, a fellow Romanian. Mr Caldaras’ duties included general hand and labouring work at vineyards in the Mudgee area of New South Wales.
Whilst he worked for Duta he stayed at the Mudgee caravan park where he paid rent monthly in advance. In addition to his labouring duties, he would sometimes drive a bus to pick up other workers from the caravan park and drive them to and from different vineyards. If he did not drive the bus to pick up other workers, he would be a passenger on the bus and would be taken to and from his work location for a fee of $5.00 with the bus being driven by another of Duta’s employees. The work was seasonal and, when it ran out in October 2004, Mr Caldaras left Mudgee and moved to Sydney where he rented accommodation at Liverpool.
On 3 November 2004, Mr Duta telephoned Mr Caldaras and requested him to return to work immediately. Mr Caldaras replied that he would return to Mudgee the next day. Whilst driving from Sydney to Mudgee on Thursday, 4 November 2004, Mr Caldaras sustained serious injuries in a car accident at Katoomba at about 6pm.
His claim for compensation was denied on several grounds. The only grounds that remain relevant on appeal are whether, at the time of the accident, a contract of service existed between Mr Caldaras and Duta, and whether his injuries were received on a journey to which section 10 of the Workers Compensation Act 1987 (‘the 1987 Act’) applies.
At an arbitration on 18 February 2008, the Arbitrator heard lengthy submissions from both paries. In a reserved decision delivered on 28 February 2008, the Arbitrator found in favour of Mr Caldaras on all issues.
By an appeal filed on 26 March 2008, Duta seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is agreed that the quantum in issue on appeal meets the thresholds in section 352(2) of the 1998 Act.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 28 February 2008, records the Arbitrator’s orders as follows:
“1. The Respondent pay the Applicant weekly compensation for a single worker with no dependants pursuant to section 36 of the Act in the sum of $987.44 from 5 November 2004 to 5 May 2005, and thereafter pursuant to section 37 of the Act at the statutory rate to date and continuing, in accordance with the Act.
2. The Respondent pay the Applicant`s medical expenses pursuant to section 60 of the Act for psychological injuries and orthopaedic injuries to the back, neck right hip, right leg and right ankle arising out of injuries sustained on 4 November 2004.
3. Respondent pay the Applicant’s costs as agreed or assessed.
Costs are certified as complex with an upload of 20%.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding Mr Caldaras was a worker as defined in section 4 of the 1998 Act (‘contract of employment’), and
(b)finding that Mr Caldaras sustained injury whilst on a journey to which section 10 of the 1987 Act applies (‘journey’).
SUBMISSIONS, EVIDENCE AND FINDINGS
Contract of Employment
The evidence is:
(a)Mr Caldaras worked about 60 hours per week (starting between 5am and 7am and finishing at 5pm or 6pm) at a flat rate of $16.95 gross per hour for Duta between 1 August 2004 and 3 October 2004;
(b)in this period, Mr Caldaras stayed at the Mudgee caravan park (as did other workers employed by Duta) and he paid his rent monthly in advance, though sometimes the rent was paid by “Gabi”, Mr Caldaras’ name for Mr Gabriel Duta (Mr Caldaras’ statement 11 December 2007, paragraph seven);
(c)in late September 2004, Mr Duta said to Mr Caldaras “We do not have any more work available at this stage I would like you to go back to Sydney and when work becomes available I will immediately contact you and will require you to come here to commence work.” Mr Caldaras responded, “I will go back to Sydney as I need to rent an apartment and commence a part-time TAFE course to improve my skills” (Mr Caldaras’ statement 23 August 2006, paragraph two);
(d)Mr Caldaras returned to Sydney, found a place to live at Liverpool and bought a car;
(e)Mr Caldaras had already paid rent for the caravan park for October 2004 and he left some clothes and other gear there as he expected he would be coming back, but he did not know when, and
(f)on 3 November 2004, Mr Duta telephoned Mr Caldaras and said “Could you please come back to work immediately as there is plenty of work available now and I am short of manual labour” (emphasis added). Mr Caldaras responded “I am leaving tomorrow to commence work immediately” (Mr Caldaras’ statement of 23 August 2006, paragraph four). This evidence is in substantially the same terms as Mr Caldaras statement of 11 December 2007 in which he added at paragraph nine “I still have the sleeper room in my name at the caravan park and I have paid in advance…I will leave aside my plans for a TAFE course…so I can come to Mudgee tomorrow”. The 2006 statement added at paragraph seven that Mr Caldaras also said to Mr Duta “I will go to Mudgee to help you for sometime however I am returning to my place in Sydney since my intention is to commence TAFE and I have already got an apartment”.
The only evidence from Mr Duta is a hand written note dated 8 June 2006 and an undated reference for Mr Caldaras headed “To Whom It May Concern”. In his statement of 8 June 2006, Mr Duta said:
“I, Gabriel Duta, declare that Mr Ionel Corolan Caldaras has worked in 2004 for my company Gabi Duta Pty Ltd.
It is true that I have called Mr Caldaras in Mudgee to restart springtime jobs in vineyards. I remember him ringing me before starting my jobs in the first week of November.”
Mr Duta’s evidence does not refute, or even properly address, Mr Caldaras’ claims. Not only did Mr Duta’s evidence not challenge Mr Caldaras’ assertions, the solicitor appearing for Duta at the arbitration did not seek to cross-examine Mr Caldaras and made no submission challenging the existence of a contract of service.
The Arbitrator found:
(a)Mr Caldaras received an offer of work from the Appellant Employer and he accepted that offer by taking the usual steps to return to the farm to start work “immediately” and he commenced his trip for that purpose (Statement of Reasons for Decision (‘Reasons’), page two bullet point five);
(b)there was an intention to create legal relations (Reasons, page two bullet point seven), and
(c)there was a mutuality of obligation of work for reward and no suggestion of a work trial (Dietrich v Dare (1980) 30 ALR 407) or any voluntary elements (Dickinson v The Tropical Fruits Incorporated (2006) NSWWCCPD 331) (Reasons, page two bullet point eight). Therefore, there was an intention to enter legal relations and that relationship was one employer and employee under a contract of service (Reasons, page three bullet point one).
The Appellant Employer submits:
(a)Duta employed Mr Caldaras as a casual from 1 August 2004 until 3 October 2004, when his employment was terminated;
(b)Mr Caldaras was invited to return to the Mudgee area to take up further employment, but there was no concluded contract or date on which he was to take up employment;
(c)the Arbitrator erred in finding that there was a concluded contract or that there was an intention to enter legal relations;
(d)the Arbitrator erred in finding that Mr Caldaras’ statement that he made arrangements to start work immediately was communicated to Duta;
(e)the Arbitrator erred in finding that Duta had agreed to offer employment commencing on a specific date, and
(f)the Arbitrator erred in finding that Mr Caldaras had pre-paid accommodation in Mudgee until about November 2004 and, therefore, clearly had local accommodation in order to commence work for Duta. The evidence is that Mr Caldaras had pre-paid for accommodation until mid November 2004, prior to any offer of employment being made, in the belief that his employment may have continued beyond October 2004. The accommodation was not arranged in response to any offer made by Duta to provide further employment.
For the reasons set out below, I do not accept these submissions.
The fact that Mr Duta requested Mr Caldaras to return to work “immediately” and that Mr Caldaras agreed and responded by attempting to drive to Mudgee on 4 November 2004 indicates that the start date was to be as soon as possible after the telephone conversation on 3 November 2004. No more specific starting date was required to give efficacy to the agreement. If it is suggested that the offer was merely an “invitation to treat”, I do not accept that it was.
Mr Duta made an offer to Mr Caldaras of immediate employment, which Mr Caldaras accepted. The basis upon which it is argued that there was no intention to enter legal relations is not explained in the Appellant Employer’s submissions. Given that Mr Caldaras had previously worked for Mr Duta’s company for a wage and given that Mr Duta stated that he would contact Mr Caldaras when more work became available, it is clear that the parties did intend to enter legal relations. It was not and could not reasonably have been suggested that Mr Caldaras intended to volunteer his services for free. Given the parties’ previous course of conduct I believe that a contract of service was concluded in the conversation on 3 November 2004. Whilst the exact terms of the contract were not discussed, it may be implied that the terms of the contract were the same or substantially the same as the terms under which Mr Caldaras worked between August and October 2004 (see B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20 at 26 and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347).
I reject the argument that the Arbitrator erred in finding that Mr Caldaras’ statement, that he made arrangements to start work immediately, was communicated to Duta. The only evidence on this issue is the unchallenged evidence from Mr Caldaras that he said to Mr Duta that he would leave the next day and “start work immediately”. The evidence establishes that Mr Duta acted on behalf of Duta. In the undated reference he gave to Mr Caldaras, Mr Duta described Duta as “my company Gabi’s Agricultural Labour Services”. The Arbitrator’s acceptance of Mr Caldaras’ evidence discloses no error.
The Arbitrator did not find that Duta agreed to offer employment on a specified date, as has been submitted by the Appellant Employer. He found that there was an offer of work by Duta and that Mr Caldaras accepted that offer by taking steps to return to Mudgee “immediately”. That finding is supported by Mr Caldaras’ uncontested and unchallenged evidence. The offer by Mr Duta, accepted by Mr Caldaras, was of “immediate” employment and, therefore, the failure to identify a specific starting date was, in the circumstances, of no consequence.
The Arbitrator’s reference to Mr Caldaras having pre-paid accommodation in Mudgee until about mid November 2004 and therefore having local accommodation in order to commence work for Duta was a reference to the fact that Mr Caldaras had paid for his accommodation in Mudgee in advance. Whether he had paid until mid November or only until the end of October is unclear, but that is of no consequence. It is correct that the accommodation had been paid for before the offer of employment on 3 November 2004 and, therefore, was irrelevant to the formation of the contract. Whilst the Arbitrator referred to the fact that the accommodation had been paid in advance, he did not base his finding in respect of the formation of the contract on that fact and did not suggest that the accommodation had been arranged in response to any offer by Duta to provide further employment. I do not accept the Appellant Employer’s submission.
The Arbitrator did not err in finding the existence of a contract of employment. The evidence supported that finding and was not even the subject of submissions by the Appellant Employer’s solicitor at the arbitration, though it was an issue identified in the section 74 notice and, therefore, was a matter the Arbitrator properly had to determine.
Journey
The Arbitrator identified the issue to be whether Mr Caldaras was travelling to a “camp or place” which fitted either of the two alternative places of temporary residence anticipated in section 10(3)(e) of the 1987 Act. He found:
(a)Mr Caldaras’ usual “place of abode” and usual residence at the time Mr Duta telephoned him about returning to work was Liverpool, Sydney and he did not have two places of residence (Reasons, page four bullet point four), and
(b)on the basis of the decision in Hofman, Mr Caldaras was travelling from his place of abode in Liverpool to a camp or place for the purpose of his employment (and work access) rather than a place related to his place of residence (Reasons, page four bullet point seven).
The Appellant Employer submits:
(a)the Arbitrator erred in finding that Mr Caldaras did not have an established place of abode in Mudgee;
(b)the subject journey did not have the daily or other periodic requirement that has been found to apply to section 10 of the 1987 Act. That is, Mr Caldaras was not travelling to work on the day of the accident but was travelling to his place of abode in Mudgee;
(c)Mr Caldaras’ accommodation at Mudgee was a permanent abode used by him when he resided there and was not a “camp or place” as referred to in section 10(3)(e) of the 1987 Act;
(d)Mr Caldaras was not travelling to a designated camp or place at the time of his accident but rather to take up employment, and the Arbitrator erred in his application of the principles in Hofman v Broken Hill Company Pty Ltd (1956) WCR 129 (‘Hofman’) and Skelton v Department of Education [1974] 1 NSWLR 127 (‘Skelton’).
The Arbitrator’s first finding (that Mr Caldaras’ usual place of abode was at Liverpool) was open on the evidence and discloses no error. Mr Caldaras’ clear and stated intention, as given in his unchallenged evidence, was to reside in Sydney and to complete a TAFE course. No submissions have been made as to why the Mudgee caravan park should been regarded as an established place of abode and, for the reasons stated below, I do not accept this proposition.
A journey that comes within section 10(3)(e)(ii) of the 1987 Act does not have to be a “daily or periodic” journey and it is not to the point that Mr Caldaras was not travelling to his place of employment at the time of his accident. The Appellant Employer’s submissions on this issue are misguided. To succeed, Mr Caldaras had to establish that he received a personal injury on a journey from his place of abode to a camp or place, within the terms of section 10(3)(e)(ii) of the 1987 Act.
The determination of the status of Mr Caldaras’ accommodation in Mudgee requires consideration of the relevant authorities. In Hofman, the worker lived with his parents in Wauchope. He obtained employment with the respondent in Newcastle and he and his brother “obtained lodgings in Newcastle”. After working for the respondent during the week, he drove to his parents’ house at Wauchope for the weekend. On the return journey from Wauchope to Newcastle on the Sunday he received injuries in a car accident. His claim relied on section 7(1)(d)(ii) of the Workers Compensation Act 1926, as amended, (‘the 1926 Act’), which provided:
“(d)The other journey referred to in (b) of this sub-section shall be…(ii) between any camp or place where the worker is required by the terms of his employment, or is expected by his employer, to reside temporarily or where it is reasonably necessary or convenient that he shall temporarily reside for any purpose of his employment, and the worker’s place of abode when not so residing.”
The Full Court held, in upholding the employers appeal by way of a stated case, that a “place” referred to in the sub-section must be something analogous to a camp. It must be “some premises or defined habitation used for the purpose of a temporary lodging” (at 380). The Court added:
“In our opinion, the words ‘camp or place’, in their context in this part of the section, again refer to a particular place of abode. This view is strengthened by a consideration of the words ‘for any purpose of his employment’. If the contrary view is adopted, then it must follow that it is reasonably or necessarily convenient that the worker shall reside in the neighbourhood in question merely because he desires to take employment with a particular employer whose business is carried on at a particular place, and he prefers to reside in the same neighbourhood rather than make a daily journey which occupies what, in his opinion, is an undue length of time. The section cannot be so construed without doing violence to the words used. The necessity or convenience referred to must be dictated by some circumstance of the particular employment, and not merely by the worker’s desire to work for a particular employer or in a locality which, in his opinion, is not located conveniently to his usual place of abode. It is because of the incidents of the work or the employer’s convenience render it reasonably necessary that the employee should temporarily reside away from his home at a camp or similar place of abode, that the liability is imposed upon the employer of compensating the employee for any injury he may sustain while travelling from his home to his temporary place of lodging.” (emphasis added)
Dealing with the term “camp or place” Owen J expressed the view in Toner v Leconfield Colliery [1961] WCR 101; [1961] NSWR 796 (‘Toner’) that a boarding house could be held to be a camp or place, and in Anderson v Atlas Construction Pty Ltd [1959] WCR 17, Conybeare J held that a hotel was a place where the worker was expected to temporarily reside and in Bray v Precision Golf Forging Pty Ltd [1965] WCR 182 a city club also fell within the meaning of camp or place as a temporary residence. After referring to these authorities, Gibson J held in Skelton v Department of Education [1974] WCR 191 at 195:
“It would appear that although the nature of the structure would normally be temporary and unsubstantial it could be of a permanent and substantial nature, such as a motel, hotel, club, barracks or canteen, but that, in such cases, the nature of the building would be such that it was normally occupied only by transients.”
Relevantly, section 10 of the 1987 Act provides:
“10 Journey claims
(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(1A) …
(1B) …
(1D) …
(2) …
(3) The journeys to which this section applies are as follows:(a) – (d)…
(e) a journey between any camp or place:(i) …
(ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker’s employment,
and the worker’s place of abode when not so residing,”
Mr Caldaras described his accommodation at the Mudgee caravan park as a “sleeper room”. It was clearly temporary accommodation intended to normally be occupied by “transients”, such as Mr Caldaras, or those on holiday. On the above authorities, I am comfortably satisfied that the Mudgee caravan park, and Mr Caldaras’ accommodation at the park, was a place used for “the purpose of temporary lodging” (Hofman).
The next question is whether it was “reasonably necessary or convenient that the worker reside temporarily [at the camp or place] for any purpose of the worker’s employment”. The Full Court made it clear in Hofman that the necessity or convenience referred to must be dictated by “some circumstance of the particular employment”, and not merely by the worker’s desire to work for a particular employer in a particular location. Whilst in Toner (at 107), Wallace J expressed reservations about this test, it is the test that I am bound to apply and I do apply.
The employment in the present case was generally seasonal work on vineyards in the Mudgee area (see Mr Duta’s statement headed “To Whom It May Concern”), though Mr Caldaras’ duties extended beyond merely tending to the vines (Mr Caldaras statement dated 11 December 2007, paragraph six). The workforce engaged by Duta included back-packers and students (many from overseas), some of whom stayed in the caravan park where they were picked up by a bus driven by one of Duta’s workers. It was clearly very convenient for Duta to have a pool of workers stay at the caravan park where they could be picked up and ferried to different vineyards in the area.
Though initially it may have been Mr Caldaras’ desire to work for a particular employer (as was the case in Hofman) that led him to work in Mudgee and to stay at the caravan park, at the time of the accident Mr Caldaras was returning to Mudgee because of Duta’s particular circumstances and at the express request of Mr Duta acting on behalf of the company. Mr Caldaras’ life had started to change tact after Mr Duta terminated his employment in early October 2004. He had moved to Sydney and established a new residence and intended to take a new direction in his life involving additional study at TAFE when Mr Duta contacted him with an offer of further employment. In these circumstances, the fact that Mr Caldaras returned to stay at the caravan park was clearly necessary and convenient for Duta, not Mr Caldaras.
These facts are in sharp contrast to the facts in Hofman where the worker moved into “lodgings” and obtained permanent employment with the employer in Newcastle. It was for the worker’s convenience that he found accommodation in Newcastle and then returned to Wauchope to visit his family on weekends. The situation is the opposite in the present matter. Mr Caldaras’ intended stay at the Mudgee caravan park from 4 November 2004 was clearly and unequivocally for the purpose and convenience of his employment with Duta and, therefore, his journey on that day was a journey within the terms of section 10(3)(e)(ii) of the 1987 Act.
For these reasons, the Arbitrator did not err in his application of the principles in Hofman and I do not accept the Appellant Employer’s submissions.
DECISION
For the reasons given in this decision, the Arbitrator’s determination dated 28 February 2008 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
19 June 2008
I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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