Galal v University of New South Wales - [2020] NSWWCCPD 74

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Galal v University of New South Wales [2020] NSWWCCPD 74
APPELLANT:	Amal Galal
RESPONDENT:	University of New South Wales
INSURER:	Self-insured
FILE NUMBER:	A1-2396/20
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	14 August 2020
DATE OF APPEAL DECISION:	21 December 2020
SUBJECT MATTER OF DECISION:	Factual determination – whether material facts were overlooked or given too little weight; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 discussed; s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – principles applicable to a determination of whether there is a contract of service – Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; 93 CLR 561, Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson [2013] NSWWCCPD 49 discussed; cl 2 of Sch 1 to the 1998 Act – deemed worker – Scerri v Cahill (1950) 14 NSWCCR 389 discussed
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Law Partners
Respondent:
Mr D Adhikary, counsel
Bartier Perry
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 14 August 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Ms Amal Galal (the appellant) migrated to Australia from Egypt in 2000. She completed high school and then studied at the University of New South Wales. She was awarded a Bachelor of Medical Science in 2016 and, in the following year, a Bachelor of Science (Honours).
In October 2017, the appellant applied for admission as a Higher Degree Research Candidate for the purpose of obtaining a Doctor of Philosophy (PhD). She was offered admission as a candidate on 8 November 2017. The appellant had also applied for, and was granted, an Australian Government Research Training Program scholarship (the research scholarship), which was administered by the University of New South Wales (the respondent). In addition, the appellant was provided with a Research Training Program fees offset scholarship (the fees offset scholarship) as a contribution to her training fees.
On 9 May 2018, the appellant was performing her research activities, which involved injecting the tail of a mouse with a virus. On three occasions, she failed to find the vein with the syringe and the viral fluid sprayed onto her face. On the first two occasions, the fluid sprayed into her eyes and on the third occasion, the fluid went on her lips and mouth.
Two days later, the appellant developed symptoms of a high fever, blocked nose, enlarged lymph nodes, fatigue and nausea. Further symptoms developed, and on 19 May 2018, the appellant attended the St George Hospital Emergency Department.
The appellant continued to suffer from symptoms of chronic fatigue, shaking and muscle pain. The appellant terminated her PhD studies approximately six months after the injury because of her continuing symptoms.
The appellant made a claim for workers compensation against the respondent. The respondent disputed that the appellant was a “worker” within the meaning of s 4 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act), or a “deemed worker” in accordance with cl 2 of Sch 1 to the 1998 Act. The appellant brought proceedings in the Commission, claiming weekly payments and treatment expenses and the matter proceeded to arbitration on 16 July 2020. The Arbitrator issued a Certificate of Determination on 14 August 2020 in which he determined that the appellant was not a worker pursuant to s 4 of the 1998 Act, or a deemed worker under cl 2 of Sch 1 to the 1998 Act, at the time of injury.
The appellant appeals that decision.

ON THE PAPERS

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.”
The appellant indicates that the appeal can be determined on the papers but submits that an oral hearing may be beneficial. The respondent is content for the appeal to be determined on the papers.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers.’

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE RELEVANT EVIDENCE

The appellant’s statement

The appellant provided a statement dated 28 April 2020.[1] The appellant asserted that she commenced employment with the respondent on 12 February 2018 as a PhD student and researcher on a full-time basis, working 40–60 hours per week. She said her gross average earnings were $550 per week. She described her duties as follows:
(a)    laboratory activities, including fine needle injections, pipetting, and transfer of fluids;
(b)    conducting experiments;
(c)    cleaning and maintenance of the laboratory;
(d)    processing, organising and summarising data, and
(e)    general duties incidental to undertaking research and performing general laboratory duties.
[1] Application to Resolve a Dispute (ARD), pp 1–8.
The appellant referred to the conditions of the arrangement between her and the respondent. She said that:
(a)    at the commencement of the arrangement with the respondent, she was granted a scholarship on the condition that she performed her research at the respondent’s campus;
(b)    her PhD topic had to be approved by the respondent, and her work was supervised by Professor Lars Matthias Ittner and Dr Yazi Ke;
(c)    the scholarship was paid fortnightly;
(d)    the respondent recorded both gross pay and net pay, however, no tax was taken out, and there was no GST identified;
(e)    she did not have to work at any set time;
(f)    the respondent provided all the materials she needed;
(g)    she was required to regularly report and discuss the progress of her research with her supervisors, who would make suggestions concerning her further research and her thesis, although it was ultimately up to her to decide what to write about;
(h)    the respondent retained the intellectual property in the results of any research and in her PhD thesis, and
(i)    her contract was an agreement that she would engage in the research and create intellectual property for the respondent, and in exchange, the respondent provided payment of the research scholarship.
The appellant advised that on 9 May 2018 she was working in the laboratory of the respondent’s campus where she was required to inject a virus into the vein of tail of a mouse. She said she was being supervised by a post-doctorate student and a 2nd year PhD student, who were both working on different levels of the laboratory. The appellant stated that on two occasions, she missed the vein and when she pressed on the plunger of the syringe the fluid sprayed back into her face and eyes. She was not wearing protective goggles. The appellant washed her eyes out and continued the experiment wearing goggles. She said that on the third attempt, she again missed the vein and on this occasion the fluid landed on her lips and mouth. The appellant washed her mouth out and she said she noticed that there was blood in her saliva. The appellant said that after work that day, she went home and showered, thoroughly washing her face.
The appellant reported that on 13 May 2018, she suffered an onset of symptoms which included a high fever, blocked nose, enlarged lymph glands and extreme fatigue and nausea. She sought treatment from a general practitioner the following day, who performed blood tests and certified her unfit for work for two weeks. The blood test results disclosed that there was a suggestion of a viral infection. The appellant said that her symptoms continued, and she began to experience mouth ulcers and painful gums.
The appellant advised that she had recovered sufficiently to return to work on 6 June 2018, but began to feel very fatigued and experienced muscle pain, cramping, twitching and shakiness. In July 2018 the appellant took leave of absence until 18 February 2019, but shortly after her return, she took steps to terminate her PhD because of health issues and the distress about working with viruses.
The appellant provided details of her ongoing symptoms and treatment.
The appellant asserted that she firmly believed that she was a “deemed worker” for the following reasons:
(a)    she had a contract with the respondent;
(b)    her research topic and its parameters were set and allocated by the respondent;
(c)    the respondent provided her with all the necessary equipment;
(d)    the respondent set the hours she was required to work;
(e)    the end product of her research would be the respondent’s property, as well as any potential profit flowing from the findings;
(f)    the research scholarship was subject to tax and paid regularly by the respondent, and was conditional upon her performing her duties in the laboratory, and
(g)    she was required to remain with the respondent and not engage in any like tasks with another employer or education institution.

The evidence of Ms Cheryl Law, Senior Administrative Officer

Ms Law, an employee of the respondent, provided a statement dated 11 June 2020.[2] She said that she had worked for the respondent since 2011 and that her duties included reviewing scholarship assessments, determining scholarship applications and eligibility, as well as issuing “award” letters in respect of all research candidates.
[2] Application to Admit Late Documents (AALD), pp 5–12.
Ms Law indicated that the scholarships were intended to provide the student with assistance in living costs, additional allowances and tuition fees. Ms Law advised that the appellant was offered a scholarship on a conditional basis, subject to the completion of her degree studies at the required level. In January 2018, the appellant provided final transcripts that showed she had completed her honours degree at the requisite level, so she was offered a full admission and scholarship in March 2018.
Ms Law advised that the appellant’s application would have firstly been assessed by the School of Medical Sciences and then by the Faculty of Medicine. If approved, a score would be allocated by the Faculty and then the Graduate Research School (GRS) (the centralised unit for all relevant aspects of graduate research) would rank the applications according to merit.
Ms Law stated that there are a finite number of scholarships and they are funded by a research grant from the Commonwealth Government and are allocated according to how many students from each university complete their research degrees in one year. Ms Law said that the respondent determines how much of the grant will be allocated to scholarships and the GRS allocates and awards the scholarships, as well as other, university funded, scholarships.
Ms Law indicated that the applicant for the scholarship could, without providing reasons, elect which semester was to be the commencement semester and, if the scholarship has commenced, the recipient could defer any semester if funding, supervision and resources were available for the new semester. Ms Law said that the recipient had to have the status of a full-time student and, while in receipt of the scholarship, was precluded from being employed full-time by the respondent.
Ms Law advised that the appellant was permitted to perform limited paid work on the proviso that it did not interfere with her research, and she was required to perform 35 hours of research per week, which is considered to be full-time. Ms Law said that the appellant’s scholarship was for her to complete her doctorate over 3.5 years, but if she had chosen to downgrade the degree to a Master’s degree, it would have been for two years,
Ms Law explained that the stipend for the research scholarship amounted to $27,082 per annum and the procedures and guidelines indicate that it is intended to assist with the student’s general living costs. Ms Law asserted that the research scholarship stipend was not paid as a salary or paid pro-rata for the number of hours the appellant spent studying, regardless of how many hours the appellant might spend undertaking her research.
Ms Law said that the appellant and her supervisor would have discussed the appellant’s research topic prior to commencement and would jointly decide on the topic. The appellant’s progress would then be tracked until the thesis was submitted. Ms Law contended that this was different to an employment arrangement because in those circumstances, the employee was applying to undertake certain duties and responsibilities specified in the contract.
Ms Law confirmed that the payments are made fortnightly and the appellant was not required to provide proof of her entitlement by, for example, a timesheet. Ms Law said the appellant’s time was managed by her supervisor and her progress was managed by the Research Progress Review process. Ms Law said that the appellant was required to undertake that process by lodging a form online (which required her to disclose how many hours of paid employment she had undertaken) and participating in a meeting with an independent panel to discuss her progress. Ms Law indicated that the only impact the review process would have on the scholarship would be if the student’s progress was unsatisfactory at multiple reviews, resulting in the termination of the student’s candidature.
Ms Law advised that the fortnightly payments were made through the payroll system directly into the student’s account. She said the research scholarship was not subject to income taxation and no superannuation was paid. Ms Law said that the appellant was entitled to a period of sick leave if she needed to take time off from her research because of illness and in some circumstances could continue to receive the stipend during that period. Ms Law also said that the recipient of the scholarship was entitled to recreation leave, which was to be negotiated with the supervisor and not requested through the human resources system, as would be the case for an employee. Ms Law indicated that the purpose of the 20 days’ recreation leave was to give the student the ability to take some time off from the research work.
Ms Law observed that, to her knowledge, the respondent would not control what the appellant did each day and it was up to the appellant to decide how to go about the research. She said that each student had two supervisors who were academics, who would meet with the student and discuss the research in order to assist the student and progress the student’s study. Ms Law stated that the research supervisors would have no control over the termination of the appellant’s research scholarship. The research scholarship payments would only be suspended or terminated if the appellant discontinued her studies, left Australia other than for approved overseas study, requested the payments to be suspended or changed her enrolment in a manner that affected her eligibility.
Ms Law stated that the respondent was responsible for the provision of resources, including specialised equipment and every student had an identity card that allowed them access to laboratories, books and other resources. Ms Law thought that the appellant may have had a “MyStaff” profile in order to be able to confirm that the fortnightly payments were paid.

The documentation

The research training program acceptance form and conditions

The research training program acceptance form and conditions required the recipient of the scholarship to acknowledge that he or she had read and understood the guidelines for Commonwealth scholarship holders and agreed to acknowledge the respondent in the research outcome material.[3]
[3] Reply to Application to Resolve a Dispute (Reply), p 20.

The offer of admission as a Higher Degree Research Candidate

The letter of offer from the respondent dated 8 November 2017 offered the appellant admission as a Higher Degree Research Candidate. In the letter, the respondent advised that if she had applied for a scholarship, she would be notified of that application in separate correspondence. The letter confirmed that the start date of the candidature would be from the first semester in 2018 and the research topic would be “frontotemporal dementia and amyotrophic lateral sclerosis.” The letter provided information about the review process, in particular that continuing enrolment in the research program was contingent upon satisfactory review process outcomes during the first twelve months. The letter also advised of the consequences of unsatisfactory reviews. It also informed the appellant that all domestic Higher Degree Research Candidates were awarded a fees offset scholarship paid from the Australian Government and that the appellant was required to acknowledge the Commonwealth’s contribution in any publication or material produced that related to the research project carried out by the appellant.[4]
[4] AALD, pp 14–16.

The award of the research scholarship

On 29 November 2017, the respondent advised the appellant that she had been awarded a conditional research scholarship which was available for commencement either in the first or second semester in 2018. The offer was conditional upon the appellant having successfully completed her master’s degree.[5]
[5] AALD, p 19.
An unconditional offer was made to the appellant by letter dated 5 March 2018. The letter advised that the research scholarship provided:
(a)    a stipend valued at $27,082 per annum (indexed annually) for 3.5 years;
(b)    a fee offset to cover tuition fees during that period, and
(c)    other specific allowances to assist with ancillary costs of the program.[6]
[6] AALD, pp 20–21.

The Commencement of Study Form

The Commencement of Study Form required the appellant to acknowledge that, as a research scholarship recipient, she was permitted to receive income or undertake paid employment provided that the source of the financial benefit did not interfere with her research or her ability to study full time (35 hours per week). The form also required the appellant to acknowledge the terms in which the award would be terminated.[7]
[7] AALD, p 23.

The research scholarship payment summary

The research scholarship payment summary confirms that the appellant was in receipt of the research scholarship stipend from 12 February 2018, that the scholarship was suspended from 10 August 2018 and that there was no taxation deducted from those payments.[8]
[8] ARD, p 182.

The Higher Degree Research Scholarships Procedure

The Higher Degree Research Scholarships Procedure document set out the types of scholarships available and described the research scholarship as a “stipend.” The document indicated that the Higher Degree Research scholarships were to provide financial assistance to recipients while they were enrolled with the respondent for the purpose of conducting research for their higher degree. The scholarships were to be awarded on the basis of academic merit, research experience and research potential. The procedure identified the necessary qualifications required and the conditions attached to the scholarships, which included:
(a)    the expectation that candidates would spend a minimum of 35 hours per week on their research;
(b)    that any employment activities undertaken would not interfere with the research or the requirement to undertake fill-time study;
(c)    the circumstances in which an award could be suspended or entitlement could be terminated, and
(d)    the entitlement to paid annual leave and sick leave.[9]
[9] AALD, pp 28–38.

THE ARBITRATOR’S REASONS

The Arbitrator provided a detailed summary of the evidence and both parties’ submissions. In relation to the evidence about the research scholarship and the fees offset scholarship, the Arbitrator observed that:
“This material shows the distinction between the scholarship stipend for the costs of living and the enrolment in the PhD research program. Only the element of the scholarship for tuition and other fees is automatically available to all domestic students in the program. The stipend is a separate element of the scholarship involving a competitive process based on merit.”[10]
[10] Galal v University of New South Wales [2020] NSWWCC 275 (reasons), [57].
The Arbitrator observed that in his view, the appellant was a full-time student at the time of her injury and that the ‘worker’ indicia set out in the caselaw did not assist him because they were not relevant to the true nature of the relationship. He reasoned:
“The nature of the relationship between [the appellant] and the [respondent] was one in which she sought and was offered enrolment in the PhD program in her own interest using the laboratory facilities and other resources of the [respondent] as well as the expertise of the [respondent]’s academic supervisors. The indicia from the authorities relied upon for [the appellant] do not apply to this student/institution relationship in which [the appellant] enrolled in a course of study offered to gain the academic qualifications sought.
The fact that [the appellant], after being offered enrolment in the [respondent’s] PhD course, then achieved a Commonwealth scholarship including a stipend to assist with living expenses does not alter her status from a student studying and researching for a PhD into a paid worker for the [respondent].”[11]
[11] Reasons, [61]–[62].
The Arbitrator rejected the appellant’s argument that the research scholarship was an industrial “award.” He said that term was used in a general sense, rather than a reference to an industrial award. The Arbitrator added that the “leave” provided for in the scholarship documents was not leave from employment but was “a set of protocols to deal with illness or breaks in study during which the student’s stipend may be continued.”[12] The Arbitrator observed that, just because the research scholarship stipend was paid fortnightly, that did not make the payments a wage in return for service. He said that it was merely the means by which the appellant received her stipend.
[12] Reasons, [63].
The Arbitrator observed that the appellant’s reliance upon the “control” element was not consistent with an employment situation. The Arbitrator said that in the circumstances of this case, the control that was exercised over the appellant was by negotiating and jointly agreeing to the subject matter of the study and ensuring that the appellant’s progress met the required academic standards. The Arbitrator reiterated that this was not “control” in the sense of paid work for the respondent as part of a contract of service. He said that there was no evidence that the respondent dictated the topic of research or the way that the research was conducted, or that the research resulted in a beneficial outcome for the respondent.
The Arbitrator pointed out that the respondent’s laboratories and other equipment are, as a matter of course, offered to higher level research students and such students are able to access the knowledge and expertise of the academic supervisors. He said that a student being provided with teaching and learning facilities was not on par with being provided with tools by an employer and was completely at odds with working in a factory.
The Arbitrator conceded that there was a degree of control and direction, but said that it was entirely in the context of the student’s achievement and progression through higher education. He added that the negotiation of a topic that was of interest to the student, the resources available, the time limits and how the research was relevant to the current academic world applied to all students, whether they received a research scholarship or not. The Arbitrator said that the retention of intellectual rights by the respondent was also a matter that applied to all students, not just those who received a research scholarship. The Arbitrator concluded that that fact did not establish that the appellant had a “worker” relationship with the respondent.
The Arbitrator referred to the appellant’s submissions that it was the respondent, and not some other body, who controlled who would be a full-time student and who would receive a scholarship, as well as requiring the student to work 35 hours per week. The Arbitrator pointed out that the hours of work again were the same for all students and were a feature of the higher degree student relationship with a teaching body, rather than an employee.
The Arbitrator considered it relevant that the Commonwealth Government paid the research scholarship stipend for the specific purpose of assisting the student with his or her living expenses. The Arbitrator observed that the respondent did not tie the grant to the student performing work as directed by it for its benefit and the appellant undertook her studies side by side with other students who were not in receipt of the grant. The Arbitrator said that nothing in the relationship between the appellant and the respondent changed when the appellant was granted the research scholarship.
The Arbitrator observed:
“There must be an identifiable employment contract before there is employment. The contract must involve work done by a person under a contractual obligation to another party to whom the person delivers the work, and the skill of the ‘worker’. There must be a mutual intention to create legal relations in this regard, and there must be consideration in the form of a wage or remuneration in return for doing the work. There must also be the creation of an obligation on one party to provide work which is then undertaken by the other party.
The evidence falls short of establishing any of the above elements for the employment of [the appellant] by the [respondent]. The evidence is of [the appellant] as a PhD student using the educational facilities provided by [the respondent].”[13]
[13] Reasons, [72]–[73].
The Arbitrator added that it was his view that there was no contract of employment that created a mutual obligation of the respondent providing work and the appellant performing that work. The Arbitrator referred to the High Court Authority of Australian Woollen Mills Pty Ltd v Commonwealth,[14] which was followed by Roche DP in Secretary, Department of Family and Community Services v Bee.[15] The Arbitrator said that, on the basis of those authorities and the overwhelming evidence, the research scholarship, which was provided by the Commonwealth Government and administered by the respondent, was a stipend to assist the appellant with her living expenses. It was not consideration provided in accordance with a contract of employment.
[14] [1954] HCA 20; 92 CLR 424 (Australian Woollen Mills).
[15] [2014] NSWWCCPD 66 (Bee).
The Arbitrator considered that the appellant’s descriptions of her activities were “couched in terms of employment”[16] and did not reflect the actual nature of the relationship between the appellant and the respondent. He observed that the activities were an inherent part of the appellant’s high level of research and study in the pursuit of her PhD and over which she had significant control. The Arbitrator concluded that the appellant had not discharged her onus of proving that she was a worker within the meaning of s 4 of the 1998 Act.
[16] Reasons, [77].
The Arbitrator turned to the issue of whether the appellant was a deemed worker in accordance with cl 2 of Sch 1 to the 1998 Act. The Arbitrator quoted the clause. Referring to the criteria set out in Scerri v Cahill[17] and Lindeboom v Goodwin[18] he observed that, in this case:
(a)    there was no contract to perform work between the respondent and the appellant;
(b)    there was no work exceeding $10 in value;
(c)    the appellant was not carrying out a trade or business, and
(d)    there was no intention to create a legal relationship, no mutuality and no contractual consensus for employment between the appellant and the respondent.
[17] (1995) 14 NSWCCR 389 (Scerri).
[18] (2000) 21 NSWCCR 297.
The Arbitrator concluded that the appellant was not a deemed worker pursuant to cl 2 of Sch 1 to the 1998 Act.
The Certificate of Determination issued on 14 August 2020 records:
“The Commission determines:
1. The applicant was not a worker pursuant to section 4 of the Workers Compensation Act 1987 [sic, the 1998 Act]; or a deemed worker under Schedule 1, Clause 2 of the Workplace Injury Management and Workers Compensation Act 1998 at the time of injury.
2. Award in favour of the respondent.”

GROUNDS OF APPEAL

The appellant alleges that the Arbitrator erred as follows:
(a)    Ground One: error of fact and law when he failed to consider the correct contract being the contract created by the acceptance of the offer dated 29 November 2017 and 5 March 2018.
(b)    Ground Two: error of fact and law when considering that the worker’s indicia were not relevant to the true nature of the relationship.
(c)    Ground Three: error of fact and law in concluding that the appellant was not a worker.
(d)    Ground Four: error of fact in finding that the respondent retained the intellectual property in the work of all PhD students.
(e)    Ground Five: error of fact and law in finding that the appellant was not a deemed worker.

LEGISLATION

Section 4 of the 1998 Act defines “worker” as (exceptions omitted):
“worker means 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).”
Sub-clause 1 of cl 2 of Sch 1 to the 1998 Act provides:
“2 Other contractors (cf former Sch 1 cl 2)
(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
(b) [Repealed]
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.”

SUBMISSIONS

Ground one

The appellant’s submissions

The appellant submits that the letter of offer for admission as a higher degree research candidate dated 8 November 2017 prescribed the appellant’s research topic, required that her attendance would be on a full-time basis and that she would commence in the first semester at Kensington. The appellant says that there was no evidence that the offer was accepted.
The appellant refers to the conditional offer of a research scholarship made on 29 November 2017 and the unconditional offer made on 5 March 2018 and the terms contained in that correspondence. The appellant says that further information on the terms and conditions made by the respondent were contained in the statement provided by Ms Law. The appellant summarised that evidence.
The appellant submits that the letters of offer and the acceptance created a contract between the appellant and the respondent and in accordance with the contract the respondent was required to pay a stipend to the appellant. The appellant says that the evidence shows that she was paid throughout the period between 12 February 2018 and when she terminated her studies in August 2018. The appellant says that neither party suggested that the acceptance of the offers did not create a contract, which was created by accepting the offer of a candidacy on 8 November 2017.
The appellant submits that the Arbitrator’s task was to determine whether the acceptance of those offers amounted to a contract of service, which the appellant asserts the Arbitrator did not do. The appellant says that, instead, the Arbitrator considered that the acceptance of the offer of 8 November 2017 might possibly have created a contract, which the appellant considers doubtful, but submits that “this aspect was not considered by the Arbitrator.”[19]
[19] Appellant’s submissions, [12].
The appellant contends that there was no issue as to whether the parties intended to enter into legal relations in respect of the “latter acceptance.”[20] That is, it was clear that the appellant had an enforceable right to be paid provided she continued to perform her research under the direction and supervision of the respondent.
[20] Appellant’s submissions, [13].
The appellant referred to the Arbitrator’s reasoning process that:
(a)    the appellant was a full-time student at the time of her injury;
(b)    the indicia relating to the issue of “worker” did not assist him because they were not relevant to the true nature of the relationship;
(c)    the nature of the relationship was one in which the appellant sought and enrolled in a PhD program in which she would use the respondent’s laboratories and other equipment and intellectual resources, and
(d)    the indicia did not apply to the student/ institute relationship in which the appellant had enrolled in a course of study offered by the respondent in order to gain the academic qualifications.
The appellant asserts that the Arbitrator misunderstood the contract that he was required to interpret. The appellant says that the Arbitrator’s description of the relationship as an ordinary student who accepted a place in a university, was not the contract the Arbitrator was required to interpret. The appellant asserts that the Arbitrator’s description of the issue was whether the appellant, after enrolment, and then receiving a research scholarship, altered her status from that of a student into a paid worker, working for the respondent. The appellant submits that that was not the question to be determined. The real issue was the nature of the relationship created by the contract whereby the respondent would pay a fortnightly amount to the appellant while the appellant:
(a)    met her contractual obligations of performing research study for at least 35 hours;
(b)    performed in accordance with a program agreed with her supervisors, and
(c)    developed research which would become the respondent’s intellectual property.
The appellant submits that, in any event, there is no evidence that the appellant acquired the status of a student prior to the commencement of the contract to make payments, which commenced from the day the appellant commenced her research.
The appellant contends that if the Arbitrator approached the question correctly, he would have found the appellant to be a worker. The appellant explains that, under the terms of the contract, the appellant was required to work 35 hours per week and the research was directed to a course of work approved by the respondent. The monies were only payable while she undertook those studies for her PhD. The appellant was not free to conduct research outside of the terms of her prescribed research topic. Sick leave and recreational leave were included in the terms of the arrangement and were necessary given that the appellant was required to work 35 hours per week. Further, the scholarship was determined and awarded in accordance with the respondent’s own terms.
The appellant points out that the Commonwealth government funding was made available in the form of a block grant, which the respondent was able to apply to various purposes according to its own discretion. The appellant contends that the fact that the monies came from the Commonwealth was only significant because it made the payments to the recipient of the scholarship exempt from taxation. The appellant adds that she had been allocated the same identity number as she had been given at an earlier time when she had performed work for the respondent. The appellant asserts that the only factor missing from the indicia that the appellant was a worker was that the respondent did not pay superannuation, which the appellant says came from a misguided view that the respondent was not obliged to make those contributions.
The appellant contends that the approach taken by the Arbitrator by beginning with the proposition that the relationship was one of a student and the institution has infected the manner in which he weighed the various elements of the evidence and resulted in him interpreting all of the evidence in that light. The appellant says that the Arbitrator characterised the “weekly” payments as a means of transferring the scholarship money when the proper question was whether they were payments made contingent upon the appellant performing the tasks required in order to be entitled to those payments.
The appellant asserts that the Arbitrator misinterpreted the significance of the element of control in the relationship and submits that it is not necessary for the respondent to control the minutiae of the work task, citing Articulate Restorations & Developments Pty Ltd v Crawford.[21] The appellant says that in this case, the element of control exercised by the respondent was:
(a)    approving or disapproving the subject of the research;
(b)    from time to time reviewing the appellant’s performance, and
(c)    determining whether the appellant had satisfied her obligations in order to be entitled to the payments.
[21] (1994) 10 NSWCCR 751.
The appellant submits that those are all matters that “fall within the modern understanding of the element of control”[22] and it was not necessary for the respondent to dictate the way the appellant conducted her research.
[22] Appellant’s submissions, [22].
The appellant contends that the Arbitrator continued in error in dealing with the provision of resources. The appellant makes the observation that other students may have had financial assistance with respect to fees in order to be provided with resources but submits that the question for the Arbitrator to determine was whether, under the terms of the contract, the respondent had an obligation to provide the materials necessary to meet her obligations. The appellant asserts that the evidence shows that this was clearly the case. The appellant further asserts that the Arbitrator failed to consider the arrangement in the context of the obligations created by the contract. The appellant contends that the Arbitrator went beyond the evidence to speculate about whether matters related to an agreed course of research applied to all students.
The appellant asserts that there was no evidence about those matters. The appellant says that there was also no evidence about whether the respondent retained the intellectual property of all higher degree students. The appellant submits that the appellant’s evidence, which was uncontradicted, related only to her and in the circumstances of her being in receipt of the scholarship. Further, the requirement to acknowledge the Commonwealth contribution only applied to those who were in receipt of a fees offset scholarship. That is, the obligation only arose for researchers such as the appellant, and not ordinary students.
The appellant refers to the Arbitrator’s conclusion that there was no mutual contractual obligation that the respondent provide work for the appellant to perform. The appellant submits that the Arbitrator reached that conclusion without reference to the terms of the contract. The appellant asserts that the terms make it quite clear that the respondent was obliged to make payments while the appellant performed the work required for the research topic agreed upon by the respondent for at least 35 hours per week.
The appellant contends that the Arbitrator failed to consider what actually constituted the work for the purpose of examining whether it was a contract for service. The appellant submits that, had the Arbitrator considered the correct contract created by the letters dated 29 November 2017 and 5 March 2018, instead of the contract whereby the appellant accepted the offer of the Higher Degree research placement made on 8 November 2017, he would have found in favour of the appellant.

The appellant concludes that the Arbitrator erred in his consideration of the contract because he failed to consider the necessary indicia which were part of the correct contract and erred by reaching conclusions on factual matters which conclusions were not open on the evidence.

The respondent’s submissions

The respondent asserts that the appellant’s submissions ought not be accepted. The respondent submits that, having regard to the Arbitrator’s reasons as a whole, the Arbitrator did not proceed on the basis that the “correct” contract was that set out in the letter dated 8 November 2017.
The respondent refers to the decision in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3),[23] in which Bromberg J observed that the question of whether a person is an employee is “answered by reference to an objective assessment of the nature of the relationship that person has with the entity that takes the benefit of that person’s work.”[24] The respondent further cites the High Court authority of Hollis v Vabu Pty Ltd,[25] as authority for the proposition that the totality of the relationship between the parties must be considered. The respondent submits that the Arbitrator’s reasons demonstrate that he approached the matter in a manner consistent with those authorities.
[23] [2011] FCA 366 (On Call).
[24] On Call, [188].
[25] [2001] HCA 44; 207 CLR 21 (Hollis).
The respondent refers to the Arbitrator’s conclusion that there was no employment relationship between the appellant and the respondent, but rather the appellant was a full-time student at the time of her injury. The respondent points to the passage from the Arbitrator’s reasons where he observed:
“In my view the evidence is that [the appellant] was a full-time student at the time of her injury. The ‘worker’ indicia relied upon do not in my view assist in these circumstances because they are not relevant to the true nature of the relationship. The nature of the relationship between [the appellant] and the [respondent] was one in which she sought and was offered enrolment in the PhD program in her own interest using the laboratory facilities and other resources of the [respondent] as well as the expertise of the [respondent’s] academic supervisors. The indicia from the authorities relied upon for [the appellant] do not apply to this student/institution relationship in which [the appellant] enrolled in a course of study offered to gain the academic qualifications sought.”[26] (emphasis added by the respondent)
[26] Reasons, [61].
The respondent submits that the Arbitrator approached the task correctly and not on the basis of the incorrect contract and gave further reasons for making the findings in the paragraphs that followed the above passage. The appellant particularly points to the Arbitrator’s reasons at [71]–[76], where the Arbitrator considered the totality of the evidence and concluded that:
(a)    the appellant failed to establish the elements of “employment”;
(b)    there was no contract between the appellant and the respondent creating a mutual obligation for the respondent to provide work and for the appellant to perform that work, and
(c)    applying the authorities, the scholarship, which was provided by the Commonwealth Government and administered by the respondent was not consideration under a contract of employment. Rather, it was a stipend intended to assist a full-time PhD student with living expenses.
The respondent submits that, in reaching that conclusion, the Arbitrator was “clearly cognisant of the true nature of the relationship between the parties …”.[27] The respondent says that this included the two contracts relied upon by the appellant in her submissions to the Arbitrator and on this appeal.
[27] Respondent’s submissions, [19].
The respondent refers to the appellant’s submissions (summarised by me at [61] above) that the Arbitrator considered whether the appellant altered her status from that of a student into a paid worker when the real issue was the nature of the relationship created by the contract, whereby:
(a) the respondent paid the appellant fortnightly, and
(b) the appellant would fulfil her obligations of engaging in research for at least 35 hours per week on a research program agreed by her supervisors, developing a product that would become the respondent’s property.
The respondent submits that it is relevant to consider the Arbitrator’s reasons for his conclusions, which were that:
(a)    the appellant sought and was offered enrolment in a PhD program, using the respondent’s laboratory facilities and resources;[28]
[28] Reasons, [61].
(b)    the research scholarship and its stipend were intended to assist the appellant with her living expenses;[29]
[29] Reasons, [62].
(c)    the term “award” had a general meaning and was not a reference to an industrial award;[30]
[30] Reasons, [63].
(d)    the provision of leave was intended as a protocol to allow for absence from study because of illness or other breaks;[31]
[31] Reasons, [63].
(e)    the frequency of payments of the stipend did not alter its true character;[32]
[32] Reasons, [64].
(f)    the “control” indicia were inconsistent with an employment situation because:
(i)the area of research was jointly agreed between the appellant and the respondent and not dictated by the respondent, and
(ii)there was no evidence that the respondent dictated the way the appellant would conduct her research that led to an outcome beneficial to the respondent;[33]
(g)    the element of control was completely in the context of a student progressing through higher university studies;[34]
(h)    the use of the respondent’s facilities and resources was consistent with a student being provided with teaching and learning facilities provided by an educational institution and was not analogous to a worker being provided with tools by an employer;[35]
(i)    the retention of intellectual property rights was not a factor in determining a worker relationship;[36]
(j)    the hours of study were the same for all students in the PhD research program, which was a feature of a relationship between a higher degree student with a teaching body and not an employer/employee relationship,[37] and
(k)    the grant was paid for by the Commonwealth and therefore did not tie the stipend to work done by the student at the respondent’s direction and for the respondent’s benefit.[38]
[33] Reasons, [65].
[34] Reasons, [67].
[35] Reasons, [66].
[36] Reasons, [68].
[37] Reasons, [69]–[70].
[38] Reasons, [71].
The respondent refers to my observations in the decision of Richardson v DF Haulage Pty Ltd.[39] The respondent says that those observations are also consistent with the plurality’s remarks in Ermogenous v Greek Orthodox Community of SA Inc.[40] That is, that the intention of the parties is to be ascertained by considering what was objectively conveyed by what was said or done, giving regard to the circumstances in which the statements or actions were done.[41]
[39] [2018] NSWWCCPD 28.
[40] [2002] HCA 8; 209 CLR 95 (Ermogenous).
[41] Ermogenous, [25].
The respondent submits that the Arbitrator made an objective assessment of the state of affairs that existed between the appellant and the respondent, before determining that the parties had intended to enter into a contractual relationship in the nature of an agreement between a PhD student and a university and did not intend to enter into a contract of service. The respondent contends that the Arbitrator considered the matter in line with the above authorities and not in the manner asserted by the appellant.
The respondent asserts that the appellant’s case is that her own subjective intention or understanding of the relationship between her and the respondent is correct and that the Arbitrator should have taken the same view. The respondent contends that had the Arbitrator taken that approach, it would have been inconsistent with the above authorities that require an objective assessment to be undertaken. The respondent cited Guilbert v Glenworth Valley Horse Riding Pty Ltd[42] as authority to say that the onus is on the appellant to prove that an employment contract existed, which, in the Arbitrator’s view, the appellant failed to do. The respondent asserts that the appellant’s submissions misconstrue the situation between the parties and prevent an objective assessment of the facts.
[42] [2020] NSWWCCPD 10.
The respondent submits that in any event, the Arbitrator dealt with the appellant’s submissions, noted binding authority and concluded that there was no consideration which would support the existence of a contract of employment. The respondent points out that the appellant did not cavil with this finding, which is sufficient to dispense with this issue.
The respondent contends that the Arbitrator did not proceed on the basis of whether the offer of a scholarship altered the appellant’s status. The respondent submits that the Arbitrator’s finding should not be viewed in isolation and the reasons should be viewed as a whole. The respondent asserts that, when viewing the reasons as a whole, it is clear that the Arbitrator did not proceed on the basis that the appellant bore the onus of proving that there was an alteration of her status of being a PhD student at a university. The respondent says that the Arbitrator considered the matter objectively and then arrived at his conclusions.
The respondent submits that, for those reasons, the Arbitrator did not misconstrue the task before him or ask himself the wrong question.

Grounds Two and Three

The appellant’s submissions

The appellant submits that Grounds One, Two and Three are “intrinsically linked” and, in respect of both Grounds Two and Three, expresses reliance on her submissions already made in respect of Ground One.

The respondent’s submissions

In respect of Ground Two, which complains about the Arbitrator’s finding that the “indicia” of employment were not relevant, the respondent submits that it is not clear which passages from the appellant’s submissions under Ground One are relevant to this ground of appeal. The respondent points out that the submissions under Ground One were assertive of error on the part of the Arbitrator because the Arbitrator considered the wrong contract and asked himself the wrong question, and not whether the Arbitrator erred in his analysis of the “indicia”. The respondent submits that there are no separate submissions under this ground and that the appellant has not indicated how the Arbitrator erred, as required by s 352 of the 1998 Act. The respondent submits that the Arbitrator has not erred as alleged and Ground Two should be rejected.
In respect of Ground Three, the respondent submits that the Arbitrator did not err, either in fact or law, by concluding that the appellant was not a worker. The respondent asserts that, again, the appellant has failed to show how the Arbitrator erred as required by s 352 of the 1998 Act and the appeal ground should be rejected. The respondent adds that the appellant has not made submissions about the Arbitrator’s finding that there was no consideration to substantiate a contract of employment. The respondent submits that, accordingly, the Arbitrator’s finding that the appellant was not a worker within the meaning of the 1998 Act is supported by the fact that there was no consideration. The respondent submits that the Arbitrator’s finding should be upheld on that basis alone.

Ground Four

The appellant’s submissions

The appellant asserts that the Arbitrator erred in fact when he found that the respondent retained intellectual property in the work of all PhD students. The appellant submits that there was no evidence to support that finding and the finding was speculative.
The appellant contends that her only evidence was in relation to her position, which was as a recipient of a scholarship. The appellant points to the letter of offer dated 8 November 2017, which made provision for the requirement to acknowledge the Commonwealth in any published material relevant to the research project. The appellant submits that that requirement only applies to those students who were in receipt of a fee offset scholarship so that the obligation only arose for research students in the position of the appellant, and not for ordinary students.

The respondent’s submissions

The respondent submits that the Arbitrator’s remarks in relation to the situation with other students were only incidental findings and did not affect his ultimate conclusions. The respondent says that the Arbitrator did have regard to the fact that the intellectual property arising out of the appellant’s research would be retained by the respondent but concluded that where the intellectual property vested was not a matter for consideration in relation to whether or not the appellant was a worker. The respondent contends, therefore, that the Arbitrator did deal with the substance of the appellant’s submission. The respondent submits that, in any event, the finding was not material to the Arbitrator’s conclusions, so that if the finding had not been made, the outcome would have been no different.
The respondent contends that the appellant has failed to demonstrate error, and the ground of appeal ought to be rejected.

Ground Five

The appellant’s submissions

The appellant submits that the only explanation given by the Arbitrator for concluding that the appellant was not a deemed worker was that the contract between the appellant and the respondent was not a contract to perform work, which was based on his finding that the relationship was one of a student and an institution. The appellant asserts that the Arbitrator did not take into account the terms of the contract or identify the contract he was referring to.
The appellant contends that the relevant contract required the appellant to perform work for a minimum of 35 hours per week. The appellant says that the Arbitrator did not explain why the research work undertaken by the appellant was not work, which, the appellant submits is clearly the same work done by a pharmaceutical employee employed to undertake research. The appellant submits that the Arbitrator did not give consideration to what constitutes work or why performing research would not be considered as such.
The appellant asserts that the Arbitrator repeated his continuing error by considering that, because one of the relationships was that of a student and an institution, then “all the relationship was to be defined in those terms …”.[43] The appellant submits that the Arbitrator did not give regard to the terms of the contract, which provided payment to the appellant for research work performed by her for at least 35 hours per week under the supervision of the respondent.
[43] Appellant’s submissions, [35].

The respondent’s submissions

The respondent submits that contrary to the appellant’s assertion, the Arbitrator gave regard to the appellant’s allegations when he observed:
“In my view the representation above does not reflect the actual nature of the relationship with the [respondent]. There was no ‘employment’ because there was no contract for this purpose, and the activities listed were not segregated responsibilities of a work ‘role’, but inherent in the conduct of [the appellant’s] own elite research and study over which she had significant control as a higher degree student seeking to attain a PhD.”[44]
[44] Reasons, [78].
The respondent says that the above passage was part of the Arbitrator’s reasons in respect of the issue of “worker” and not “deemed worker” but submits that the Arbitrator made it clear that his conclusion on the issue of “deemed worker” was reliant upon his earlier reasons and conclusions.
The respondent refers to the decision of Roche DP in Bee, in which the Deputy President observed:
“It follows that, even if there were an intention to enter into legal (contractual) relations, that intention was not supported by consideration for the agreement and there is no contract. As there is no contract, Ms Bee cannot be a deemed worker under Sch 1 cl 2
because there is no ‘contract’ to ‘perform any work’.”[45]
[45] Bee, [99].
The respondent submits that, applying that authority, the Arbitrator’s determination on the issue of “deemed worker” was not erroneous. The respondent says that it is therefore not correct to submit that the Arbitrator formed his conclusion without proper explanation and that there were ample reasons to support his conclusion, given that the Arbitrator clearly indicated reliance on his earlier reasons.
The respondent adds that the Arbitrator also gave consideration to and reasons why the research conducted by the appellant was not “work” in the nature alleged by the appellant.
The respondent submits that this ground of appeal should also be rejected.

RELIEF SOUGHT

The appellant seeks to have the issue redetermined by a Presidential member and otherwise the matter should be remitted to another arbitrator for determination of the appellant’s entitlements flowing from the injury.
The respondent seeks to have the Certificate of Determination confirmed. In the alternative, the respondent submits that if the Certificate of Determination is revoked, the matter should be remitted to another arbitrator in order to re-determine the whole matter.

CONSIDERATION

The legal principles

The Arbitrator was tasked with determining whether the appellant was a worker who had entered into a contract of service or a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act. In determining whether there was a contract of service, the parties submitted on, and the Arbitrator applied, the various indicia which might go to establishing such a relationship, as discussed in a long line of cases. In Zuijs v Wirth Brothers Pty Ltd,[46] the plurality observed that:
“There are countless examples of highly specialized functions in modern life that must as a matter of practical necessity and sometimes even as a matter of law be performed on the responsibility of persons who possess particular knowledge and skill and who are accordingly qualified. But those engaged to perform the functions may nevertheless work under a contract of service. In the present case what has been proved in evidence all points to the conclusion that the relation between the parties was that of master and servant. If the power of selecting the person engaged must exist in the master in order that the contract may be one of service, that element was certainly present. If the fact that the remuneration takes the form of wages is a mark of the relationship, that was the case here. If a right in the master to suspend or dismiss for misconduct is something to be looked for, then again there could be little doubt that the appellant was subject to that discipline. If a right to superintend and control the manner in which the servant fulfils his obligation must exist in some degree, a little consideration will show that the daily relations of a performer playing a regular part in the work of such an organization as a travelling circus would demand a large measure of control and superintendence. With reference to the act itself there are many subsidiary matters. The place it took upon the programme, the measures of safety to be observed, the number, time and manner of the rehearsals, the costume of the performers, the place where they dressed and their conduct both before the audience and otherwise, these are all matters naturally calling for control.”
[46] [1955] HCA 73; 93 CLR 561, per Dixon CJ, Williams, Webb and Taylor JJ, [5].
In Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson,[47] Roche DP discussed the relevant authorities and said (citations omitted):
“In Stevens v Brodribb Sawmilling Co Pty Ltd Mason J said that a ‘prominent factor’ in determining the nature of the relationship is the degree of control which is exercised. His Honour said that the importance of control lies not so much in its actual exercise, though that is relevant, but in the right of the employer to exercise it (Zuijs v Wirth Brothers Pty Ltd). As his Honour added, ‘[c]ontrol is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered’.
In the same case, Wilson and Dawson JJ observed that the ‘modern approach’ is to ‘have regard to a variety of criteria’, though this approach has its limitations because not all the accepted criteria provide a relevant test and none is conclusive.”[48]
[47] [2013] NSWWCCPD 49 (Thompson).
[48] Thompson, [41]–[42].

On the basis of those observations, in the present matter the Arbitrator was required to give consideration to the various indicia raised in the appellant’s submissions, which are informative but not conclusive. He was also required to have regard to the totality of the relationship between the appellant and the respondent.
The appellant argued in the alternative that she was a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act. In order to fall within that provision, the appellant was required to establish that:
(a)    there was a contract between the respondent and the appellant to perform work;
(b)    the work exceeded $10 in value;
(c)    the work was not incidental to a trade or business, and
(d)    the appellant did not sublet the contract or employ workers in the performance of the contract.[49]
[49] Scerri.
The Arbitrator in this case, determined that the contract between the appellant and the respondent was not a contract to perform work, so that the provision did not apply to the appellant.
The right to pursue an appeal from a decision of an Arbitrator is governed by s 352 of the 1998 Act. The scope of the appeal is limited by s 352(5) of the 1998 Act to the identification of error on the part of the Arbitrator, where such error is of fact, law or discretion.
The Arbitrator’s findings that the various indicia relied upon by the appellant did not satisfy him that the contract between the appellant and the respondent was a contract of service and the appellant was a “worker” or “deemed worker” within the meaning of the 1998 Act were findings of fact. In determining whether an Arbitrator erred in making a factual finding, the Commission has consistently applied the principles enunciated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[50] Deputy President Roche provided the following summary of those principles in Raulston v Toll Pty Ltd:[51]
“An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that [the] conclusion was wrong’.
Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[52]
[50] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[51] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[52] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill,[53] Basten JA considered the application of the principles in Whiteley Muir in the context of s 352(5) of the 1998 Act. His Honour observed:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[54]
[53] [2020] NSWCA 54 (Hill).
[54] Hill, [20].
As Sackville AJA observed in Northern NSW Local Health Network v Heggie,[55] where there is no preponderance of view, it is not sufficient that the appellate tribunal prefers a view contrary to that arrived at by an arbitrator.
[55] [2013] NSWCA 255; 12 DDCR 95.
In order to succeed on this appeal, therefore, the appellant must establish that the Arbitrator overlooked material facts, gave undue or too little weight to probative evidence or that the opposite view was so preponderant that it shows that the Arbitrator was wrong.

The grounds of appeal

Ground One: the Arbitrator erred in fact and law when he failed to consider the correct contract being the contract created by the acceptance of the offer dated 29 November 2017 and 5 March 2018

The appellant submits that the Arbitrator’s error was that he considered that there was possibly a contract formed when the appellant accepted the offer of a candidacy in the Higher Degree Research PhD program. The appellant alleges that the Arbitrator then proceeded to interpret that contract as the description of an ordinary student who had accepted a placement in a PhD program.
The Arbitrator dealt with the question of whether there was an employment contract at [72]–[79] of his reasons, in which he observed that “there must be an identifiable employment contract” and set out the necessary elements of that contract. The Arbitrator identified the principles enunciated in relevant authorities. The Arbitrator considered that the appellant’s description of her duties did not:
“reflect the actual nature of the relationship with the [respondent]. There was no ‘employment’ because there was no contract for this purpose, and the activities listed were not segregated responsibilities of a work ‘role’, but inherent in the conduct of [the appellant’s] own elite research and study over which she had significant control as a higher degree student seeking to attain a PhD.”[56]
[56] Reasons, [78].
The Arbitrator arrived at this conclusion after giving consideration, not just to the offer of a placement in the PhD research program and the appellant’s acceptance, but also to the payment of the research scholarship stipend, which he noted was not automatically payable to all PhD students. The Arbitrator clearly considered that payment as part of the contractual arrangement between the appellant and the respondent, as argued by the appellant, and whether that arrangement constituted an employment contract. That is, whether it was a contract of service. This is abundantly apparent from the Arbitrator’s reasons, where he took into account:
(a)    that the research scholarship was not available to all students;
(b)    whether the award of that scholarship changed the nature of the relationship between the appellant and the respondent, and
(c)    whether the research scholarship was akin to an industrial award.
The Arbitrator also took into account the allowance for leave, which was provided for in the research scholarship, and the fact that the stipend was paid fortnightly. The Arbitrator noted that the appellant’s submissions were that:
“the letter of 5 March 2018, tied the stipend to [the appellant] performing tasks as a research student with satisfactory progress and comprised an employment relationship.”[57]
And:
“the documents of offer and associated correspondence and forms establish a contract between the student and the University such that if [the appellant] performs the tasks of research then the payments continue.”[58]
[57] Reasons, [58].
[58] Reasons, [59].
The appellant submits that the Arbitrator “considered the contract [was] possibly created by accepting the offer of 8 November 2017.”[59] The appellant does not identify where in the Arbitrator’s reasons he made that observation, but if he did, it is immaterial. Having noted that there was no issue between the parties that there was a contract (of which the payment of the stipend was an element), the Arbitrator considered whether that contract constituted a contract of service. He discussed and applied the relevant indicia that might or might not point to the contract being one of a contract of service.
[59] Appellant’s submissions, [12].
There is no indication from the above approach that the Arbitrator dealt with the “incorrect” contract or misunderstood the contract that he was required to consider. The Arbitrator did not simply consider that the relationship was that of an ordinary student who accepted a place in a university. He gave consideration to the nature of the relationship between the appellant and the respondent and concluded that the payment of the stipend, in the context of the many other elements of the contract, did not elevate the relationship to the level of a contract of service. He did so in the context of the totality of the relationship. His reasons reproduced at [46] above, together with his reasons as a whole, identified why he reached that conclusion, which was open to him.
The appellant has failed to identify error of the kind complained of and this ground of appeal fails.

Ground Two: the Arbitrator erred in fact and law when considering that the worker’s indicia were not relevant to the true nature of the relationship

In support of this ground of appeal, the appellant relies on her submissions made in respect of Ground One, which ground specifically alleges that the Arbitrator erred by considering the “incorrect contract.” It is difficult to see how submissions made under that ground are relevant to this ground of appeal. The respondent complains that it is not clear which submissions are intended to address this ground of appeal. The respondent submits that in the absence of submissions, the appellant has not identified error as required by s 352 of the 1998 Act and the appeal ground should be rejected.
Practice Direction No 6 requires that the submissions in relation to each ground of appeal must be addressed separately under each ground. It is not satisfactory for a party to leave it up to the other party, or indeed the Presidential member, to identify which submission is relevant to which particular ground of appeal.
In her submissions in respect of Ground One, the appellant refers to the various indicia that go to the question of whether the contract was a contract of service. That is, the control element, the obligation to provide materials, whether the respondent retained the right to the intellectual property created by the appellant’s research, the hours of work and the mutual obligation of the provision of work for the appellant to perform. Again in relation to Ground One, the appellant further submits that the Arbitrator erred in his conclusion because he failed to consider the necessary indicia and by reaching factual conclusions that were not open to him.
Those submissions bear no apparent relationship to the first ground of appeal and do not advance the appellant’s case in respect of that ground. In any event, if they were intended to address Ground Two, they cannot be accepted. The Arbitrator clearly referred to and applied the indicia to the facts in this case in his reasons at [64]–[70]. Whether the Arbitrator committed an error of fact in applying the indicia is not cited in this ground of appeal or the first ground. The complaint is limited to the Arbitrator’s conclusion, which was arrived at after considering each of the indicia, that the indicia pointed to a student/teacher relationship and were therefore not relevant to the true nature of the relationship. In that context, that conclusion was open to him.
It follows that Ground Two of the appeal fails.

Ground Three: the Arbitrator erred in fact and law in concluding that the appellant was not a worker

The appellant again relies on her submissions made in respect of Ground One. I reiterate the comments made by me in respect of Ground Two.
I note that, under Ground One, the appellant submitted that the purported error identified in Ground One “infected” the manner in which the Arbitrator weighed the “various elements” of the evidence. The Arbitrator did not err in the manner alleged and so, if that submission was intended to address this ground of appeal, it must be rejected for the reasons cited in respect of Ground One.
Further, the appellant submitted that the Arbitrator was in error by characterising the “weekly” payment made as a means of transferring the stipend, rather than payments made contingent upon the appellant performing the tasks required of her. The Arbitrator concluded that the payment of the stipend was:
(a)    intended to assist with the appellant’s living expenses;
(b)    not an award as that term is used in industrial matters;
(c)    not changed from its true character by the fact that it was paid fortnightly, and
(d)    paid by the Commonwealth, rather than the respondent.
Those were sound reasons for determining that the payment of the stipend did not have the character of payment in reward for work.
The appellant also refers to and takes issue with the Arbitrator’s conclusions in respect of the indicia of control, the provision of the resources, the retention of the intellectual property and the required hours of work. The Arbitrator identified the element of control exercised by the respondent over the appellant and concluded that the exercise of that control was no more than that which would be undertaken in a student/teacher relationship. In other words, it did not assist him in relation to establishing a master/servant relationship, rather than the student/teacher relationship that existed in any academic situation. That conclusion was open to him. The provision of resources and the hours required to perform research work were also dealt with by the Arbitrator in the same manner and for the same reasons disclose no error.
The appellant submits that there was no evidence to support the Arbitrator’s conclusion that the intellectual property generated by the research was retained by the respondent in respect of all PhD students. The only evidence in relation to the retention of intellectual property was that of the appellant, who asserted:
“My contract was an agreement that I would engage in the research and work to create intellectual property for the University. In exchange, the University provided my scholarship payment.”[60]
[60] Appellant’s statement, [15], ARD p 3.
The Arbitrator dealt with this evidence at [74]–[76] of his reasons. He reasoned:
“There is nothing to support [the appellant’s] assertion of a contract created between the University and herself such that, ‘My contract was an agreement that I would engage in the research and work to create intellectual property for the University. In exchange, the University provided my scholarship payment.’ On the contrary, in my view there was no contract of ‘employment’ creating a mutual obligation for the [respondent] to provide work and for [the appellant] to perform work.
The High Court held In Australian Woollen Mills Pty Ltd v Commonwealth [1954] HCA 20, ‘[i]t is of the essence of a contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty’. Following that authority, Roche DP in Secretary, Department of Family and Community Services v Bee [2014] NSWWCCPD 66 found there must be real consideration ‘for the agreement’.[61] Roche DP affirmed that,
‘To prove a contract, it must be established that the ‘statement or announcement which is relied on as a promise was really offered as consideration for doing the act, and that the act was really done in consideration of a potential promise inherent in the statement or announcement’ (Australian Woollen Mills at 456). In other words, there must be a quid pro quo (‘one thing in exchange for another; something in exchange’ Butterworths Concise Australian Legal Dictionary, 3rd ed).
The scholarship provided to [the appellant] by the Commonwealth Government and administered by [the respondent] was not consideration under a contract of employment on the above authorities. On the overwhelming weight of evidence, it was a stipend to help cover living expenses for a full-time PhD student.”
[61] Ermogenous.
There is nothing inherently wrong with the Arbitrator’s reasoning process or his conclusion that the appellant was not a “worker” within the meaning of the 1998 Act. The Arbitrator weighed the evidence of the appellant with the evidence that surrounded the facts that the respondent retained the intellectual property generated by the appellant’s research and that the appellant received a stipend.
It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is a factual exercise and generally a matter that falls within the province of the primary decision maker.[62] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[63]
[62] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308.
[63] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
As the respondent submits, the Arbitrator correctly applied the authorities in determining that an objective assessment of the relationship was required and in identifying the true nature of the relationship between the appellant and the respondent. In determining whether there was a contract of service, it is the totality of the relationship which must be considered, and the indicia can be no more than a guide to a master/servant relationship.[64]
[64] Stevens v Brodrib Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16.
The Arbitrator’s conclusion that the appellant was not a worker within the meaning of the 1998 Act was open to him. The appellant has failed to establish error of the kind required in order to disturb the Arbitrator’s conclusion. Ground Three of this appeal therefore fails.

Ground Four: error of fact in finding that the respondent retained the intellectual property in the work of all PhD students

I have dealt with the appellant’s submission that the retention by the respondent of intellectual property produced by the appellant was evidence that the contract was a contract of service. I rejected that submission. The Arbitrator’s observations relevant to this ground of appeal were that:
(a)    the only evidence before him that the intellectual property was retained by the respondent was that contained in the appellant’s statement;
(b)    there was a likelihood that those rights were reserved generally for all higher degree students, not solely in regard to scholarship stipend recipients, and
(c)    such rights may have included rights over knowledge acquired by the respondent and its staff.
The appellant submits that there was no evidence to support the Arbitrator’s observation that the respondent retained the rights to the research of all students. The Arbitrator did not make that finding. He simply observed that such was a likelihood. The appellant makes no submission under this ground of appeal as to how any such error has affected the ultimate outcome reached by the Arbitrator following his decision-making process.
The appellant asserts that the letter of offer dated 8 November 2017 provided that the support from the Commonwealth Government was to be acknowledged in any published material. The appellant submits that this condition only applied where the student received a fee offset scholarship so that the obligation only arose for researchers in the position of the appellant and not for ordinary students.
The letter of offer of a placement in the higher degree program dated 8 November 2017 advised the appellant that:
“All Domestic HDR Candidates at UNSW Sydney are awarded a Research Training Program (RTP) Fee Offset scholarship, which is paid to the University from the Australian Government on your behalf. The Australian Government contribution of an estimated $30,000 for 2017 is used to offset the costs of your tuition fees as a candidate of the University.
…
You must ensure the Commonwealth’s contribution is acknowledged when, at any time during or after completion of a HDR program, you, your supervisor or any other party, publishes or produces material (such as books, articles, newsletters or other literary or artistic works) which relate to the research project carried out by you as the recipient of a Research Training Program (RTP) Fee Offset scholarship.”[65]
[65] AALD, p 15.

In other words, every domestic student received a fee offset scholarship and was thus obliged to make the acknowledgment in any published material. In whatever way the appellant’s submission relates to this ground of appeal it is clearly incorrect. All domestic students were required to meet that obligation, not just those who were in receipt of a research scholarship.
I have determined that there was no error in the approach taken by the Arbitrator in failing to be satisfied that this factor was indicative of an employment relationship between the appellant and the respondent.
In those circumstances, the Arbitrator’s observation that it was likely to be the case is not indicative of error to the extent that there is ground to intervene in the Arbitrator’s ultimate conclusions that the fact that the respondent retained the intellectual property was not a factor supporting the existence of an employment relationship.
It follows that this ground of appeal also fails.

Ground Five: error of fact and law in finding that the appellant was not a deemed worker

The appellant submits that the only explanation given by the Arbitrator that the appellant was not a deemed worker was that the contract was not a contract to perform work. The Arbitrator indicated that he had already determined that the contract between the appellant and the respondent was not a contract to perform work. He further indicated that there was no work exceeding $10 in value, and the appellant was not working in a trade or business but was a student. Further, there was no intention to create a mutual legal relationship of employer and employee.
Clause 2 of Schedule 1 to the 1998 Act requires there to be a contract to perform work. The Arbitrator found that such a contract was absent from the arrangement between the appellant and the respondent. The Arbitrator gave reasons for reaching that conclusion when determining the issue of whether the appellant was a “worker” within the meaning of the 1998 Act. There was no error on the Arbitrator’s behalf in so finding. The Arbitrator was entitled to rely on his earlier, reasoned, finding that there was not a contract to perform work in circumstances where the finding was explained, and such a contract was a required element in satisfying cl 2 of Sch 1.
The appellant contends that the Arbitrator did not explain why performing research did not constitute work and maintains that it is clearly “work” and is akin to that performed by a research worker for a pharmaceutical company. There is no correlation between the work performed as an employed researcher and that of a student pursuing a higher degree through research work. The Arbitrator gave adequate explanation as to why he did not consider the research undertaken by the appellant constituted “work,” as it is understood in the context of an employment relationship. He observed:
“In my view the representation above does not reflect the actual nature of the relationship with the [respondent]. There was no ‘employment’ because there was no contract for this purpose, and the activities listed were not segregated responsibilities of a work ‘role’, but inherent in the conduct of [the appellant’s] own elite research and study over which she had significant control as a higher degree student seeking to attain a PhD.”[66]
[66] Reasons, [78].
The appellant’s challenge to the Arbitrator’s determination in that regard has not succeeded and so the appellant’s submission that the allegation that the Arbitrator was in error, and continued that error is not sustained.
This ground of appeal is not made out and fails.

CONCLUSION

The appellant has failed to establish error on the part of the Arbitrator. The Arbitrator’s Certificate of Determination is therefore confirmed.

DECISION

The Arbitrator’s Certificate of Determination dated 14 August 2020 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

21 December 2020