Guardian Group Australia Pty Ltd v Chhay

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Guardian Group Australia Pty Ltd v Chhay & Ors [2008] NSWWCCPD 98
APPELLANT:		Guardian Group Australia Pty Ltd
FIRST RESPONDENT:		Hour Chhay
SECOND RESPONDENT:		John & Juliette Bechara t/as John’s Metal Roofing
THIRD RESPONDENT:		East India Company Pty Ltd
APPELLANT’S INSURER:		QBE Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER:		GIO General Limited
THIRD RESPONDENT’S INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC382-08
DATE OF ARBITRATOR’S DECISION:		22 April 2008
DATE OF APPEAL DECISION:		16 September 2008
SUBJECT MATTER OF DECISION:		Adequacy of reasons; credit issues and the application of Malco Engineering Pty Ltd v Ferreira & Ors (1994) 10 NSWCCR 117; exercise of discretion to permit cross-examination; ‘worker’ – formation of contract of employment.
PRESIDENTIAL MEMBER:		Acting Deputy President Michael Snell
HEARING:		On the papers
REPRESENTATION:		Appellant:	McCulloch & Buggy
First Respondent:	Taylor & Scott
Second Respondent:	Moray & Agnew
Third Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 22 April 2008 is confirmed.
The Appellant is to pay the costs of the other parties to the appeal.

BACKGROUND TO THE APPEAL

1. On 19 May 2008 Guardian Group Australia Pty Ltd (‘Guardian’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 22 April 2008. In the arbitral proceedings Guardian was the First Respondent Employer.

1. The Respondents to the Appeal are Hour Chhay (‘the worker’), John and Juliette Bechara t/as John’s Metal Roofing (‘John’s Roofing’), and East India Company Pty Ltd (‘East India’). In the arbitral proceedings these parties were the Applicant Worker, and the Second and Third Respondent Employers, respectively.

1. The worker is now 57 years of age, and has a dependant wife. He was employed by Guardian full-time as an asbestos removalist from 8 December 2000, and also for other short periods prior to that date. Guardian’s principal activity was asbestos removal, although it appears also to have done the work of “metal roof installing, small demolition works and industrial insulations”. This, like many aspects of Guardian’s operations, became controversial. The location of the work varied, depending on the sites where Guardian had jobs.

1. On Saturday 12 May 2007 and Sunday 13 May 2007 the worker was working at a building at 10 Raglan Street, Auburn, where he and others were stripping out timber from the interior of an old building. With the exception of one man, all of the people engaged in this work were ordinarily employed by Guardian. On 13 May 2007 a piece of timber on which the worker was standing broke, and he fell to the floor (estimates of the distance vary), fracturing his left ankle. Another worker drove him home, and he was then taken to Liverpool Hospital, where the lower leg was x-rayed and put in plaster, and he was discharged. Guardian’s Reply put the occurrence of injury in issue, but ultimately this was not seriously…