Hakim v Thomas Cook Boot & Clothing Co

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE
WORKCOVER DIVISION

Case No. MAG-CI-240058346

ROY HAKIM	Plaintiff
v
THOMAS COOK BOOT & CLOTHING CO.	Defendant

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MAGISTRATE:	Magistrate M J Richards
WHERE HELD:	Melbourne
DATE OF HEARING:	1 and 3 April 2025
DATE OF DECISION:	5 May 2025
CASE MAY BE CITED AS:	Hakim v Thomas Cook Boot & Clothing Co
MEDIUM NEUTRAL CITATION:	[2025] VMC 7

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WORKERS COMPENSATION - Whether plaintiff is a deemed worker - Preliminary ruling - Workplace Injury Rehabilitation and Compensation Act 2013 - Schedule 1 Clause 9 Contractors.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr S Carson	Arnold Thomas & Becker
For the Defendant	Mr A Middleton	Lander & Rogers

HIS HONOUR:

INTRODUCTION

The parties have asked the Court to determine a preliminary issue with respect to whether the plaintiff is a deemed worker within the meaning of Clause 9 of Schedule 1 of the Workplace InjuryRehabilitation and Compensation Act 2013 (Vic) (the WIRC Act). Plaintiff’s counsel has conceded the plaintiff does not satisfy the test for a common law employee but maintains he is a deemed worker pursuant to the WIRC Act.
Rawy (Roy) Hakim (the plaintiff) completed a Workcover claim for compensation dated 10 October 2023 alleging injuries to his ribs, back and bruising as a result falling from a roof on 9 October 2023 (PCB 41-44). The plaintiff stated he was a self-employed builder and alleged he had been employed by Thomas Cook Boot & Clothing Co. (the defendant) at the time of his injury. The plaintiff was injured whilst working at the family home of Murray Cook (Mr Cook), the Managing Director of the defendant, at the time of the incident.
On behalf of the defendant, the claim for compensation was rejected by Gallagher Bassett Services Pty Ltd (Gallagher Bassett) on 13 November 2023 on the following grounds:
·the plaintiff was not a worker under the WIRC Act;
·the plaintiff had not sustained an injury arising out of or in the course of employment.
(PCB 45-51)
Inter alia, the notice of rejection referred to the following reasons:
Whilst Gallagher Bassett has determined that in all probability you have suffered 3 fractured ribs, chipped bone in the lower back whilst working for your own company Linear Building Pty Ltd, Australian Business Number (ABN 21 620 235 047), it is evident that as at the date of injury you were a contractor, providing services to Thomas Cook Boot & Clothing Co Pty Ltd on behalf of Linear Building Group Pty Ltd (ABN 21 620 235 635). You further operate as an individual Sole/Trader under Hakim, Rawy Christian, Australian Business number (ABN 64 654 962 635).
In order for a contractor to be deemed a worker under the provisions of Clause 9 of Schedule 1 of the Act, a sole trader must satisfy that during the relevant period the contractor is not carrying on an independent trade or business and 80% of the services provided is completed by the same individual and 80% of the contractor’s total gross income must be earned from the services of the same class provided by or on behalf of the contractor in the relevant period, derived form that contract, and the services are not ancillary to the provision of materials and equipment.
The plaintiff has issued these proceedings against the defendant challenging the decision of Gallagher Bassett.
Mr S Carson of Counsel appeared for the plaintiff and Mr A Middleton of Counsel appeared for the defendant.
The issue in dispute concerned the application of Clause 9(1)(d) of Schedule 1:
(d) the gross income of the contractor that is, or is to be, derived from the provision of the services pursuant to the contractual arrangement is, or is to be, at least 80 per cent of the total gross income of the contractor earned from services of the same class provided by or on behalf of the contractor in the relevant period.
Mr A Middleton denied that the plaintiff was a deemed worker.
Counsel agreed that the period from 9 October 2022 to 9 October 2023 was the ‘relevant period’ pursuant to Clause 9(6)(ii) of Schedule 1.
The preliminary hearing proceeded over two days. The plaintiff, Mr Cook and Mr Don Jayasingha (Mr Jayasingha) gave evidence.
Documents were added to the respective court books during the running of the case. The Plaintiff’s Court Book (PCB) was tendered as Exhibit 1. The Defendant’s Court Book was tendered as Exhibit A.
The Evidence
Examination-in-chief of the Plaintiff
The plaintiff was a qualified mechanical engineer who had moved to building work in the last twenty years. The plaintiff said his building work initially involved the construction of new buildings, renovations, extensions, and small building jobs.
In or about 2018, the plaintiff said he worked on a building job for the sister-in-law of Mr Cook. About one year later, Mr Cook’s sister-in-law contacted the plaintiff and said that Mr Cook was looking for another worker to replace the defendant’s maintenance worker who had retired.
The plaintiff said he was interested and was introduced to Mr Cook. The plaintiff said he commenced working for the defendant on and off and eventually commenced working for the defendant on a full-time basis.
In or about 2020, the plaintiff said he did some small building work for a friend, Mr Andrew Gaal, but, thereafter, primarily did work for the defendant. The plaintiff said his work for the defendant gradually increased over time.
The plaintiff said Mr Cook would tell him what work was needed to be done for the defendant. At one stage the plaintiff said he was doing work involving partitions for the defendant during Covid 19. If the work involved engaging subcontractors such as electricians, Mr Cook would pay the subcontractors directly. The plaintiff said he did not pay subcontractors that were engaged to do work for the defendant.
As the plaintiff’s work for the defendant increased, the plaintiff said he would talk to Mr Cook daily at the defendant’s warehouse/office. Mr Cook would also text and ring the plaintiff every day.
The plaintiff said Mr Cook also asked him to do work for him at his family house in Donvale and for his son, Lochie, at his family house. The plaintiff said he mainly did work at the defendant’s warehouse in Nunawading.
The plaintiff said, if he was painting outside at the warehouse, and the weather was not good, he would not go to work.
The plaintiff said he would invoice the defendant $45 per hour for the work he did.
The plaintiff was referred to an invoice dated 5 September 2022 with the heading:
Linear Building Group P/L
ABN 64 654 962 635
Renovations/ Extensions
New Homes
Developments
Multi storey apartments
The plaintiff said the invoice was from his company and was addressed to the defendant in Nunawading for work that he had done (PCB 58). The plaintiff said the invoice was paid by Ms Sue Cook, Mr Cook’s wife, who worked for the defendant.
The plaintiff said he would see Mr Cook daily at the defendant’s warehouse. Mr Cook would discuss with the plaintiff what work he wanted the plaintiff to do once or twice a week and would also text or ring him. The plaintiff said the defendant’s warehouse also involved a big office and that there was always work to do such as painting.
In the twelve-month period before he was injured on 9 October 2023, the plaintiff said he worked for the defendant Monday to Friday, apart from some occasional work on the weekends for his friend, Andrew Gaal. During the week, the plaintiff said he was always working for the defendant, unless the weather prevented him from working outside.
The plaintiff was referred to a photograph of a van with the words ‘Southern Cross Miniature’s’ on the door of the van (DCB 43). The plaintiff said this was a hobby business that he had started which sold models such as cars.
Cross-examination of the Plaintiff
The plaintiff agreed that his Linear Building Group P/L business existed before he commenced doing work for the defendant.
The plaintiff was referred to the invoices that he provided the defendant. It was put to the plaintiff that he represented to the defendant that he was a ‘Registered Building Practitioner’ on the invoices.
The plaintiff said it was costing money to stay registered as a builder and that he decided to cease operating as a registered builder. The plaintiff said the business was deregistered in 2019, but he kept using the trading name on his invoices.
The plaintiff was referred to the claim for compensation signed by him on 10 October 2023 (PCB 44). The plaintiff said he was in hospital at the time recovering from his injuries but agreed it was his signature. The plaintiff said his wife completed the claim form after he told her what to do. The plaintiff was referred to the claim form stating that he was ‘Self-employed’ (PCB 42) and that he had started work ‘Approx. 4-5 years ago’.
The plaintiff was asked whether he was working for Linear Building Group P/L or Mr Cook when the claim form was completed. The plaintiff said he was working for Mr Cook and that he assumed Mr Cook was the employer.
The plaintiff agreed that the defendant did not pay him holiday pay, annual leave, sick pay, or superannuation.
The plaintiff said he recorded the hours that he worked for the defendant in his diary. He said he usually worked Monday to Friday from 8:30am to 3:00pm most weeks. Sometimes he would start work earlier and sometimes he would finish work later. If there was no work to do for the defendant, the plaintiff said he would not go to work. The plaintiff said he charged the defendant $45 per hour plus GST.
The plaintiff agreed that he did some private work for Mr Cook and his son, Lochie Cook. The plaintiff said he sent the invoice for the work he did for Lochie Cook to Lochie Cook and not the defendant. The work for Lochie Cook was prior to the agreed ‘relevant period’.
The plaintiff was referred to paragraph 4(b) of the Statement of Claim dated 15 March 2024 which read:
4(b) The Plaintiff was employed by the Defendant on a sub-contractor basis for approximately 2 years as a maintenance labourer. The Plaintiff did 100% work for the Defendant and all jobs performed were at the discretion of the Defendant.
(PCB 10)
It was put to the plaintiff that the paragraph 4(a) was incorrect as he had provided the following invoices to Claudette and Andrew Gaal at 5 Sunridge Place, Berwick during the relevant period:
·4 July 2023 for $746.57 for 12 hours work done on 26, 28 and 30 June 2023 inclusive of an amount for the supply of materials on 30 June 2023 totalling $146.57 - (PCB 99);
·22 July 2023 for $1709.73 for 28 hours work done on 4, 7,14, 19, 20 and 21 July 2023 inclusive of an amount for the supply of materials on 19 and 21 July 2023 totalling $309.73 - (PCB 103);
·30 July 2023 for $1647.08 for 15.5 hours work done on 27, 25 and 28 July 2023 inclusive of an amount for the supply of materials and paint on 7, 19, 24, and 28 July 2023 totalling $872.08 - (PCB 105);
·6 August 2023 for $1187.78 for 18.5 hours work done on 31 July 2023, 1 and 2 August 2023 inclusive of an amount for the supply of materials on 2 August 2023 totalling $262.78 - (PCB 107).
The plaintiff said Andrew Gaal was his best friend and agreed that he had done some work for him.
The plaintiff agreed he had not lodged tax returns for the period from 2019 to 2024. The plaintiff said he has not had a chance to lodge the tax returns because of the problems he has had over the past few years. The plaintiff said that he does intend to lodge the tax returns and has spoken to his accountant but is not mentally fit to lodge them at present due to his injury. The plaintiff said he had the records needed to lodge the tax returns.
The plaintiff was asked why he had not lodged tax returns before he was injured. The plaintiff said he had been busy and did not get a chance to do them. The plaintiff said it was his fault that the tax returns had not been lodged. The plaintiff denied not lodging tax returns because he was making more money.
The plaintiff was referred to his personal ‘Smart Access’ bank statements from the Commonwealth Bank for the period from 28 December 2017 to 27 September 2024 (PCB 118-573). Bearing in mind that the parties have agreed that the ‘relevant period’ was from 9 October 2022 to 9 October 2023, the Court has not referred to some of Mr Middleton’s cross-examination with respect to these records.
The plaintiff was referred to a payment into his account on 4 July 2023 in the amount of $746.57 with the description ‘INV070223AG’ (PCB 499). The plaintiff said the payment related to the invoice dated 4 July 2023 made out to Mr Gaal.
The plaintiff was referred to a payment into his account on 10 July 2023 in the amount of $337.04 with the description ‘Misc invoices’ (PCB 500). The plaintiff said it related to a payment from Andrew Gaal even though the description did not refer to Mr Gaal. The plaintiff said the payment would only have come from Mr Gaal or Mr Cook.
The plaintiff was referred to a payment into his account on 17 July 2023 in the amount of $1284.80 with the description ‘Quote - 40452’ (PCB 502). The plaintiff said it was a payment from Mr Gaal. The plaintiff said he had provided a verbal quote for materials for roofing work for Mr Gaal and Mr Gaal had paid him the money for the materials. The plaintiff said he did not charge Mr Gaal for his labour in doing the job.
The plaintiff was referred to a payment into his account on 27 July 2023 in the amount of $1709.73 with the description ‘INV-072223AG’ (PCB 504). The plaintiff said the payment related to the invoice dated 22 July 2023 made out to Mr Gaal.
The plaintiff was referred to a payment into his account on 1 August 2023 in the amount of $1647.08 with the description ‘INV-073023AG’ (PCB 505). The plaintiff said the payment related to the invoice dated 30 July 2023 made out to Mr Gaal.
The plaintiff was referred to a payment into his account on 1 August 2023 in the amount of $1647.08 with the description ‘INV-073023AG’ (PCB 505). The plaintiff said the payment related to the invoice dated 30 July 2023 made out to Mr Gaal.
The plaintiff was referred to a payment into his account on 10 August 2023 in the amount of $1187.78 with the description ‘INV-080623AG’ (PCB 512). The plaintiff said the payment related to the invoice dated 6 August 2023 made out to Mr Gaal.
It was put to the plaintiff that the fall on 9 October 2023, when doing work for Mr Cook, had nothing to do with his work for the defendant.
The plaintiff did not respond.
Re-examination of the Plaintiff
The plaintiff was asked whether he knew that he was working for Mr Cook when he was at Mr Cook’s family house. The plaintiff said he was asked by Mr Cook to do the work and would do it.
Leave granted to further cross-examine the Plaintiff
The plaintiff was asked whether he sometimes had other tradesmen assisting him with work for the defendant.
The plaintiff said he might have had assistance from tradesmen at the start of working for the defendant but would always have the defendant pay for the work that they did.
Further re-examination of the Plaintiff
The plaintiff said he primarily worked on his own for the defendant in the twelve months before he was injured. If an electrician had assisted him in the last twelve months, the electrician would have sent a separate invoice to the defendant.
Evidence-in-chief of Mr Cook
Mr Cook said he was the Managing Director of the defendant.
Mr Cook said he engaged the plaintiff to do handyman work for the defendant. He met the plaintiff through his sister-in-law for whom the plaintiff had done work for.
Mr Cook said the defendant had another handyman who had retired, and he asked the plaintiff to do some work. The plaintiff initially worked on a café in the defendant’s warehouse in Nunawading.
Mr Cook said the plaintiff had no set hours of work and did not have to turn up every day. Mr Cook said the plaintiff was able to do work for other people. Mr Cook said he could not recall the plaintiff ever saying that he could not work for the defendant.
Mr Cook said he also asked the plaintiff to do some work at his family house. The plaintiff would invoice the defendant for the work he did. The invoices would refer to work that the plaintiff did for the defendant at the warehouse and refer to work done by the plaintiff at Mr Cook’s house.
Mr Cook said there was no arrangement for the plaintiff to provide a separate invoice for work done at his family house. It was easier for the plaintiff to set out all the work he did on one invoice. Mr Cook said he would separate the work.
The defendant’s account department would pay the invoices provided by the plaintiff. Mr Cook said he would get the defendant’s chartered accountant to arrange for payment of any private work done by the plaintiff from Mr Cook’s personal loan account and not the defendant’s business account.
Mr Cook said he kept the payment separate because it was a personal payment and not a business expense.
Mr Cook said he had a personal load account with the defendant which was used to pay for non-work-related expenses. Mr Cook said the loan account was a debt that he owed the defendant and would have to be paid at some stage. Mr Cook said there was a time frame involved in repaying the debt and the debt was being carried forward to be settled one day.
Mr Cook could not remember the plaintiff having any other tradesmen assist him during the last twelve months that he worked for the defendant. Sometimes the plaintiff had used other tradesmen when he first started doing work for the defendant. If the plaintiff had used other tradesmen in the past, those tradesmen had provided their own invoice to the defendant for payment.
Cross-examination of Mr Cook
Mr Cook agreed that any tradesman that had assisted the plaintiff when he worked for the defendant provided a separate invoice to the defendant.
Mr Cook also agreed that the plaintiff had not been assisted by any other tradesman during the last twelve months that he had worked for the defendant.
Re-examination of Mr Cook
Mr Cook said the plaintiff’s invoice would be accompanied by a separate invoice from a tradesman if the plaintiff had required assistance from someone else. On occasions, the plaintiff had required an electrician to do some work, but this had not happened in the last twelve months.
Evidence-in-chief of Mr Jayasingha
Mr Jayasingha worked for the defendant as their Financial Controller for seventeen years before retiring in mid-2024.
Mr Jayasingha said the invoices provided by the plaintiff to the defendant were processed by an assistant accountant who managed the accounts payable. The assistant accountant would check the plaintiff’s invoice with Mr Cook. Mr Jayasingha said he would sign off on payment of the invoice.
Mr Jayasingha said the plaintiff sometimes provided an invoice that referred to work done privately for Mr Cook and to work done for the defendant. Mr Jayasingha said his assistant would check with Mr Cook to determine what expense related to the defendant and what expense was private.
Mr Jayasingha said the defendant would distinguish what was a company expense or a personal expense. If it were a personal expense, the payment would come from a loan account that Mr Cook had with the defendant. Accordingly, the expense would not be a tax deduction for the defendant.
If a tradesman had assisted the plaintiff, the tradesman invoice would provide a separate account which the plaintiff would attach to his invoice for payment. Mr Jayasingha said the defendant would pay one amount to the plaintiff and the plaintiff would then pass on payment to the tradesmen.
Mr Jayasingha said once the defendant approved the work to be done by the plaintiff, it was up to the plaintiff to complete the job as he pleased and invoice the defendant.
Mr Jayasingha said the plaintiff was not at the defendant’s warehouse every day and worked his own hours. The plaintiff could start and finish when he pleased.
Cross-examination of Mr Jayasingha

Mr Jayasingha agreed that the defendant would pay the plaintiff’s invoices.
Mr Jayasingha said the loan account provided to Mr Cook was an internal arrangement between Mr Cook and the defendant.
Mr Jayasingha agreed the plaintiff was not aware of the loan account.
Mr Jayasingha said it was none of the plaintiff’s business as to what the defendant and Mr Cook did in respect of the loan account.
Submission on behalf of the Defendant
The incident occurred at the family home of Mr Cook, a director of the defendant.
It was submitted that there were two issues in respect of the plaintiff’s claim:
·the plaintiff operated as a subcontractor to the defendant but at times performed work privately for Mr Cook and his family. The plaintiff therefore had to satisfy the provisions of Schedule 1, Clause 9 of the WIRC Act;
·at the time of the incident, whether the plaintiff was doing work for the defendant or privately for Mr Cook.
With respect to whether the plaintiff was working privately for Mr Cook at the time of the incident, the defendant led evidence through Mr Cook and Mr Jayasingha that Mr Cook’s private work was kept separate from the defendant’s work.
It was submitted that, whilst the plaintiff invoiced the defendant for all the work that he did, when the defendant received the invoice, the private work would be identified and separated into Mr Cook’s loan account. After the defendant paid the total amount of the invoice to the plaintiff, Mr Cook would reimburse the defendant thorough his loan account.
The defendant submitted that the plaintiff did not challenge this evidence. Therefore, the defendant submitted that the plaintiff did private work for Mr Cook which was separate from the defendant.
It was submitted that the remuneration that the plaintiff received for this work should not be included in any assessment for the purposes of Schedule 1, Clause 9.
It was also submitted that the payment from Mr Gaal for the work performed by the plaintiff should also not be included in any assessment.
The defendant submitted that only the work that the plaintiff did for the defendant should be included in any assessment.
It was submitted that Mr Cook had made a calculation based on the number of hours worked for both the defendant and him during the ‘relevant period’. The figures produced by Mr Cook indicated that the work done by the plaintiff for the defendant were less than the 80% required.
In making that submission, the defendant relied on an undated document prepared by Mr Cook which apportioned the plaintiff’s hours of work at the defendant’s business, hours of work at Mr Cook’s house and hours of work with Mr Gaal during the ‘relevant period’ (DCB 57). The document read as follows:
9/10/22 to 9/10/23
Thomas Cook was invoiced by the plaintiff 50 times during this period.
The total number of hours worked in that year was 1198.5 hours.
By reference to the personal loan account, work on private non-Thomas Cook jobs was 273 hours and work for Thomas Cook jobs was 925 hours.
Personal/Private jobs averaged 5,25 hours per week.
Thomas Cook jobs averaged 17.78 hours per week.
These figures do not include the work that was done for Andrew Gaal in the same period which I am instructed by my legal advisors totals 74 hours.
The percentage amounts of work excluding that done for Andrew Gaal is
Thomas Cook 77.25%
Cook Family 22.75%
When the work for Andrew Gaal is added, the percentages are as follows
Thomas Cook 72.72%
Cook Family 21.46%
Andrew Gaal 5.82%
Total 100%
The plaintiff conceded in cross-examination that he had not lodged a personal tax return since 2019. The plaintiff’s excuse seemed to be that he was too busy and that he did not get around to it.
Three of the personal tax returns preceded the plaintiff’s injury on 9 October 2023. It was submitted that the plaintiff’s excuse was implausible given the amount of work he did for the defendant and other entities.
It was submitted that the Court should not accept the plaintiff’s answers to this issue as truthful.
In conclusion, apart from the 80% issue, it was submitted that the circumstances and location of the incident, clearly established that the plaintiff was not working for the defendant at the time of the incident.
Submission on behalf of the Plaintiff
It was submitted that the plaintiff came within Schedule 1, Clause 9 of the WIRC Act.
The plaintiff had no issue with the defendant’s submission concerning the cost of materials not being included in the assessment.
It was submitted that the plaintiff was a witness of truth and did his best to answer the questions put to him, if at times, he did struggle.
The evidence of Mr Cook and Mr Jayasingha corroborated the evidence of the plaintiff’s case. The plaintiff sent his invoices to the defendant which was the corporate entity. The plaintiff did not send invoices to Mr Cook for work done at his family house.
The plaintiff’s invoices, whether for work done at Mr Cook’s house, or for the defendant, were paid by the defendant. The reality was that the plaintiff provided an invoice for the work that he did, and payment was received by the plaintiff by the defendant.
It was none of the plaintiff’s business that the defendant apportioned the payment of the plaintiff’s accounts between the loan account of Mr Cook and the defendant’s business.
It was agreed that the ‘relevant period’ was from 9 October 2022 to 9 October 2023. During that period, the plaintiff exceeded the 80% assessment.
A spread sheet prepared on behalf of the plaintiff indicated that the plaintiff worked 1213.5 hours for the defendant during the ‘relevant period’. This included work at Mr Cook’s house. In addition, the plaintiff worked 74 hours for Mr Gaal during the ‘relevant period’. The percentage of time worked at the defendant’s business, including work at Mr Cook’s house, amounted to 94.1% of the total amount of hours. The percentage of time worked for Mr Gaal amounted to 5.73% (PCB 729-732).
According to the spread sheet, the plaintiff received a total income of $60,387.75 during the ‘relevant period’. The plaintiff received $58,087.75 income from the defendant and, after the deduction of payments for materials, the balance from Mr Gaal. The percentage of income paid by the defendant of the total amount amounted to 96.19%. The percentage of income paid by Mr Gaal amounted to 3.80%.
The total number of invoices provided by the plaintiff during the ‘relevant period’ was said to be 57 made up of the following:
Thomas Cook Invoices: 52
Sue Cook Invoices: 1
Gaal Invoices: 4
It was submitted that the plaintiff’s gross income was at least 80% of the total gross income earned by the plaintiff from services of the same class provided by the plaintiff to the defendant within the meaning of Schedule 9 Clause (1)(d).
The defendant’s analysis was flawed and was arrived at after the fact, based on a reconstruction of the evidence to now apportion the work that the plaintiff performed for the defendant during the ‘relevant period’.
Reply submission on behalf of the Defendant
The defendant submitted the plaintiff’s submission should be disregarded and did not accord with the assessment of the hours the plaintiff worked for the defendant and Mr Cook, and the resultant remuneration.
Discussion
The plaintiff has the onus in establishing that he was a ‘worker’. The Court must decide this preliminary issue bearing in mind that the burden of proof lies with the plaintiff.
In accordance with subclause 9(1)(d), the Court must determine whether the gross income of the plaintiff derived from the provision of the services pursuant to the contractual arrangement with the defendant was at least 80% of the total gross income of the plaintiff earned from services of the same class provided by the plaintiff in the 'relevant period’.
It was common ground that the defendant, through Mr Cook, engaged the plaintiff to provide his services as a handyman.
Clause 9 of Schedule 1 of the WIRC Act reads:
(1) This clause applies if -

(a) an entity (the principal), in the course of, and for the purposes of a trade or business carried on by the entity, enters into a contractual arrangement with another entity (the contractor) for the provision by the contractor of services (not being transport services within the meaning of clause 8) to the principal for reward in respect of a relevant period; and

(b) the provision of the services by the contractor under the contractual arrangement is not ancillary to the provision of materials or equipment by the contractor to the principal under the contractual arrangement; and

(c) at least 80 per cent of those services are, or are to be, pursuant to the contractual arrangement, provided by the same individual (the individual) being -

(i)the contractor; or

(ii) if the contractor is a partnership, an individual member of the partnership; or
(iii) if the contractor is a body corporate - a member, director, shareholder or employee of the body corporate; or
(iv) if the contractor is the trustee of a trust - a person who may benefit under that trust or is an employee of the trustee; and

(d) the gross income of the contractor that is, or is to be, derived from the provision of the services pursuant to the contractual arrangement is, or is to be, at least 80 percent of the total gross income of the contractor earned from the services of the same class provided by or on behalf of the contractor in the relevant period.

(2)   This clause does not apply in respect of a contractual arrangement if the Authority determines that, in providing services to the principal, the contractor is carrying on an independent trade or business.
(3)   The Authority may make guidelines as to the circumstances in which it may determine that a contractor, in providing services to a principal, is carrying on an independent trade or business.
(4)   The authority must ensure that guidelines made under subclause (3) are published and are generally available.
(5)   If subclause (1) applies –
(a)       the individual is deemed to be a worker in respect of the relevant period; and
(b)       the principal is deemed to be the employer of the individual in respect of the relevant   period; and
(c)       the total amount paid or payable by the principal to the contractor under the contractual arrangement, less –
(i)the applicable prescribed percentage (if any); or
(ii)if there is no applicable prescribed percentage, the part of that total amount not
attributable to the provision of labour -

is deemed to be remuneration.
(6) In this clause –
principal includes a group, or one or more members of a group, within the meaning of section 431;
relevant period, in relation to services provided under a contractual arrangement referred to in subclause (1) means –
(a)the financial year in which those services are, or are to be provided; or
(b)if those services are, or are to be, provided in 2 consecutive financial years –
(i)the 12 month period beginning on the date on which those services are first provided pursuant to the contractual arrangement; or
(ii)the 12 month period ending on the date on which those services cease, or are to cease, to be provided;

services includes results (whether goods or services) of work performed.

The Explanatory Memorandum to the Workplace Injury Rehabilitation and Compensation Bill 2013 described Clause 9, along with Clauses 10 and 11 as ‘contractor provisions’, which were intended to look beyond the business and corporate structures of a contractual arrangement in order to determine the true working relationship of the relationship. If this is akin to an employment relationship, the WIRC Act treats the relationship as such, by deeming the relevant party to have worker or employer status. Clauses 9 re-enacted Section 8 of the Accident Compensation Act 1985 (see page 325 of the Explanatory Memorandum).
With respect to Clause 9(1)(d), the Explanatory Memorandum stated:
Clause 9(1)(d) sets out the third and final limb of the clause 9 employment test. This reflects the principle that where a contractor is effectively ‘tied to’ one principal and does all or most of his or her work for one principal, then the true working relationship underpinning the contractual arrangement tends to an employment relationship.
This limb of the employment test will be satisfied if the gross income earned from that arrangement comprises 80 per cent or more of the contractor entity’s total gross income from the provision of services of the same kind in the relevant period.
There is agreement as to the ‘relevant period’.
Counsel for the plaintiff and the defendant do not agree on the figures for the ‘relevant period’ from 9 October 2022 to 9 October 2023.
I accept the submissions made on behalf of the plaintiff.
I do not accept the submissions made on behalf of the defendant.
I found the plaintiff to be a credible witness. At times he struggled to grapple with some questions put to him but did his best to answer them truthfully. He readily conceded that he had failed to lodge taxation returns over the past three years and accepted that he was at fault. I do not find that this impugns his credit.
The plaintiff was engaged by Mr Cook to work as a handyman for the defendant. I accept the plaintiff’s evidence that he would do whatever work Mr Cook asked him to do, whether it was at the defendant’s warehouse or at Mr Cook’s family home. I find it completely artificial for Mr Cook to say that when the plaintiff did work at the family home, he was not working for the defendant. I do not accept that analysis.
It is relevant that the plaintiff invoiced the defendant for the work that he did during the ‘relevant period’, whether at the defendant’s warehouse or Mr Cook’s family house. The plaintiff did not provide separate invoices based on who he had allegedly worked for. The defendant did not object to being provided with such an invoice. As Counsel for the plaintiff submitted, the reality was that the plaintiff provided an invoice for the work that he did, regardless of where he had done it, and payment was received from the defendant.
I find it important that the defendant paid the plaintiff’s invoices as a total payment from the defendant. The defendant did not pay the invoices on the basis that there was an apportionment between the defendant with Mr Cook.
The fact that the defendant now says that there was an internal decision made to apportion the payment between the defendant and Mr Cook’s loan account is beside the point. As indicated by Mr Jayasingha, that was a decision made for taxation purposes and was none of the plaintiff’s business.
The plaintiff did not put his case on the basis that he was a worker in the primary sense. Some of the defendant’s cross-examination seemed to address that issue which was not in dispute.
Given my findings, the plaintiff is a deemed worker within the meaning Schedule 1, Clause 9 of the WIRC Act.
Conclusion
As opened by Counsel, the preliminary issue in dispute concerned the application of Clause 9(1)(d) of Schedule 1. The evidence was directed to that issue.
I am satisfied of the following:
·in the course of, and for the purposes of its business, the defendant entered into a contractual arrangement with the plaintiff for the provision of his services to the defendant as a handyman for reward in respect of a ‘relevant period’ - subclause 9(1)(a); and
·the provision of these services by the plaintiff under the contractual arrangement was not ancillary to the provision of materials or equipment by the plaintiff to the defendants under the contractual agreement - subclause 9(1)(b); and
·at least 80% of these services, pursuant to the contractual arrangement, were provided by the plaintiff - subclause 9(1)(c)(i); and
·based on the evidence, the gross income of the plaintiff derived from the provision of the services pursuant to the contractual arrangement was at least 80% of the total gross income of the plaintiff earned from services of the same class provided by the plaintiff in the ‘relevant period’ - subclause 9(1)(d);
·the ‘relevant period’ was from 9 October 2022 to 9 October 2023 - subclause 9(6)(b)(ii);
·in respect of the contractual arrangement, in providing services to the defendant, the plaintiff was not carrying on an independent trade or business.
Accordingly, subclause 9(1) applies and the plaintiff is deemed to be a worker in respect of the ‘relevant period’ and the defendant is deemed to be the employer of the plaintiff in respect of the ‘relevant period’.
On the totality of the evidence, the plaintiff has discharged the onus.
The notice of Gallagher Bassett dated 13 November 2023 rejecting the plaintiff claim for compensation on the ground that he was not a worker is set aside.
It follows from the above reasoning that the plaintiff was working for the defendant at the time of the incident.
Furthermore, the Court is of the opinion that, based on the evidence, this decision also accords with the Explanatory Memorandum to the Workplace Injury Rehabilitation and Compensation Bill 2013 and reflects the true working relationship between the plaintiff and the defendant.
I invite the parties to provide orders as to the future conduct of the proceeding.

MAGISTRATE M J RICHARDS

5 MAY 2025

[2025] VMC 7

5 May 2025