Hogan v Easy Fall Guttering Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hogan v Easy Fall Guttering Pty Ltd [2022] NSWPIC 130
APPLICANT:	James Hogan
RESPONDENT:	Easy Fall Guttering Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	25 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Worker; deemed worker; agreement for the installation of respondent’s product by unlicensed installer; under the trade licence of another party; CFMMEU v Personnel Contracting Pty Ltd, ZG Operations Australia Pty Ltd v Jamsek; in the absence of a written contract; considertaitn of the indicia of employment remains relevant; On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation; Held– applicant was neither a worker nor a deemed worker; award for the respondent.
DETERMINATIONS MADE:	Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

On 16 May 2017 James Hogan suffered a serious injury to his lumbar spine when he fell from a platform he was using to install a guttering system designed by Easy Fall Guttering Pty Ltd (Easy Fall) at a residential property at Kangaroo Point.
Easy Fall disputes that it is liable to pay Mr Hogan compensation because it says he was not a worker or deemed worker. There is no dispute about the circumstances of the injury.

PROCEDURE BEFORE THE COMMISSION

The claim was listed for conciliation conference and arbitration hearing on 16 February 2022 when Mr Beran of counsel appeared for Mr Hogan, instructed by Mr Walker and Mr Grant of counsel appeared for Easy Fall, instructed by Mr Murphy.
At the conciliation conference the parties agreed that if Mr Hogan was a worker:
(a) his pre-injury average weekly earnings were $853;
(b) he suffered 22% whole person impairment as a result of the injury to his lumbar spine which would result in compensation of $58,327.50 under s 66 of the Workers Compensation Act 1987 (the 1987 Act), and
(c) there would be an award for Easy Fall in respect of his claims for permanent impairment compensation for scarring and a condition in his gastro-intestinal tract.
The parties agreed that I was also required to determine the question of Mr Hogan’s capacity for work from 28 August 2019 when payments ceased. If I found that he had capacity, the s 37 period expired in late 2019 and it was common ground that Mr Hogan had not applied for payments to continue under s 38(3)(a). The parties agreed that I could make an ongoing award if I found that Mr Hogan had no current work capacity.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute as to whether Mr Hogan was a worker or deemed worker.

EVIDENCE

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents (ARD);
(b)    Reply, and
(c)    Mr Hogan’s Application to Admit Late Documents dated 10 February 2022
At the telephone conference, Easy Fall foreshadowed an application to cross Mr Hogan and Mr Hogan’s representatives sought to cross examine Paul Axford, the principal of Easy Fall, and Chris de Wet, its former manager. Those applications were not pressed at the arbitration hearing and there was no oral evidence.

Mr Hogan’s evidence

Mr Hogan said in his statement dated 27 October 2021 that he had worked for Paul Axford for about 12 years. Mr Axford’s company was originally called Easy Flow guttering then High Tech guttering and subsequently Easy Fall. During that 12 years, Mr Hogan said he did not work for anyone other than the companies with which Mr Axford was associated. Mr Hogan was offered other work but he declined it because Mr Axford told him “if I did other work I wasn’t coming back.”
Mr Hogan said that he had an ABN but it was cancelled in November 2011. Though not explicitly stated, it is clear that he did not hold a trade licence.
Mr Hogan said that Easy Fall sold the guttering and its installation and Mr Axford designed the guttering plan for each job. He put a price on each installation then sent the quote to the plumber and installer. Mr Axford also did not hold any of the relevant trade licences. Mr Hogan received work when either Mr Axford or Mr de Wet sent him an email asking him to contact the customer and arrange installation. He attached a series of sample emails to his statement. The emails were sent to Mr Hogan and another person and attached a .pdf file. Some asked the recipients to phone the property owner and others read “this lead should suit James.”
The customer paid Mr Hogan and the holder of the relevant licence was paid 10% of the fee. On other occasions, the licence holder was paid and it paid Mr Hogan. In his statement, Mr Hogan said he was earning $120,000 a year.
Mr Hogan said that between 2014 and 2016, Russell Hagan was “the installer with the licence”. During that period, Mr Hogan was paid by Mr Hagan but often had trouble recovering his money. Mr Hogan then asked that the customer pay him and he would pay Mr Hagan.
Mr Hogan said that he worked five days a week from 7.00am to 3.00pm. He took lunch and tea breaks on his own initiative and he received no training from Mr Axford in workplace safety. Mr Axford asked him to “put Easy Fall Guttering” in his voice mail inbox and to wear an Easy Fall uniform. He was asked to say he was working for Easy Fall. He did not take out his own insurance. Easy Fall had scaffolding but did not provide it to Mr Hogan and he provided his own tools, ladders, trestles and planks.
Mr Axford took photographs when he quoted the job but did not give them to Mr Hogan. If Mr Hogan declined a job, Mr Axford punished him by giving him bad jobs or withholding work and “I’d get nothing for three weeks if I knocked back a job.”
Easy Fall wrote two contracts for each job. The first contract required payment for the guttering at the start the job and the second was for installation. When a job was completed the customer would either pay the licensee, who would pay Mr Hogan, or would pay Mr Hogan and he would pay the licensee. When he did a job under the licence of Aceline Plumbing Group Pty Ltd (Aceline) he collected the money from the customer and paid Aceline 10% of what he received. He said that Aceline received an email at the same time he did and it was Mr Hogan’s job unless he knocked it back. The work was allocated by Mr Axford.
Paragraph 40 of Mr Hogan’s statement is a refutation of Mr Axford’s statement dated 19 January 2018 and I will deal with it below.
The job at Kangaroo Point had been “sold” by Mr Axford. Mr Hogan said Mr Axford had looked at the site but did not put anything in the worksheet about the difficulties associated with a swimming pool.
Mr Hogan received an email from Mr de Wet on 12 April 2017. He did not visit the site before he started the job and it was not his usual practice to do so. On about the second day on the job, Mr Hogan rang Mr de Wet and said that he didn’t want to do the job. At Mr de Wet’s suggestion he rang Mr Axford and said he was concerned about the back section and how he could safely access the gutter where it hung out about four metres over a swimming pool. Mr Axford came to the site, “gave some instructions about the awning section sold the customer some valleys.” In response to Mr Hogan’s concern about safe access, Mr Axford said that “a man of your calibre ought to be able to work it out.” Mr Hogan then rang Mr Ayyad from Aceline seeking assistance but he “just whinged about money.”
At around the time of the injury Mr Hogan was working with a backpacker named Robin, whom he found on Gumtree. Mr Hogan did not have a drivers licence at that time so Robin was helping by driving him to jobs and helping to pass equipment but not climbing ladders. Mr Hogan paid Robin in cash for helping him. Robin ceased working with Mr Hogan before the injury. Mr Hogan said that this job, like many others, was not a one man job and it was dangerous to do it alone.
Two days before the injury Mr Hogan asked Robbie Parker to help him. Mr Parker was a licensed roof plumber who used to work with Mr Axford. Another employee of Mr Axford arrived to get rid of some rubbish into the skip bin and saw Mr Parker there. He contacted Mr Axford who said that Mr Parker should not be there. When Mr Hogan said he was unable to do the job on his own, Mr Axford said that was not his problem and Mr Hogan was to get the work done. Mr Parker left the site.
On the day of the injury, Mr Parker dropped Mr Hogan at the worksite and left. Mr Hogan placed two planks across the swimming pool to get to the back corner of the house, and stood a trestle on those. He ran a plank between two ladders on either side of the pool. He used an extension ladder with a ladder bracket to support one end of a third plank, the other end being on the trestle. He removed the old guttering and started to install the new system by installing three brackets to hold a PVC gutter which sat on the brackets. He then attempted to install a Colourbond cover, which was 7.5 m long, without assistance. The trestle fell and Mr Hogan fell onto hard ground beside the pool.
Mr Hogan suffered a burst fracture of his L3 vertebra and underwent a fusion at L2 to L4 on 20 May 2017. He described subsequent events and his ongoing disabilities.
Mr Hogan said that he takes medication which includes Lyrica and Oxycodone. He takes medication for depression and has sought treatment from a psychologist. He has difficulty with cleaning and maintenance tasks at home. He has put on weight.
In his statement to Easy Fall’s investigator, Mr Hogan said that he did not know how long Aceline and Easy Fall had been associated and Mr Hogan had only done the last three jobs for Aceline.
Mr Hogan attached a series of emails to his statement. As an example, an email dated 18 May 2015 provided details of a new job but told Mr Hogan that “Must complete Bagala Leaf guard & Colgate before this job.” Another dated 16 August 2015 asked him to fix problems at a job. An email on 18 August 2015 from a client pointed out issues which he hoped “can be fixed by Robbie and his team.” Others asked that Mr Hogan ring a particular client “ASAP.”
An email dated 15 April 2016 addressed to “Robbie and James” asked that they contact a client that day to repair a leak. He said:
“Please note our new policy with repairs as discussed in our recent meeting
This job must be fixed by Thursday 21 April 16 or the following will apply.
ALL installers have seven days to fix any defects in their work, if the problem
Is not rectified in that time another installer will be sent to the job to fix it.
The cost will be allocated to the original installer as follows
$220 call out fee
$77 per hour & cost of any materials required
All GST inclusive
This is a very important development to protect both yours & Easy Fall Gutterings reputation” [sic].
Three emails from Mr de Wet dated 17 March 2017, 3 April 2017 and 28 April 2017 are addressed to Mr Hogan and Aceline and each reads “this lead should suit James.” They all relate to jobs other than the Kangaroo Point job.
A copy of the installation agreement for the Kangaroo Point job is also attached to Mr Hogan’s statement.

Mr Axford’s evidence

Mr Axford signed a statement on 19 January 2018 which was prepared by an investigator instructed by Easy Fall’s insurer. He said he was the sole director of Easy Fall. He said the company had been in operation since 2011. He said that the company did not employ Mr Hogan or pay him money. Mr Hogan was a gutter installer and Easy Fall did not have an agreement with him. He said he had direct contact with Mr Hogan from time to time to explain the design of a product and how to install it. Mr Axford said that when he receives a job it is sent to a licensee whose role is to do the job or allocate it to somebody.
Mr Axford said that Mr Hogan was qualified to install guttering before Easy Fall was established. His previous business Easy Flow Guttering was liquidated in 2009 and Mr Hogan was associated with a contractor which that company dealt with. He said that Mr Hogan “worked” for various people who provided installation services.
In respect of Aceline, Mr Axford said that he had been associated with its director, Sam Ayyad for about five years.
Mr Axford said that Easy Fall acted as an agent on behalf of installers and that a customer was given the choice of installing the guttering themselves or having Easy Fall suggest someone. If the customer wanted the guttering installed, a quote was provided and materials and installation were broken down onto two separate invoices. Mr Axford said that the quote for installation was what Easy Fall “recommend it to be.”
A lead was provided to a “licensee” who did not have to accept the job. “Licensee” is the description used by Mr Axford of the entity who held the relevant trade licences to undertake the installation.
Mr Ayyad of Aceline accepted the Kangaroo Point job. The customer paid Easy Fall for the materials before the commencement of the installation and paid the licensee directly for the installation. The licensee then paid the installer. Mr Axford said that if a licensee needed to buy materials, he reimbursed the licensee but that did not occur on the Kangaroo Point job.
Mr Axford said that Easy Fall did not as a rule contact Mr Hogan “directly with work” but sometimes spoke to the installer to explain something about the product. He said, however, that he cannot say how Mr de Wet, who no longer works for the company, allocated the job. Mr Axford said:
“As to the job at Kangaroo Point, I recall attending this site at one stage. James was there, he was commencing work. There was a section of the house I needed to work out how to install. I invented the guttering, so I went to site to make sure it would fit a certain section.”
Further materials were custom made and sent to the site.
Mr Axford said that Mr Parker was a previous licensee who had let customers down “and I told James that I’d prefer for him not to be on the job.” He was unaware that Mr Hogan hired a German backpacker but said “it was his call what he did” and that it was up to Mr Hogan and Mr Ayyad as to how they did the work. He denied that Mr Hogan said any areas of the job were unsafe and said that he did not give advice about work practices.

Mr Hogan’s response

A section of Mr Hogan’s statement refuted that of Mr Axford. In particular, Mr Hogan said that the licensee would often not know which jobs he was doing and that the job at Kangaroo Point was not accepted by Mr Ayyad but referred to him by Mr de Wet.
Mr Axford did provide specific training about how to use the product. Mr Hogan attended numerous meetings when Mr Axford operated Easy Flow and roughly five meetings after Mr Axford started Easy Fall.
Mr Hogan denied that the licensee paid him and he said he had much more contact with Easy Fall staff than the licensees.
He said he did not want to do the job at Kangaroo Point and was pushed to do it.

Other evidence

There is no statement from Mr Ayyad but a record of a conversation with an investigator on 23 January 2017 appears in the file. The document is not signed and the date on it must be incorrect.
He said that Mr Hogan was a subcontractor who did not work for Easy Fall or Aceline. The job at Kangaroo Point was Mr Hogan’s first job for him. Mr Ayyad gave Mr Hogan $900 after the injury which he regretted and Aceline completed the job. He said that Mr Hogan also took money from the homeowner “which he’s not supposed to do.” Mr Ayyad said that he was supposed to receive the full amount and pay Mr Hogan.
Mr Ayyad said that he received 10% “commission” for performing a final inspection and that the installer receives 90% of the installation price.
He said that Mr Axford did not have a licence which is why he needed licensees to sign off. He described Mr Axford as a “predator” who does not accept complaints about issues such as safety. He said that he was not working in this capacity anymore and does the work himself or not at all. However, he also said that 100% of his work came from Mr Axford and that Mr Axford arranged all the work, managed the sites, instructed the workers and even supplied skip bins on the Kangaroo Point job.
Mr Parker had a conversation with an investigator on 28 September 2017 which was also not reduced to a signed statement. He said that he had worked with Mr Axford who quoted large sums for jobs and allocate only a small part of labour and installation. Mr Parker had a dispute with Mr Axford because he asked for more money so that he could insure those working under his licence. He ceased working with Mr Axford because Mr Axford took on dangerous jobs and did not pay enough.
Peter Papadeas, the owner of the house at Kangaroo Point, provided a statement dated 23 January 2018. He said that Mr Axford quoted on the job and when Mr Papadeas asked if it was necessary to retain tradesmen for the installation “Paul said that he’s got about 6-7 tradesmen working for him, and he’ll assign the person who will do the best job for me.” Mr Axford quoted for material and installation and “Paul had James take on the job.”
Mr Papadeas paid for the guttering in two payments of $7,500. Mr Hogan asked Mr Papadeas to pay him some money and $1,500 was transferred to his bank account. Mr Axford then asked that Mr Papadeas not to pay Mr Hogan and said that he should pay Mr Ayyad. That was the first time Mr Papadeas was aware of Aceline’s involvement and until that time he understood Mr Axford was Mr Hogan’s boss.
After the accident, Mr Ayyad completed the work and Mr Papadeas paid him. Mr Hogan had done 80% of the work before the injury.
Mr Papadeas said two people helped Mr Hogan – a backpacker and a man called Robert. He said it was not a one man job.

Documentary evidence

An agreement for the supply of the guttering was signed by Mr and Mrs Papadeas on 8 March 2017 and bears a signature, which appears to be that of Mr Axford, as a Sales Consultant. That document attached a 25 year limited warranty which included:
“This warranty is void if the EASY FALL™ Guttering is not installed to specification or if the leaf guard is not cleaned of excess debris as required to stop water pooling in the leaf guard and or if anybody attempts to do any work on the product other than a technician authorised EASY FALL™ Guttering Pty Ltd.” [sic]

The conditions in the contract include:
“8 Supply of Product Only No Installation
(a) The Owners acknowledge that the Owners are buying the Product from EASY FALL™ and that EASY FALL™ is not responsible to install the Product Installation Is the responsibility of the Owners.”
A tax invoice/installation agreement was signed by Mr and Mrs Papadeas on 8 March 2017. and expressed to be from the installer, being Sam, Aceline Plumbing Group Pty Ltd. There is no reference to Easy Fall on the document, though it does refer to the Easy Fall System. It was estimated that the job would start in five to six weeks and take five to six days. The conditions attached to the agreement refer to the owner and the installer. Clause 13 provides:
“13. Acceptance of Contract
This Contract has been prepared by the agent of the Installer. The agent is not a licensed Plumber. The Owner acknowledges that the Installer is only bound by this Contract after the Installer has completed a work, health and safety inspection of the Site and agrees to carry out the works for the Contract Price. If the Installer is not prepared to do the work the installation is the responsibility of the Owner(s).”
There are examples of installation agreements for other jobs in the Reply, at least one of which is expressed to be from Mr Parker.

Easy Fall prepared an order for the job at Kangaroo Point which was sent to All Metal Australia Pty Ltd on 29 March 2017.
On 12 April 2017 Mr de Wet sent an email to Mr Hogan and Aceline which said:
“This lead should suit James
Please have a look at the back roof, customer mentioned there might be a leak”.
Two diary notes in different handwriting made on 15 January 2018 appear in the Reply. Mr Axford said in his statement that he “finally managed to speak to Sam” four days before he signed his statement and that his employee Alex Beese was present and also made a file note. The first note recorded that Mr Ayyad said that his insurer had accepted the claim and that it was not Easy Fall’s responsibility. Mr Ayyad had “admitted” paying Mr Hogan money from the job and employed him as a sub-contractor on a couple of jobs. The second note is longer and said that Mr Ayyad took responsibility because Mr Hogan was his contractor and that Easy Fall was not at fault. The note includes a statement that “Sam was told that Paul would go legal if this wasn’t resolved which would cost both Easy Fall and Sam a lot of money.”

Bank statements and tax documents

Mr Hogan’s bank statements from 29 November 2013 to 1 March 2017 appear in the ARD and show regular payments from Russell Hagan in 2014 and early 2015. From mid 2015 there are several payments from different people in varying amounts such as that on 22 June 2015 with the reference “new gutter”. Many of the payments have a reference that refers to guttering. Mr Parker made deposits on 11 May 2016, 22 June 2016, 20 July 2016.
Mr Hogan’s bank statements for the period 2 February 2017 to 21 July 2018 appear in his Application to Admit Late Documents. He had changed banks and the documents are in a slightly different form. They show an epayment from Mr Papadeas on 24 April 2017 for “Part payment gutte” of $1,500.
There are other payments which may be payments for work done. They appear on 9 February 2017, 27 February 2017, 9 March 2017, 31 March 2017,12 April 2017. There are payments from Aceline of $1,450 on 31 May 2017 and $200 on 12 June 2017, which I note total more than the $900 that Mr Ayyad said he had paid for the Kangaroo Point job.
Easy Fall’s solicitors had sought production of Mr Hogan’s tax returns since 2019 and it must be said that tax returns are often important evidence in a case where there is a dispute as to whether a person was a worker.
The only taxation information is attached to Mr Hogan’s Application to Admit Late Documents. It consists of a print out of his history from the Australian Taxation Office (ATO) website. It shows that in respect of the years ended 30 June 2002 to 2017, the assessment was finalised and marked “return not necessary.” In the years ended 30 June 2018 to 2020, a refund was payable.
A copy of the 2018 tax return nominates Mr Hogan’s occupation as a roof tiler. It discloses income of $8,346. The 2019 return discloses gross income of $56,628 and claims a deduction of $717 for work related car expenses. The 2020 tax return nominates income of $8,086 and no deductions.

District Court decisions

On 17 February 2021 each of Easy Fall and Aceline pleaded guilty to offences under the Work Health and Safety Act 2011 in respect of Mr Hogan’s injury. In decisions dated 18 December 2020 and 5 March 2021[1], Her Honour Judge Strathdee of the District Court imposed substantial fines on each company in respect of three separate offences committed by Easy Fall and two offences committed by Aceline.
[1] [2020] NSWDC 775 (Aceline) and [2021] NSWDC 44 (Easy Fall).
The District Court decisions in the SafeWork prosecutions do not give rise to any estoppels because the parties are different. Mr Beran took me to them and it is relevant to review them briefly.
In the decision with respect to Aceline, Strathdee DCJ said that Easy Fall conducted a business that involved the supply and installation of roof guttering and associated products. It ended into Lead Referral Agreements with licensed plumbers for the installation of the guttering at its customers premises.
There is no evidence about those Lead Referral Agreements in these proceedings – they were not mentioned.
Her Honour noted that Mr Hogan undertook work installing roof guttering and that he was a sole trader and that he did not hold a relevant contractor licence or tradesperson certificate. She said that he was directed by Easy Fall to undertake work under Aceline’s licence.
Her Honour recorded that Mr Papadeas was told that Mr Axford provided tradesmen who would install the product and Mr Papadeas received an email with two invoices: one for materials and one for installation. The installation agreement originally provided was headed “installer to be agreed”. Mr Papadeas was not given a choice of installers nor an opportunity to negotiate a price with the installer. The work was referred to Aceline by Easy Fall pursuant to the referral agreement. The only detail provided to Mr Hogan in the email dated 12 April 2017 was the installation agreement and Mr Hogan was not given any photographs of the site or an outline of the risks involved in undertaking the work. Thereafter the summary of facts in the decision is substantially the same as in Mr Hogan’s statement. In particular her Honour recorded that Mr Hogan did not want to do the installation but felt forced by Mr Axford to do it and he was concerned he would not receive any further work unless he did the job. Mr Hogan believed that the installation was too much work for a single person with or without an assistant and it was complicated.
Her Honour quoted from Mr Axford’s “second affidavit” in the proceedings against Easy Fall which attached documents dated after the statement relied on in these proceedings. Mr Axford said:
“I tried to ensure that Easy Fall's business operated on a day-to-day basis in the manner contemplated by the lead referral agreement; with Easy Fall generally keeping clear of any involvement in the gutter installation work . I wanted the licenced [sic] installers to take responsibility for the work and be directly accountable to the customer.
However, under this new business model, I accept that, in some respects, I allowed Easy Fall to remain involved in the process of installation.”
It clear that evidence was prepared for the purpose of those prosecutions which provided much more detailed information about the arrangements between the parties. Often the SafeWork brief will be obtained in Commission proceedings when an investigation has been undertaken and the evidence in it may have been of considerable assistance in determining this matter.

Decision notices

On 15 August 2017, QBE Workers Compensation accepted liability for the claim made by Mr Hogan as the scheme agent for Easy Fall.
The claim was later transferred to be managed by GIO which issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 8 July 2019. It disputed that Mr Hogan was a worker or deemed worker and raised disputes with respect to injury and incapacity. GIO said that financial records had been sought but not provided. The notice said that Easy Fall was not responsible for payment for services or for the work. Mr Hogan received payment from the licensee and the role of Easy Fall was only to supply the guttering material. The factual investigation reports dated 28 September 2017 and 23 January 2018 were attached.
GIO conducted a review under s 287A of the 1998 Act and issued a notice on 16 November 2020. The notice said that the only information provided in support of the review was a notice with respect to the proceedings commenced by SafeWork NSW and the insurer maintained its decision.
GIO conducted a further review and issued a notice on 22 March 2021. Mr Hogan had relied on Judge Strathdee’s decision in respect of Easy Fall but GIO noted that the findings made in the proceedings against Aceline were consistent with the information already held and that the Court was not required to explore Mr Hogan’s relationship with Easy Fall. GIO also said that Mr Hogan was not a deemed worker because he employed Robin the backpacker to assist him.
Another notice was issued on 12 August 2021 after Mr Hogan made a claim for permanent impairment compensation. GIO maintained its decision and said that Mr Hogan was prevented from commencing proceedings by s 71 of the 1998 Act because he had still not provided financial documents.
A further notice dated 22 October 2021 maintained the dispute with respect to liability and relied medical evidence recently obtained with respect to the claim for permanent impairment compensation.

Medical evidence

The evidence from Mr Hogan’s treating doctors substantially pre-dates the cessation of compensation payments. In October 2018 he was certified fit for limited duties for four hours on two days per week. Dr Dombroski noted that he was undergoing a lengthy rehabilitation process and would tire easily so that he should sit as needed. The last certificate of capacity in the file is dated 16 September 2019 and certified Mr Hogan fit for four hours on four days per week with a lifting limit of 5kg and sitting and standing limited to 30 minutes at a time.
Mr Hogan’s former solicitors arranged for him to be examined by Dr Stephenson, orthopaedic surgeon, who reported on 16 April 2018. Dr Stephenson recorded the medication that Mr Hogan was taking, including Oxycodone, Targin and Lyrica. He assessed 26% whole person impairment as a result of the injury. He considered that Mr Hogan had reduced function and reduced work capacity. He said that Mr Hogan would never be fit for his pre-injury duties and:
“Mr Hogan is only fit for light, semi-skilled office-based or customer service work or very light bench work of a skilled nature. I would suggest no more than four hours per day, five days per week at least initially to allow further assessment with vocational rehabilitation.”
Dr Stephenson noted that Mr Hogan’s treating surgeon had asked him to reduce the stronger analgesic medication.
Dr Endrey-Walder prepared a report at the request of his solicitors on 26 July 2021. He considered Mr Hogan “utterly and completely unfit” for any kind of work in the building industry and certainly any work of a mild to moderate physical nature. He noted that Mr Hogan had gastro-intestinal symptoms from the ingestion of medication.
Dr J Garvey who reported to Easy Fall’s insurer on 18 October 2021 after a telehealth consultation. He said that an in-person examination was not necessary but that subjective symptoms should not serve as the sole criterion for assessment. He said there was no objective evidence that Mr Hogan suffers a gastro-intestinal condition as a result of his lumbar spine injury. His report did not explain the obvious tension between those statements.
Dr S Rimmer prepared a report for Easy Fall’s solicitors in 2018. He accepted the history of the injury and assessed 22% whole person impairment resulting from the injury. He said that Mr Hogan should be seen by a pain management specialist in respect of narcotic dependence.

SUBMISSIONS

Mr Beran

Mr Beran said that Easy Fall’s case was that it did not pay Mr Hogan so that he was not a worker. He said that the evidence showed that Easy Fall was intricately involved in the installation of the guttering and negotiated the price of supply and installation. Mr Hogan did not have an ABN, he wore an Easy Fall t-shirt and represented Easy Fall.
Mr Beran agreed that the District Court decisions did not give rise to an estoppel but said they provided a good outline of the facts on which Mr Hogan relied. In particular, Mr Papadeas had no idea that he was dealing with anyone other than Easy Fall and Mr Hogan did not enter into a contract with anyone. Mr de Wet sent an email referring to a lead but the price and location were non-negotiable. All of the contact with Mr Papadeas was with Easy Fall and that was the same for all the work Mr Hogan did.
Mr Beran said that Mr Hogan was not a deemed worker because he did not enter into a contract with anyone.
The only indicium which suggested Mr Hogan was not a worker was the direct payment of money but it was paid to him on instructions from Easy Fall.
Mr Beran took me through Mr Hogan’s statement dated 27 October 2021 noting that it adopted and incorporated the statement made to Easy Fall’s investigator. He highlighted that Mr Hogan cancelled his ABN in 2011, he did not work for anyone else, declining any work he was offered because Mr Axford would no longer give him work if he did. Mr Beran noted that evidence was not contradicted. Mr Hogan was paid by the customer but that was at the direction of Easy Fall. Mr Hogan had no say in the negotiations. He was required to wear an Easy Fall uniform and refer to Easy Fall in the voice mail message on his phone. Though he supplied his own equipment, Mr Beran said that was not determinative.
Mr Beran said that the documents prepared by other witnesses, even though not signed, supported Mr Hogan. He said they were admissible.
A series of emails attached to Mr Hogan’s statement showed, Mr Beran said, that Mr Axford gave instructions about jobs. He said that “we would not be here” if the customer paid Easy Fall and that the system was set up to avoid responsibility for Easy Fall. He noted the evidence in the SafeWork prosecution.
With respect to Mr Hogan’s capacity for work, Mr Beran said that it was significantly affected by his psychological condition. Dr Endrey-Walder said that his capacity was meagre and that evidence coupled with the Mr Hogan’s lack of skills and education means that there are affectively no real jobs which he could do. He should be compensated at 80% of pre-injury average weekly earnings.
Mr Beran said that I was required to consider the true nature of the relationship, relying on On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3[2]) (On Call). He said that the test is multi-factorial and referred to [217] where Bromberg J said:
[2] [2011] FCA 366; 279 ALR 341.
“That analysis and an understanding of what constitutes a business and, in particular, a personal services business, suggests the following indicia for consideration in the ‘Is there a business?’ element of the totality test:
·Do the economic activities of the putative business involve the taking of risk in the pursuit of profits?: Gribbles at [39]; Hope v Bathurst at 9; Roy Morgan Research (2010) at [47]; Yaraka Holdings at [41] and [49]; Montreal v Montreal Locomotive Works Ltd [1947] 1 DLR 161 at 169; Market Investigations v Minister of Social Security [1968] 2 QB 173 at 184; Lee Ting Sang v Chung Chi-Keung (1990) 2 AC 374 at 382.
·Does the putative business engage in a repetitive and continuous manner with purchasers of its services?: Hope v Bathurst City Council at 9; Hungier v Grace at 216-217; Puzey at [48]; Commissioner of Taxation v Sleight (2004) 136 FCR 211 at [48];
·Does the putative business employ or engage persons other than the owner/operator to carry out its economic activities?: Stevens v Brodribb at 26 and 38;
·Is goodwill (name, brand and reputation) being created by the economic activities of the putative business?: Hollis at [48]; Steven v Brodribb at 37; Roy Morgan (2010) at [46]; Re Porter; Re Transport Workers Union at 186;
·Is the putative business promoted as a business to the public through advertising or other promotional means?: Hope v Bathurst City Council at 9; Abdalla v Viewdaze at [35]; Yaraka Holdings at [35];
·Does the putative business have tangible assets such as buildings and equipment which are utilised to support its economic activities?: Steven v Brodribb at 37; Gribbles Radiology at [39];
·Does the putative business have the basic transactional systems that are common of a business of that kind? For instance: invoicing systems; standard rates and terms and conditions of trade; insurance coverage; payment and debt collection systems; appropriate financial records; budgeting or forecasting systems; business based arrangements with a bank or other financial institution: Hollis at [54]; Sweeney at [31]; Hope v Bathurst City Council at 9; Wesfarmers Federation Insurance Ltd v Stephen Wells trading as Wells Plumbing [2008] NSWCA 186 at [42]; Ferguson at 311;
·Do the services provided by the putative business involve the provision of labour of sufficient skill to be suggestive of the pursuance of a profession or trade through a business: Hollis at [48]; Stevens v Brodribb at 36-37; Yaraka Holdings at [51];
·Are the regulatory requirements of a business (including business name registration, taxation, GST and ABN registration and compliance) being met by the putative business?: Wesfarmers at[39]-[42];”
Mr Beran said that Mr Hogan did not assume risk and engaged with the same purchaser of his services on every occasion, being Easy-Fall. He did engage a backpacker but there was no goodwill accruing to him and he did not promote the business. He said it was not significant that Mr Hogan provided his own tools. He did not have transactional systems and he did not pursue a trade – he was not a licensed tradesman. He did not hold an ABN.
When considering whose business the economic activity was being performed in[3], Mr Beran said that it was for the benefit of Easy Fall, Mr Hogan being held out as its representative. He was unable to delegate the work. Against that, tax was not withheld.
[3] On Call at [218].
With respect to the indicium of control, Mr Beran said that there was a lack of flexibility and that everything was undertaken in the interest of Easy Fall.
I asked Mr Beran if the recent High Court decisions of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[4] (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek[5] (Jamsek) had any impact on his submissions. He said that the relevant ratio was that it was still necessary to look at the overall relationship. The contract determines the relationship and one should only look behind the contract if it was a sham. He said that was the case here.
[4] [2022] HCA 1.
[5] [2022] HCA 2.

Mr Grant

Mr Grant said that, to the extent it was necessary to choose between Mr Hogan’s evidence and Mr Axford’s, I would prefer Mr Axford because Mr Hogan had a vested interest in being found to be a worker. He said I would also prefer Mr Axford’s evidence because Mr Hogan said he earned $120,000 a year but did not declare it in his tax return, so that I would question his honesty.
Mr Grant said that Easy Fall does not receive a benefit from the cost of the installation. In addition, both Easy Fall and Aceline had workers compensation insurance. There was no suggestion that the arrangement was illegal and it was not a sham. Mr Grant said that the involvement of Mr Axford in the installation process was similar to that of an architect who might recommend a builder to a client and then provide advice. That did not make the architect the employee of the builder.
Easy Fall’s business, Mr Grant said, was the retail supply of guttering. Easy Fall told clients it was able to arrange for installation by licensed installers. A fair reading of the tax invoices conveyed to the owner of premises that the installer was someone other than Easy Fall. Here it was Aceline who provided a warranty about the installation. Mr Grant said that if Mr Papadeas did not know about Aceline, he had not read the documents properly.
Mr Grant said that the supply agreement specified that Easy Fall supplied guttering customised to the site and that installation was the responsibility of the owner. As part of Easy Fall’s service, it put the owner in touch with an installer.
Mr Grant noted that Mr Hogan said he “worked for” Mr Axford’s entities for 12 years but that no tax was taken from payments, no money passed from Easy Fall to Mr Hogan, no superannuation was paid and nor was there holiday pay or sick leave. There was no written contract and Mr Hogan supplied his own equipment. Mr Grant said that Mr Hogan was working for himself.

The bank statements, Mr Grant said, showed a number of transactions which were consistent with payment of 90% of the fee to the installer and 10% to the licensee.
Mr Grant submitted that Mr Hogan did have the power to delegate the performance of the work. He retained Robin the backpacker and paid him some of the money received. Mr Hogan was therefore not a deemed worker because he delegated some of the work. Mr Axford said that Mr Hogan was not free to employ assistance. If Mr Hogan was a worker it would be expected that he required approval to do so.
The fact that Mr Hogan had an ABN in the past suggested that he was conducting his own operation. He no longer had one but also did not pay tax. Mr Grant said that the transfer of funds by Mr Papadeas to Mr Hogan was extraordinary if he thought Mr Hogan was an employee of Mr Axford.
Mr Hogan said that a job allocated by Mr Axford was his unless he knocked it back. Mr Grant submitted that an employee did not have that choice. While Mr Hogan said that he was bullied into accepting jobs and would be punished if he failed to accept them, it remained his choice. Mr Axford provided some advice about the Kangaroo Point job, consistent with his role as the manufacturer of a customised product. He did not direct Mr Hogan as to how to do the job. Mr Grant said that a proper reading of the evidence is that Easy Fall was the supplier who offered advice to the installer. If Mr Hogan had declined the job, Mr Axford would have found another installer.
The provision of an Easy Fall t-shirt, Mr Grant said, was not definitive and was in the nature of advertising, like an umbrella provided by a business to its customer.
The instructions to repair defective work were not the kind of email which would be sent to an employee but are consistent with the costs of repair being the responsibility of a contractor.
Mr Grant said that none of the indicia of employment were fulfilled, including control. Mr Hogan undertook on a number of jobs but was not retained on a daily or continuous basis.
The District Court decisions were consistent, Mr Grant said, with Easy Fall’s position. The relevant offence was the failure to secure the safety of the site.
With respect to incapacity, Mr Grant said that Dr Stephenson said in 2018 that Mr Hogan had capacity to perform light semi-skilled work. Because Mr Hogan had been an installer for a long period, this meant he could do light carpentry or process work. Dr Stephenson’s opinion was supported by the certificates of capacity. I asked Mr Grant how that capacity would translate to an ability to earn. He said that the minimum wage was $753 per week but few people earned that. He estimated that Mr Hogan could work half a week and earn half of a wage of $800 to $900 per week. His entitlement if he was a worker was the difference between $450 and 80% of preinjury average weekly earnings. Because he had some capacity, Mr Grant said that Mr Hogan was not entitled to compensation beyond the second entitlement period.

Mr Beran in reply

I asked Mr Beran how I should deal with the lack of tax returns and he frankly conceded that he was unable to assist in that regard.
With respect to capacity, he said that Dr Stephenson’s report was dated a year before the period of the claim commences and that it was difficult to identify any real jobs which could fit with the restrictions in the medical certificates.
Mr Beran said that there was a monetary benefit flowing to Mr Axford from the sale of the whole package of the supply and installation of guttering and there was no evidence identifying occasions where a homeowner did arrange for installation. The cost of the package was significantly weighted to the supply. The analogy of an architect did not apply, Mr Beran said, because an architect generally does not tell a builder how much to charge.
The multiple emails with respect to installation suggest that Mr Axford remained in control of the process.

FINDINGS AND REASONS

The definition of worker appears in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
“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) …”
Counsel addressed on the basis that a multifactorial test set out in decisions such as Hollis v Vabu Pty Ltd[6] (Hollis) and exemplified in On Call should be applied to determine if Mr Hogan was a worker or independent contractor.
[6] (2001) 207 CLR 21.
The recent High Court decisions in Personnel Contracting and Jamsek both concerned relationships which were governed by a written contract. In the Federal Court and Full Federal Court in Personnel Contracting, a multifactorial test had been adopted despite the existence of a written contract. In the High Court, the plurality (Keifel CJ, Keane J and Edelman J) said:[7]
“In Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd, it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to ‘the totality of the relationship between the parties’. It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.
In this Court, the appellants submitted that the question whether a labourer is conducting his or her own independent business, as distinct from serving in the business of the employer, provides a more meaningful framework to guide the characterisation of the parties' relationship. There is force in that submission.”
[7] At [34].
The plurality said[8]:
“Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide-ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require.
...
The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider ‘the totality of the relationship between the parties’ by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties' contract, and not simply an aspect of how the parties' relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.”
[8] At [59]-[61].
There is no written contract between Mr Hogan and Easy Fall and there is no evidence about the formation of the arrangement between them. The arrangement had been in place for several years and the only evidence concerns the way it operated at the time of Mr Hogan’s injury. The only way to resolve this case is to examine the evidence which establishes the nature of the relationship between Mr Hogan and Easy Fall to ascertain their rights and responsibilities and to determine if Mr Hogan was a worker or a deemed worker in Easy Fall’s business. In doing so, I must consider the factors which have traditionally formed part of the multifactorial test, being mindful that the factors are not of equal weight.
The statements in On Call remains relevant for that purpose but it is important to review the list of factors in the context in which they were set out in that decision. Bromberg said that the question of:
“Whether a person is an employee or alternatively an independent contractor is to be 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.”[9]
[9] At [188].
His Honour went on:
“The majority in Hollis … said, the distinction between an employee and an independent contractor is ‘rooted fundamentally’ in the fact that when personal services are provided to another business, an independent contractor provides those services whilst working in and for his or her own business, whereas an employee provides personal services whilst working in the employer’s business: at [40]. Unless the work is being provided by an independent contractor as a representative of that entrepreneur’s own business and not as a manifestation of the business receiving the work, the person providing the work is an employee.[10]
…
Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a ‘practical matter’:
(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”
[10] At [207].
The factors set out in [217] of that decision to which Mr Beran referred are relevant to the question of whether there was a business. Bromberg J set out a separate set of criteria in [218] which are useful in considering whose business the activity is performed in
“The second element – ‘Whose business is the economic activity being performed in and for?’, raises the following indicia for consideration:
·Does the provision of the economic activity provide an opportunity for profit and involve the risk of loss: Roy Morgan (2010) at [47]; Market Investigations at 185; Lee Ting Sang at 382; or is the payment made largely consistent with the remuneration that an employee would have received for providing the activity?: Hollis at [54]; Commissioner of Taxation v Barrett (1973) 129 CLR 395 at 405-407; Yaraka Holdings at [41] and [49];
·In that respect and in relation to profit:
-to what extent is the reward for the provision of the activity negotiable and negotiated commercially?: Hollis at [54];
-to what extent does the putative owner/entrepreneur have the capacity to manage the activity so as to maximise the potential for profit?: Hollis at [58]; Roy Morgan (2010) at [47]; Market Investigations at 185; Lee Ting Sang at 382;
·In that respect and in relation to risk:
-to what extent is the agreed payment contingent upon the person providing a satisfactory result (i.e. are there financial consequences for poor performance)?: Roy Morgan (2010) at [47]; Yaraka Holdings at [49];
-who bears the risks associated with providing any equipment or assets required for the performance of the economic activity?: Hollis at [56].
·Does the putative business or the putative employer’s business control and direct or have the capacity to control and direct the manner in which the economic activity is carried out?: Hollis at [43]-[45], [49] and [57]; Stevens v Brodribb at 24 and 35-36; Roy Morgan (2010) at [49].
·Is the economic activity represented or portrayed as the activity of the putative business or that of the putative employer’s business?: Hollis at [50]-[52] and [57]; Yaraka Holdings at [43];
·To what extent is the person providing the economic activity integrated with the business receiving the activity?: Stevens v Brodribb at 26-27 and
35-36; Hollis at [57];
·To what extent is the person providing the economic activity financially self-reliant from, as opposed to, economically dependent upon or organisationally tied to, the business receiving the activity?: Re Porter: Re Transport Workers Union at 184-185. Exclusivity is suggestive of an employment relationship: Commissioner of Taxation v Barrett at 407. However, it does not follow that a person who provides casual or part-time work to multiple purchasers is not an employee: Yaraka Holdings at [34] and [36]; Sgobino v State of South Australia (1987) 46 SASR 292at 308;
·Is the person providing the economic activity free to employ his or her own means (employees or contracted agents) to produce the activity or must that person personally perform the work?: Stevens v Brodribb at 24-26 and 38; Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419at 425 and 428; Yaraka Holdings at [41]; and see [285] below;
·To whose business does any goodwill created by the economic activity enure?: Hollis at [48]; Stevens v Brodribb at 37; Roy Morgan (2010) at [46]; Yaraka Holdings at [52];
·In contracting to provide the economic activity has the person agreed to provide an outcome or result?: Neale v Atlas Products at 425; Roy Morgan (2010) at [42];
·To what extent is the person providing the economic activity doing so with his or her own tools and equipment?: Hollis at [56]; Sweeney at [32]; Roy Morgan (2010) at [41]; Yaraka Holdings at [37]-[40]; Market Investigations at 185; Lee Ting Sang at 382;
·If the person is providing their own equipment, to what extent can the person be directed in the management and control of that equipment?: Stevens v Brodribb at 26;
·Have the parties involved characterised the economic activity as that of the owner/entrepreneur being performed in and for that person’s business, or alternatively as part of the receiving business, and to what extent does that characterisation reflect the reality?: See [188] to [200] above.”
His Honour went on at [219]:
“Whether or not income tax has been withheld and whether annual, long service or sick leave is afforded are often also used as relevant indicators: Stevens v Brodribb at 37; Yaraka Holdings at [44]-[48]. It is not incorrect to have regard to these factors, but there are differing views as to the inference which should be drawn from such arrangements: Wesfarmers Federation Insurance at [40]-[42]. Reliance on these factors may involve circularity of reasoning particularly where these factors are based upon the self-assessed and objectively incorrect label that the parties have attached to their relations: see Hollis at [37] and Owens and Riley at 140. Further, it is necessary to appreciate that casual employees are not ordinarily entitled to leave or sick pay: Sgobino at 293 and 308; Yaraka Holdings at [50].”

The nature of the evidence

The way in which the evidence has been prepared in this matter makes the application of the principles difficult. While the rules of evidence do not apply in the Commission[11] the evidence must be logical and probative[12] and provide a proper basis for the Commission’s decision.
[11] Personal Injury Commission Act 2020 s 43(2).
[12] Personal Injury Commission Rules 2021.
Mr Hogan’s statement sets out his evidence but there are fundamental documents which would assist in the determination and which have not been provided. There are no tax returns and the summary provided from the ATO website raises more questions than it answers - it states that returns were not necessary for Mr Hogan for the years leading up to the injury when he said he was earning $120,000 per year. The only returns in which income was recorded post-date the injury. The income recorded may be the weekly compensation which was paid but the amount for 2019 seems high and the claim for vehicle expenses is puzzling. I do not draw any conclusions from the returns which post-date the injury.
Mr Hogan’s evidence about his earnings is not consistent with his agreement that his pre-injury average weekly earnings were $853 per week. On the evidence I have seen, I doubt that he earned $120,000 per year.
Some factual evidence about how Mr Hogan represented his business to the ATO would be of assistance in a case where I am required to choose between the assertions of Mr Hogan and Mr Axford.
I am not able to draw any conclusion from Mr Hogan’s lack of an ABN when he had previously had one. There is no evidence about why it was not maintained.
Mr Grant said that I would prefer Mr Axford’s evidence because Mr Hogan’s statement was prepared to support his claim that he was a worker. However, it was in Mr Axford’s interest at a time soon after the claim was made to seek to deflect a claim which may have impacted on his premium.
The factual investigation reports prepared for Easy Fall are similarly lacking. Mr Axford’s statement was prepared in early 2018 and much of it is set out in the form of conclusions, rather than providing the evidence which would allow the Commission to determine the issue – for example, “we don’t employ him or pay him money” and “Easy Fall have no agreement with James Hogan.” There are records of conversations only with Mr Ayyad and Mr Parker and no explanation as to why no statements were obtained.
As noted above, neither party sought to rely on documents prepared for the Safework investigation. The District Court decision on the sentencing of Easy Fall refers to affidavits from Mr Axford. Strathdee DCJ also considered a Lead Referral Agreement between Easy Fall and Aceline. It is not mentioned in Easy Fall’s evidence. The lack of the document in these proceedings is significant because it would have shed light on the arrangement between Easy Fall and Aceline and potentially with Mr Hogan. Those omissions lead to the conclusion that the Commission does not have a full description of the arrangement under which Easy Fall’s product was installed. My decision must be based on what has been provided.
The fact that Easy Fall was guilty of offences under the Work Health and Safety Act 2011 in respect of the place at which Mr Hogan was undertaking work does not mean that he was a worker within the meaning of the 1998 Act. Strathdee DCJ accepted that Easy Fall had retained some control over the installation process and that it failed to carry out the risk assessments it was required to undertake. That finding in proceedings between different parties under different legislation does not create an issue estoppel in these proceedings and Mr Beran conceded that.
The onus of proving that he was a worker or deemed worker rests, of course, with Mr Hogan.

The arrangement between the parties

Mr Axford is incorrect to say that there was no “arrangement” between Easy Fall and Mr Hogan. There was no written agreement but there was clearly an agreement between them under which work – described as a “lead” - was referred. Mr Hogan’s evidence is that he had installed Mr Axford’s products for a period of about 12 years and that the product now sold by Easy Fall been sold by other companies associated with Mr Axford.
I am satisfied that Mr Hogan was trained in the installation of the system at some stage, possibly before the business was operated as Easy Fall.

I do not accept Mr Axford’s statement that Easy Fall did not contact Mr Hogan directly to offer work. There is no suggestion that the emails and text messages attached to Mr Hogan’s statement are not authentic. The first example is an email from Mr Axford dated 5 June 2015 addressed to Mr Hogan and the licensed installer and there are numerous other examples of emails from Mr Axford and Mr de Wet. Most are cast in terms of leads which may suit Mr Hogan but it is clear, despite the language adopted, that there was a direct relationship and that work was offered to Mr Hogan and the licensed installer at the same time.
Mr Hogan said that Aceline received an email at the same time he did and that it was his job to do “unless I knocked it back.” That is evidence that he did have a discretion as to whether to accept jobs. He said in his statement that he was offered work by other people but felt constrained not to decline them because Mr Axford would punish him by not offering other work or by offering difficult jobs. Mr Hogan had a source of work which kept him busy enough from Mr Axford and he chose not to jeopardise that arrangement. That choice does not make him an employee.
The installation agreement provides that it was prepared by an agent of the installer and that it is subject to a “work, health and safety inspection” and the agreement of the installer to do the work for the quoted price. At least in the case of the Kangaroo Point job, the installer did not carry out that inspection and Mr Hogan did not attend the site before he started work. Mr Ayyad did not go to the site until after the injury. The tenor of the evidence is that the installers accepted the contract price quoted by Mr Axford.
There is a description of how the arrangement played out in practice in Mr Papadeas’ statement. Mr Axford quoted for the supply of its guttering system and Mr Papadeas asked if it was necessary to retain a tradesman for installation. Mr Axford said that he would “assign” a tradesman and then quoted for supply and installation. Mr Papadeas understood that Mr Axford was the employer of the tradesmen he used. His statement does not explain how he formed that understanding and his statement does not reveal when the quotes and contractual documents were provided. He paid for the guttering in two payments of $15,000 before the installation.
Strathdee DCJ said on the basis of the documents provided in the District Court, that the installation agreement was provided with the installer’s name “to be agreed.” The only installation agreement provided in these proceedings nominated Aceline as the installer and that document was signed by Mr and Mrs Papadeas.
The chronology, so far as I can determine it, is that the supply and installation agreements were signed on 8 March 2017. An order for the fabrication of the components was placed on 29 March 2017. On 12 April 2017 Mr de Wet sent an email to Mr Hogan and another person – presumably Aceline - saying that the lead should suit Mr Hogan.
By that time, Mr Papadeas had been told that Mr Axford would allocate a tradesman. He was not told, for example, that Mr Axford would ask someone to look at the job, which is the connotation of “lead” and determine whether to accept the job as provided for in clause 13 of the installation agreement.
Mr Hogan said that he started the job on about 19 April 2017, about a month before he was injured, and that he did not do any other work whilst at the job site. There is no evidence as to whether he worked every day or not. Mr Papadeas made the payment of $1,500 to Mr Hogan about a week after the job started. Robin the German backpacker left about that time. Aceline completed the job after Mr Hogan’s injury.
Mr Papadeas said that he was unaware of the involvement of Aceline until after he had paid $1,500 to Mr Hogan. It may be that he did not carefully read the documents to see that Aceline was nominated as the installer, that the quote was prepared by the installer’s agent and that the contract provided for the installer to accept the contract price.

Indicia of employment

The documentary evidence about payment is sparse. Mr Hogan’s bank statements show that he received a payment on 24 April 2017 from Mr Papadeas as a part payment. Mr Papadeas then spoke to Mr Axford who told him that he should pay Aceline and not Mr Hogan. Mr Papadeas’ impression that Mr Hogan was an employee does not assist in the determination of whether he was a worker and the payment of $1,500 to an employee is curious.
Mr Axford said in his statement that the licensed installer paid Mr Hogan. Mr Hogan’s evidence is that the customer paid him and he passed on 10% to Aceline or that the installer was paid and paid him. That arrangement is consistent with Mr Hogan’s bank statements over the years leading up to his injury, which show receipt of some funds apparently directly from clients, interspersed with payments from Mr Parker and later Aceline. I accept Mr Hogan’s evidence that the client paid him but there is nothing in the bank statements to show how he paid the licensed installer. In the absence of a signed statement from Mr Ayyad, I disregard his comments about the method of payment.
The receipt of money directly from clients into his own bank account is a factor strongly in favour of a finding that Mr Hogan was running his own business.
Mr Hogan said that he was approached with other offers which he declined. The fact that his work came from one source does not preclude the conclusion that he was running a business.
Mr Hogan’s case was that Mr Axford controlled the way in which the work was done. Mr Hogan said, however, that Mr Axford declined to provide advice to him about how the job was to be done. He provided some additional materials after a site visit. I accept that Mr Hogan sought some help. He said that he told Mr de Wet that he did not want to do the job but there is no specific evidence in his statement that he was pressured to continue.
Mr Hogan relied on the emails from Mr Axford seeking rectification of jobs as evidence that he controlled how the work was done. I do not agree that is the effect of those emails. The request that work be rectified is consistent with the provision of the warranty by Easy Fall in respect of its product. Mr Axford’s email dated 15 April 2016 seeking rectification by the original installer or at the original installer’s cost is consistent with the installers being contractors. If they were employees, it would be expected that Easy Fall would wear the cost of rectification.
Mr Hogan relied on the fact that Mr Axford said that Mr Parker was not to be on the site as evidence of Mr Axford’s control of the way the work was done. Neither Mr Hogan nor Mr Axford provided evidence in direct speech about the conversation and there is no statement from Mr Parker, merely a record of the conversation. There is insufficient evidence to draw a conclusion about what occurred.
The provision of an Easy Fall t-shirt is not a persuasive factor, particularly where the job was the installation of Easy Fall’s product. It is common for those in the building industry to wear clothing displaying the logo of manufacturers or suppliers. The evidence about the request to “put” Easy Fall into Mr Hogan’s voice mail inbox is vague and in the absence of the message which was used I am unable to draw any conclusion from that instruction.
Mr Hogan provided his own equipment. His suggestion that Easy Fall could have provided the scaffolding it had at its premises is irrelevant. He provided not only his own hand tools but the equipment which a freelance installer might be expected to have such as trestles and planks.
Other indicia which would point to employment are absent. Mr Hogan was not entitled to sick or annual leave. Tax was not deducted from his payments.
The lack of tax returns makes the task more difficult as they would have shed light on the way Mr Hogan conducted his affairs. In particular, they might have explained how the money received directly into his bank account was dealt with.
Importantly, Mr Hogan was not prevented from employing an assistant and he did have someone to help him. Mr Hogan partly attributes the injury to the fact that Mr Parker was prevented from helping him. The size of the installation fee may have made help impractical on a long term basis but the presence of Robin was important to him for two reasons - to provide assistance with the work but also to drive Mr Hogan to the site because he did not have a driver’s licence. He paid Robin cash. Mr Axford agreed that Mr Hogan could have people to help him. The payment to Robin is a factor which weighs against Mr Hogan being a worker.
Taking all of those matters into account, I am not persuaded that Mr Hogan was a worker employed by Easy Fall. The arrangement he entered into appears intended to reduce the risk to Easy Fall and possibly to increase its profit. The arrangement was clearly in breach of Easy Fall’s work health and safety obligations and those of Aceline. It was probably exploitative of Mr Hogan who felt constrained to continue. However, I am not persuaded on the evidence that he was a worker as defined.

Deemed worker

Mr Hogan alleged in the alternative that he was a deemed worker. Schedule 1 cl 2(1) of 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.”
A review of that clause shows that it cannot apply to Mr Hogan, even leaving aside the question of whether there was a contract with Easy Fall. Mr Hogan’s evidence is that he employed Robin to assist him and paid him cash.

Incapacity

If I had found that Mr Hogan was a worker or deemed worker, I would have found that he had no current work capacity. He had a significant injury and the consensus of medical opinion is that he is unfit for his pre-injury duties.
The definition of suitable employment in s 32A of the 1987 Act provides:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
The last medical certificates are dated 2019. Though Mr Hogan was certified fit for limited hours with significant restrictions, it is difficult to envisage a real job which would fulfil that limited capacity and his limited education and training.
The most recent medical evidence is the report of Dr Endrey-Walder dated 26 July 2021. He considered that Mr Hogan was unfit for work in the building industry and that he should not lift weights over 10kg and not often. Because Mr Hogan is unable to sit for long periods, he considered his chances of working were meagre.
The medication he ingests is also likely to impact on his capacity for work. Mr Hogan has not looked for work and there is no evidence about actual roles for which he might be fit or suited.

In Wollongong Nursing Home Pty Ltd v Dewar[13], Roche DP said:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.”
[13] [2014] NSWWCCPD 55 at [58]-[59].
Taking the medical evidence and Mr Hogan’s education and experience into account, I am satisfied that he has no current work capacity.
However, because I have found that Mr Hogan is not a worker or deemed worker, I make an award in favour of Easy Fall.

[2022] NSWPIC 130

25 March 2022