Li v Brighton Australia Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Li v Brighton Australia Pty Ltd [2020] NSWWCCPD 44
APPELLANT:	Lei Li
RESPONDENT:	Brighton Australia Pty Ltd
INSURER:	icare Workers Insurance
FILE NUMBER:	A1-6366/19
ARBITRATOR:	Mr R Perrignon
DATE OF ARBITRATOR’S DECISION:	27 February 2020
DATE OF APPEAL DECISION:	16 July 2020
SUBJECT MATTER OF DECISION:	Injury occurring during an interval or interlude within an overall period or episode of work: application of Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473; 106 ALR 611; 66 ALJR 365 and Comcare v PVYW [2013] HCA 41; 303 ALR 1; alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
PRESIDENTIAL MEMBER:	Acting President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr W Nicholson, counsel
Brydens Lawyers Pty Ltd
Respondent:
Ms N Compton, counsel
Hicksons Lawyers
ORDERS MADE ON APPEAL:	1.    The Arbitrator’s decision dated 27 February 2020 is confirmed.

INTRODUCTION AND BACKGROUND

1. Lei Li (the appellant) was employed by Brighton Australia Pty Ltd (the respondent) from about 2011 as a plasterer. There were periodic breaks in the employment depending on work availability.[1] He was employed to work in Sydney, which is where the respondent’s head office was located. He stated he worked Monday to Saturday, and also, on occasions, Sundays.[2]

   [1] Sam Bunic statement, [10]–[12], Reply, p 25.

   [2] Appellant’s statement 16/7/19, [7], [20], Application to Resolve a Dispute (ARD), pp 5–6.

2. In February 2019, the appellant was asked to work in Adelaide on an urgent project. The appellant’s work colleague, Peng Liu, drove from Sydney to Adelaide and the appellant accompanied him,[3] arriving on 25 February 2019. They worked on the construction of the Calvary Hospital, which was close to the Adelaide CBD. After two weeks the respondent’s workers, including the appellant, were asked to stay on for a further two weeks.[4] The respondent sent a team of about 14 gyprockers/plasterers to Adelaide initially, and over the next few months had over 40 NSW workers working in Adelaide. The appellant worked night shifts for the first two weeks and then worked on day shift.[5]

   [3] Peng Liu statement, [14], Reply, p 20.

   [4] Appellant’s statement 16/7/19, [26]–[28], [30].

   [5] Appellant’s statement 16/7/19, [30].

3. The workers’ accommodation and travel costs were paid by the respondent. The accommodation in which they were placed by the respondent was at a motel close to the job site. The workers received extra money to cover the cost of their meals.[6] The appellant stated that the additional money paid to him by the respondent, by way of meal allowance, formed part of the regular sum transferred to him by bank transfer while he was in Adelaide, which included his wage. The appellant said that returning to Sydney for weekends would be “most impractical”, it would take 13 hours to drive each way. “[N]o other workers that [he] observed returned to Sydney on the weekends.”[7] The respondent…