Maatta v Owen Dwyer t/as Owen Dwyer Builders - [2022] NSWPICPD 18

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Maatta v Owen Dwyer t/as Owen Dwyer Builders [2022] NSWPICPD 18
APPELLANT:	Michael Maatta
FIRST RESPONDENT:	Owen Dwyer t/as Owen Dwyer Builders
INSURER:	Uninsured
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
FILE NUMBER:	A1-700/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	13 May 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 25 August 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and cl 2 of Sch 1 to the 1998 Act – requirement to establish an intention to create legal relations – Secretary, Department of Family and Community Services v Bee [2014] NSWWCCPD 66 discussed – principles applicable to disturbing a Member’s factual determination – Raulston v Toll Pty Limited [2011] NSWWCCPD 25 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr I Collins, solicitor
Ian Collins Solicitor
First Respondent:
Mr J McEnaney, counsel
Adams & Partners Lawyers
Second Respondent:
Mr G Dolan, solicitor
HWL Ebsworth
DECISION UNDER APPEAL
MEMBER:	Ms E Beilby
DATE OF MEMBER’S DECISION:	25 August 2021

INTRODUCTION AND BACKGROUND

On 16 May 2012, Mr Michael Maatta (the appellant) was performing carpentry work using a power saw at a building site, when a piece of metal flew up and penetrated his left eye. The appellant alleged that, at the time of the injury, he was either a worker within the meaning of s 4 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act) or a deemed worker as provided for by cl 2 of Sch 1 to the 1998 Act. He alleged that he performed work on the building site at the request of Mr Owen Dwyer (the first respondent), who operated under the business name “Owen Dwyer Builders”, or at the request of Mr Stephen Robb (the second respondent in the proceedings below).
Liability for the claim was denied on the basis that the appellant was neither a worker or a deemed worker within the meaning of the 1998 Act, and because the appellant had made his claim for compensation well outside of the time frames for giving notice of injury and making a claim as required by ss 254 and 261 of the 1998 Act.
The appellant commenced proceedings in the former Workers Compensation Commission against both the first respondent and the second respondent. As the respondents did not hold a workers compensation insurance policy, the Workers Compensation Nominal Insurer was named as the third respondent (the third respondent).
On 1 March 2021, the Workers Compensation Commission was abolished by operation of cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became one within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date[1] and the matter was allocated to a non-presidential member of the Commission.
[1] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
Prior to the matter being referred to arbitration, the appellant discontinued the claim against the second respondent, Mr Robb. The matter proceeded to arbitration. The Member issued a Certificate of Determination, in which she determined that she was not satisfied that the appellant had discharged the onus of proving that he was a worker in the employ of the first respondent or a deemed worker for the first respondent.
The appellant appeals that decision. The appeal nominated Mr Robb as the second respondent. Following communications between the Commission and the appellant, the appellant advised by email dated 29 September 2021 that the appeal proceedings against Mr Robb were discontinued. On that basis, in these appeal proceedings, the former third respondent (the Workers Compensation Nominal Insurer) is now the second respondent and will be referred to as such throughout the decision.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Each of the parties have indicated that they are content for the appeal to be determined in the absence of an oral hearing. The parties have provided written submissions and the appellant was provided with the opportunity to respond to the submissions made by the respondents, although he elected not to do so.
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The decision is not interlocutory in nature, so that leave to appeal is not required.

THE RELEVANT EVIDENCE

The Member’s determination and the issues on this appeal are limited to the Member’s factual determination of whether the appellant was a worker or a deemed worker within the meaning of the 1998 Act. It is not necessary, therefore, to refer to the entirety of the evidence in the proceedings and this summary is limited to those documents that are relevant to the dispute.

The appellant’s statements

The appellant provided a statement dated 1 November 2019.[2] He stated that he was employed by the first respondent as a carpenter on a full-time basis from 2009 and earned $40,000 per annum. He referred to the injury in May 2012 and said that, as a result of the injury he lost most of the sight of his right eye and also suffered a psychological injury because of the effects of the injury on his life. He said that he was paid some money from his personal insurance for a period of two years and had only been able to obtain work for brief periods.
[2] Application to Resolve a Dispute (ARD), pp 1–2.
The appellant provided a further statement dated 31 July 2020.[3] He referred to Mr Robb’s statutory declaration, which he said he had read. He asserted that both he and Mr Robb worked for the first respondent. He added that he only worked for the first respondent. He disputed that Mr Robb had ever asked him to work for him and maintained that the two of them had only ever worked for the first respondent.
[3] ARD, pp 120–121.
The appellant said that Mr Robb had told him that the work was for the first respondent and that the appellant could work with Mr Robb. The appellant asserted that the first respondent was at the building site and that he was talking to the first respondent at the time of his accident. The appellant further asserted that he was not paid by Mr Robb at all and that he had received a cheque for the work from the first respondent.
The appellant stated that Mr Robb’s situation was different to his, in that Mr Robb was a genuine independent contractor, doing work for other people and other companies. The appellant maintained that his situation was different, in that he only worked for the first respondent, he did not advertise, and acted under the direction of the first respondent. He conceded that he had his own Australian Business Number (ABN) and registered business name, which he explained was something that the first respondent required him to obtain.
The appellant described how the working relationship had begun with the first respondent. He said that he contacted the first respondent, looking for work, and the first respondent advised him to attend the work site the following morning. He said that the appellant told him that he would be paid $30 per hour. The appellant said that he went to the worksite and met the first respondent as well as other workers, was told what to do by the first respondent, and he commenced work. He added that later that week, he was told by the first respondent that he was required to have his own ABN and his own insurance, and that he was required to submit invoices for payment. The appellant asserted that, from then on, he only worked for the first respondent and submitted invoices to the first respondent for payment.
The appellant denied having operated his own business prior to his injury, and said that he simply used the business name to get paid for the work he did for the first respondent.
The appellant provided a third statement dated 26 April 2021.[4] He described stressful events involving racial slurs and intimidation while performing work for the first respondent which upset him. He also referred to the psychological effect of the physical injury on 16 May 2012. He referred to conversations he had with third persons about the first respondent’s conduct and Mr Robb’s behaviour, which are not relevant to these proceedings.
[4] Appellant’s Application to Admit Late Documents (AALD), p 1.
The appellant said that, when he commenced work with the first respondent, he was paid $30 per hour for the first six months, and then it was permanently reduced to $25 per hour. He stated that he was not permitted to work for other people while working for the first respondent, and that he had always been loyal to the first respondent. The appellant described the ongoing difficulties he faced following the injury to his eye.

The first respondent’s statements

The first respondent made a statement dated 17 April 2020.[5] He advised that he had been a sole trader operating under the business name of Owen Dwyer Builders since 1980, operating mainly in the New South Wales Blue Mountains area and that he only uses subcontractors when there is available work for him. He added that the subcontractors all hold their own insurances for workers compensation and public liability, and usually take out the NRMA “tradies” pack, which is all inclusive. He described the arrangements he puts in place for the subcontractors, which are that they submit a tax invoice to him for the work done at a negotiated hourly rate, including goods and services tax (GST), and he either pays the total amount by direct deposit into their bank account or by cheque.
[5] ARD, pp 136–140.
The first respondent stated that he had never employed anyone directly, and only uses contractors who had their own ABN, insurance, tools of trade and equipment. He described how he met the appellant, who approached him for work as a carpenter in about 2007. The first respondent advised that he offered the appellant work from time to time according to available work, and that he was very impressed with the quality of the appellant’s work. The first respondent recalled that he would pay the appellant at the market rate, which he believed to be $30 per hour, and the appellant would submit an invoice, which he thought was issued under the name of Maatta Constructions. The first respondent added that the appellant would usually work a full day from 7 am until 3.30 pm but was free to come and go and work for other companies and provided his own tools, transport and personal protection equipment.
The first respondent referred to the building work carried out on the site in Katoomba where the appellant was injured. He advised that, on 16 May 2012, Mr Robb was the carpenter working on the site and that the appellant was assisting Mr Robb. The first respondent said that Mr Robb contacted him on that day at around lunch time and advised him that the appellant had been injured and that he had taken him to hospital. The first respondent said that Mr Robb told him that he had given the appellant safety glasses to wear.
The first respondent stated that he contacted the appellant after the appellant was released from hospital and discussed the circumstances surrounding the injury. He said that the appellant advised that his NRMA insurance policy had covered the expenses in relation to the injury.
The first respondent asserted that he had never employed the appellant and the appellant had only ever been engaged as a subcontractor who had his own ABN, held his own insurance and provided his own tools of trade. The first respondent further asserted that the appellant would often fail to turn up for work, which the first respondent assumed was because the appellant had other work. He added that the appellant never asked for work after the injury and had subsequently told the first respondent that he was working for himself, and that his eye had recovered from the injury.
The first respondent provided a further statement dated 10 July 2020.[6] He reiterated his evidence provided in his first statement in relation to the arrangements he made with the sub-contractors he engaged. He added that, if the subcontractor made a mistake, it was their responsibility to correct it at their own expense and that it was open to the subcontractor to engage an apprentice or labourer if they required assistance. He said that he would not pay anyone unless they submitted a taxation invoice, which included an additional amount for GST. The first respondent indicated that he did not deduct taxation from the amount paid to the subcontractor.
[6] First respondent’s Reply to Application to Resolve a Dispute (Reply), pp 29–33.
The first respondent stated that he first met the appellant in 2009 and said that, when he engaged the appellant, he requested the appellant to complete a Trade Contractors form, which was the standard practice recommended by the Australian Taxation Office. The first respondent recalled that he had a number of conversations with the appellant about the appellant being required to have his own insurance. He said that during a routine check-up conducted by him with the subcontractors, he discovered that the appellant’s insurance had lapsed. The first respondent advised that he took the appellant to the NRMA office at Katoomba and assisted him in obtaining insurance cover for a longer period. He described the appellant’s work as sporadic, asserting that on some occasions, particularly in 2012, the appellant would work for two hours, then leave the site and submit a tax invoice for those hours, or turn up late, or fail to turn up at all.
The first respondent reiterated that he did not engage the appellant to work on 16 May 2012 in any capacity at the particular building site or elsewhere, and the last day that he had engaged the appellant was on 11 May 2012. The first appellant annexed to his statement a cheque book stub indicating a cheque was paid to Mr Robb, including an amount for the appellant’s work, for the week ending 18 May 2012. The first respondent added that he did not provide the appellant with a uniform and did not pay any superannuation benefits on his behalf.
A further statement from the first respondent dated 3 May 2021, which was in response to the appellant’s statement dated 26 April 2021 and not attached to any AALD, was admitted into evidence at the arbitration. The first respondent disputed the assertions made by the appellant in respect of racial slurs and intimidation, as well as disputing the truth of the matters raised by the appellant in reported conversations with third parties. He reiterated his previous statement evidence that the appellant was free to work for other contractors, that he had not arranged for the appellant to be on the Katoomba building site on the day of the injury and that the arrangement had been made by Mr Robb. The first respondent further disputed that he had reduced the appellant’s hourly rate. He said that the appellant was paid at a contractor’s rate, and the rate set would be a matter discussed and agreed between himself and the contractor.

Mr Robb’s statements

Mr Robb provided a statement which did not bear a specific date but was signed and said to be taken in 2020.[7] He said he had worked as a carpenter on a subcontractor basis for 45 years and had performed work on an occasional basis for the first respondent for about five years prior to the appellant’s injury as a subcontractor. He stated that he had to provide his own insurances, which included workers compensation and public liability insurance.
[7] ARD, pp 132–135.
Mr Robb said that he was performing work for the first respondent at a residential property in Katoomba in May 2012, which involved construction of a lattice fence about 130 feet in length, so he contacted the appellant and asked him to assist him. Mr Robb advised that he had known the appellant for about a year through working with him on jobs for the first respondent.
Mr Robb stated that the appellant came to assist him in cutting up the lattice. He brought his own tools with him and was using a circular saw to cut the lattice. Mr Robb said that the appellant wore safety glasses while performing that work. Mr Robb reported that he was about five metres from the appellant when he heard the appellant scream. He indicated that he went to assist the appellant, who was in a lot of pain. He said he drove the appellant to the Emergency Department of Katoomba Hospital and later telephoned the first respondent to advise him of the injury. Mr Robb added that the appellant “was also a subcontractor to [the first respondent] as were all of the workers who worked for [the first respondent].”[8]
[8] Mr Robb’s 2020 statement, ARD, p 135, [21].
Mr Robb also provided a statutory declaration dated 20 June 2020.[9] He confirmed that he had contracted with the first respondent to install a lattice fence on a property in Katoomba.
[9] First respondent’s reply, p 39.
He stated that he was aware that at that time the appellant was not working, so he contacted him and arranged for him to assist with the work on the site. He said he knew that the appellant was fully licensed, with his own ABN and insurance package. Mr Robb described the work the appellant was asked to do, and the injury suffered on 16 May 2012.
Mr Robb asserted that he subsequently rendered an invoice directed to the first respondent for the work performed at the building site, which included an amount of $450 that he had paid to the appellant for the work the appellant had done on the site. He further stated that he had provided an affidavit stating that the appellant had performed contracting work for him on the day of the injury, which he believed was to assist the appellant with his NRMA insurance claim form. He said that he had no further contact with the appellant thereafter.

Other documentary evidence

A copy of the cheque book stub referred to by the first respondent in his statement dated 17 April 2020 was annexed to the first respondent’s reply.[10] It was dated 18 May 2012 and indicated that the payment was directed to Mr Robb and was in respect of an amount of $1,795 for Mr Robb and $450 for the appellant. The total on the cheque book stub was recorded as $2,215, which is clearly incorrect.
[10] First respondent’s reply, p 34.
A Workcover NSW medical certificate issued by Dr Maxhem Gorbach, general practitioner and dated 31 October 2012 nominated the appellant’s employer as “Michael Maatta Country Services.”[11]
[11] ARD, p 96.
The appellant’s taxation returns for the financial years ending 30 June 2011 and 30 June 2012 were in evidence.[12] The 2011 return disclosed that the appellant’s business income was $42,556 and his expenses comprised $3,150 for motor vehicle expenses and $1,197 in respect of “all other expenses”, leaving a taxable income of $38,318. The appellant’s 2012 gross business income was listed as $42,961 and he was paid a Centrelink Newstart allowance of $1,469. The appellant’s expenses for that year were $5,157, in respect of insurance, motor vehicle expenses, printing and stationery, protective clothing, telephone and tools. The taxable income was recorded as $38,604.
[12] First respondent’s reply, pp 221–237.

THE MEMBER’S REASONS

The Member identified the issues in dispute, namely whether the appellant was a worker or a deemed worker in accordance with the 1998 Act. The Member noted the definition of “worker” within s 4 of the 1998 Act. She observed that the “central feature” of the definition was the requirement that there be “a contract of service” between a worker and an employer and that that service cannot be that provided by an independent contractor or one who carries on a trade or business of his own.
The Member referred to the indicia said to be relevant to a determination of the relationship as set out by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd.[13] The Member further quoted passages from authorities relevant to determining whether a contractor was deemed to be a worker, including Humberstone v Northern Timber Mills.[14]
[13] [1986] HCA 1 (Stevens v Brodribb).
[14] [1949] HCA 49 (Humberstone).
The Member reviewed the statement evidence provided by the appellant, the first respondent and Mr Robb. She summarised the submissions made by each of the parties. She noted that the appellant’s case was that he was employed by the first respondent for the first respondent’s benefit. That is, that the first respondent hoped to make a profit from the business, as opposed to the purpose of the appellant’s attendance, which was for the remuneration and not profit.
The Member noted that the first respondent asserted that the appellant could not be classed as an employee in circumstances where the first respondent was not even aware that the appellant was working on the site on the day he was injured.
The Member referred to the evidence of both the first respondent and Mr Robb that it was Mr Robb who directly contacted the appellant and arranged for him to work that day. The Member said that, on the other hand, the appellant asserted that he was told by Mr Robb that the work was for the first respondent, and that he could work with Mr Robb. The Member observed that throughout the evidence, there was no mention of any communication between the appellant and the first respondent which suggested that the first respondent had retained the appellant’s services on the day of the injury. The Member concluded that Mr Robb had requested the appellant to attend the building site for the purpose of providing Mr Robb with assistance in performing the carpentry work that day. Noting that there was no cogent evidence that the first respondent was on the work site on the day of the injury, the Member further concluded that the first respondent had no knowledge that the appellant was working on the site on the day of the injury. The Member added that she saw no reason to reject the first respondent’s evidence on that point. She referred to the cheque book stub which indicated that Mr Robb was paid $2,215 and included $450 for the appellant’s services. The Member made no reference to the mathematical miscalculation between the amount payable to Mr Robb ($1,795) and the total amount paid. The Member remarked that it would have been more likely that the first respondent would have paid the appellant directly, had the first respondent engaged the appellant himself, rather than through Mr Robb.
The Member referred to the appellant’s submission that payment of the $450 by Mr Robb to the appellant was “more of a courtesy or convenience in the circumstances”, and that the evidence should be afforded no weight. The Member expressed the view that she had some difficulty with that submission, in circumstances where the appellant had previously carried out work for the first respondent and the first respondent had paid him directly. She said that there was no explanation as to why the first respondent would not have paid the appellant directly if the first respondent had requested the appellant to provide his services, when that was the arrangement on previous jobs. The Member observed that it was difficult to compare the sum of $450 to the wages the first respondent usually paid to the appellant, which was at the rate of $30 per hour. She considered that the amount might tend to indicate that the appellant worked on the site for more than one day, but there was no direct evidence about that from the appellant, nor any evidence explaining the arrangement that Mr Robb would make the payment.
The Member referred to the appellant’s evidence that he had been talking to the first respondent on the site at the time of the injury. She noted that both the first respondent and Mr Robb stated that the first respondent was not on the site on the day of the injury and that Mr Robb had called the first respondent to advise him of the incident. The Member said that the appellant had conceded in his submissions that it was unclear whether the first respondent was on site on the day of the injury, so that it appeared to her that the appellant did not press the point that the first respondent was in fact there that day. The Member said that, in that context, and in the face of the clear evidence from the first respondent and Mr Robb that the first respondent was not on the site at the time of the injury, she concluded that the first respondent was not present at the time of the injury.
The Member observed that the nature of the relationship between the first respondent and the appellant changed over time, so that it was important to assess that relationship at the time of the incident. The Member noted that the appellant primarily asserted that he was an employee of the first respondent. The Member identified the evidence that was common to both the appellant and the first respondent, which was that:
(a)    the first respondent would pay the appellant an hourly rate together with GST on receipt of the appellant’s invoice;
(b)    there was no payment of superannuation by the first respondent;
(c)    the appellant provided his own tools and equipment;
(d)    the first respondent asked the appellant to arrange his own insurance, and
(e)    there was no tax deducted, or allowances made for leave entitlements.
The Member noted the appellant’s submissions that he could not be classed as an independent contractor because:
(a)    such contractors were normally paid for the performance of a particular task or for having achieved a particular result, which was not the case on the day of injury;
(b)    there was no evidence that on the day of the injury, the appellant was required to perform such a task, and
(c)    there was no evidence that the appellant tendered for the work or was required to achieve a particular result.
The Member referred to the first respondent’s evidence that, in the relationship between him and the appellant, the appellant was free to subcontract the work or employ other workers and was required to fix any mistakes in his work at his own cost, which was not consistent with an employment relationship. Further, the appellant issued his own tax invoices and was responsible for paying his own taxation. The Member observed that the indicia of employment, discussed in the cases of Stevens v Brodribb and Humberstone referred to above, were a useful tool in evaluating the relationship, however, such an analysis was not necessary. The Member explained that the first respondent submitted that if there was any employment relationship, it would be that of a subcontractor to Mr Robb and not the first respondent. The Member said that, in the circumstances where the case against Mr Robb had been abandoned and Mr Robb was not party to these proceedings, it was not appropriate for her to consider the evidence about that relationship.
The Member referred to the appellant’s evidence that he was not paid at all by Mr Robb and received a cheque from the first respondent. She referred to the evidence of the invoice and the cheque book stub recording a payment by the first respondent to Mr Robb, which included an amount for the appellant’s labour, and to the appellant’s concession that Mr Robb paid the amount as a “courtesy or convenience.” The Member said that that evidence supported the notion that the first respondent was responsible to pay Mr Robb and Mr Robb was responsible for the payment to the appellant.
The Member considered that the fact that Mr Robb had telephoned the first respondent and advised him of the injury was not determinative in this case. She commented that the three men had a civil and cordial relationship so that it was not unusual that Mr Robb advised the first respondent of the injury.
The Member observed that the evidence disclosed that it was Mr Robb who contacted the appellant, Mr Robb had arranged for the appellant to attend the site, and the work the appellant was required to do was entirely at the direction of Mr Robb. The Member concluded that Mr Robb was involved in a genuine subcontract, which meant that the appellant could not have been employed by the first respondent. The Member further concluded that there was no evidence of an intention to create legal relations between the first respondent and the appellant and s 4 of the 1998 Act requires there to be a contract of service. The Member referred to the observations made by Roche DP in Secretary Department of Family and Community Services v Bee[15] as to the assessment of whether there was an intention to create legal relations and concluded that:
(a)    Mr Robb contacted the appellant about attending the site;
(b)    Mr Robb paid the appellant, and
(c)    the first respondent was unaware that the appellant was present on the site,
so that there was an absence of an intention to create legal relations between the first respondent and the appellant on the day of the injury.
[15] [2014] NSWWCCPD 66 (Bee).
The Member indicated that she was unable to find that the appellant was an employee of the first respondent.
The Member turned to the question of whether the appellant was a deemed worker of the first respondent. She said that the appellant was required to establish that:
(a)    he was a party to a contract with the first respondent;
(b)    the work exceeded $10 in value;
(c)    the work was not incidental to a trade or business regularly carried on by the appellant under his own name or a business name, and
(d)    he did not sublet the contract or employ any workers in the performance of the contract.
The Member referred to her previous finding that there had been no intention to create a legal relationship, which she said was also fatal to the appellant’s assertion that he was a deemed worker within the meaning of cl 2(1) of Sch 1 to the 1998 Act, which also requires there to be a “contract.” The Member added that, in any event, the appellant bore the onus of proving that the work he performed was not incidental to a trade or business carried on by him. The Member referred to the evidence of the first WorkCover medical certificate issued by Dr Gorbach of the Hazelbrook General Practice which identified the employer’s name as “Michael Maatta Country Services.” She concluded that, at the time of the injury, the appellant had held out that he was running a business in his own name. The Member pointed out that the entry was not explained by the appellant and thus it could be inferred that he considered himself to be employed in that business. She also noted that Mr Robb’s evidence was that the appellant had asked Mr Robb to provide a statutory declaration to the effect that the appellant was performing sub-contracting work for Mr Robb at the time of the injury. The Member commented that the document was not before her and said that the appellant gave no evidence about why that document was requested.
The Member noted that the first respondent had prepared the document setting out the hours that the appellant had provided services to the first respondent for the period from 6 January 2012 until 11 May 2012. The Member said that the information disclosed that the appellant had been paid an average of 16.9 hours per week in those four months, had worked an average of 3 days per week and earned $510 per week, including GST. The Member pointed to the appellant’s taxation return for the financial year ending 30 June 2012 which disclosed total earnings for the year of $42,961, amounting to an average of $845.40 per week. The Member observed that there was no explanation for the difference between the amount the appellant would have been paid by the first respondent and the amount of income recorded in the taxation return. The Member provided a further analysis of the financial documents. She concluded that, on the basis of the totality of the evidence, she was not satisfied that the appellant was not carrying out work that was incidental to his trade or business.
The Member determined that the appellant had failed to discharge his onus of proving that he was either a worker or a deemed worker.
The Certificate of Determination issued on 25 August 2021 records:
“The Commission determines:
1. The applicant has not discharged the onus of proof in relation to establishing that he was a ‘worker’ or a ‘deemed worker’.
2. Award for the first respondent and third respondent in respect of the claim.”

GROUNDS OF APPEAL

The appellant brings one ground of appeal, asserting that the Member erred by failing to find that the appellant was a “worker” or a “deemed worker.”
The first respondent distilled from the appellant’s submissions three assertions of error complained of by the appellant, namely that the Member erred by:
(a)    failing to draw an inference that the appellant had worked over a number of days, rather than a single day, for which he was paid $450;
(b)    finding that the appellant had worked for other entities, which was contradicted by the tax invoices, and
(c)    failing to find that, if the first respondent had actual or constructive knowledge that the appellant was working on the site, that would indicate that the appellant was a worker or deemed worker for the first respondent.

LEGISLATION

Section 4(1) of the 1998 Act relevantly defines “worker” as follows:
“(1) In this 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).”
Clause 2 of Sch 1 to the 1998 Act provides:
“2 Other contractors
(cf former Sch 1 cl 2)
(1) Where a contract—
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b)(Repealed)
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”

SUBMISSIONS

The appellant’s submissions

The appellant says that he worked as a contractor for the first respondent from January 2009 and did not work for any other entity during that period. He refers to the first respondent’s assertion that, on the day of the appellant’s injury, the appellant was engaged by and worked for the subcontractor, Mr Robb. The appellant says that this is despite the fact that the first respondent was the head contractor of the building site. The appellant asserts that he was not working for Mr Robb but worked for the first respondent as he had done since 2009.
The appellant summarised the crux of the version of the working arrangement provided by the first respondent and Mr Robb. The appellant concedes that Mr Robb had asked the appellant to work but says that the proposal was for the appellant to work with Mr Robb, not for him.
The appellant points to the payment of $450 and submits that the payment was evidence that the appellant performed the work over a number of days. The appellant does not raise any issue in respect of the miscalculation between the amounts paid and the total amount. The appellant adds that he believes that the payment was made by Mr Robb because of a sham arrangement between the first respondent and Mr Robb. He denies having been employed by Mr Robb and thus he discontinued the proceedings against Mr Robb.
The appellant asserts that he only ever worked for the first respondent. The appellant contends that there is no evidence of the appellant ever working for another builder since 2009, apart from the assertion that he was working for Mr Robb on the day of the injury. The appellant submits that his tax invoices from 2009 only show invoices directed to the first respondent and there were no other invoices, either directed to Mr Robb or any other builder or contractor. He submits that he did not invoice Mr Robb for any work at the site upon which he was injured.
The appellant submits that the first respondent must have been aware that he was working on the site under the first respondent’s supervision and control because he had been working there for a number of days. The appellant refers to his statement, said to be dated 15 May 2020 (which is not in evidence), in which he stated that the first respondent, who occasionally visited the site, instructed both Mr Robb and the appellant on what work was to be done. The appellant submits that neither Mr Robb nor the first respondent disputed that fact. The appellant adds that the first respondent was the head contractor on the site. He submits that, at all material times, he was a “worker” or a “deemed worker” for the first respondent.

The first respondent’s submissions

The first respondent submits that, while the appellant challenges the Member’s determination that the appellant was neither a “worker” or a “deemed worker,” it is difficult to identify what were the alleged errors of fact, law or discretion made by the Member. The first respondent says that there is no reference to any component of the Member’s Certificate of Determination or any page notations for the evidence discussed.
The first respondent identifies three purported errors asserted by the appellant in the Member’s determination, namely that the Member erred by:
(a)    failing to infer from the evidence of the payment of $450 that the appellant worked over a number of days;
(b)    finding that the appellant worked for entities other than the first respondent, despite the “tax invoices”, and
(c)    failing to conclude that the first respondent had actual or constructive knowledge that the appellant was working on the site and thus must have been either an employee or a deemed worker of the first respondent.
The first respondent contends that the matters complained of by the appellant in the appeal would not result in the Member’s ultimate conclusion being overturned or reviewed. The first respondent says that if any of the three “grounds” identified did succeed, it would not result in the decision being reversed because they were not fundamental to the Member’s ultimate conclusion.
The first respondent refers to the Member’s reasoning in respect of the payment of $450 and the inference the appellant sought to be drawn from that evidence, which was that the appellant must have worked for longer than a single day. The first respondent asserts that the Member’s observations that there was no direct evidence on this point from the appellant and that there was no evidence about the payment arrangement were sound observations. The first respondent points out that it was open to the appellant to adduce evidence of the hours he worked on the site but failed to do so. The first respondent adds that in the absence of that evidence and in circumstances where the ultimate determination did not rest on that issue, no inference needed to be drawn.
The first respondent says that, in any event, various other inferences could be drawn from that evidence and were equally available, such as there had been an overpayment, or miscalculation of the hours worked and the rate paid, or that the amount included recompense for the purchase of materials. The first respondent submits that the appellant has failed to explain how the inference to be drawn would have led the Member to conclude that he was a worker, or a deemed worker. The first respondent says that neither of those conclusions depended upon the work being performed over more than a single day. Further, whether the work was carried out over more than one day did not impact upon the question of the legal status of a worker, a deemed worker or an independent contractor. The first respondent asserts that the argument should be dismissed.

The first respondent refers to the appellant’s complaint about the Member’s conclusion that the appellant worked for entities other than the first respondent. The first respondent points to the evidence of the appellant’s taxation returns, which disclose that the appellant earned substantially more income than could be attributed to earnings from the first respondent, which, the first respondent says, is consistent with the appellant holding himself out as a business operator. The first respondent submits that the Member’s finding that the appellant did work for other entities as a contractor in his own business was “proper,” and the appellant has not explained how, on the basis of that evidence, any other conclusion could be reached. The first respondent submits that the appellant has failed to identify error on the part of the Member in respect this allegation of error.
The first respondent further refers to the appellant’s submission that the first respondent was aware or ought to have been aware that the appellant was working on the building site and that the appellant was under the first respondent’s supervision and control. The first respondent asserts that the appellant does not explain why that purported awareness is relevant to the matters in dispute, but in any event the submission is not supported by any evidence and is in fact at odds with the evidence.
The first respondent points to his evidence that he had been unaware that Mr Robb had contacted the appellant at some stage on 16 May 2012 and asked him to work that day and that he did not know that the appellant was working on the site that day because Mr Robb had not told him that that was the case. The first respondent submits that the appellant did not contradict that evidence and did not challenge that evidence by cross-examination.
The first respondent contends that as that evidence was not disputed, the Member was entitled to accept the first respondent’s evidence in that regard. The respondent maintains that, if a different conclusion was reached, it would be difficult to see how it would result in a different overall result. The first respondent submits that, even if he had known that the appellant was working on the building site that day, there is no explanation from the appellant as to why that would mean that the appellant was in an employment relationship with the first respondent. The first respondent says that it is common for head contractors to work on a jobsite beside the other contractors and subcontractors.
The first respondent asserts that, if the appellant intends to say that the first respondent’s evidence was implausible and that credit findings should have been made against the first respondent, then such a submission was not made to the Member and thus cannot be a basis upon which this appeal can be determined. The first respondent says that, in any event, there is no evidentiary basis for such a submission, and it would not change the outcome when the Member’s finding was partly dependent upon the evidence of Mr Robb, with which the appellant appears to take no issue. The first respondent adds that the Member found support for her conclusions in Mr Robb’s evidence.
The first respondent submits that the appeal is without merit and should be dismissed.

The second respondent’s submissions

The second respondent opposes the appeal on the basis that the appellant has failed to identify any appealable error on the part of the Member. The second respondent submits that the Member’s determinations were factual in nature, requiring consideration of the evidence and the inferences that can be drawn from that evidence. The second respondent cites various authorities in which the principles applicable to disturbing such findings are set out, namely that:
(a)    findings of fact will not necessarily be disturbed if they have rational support in the evidence;
(b)    even where there is no preponderance of evidence, it is not sufficient that the appeal court prefers a different view, and
(c)    the acceptance or rejection of evidence, and the weight to be afforded to the evidence, is generally a matter that falls within the province of the decision maker.[16]
[16] Seles v State Transit Authority of New South Wales [2020] NSWWCCPD 55; Fox v Percy [2003] HCA 22; Whiteley Muir andZwaneberg Limited v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Limited [2011] NSWWCCPD 25 (Raulston); Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; Shellharbour City Council v Rigby [2006] NSWCA 308.
The second respondent points to the Member’s comments that the appellant did not respond orally to submissions made in relation to the contentious facts, following which the Member directed the parties to file written submissions in relation to her observations, which may have impacted the credit of the appellant. The second respondent says that the parties filed submissions, and thus had the opportunity to address the matters identified.
The second respondent submits that the principles enunciated in the relevant authorities cited above dictate that this appeal is without merit and should be dismissed.
The second respondent asserts that the Member’s summary of the evidence of the appellant, the first respondent and Mr Robb is consistent with that evidence. Further, the Member summarised the parties’ submissions.
The second respondent refers to the Member’s reasoning, in which she observed that, in the circumstances of this case, she was not required to consider the indicia of employment. Further, the Member noted that Mr Robb had been excused from the matter, so that she could only determine the relationship between the appellant and the first respondent. The second respondent reproduces the passages from the Member’s reasons in which she discussed the evidence at [71]–[73] and the Member’s conclusion that there was no evidence of an intention to create legal relations between the first respondent and the appellant on the day of the injury. The second respondent submits that the Member’s reliance on Bee was correct, as was her conclusion that Mr Robb requested the appellant’s attendance on the site, the first respondent had no knowledge of the appellant’s presence, and she was unable therefore to find that the appellant was an employee of the first respondent.
The second respondent further reproduces the passages from the Member’s reasons in respect of her consideration of the issue as to whether the appellant was a deemed worker within the meaning of the 1998 Act, and her conclusion that she was not persuaded that the appellant was not carrying out work that was incidental to a trade or business in his own name.[17] The second respondent submits that this factual finding was also supported by the evidence.
[17] Maatta v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 306 (reasons), [78]–[79].
The second respondent submits that, while the appellant obviously disagrees with the Member’s determination, as set out in her reasons, no legal error is established and the appeal should be rejected.

THE RELIEF SOUGHT

The appellant does not set out the relief he seeks.
The first respondent seeks to have the Certificate of Determination confirmed.
The second respondent seeks to have the appeal dismissed.

CONSIDERATION

Section 352 of the 1998 Act provides for an appeal against a decision of a non-presidential Member of the Commission. Subsection (5) of s 352 provides that:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Thus, for the appellant to succeed in this appeal, he must establish that the Member erred in her factual conclusions, or misapplied the legal requirements, or misused her discretion. It is not sufficient to merely assert that the Member ought to have arrived at a different conclusion. In Northern NSW Local Health Network v Heggie,[18] Sackville AJA made the following observation about s 352(5) of the 1998 Act:
“Section 352(5) of the [1998] Act imposed limits on the power of the Deputy President to interfere with the Arbitrator’s decision. He was not empowered to overturn the decision if (relevantly) it was not affected by an error of fact. The Deputy President was aware of this limitation and expressed his conclusion by reference to what he considered to be the Arbitrator’s failure to address ‘shortcomings’ in the actions taken by the Health Network. However, for the reasons I have given, the Arbitrator either did take the matters identified by the Deputy President into account or was entitled, in the exercise of his evaluative judgment, to regard them as having little or no bearing on the question he had to determine …”.[19]
[18] [2013] NSWCA 255 (Heggie).
[19] Heggie, [179].
The Member’s conclusions were conclusions of fact. The authorities relied upon by the second respondent in respect of the principles applicable to disturbing a non-presidential Member’s finding of fact are therefore relevant. The relevant principles were sufficiently summarised by Roche DP in Raulston as follows:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant … :
(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.’”[20]
[20] Raulston, [19].
The Member concluded that there was no evidence of an intention to create a legal relationship between the first respondent and the appellant. The Member relied on the observations of Roche DP in Bee, which was a case involving an allegation that the injured applicant was a deemed worker in accordance with cl 2 of Sch 1 to the 1998 Act. He said (citations omitted):
“The critical issue in the present case was whether the parties made a contract. Central to that issue was, among other things, whether the parties had an intention to enter into legal relations.”[21]
And:
“The authorities are clear that the question of an intention to create legal (contractual) relations requires an objective assessment of the state of affairs between the parties. ‘Intention’ describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened.”[22]
[21] Bee, [24].
[22] Bee, [42].
It is clear that s 4 and cl 2 of Sch 1 both require the existence of a contract, either of service or a contract to perform work. The appellant does not take issue with the Member’s observation that a contractual arrangement is required before either of those provisions is satisfied. Nor does the appellant point to any evidence that discloses that the Member erred in concluding there was no evidence to support the essential element of a contract, namely an intention create a legal relationship, and thus neither s 4 nor cl 2 of Sch 1 was satisfied.
A statutory right of appeal requires a demonstration that the decision appealed against was affected by error. As the first respondent submits, any error in the Member’s factual conclusions must affect the outcome.
The first respondent succinctly identifies the appellant’s assertions as to the facts that should have been found. That is, that:
(a)    the payment of $450 was evidence that the appellant worked over a number of days;
(b)    the “tax invoices” were evidence that the appellant did not work for other entities, and
(c)    the first respondent had knowledge that the appellant was working on the site on the day of injury.
The appellant does not explain why the number of days worked by the appellant was relevant to the question of the existence of a contract of any type between the first respondent and the appellant. The Member dealt with that suggestion in her reasons when she observed:
“The amount paid to the applicant was in the sum of $450. There is some difficulty in relation to comparing this sum to the wages that the applicant was paid by Mr Dwyer (some $30 an hour). One might think that this leads to an inference that Mr Maatta was indeed working longer than that single day on site, however there is no direct evidence on this point from Mr Maatta nor any evidence on the arrangements for pay from Mr Robb. I therefore decline to make that inference.”[23]
[23] Reasons, [59].
The Member’s assessment of that evidence was logical and available to her. How that amount was calculated was unexplained by evidence from the appellant, or anyone else, and there were other inferences that could be drawn as to what the payment represented. In any event, whether the appellant worked one or more days was irrelevant to the central issue, which was an assessment of the relationship between the appellant and the first respondent.
Similarly, the appellant has failed to explain why the first respondent having an awareness that the appellant was on site on the day of injury bears any relevance to the issues for determination. The appellant conceded in his submissions that it was Mr Robb who approached the appellant about working on the site.[24] It is conceivable that the head contractor of a worksite would be aware of the presence of various subcontractors and subcontractors on any site. Any such awareness is not probative evidence of their being any contractual relationship between the head contractor and a person present on the site, particularly when the person was there by arrangement with another party.
[24] Appellant’s appeal submissions, [9].
The Member concluded that the appellant earned income from other work and thus was carrying out work incidental to his own business. She did so on the basis that the appellant’s business income recorded in the taxation returns disclosed that the appellant earned a greater total income in that year than could be attributed to working only for the first respondent. The appellant does not assert that the Member erred in her reasoning for reaching her conclusion. Nor do the “tax invoices” provide such probative evidence that it could be said that the Member’s conclusion was against the weight of the evidence.
None of the submissions made by the appellant establish that the Member erred by overlooking material facts, or giving undue or too little weight to material evidence, or that the available inference in the opposite sense to that chosen by the Member is so preponderant that the Member’s decision was wrong. None of the matters raised by the appellant disclose that the Member erred in her ultimate determination that there was no probative evidence to satisfy the critical requirement that there was a contract in existence between the appellant and the first respondent.
It follows that the appellant’s appeal fails, and the Member’s Certificate of Determination is confirmed.

DECISION

The Member’s Certificate of Determination dated 25 August 2021 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

13 May 2022