Maatta v Workers Compensation Nominal Insurer (iCare)
[2021] NSWPIC 306
•25 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Maatta v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 306 |
| APPLICANT: | Michael Maatta |
| FIRST RESPONDENT: | Owen Dwyer |
SECOND RESPONDENT: | Stephen Robb (discontinued) |
THIRD RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 25 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Consideration of worker and deemed worker provisions; essential factor being a contract of service; Held - no evidence of intention to create legal relations; award for the first and third respondent. |
| DETERMINATIONS MADE: | 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. |
STATEMENT OF REASONS
BACKGROUND
Mr Michael Maatta (the applicant) was injured on a building site in Katoomba on 16 May 2012. He sustained a penetrating injury to his eye together with a claimed chronic adjustment disorder.
At the time of the injury the applicant was working as a carpenter using a power saw which hit a staple or nail in wood. Whilst the applicant was wearing safety glasses, a piece of metal flew out behind the glasses and penetrated the applicant’s left eye.
The applicant says that he worked as an employee or was a “deemed worker” for Owen Dwyer Builders from January 2009 (the first respondent). An employment relationship is denied by Mr Dwyer saying that he only ever engaged subcontractors who were required to have their own insurance.
The applicant says that he was requested to attend the job site in Walgett Street Katoomba by Steve Robb who was a carpenter on the day that the injury occurred. He says he understood that the work was for Owen Dywer.
Mr Dwyer says that he did not request nor encourage Mr Maatta to attend the job site and had no involvement with him being there.
The real dispute therefore is if the applicant is a ‘worker’ or ‘deemed worker’ for the purposes of being covered by workers compensation insurance.
The applicant makes a claim for whole person impairment and also weekly benefits.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) is the applicant a worker or deemed worker?
Matters previously notified as disputed
The parties agreed that if the applicant was successful in his claim that the matter would be referred to a Medical Assessor for whole person impairment assessment. The claim would then return for a further telephone conference to assist with the dispute so far as weekly compensation is concerned.
The claim against the second respondent, Stephen Murray Robb trading as Stephen Robb Quality Carpentry was discontinued at the arbitration.
PROCEDURE BEFORE THE COMMISSION
11.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 have 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.
12.The parties were invited to put on written submissions following the arbitration relating to findings of fact which may have an impact on the applicant’s credit in light of the guidance in Finney Pty Ltd t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13.
13.The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply to the Application to Resolve a Dispute;
(c) late documents dated 26 April 2021 (statement of Mr Mattaa) and 3 May 2021 (statement of Mr Dwyer), and
(d) written submissions from the applicant, first and third respondents.
Worker and deemed worker defined and discussed
14.The workers compensation legislation provides that a “worker” is entitled to benefits, the entitlement is contained on s 9 of the Workers Compensation Act1987 (the 1987 Act) which provides – “a worker who has received an injury … shall receive compensation from the worker’s employer”.
15.The applicant must establish whether he was a worker as defined by s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which provides as follows:
“Worker means a person who has entered into or works under a contract of service or a training contract with 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) …”
16.The essential feature of the definition in s 4 is the “contract of service” between the employer and the worker. That is, there cannot be the rendering of services by an independent contractor. Essentially, the difference has been described as between a person who serves his employer in his employer’s business and a person who carries on a trade or business on his own.
17.Often whether a relationship of employment is unclear, one can refer to a number of criteria, or indicia by which to gauge whether an employment relationship exists.
18.In the leading case of Stevens v Brodribb Sawmilling Co Pty Ltd,[1] the High Court set out a number of relevant indicia which include the following:
[1] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1
(a) the mode of remuneration;
(b) the provision and maintenance of equipment;
(c) the obligation to work;
(d) the timetable of work and provision of holidays;
(e) the deduction of income tax;
(f) the right to delegate work;
(g) the right to dismiss the person;
(h) the right to dictate the hours of work, place of work and the like; and finally, and
(i) the right to the exclusive services of the person engaged.
19.While the provision of tools by the claimant is often an indication that the relationship is not one of employment, it is not necessarily determinative (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance[1968] 2 QB 497 at 516).
20.The legislation also deems certain people to be workers for the purpose of claiming workers compensation.
21.In this dispute the applicant relies on clause 2 of Schedule 1 to the 1998 Act which provides:
“(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
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.”
22.Therefore a worker relying on clause 2(1) of Schedule 1 must establish that firstly he was a party to a contract with the respondent to perform work, secondly that the work exceeded $10 in value, thirdly that the work was not incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name and finally that the applicant had neither sublet the contract nor employed workers in the performance of it.
23.Acting Deputy President Candy in Djuric v Kia Ceilings Pty Ltd,[2] reviewed the authorities concerning clause 2(1) of Schedule 1 of the 1998 Act and observed that a contractor’s status may change, and it is the status of the contractor at the time of injury which is significant. That means that focus must be addressed to what is happening at the time of injury.
[2] Djuric v. Kia Ceilings Pty Ltd [2010] NSWWCCPD 20
In Turner v Stewardson[1962] NSWR 137 (at 139) the Court of Appeal considered the situation where a carpenter, who contracted his work when employment was difficult to obtain, was regularly carrying on a trade or business:
“Looked at broadly the Legislature meant to provide that persons who are in business for themselves and who systematically and regularly accept work to be done under contract and who hold themselves out as open to be employed under contract are expected to undertake the risk of injury and not to rely for compensation upon the principal whose contract work they are performing at the moment of injury. The original notion that the contractor is deprived of the benefits of the Act because he is not a worker has disappeared and today many small contractors are covered by the Act. This is in keeping with modern practice as to payment for labour at piece work or contract rates.” (emphasis added)
In Humberstone v Northern Timber Mills[1949] HCA 49 (Humberstone), Dixon J (as his Honour then was) said, starting at 401:
“I think that the purpose of the exception or exclusion expressed by the words in question was to confine the benefit of the conclusive presumption which it establishes to persons who do not conduct an independent trade or business, who are not holding themselves out to the public under their own or a firm or business name as carrying on such a trade or business and who do not in the course of that trade or business, as an incident of its exercise, undertake the work by entering into the contract. The provision will thus cover men who work for the principal but have no independent business or trade and men who though carrying on an independent trade or business undertake a contract outside the scope or course of that trade or business. The word ‘trade’ is capable of including any handicraft and in that sense it may seem to lack the element of systematic practice or holding out which the idea of openly conducting a distinct or independent trade or business and seeking custom implies. But a consideration of the policy of the provision as well as of its text appears to me to show that the distinction it seeks to draw is between on the one hand an independent contractor whose relation with the principal is special or particular either because it is outside the course of the general business of the contractor or the general practice of his trade or because he has no such general business or is not a general practitioner of his trade, and on the other hand an independent contractor who performs work successively or perhaps concurrently for his customers or others in the course of a definite trade or business carried on systematically or who holds himself out as ready to do so.” (emphasis added)
His Honour added, at 402:
“The suggestion which this language conveys of the existence of a business or the practice of a trade is much strengthened in sub-s. (6) by the words ‘carried on,’ ‘regularly’ and ‘in his own name or under a firm or business name.’ These all indicate a business or trade conceived as independently existing or exercised by a person holding himself out to the public under a name or style. No doubt the policy is a matter of inference but it seems reasonable to suppose that it was considered proper that a person conducting a business in the course of which he contracted to perform work should himself carry the risk of personal injury as one of the hazards of his business, while the man who worked under contract but only for the employer or without any general trade or business or outside his trade or business should, like an ordinary employee, be insured by the Act against the risk of injury in his work.”
EVIDENCE
I will now look at the evidence.
Lay Evidence
Michael Maatta
28.Mr Maatta has prepared a statement dated 31 July 2020.[3] Mr Maatta states that he has only worked for Owen Dwyer. The applicant disagrees with the proposition that Mr Robb asked him to work for him as he maintains that he only ever worked for Owen Dwyer. In this respect the applicant says that he was told by Mr Robb that “this work was for Owen (Dwyer) and that you could work with me”. In respect of payment the applicant says that he was not paid by Steve Robb and never received a cheque for the work from him.
[3] Application page 120
29.The applicant states that he only worked for Mr Dwyer, didn’t advertise and only attended work sites under Mr Dwyer’s direction. He concedes he did have his own ABN because that’s what Mr Dwyer required together with a registered business name of Maateth Constructions which was owned by the applicant.
30.Mr Maatta explains that when he commenced working for the first respondent, he was told that he would have to have his own ABN, insurance and issue invoices for payment.
31.Michael Maatta has prepared a further statement dated 26 April 2021.[4] It should be observed that the respondents objected to certain paragraphs of that statement and they have been excised from the material before me. The paragraphs that have been excised are paragraphs 2, 4. 5 and 6.
[4] Late documents dated 26 April 2021
32.The applicant says that when he commenced work for Mr Dwyer he was paid $30 per hour which was then reduced to $25 per hour after six months of work.
33.The applicant states that he understood that when you work for Mr Dwyer you could not work for other people and he felt loyal to him.
Owen Dwyer
34.Owen Dwyer has prepared a statement dated 17 April 2020.[5] Mr Dwyer is the owner of Owen Dwyer Builders and describes himself as a sole trader. He says that he has arrangements with subcontractors so that he has flexibility obtaining assistance and is then not worried about trying to pay staff when there is no available work. He comments that his subcontractors have insurance including workers compensation and public liability which is usually undertaken in the form of the NRMA tradies pack. The subcontractors are paid after a tax invoice is provided and Mr Dwyer pays the sum including GST into the nominated bank account or by cheque. Mr Dwyer states that he only employs contractors with their own ABN, insurance, tools of trade and equipment.
[5] Annexed to Reply at page 6
35.Mr Maatta commenced work with the respondent in or about 2007. Mr Dwyer observed the applicant was an accomplished carpenter and would work with him on and off depending on the jobs he had going. Mr Maatta would invoice Mr Dwyer under the work name Maatta Constructions. Mr Dwyer says that the applicant was always free to work for other companies and come and go when he wanted and he provided his own tools, transport and PPE.
36.Mr Dwyer recalls the construction at Katoomba which he recalls was a boundary fence being constructed in post and lattice. He states that Steve Robb was a carpenter that was working on the site on that day and Mr Maatta was assisting him, he recalls Steve Robb calling him and reporting that the applicant had had an accident at work and had been taken to the hospital at Katoomba.
37.Mr Dwyer has prepared a second statement dated 29 June 2020[6]. Mr Dwyer explains in his statement how he chooses to use subcontractors as they provide greater flexibility. When he engages a tradesperson, he expects them to do the job that they were engaged to do and if there is a mistake to fix it out of their own pocket.
[6] Reply page 35
38.Mr Dwyer states that he asked the applicant, as he does with all his subcontractors, to sign a trade contractors form. He states that the applicant was a good carpenter and would work with him on and off depending upon the jobs he had going and the need for workers.
39.In relation to providing insurance, Mr Dwyer recalls a number of conversations with the applicant relating to this issue. There were routine checks to make sure insurance in place and on one of these routine checks it was discovered that the applicant’s insurance had lapsed. Mr Dwyer said he then took the applicant down to the NRMA office in Katoomba and assisted him in getting insurance for a longer period.
40.Mr Dwyer states that the applicant could choose his own hours to complete the contracted works. Sometimes you would work sporadically, for two hours and then leave. He was later provided with a tax invoice claiming the hours worked plus GST. Mr Dwyer did not pay any superannuation benefits to the applicant.
41.In relation to the work at Katoomba, Mr Dwyer says he contracted Steve Robb to perform carpentry work on the job. He did not engage Mr Maatta to work in any capacity on 16 May 2012. In particular, Mr Dwyer states that he was unaware that Mr Robb had called the applicant to ask him to work for him for the day.
42.Mr Dwyer refers to a cheque that he paid to Mr Robb which is annexed to his statement[7] which indicates the sum of $2,215 was paid to “S. Robb” in respect of $1,795 to Robb and $450 to the applicant. The obvious inference from the cheque stub is that one cheque was issued to “S Robb” who then paid the applicant.
[7] Page 40 of the Reply
Stephen Robb
43.It should be observed that the proceedings against Mr Robb were discontinued at the arbitration.
44.Stephen Robb has prepared a statement which appears to be undated.[8] Mr Robb states he worked as a subcontractor for Mr Dwyer and provided to him details of his insurance which included workers compensation and public liability.
[8] Page 25 of the Reply
45.Mr Robb says that he had been working at the Katoomba property for a few days and still had a significant amount of fencing to do so he contacted Mr Maatta directly to ask him to give him a hand. Mr Robb knew Mr Maatta from doing work with Mr Dwyer. Indeed they had worked together on different work sites with Mr Dwyer for about a year.
46.Mr Robb says that he was standing approximate 5 m away from Mr Maatta when he sustained his injury. He really realised fairly soon that it was a serious injury and drove
Mr Maatta to Katoomba Hospital. Mr Robb also states that he telephoned Mr Dwyer later that day to inform him of the accident.47.In a statutory declaration dated 20 June 2020[9], he confirms that it was he who requested the applicant’s attendance at the job site. Mr Robb declares that he billed Mr Dwyer for work done at Walgett Street which included $450 that he had paid the applicant for working with him.
48.Mr Robb further states that he provided the applicant with an affidavit saying that Mr Maatta was doing subcontracting work for him on the day of the accident.
Submissions
Findings of fact
49.The applicant’s case is that he was employed by the first respondent. That is that the applicant worked for the respondent for the respondent’s benefit. Simply put, the first respondent hoped to make a profit from the business that he ran and the applicant’s attendance on that day was for the purpose of remuneration not profit.[10]
[10] Lee Tinc Sang v Chun Thi-Keni (1992) AC 374 at 382
50.The respondent says that the applicant cannot be classed as an employee or worker as the first respondent wasn’t even aware that the applicant was working at the site on the date of injury.
51.In order to properly assess the submissions I am required to make findings of fact in relation to what brought the applicant to the job site on the date of injury. Which I will now do.
Attendance on site
52.The first finding is in relation to how the applicant attended the job site on the date of injury. It is the evidence of both Mr Dwyer and Mr Robb who say that it was Mr Robb who contacted the applicant directly to ask him to assist on the worksite.
53.To support this submission, I was directed to the evidence of Mr Dwyer, which was collaborated by Mr Robb who says that Mr Robb contacted the applicant directly to assist him on the work site. In contrast the applicant says that he was told by Mr Robb that the work was for Mr Dwyer and that you could work with me (meaning Mr Robb).
54.What is consistent in the evidence is that there was no communication between Mr Dwyer and the applicant requiring him to attend the worksite on the date of injury. Whilst the applicant may have formed the opinion that the work was related to Mr Dwyer, it cannot be impugned by this assumption that Mr Dwyer had requested the applicant’s attendance or retained his services for the day.
55.I therefore make a finding of fact that it was Mr Robb who asked the applicant to attend the worksite and to assist Mr Robb in carpentry work that day.
56.I also make a finding of fact that Mr Dwyer had no knowledge that the applicant was in fact attending the worksite on the date of injury. There is no evidence that Mr Dwyer was on site on the day of the accident (a factual finding outlined below) and there is no reason for me not to accept Mr Dwyer’s evidence in this regard.
57.This finding of fact is consistent with the evidence of the cheque stub, which indicates that
Mr Dwyer paid Mr Robb the sum of $2215, of which $450 was for the services of the applicant. If indeed Mr Dwyer had retained the applicant directly, then it is much more likely that he would have paid the applicant directly and not through Mr Robb.58.The applicant submits that the payment by Mr Robb to the applicant was “more of a courtesy or convenience in the circumstances” and that no weight should be attached to it. The difficulty I have with such a submission is that there is a relationship between the applicant and Mr Dwyer in the past where payments have been made. I cannot see any reason, if
Mr Dwyer had requested the applicant’s presence at the job site, that he would not have paid the applicant directly as he had on other jobs.59.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.
Was Mr Dwyer on site
One of the factual issues that needs to be determined was whether Mr Dwyer was on site at the time of the accident. The applicant’s evidence is that he was talking to Mr Dwyer at the time of the accident.[11]
[11] Page 120, paragraph 5.
The evidence from both Mr Dwyer and Mr Robb was that Mr Dwyer was not present on the date of the accident and that following the injurious event, Mr Robb called Mr Dwyer.
Submissions were requested from the parties in relation to this factual issue. The submissions filed on behalf the applicant concede that it is unclear whether Mr Dwyer was present on the day of the injury. In circumstances where this factual issue appears not to be pressed by the applicant, and there is clear evidence from both Mr Robb and Mr Dwyer that he was not present on site at the time of the accident, I find that Mr Dwyer was not present at the time of the accident on site.
Nature of the relationship between Mr Dwyer and Mr Maatta
63.The nature of the relationship between Mr Dwyer and Mr Maatta is one that is capable of change over time. That is why it is pertinent to look at the relationship on the date of the injury. The applicant claims that he was a worker or a deemed worker. I will now look at both of these claims.
Worker
64.The first argument made by the applicant is that he was indeed an employee of the first respondent.
65.What is common in the evidence from Mr Dwyer and Mr Maatta are the following factors.
Mr Dwyer would pay the applicant on an hourly basis with additional payment of GST after providing Mr Dwyer with the invoice. No superannuation was paid by Mr Dwyer to the applicant. Mr Maatta provided his own tools and equipment. Mr Dwyer asked the applicant to have his own insurance. No tax was paid by Mr Dwyer nor was any provision made for sick leave and the like.66.Mr Collins, who represented the applicant, submitted that the applicant could not be classified as an independent contractor because independent contractors tend to be paid for the performance of a task or production of a particular identifiable result. This was not the case on the day of injury, there is no evidence that the applicant tendered for the work or was required to work with a particular identified result.[12]
[12] Articulate Restorations and Development Pty Ltd v Crawford (1994) 57 IR 371
67.The first respondent has given evidence that there was no impediment to the applicant subcontracting his labour or employing other workers and further that the applicant was required to fix any mistakes that he made at his own cost. If the applicant was indeed employed then it is unlikely that this would occur. The applicant also issued his own tax invoices and they included GST and was responsible for paying his own tax.
68.The indicia of employment is often a useful tool when trying to establish the nature of the relationship between parties. In the circumstances of this case, the analysis is not required for reasons that I will come to shortly.
69.The respondent submits that if there is any employment relationship it is as a subcontractor for Mr Robb rather than Mr Dwyer. Mr Robb takes on a contract, directs the applicant to attend that day, not Mr Dwyer. There are no proceedings against Mr Robb currently on foot and he has been excused from these proceedings. It is therefore inappropriate for me to determine the nature of the relationship between the applicant and Mr Robb and I must focus upon the relationship between the applicant and the first respondent.
70.The respondent makes the obvious submission that on the day of the injury Mr Dwyer had not contacted, had not engaged and had not called the applicant to work and was indeed not aware the applicant was working at one of his contractor job sites. The respondent points out that Mr Dwyer had contracted Mr Robb and then Mr Robb had contacted the applicant to work on the site.
71.The applicant says in his statement “I was not paid by Steve Robb at all and received a cheque for the work from Owen Dwyer”. Once one looks at the documents it is apparent that there is an invoice, a cheque stub with respect to payments made by Mr Dwyer to Mr Robb which includes an amount for Mr Maatta’s billed labour. The applicant concedes in his submissions that Mr Robb paying the applicant was a courtesy or convenience in the circumstances and no weight should be attached to it.[13]
[13] Applicant’s submissions page 2
72.This to my mind seems to be somewhat difficult to accept, that the payment was made as a matter of courtesy or convenience, but rather it appears to me that it supports that Mr Dwyer was responsible to Mr Robb for payment under a subcontracting arrangement and Mr Robb was in turn responsible to Mr Maatta on a similar basis.
73.The fact that Mr Robb telephoned Mr Dwyer to inform him of the injurious event is not factually determinative in this case to my mind. It is common between the parties that
Mr Maatta had performed work for the first respondent on many occasions and that all three men had a civil and cordial relationship therefore it is of little moment that the injury was indeed communicated to Mr Dwyer.74.Because of the nature of the evidence in relation to how the applicant came to attend the job site, it is clear the applicant was contacted by Mr Robb not by Mr Dwyer and the involvement of Mr Maatta was entirely at the direction of someone who was acting under a genuine subcontract. The effect of this is that the applicant cannot be an employee of Mr Dwyer on that relevant date.
75.In essence, the difficulty I have with finding the applicant was an employee of the first respondent is that there is no evidence of any intention to create legal relations on the date of the injury. The essential feature of the definition in s 4 of the 1987 Act is the contract of service (emphasis added) between the employer and the worker. Establishing a contract of service involves principles of contract law such as for an acceptance.
76.In Secretary Department of family and community services v Bee [14], Deputy President Roche said:
[14] Secretary, Department of family and Community Services v Bee [2014] NSWCCPD 66
“the authorities are clear that the question of an intention to create legal (contractual) relations requires an objective assessment of the state of the 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”[15]
[15] At paragraph 42
77.In light of the findings of fact that I have made, that is that Mr Robb requested the applicant to attend the job site, Mr Robb paid the applicant and Mr Dwyer was unaware the applicant’s presence on site, there is an absence of an intention to create legal relations on the date of the accident. I am therefore unable to find that the applicant was an employee of the first respondent.
Deemed worker
78.The second limb of the applicant’s claim is that the applicant should be classified as a ‘deemed worker’. In order to succeed, the applicant must establish that firstly he was a party to a contract with the respondent to perform work, secondly that the work exceeded $10 in value, thirdly that the work was not incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name and finally that the applicant had neither sublet the contract nor employed workers in the performance of it. It was properly conceded that there was no issue that Mr Maatta was performing work exceeding $10 in value.
79.The difficulty with this submission is that clause 2(1) relates to a “contract”. I have already made findings of fact in relation to the intention to create legal relations between the applicant and the first respondent. This to my mind is fatal to the applicant’s argument in relation to deemed employee claim. That is I have already found, that in absence of there being an intention to create legal relations, there was no contract between the applicant and the first respondent. I have declined to make findings against the second respondent as the claim against him was discontinued. Nevertheless I will briefly look at the submissions made.
80.What was somewhat contentious was whether the work was incidental to a trading business being regularly carried out by the contractor in his own name or business name. It must be borne in mind when analysing this submission that the applicant bears the onus of proof.
81.Mr Collins referred to the indicia of control, that is who dictates when, where, how and what the work is to be performed. That is, the applicant was to attend the work site at a particular time to perform a particular job. He was under the control of someone else. The indicia however is a matter that is pertinent to the worker issue[16].
[16] See discussion in Malivanek v Ring Group Pty Ltd [2014] NSWCCPD 4
82.So in relation to deemed worker the test is as outlined. The real difficulty for the applicant to overcome is because the evidence clearly eludes to this being a case of a person carrying on their own business.
83.The first medical certificate prepared by a doctor[17] indicates that the employer’s name is “Michael Maatta Country Services”. What is clear is that at the time this accident occurred the applicant held himself out as a person running a business in his own name being Michael Maatta Country Services. At no stage did he tell any doctor immediately at the time of the accident that he was a worker.
[17] Page 96 of the Application
84.Mr Maatta does not provide any evidence as to why this business name was proffered (presumably by himself). In the absence of evidence, I am left with an inference that at that time Mr Maatta thought that was his employer’s name.
85.Mr Robb also refers to being asked by Mr Maatta to provide a statutory declaration that Mr Maatta was performing subcontracting work for him at the time of the injury. There is no evidence from Mr Maatta as to why that affidavit (which is not before me) was requested.
86.The respondent has prepared material (by Mr Dwyer) that sets out the days and hours worked over a period leading to the injury in May 2012.[18] The hours are set out from 6 January to 11 May 2012. The hours in that period add up to 304 hours worked over a cumulative 18 weeks. That comes to an average of 16.9 hours per week for the four months leading to the injury worked by Mr Maatta. This represents an average of working approximately three days per week earning approximately $510 per week (including GST).
[18] Page 80
87.Then, in respect of the tax return for the year ending 30 June 2020[19] the applicant’s total earnings for the year are almost $42,961. This represents an average week of $845.40, though doesn’t take into account any holiday leave which would mean the weekly earnings would be higher,
[19] Page 89
88.It was submitted by the respondent that the mathematical difficulty the applicant has in his claim is this, we know that the hourly rate is $30 an hour and there are roughly 17 hours of work on average for a four month period. Quite clearly, there does not seem to be an explanation for $42,000 of earnings against 17 hours worked on average for four months up to the month of injury.
89.The respondent asks me to infer that for the other seven months of the financial year including those four months Mr Maatta had to be working somewhere else or the tax records are wrong and overstated by a substantial amount.
90.The applicant by way of reply in submissions (dated 24 June 2021) states that looking at the tax returns, the gross income was $42,961 for the year ending 30 June 2012. As the applicant’s injury occurred some 35 weeks into the financial year, he was earning some $826.17 per week. This is calculated at 27.5 hours per week for $30 per hour.
91.This however does not address the respondents concern, that is there does not appear to be enough hours invoiced to Mr Dwyer to represent earnings of the level disclosed in the 2012 tax return.
92.I agree that on the analysis performed in the four month period identified by the respondent that there does not appear to be enough hours invoiced to make a finding that all the applicants income came from Mr Dwyer in that period.
93.The respondent also refers to the tax returns which indicates that the applicant was making deductions in his own business name for tax purposes which include claiming his car, claiming his clothing, his telephone and his tools. The respondent says that this suggests the applicant was holding himself out as having his own business.
94.I was also directed to two tax invoices which appear to be invoices to a party other than
Mr Dwyer which was Mount Wilson (Old Post Office), both dated 25 December 2011. I have looked at those invoices and cannot be satisfied that they were issued to the Mount Wilson (Old Post Office). The reason that I’m not satisfied is that other invoices are issued at the same time that clearly refer to Owen Dwyer for work done at Mount Wilson for instance on page 282 of the first respondents reply. Indeed, in an invoice on page 281, it is clear that the applicant has invoiced Mr Dwyer for work that was done at the Mount Wilson Old Post Office.95.After considering all the evidence there is no direct relationship between Mr Dwyer and the applicant on the day that the applicant sustained injury.
96.The test is whether on the day of the injury, there may have been a different arrangement on other days apart from the day he was injured. What is relevant is the date of injury and that is where my attention must be focused.
97.It is clear that the applicant bears the onus in relation to proving that he is a deemed worker. There is evidence in support of the applicant not carrying on a business of his own however there is also evidence in support of that proposition. The evidence in support of that proposition is that the applicant had a business name, he filed his own tax returns of that business name, had significant deductions in that business name and he was required to have his own insurance in that business name. He has also identified himself as being a subcontractor (by requesting the affidavit from Mr Robb) and as being self employed (as disclosed on the medical certificate). It was submitted that because of that the applicant is simply cut out of the deeming provision.
98.On balance, I am not persuaded that the applicant was not carrying on work that was incidental to a trade in carried on in his business name for reasons that I have outlined above.
99.What is clear is that the applicant was working attending the work site at the direction and request of Mr Robb on the date of injury. In those circumstances I find impossible to make the order that the applicant seeks in respect of the deeming provisions as I have found that there is no intention to create legal relations with Mr Dwyer on the date of injury, there is no contract to perform any work on that date.
SUMMARY
The applicant bears the onus of proof in relation to persuading the decision-maker that he was either a worker or deemed worker for the purposes of compensation.
The claim has been pursued against only the first respondent in respect of the worker or deemed worker issue and I find that the applicant has not discharged the burden of proof he wears in respect of these alternative claims.
In those circumstances there should be an award for the first and third respondent.