Marinic v RPC Interiors Management Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Marinic v RPC Interiors Management Pty Ltd [2019] NSWWCCPD 11
APPELLANT:	Anne Marinic
RESPONDENT:	RPC Interiors Management Pty Ltd
INSURER:	GIO NSW Workers Compensation
FILE NUMBER:	A1-3544/18
ARBITRATOR:	Mr C Burge
DATE OF ARBITRATOR’S DECISION:	18 October 2018
DATE OF APPEAL DECISION:	26 March 2019
SUBJECT MATTER OF DECISION:	‘Worker’ – application of Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16, Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 and associated authorities
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Nikola Velcic & Associates
Respondent:	Hall & Wilcox
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s Certificate of Determination dated 18 October 2018 is revoked. 2.     The matter is remitted for re-determination by another arbitrator.

INTRODUCTION AND BACKGROUND

1. Anne Marinic (the appellant) is the widow and only dependant of the late Ivan Marinic (the deceased), who died from a heart attack at work on 2 December 2016. The appellant brings these proceedings pursuant to ss 25(1) and 26 of the Workers Compensation Act 1987 (the 1987 Act), for the lump sum death benefit together with funeral expenses. The appellant alleges that the deceased was a worker in the employ of RPC Interiors Pty Ltd (the respondent), or alternatively a deemed worker pursuant to Sch 1, cl 2 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), at the time of his death. This was disputed by the respondent in a s 74 notice dated 6 November 2017; these were the only issues between the parties.

2. These proceedings were commenced by way of an Application to Resolve a Dispute registered on 11 July 2018 (the ARD). The matter was listed for arbitration hearing on 20 September 2018. Both parties were represented by counsel. There were no applications to adduce oral evidence or to cross-examine. The matter proceeded on the written material, counsel addressed, and the Arbitrator reserved his decision. A Certificate of Determination, accompanied by 19 pages of reasons, was issued on 18 October 2018.[1] There was an award in favour of the respondent. The Arbitrator concluded that the deceased was not a ‘worker’ or a deemed worker. This appeal is brought against that decision.

   [1] Marinic v RPC Interiors Management Pty Ltd [2018] NSWWCC 281 (the Reasons).

3. It is not in issue that, at the time of the deceased’s death, he was contracted (however it may be characterised) to the respondent, and was being paid by the respondent. The site at which he was performing duties, Portman Street, Zetland (the Portman Street site) was a development site controlled by Ballast Point Pty Ltd (Ballast Point). The deceased was “provided” by the respondent to another company, Ultra Building Works Pty Ltd (Ultra), which was carrying out works at the site. Ultra paid $60 per hour to the…