Master Builders Association of NSW v Allen - [2008] NSWWCCPD 54

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Master Builders Association of NSW v Allen & Anor [2008] NSWWCCPD 54
APPELLANT:	Master Builders Association of NSW
FIRST RESPONDENT:	Daniel Allen
SECOND RESPONDENT:	M J Baker Constructions Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	WCC6432-07
DATE OF ARBITRATOR’S DECISION:	18 October 2007
DATE OF APPEAL DECISION:	22 May 2008
SUBJECT MATTER OF DECISION:	Application to admit late document; fresh or further evidence; apprenticeship contract as basis for relationship of employer and employee; whether employment abandoned; “worker” pursuant to section 4(1) of the Workplace Injury Management and Workers Compensation Act 1998; error of fact; error of law.
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
HEARING:	Determined on the papers
REPRESENTATION:	Appellant:	Gillis Delaney Lawyers
1^st Respondent:	Taylor & Scott Solicitors
2^nd Respondent:	Rankin Nathan Lawyers
ORDERS MADE ON APPEAL:	The decision of the Arbitrator dated 18 October 2007 is confirmed.
The Appellant Employer is to pay the costs of the appeal of the Respondent Worker and the Second Respondent.

BACKGROUND

On 15 November 2007, the Master Builders Association of NSW (‘MBA/Appellant Employer’), sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 18 October 2007.

The Respondent Worker to the Appeal is Mr Daniel Allen (‘Mr Allen/Respondent Worker/First Respondent’)

The Second Respondent is M J Baker Constructions Pty Ltd (M J Baker/Second Respondent’)

The Insurer is QBE Workers Compensation (NSW) Limited.

Mr Allen was an apprentice indentured to the MBA. While so indentured, he was placed in employment with Paul R Cigana Pty Ltd. He had previously worked for Mr Laurie Bulmer as a first year apprentice. On 23 March 2007, Mr Allen left the employ of Paul R Cigana Pty Ltd to commence work with M J Baker Constructions Pty Ltd on 27 March 2007.

When he went to work with M J Baker, Mr Allen indicates that he was still indentured with the MBA, “… but they were not aware of who I was working for. They would of thought that I was still with Paul.” (See statement dated 5 June 2007, A 33). Mr Allen went on to say that while working with M J Baker he had no discussions or correspondence with the MBA.

On 30 April 2007 Mr Allen suffered a severe injury when he fell some distance while carrying out his duties. According to Mr Allen, he suffered “Two fractured ribs and punctured lung compound fracture of the right ring finger and severe shatter to the right hand, of the skull behind the right ear, cut above the right eye.” (see statement dated 5 June 2007, A57).

In delivering his oral decision on 15 October 2007 [‘Certificate of Determination’ dated 18 October 2007], the Arbitrator stated, “ … it’s agreed between the parties that the resultant medical condition has meant that the applicant is totally incapacitated for work … compensation, the entitlement to which is not in dispute in so far as the applicant’s right to compensation is concerned, compensation will be ordered in his favour as being totally incapacitated.” [sic]. (T 68, line 55).

The Arbitrator states at T 69, line 10: “The real question in this case is: Who is liable?”

Mr Allen made a claim for workers compensation, and filed an, ‘Application to Resolve a Dispute’ in the Commission on 22 August 2007. The MBA was named as the First Respondent and M J Baker, the Second Respondent.

In that Application Mr Allen described his injury as:

“Serious head injuries requiring 4 weeks of hospitalisation. Specifically, Claimant sustained fracture to base of skull, cerebral haematoma, two fractured ribs, a punctured lung, and a laceration and dislocation of the right ring finger.”

In describing how the injury occurred he stated:

“Was working on the second storey of a building under construction when Claimant fell backwards into an open stair well. Fell 3 metres onto a concrete floor.”

Mr Allen claimed compensation as weekly benefits payments of $600 per week from 30 April 2007 “to date and continuing”, medical, hospital and rehabilitation expenses of $3,191.25 (surgical fees for Dr Jerry M Day), with “further treatment expenses to be advised upon receipt of Medicare Notice of Past Benefits”.

Both Respondents disputed the claim.

The Arbitrator duly determined the dispute on 15 October 2007, by way of an oral decision, and he issued a ‘Certificate of Determination’ on 18 October 2007 in which his award against MBA and orders are set out. He also made an award in favour of M J Baker.

On 15 November 2007 the MBA filed in the Commission, an ‘Appeal Against Decision of Arbitrator’.

On 21 December 2007, Mr Allen filed in the Commission, a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’, together with his opposition to the grounds of appeal, and his submissions in support.

On 1 February 2008, the Registrar issued a Direction in the following terms:

“1.By 15/02/2008, the Appellant serve on the Respondent(s) a sealed copy of this application and standard direction.

2.By 22/02/2008, the Appellant file with the Commission a Certificate of Service (Form 4) certifying service of the application and standard direction on the Respondent(s).

3.By 14/03/2008, the Respondent(s) file with the Commission and serve ion the Appellant a Notice of Opposition (Form 9A) and supporting documentation.

4.By 21/03/2008, the Respondent(s) is [sic] to lodge a Certificate of Service (Form 4) certifying service of the Notice of Opposition on all other parties to the appeal.

5.By 28/03/2008, the Appellant is to file with the Commission and serve on the Respondent/s submissions in reply if required.”

Mr J Baker’s submissions on appeal were filed in the Commission on 21 February 2008.

On 7 April 2008 MBA filed in the Commission, an, ‘Application to Admit Late Documents’.

On 15 April 2008, I issued Directions in the following terms:

“1.An ‘Application to Admit Late Documents’ was filed in the Commission by the Appellant on 7 April 2008. A copy is attached to these Directions.

2.The Solicitors for the Second Respondent filed a letter in the Commission on 8 April 2008 objecting to the admission of the late document. They seek to make submissions in support of these objections.

3.The First and Second Respondents to the Appeal should file any written submissions they wish to make as to the ‘Application to Admit Late Documents’. Such submissions are to be filed in the Commission on or before Thursday 24 April 2008. Each of the Respondents is to serve a copy of any such submissions on each other, and on the Appellant, and file Certificates of Service in the Commission at the same time.

4.Should each or any of the parties wish to make further written submissions, following receipt of such submissions, they are to file such further submissions in the Commission and upon each of the other parties, on or before Friday 2 May 2008, and file Certificates of Service in the Commission at the same time.”

On 17 April 2008 Mr Allen filed in the Commission, submissions objecting to the admission into evidence of the late document attached to MBA’s ‘Application to Admit Late Documents’.

On 21 April 2008 M J Baker filed in the Commission, submissions objecting to the admission into evidence of the late document attached to MBA’s ‘Application to Admit Late Documents’.

MBA did not file by 2 May 2008, and has not since filed in the Commission, any submissions in response to the Directions issued, or in response to the submissions filed by the other parties objecting to its Application.

THE ARBITRATOR’S DECISION UNDER REVIEW

The ‘Certificate of Determination’ dated 18 October 2007 records the Arbitrator’s award and orders as follows:

“1.There will be an award in favour of the Applicant against the First Respondent
in the following amounts:-
·$456.31 per week from 30 April 2007 to 25 August 2007 pursuant to s.36;
·Upon production to the First Respondent’s insurer, QBE, of WorkCover certificates certifying the Applicant totally unfit, $456.31 from 26 August 2007 to 29 October 2007.

2. There will be an award in favour of the Second Respondent with no order as to costs.
3. The First Respondent is to pay the Applicant’s s. 60 expenses.

4. The First Respondent is to pay the applicant’s costs as agreed or assessed.

5. I certify the matter as complex and an uplift of 25 percent.”

ISSUES IN DISPUTE ON APPEAL

MBA’s grounds of appeal are that the Arbitrator erred by:

·misdirecting himself as to the questions for determination;

·having found that Mr Allen suffered an injury in the course of his employment with M J Baker, failed to enter an award against that party;

·misdirected himself as to the effect of the existence of the earlier contract of employment with the MBA;

·misdirected himself as to any relevant relationship between the contract of employment with the MBA and the injury sustained by Mr Allen in the course of his employment with M J Baker;

·misdirected himself as to the effect of the Appellant Employer being “notified” by Mr Laurie Bulmer on 24 April 2007 that Mr Allen was working for M J Baker;

·finding that there was a “fairly relaxed approach” by the MBA in “getting work for apprentices”;

·finding that “there was a co-operative interplay between M Bulmer and the MBA;

·accepting M J Baker’s “account of what happened”;

·“not finding that Mr Allen had not abandoned his employment” with the MBA;

·posing the question for determination as, “ … bearing in mind the factual situation, does that in any way avoid the contract between the [Respondent Worker] and the Appellant Employer and force the [Second Respondent’s] worker’s compensation policy to respond to the [Respondent Worker’s] injury”;

·finding under the terms of the contact between the MBA and Mr Allen, that he “was injured whilst working for the second respondent and was not working under a contract of service but was working under a training contract with the [Respondent Employer]”, and

·failing to provide adequate reasons.

Mr Allen opposes the grounds of appeal and submits in conclusion:

“The Respondent worker contends that the Arbitrator, in his Reasons for Decision, gave a comprehensive and thorough reasoning of all matters in issue and correctly determined that the contract of employment with the Appellant Employer had not been terminated nor had the apprenticeship been abandoned by the Respondent
Worker.”

M J Baker similarly opposes the grounds of appeal and makes submissions in rejecting each of them.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)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 without holding any conference or formal hearing.”

The MBA and Mr Allen submit that the appeal may be determined ‘on the papers’. M J Baker makes no submissions on this point.

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the MBA and Mr Allen 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.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

The amount of compensation on appeal is both at least $5000 and at least 20% of the amount awarded in the decision of the Arbitrator, against which this appeal is brought.

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Leave to appeal is granted.

REVIEW BY A PRESIDENTIAL MEMBER

Section 352(5) of the 1998 Act provides that an appeal against the decision of an Arbitrator is to be undertaken by way of a review of that decision.

A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based upon all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 (‘Coal & Allied Operations’); Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).

In this case the MBA must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; See also The King Island Company Limited v Deery [2005] NSWWCCPD 1), in order to enliven the Presidential member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Moreover, the error must be such that, but for it, a different decision should have been made in its place (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311. See also section 294 of the 1998 Act).

In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, the Court said that the review process is broader than the correction of error “of the kind identified in House v The King”. Bryson JA said at [38]:

“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). an attack on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504-505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a mater of which an arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

In South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134], McColl JA quoted this passage with approval after holding that it was an “over-generalisation” to describe the relative weight and relevance of the expert evidence as a “discretionary decision which could only be disturbed on House v The King principles” (at [133]). Her Honour went on to say:

“There are certainly aspects of the laws of evidence which involve discretionary decisions. The application of ss 135 and 136 of the Evidence Act 1995 are ready examples. However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principles and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2000] HCA 22; (2003) 214 CLR 118.”

The nature of a review was also considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249, where Spigelman CJ said at [28] and [30]:

“28.The concept of a review on the merits is wider than the concept than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State, which establishes the breadth of a review on the merits.

30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”

APPLICATION TO ADMIT LATE DOCUMENT

The MBA seeks to admit into evidence, as a late document, a written Determination dated 13 March 2008 of the Vocational Training Tribunal (‘the Tribunal’), in relation to proceedings in which Mr Allen was a party. The subject and nature of those proceedings is set out in the Determination of that Tribunal:

“To determine a complaint under section 39(1) (b) of the Apprenticeship and Traineeship Act 2001 lodged by a training officer in relation to a party to an apprenticeship failing to discharge their obligations under the apprenticeship.”

Mr Allen objects to the admission into evidence of the late document.

M J. Baker also objects to the admission into evidence of the late document.

Section 352(6) of the 1998 Act, provides as follows:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

Practice Direction No.6 sets out the process for, and other matters in relation to, seeking leave of the Commission to introduce fresh evidence or additional evidence on appeal. It provides as follows:

“Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;

·the evidence is credible;

·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration hearing, and/or

·it is just to admit the evidence in all the circumstances of the individual case.

Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.

If fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·a schedule of the fresh or additional evidence;

·a copy of the fresh or additional evidence;

·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and

·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.

Where a party seeks to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.”

The MBA’s submissions in support of admission of the late document

The MBA submits that this evidence became available on 13 March 2008 and was therefore, not available at the time of filing the initial ‘Application to Resolve a Dispute’, nor at the time of filing of the ‘Appeal Against Decision of Arbitrator’. It submits that the Determination of the Tribunal could not reasonably have been obtained by the MBA and tendered in the proceedings before the Arbitrator.

It further submits:

“The new evidence confirms that the apprenticeship between the Master Builders Association of New south Wales and the Applicant (Respondent) was suspended from 23 March 2007. This was the last day of assigned host employment arranged by the Master Builders Association of New South Wales. The Determination of the Vocational Training Tribunal makes it clear that the Applicant (Respondent) was not an apprentice with the Master Builders Association as at the date of injury of 30 April 2007. At the time of the injury on 30 March 2007 the Applicant (Respondent) had completed his apprenticeship and was employed by M J Baker at that time.”

The MBA submits that this evidence is of such probative value that there is a high degree of probability it would lead to a different outcome in the case if admitted into evidence. It further submits that if the evidence is not admitted it will result in substantial injustice to the MBA. Furthermore, it submits that the admission of the evidence will not cause any undue delay in the appeal proceedings, and that it should be admitted in the interests of justice, and consistent with the principles of procedural fairness.

Mr Allen’s submissions in objecting to the admission of the late document

In objecting to the admission of the late document into evidence in the appeal, Mr Allen submits that the Determination of the Tribunal, dated 13 March 2008, has no application in these current proceedings.

He submits that the issue that was being determined before that Tribunal was not who employed him at the time of injury (for the purposes of payment of workers compensation), but rather, it was a dispute about the obligations of the various parties under the apprenticeship regime.

He goes on to say:

“Further, a perusal of the evidence which the Tribunal noted when arriving at their decision indicates again that the issue being ventilated was the communication between the Master Buildings Association and Mr Allen.”

He submits that the document should also be disregarded on the basis that different rules of evidence would have been applicable and therefore the Commission should not be satisfied that the decision has any bearing on these workers compensation proceedings. He asserts that the determination does not adequately outline the nature of the evidence provided by any of the parties and is merely a very short summation of some of the evidence placed before the Tribunal.

Finally, he submits that the determination does not assist the Commission in relation to the proceedings before it, as it:

“appears to merely show that the apprenticeship between the Master Buildings Association and the First Respondent was suspended from a certain date due to a complications between [sic] the relationship between the Master Builders Association and Mr Allen. In no way does it assist the Commission with the issue of who employed Mr Allen as at the date of the accident and therefore the First Respondent submits the Application should be rejected as it is of no probative value.”

M J Baker’s submissions in objecting to the admission of the late document

In objecting to the admission of the late document, M J Baker cites Mayne Group Limited v Roberts Faulding Health Care Pty Limited [2005] NSWWCCPD 15 (‘Mayne Group’) at 39:

“A Presidential Member on appeal has a specific and limited role in the review of the decision of an arbitrator. The review is not a rehearing nor is the Presidential Member dealing with the matter do novo, nor is he or she arriving at a fresh decision based upon all the evidence available at a later time.”

It submits that section 39 of the Apprenticeship and Traineeship Act 2001 makes it clear that a complaint, that a party to an apprenticeship or traineeship has failed to discharge his or her obligations, may be made by an Industry Training Officer who is a public servant and also by a party to such apprenticeship or traineeship. Consequently, the MBA could have lodged such a complaint with the Tribunal and had it dealt with, prior to the hearing before the Arbitrator, which took place on 15 October 2007, “had the MBA acted with reasonable diligence in doing so.”

M J Baker further submits that there is no way of knowing whether the decision of the Tribunal is credible because the precise nature of the evidence before the Tribunal is unknown. It goes on to say:

“It is submitted that without examining the evidence before the Tribunal, which apparently included oral evidence, it cannot be determined whether the tribunal’s decision is credible. It is unknown whether precisely the same evidence was presented to the tribunal as was presented to the Arbitrator. It does appear however that the evidence before the Vocational Training Tribunal was different to that presented to the Arbitrator. For example on page 2.7 of the Tribunal’s decision there is the following reference:

‘It could not be established when or how the Master Builders Association of NSW first became aware that the apprentice had ceased to participate in work based training in hosting arrangements under their supervision.’
The evidence of Ms Underwood before the Arbitrator was that MBA became aware on the Tuesday before the accident (23 April) that the Worker had changed host employers. This evidence was apparently not before the Vocational Training Tribunal.”

M J Baker submits that there would not have been a different decision by the Arbitrator had the Tribunal decision been admitted at the arbitration hearing. The matter to be decided by the Arbitrator was, who was Mr Allen’s employer on 30 April 2007. This is a different matter to the one before the Tribunal, which was a complaint under section 39(1)(b) of the Apprenticeship and Traineeship Act 2001. M J Baker submits that whether or not an apprenticeship arrangement existed on 30 April 2007 is immaterial to the decision that was required to be made by the Arbitrator. It asserts that as at 30 April 2007 a contract existed between Mr Allen and the MBA in the form of a written document in evidence before the Arbitrator, pursuant to which Mr Allen was engaged as an apprentice contracted to the MBA, with the MBA as employer and the contract provided that same was binding on the MBA. Pursuant to that Mr Allen could only be terminated by mutual agreement between the parties, by reference to a hearing convened before the Apprenticeship Authority if Mr Allen absented himself from his place of work for an unexplained length of time, or if he failed to attend his TAFE course.

M J Baker submits that the decision of the Tribunal does not cancel the contract, which existed between Mr Allen and the MBA, but merely purports to suspend it. Consequently, the contract of employment remained substantially on foot, and the MBA remained Mr Allen’s employer as at 30 April 2007 as found by the Arbitrator.

M J Baker further submits that the foregoing “would lead to a conclusion that it is not just for the decision of the Vocational Training Tribunal to be admitted as evidence in the appeal.”

It also submits that, “a decision on appeal following the admission of the evidence sought to be admitted would be regarded as a decision based on evidence available at a later time contrary to Mayne Group”.

Determination of Application to Admit Late Document

The MBA was afforded the opportunity to make further submissions in response to the objections of the other parties, to its ‘Application to Admit Late Documents’, but did not do so.

At the outset, I should state that M J Baker’s submission referred to in [61] of these Reasons, misconstrues the relevant statement in Mayne Group. It has omitted the critical words “all of the”, from its submission, as highlighted below. The omission changes the meaning and emphasis of what was actually said in Mayne Group. The proposition that a Presidential member cannot take into account, and make a determination partly based upon fresh or late evidence properly admitted on appeal, is not correct. Clearly, a Presidential member has a statutory power to do so. However, a Presidential member in reviewing a decision already made by an Arbitrator, is “not arriving at a fresh decision based on all of the evidence available at a later time”, that is to say, he or she is not making a determination afresh, as in starting over again, upon a consideration once more of all of the evidence, including any fresh or new evidence that is later available. In a joint decision in Coal and Allied Operations, Gleeson CJ, Gaudron and Hayne JJ made the distinction:

“If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal, by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case for hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.”

The function carried out remains “a review of the decision appealed against”, whether or not fresh, additional or substituted evidence is admitted by leave (section 352(5) of the 1998 Act). Clearly, the Commission can receive further evidence in an appeal, in a proper case, by leave (section 352(6) of the 1998 Act).

The critical issue in this appeal (and before the Arbitrator) is whether the MBA or the Second Respondent, M J Baker was Mr Allen’s employer at the time of the injury, for the purposes of workers compensation. There is no dispute between the parties that workers compensation should be paid to Mr Allen and therefore, that a liability for payment exists.

The Court of Appeal in Haider v J P Morgan Holdings Aust Ltd trading as J P Morgan Operations Australia Ltd [2007] NSWCA 158 (‘Haider’) distinguished “fresh evidence” from “evidence in addition to or in substitution for the evidence received”. It said that a more flexible test should be applied to the latter. At [41] the Court said that the language of “Practice Direction 6 issued by the Commission”, as it then was, referring to “new” evidence appeared to reflect the conditions, which must generally be met before “fresh” evidence is admitted. It went on to say:

“However, to limit the admission of ‘new’ evidence to such circumstances is to ignore the fact that the statute expressly provides an alternative to ‘fresh’ evidence by express reference to ‘evidence in addition to or in substitution for’ the evidence received below. To apply a test such as that set out in the Practice Direction, although introduced by the amelioratory words ‘in general’, is apt to give rise to error by treating the discretion [to admit evidence in addition to or in substitution for, etc] as fettered in a way which it is not: see in relation to the use of the term ‘further’ evidence in s 75A(8) of the Supreme Court Act 1970 (NSW) as applicable in this Court, Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319; (2005) 55 ACSR 1 at [98]-[108] [(‘Aztech Science’)]. Further, it is to ignore the reduction of formality and technicality and the requirement to act according to equity, good conscience and the substantial merits of the case, as mandated by s 354(1)-(3) (see [15] above).” [The reference here is to section 354(1)-(3) of the 1998 Act].

New Practice Direction No 6, of 15 November 2007, omits any reference to “new” evidence and the term “fresh” evidence is invoked. The Practice Direction is now couched in more precise terms, except that the matters upon which the parties are required to make submissions on “further evidence on appeal” still “reflect the conditions, which must generally be met before ‘fresh’ evidence is admitted” contrary to the caution urged in Haider at [41] that this runs the risk of error “by treating the discretion [to admit ‘additional evidence’ as opposed to ‘fresh evidence’] as fettered in a way that it is not”. However, the general statement in the paragraph in the Practice Direction, immediately preceding the details to be provided in submissions, appears to qualify the matter to a degree by setting out the basis upon which an application to introduce “fresh” or “additional” evidence, will be considered in the Commission.

The Court of Appeal in Haider, cited Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 (‘Akins’) in pointing to the conditions that must generally be met before “fresh” evidence is admitted. Clarke JA said in that case (Sheller JA and Powell JA agreeing):

“Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”

In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 (‘Nowlan’) Haydon JA said:

“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”

Guidance as to the distinction between “fresh” evidence and what may be generally termed “further” evidence, into which category “evidence in addition to or substitution for …”, in section 352(6) falls, is found in Aztech Science. At [94] the Court recognized that a tax invoice tendered in the appeal, was “clearly relevant, as it demonstrates on-going conduct referable solely to the contract …”. The Court relevantly said at [95]:

“The question remains, however, whether it should be admitted. It is not fresh evidence in that it was not only available, but was in a form ready to be used, at the hearing before the primary judge.”

Referring to Nowlan, and to section 75A (7) and (8) of the Supreme Court Act 1970 which governs proceedings in the Supreme Court, the Court in Aztech Science per Basten JA said at 102:

“His Honour’s approach is no doubt a reflection of the fact that the provision [of the Supreme Court Act 1970] refers to ‘further evidence’, thus not obliging the Court to adhere to the fresh evidence test articulated in the first condition in Akins and an acceptance of the need for flexibility.”

The stricter test for admission of “fresh” evidence is explained in Aztec Science at [103], per Basten JA:

“The principles stated by Clarke JA in Akins may be sourced to the judgment of Dixon CJ in Wollongong Corporation v Cowan [1955] HCA 16; (1955) CLR 435 at 444, setting out the approach to be adopted under the general law on an application for a new trial on the ground of discovery of fresh evidence. Such cases were treated as exceptional, it being ‘essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice’. That case involved a challenge to a jury verdict following a trial for damages in negligence. As his Honour made clear, after discussing the cogency required of such evidence (at 447):

‘I speak upon the hypothesis that a verdict has been regularly obtained without any miscarriage at the trial and the application for the new trial is based wholly on the grounds that the subsequent discovery of fresh evidence demands a second trial.’”

In this regard, in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 476, Clarke JA said:

“The primary purpose for the rules pursuant to which cases are contested in this State is the furtherance of the interests of justice. For this reason the exercise of the discretion to allow an application to re-open depends essentially upon the trial judge’s view as to whether the interest of justice are served better by granting than refusing the application.”

In Naidu v Able Manufacturing Pty Ltd & anor [2007] NSWWCCPD 237 (‘Naidu’) Deputy President Roche said, referring to Haider and Nowlan:

“26.In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters the Commission must also keep in mind its statutory duty to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’ (sections 354 (3) of the 1998 Act).

33.Parties should be aware that the Commission’s practice and procedure require that all relevant evidence be exchanged before proceedings are commenced (section 290 of the 1998 Act and Part 10 of the Workers Compensation Commission Rules 2006 (‘the Rules’)). Arbitrators are not ‘a preliminary round’ (per Basten JA in Aztech Science v Atlanta Aerospace (Woy Woy) [2005] NSWCA 319 at [108]) and it is only in exceptional circumstances, in order to do justice between the parties, that fresh evidence or additional evidence will be allowed on appeal.”

Ultimately, the application must be determined according to the principles of substantial justice to the parties.

The issue of admission of fresh, late, additional or substituted evidence has been the subject of a considerable body of Presidential decisions in the Commission. See for example, Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7; Christopher Michael McMahon v Anthony Lagana and Joseph Lavelle (t/as the vessel “Nimble ll” [2003] NSWWCCPD 22 (‘McMahon’); M S Shipman Pty Ltd v Larry John Matters [2003] NSWWCCPD 19; K-Mart Australia Ltd v Duggan [2006] NSWWCCPD 137; Kahloo v Glenidle Pty Ltd [2006] NSWWCCPD 137; Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135; Gerene Nominees Pty Ltd v Pritchard [2007] NSWWCCPD 189; Naidu; Coles Myer Ltd v Gibson [2008] NSWWCCPD 18.

The late document in this matter, a Determination of the Tribunal dated 13 March 2008, is “fresh” evidence, as it did not exist and was not available on the date of the determination of the dispute by the Arbitrator.

M J Baker submits that the MBA could have lodged “its” complaint in the Tribunal against Mr Allen and had it dealt with prior to the hearing in this matter before the Arbitrator, “had the MBA acted with reasonable diligence.” It is not the exercise or enforcement of rights and obligations under the Apprenticeship and Traineeship Act 2001 that is of concern in terms of the “diligence” in the proceedings before the Commission, but whether or not the document sought to be tendered in the Commission was in existence and available, and could have been tendered at the time of the arbitral hearing. It was not. Specifically, the complaint before the Tribunal was brought by an Industry Training Officer in relation to alleged failures in the discharge of obligations under the apprenticeship agreement, pursuant to section 39(1)(b) of the Apprenticeship and Traineeship Act 2001, and not for the purposes of the proceedings in the Commission.

Without recounting the detail of the evidence that was given before the Arbitrator, it is clear that there were significant shortcomings in the communication and process between the parties in relation to Mr Allen’s “arrangement” with M J Baker. MBA, Mr Allen and M J Baker each suggest, apparently, that one of the other parties was, or ought to have been, attending to whatever was required to regularise the arrangement, or take whatever action may have been necessary and appropriate in the circumstances. In any event, Mr Baker and Mr Bulmer (Mr Allen’s first employer) were attempting to do something about the matter. The fact remains that the fresh evidence, in the form of the Tribunal’s Determination, sought to be tendered as a late document, did not exist at the relevant time, and therefore, could not have been discovered with reasonable diligence at the time of the proceedings before the Arbitrator (see McMahon; Radnedge v Government Insurance Office of NSW (1987) 9 NSWLR 235; Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80; BC200301878).

However, in order to ascertain whether the evidence is credible, and whether a high degree of probability exists that there would have been a different decision reached had the document been admitted in the proceedings before the Arbitrator, it is necessary to examine the nature and force of the situation that it represents.

I note that Mr Allen submitted to the Tribunal that he did not consent to any variation or suspension of his apprenticeship with the Master Builders Association of NSW, “due to concerns that this may compromise a pending legal matter.”

The Tribunal found fault with both the MBA and Mr Allen in terms of various breaches of their obligations under the “host employment arrangements” that were in place before Mr Allen physically went to work with M J Baker. These “host employment arrangements” were put into place by the MBA pursuant to the apprenticeship relationship between it and Mr Allen, and in accordance with the relevant legislation.

The Tribunal noted that Mr Allen had acquired all of the competencies of the trade and had been awarded the appropriation qualification “by NSW TAFE for the Carpentry and Joinery – General Construction (Framework/Formwork) trade vocation.”

The Tribunal made the following determination:

“1.That the apprenticeship between the Master Builders Association of NSW and Daniel Allen (TCID 1065374\1) be suspended effective from 23 March 2007, this being the last day of assigned host employment arranged by the Master Builders /Association of NSW and [sic] 13 March 2008 the date of the Vocational Training Tribunal’s determination of this matter.

2.That the apprenticeship training contract term between the Master Builders Association of NSW AND Daniel Allen (TCID 1065374\1) be varied to enable completion of the training term effective 13 March 2008 this being the date of the Vocational Training Tribunal’s determination of this matter.

3.Pursuant to Section 23 (1) of the Apprenticeship & Traineeship Act 2001 the apprenticeship term between the Master Builders Association of NSW and Daniel Allen (TCID 1065374\1) is completed and the apprentice has been awarded the appropriate qualification by a registered training organisation.

4.That the Commissioner for Vocational Training issue Daniel Allen a certificate of proficiency in the Carpentry and Joinery – General Construction (Framework/Formwork) trade effective from 13 March 2008.”

Suspension and cancellation of apprenticeships and traineeships may be made by the Commissioner for Vocational Training, by consent (section 22 of the Apprenticeship and Traineeship Act 2001). The Act sets out a procedure to be followed should one of the parties wish to suspend or cancel the apprenticeship, so that this cannot be achieved, unilaterally.

If a complaint is brought to the Commissioner by one of the parties to an apprenticeship or traineeship, the Commissioner, after attempting without success to achieve a settlement acceptable to each of them, must refer the complaint to the Tribunal (section 40 (2) of the Apprenticeship and Traineeship Act 2001). A complaint made by an industry training officer is to be referred directly to that Tribunal (section 40 (3) of the Apprenticeship and Traineeship Act 2001).

In the determination of a complaint, the Tribunal may, amongst other things, vary, suspend or cancel the apprenticeship or traineeship to which the complaint relates (section 51(1)(c) of the Apprenticeship and Traineeship Act 2001).

The Tribunal in this matter, suspended the apprenticeship from 23 March 2007 “being the last day of a particular “assigned host employment” arranged by the Master Buildings Association of NSW”, and at the same time, varied the apprenticeship training contract term to “enable completion of the training term effective 13 March 2008”.

The Tribunal did not cancel the apprenticeship between the MBA and Mr Allen.

The word “suspend” is defined by its various meanings in The Macquarie Dictionary Revised Third Edition, 2002 (The Macquarie Library Pty Ltd: Sydney), page 1892, including, “7. to cause to cease for a time from operation or effect, as a law, rule, privilege or the like” and “8. to debar, usually for a time, from the exercise of an office or function or the enjoyment of a privilege: a student may be suspended for a breach of discipline”.

The word “cancel” is defined in the same publication at page 285 as, “3. to make void; annul.”

The Tribunal determined that the “apprenticeship” was suspended, but that the term of the “apprenticeship training contract”, under which the apprenticeship was established, should be varied, effectively to extend it to 13 March 2008.

A reading of the words “suspend” and “cancel” in the context of the relevant legislation, does not appear to give rise to any meaning, other than their ordinary and current meaning. Absent any other indication, that is the meaning that I attribute to them (Seay v Eastwood [1976] 1 WLR 1117 at 1121; Cozens v Brutus [1973] AC 854; NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509 at 514, per Kitto J).

“Apprenticeship” is defined in the Dictionary of the Apprenticeship and Traineeship Act 2001 as “an apprenticeship established under Division 2 of Part 2.”

“Apprenticeship contract” is defined in the same Dictionary as “a training contract under which an apprenticeship is established.”

The Tribunal has the power to vary, suspend or cancel the apprenticeship. Given that the relevant legislation provides these alternatives, I note for the record that suspension is not synonymous with cancellation or termination of the apprenticeship. The Tribunal found that both the MBA and Mr Allen were in breach of their obligations under the Apprenticeship and Traineeship Act 2001, but made a determination varying the “apprenticeship training contract term”, which brought the legal relationship between the MBA and Mr Allen to a conclusion on 13 March 2008, but suspending the operation of the apprenticeship (but not disturbing the apprenticeship contract itself) from the last day of the “assigned host employment arranged by the Master Builders Association”.

No application was made for a transfer of the apprenticeship and no order was made to do so, under section 20 of the Apprenticeship and Traineeship Act 2001. No application was made to suspend or cancel the apprenticeship and no order was made to do so, under section 22 of that Act. The Tribunal’s Determination of 13 March 2008 to vary the duration of the apprenticeship contract, was made pursuant to section 21(3) of that Act, which sets out the action to be taken upon completion of apprenticeships and traineeships and the award of an appropriate qualification by a registered training organisation. The Tribunal’s Determination in varying the apprenticeship training contract term was to “enable completion of the training term effective 13 March 2008”. The Tribunal did not purport to determine the question of “employer” but, in accordance with its statutory powers, was dealing with a complaint about breaches by both parties, of the apprenticeship arrangements that existed between them. In any event, the Tribunal acted within the confines of the jurisdiction conferred upon it by its own statute, and had no jurisdiction to incidentally and retrospectively determine the liability or otherwise, of the MBA for the payment to Mr Allen of workers compensation, by reason of the workplace injury which he sustained on 30 April 2007.

I agree with M J Baker’s submission that the decision of the Tribunal did not cancel the contract. The contract itself remained on foot. By suspending, rather than cancelling the apprenticeship made under that contract, the Tribunal provided some direction to, and probably constraints upon, the parties retrospectively and prospectively for practical purposes, but it did not extinguish the underlying contractual agreement made between the parties, or the legal relationship to which that gave rise. The binding nature of this relationship is recognized in the letter dated 26 July 2004 from the Commissioner for Vocational Training to Mr Allen, in which the Commissioner stated, “The training contract will become binding from the end of the probationary period or from the date of this letter, whichever is the later, unless otherwise specified in your industrial award or agreement.” The scheduled completion date of the contract is stipulated as 3 October 2007. The letter goes on to explain that the training contract may be cancelled, suspended or transferred on the application of one party with the consent of the other.

The evidence of the parties, briefly referred to in the Tribunal’s Determination, is not before me and does not accompany the document that was sought to be introduced into evidence in this appeal.

The late document, being the Determination of the Vocational Training Tribunal, dated 13 March 2008 does not advance the MBA’s case and therefore, there exists little if any degree of probability that there would have been a different decision if that evidence had been available and admitted in the proceedings before the Arbitrator. Apart from the Determination itself, the document adds little to what is already relevantly known. That being the case, no injustice arises by reason of the late document not being taken into account in the determination of this appeal.

Nevertheless, I can find nothing that would actually prevent Mr Allen, should he have chosen to do so, from entering into a contract of employment with another employer, notwithstanding the existence of his apprenticeship contract at the relevant time, and up to 13 March 2008, by reason of the variation made by the Tribunal. Whether he did so, is the issue at the heart of the dispute between the parties in this matter.

I decline to admit the late document into evidence in this appeal, and the review of the Arbitrator’s decision of 18 October 2007 is undertaken on the basis of the evidence that was before him.

SUBMISSIONS, DISCUSSION AND FINDINGS

In this matter the MBA contends that at the date of injury, Mr Allen was a worker employed by M J Baker, the Second Respondent in this appeal, and that he sustained the injury during the course of that employment. It further contends that Mr Allen had in fact concluded a contract of employment with M J Baker, stating at [3.1] of its submissions on appeal, “Simply put, there was a clear intention to enter into legal relations between the Respondent worker and the Second Respondent.”

The MBA submits that the Arbitrator proceeded upon a number of agreed facts, including:

“1.1.The Respondent Worker entered an Apprenticeship Training Contract with the Appellant Employer on 6 June 2004.

1.2.The Respondent Worker initially performed work with L F Bulmer Building Services.

1.3.The Respondent Worker commenced performing work for Paul R Cigana Pty Ltd on 4 February 2005.

1.4.The Respondent Worker ceased performing work for Paul R Cigana Pty Ltd on 23 March 2007.

1.5.The Respondent Worker commenced performing work for M J Baker Constructions Pty Ltd on 26 March 2007.

1.6.On 30 April 2007 the Respondent Worker sustained injuries whilst performing work on a building site.”

Mr Allen agrees with MBA’s submissions as to these “agreed facts”.

M J Baker makes no direct response to the submission as to “agreed facts”, and presents all of its submissions in response to the grounds of appeal and submissions, as set out in MBA’s submissions on appeal.

MBA makes submissions as to “other factual matters”:

“2.1.The Appellant Employer undertook a Group Apprentice Scheme whereby apprentices such as the Respondent Worker were engaged by, and received training from, ‘Training Employers’: see Exhibit B2.

2.2.The Respondent Worker was an apprentice within the Group Apprentice Scheme: see Exhibit B1;E.

2.3.Both Training Employers with whom the Respondent Worker was engaged between June 2004 and March 23, 2007 were members of the Group Apprentice Scheme: see Exhibit B1; 3; 4; 10.

2.3.[Sic. Paragraph number repeated]. A Training Employer did not have to be a member of the Master Buildings Association of NSW in order to partake in the Group Apprenticeship Scheme.

2.4.Training Employers were required to abide by the Appellant Employer’s ‘Terms and Conditions’ with respect to the Group Apprenticeship Scheme: see Exhibit 3; F; 9.

2.5.Prior to being accepted as a Training Employer the Appellant Employer undertook an assessment of any prospective Training Employer so as to vary their ‘suitability’ – the focus of which [sic] the licence and trade qualifications and adherence to Occupational Health and Safety by the prospective Training Employer: see Exhibits C; F; 3; 5; 9.

2.6.At no relevant time was M J Baker Constructions Pty Ltd either a member of the Master Builders Association of NSW or a member of the Group Apprenticeship Scheme: see Exhibit 2R1; C; 9; 10.

2.7.In February 2007 the Respondent Worker contacted Sharon Underwood, the Appellant Employer’s recruitment Officer, and informed Ms Underwood that he was looking for a change of training employer. Ms Underwood included the Respondent Worker’s name on a roster of a premises looking for a new training employer. During the course of that telephone conversation Ms Underwood directed the Respondent Worker to stay with his current training employer until a transfer could be arranged: see Exhibit C and D.

2.8.On a number of occasions prior to the Respondent Worker ceasing work with Paul R Cigana Pty Ltd on 23 March 2007, Paul Cigana directed the Respondent Worker to inform the Appellant Employer that he was ceasing work with his training employer.

2.9.The Respondent Worker obtained his employment with the Second Respondent independently and without the knowledge of the Appellant Employer.

2.10.The Respondent Worker performed work continuously with the Second Respondent from 27 March 2007 until he sustained injury in the course of performing work with the Second Respondent on 30 April 2007: see Exhibit B; 2R1.

2.11.On 11 April and 24 April 2007 deposits of $1,000 were made from the Second Respondent into the Respondent Worker’s bank account: see Exhibit H.

2.12.At all relevant times the Respondent Worker knew that he was entitled to select a new training employer and was aware of the procedure to do so; that being, to inform the Appellant Employer of the desire to change training employers; to provide the Appellant Employer with the contact number of the prospective training employer either prior to ceasing work with the previous training employer or prior to commencing work with the new training employer: see Exhibit 9 and 10.

2.13.At no stage prior to suffering injury on 30 April 2007 did the Respondent Worker adhere to this procedure.

2.14.On 24 April 2007 the Appellant Employer was made aware by Laurie Bulmer that the Respondent Worker was performing work with the Second Respondent: see Exhibit D; Exhibit 10.

2.15.On 30 April 2007 when [sic] the Respondent Worker attended a building site at 34 Keleula Crescent, Kiama, as directed by the Second Respondent. Present on site was a director of the Second Respondent, Michael Errington and another carpenter ‘Dean’. Michael Errington directed the Respondent Worker to perform work including ‘nailing triple grips’ and ‘cleaning up scrap timber and throwing it into a skip bin’. In the course of performing those duties the Respondent Worker fell through an empty stairwell and sustained injury: see Exhibit B.”

Mr Allen indicates that he agrees with the “other factual matters” raised by the MBA, “save for the following paragraphs:-

2.11.It is agreed that the Respondent Worker received deposits from the Second Respondent but these payments were by way of a loan which were to be reimbursed. The Respondent Worker was not an employee of the Second Respondent: See Exhibit 2R1 at para 4.

2.13.The Respondent Worker informed the Appellant Employer that he desired to change training employers. See para 2.7 of the Appellant Employer’s Submissions.”

M J Baker makes no specific reply to the MBA’s submissions in regard to the “other factual matters”, as listed in MBA’s submissions on appeal.

Mr Allen makes submissions as to “additional factual matters”. He states:

“3.The Respondent Worker spoke to Lawrie Bulmer on 19 March 2007. See Reasons for Decision of Arbitrator p.4 [line] 49 and continuing through to p.5 [line] l5 which sets out attempts made by the Second Respondent to contact the Appellant Employer.

4.It was never the Respondent Worker’s intention to abandon his employment with the Appellant Employer.

5.The Appellant Employer was aware that the Respondent Worker was working for the Second Respondent as from 24 April 2007.”

Neither the MBA nor M J Baker has responded to these submissions as to “additional factual matters”.

The balance of the MBA’s submissions do not follow and address its specific grounds of appeal, but are made under headings:

·Existence of Contract of Employment between the Respondent Worker and the Second Respondent;
·The Respondent Worker was an Employee of the Second Respondent;
·Did the Worker Suffer Injury during the course of his Employment with the Second Respondent on 30 April 2007;
·Failure to Give Adequate Reasons;
·Relief Sought, and
·Costs.

Mr Allen’s submissions follow these headings, while M J Baker replies to the specific grounds of appeal listed in the MBA’s submissions on appeal, as to alleged errors on the part of the Arbitrator, accompanied by further submissions of its own.

Essentially, the core issue in dispute comes down to the question of who was Mr Allen’s employer for the purposes of payment of workers compensation, at the time of injury, and whether the Arbitrator erred in arriving at his decision in making an award against the MBA, on the basis that it was the employer at the time of injury.

Who was Mr Allen’s employer at the time of injury for the purposes of payment of workers compensation?
MBA’s Submissions

The MBA submits that as at 30 April 2007 a concluded contract of employment existed between Mr Allen and M J Baker, and that there was a clear intention to enter legal relations between them. It submits that consideration moved between both parties – Mr Allen performed full time work under the direction and control of M J Baker, while M J Baker paid Mr Allen “for his efforts”.

The MBA further submits that Mr Allen bore the onus of demonstrating that there was no such intention to create legal relations “and that onus is a heavy one: A. G. Guest Chitty on Contracts (26^th ed), London: Sweet & Maxwell, 1989, para 129”. It asserts that it is reasonable to infer from all of the facts that both parties intended to enter into legal relations.

It is further submitted that at the time of injury, Mr Allen was an employee of M J Baker. It states that section 4 of the 1998 Act defines “worker” as:

“… a person who has entered into or worked under a contract of service or a training contract with the employer (either by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, or whether the contract is oral or in writing.) …”.

The MBA goes on to submit:

“Since Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 [‘Stevens’] it has been held that ‘contracts of employment’ are not to be defined nor determined by any single test. Rather, the current test of the existence of a contract of employment requires the balancing of indicia in favour of an employment contract with those against the existence of an employment contract. While the classes of indicia is [sic] not closed, each matter determined on its own assessment, it is still the case that the ‘control test’ assumes significance but is not conclusive. As Wilson and Dawson JJ said in Stevens v Brodribb at 36:

In many, if not most, cases it is still appropriate to apply the control test in the first instance because it remains the surest guide as to whether a person is contracting independently or serving as an employee.”

The MBA submits that Mr Allen’s own evidence overwhelmingly demonstrates the indicia to ground the conclusion that as at 30 April 2007 he was a “worker” employed by M J Baker.

The MBA asserts that Mr Allen did not contend at any stage that he was not a “worker” who was employed by M J Baker on that date. It further submits that the Arbitrator accepted that position in finding:

“Mr Best has submitted … that clearly the Second Respondent was the person who was giving him the work on the day he was injured. The Second Respondent, if you look at all the indicia as to deciding whether a person is a worker or not, there can be no doubt within those indicia he was a worker and he was employed by the Second Respondent who had a workers compensation policy that would respond to the Applicant’s injuries and so all of that is true.”

The MBA states that there can be no doubt that Mr Allen suffered the injury in the course of his employment with M J Baker on 30 April 2007 and that he is entitled to an award “against that entity”. It asserts, “Neither the Respondent Worker, nor the Second Respondent, denied the premise that the Respondent Worker had sustained an injury in the course of his employment with the Second Respondent.” It went on to submit that Mr Allen and M J Baker erroneously asserted that as Mr Allen’s contract of employment with the MBA had not been terminated, that his contract of employment with M J Baker either did not exist, or should be construed as being under the umbrella of his training contract with the MBA. It submits that the finding to the effect that Mr Allen was injured while employed by the MBA rather than in the course of his employment with M J Baker is demonstrably wrong.

The MBA states that the Arbitrator was specifically requested to defer the delivery of his reasons for decisions, but he declined to do so. It submits:

“The reasons demonstrate the Arbitrator failed to appreciate the effect of his finding that the Respondent Worker had suffered an injury in the course of his employment with the Second Respondent and failed to properly exercise his statutory duty to fairly and lawfully determine the matter.”

The MBA submits that the Arbitrator’s decision should be revoked. It seeks an award in its favour with no order as to costs, and an award in favour of Mr Allen against M J Baker, with an order for M J Baker to pay Mr Allen’s costs as agreed or assessed. It also seeks an award of the costs of this appeal in its favour, against M J Baker.

Mr Allen’s Submissions

Mr Allen states that he at no time abandoned his employment with the MBA and at no time was there an intention to enter into legal relations between himself and M J Baker from 24 April 2007.

He submits that the MBA’s submissions at [3.3] (see [116] of these Reasons, above), are incorrect and do not relate to contracts of employment.

Mr Allen maintains that there is no inference from the facts that he ever intended to enter into a contract of employment and/or a legal relationship with M J Baker, nor at any time, abandon his apprenticeship. The intention to create or not to create legal relations is “objective”. He submits, in this case, “there was not a meeting of the minds nor any intention to create a legal relationship.”

He submits that the Arbitrator correctly found that at no time did he intend to terminate his apprenticeship (Arbitrator’s Reasons page 14, line 27 to line 40). He goes on to say that the Arbitrator correctly found that the factual situation, in which he was involved, did not in any way void the contract between himself and the MBA. He says that the Arbitrator accepted the evidence of M J Baker with respect to the payments made to him during the time that he worked for that organisation (Arbitrator’s Reasons page 15, line 45 to line 51).

Mr Allen submits that the Arbitrator had the benefit of considering all of the evidence and accepted M J Baker’s submissions. He notes that the Arbitrator also accepted that “there is a fairly relaxed manner in which the MBA conducted its business” in relation to signing of contracts (Arbitrator’s Reasons page 15, line 56).

Notwithstanding the MBA’s assertions that his own evidence demonstrated the indicia that he was a “worker”, Mr Allen submits that at no time was his contract with the MBA terminated or abandoned, nor did it expire. (Arbitrator’s Reasons page 16, line 45 to line 58).

Mr Allen further submits:

“The Arbitrator found that ‘In order to bring the contract to an end, a lot more needs to be required that [sic] a simple breach of a condition if that be it, not notified to the Applicant until it appears in the statement by Ms Underwood.’ (Reasons for Judgment p.17 [line] 1 to [line] 6). Further, the Arbitrator found that the Appellant Employer had not taken ‘the necessary requisite contractual steps to terminate the relationship.”

Finally, Mr Allen contends that the Arbitrator gave a comprehensive and thorough reasoning of all matters in issue; that he correctly determined that the contract of employment with the MBA had not been terminated, and that the apprenticeship had not been abandoned.

M J Baker’s Submissions

M J Baker responded by addressing each specific ground of appeal, as summarised hereunder.

Ground 1.1 – the Arbitrator misdirected himself as to the question for determination. M J Baker submits that the issue for determination by the Arbitrator was the identity of Mr Allen’s employer at the time of injury on 30 April 2007. He asserts that the Arbitrator made this quite clear “at T69.10”. He further submits that the MBA’s submissions “do not suggest otherwise.”

Ground 1.2 – Having found that Mr Allen suffered an injury in the course of his employment with M J Baker, the Arbitrator “failed to enter an Award against that party”. M J Baker submits that the Arbitrator made no such finding. He cites the Arbitrator’s finding at “T84.45”: “the applicant whilst (sic while?) injured whilst working for the second respondent was not working under a contract of service but was working under a training contract with the first respondent”. It submits that the Arbitrator’s earlier comments at T69.10-T69.25 were simply a paraphrasing of the submissions made on behalf of the MBA by its Counsel, together with an identification of the issues and did not constitute a finding of employment of Mr Allen by M J Baker.

Ground 1.3 – the Arbitrator misdirected himself as to the effect of the existence of the earlier contract of employment with the MBA. M J Baker submits that there was no such misdirection. He contends that the Arbitrator found that there was no contract of employment with M J Baker and that the sole contract of employment current as at 30 April 2007 was the contract between Mr Allen and the MBA. He says that there was consequently, no “earlier” contract of employment, and that the effect of the contract of employment with the MBA is clearly set out in the written document, and the Arbitrator has not misdirected himself as to the effect of that document. He states that the Arbitrator deals with this contract at T83.10-T84.50.

Ground 1.4 – the Arbitrator misdirected himself as to the relationship between the contract of employment with the MBA and the injury sustained by Mr Allen “in the course of his employment” with M J Baker. M J Baker submits that there was no such misdirection. It states that there was no finding by the Arbitrator of employment of Mr Allen by M J Baker. The Arbitrator found that Mr Allen was injured in the course of his employment with the MBA, and M J Baker submits that there was ample evidence to support this finding.

Ground 1.5 – the Arbitrator misdirected himself as to the effect of the notification by Mr Laurie Bulmer to the MBA that Mr Allen was working for M J Baker. It is submitted that MBA’s submissions do not address to what “effect” the Arbitrator was in error. The fact of notification itself is suggested by MBA to be “incontrovertible” (see paragraph 2.14 of MBA’s submissions on appeal). M J Baker submits that there is no suggestion in the Arbitrator’s Reasons that this matter was regarded as anything more than part of the factual matrix of the case before him.

Ground 1.6 – the Arbitrator erred in finding that there was a fairly relaxed approach by the MBA in getting work for apprentices. M J Baker submits that this “finding”, which appears at T81.15 was open to the Arbitrator on the evidence before him. However, it submits that this “finding” is not relevant to the issue to be determined by the Arbitrator, that is, by whom Mr Allen was employed at the relevant time.

Ground 1.7 – the Arbitrator erred by finding that there was a co-operative interplay between Mr Bulmer and Mr Allen. M J Baker submits that this “finding”, which appears at T81.35, was open to the Arbitrator on the evidence before him. However, it asserts that the MBA’s submissions do not address the effect this “finding” had on the Arbitrator’s decision. Again, this “finding” was simply part of the factual matrix of the case.

Ground 1.8 – the Arbitrator erred in accepting M J Baker’s account of what happened. M J Baker states that this is a reference to the Arbitrator’s comments at T 81.25, and submits that it is open to a tribunal of fact to prefer some evidence over other evidence. It further submits that the Arbitrator gave sufficient detail in his reasoning, particularly at T81.25-T81.55.

Ground 1.9 – the Arbitrator erred in not finding that Mr Allen had not abandoned his employment with the MBA. M J Baker submits that there was no evidence upon which the Arbitrator could have found that Mr Allen had abandoned his employment with the MBA. There was no evidence from Mr Allen that it was his intention to do so, nor were the facts such that this conclusion could reasonably be drawn. M J Baker further submits that Mr Allen’s evidence was that he intended to maintain his employer/employee relationship with the MBA under the apprenticeship scheme in which it was intended that M J Baker would be his training employer. It submits further that the MBA’s own actions over the period from 23 March 2007 (the date of cessation of work with Paul R Cigana Pty Limited) onwards do not suggest that the MBA itself regarded Mr Allen as having abandoned his employment with that organisation. M J Baker asserts that those actions are entirely consistent with an ongoing employer/employee relationship in the circumstances that existed at the time.

Ground 1.10 – the Arbitrator erred in posing the question as to whether the factual situation was such as to avoid the contract between the MBA and Mr Allen, and force M J Baker’s workers compensation policy to respond to the injury. M J Baker suggests that this appears to relate to the Arbitrator’s comments at T69.15, and submits that the Arbitrator posed no such question for determination. It says that in making this comment, the Arbitrator was simply paraphrasing the submissions made by MBA’s legal representative during the arbitration hearing. M J Baker states, “The transcript does not reveal that any objection was taken by the Appellant to this comment at the time of the hearing. In any event, the Arbitrator’s reasons when examined in their entirety make it clear that the Arbitrator and the parties themselves always regarded the issue to be determined to be which of the two respondents was the Worker’s employer as at 30 April 2007.”

Ground 1.11 – the Arbitrator erred in finding that Mr Allen was injured while working for M J Baker and was not then working under a contract of service, but rather, he was working under a training contract with the MBA. M J Baker submits that this finding appears at T84.45 and that there is no error on the part of the Arbitrator in so finding, being supported by the evidence.

Ground 1.12 – Inadequate Reasons. M J Baker states that it disputes the validity of the MBA’s submission. It submits that the Arbitrator is not bound to provide lengthy written reasons to comply with the 1998 Act and the Workers Compensation Commission Rules 2006 (‘the Rules’), as this would be unreasonable and inconsistent with the objectives of the Commission (Liverpool City Council v Trovato [2004] NSWWCCPD 15). M J Baker cites Rule 15.6, which sets out the matters that must be included in the Commissions Reasons. It asserts that the MBA’s submission is general in nature and does not refer to “specific matters of complaint”. It further asserts that the question for determination was “a straightforward discrete factual matter”. It submits that the Arbitrator’s reasons are adequate and comply with the requirements of the legislation and “with the Arbitrator’s obligations to set out with enough clarity the relevant findings on material questions of fact, the arbitrator’s understanding of the applicable law and the arbitrator’s application of the law to those findings: Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56.”

M J Baker disputes the MBA’s contention that there was a concluded contract of employment between Mr Allen and it, or that such an intention could be inferred from the facts. It submits that the evidence was insufficient to support this conclusion. It states, “The most detailed evidence as to the relationship between the Worker and the Second Respondent is contained in the statement of James Warren Baker and this evidence was accepted by the Arbitrator.”

It is further submitted that the only conclusion that can be drawn from this evidence is that there was never any intention on the part of Mr Allen or M J Baker to enter into an employer/employee relationship. Mr Allen’s record of interview with WorkCover is insufficient to support a conclusion that the parties intended to enter into such a relationship. M J Baker states, “the effect of the Worker’s evidence is that his intention was that there would be a continuation of the previous arrangements involving the MBA as his employer but with the Second Respondent as his ‘training employer’ under the Group Apprenticeship Scheme.”

M J Baker refers to the MBA’s submission that regard should be had to the common law tests in order to determine that Mr Allen was M J Baker’s employee. It submits that this submission ignores the factual circumstances between it and Mr Allen. It also ignores the fact that there existed a written contract of employment between Mr Allen and the MBA, which was on foot at all relevant times and which had not been terminated. It submits further that the submission also ignores the intention of Mr Allen and M J Baker. It contends that for the MBA’s submission to be correct “the position would be that under the Group Apprenticeship Scheme in all cases the apprentice would properly be regarded as an employee of the ‘training employer’ to the exclusion of the contractual arrangements involving the MBA.”

M J Baker also refers to the MBA’s suggestion that the Arbitrator was specifically requested to defer the deliver of his Reasons for decision, but he declined to do so. It states, “There is reference to this at T67.50-T68.30.” It submits that the submission made to the Arbitrator during the course of the hearing was that he should deliver a written decision because of previous experience involving difficulty in obtaining a transcript of oral reasons. It goes on to say, “It is also clear from the transcript that the Arbitrator considered this submission and he took a short adjournment to do so apparently so as to deliver ex tempore reasons and proceeded to do so. The Second Respondent submits that the delivery of ex tempore reasons of itself does not constitute a failure to give adequate reasons.”

Finally, M J Baker submits, “The Appellant again submits (at 3.14) that the arbitrator ‘failed to appreciate the effect of his finding that the Respondent Worker had suffered an injury in the course of his employment with the Second Respondent.’ The Second Respondent submits, as referred to in 2(b) above, that there was no such finding.”
Determination of the issue by the Arbitrator

The Arbitrator found, on the evidence before him, that the MBA was Mr Allen’s employer at the time of injury, for the purposes of payment of workers compensation.

The Arbitrator states at T69.10:

“The real question in this case is: Who is liable? Mr Best has submitted – Mr Best appearing for the first respondent, the Master Builders Association – that clearly the second respondent was the person who was giving him the work on the day he was injured. The second respondent, if you look at all the indicia as to deciding whether a person is a worker or not, there can be no doubt that within those indicia he was a worker and he was employed by the second respondent, who had a workers compensation policy that would respond to the applicant’s injuries, and so all that is true. The difficulty is, of course, that there is another contract in existence between the Master Builders Association, the first respondent, and the applicant, and the question for determination is quite simply as to which contract, if you like, responds. Both the first and second respondents have workers compensation insurance policies.
It’s necessary to look at the factual situation that occurred, although, as will be seen in the answer to the issue, is in the final analysis a matter of law.”

The MBA submits that this amounts to a finding by the Arbitrator that Mr Allen was injured in the course of his employment as a worker, with M J Baker. A reading of his statement, particularly in the context of noting what more the Arbitrator had to say in delivering his Reasons, verifies the accuracy of M J Baker’s assertion that the Arbitrator was essentially paraphrasing the submissions made on behalf of the MBA and identifying the “difficulty” and issues, as he saw them. His comments indicate that notwithstanding the presence of the indicia referred to, he understood that he was required to consider the actual nature of Mr Allen’s relationship with M J Baker, along with Mr Allen’s contract with the MBA and the effect of this if any, on his working arrangement with M J Baker. I agree that this does not amount to a finding.

The MBA also cites Stevens (See [118] above) in relation to the indicia of an employment contract. It submits that Mr Allen’s own evidence overwhelmingly demonstrates the indicia to support the conclusion that as at 30 April 2007, Mr Allen was a worker employed by Mr Baker. Putting aside Mr Allen’s evidence for the moment, it is noted that the indicia in favour of an employment contract are not themselves determinative of the question. As stated in Stevens, the indicia in favour of an employment contract must be balanced with the indicia against the existence of an employment contract. The “control test” which is said to be “the surest guide as to whether a person is contracting independently or serving as an employee”, while the most significant test, according to Wilson and Dawson JJ in Stevens, is not conclusive, either.

The critical finding of the Arbitrator is found at T84.47:

“The terms of the contract, in my view, indicate that the applicant whilst injured whilst working for the second respondent [M J Baker] was not working under a contract of service but was working under a training contract with the first respondent [the MBA].”

In the Arbitrator’s consideration of the dispute before him, the factors or indicia in favour of a contract of employment, and those that do not support such a contract but rather, support an employment arrangement under a training contract, were required to be taken into account and balanced, in order to arrive at a conclusion supported by the evidence, in which the indicia were enshrined, and the weight of that evidence. The Arbitrator’s analysis and reasons for decision are set out at T68 to T85, inclusive.

When interviewed by the WorkCover Inspector, Mr Allen stated that he was indentured with the MBA at the time he commenced working for M J Baker, although the MBA did not place him with that organisation. He said that when he left the training employer Paul R Cigana Pty Ltd to go to M J Baker, he attempted to contact the MBA. He said that he called the MBA “prior” and left a message. He was put through to the telephone of Ms Sharon Underwood, his contact person. She was not there to take the call and he left a message on her answering machine. The purpose of his call, according to him, was “I just wanted to ask them for some contacts with other builders.” Mr Allen went to work for M J Baker on the advice of his “first boss” Mr Laurie Bulmer.
Mr Allen states that he was a fourth year apprentice carpenter when he went to work for M J Baker. He said that he received wages from M J Baker, and that he was still indentured to the MBA, “but they were not aware of who I was working for. They would of thought I was still with Paul.” He said he had no discussions or correspondence with the MBA after he commenced work with M J Baker.

According to a note made by Ms Underwood, Mr Bulmer called her to arrange a time to meet for the purpose of discussing Andrew Bulmer, Mr Bulmer’s son, and Mr Allen. She suggested to him that they should meet on Tuesday 24 April 2007. On the appointed day, they did not meet in person because of the prevailing inclement weather but spoke on the telephone. Ms Underwood said that Mr Bulmer informed her that Mr Allen was working with M J Baker. Ms Underwood indicated that she had not heard from Paul Cigana, Mr Allen’s training employer who “would still be getting billed for Daniel.” She states that she had not heard from Mr Allen or M J Baker, either. Her note indicates that, as there was no indication that M J Baker would be employing Mr Allen through the MBA scheme, she concluded that Mr Allen had abandoned his apprenticeship with the MBA. However, Ms Underwood then said that on 30 April 2007, she went to the MBA office to make arrangements to meet with Mr Baker of M J Baker. She received a message on her mobile telephone from Mr Baker, informing her of Mr Allen’s accident. Ms Underwood further stated that Mr Allen had not given the two weeks notice that he was required to give to the MBA, and consequently, the applicable protocols to transfer to another training employer were not followed. Ms Underwood said that M J Baker had not used the MBA scheme before and is not a member of the MBA.

In her statement of 7 June 2007, Ms Underwood indicated that Mr Allen had approached her in February 2007, with a view to changing host employers. MBA had not found a new host employer for him between that date and the date of Mr Allen’s accident. Clearly, the MBA was aware that Mr Allen wished to change host employers.

Ms Underwood asked Paul Cigana why he had not notified the MBA that Mr Allen had left his employ. According to her statement, Mr Cigana said that he told Mr Allen several times to inform the MBA.

At T70, from line 70 the Arbitrator refers to and discusses much of the contents of a statement made by Mr Baker of M J Baker. Amongst other things, Mr Baker states that Mr Allen was not an employee of his company and is not recorded in the wages records of the company. He further states that Mr Allen was not entitled to the benefits of employment and the company paid no superannuation contribution for him. He said that his understanding of the arrangement was as follows:

“Daniel came to my company to work under the extension of his training and apprenticeship as a fourth-year apprentice carpenter, and he was indentured to the Master Builders Association of New South Wales. I understood I was to be a guest trainer to facilitate Daniel completing his apprenticeship through the Master Builders Association of New South Wales.”

He states that he took Mr Allen into his company on that understanding, following an approach to him by Mr Laurie Bulmer, Mr Allen’s first employer. He understood that notwithstanding that he was not a member of the MBA, “that the MBA were always looking for hosts and it wouldn’t be a problem to establish a relationship. I relied on Lawrie [sic] and Daniel to let the MBA know that Daniel was to transfer to me for completion of his training. I also relied on them letting Daniel’s current training, Paul Cigana, know what was happening in relation to a transfer. As far as I was aware, all that had been done by either Lawrie or Daniel.”

After speaking with Mr Bulmer, Mr Baker said that arrangements had been made for discussions about the matter to take place with Ms Underwood, upon her return from leave. Insofar as payments made to Mr Allen are concerned, Mr Baker said they were advanced by way of a loan to Mr Allen, pending the finalisation of arrangements with the MBA.

Unfortunately, events overtook all of this before the arrangements could be discussed with the MBA, with a view to finalisation, and Mr Allen sustained a serious injury in the workplace accident on 30 April 2007. However, before that point, Ms Underwood knew of the proposal in relation to Mr Allen’s training and apprenticeship requirements, and was involved at least in a preliminary way, in the process of changing host employers. She had known for some time that Mr Allen wanted to make the change.

Notwithstanding Ms Underwood’s stated assumption that Mr Allen had abandoned his apprenticeship, it is clear that a process of sorts, albeit not in strict accordance with the MBA’s usual requirements, was on foot to attempt to regularise Mr Allen’s employment with M J Baker, through the MBA, to whom Mr Allen was indentured. Indeed, there is no indication that Ms Underwood, on behalf of the MBA had at any stage declined to discuss the matter right up to the time of Mr Allen’s accident. Had Ms Underwood considered that his employment had been abandoned there would have been little or no point to her involvement in the discussions that were to take place.

It is also clear that the MBA did not progress this matter during the period of absence of Ms Underwood, on leave. In fact, there is no evidence that the MBA took any action to meet Mr Allen’s requirements at any stage, notwithstanding that it knew as far back as February 2007 that he wanted to make the change in the last stage of his four year apprenticeship, in order to gain better experience and competencies.

The process taken may have been inappropriate and indeed, in breach of various obligations. That is a matter for another jurisdiction, as discussed above. However, it is clear from a reading of the contract between the MBA and Mr Allen, and the provisions of the relevant legislation, that this did not terminate Mr Allen’s apprenticeship or extinguish the fundamental legal relationship between him and the MBA, pursuant to the apprenticeship contract.

I note further, a report from the Australian Trade Contractors (NSW) Service Pty Ltd to the MBA, dated 8 May 2007 that, following the completion of the first stage of its investigation into the “current status of Daniel Allen’s apprenticeship”, it concluded that Mr Allen remained an indentured apprentice to the MBA. Much of the information upon which that conclusion was reached, is the same as the evidence that was before the Arbitrator in this matter. Relevantly, the report states in part:

“Our concern is that the M.B.A. appears to be abandoning Daniel Allen and in addition refusing to accept Mr. Allen’s Worker’s Compensation claim.”

And further:
“Therefore it now appears that the M.B.A. was aware of Daniel Allen’s placement with another host builder.”

And finally:
“Laurie Bulmer arranged an interview for a position with M. J. Baker to enable Daniel to achieve a level of competency that was appropriate of a fourth year apprentice.

Daniel said ‘that I phoned the M.B.A. in February to let them know that I wanted to move employers’. On the 18^th of February 2007 M. J. Baker was nominated as the new host employer, your records will reflect at least one phone call on the 18^th of February to confirm this fact.

He has taken the initiative of finding a new host employer after many months of requesting to be moved without success. M. J. Baker was contacted several months ago and they believed that the matter was in hand and the paperwork would arrive safely when Ms. Underwood returned from holidays.
This would indicate that it would be folly for the M.B.A. to suggest that a loyal and dedicated apprentice would abandon his apprenticeship in the final six months of a four year indentured apprenticeship.
M. J. Baker wants to continue to assist Mr. Allen to finalise his apprenticeship when medical opinion agrees on the appropriate path to take.
With these initial findings we can not see how the M.B.A. can maintain its current position and we respectfully suggest that you revise your position in this matter to ensure the M.B.A.’s good name is not compromised in the event that Dan Allen is required to enforce his indentured rights.”

I also note that Mr Allen was considered by all concerned to be an excellent apprentice and this had been formally recognized. Indeed, the Arbitrator refers to the fact that Ms Underwood had decided to recommend Mr Allen for the award of Apprentice of the Year under the MBA national awards in his first year of employment. Furthermore, Mr Cigana, Mr Bulmer and Mr Baker all appeared to hold Mr Allen in high regard. I agree with the Arbitrator and others that it is highly unlikely that a committed and talented apprentice in the final stage of a successful apprenticeship would throw everything away by abandoning his apprenticeship at the eleventh hour.

It seems that the process for making the change was not handled well by most if not all concerned. However, that does not demonstrate that Mr Allen abandoned his employment.

I do not agree that Mr Allen’s own evidence overwhelmingly demonstrates the indicia set out in Stevens in the sense that he was employed under a contract of service by M J Baker. Moreover, the evidence of Mr Baker in which he describes the nature and practical aspects of M J Baker’s relationship with Mr Allen, and the process that was on foot, albeit proceeding somewhat clumsily and slowly, to cement the arrangement that was taking place, leads to the conclusion that Mr Allen was not employed by M J Baker. Mr Baker and Mr Bulmer were obviously endeavouring to conclude the matter with the MBA, with the knowledge of Mr Allen, for the purpose of regularising the arrangement. In my view, M J Baker was not Mr Allen’s substantive employer and the evidence suggests that it was never the intention that M J Baker should be anything other than a host, training employer. That was the very point of the discussions between Mr Bulmer and Mr Baker all along. Consequently, Mr Allen was not a worker in M J Baker’s employ, pursuant to the Workers Compensation legislation.

There appears to be nothing in the remainder of the evidence that was before the Arbitrator, which would lead to a contrary conclusion. The proposed change in hosting/training arrangements were not settled, but were obviously in a transitional stage. Action was in hand to regularise the situation. Mr Allen may be accused of being somewhat tardy in his efforts, but indications are that Mr Bulmer and Mr Baker were trying to get the matter “back on the rails”. This in itself does not relieve the MBA of its legal obligations to Mr Allen.

It is unnecessary to canvas in any more detail the evidence that was before the Arbitrator. The Arbitrator has undertaken a detailed and adequate analysis of the evidence. On the basis of that evidence and the weight of the evidence, the decision made by the Arbitrator was open to him. I find accordingly.

Specifically, I find that the Arbitrator did not err in finding that the MBA was Mr Allen’s employer at the date and time of the injury to Mr Allen.

Did the Arbitrator err in dealing with and determining the dispute, and in making an award against the MBA?

Referring to the MBA’s listed grounds of appeal, and having regard to the above, I find:

1.1.The Arbitrator did not misdirect himself as to the question for determination.

1.2.The Arbitrator did not find that Mr Allen suffered an injury in the course of employment with M J Baker (See [151] and [152] of these Reasons].

1.3.The Arbitrator did not misdirect himself as to the effect of the existence of the contract of employment with the MBA.

1.4.The Arbitrator did not misdirect himself as to the relationship between the contract of employment with the MBA and the injury sustained by Mr Allen “in the course of his employment” with M J Baker.

1.5.The Arbitrator did not misdirect himself as to the effect of the notification by Mr Laurie Bulmer to the MBA that Mr Allen was working for M J Baker.

1.6.Whether the Arbitrator was correct or not in stating as a general proposition, that the MBA had a “relaxed approach” in obtaining work for apprentices, there are indications in this matter that the MBA did not take practical steps of substance to secure alternative arrangements for Mr Allen in the final stage of his employment. In any event, these comments by the Arbitrator do not militate against the decision he made regarding the substantive issue, on the basis of the evidence before him.

1.7.The observation by the Arbitrator that there was a co-operative interplay between Mr Bulmer and Mr Allen does not appear to be particularly critical to the decision made. I agree with M J Baker that it is more a part of the factual matrix of the case, rather than a definitive finding. The evidence is that both Mr Bulmer and Mr Baker were attempting to regularise the arrangements, in the interests of Mr Allen and his wish to successfully complete his apprenticeship.

1.8.The Arbitrator did not err in accepting M J Baker’s account of what occurred in this matter, for the reasons he gave, based upon the evidence and weight of the evidence before him.

1.9.The Arbitrator did not err in finding that Mr Allen had not abandoned his apprenticeship/employment with the MBA. The process that occurred was far from desirable and appropriate, however it did not extinguish the legal relationship between the MBA and Mr Allen, which remained on foot, throughout, including as at the date of injury.

1.10.I do not consider that the Arbitrator erred in posing the question as to whether the factual situation was such as to avoid the contract between the MBA and Mr Allen, and force M J Baker’s workers compensation policy to respond to the injury. No finding was involved. In any event, had the MBA succeeded before the Arbitrator that would have been the result, for all practical purposes.

1.11.The Arbitrator did not err in finding that Mr Allen was injured while working for M J Baker and was not then working under a contract of service, but rather, he was working under a training contract with the MBA.

1.12.The reasons for decision given by the Arbitrator are clear and adequate, and he has discharged his lawful obligations in this regard. I agree with M J Baker’s submissions that the MBA has not provided specific detail under this particular ground of appeal, and the critical issue for determination was clear and was the basis upon which the dispute was “run” by each of the parties.

Finally, the MBA’s submission as to the Arbitrator being requested to provide a written decision and not to proceed to deliver an ex tempore decision was clearly related to concerns about the availability of a transcript at a later date. It had nothing to do with the contents of his decision or the substance of the matter before him. It is not a relevant consideration in this appeal.

CONCLUSION

The MBA has failed to demonstrate that the Arbitrator has erred in point of fact, law or discretion. I find accordingly. Consequently the appeal must fail.

DECISION

The appeal is unsuccessful. The decision of the Arbitrator dated 18 October 2007 is confirmed.

COSTS

The Appellant Employer is to pay the costs of appeal of the Respondent Worker and the Second Respondent.

Gary Byron
Deputy President
22 May 2008.

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE