McKay v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McKay v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 273
APPLICANT:	Mark McKay
FIRST RESPONDENT: SECOND RESPONDENT:	Barry Nolan t/as B Wood Carpentry Workers Compensation Nominal Insurer (iCare)
MEMBER:	Paul Sweeney
DATE OF DECISION:	23 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; Claim for weekly compensation denied on the basis that the applicant was not a “worker” or a deemed worker within schedule 1 clause 2 of the Act; contract between applicant and first respondent entirely oral; Construction Forestry Maritime Mining and Energy Union & Anor v Personnel Contracting Pty Limited and UPVC Window Solutions Pty Limited v Workers Compensation Nominal Insurer (iCare) considered and applied; Held – on consideration of the contractual language and the mode of execution of the contract finding that it was a contract for services; finding that at the date of the injury the applicant was not “regularly carrying on a trade business” and was deemed to be a worker in accordance with clause 2; Malivanek v Ring Group Pty Limited considered and applied; finding that the first respondent was not insured against his liability under the Act; award for applicant against the first respondent noting that the second respondent is deemed to be the insurer of the first respondent by section 142A.
DETERMINATIONS MADE:	The Commission determines: 1. Amend the Application to Resolve a Dispute herein to add the Workers Compensation Nominal Insurer as a second respondent. 2. The applicant performed carpentry work for the first respondent from 15 September 2020 pursuant to a contract for services. 3. At the time of injury to his right hand on 1 December 2020 the applicant was deemed to be a worker employed by the first respondent pursuant to Schedule 1 cl 2 of the Workers Compensation Act 1987 (the 1987 Act). 4. The injury arose out of and in the course of that employment. 5. As a result of the injury the applicant had no residual earning capacity until 26 February 2021 and was partially incapacitated between 1 March and 31 March 2021. 6. At all material times the applicant’s preinjury average weekly earnings were $1,841.18 and during the period between 1 March and 31 March 2021 the applicant was able to earn the sum of $850 in some suitable employment. 7. At the time the injury the first respondent did not have a policy in respect of its liability to the applicant pursuant to the 1987 Act and the second respondent is deemed to be his insurer for the purpose of the claim pursuant to s 142A of the 1987 Act. 8. Order first respondent to pay the applicant weekly compensation as follows: (i) $1,749.21 from 1 December 2020 to 28 February 2021 pursuant to s 36, and (ii) $622.94 from 1 March 2021 to 31 March 2021 pursuant to s 37. 9. Order first respondent to pay the applicant’s hospital and medical expenses pursuant to s 60 of the 1987 Act. 10. Liberty to apply in respect of these orders.

STATEMENT OF REASONS

BACKGROUND

This is another case in which the primary issue in dispute is whether a carpenter engaged in the construction industry is a “worker” or an independent contractor who carried on a business in his own right. Mark McKay (the applicant) suffered a lacerating injury to his right middle finger while engaged in carpentry work on premises at 25 Calca Crescent, Forestville on 1 December 2020. As a result of the injury, he underwent medical and hospital treatment and was absent from his usual occupation as a carpenter for several months.
The applicant alleges that, at the time of the injury, he was employed by Barry Nolan who trades under the business name of all Carpentry (first respondent). Mr Nolan was not insured in respect of his liability to pay compensation to a worker pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act) at the date of the applicant’s injury. Accordingly, a claim was also made on the Nominal Insurer (second respondent) which, following a factual investigation, determined that the applicant was not entitled to compensation pursuant to the provisions of the 1987 Act.
By a notice pursuant to s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the Nominal Insurer stated that it did not accept that the applicant was either a worker as defined in s 4 of the 1998 Act or a deemed worker as defined in cl 2 of Sch 1 of the 1998 Act. The notice included the following:
“In determining this we note the following features of the arrangement that are indicative of a contractor arrangement rather than a worker arrangement:
·You had your own ABN
·You had your own business
·You invoiced BWood for the hours you worked
·You set your rate of pay
·BWood Carpentry did not pay tax in relation to the work you carried out
·BWood Carpentry did not pay superannuation in relation to the work you carried out
·You were not required to wear a uniform
·You provided your own tools and personal protective equipment
You have advised that you were directed on the hours of work by Barry Nolan. Mr Nolan has advised in section 141 notice dated 22 December that you selected your own days and times of work. Mr Nolan in his statement dated 8 January 2021 advised that you approached him in the week prior to your injury seeking to increase the rate of pay to $60 per hour, as your accountant advised you needed to pay GST and this was agreed.”

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

By these proceedings, the applicant claims weekly payments of compensation for the period 1 December 2020 to 1 June 2021 and an indemnity in respect of his medical and hospital expenses pursuant to s 60 of the 1987 Act. In accordance with s 142B of the 1987 Act, both Mr Nolan (the employer) and the Nominal Insurer were served with this application. While the Application to Resolve a Dispute (ARD) does not strictly comply with s 142B(1)(a) of the 1987 Act, it was accepted by the parties that this defect could be cured by an amendment to the pleadings.
When the matter came on for conciliation and an arbitration hearing on 14 March 2024, Mr Adhikary of counsel appeared for the applicant, Mr Craig, solicitor, for the first respondent and Mr Coombe of counsel, for the second respondent, the Nominal Insurer. I was informed by counsel during the conciliation conference that the parties were unable to resolve the threshold issue of whether the applicant was a worker or a deemed worker of the first respondent at the time of his injury. I am satisfied that the parties who were represented by experienced lawyers had ample opportunity to resolve the dispute but were unable to fashion a mutually acceptable agreement.
Unfortunately, much of the time allocated for the arbitration hearing was taken up with argument relating to the admission of documents which had been recently served. The documents attached to, at least, one of the Applications to Admit Late Documents (AALD) had been rejected by the Registry and were not before me. In due course, it was forwarded by email, and I heard argument in respect of the admission of a signed statement of Matus Monyok and a supplementary statement of the applicant both dated 11 March 2024. I ruled that both statements should be admitted into evidence.
As there was insufficient time to hear the submissions of each of the parties, I accepted their proposal that the matter should be determined on the basis of written submissions. I also ordered that the parties lodge under cover of an AALD the documents which were admitted over objection at the arbitration hearing on 13 March 2024. The submissions of the parties have now been received. I note that the first respondent submissions were prepared by Mr Stockley, of counsel.

EVIDENCE

The documents before the Personal Injury Commission (Commission) are as follows:
(a)    the ARD and the documents attached;
(b)    the Replies of the first and second respondents and the documents attached;
(c)    an AALD dated 8 March 2024;
(d)    a series of surveillance DVDs which were forwarded to the Commission on 8 March 2024;
(e)    an AALD dated 8 April 2024 and the documents attached, and
(f)    an AALD dated 29 April 2024 and the documents attached.
Prior to considering the submissions of the parties, I propose to compendiously record the meagre evidence in the case. What follows is not intended to be a comprehensive survey of the evidence. Rather, I set out the salient points so that the parties can understand the way in which the Commission has resolved their dispute.

Applicant

By his signed statement of 6 January 2021, the applicant says that, after completing high school in Northern Ireland, he obtained a “Certificate 3 in Carpentry and Joinery”. He says that, after coming to Australia, he worked with Mr Nolan at Millennium Carpentry “for 7 years from 2013”. They were both employees of that company.
The applicant continues:
“I kept in touch with Barry when he started his own business in early 2020 or late 2019. Millennium Carpentry did not have much work on earlier this year so I was interested to see if Barry had any.
I spoke to Barry in about September 2020 and he said he had plenty of work. He said that I could work for him until at least Christmas 2020 depending on how it went.
There was no written agreement between us. I had an ABN which I had obtained years ago when I was working with Millennium Carpentry. Barry told me to invoice him with whatever hours I worked.
I thought that I was Barry’s employee. We agreed an hourly rate of $55 an hour and that was it.”
The applicant states that he was not asked to provide proof of workers compensation. He said that he did not have a policy. He commenced work on 15 September 2020. Whilst his working hours varied, he “usually started at 6.30am and finished at 4pm”. He states that they usually worked 40 to 45 hours per week.
The applicant says that he worked every week “except when there were public holidays”. On one occasion, they did not work when it was wet.
The applicant continues:
“I only worked for Barry Nolan and nobody else for the 11 weeks until my accident.
At the end of each fortnight, I sent Barry an invoice of the hours I had worked. I emailed Barry the hours I had worked with every invoice. I have produced an example of this to the investigator.”
The applicant states that Mr Nolan did not deduct pay as you go (PAYG) tax or pay superannuation. He says that he provided his own tools including drills, saws, and hammers. However, Mr Nolan or the builder supplied all of the materials. The builder on the site on which the applicant worked was Kounga Projects which was “run by Nick Ballard and Ryan Senior”.
The applicant says that at the beginning of each week he would be told by Mr Nolan, Mr Ballard or Mr Senior what work needed to be completed that week. They would direct him to a different job if it needed to be completed on that day. Thus, he might be asked to quickly hang a door or fix a handrail.
The applicant continues:
“Barry (Nolan) was there most days supervising with one other tradesman, his brother Wes, on site. We were the only workers for Barry. I don’t know how many jobs Barry had going at any one time.”
The applicant says that whilst performing work on the site he performed a range of carpentry jobs “like stud walls, cladding, roof and sub-floor.”
The applicant says that during this period he did not employ other workers and, if he needed assistance, Mr Nolan’s brother or someone else on site would help him. He did not wear a uniform. However, he supplied his own boots, high vis clothes and personal protection equipment.
The applicant then records that he suffered injury on 1 December 2020 at the site managed by Kounga Projects at Forestville. He says that Mr Nolan had told him what to do that day “but was not supervising me when it happened”.

Mr Nolan

By a statement of 8 January 2021, Mr Nolan states that he met the applicant at Millennium Carpentry. He says:
“I was a subcontractor there and Mark worked there at the same time.”
He continues:
“I met Mark in Bunnings one day in early September 2020 and he said he was currently working for himself and doing a job in Bronte. I asked him if he was interested to work on a job with me for 6 weeks, he came back to me a few days later and said yes. He told me what he charged per hour.”
Mr Nolan recounts that Kounga Projects were looking for “two carpenters to work on a house in Forestville”. He says:
“I did not have a written subcontract with them. I had verbally agreed an hourly rate of $70 per hour for myself and another carpenter to work with Ryan Senior from Kounga Projects. We only had to supply our tools and our labour. I did not supply any materials nor did Mark. Kounga Projects supplied all the materials for every site we worked on.”
Mr Nolan recounts that he did not ask the applicant if he had any insurance in place. He says that he had assumed “he had his own given he was a sole trader like myself and required to take out his own insurance to cover his business activities.”
From 14 September 2020, the applicant started work at the premises at 25 Calca Crescent, Forestville, apparently a project of Kounga. Mr Nolan continues:
“Kounga only provided the materials for him to use. Ryan told us what to do. We worked off plans provided by Ryan and if we had any questions, we would ask him.”
Mr Nolan states that he paid the applicant $55 per hour. He would receive fortnightly invoices for the work which the applicant performed. He says that:
“I did not deduct any PAYG tax from the payments to Mark. I did not pay any superannuation on Mark’s behalf. There was no GST on his invoices to Barry Wood Carpentry.”
Mr Nolan states that the applicant worked on Kounga Projects building sites for 52 days in total. During the week before he was injured, the applicant told him that “he needed to now charge $60 per hour” as his accountant had told him he needed to pay goods and services tax (GST). That was agreed.
Following his injury, the applicant contacted Mr Nolan on 3 December 2020 and asked about claiming workers compensation. Mr Nolan told him that he did not think he was “my employee and my insurance would not cover him”.

Applicant’s supplementary statement

The applicant lodged a supplementary statement dated 12 March 2024 which responds to the surveillance evidence lodged by the respondent. As it is only concerned with the issue of capacity, I will not set out its contents. The applicant recounts that the activity depicted in the surveillance video was performed for two of his friends who had established a business, Wikloe. He says that he performed light work at a warehouse on 8 March 2021 primarily using his uninjured left hand. The work was performed as a favour to his friends. He was not remunerated for that work.

SUBMISSIONS

The submissions of counsel are in writing, and it is unnecessary to record each of their submissions. However, given the nature of the dispute, I intend to record below the primary thrust of counsel’s argument.
Mr Adhikary submitted that the Commission would accept that the applicant was either a worker or a deemed worker in accordance with cl 2 of Sch 1 of the 1998 Act at the time of his injury. He referred to the recent decisions of the High Court in Construction Forestry Maritime Mining and Energy Union & Anor v Personnel Contracting Pty Limited[1] and ZG Operations Pty Limited & Anor v Jamsek.[2]
[1] [2022] HCA 1 (Personnel Contracting).
[2] [2022] HCA 2 (Jansek).
Mr Adhikary submitted that the reasoning in Personnel Contracting and Jansek “pertained to specific Commonwealth legislation”. He submitted that the decision should be read in the light of the Fair Work Legislation Amendment (Closing Loopholes no. 2) Bill 2023 which received the Royal assent on 27 February 2024 and is to commence operation on 26 August 2024. It is not clear what flows from this submission.
Mr Adhikary also referred to the decision of Deputy President Snell in UPVC Window Solutions Pty Limited v Workers Compensation Nominal Insurer (iCare)[3] where it was held in the case of an oral contract, it may be necessary to consider the subsequent conduct of the parties to determine the terms of the contract. Thus, the question of whether the applicant was a worker, or an independent contractor involved:
“…a consideration of the traditional common law indicia … in order to ascertain the totality of the relationship between the parties”.
[3] [2023] NSWPICPD 11.
Relying on UPVC, Mr Adhikary submitted that the most important indicia was:
“…whether the person is an entrepreneur working in their own business or serving in the business of an employer.”
The applicant then referred to the reasoning of Bomberg J in On Call Interpreters and Translators Agency Pty Limited v Commissioner of Taxation (No. 3).[4] Addressing the indicia proposed by Bromberg J for determining what might constitute a business, the applicant submitted that the work he undertook for Mr Nolan did not involve him taking risks in pursuit of profits; engaging in a repetitive and continuous manner with purchasers of his services; or engaging others to carry out the work he undertook. Further, good will was not created by the work undertaken; the applicant did not promote a business to the public; and his tangible assets were limited to the tools and equipment that he used.
[4] [2011] FCA 386 (On Call).
The applicant submitted that there was no proof of “transactional systems” other than the issue of invoices in his carrying out the work. The work of carpentry, which the applicant undertook, did not manifest “sufficient skill” to suggest the pursuit of a profession or trade through a business. Finally, while the applicant may have been registered for GST purposes, this was not determinative of the issue when viewed “practically and having regard to the totality of the indicia referred to above”.
Mr Adhikari then considered the question of whether the applicant performed work in his own business or in the business receiving the work (the putative employer). He submitted that the payments that the applicant received were consistent with the remuneration received by an employee. The risks associated with the enterprise were borne by the first respondent and not by the applicant.
Secondly, the first respondent had the right to control and direct the way the applicant carried out his work. He was supervised by the first respondent or by the builder with which he had a contractual arrangement.
Thirdly, the work activity was held out as that of the first respondent who had entered the contractual arrangement to undertake the work.
Fourthly, the good will created by the business activity flowed to the first respondent.
In respect of the issue of deemed worker, the applicant referred to the reasoning of Dixon J in Humberstone v Northern Timber Mills[5] and the decision of the Presidential Unit of the Commission in Malivanek v Ring Group Pty Limited.[6] He submitted that:
“The Applicant did not carry out a business regularly and systematically. The only business which the Applicant undertook was pursuant to the employment contract with the First Respondent and he did not perform any work for any other persons during this time.”
[5] [1949] HCA 49 (Humberstone).
[6] [2014] NSWWCPD 4 (29 January 2014) (Malivanek).
The first respondent emphasised the note on the invoices submitted to him by the applicant, which stated:
“Note: by invoicing under my ABN number it is deemed that my classification is contracting work and I have the flexibility using my own discretion of movement upon notifying current working arrangements of my availability.”
The first respondent submitted that by paying the applicant on these terms, the first respondent “explicitly accepted them”. Otherwise, it was necessary to examine the conduct of the parties in the execution of their agreement to ascertain its terms. In this respect there were objective facts consistent with the first respondent’s case. These included the supply of tools, use of an ABN, the absence of PAYG tax instalments or the payment of superannuation. Mr Stockley suggested there was also a lack of supervision by the first respondent when the applicant was working on site.

The first respondent referred to the conversation that he alleged preceded the formation of the contract whereby the applicant said that he was “working for himself and doing a job at Bronte”. He also referred to the notes of Dr Ko, who recorded that the applicant was “full time carpenter, subcontractor”. Further, at the conclusions of the financial years 30 June 2020 and 30 June 2021, the applicant in his taxation return had described “his main business or professional activity as carpentry services under his own name”. He claimed a small business income offset of $1,000 and sought credit for $8,556 in PAYG income tax instalments.
In respect of deemed employment, Mr Stockley submitted that it was “impossible to escape the conclusion” that the work performed by the applicant was “incidental” to the trade or business described in his taxation returns.
The first respondent also addressed on the issue of the applicant’s preinjury average weekly earnings (PIAWE) arguing that it would be inappropriate in the circumstances to determine the applicant’s compensation by reference to the “gross revenue generated in his business”. Some allowance needed to be made to account for GST and, arguably, other deductions evident in the applicant’s taxation returns.
Finally, Mr Stockley submitted that the surveillance evidence suggested that the applicant appears to have been capable of building and carpentry work from the beginning of January 2021 and any award of compensation should be for a limited period.
The second respondent submitted that whilst the contract of employment between the applicant and the first respondent was not in writing, the following terms were evident:
(a)    the applicant was to invoice for hours worked at $55-$60 per hour;
(b)    the applicant’s invoices were provided with an Australian Business Number (ABN) of a business in the name of the applicant that pre-existed September 2020;
(c)    no tools or uniform were to be provided, and
(d)    the applicant was to be responsible for his own superannuation and taxation.
The second respondent also submitted that the evidence that the applicant asserted a business of “carpentry services” in his taxation returns was “telling”. In considering the indicia it noted that there was little control of the applicant’s work and that contrary to the applicant’s submission “carpentry is a skilled trade that can be a business”.
In respect of the issue of deemed worker, the second respondent noted that prior to being engaged by the first respondent the applicant had performed carpentry services under a business name as evidenced by his tax return dated 2020. This document demonstrated a business income of $30,100.
Finally, the second respondent made similar submissions to the first respondent in respect of the applicant’s PIAWE and his capacity.

SUBMISSIONS IN REPLY

The applicant described the submission that the work performed by the applicant for the first respondent was incidental to his trade or business as “misconceived”:
“This is because the focus of the enquiry is not upon whether the worker performed work for the First Respondent that was incidental to a trade or business, but whether, he undertook such a business for other customers that was incidental to trade or commerce at the time.”
The applicant emphasised that he did not perform work successively or concurrently for customers during his contract with the first respondent. The respondents were in error focusing on the industrial history of the applicant rather than the circumstances at the time the injury.
In respect of employment, the applicant submitted the respondents:
(a)    failed to recognise that the applicant’s taxation returns “did not do form part of the relationship” between him and the first respondent;
(b)    “downplayed” the evidence of control/supervision by the first respondent;
(c)    relied on the notation in the applicant’s invoice which was issued after the formation of the contract, and
(d)    relied on an entry in the notes of the applicant’s general practitioner which was “subjective” and must be viewed with considerable caution in accordance with the authorities.
The applicant also briefly addressed on the issue of PIAWE and capacity.

DISCUSSION AND FINDINGS

In On Call, Bromberg J proposed criteria which may assist in determining the nature of the contractual relationship between a person and the entity by which they are engaged. His Honour stated:
“The relationship is to be found not simply from the contractual terms agreed to but by the system operated thereunder and the work practices which establish the ‘totality of the relationship’.” (My italics)
That approach is inconsistent with the reasoning of the plurality of the High Court in Personnel Contracting and Jamsek. It is probably inconsistent with the ratio of those cases.
In UPCV Deputy President Snell referred to and approved the reasoning of Goodman J, in Secretary, Attorney-General’s Department v O’Dwyer,[7] who stated that the principles expressed in Personnel Contracting “apply with equal force to contracts which are not wholly in writing”. The judge continued:
“Thus, the fundamental task – the ascertainment and construction of the terms of the legal rights and obligations of the parties, rather than an assessment of the history of the relationship between the parties throughout the life of the contract, including the manner of performance of the contract – remains the same regardless of the form of the contract in question.”
[7] [2022] FCA 1183.
The “multi factorial test” associated with the reasoning of the High Court in Stevens v Brodribb Sawmilling Co Pty Limited[8] and the test involving the “own business/employer’s business” dichotomy are to be employed for the purpose of determining the terms of the contract. The many references in that case to competing indicia were not intended to widen the focus of the enquiry beyond those terms.
[8] (1986) 160 CLR (Brodribb Sawmilling).
As the parties recognised in their submissions, in some oral employment contracts it may be necessary to consider the manner of execution of the contract for the purpose of inferring its terms. It was accepted that the discussion in On Call, which is systematically dealt with in the reasoning in Malivanek, may be relevant for this purpose.
In Lendlease (Millers Point) Pty Limited v Barangaroo Delivery Authority,[9] Lindsay J said this:
“A contract is to be construed by reference to the intention of the contracting parties, objectively ascertained. The meaning of the terms of the contractual document is to be determined by what a reasonable person would have understood them to mean; that, normally, requires consideration not only of the text but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction: Toll (FGCT) Pty Limited v. Alphapharm Pty Limited (2004) 2019 CLR 165 at 179 [40] citing Pacific Carriers Limited v. BNP Paribas (2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]. According to the ‘objective’ theory of contract law, the legal rights and obligations of contracting parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions: Equuscorp Pty Limited v. Glengallan Investments Pty Limited [2004] HCA 55.”
[9] [2013] NSWSC 1848 at [228].
The difficulties of characterising contracts for the performance of work in the construction industry are compounded by two circumstances. First, many tradesmen work at different times as employees and as contractors while performing much the same work for similar remuneration. The applicant’s submission that a carpenter does not possess the requisite level of skill to carry on a business does not reflect reality. Secondly, many organisations require tradesmen, divers and sometimes labourers to possess an ABN and to submit invoices as a prerequisite to receiving remuneration, irrespective of the true nature of the contractual arrangement. Sometimes these arrangements may be mutually convenient.
The evidence of the conversation/s between the parties which gave rise to the contract is extremely scant. One suspects that the recording of these conversations in direct speech in the statement evidence may have assisted the parties and the Commission in characterising the contract. However, that entreaty is probably a lost cause. The applicant’s account of the conversation is limited to what he was told by Mr Nolan in September 2020. He records that he was told by Mr Nolan that he “had plenty of work” and that he could “work for him until at least Christmas depending on how it went”. He says that he was told “to invoice him with whatever hours I worked”.
I have recorded the respondent’s account of the conversation above. Relevantly, it included an assertion that the applicant said that he now was “working for himself”. This assertion, which was not contradicted, is important in construing the contract. Mr Nolan thought it suggested that the applicant’s manner of carrying on his trade was much the same as his and he would have insurance to cover an injury at work.
Plainly, it is for the tribunal of fact and not the parties to determine the nature of the contract. However, that task initially involves a consideration of the language used by the parties. The import of that language from the applicant’s perspective may be tested against his taxation returns the financial year ending 30 June 2020 and 2021. Mr Adhikary submitted that these returns were not relevant to the task of identifying the terms of the contract. I doubt that can be correct. They are relevant to the question of whether the applicant was carrying on a business at the time he entered the contract. The contents may go both to the context and to the reliability of the applicant’s evidence as to the formation of the contract.
The applicant’s taxation return for the financial year 2020 recorded total “business income of $112,109. In response to a request for the name of the the business and the ABN it records the applicant’s name and ABN. It also records that the applicant claimed a small business income offset. It records quite substantial deductions which neither party sought to analyse. It records a credit for PAYG tax. The latter item was completely unexplained in the evidence.
The applicant’s 2021 return refers to an employment termination payment on 11 September 2020 in the sum of $27,304 from which tax of $8,737 was withheld and recorded as “salary and wages type income”. Again, the significance of the termination payment, which is consistent with a period of employment, was not explored in the evidence or canvassed by the parties in their submissions. It also records income from business of $30,100.
The applicant’s contractual intention may also be tested against the invoices he submitted to the respondent which stated that the invoice was:
“For the supply of labour and materials for contract work including transport, phone, plant/machinery and Cbus” (my Italics)
The notation stared that his classification was “contracting work” which meant that he had some discretion as to “availability”. While the issue cannot be determined by the formulation of a tax agent, these matters are consistent with an initial impression that the contract was for services rather than one of service. I turn now to the indicia discussed in the caselaw.

Control

In Personnel Contracting the plurality stated that the multifactorial approach in Brodribb Sawmilling did not mean that the characterisation of relationship should proceed by “running down items on the checklist in order to determine a balance ticks and crosses”. Some understanding of the indicia may assist, but the factors identified in each case were not of “equal weight”. It is evident, however, from the reasoning of the judges that the right of control remains of the utmost important.
The applicant emphasised that he was subject to the first respondent’s control and supervision in that he was told where to go to perform the work, was supervised and his workmanship reviewed. I accept that there was a degree of control of the applicant’s work by the first respondent. The applicant and Mr Nolan sometimes worked together and sometimes at different building sites. Supervision was also undertaken by employees of Kounga Projects, the company with which Mr Nolan contracted to perform the work. Its employees undoubtedly checked the workmanship and told the applicant, and presumably Mr Nolan the jobs each were to perform.
The extensive case law addressing the test of control emphasises that it is the legal right to control that is critical. This includes the right to suspend and dismiss. It is difficult to draw any clear inference on these latter matters from the proven facts.

Taxation, insurance, sick leave, and holiday pay

Clearly, the parties agreed that the first respondent would not deduct tax and that that the applicant would only be “paid when he worked”. There was no provision for sick leave or holiday pay. The absence of these indicia tends to suggest a contract for service, although they may often be explained by ignorance. While the provision of workers compensation insurance by a putative employer is evidence of a contract for service, its absence can be explained by several different factors including ignorance and neglect, and I doubt that the absence of such insurance is of any real weight in the circumstances of this case.

Mode and manner of remuneration

I have discussed the form of the invoice provided by the applicant above. The applicant was paid at the rate of $55 per hour, and after consulting his tax advisor sought a further five dollars to offset the impact of GST on his earnings. An hourly rate is consistent with employment and a contract for services[10] depending on the other proven terms.
[10] See the discussion in JMC Pty Ltd v Commissioner of Taxation [2023 FCAFC 76.
The payment by invoice is probably consistent with a contract for services. Together with the registration of an ABN, the printing of invoices is one of the rudimentary aspects of establishing a business. But this mode of payment can also be unilaterally imposed by an employer. But there is no suggestion that is the case here or that the contractual arrangements were a sham as found by the High Court in Personnel Contracting. In some cases, invoices merely fulfill the function of recording the hours that a party to the contract has worked particularly if the contact involves casual work.

Tools and equipment

While the applicant provided his own carpentry tools, boots, and personal protective equipment the evidence in this case is that employees in the carpentry segment of the construction industry regularly provide their own hand tools. That is consistent with the Commissions experience in these cases. In the same way as the ownership and maintenance of bikes by the couriers in Hollis v Vabu Limited[11] was not compelling evidence of employment, the provision of tools in this case little to assist in the characterisation of the contract.
[11] [2001] HCA 44.

Own business/employer’s business

Many of the leading cases refer to the statement of Windeyer J in Marshall v Whitaker’s Building Supply Co that the distinction between an employee and an independent contractor is:
“…rooted fundamentally in the difference between a person who serves his employer in his, the employers, business, and a person who carries on a trade or business of his own.”[12]
[12] (1963) 19 CLR 210 at [217].
This statement was developed and systematically elaborated on by Bromberg J in On Call. At [217] to [220] of his reasons the judge set out indicia for consideration of the questions of what constituted a business and which business benefits from the performance of the economic activity the subject of the contract, in. As both parties referred to this reasoning and, as the applicant relied heavily on it in its written submissions, I set it out below (footnotes omitted):
“That analysis and an understanding of what constitutes a business and, in particular, a personal services business, suggests the following indicia for consideration in the ‘Is there a business?’ element of the totality test:
oDo the economic activities of the putative business involve the taking of risk in the pursuit of profits?: Gribbles at [39]; Hope v Bathurst at 9; Roy Morgan Research (2010) at [47]; Yaraka Holdings at [41] and [49]; Montreal v Montreal Locomotive Works Ltd [1947] 1 DLR 161 at 169; Market Investigations v Minister of Social Security [1968] 2 QB 173 at 184; Lee Ting Sang v Chung Chi-Keung (1990) 2 AC 374 at 382.
oDoes the putative business engage in a repetitive and continuous manner with purchasers of its services?: Hope v Bathurst City Council at 9; Hungier v Grace at 216-217; Puzey at [48]; Commissioner of Taxation v Sleight [2004] FCAFC 94; (2004) 136 FCR 211 at [48];
oDoes the putative business employ or engage persons other than the owner/operator to carry out its economic activities?: Stevens v Brodribb at 26 and 38;
oIs goodwill (name, brand, and reputation) being created by the economic activities of the putative business?: Hollis at [48]; Steven v Brodribb at 37; Roy Morgan (2010) at [46]; Re Porter; Re Transport Workers Union at 186;
oIs the putative business promoted as a business to the public through advertising or other promotional means? Hope v Bathurst City Council at 9; Abdalla v Viewdaze at [35]; Yaraka Holdings at [35];
oDoes the putative business have tangible assets such as buildings and equipment which are utilised to support its economic activities? Steven v Brodribb at 37; Gribbles Radiology at [39];
oDoes the putative business have the basic transactional systems that are common of a business of that kind? For instance: invoicing systems; standard rates and terms and conditions of trade; insurance coverage; payment and debt collection systems; appropriate financial records; budgeting or forecasting systems; business based arrangements with a bank or other financial institution: Hollis at [54]; Sweeney at [31]; Hope v Bathurst City Council at 9; Wesfarmers Federation Insurance Ltd v Stephen Wells trading as Wells Plumbing [2008] NSWCA 186 at [42]; Ferguson at 311;
oDo the services provided by the putative business involve the provision of labour of sufficient skill to be suggestive of the pursuance of a profession or trade through a business: Hollis at [48]; Stevens v Brodribb at 36-37; Yaraka Holdings at [51];
oAre the regulatory requirements of a business (including business name registration, taxation, GST and ABN registration and compliance) being met by the putative business?: Wesfarmers at[39]-[42];
Indicia as to Whose Business the Economic Activity is Being Performed In
The second element – ‘Whose business is the economic activity being performed in and for?’, raises the following indicia for consideration:
oDoes the provision of the economic activity provide an opportunity for profit and involve the risk of loss: Roy Morgan (2010) at [47]; Market Investigations at 185; Lee Ting Sang at 382; or is the payment made largely consistent with the remuneration that an employee would have received for providing the activity?: Hollis at [54]; Commissioner of Taxation v Barrett [1973] HCA 49; (1973) 129 CLR 395 at 405-407; Yaraka Holdings at [41] and [49];
oIn that respect and in relation to profit:
- to what extent is the reward for the provision of the activity negotiable and negotiated commercially?: Hollis at [54];
- to what extent does the putative owner/entrepreneur have the capacity to manage the activity so as to maximise the potential for profit?: Hollis at [58]; Roy Morgan (2010) at [47]; Market Investigations at 185; Lee Ting Sang at 382;
- to what extent is the agreed payment contingent upon the person providing a satisfactory result (i.e. are there financial consequences for poor performance)?: Roy Morgan (2010) at [47]; Yaraka Holdings at [49];
- who bears the risks associated with providing any equipment or assets required for the performance of the economic activity?: Hollis at [56].
·Does the putative business or the putative employer’s business control and direct or have the capacity to control and direct the manner in which the economic activity is carried out?: Hollis at [43]-[45], [49] and [57]; Stevens v Brodribb at 24 and 35-36; Roy Morgan (2010) at [49].
·Is the economic activity represented or portrayed as the activity of the putative business or that of the putative employer’s business?: Hollis at [50]-[52] and [57]; Yaraka Holdings at [43];
·To what extent is the person providing the economic activity integrated with the business receiving the activity?: Stevens v Brodribb at 26-27 and 35-36; Hollis at [57];
·To what extent is the person providing the economic activity financially self-reliant from, as opposed to, economically dependent upon or organisationally tied to, the business receiving the activity?: Re Porter: Re Transport Workers Union at 184-185. Exclusivity is suggestive of an employment relationship: Commissioner of Taxation v Barrett at 407. However, it does not follow that a person who provides casual or
part-time work to multiple purchasers is not an employee: Yaraka Holdings at [34] and [36]; Sgobino v State of South Australia (1987) 46 SASR 292at 308;
·Is the person providing the economic activity free to employ his or her own means (employees or contracted agents) to produce the activity or must that person personally perform the work?: Stevens v Brodribb at 24-26 and 38; Neale v Atlas Products (Vic) Pty Ltd [1955] HCA 18; (1955) 94 CLR 419at 425 and 428; Yaraka Holdings at [41]; and see [285] below;
·To whose business does any goodwill created by the economic activity enure?: Hollis at [48]; Stevens v Brodribb at 37; Roy Morgan (2010) at [46]; Yaraka Holdings at [52];
·In contracting to provide the economic activity has the person agreed to provide an outcome or result?: Neale v Atlas Products at 425; Roy Morgan (2010) at [42];
·To what extent is the person providing the economic activity doing so with his or her own tools and equipment?: Hollis at [56]; Sweeney at [32]; Roy Morgan (2010) at [41]; Yaraka Holdings at [37]-[40]; Market Investigations at 185; Lee Ting Sang at 382;
·If the person is providing their own equipment, to what extent can the person be directed in the management and control of that equipment?: Stevens v Brodribb at 26;
·Have the parties involved characterised the economic activity as that of the owner/entrepreneur being performed in and for that person’s business, or alternatively as part of the receiving business, and to what extent does that characterisation reflect the reality?: See [188] to [200] above.
219. Whether or not income tax has been withheld and whether annual, long service or sick leave is afforded are often also used as relevant indicators: Stevens v Brodribb at 37; Yaraka Holdings at [44]-[48]. It is not incorrect to have regard to these factors, but there are differing views as to the inference which should be drawn from such arrangements: Wesfarmers Federation Insurance at [40]-[42]. Reliance on these factors may involve circularity of reasoning particularly where these factors are based upon the self-assessed and objectively incorrect label that the parties have attached to their relations: see Hollis at [37] and Owens and Riley at 140. Further, it is necessary to appreciate that casual employees are not ordinarily entitled to leave or sick pay: Sgobino at 293 and 308; Yaraka Holdings at [50];”

Mr Adikhary stressed that only the first respondent bore the risks associated with the enterprise and stood to gain goodwill from its successful completion. The work which the applicant performed “was portrayed as the activity of the first respondent”. He was that the “entrepreneur” and the applicant stood in a subservient relationship to him.
Mr Stockley submitted that in the circumstances of this case it was little to distinguish the operations of the applicant and the first respondent. He argued:
“In the context of this case, that evaluation requires an assessment of risk and reward. The rewards to Mark were $55-$60 per hour gross. The risk was that his revenue was less than his expenses. His business assets were tools and motor vehicle.
But how was he different from the first respondent in that regard? Barry was working for an hourly rate. He was not outlaying money on materials. He supplied his own tools. To the extent that either man might have created goodwill, it could only have related to the quality of their craftsmanship and their reliability. Neither appeared to be conducting a business that could be sold. Neither was operating a business that could generate a profit. Each was simply seeking remuneration, in the sense used by Bromberg J at [211]. Neither was an entrepreneur in the sense discussed by his Honour. 25. The only difference between them was Barry’s existing relationship with Kounga and his role as an intermediary between it and Mark.”
In my opinion there is force in Mr Stockley submission. Both parties accepted that the first respondent was carrying on a business. He operated under a business name. But it is not evident that he promoted the business, possessed tangible assets, or complex transactional systems. It is not clear from the evidence whether the first respondent possessed a builder’s licence or merely subcontracted to building companies to perform aspects of their work. Both men provided their skill as carpenters to Kouga, which probably possessed the ultimate right of control over where they worked, what they did and the acceptability of their finished product.

Certainly, the first respondent contracted with Kouga “for two carpenters to work” on a house at Forestville. It is possible that this may have enabled him to obtain further work from Kouga. His evidence suggested that the contract was for two carpenters at $70 per hour which suggests the possibility that he earned more from the contract than the applicant. Was this profit or to cover overheads? Or was it simply to reflect his seniority or skills. The evidence does not permit any sound inference to be drawn on these matters.
The presence of the first respondent’s brother, Wes, on site possibly suggests that his business on site extended beyond the provision of two carpenters. However, the evidence does not address his contractual relationship with the first respondent and/or Kouga. These matters aside “economic activity” of the applicant and the first respondent did not appear to be clearly distinguishable.
Considering the contractual language in its context and the relevant indicia, I am not persuaded that the work performed by the applicant at the time of his injury was pursuant to a contract of service. His taxation returns and invoices also suggest that he was a carpentry contractor, and a consideration of the indicia is not inconsistent with that conclusion. The entrepreneur approach discussed in On Call offers little insight, as I have the distinct impression that at the date of the contract both the applicant and the respondent were operating a business through which they pursued their trade.

Deemed worker

Schedule 1, cl 2 of the 1998 Act is as follows:
“1) Where a contract--
(a)to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
The only dispute in this case is whether the work performed by the applicant for the respondent was incidental to a trade or business regularly carried on by him in his own name. The onus of proof that it was not is on the applicant. Again, the evidence is relatively sparse.
Clause 2 was systematically considered by Roche DP in Malivanek. It has been the subject of several appellate decisions including the decision of the Court of Appeal in Scerri v Cahill.[13] Mr Adhikary also referred to the reasoning of Mahoney JA in Wathen v AUT Holdings Pty Ltd[14] which was applied in Malivanek. The underlying principle is that a contractor who is engaged for indefinite or long duration to work exclusively for one entity may cease to regularly carry on a trade or business. He becomes dependent on the principal[15] or to use the language in Humberstone his relationship becomes “special and particular”. The relevant question is not whether the applicant carried on a business but whether he continued to carry on a business at the date of the injury.
[13] (1995) 14 NSW CCR 389.
[14] [1977] 51 WCR 1.
[15] Mills Workers Compensation 2^nd Ed. [105].
However, I do not understand Malivanek to prohibit a consideration of the applicant’s commercial or industrial history in determining whether he carries on a business in his own name. It must be relevant to the issue of whether the applicant performed work incidental to a trade or business at the time of his injury.
The first respondent submitted that given the applicant had described his business as carpentry in his tax returns it inexorably followed that the work of carpentry which he performed for the first respondent was incidental to that trade or business. While the taxation returns are clearly evidence that the applicant carried on trade as a carpentry contractor during the financial year of the injury they must be viewed in the context of the entirety of the evidence on the issue.
Aspects of the applicant’s commercial and industrial history are reminiscent of that of the contractor in Pasqua v Morelli Constructions Pty Ltd.[16] He had performed carpentry work for Millenium for many for years. When that work ran out, he sought other contract carpentry work. Unfortunately, the applicant led no evidence of what he did during this period. Mr Nolan was told that he was self-employed and working on a job at Bronte. Whatever the position, he was able to start working as a contract carpenter with the first respondent at short notice.
[16] [2009] NSW WCC PD 153.
It is accepted that while he worked for the first respondent he did not work elsewhere and did not employ labour. He carried out that work continuously for 11 weeks. He worked regular hours. But for the injury the work may have continued indefinitely. While all carpenters may be on the lookout for the next contract, it was not suggested that the applicant advertised or otherwise engaged with potential future clients during this period.
It is evident from the applicant’s commercial and industrial history that he was prepared to pursue his trade for long periods for a principal when the opportunity arose. His business was a rudimentary one which was placed in abeyance when he found stable work.
While the matter is not free from doubt, I have concluded on balance that the applicant has proven that he did not regularly carry on a trade or business at the time of his injury. To utilise the language of Mr Mills he was dependent on the first respondent at that time.
I appreciate that this conclusion may come as a surprise to Mr Nolan, who contracted with the applicant on the basis that he was self-employed. Neither man could be expected to know the deeming provisions of the Workers Compensation Legislation or its long history of interpretation by the courts.

Capacity

On 8 February 2021, Dr Sivakumar, the applicant’s treating hand surgeon removed the pullout suture from the applicant’s right middle finger. He reported that the applicant had a full range of motion and a well matured and integrated flap. He expressed the opinion that the applicant could return to light duties at the time of commencing strengthening exercises in two weeks or at the “three month mark”. The doctor stated that he would see him for the final time in six weeks. There is no compelling medical evidence after this date.
I have carefully reviewed the video evidence of the activities performed by the applicant between 8 January 2021 and the 17 April 2021. While it suggests that the applicant’s right hand was rapidly improving, as recorded by Dr Sivakumar on 8 February 20021, it does not prove that he had a capacity for work before that appointment. Bearing in mind the applicant’s supplementary statement, but relying primarily on the evidence of Dr Sivakumar, I accept that the applicant was incapacitated until 31 March 2021.
I am satisfied the applicant has established that he was totally incapacitated for work from 1 December 2021 to 28 February 2021. Thereafter, he was partially incapacitated until 31 March 2021. I have perused the records of the applicant’s general practitioner after that date, but they do not contain any meaningful references to the applicant’s hand injury. I am not persuaded that there was any incapacity for work resulting from the injury after the date.
Doing the best I can, I find that the applicant was able to earn the sum of $850 per week in some suitable employment as that term is defined in s 32A of the 1987 Act. I find that he was able to work in some segments of the retail industry or in light courier work on a full-time basis during this period.
I accept the first respondent’s formulation of the applicant’s gross earnings during his deemed employment it with it. Although they are incomplete, his invoices are the best evidence available on this issue. Accordingly, I accept that the applicant gross pre-injury earnings were $1,841.18 per week. Contrary to Mr Stockley submissions, absent proof of fraud, I do not believe that Sch 1, cl 6 of the of the 1987 Act enables the Commission to reduce the applicant’s gross earnings to reflect deductions made in assessing his net income.
Subject to granting liberty to apply in respect of calculations and in respect of the substance of the orders, I propose to find as follows:
(a)    amend the ARD herein to add the Workers Compensation Nominal Insurer as a second respondent.
(b)    The applicant performed carpentry work for the first respondent from 15 September 2020 pursuant to a contract for services.
(c) At the time of injury to his right hand on 1 December 2020 the applicant was deemed to be a worker employed by the first respondent pursuant to Schedule 1 cl 2 of the 1987 Act.
(d)    The injury arose out of and in the course of that employment.
(e)    As a result of the injury the applicant had no residual earning capacity until 26 February 2021 and was partially incapacitated between 1 March and 31 March 2021.
(f)    At all material times the applicant’s PIAWE were $1,841.18 and during the period between 1 March and 31 March 2021 the applicant was able to earn the sum of $850 in some suitable employment.
(g)    At the time the injury the first respondent did not have a policy in respect of his liability to the applicant pursuant to the 1987 Act and the second respondent is deemed to be his insurer for the purpose of the claim pursuant to s 142A of the 1987 Act.
(h)    Order first respondent to pay the applicant weekly compensation as follows:
(iii)$1,749.21 from 1 December 2020 to 28 February 2021 pursuant to s 36, and
(iv)$622.94 from 1 March 2021 to 31 March 2021 pursuant to s 37.
(i)    Order first respondent to pay the applicant’s hospital and medical expenses pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 273

23 May 2024