McLean and Comcare (Compensation)

The Administrative Appeals Tribunal considered a claim for compensation for psychological injury brought by the applicant, Mr. McLean, against Comcare. The dispute centred on whether Mr. McLean was an employee of the Commonwealth, a Commonwealth authority, or a licensed self-insurer corporation at the time of his alleged injury, which occurred between October 2019 and February 2021. Mr. McLean was registered as a provider of therapeutic supports under the National Disability Insurance Scheme (NDIS), operating under his own Australian Business Number.

The Tribunal was required to determine whether a contract of employment existed between Mr. McLean and any of the entities covered by the Safety, Rehabilitation and Compensation Act 1988 (Cth). This involved assessing the objective circumstances surrounding the formation of any contractual relationship and applying established legal principles to distinguish between an employment relationship and that of an independent contractor. Key legal issues included the extent of control exercised by the putative employer, whether Mr. McLean was operating in his own business, and the presence of other indicia of employment or independent contracting.

In reaching its decision, the Tribunal applied principles derived from case law, including the importance of an evaluative judgment rather than a checklist approach. It considered factors such as the right to control how, where, and when work is performed, the extent to which the individual works in their own business, the provision of equipment, the creation of goodwill, and the mode of remuneration. The Tribunal found that Mr. McLean's registration as an NDIS provider, operating under an Australian Business Number, indicated he was conducting his own business. Furthermore, the conditions of his registration, while requiring adherence to certain standards, did not confer a right of control over the manner in which he provided his services. The Tribunal also noted the absence of typical employment indicia, such as income tax deductions or superannuation contributions, and that payments were made to him as a "vendor" rather than an employee.

Ultimately, the Tribunal was not satisfied that Mr. McLean was an employee of the Commonwealth, a Commonwealth authority, or a licensed self-insurer at any relevant time. Consequently, the Tribunal affirmed the reviewable decision, meaning his claim for compensation under the Act was not upheld on the basis of employment.