McLean v Shoalhaven City Council

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	McLean v Shoalhaven City Council [2015] NSWWCCPD 52
APPELLANT:	Kenneth McLean
RESPONDENT:	Shoalhaven City Council
INSURER:	Self-insured
FILE NUMBER:	A1-6931/14
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	29 May 2015
DATE OF APPEAL DECISION:	2 September 2015
SUBJECT MATTER OF DECISION:	Deemed worker; cl 2 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998; alleged failure to give reasons; whether worker conducted a trade or business; whether work incidental to a trade or business; relevance of indicia of employment in a claim under cl 2 of Sch 1
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Slater and Gordon Lawyers
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s determination of 29 May 2015 is confirmed.

BACKGROUND

1. The appellant, Kenneth McLean, supplied a tip truck and driver to the respondent, Shoalhaven City Council (the Council), from the mid-1980s until his injury in 2013. On 2 August 2013, Mr McLean sustained injuries when his truck slid off Grahams Road at Barrengarry and down an embankment.

2. Mr McLean has claimed weekly compensation from 2 August 2013 to 2 August 2014, compensation for medical expenses, and compensation for permanent impairment said to have resulted from his injuries. The Council disputed liability on the ground that Mr McLean was neither a worker nor a deemed worker under the legislation.

3. Mr McLean’s case was and is that he was a deemed worker under cl 2 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and that he worked “on an almost exclusive basis” (emphasis added) for the Council under a Services Agreement (the Agreement). He did not allege that he was a “worker” employed by the Council under a contract of service. (The qualification that Mr McLean worked “almost” exclusively for the Council is significant and will be discussed later in these reasons.)

4. Clause 2(1) of Sch 1 of the 1998 Act provides:

   “(1) Where a contract:

   (a)     to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or

   …

   is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”

5. In Scerri v Cahill (1995) 14 NSWCCR 389 (Scerri), Bainton AJA (Kirby ACJ and Rolfe AJA agreeing) held (at 399D) that, to rely on cl 2 of Sch 1, an applicant must establish that:

   (1)     he (or she) was a party to a contract with the respondent to perform work;

   (2)     the work exceeded $10 in value;

   (3)     the work is not work incidental to a trade or business regularly carried on by the applicant…