Mohamed v Barnardos Australia Ltd
[2014] NSWWCCPD 81
•11 December 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Mohamed v Barnardos Australia Ltd [2014] NSWWCCPD 81 | ||
| APPELLANT: | Saadiyo Mohamed | ||
| RESPONDENT: | Barnardos Australia Ltd | ||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-1006/12 | ||
| ARBITRATOR: | Mr John Wynyard | ||
| DATE OF ARBITRATOR’S DECISION: | 25 August 2014 | ||
| DATE OF APPEAL DECISION: | 11 December 2014 | ||
| SUBJECT MATTER OF DECISION: | Worker; s 4 of the Workplace Injury Management and Workers Compensation Act 1998; deemed worker; Sch 1 cl 2 of the Workplace Injury Management and Workers Compensation Act 1998; injury | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Self-represented | |
| Respondent: | Kaden Boriss | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s orders found in Certificate of Determination dated 25 August 2014, for the reasons stated herein, are confirmed. 2. No order as to costs. | ||
BACKGROUND
Ms Saadiyo Mohamed worked as a carer, a position subsequently described as “educator”, between August 2007 and October 2011. That occupation concerned child care which was conducted at Ms Mohamed’s home in Auburn, a suburb of Sydney. Ms Mohamed alleged that, on 1 July 2011, she received injury to her back as she was lifting a child and fell to the ground. It was further alleged that back injury had resulted from the “nature and conditions” of her work. Ms Mohamed made a claim for workers compensation benefits against the respondent Barnardos Australia Ltd (Barnardos). That claim was declined by the respondent’s workers compensation insurer, following which the present proceedings were commenced in the Commission. I note that, for reasons which remain unexplained, Ms Mohamed’s solicitors elected to commence two separate applications before the Commission (matters 1006/12 and 7617/13). The first of those applications sought orders with respect to weekly compensation. The proceedings commenced in 2013, which claimed lump sum compensation, were consolidated by order of Arbitrator John Wynyard during the course of the part-heard application being conducted before him with respect to the first application.
Barnardos, upon receipt of Ms Mohamed’s claim, denied that she was a worker within the meaning of the workers compensation legislation and, further, denied the occurrence of injury. The matters were heard by the Arbitrator over a period of three days commencing on 24 October 2012, then 3 April 2013 and concluding on 11 June 2014. In addition to the hearing days, a telephone conference, which was recorded, was conducted on 18 July 2013. During the hearing the Arbitrator set a timetable for presentation by the parties of written submissions following which, on 25 August 2014, a Certificate of Determination accompanied by a Statement of Reasons for decision was issued. In the course of those Reasons the Arbitrator dealt firstly with the question of injury.
It is to be noted that a finding of injury occurring on 21 December 2011 was made by the Arbitrator. As stated by the Arbitrator, that date was at a time “when [Ms Mohamed] was no longer involved with [Barnardos]”. It appears that the Arbitrator had earlier found that Ms Mohamed had experienced symptoms in her back, but that such symptoms had resolved before her relationship with Barnardos ceased in October 2011. These findings are discussed more fully below.
Further findings were made by the Arbitrator that Ms Mohamed was not a worker within the meaning of the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and that Ms Mohamed was not a deemed worker within the meaning of Sch 1 cl 2 to the 1998 Act. The Certificate of Determination is in the following terms:
“The determination of the Commission in this matter is as follows:
1. There will be an award for the respondent.
2. No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Ms Mohamed brings this appeal against the Arbitrator’s findings and the orders noted immediately above.
PRELIMINARY MATTERS
Whilst Ms Mohamed was represented before the Arbitrator by Buttar, Caldwell & Co, solicitors, who briefed Counsel to appear on behalf of their client, Ms Mohamed has not had the benefit of legal representation since commencement of this appeal and now appears unrepresented.
Thresholds
There is no dispute between the parties that threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
On the papers
Section 354(6) of 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.”
Having regard to Practice Directions Nos 1 and 6, and the documents that are before me, 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.
FACTUAL BACKGROUND
The Arbitrator had before him an enormous volume of documentary material which had been tendered by the parties. It appears that little attention had been given to order and relevance of that evidence. Oral evidence of Ms Mohamed and of Ms Rosemary Hamill, senior manager employed by Barnardos, was adduced at the hearing. Whilst there were a number of factual issues which were disputed as between the parties, there is much common ground concerning facts relevant to the nature of the relationship between Ms Mohamed and Barnardos. A proper understanding of the matters in dispute requires a familiarity with the factual background concerning the dealings, to use a neutral term, between Ms Mohamed and Barnardos as well as a comprehension of the system relating to funding under the Community Support Program which has been established by the Australian Government (Department of Education, Employment and Workplace Relations).
The federal government provides, relevantly, financial assistance to families who have a need for child care services. That assistance is known as “child care benefit” (CCB). The quantum of any CCB to which a family is entitled is determined by the government agency Centrelink. The family’s entitlement is “means tested”, that is, the family’s income is taken into account when a determination is made of the amount of CCB to which it is entitled.
Having regard to the evidence of Ms Hamill it appears that, in general terms, the Federal Government Child Care Benefit Scheme undertakes the following matters:
“(a) Setting guidelines and national standards for family day care. This is under the Education and Care Services National Regulations and Care Services National Law;
(b) Family day care quality assurance systems termed “Early Years Learning Framework”, and
(c) Payments to parents as per entitlements under the Child Care Benefits Scheme.”
Administration of the Child Care Benefits Scheme is not conducted by the relevant government department, but rather is carried out by a number of “Agency Scheme/ Co-ordination units” of which Barnardos is one. It seems that a Funding Agreement is entered into between the Department of Education, Employment and Workplace Relations and any intending Agency Scheme/Co-ordination unit. Included among the documentation tendered on behalf of Barnardos is a copy of such Funding Agreement which has not been executed and which does not appear to be complete given that schedules referred to in that agreement, which apparently relate to the activity to be undertaken, are absent. That lengthy and complex document concerns the agreement between the Department and the entity wishing to administer the scheme and addresses a wide range of matters including the activity in question, funding, management of risk, method of determination of disputes and conditions relating to provision of child care services. Under the heading “Administration” it is relevant to note that the following conditions of the agreement appear:
“31 Negation of employment, partnership or agency
31.1You are not, by virtue of this Agreement, or for any purpose to be deemed to be Our employees, partners, or agents.
31.2You must not represent Yourself, and must ensure that Your employees, partners, agents or sub-contractors do not represent themselves, as being Our employees, partners or agents.”
That funding agreement contained particular conditions relating to “Specified Personnel” as follows:
“14.1 You must ensure that the Specified Personnel, if any, listed in item K of the Activity Schedule undertake activities on the Activity in accordance with the terns of this Agreement.
14.2 If Specified Personnel are unable to undertake activities on the Activity, You must notify Us immediately. You must, if requested by Us, provide replacement personnel acceptable to Us without additional payment and at the earliest reasonable opportunity.
14.3 We may give notice on reasonable grounds related to performance of the Activity requiring You to remove personnel (including Specified Personnel) from work on the Activity. If We do so, You must, at Your own cost, promptly arrange for the removal of the personnel from work on the Activity and their replacement with personnel acceptable to Us.
14.4 If You are unable to provide acceptable replacement personnel, We may terminate this Agreement under clause 31 [Termination for default].”
The term “Specified Personnel” is defined in that agreement as follows:
“‘Specified Personnel’ means the personnel (whether Your employees or subcontractors), or people with specific skills, specified in item K of the Activity Schedule as personnel required to undertake the Activity or any part of the work constituting the Activity.”
Barnardos were at all relevant times a Registered Charity and had, by agreement with the Australian Government been appointed as an Agency Scheme/Co-ordination Unit. That appointment required Barnardos to administer the Government’s Family Day Care Scheme. The evidence does not reveal whether Barnardos had undertaken the administration of any other similar scheme. As earlier noted the Funding Agreement which is in evidence does not have the Activity Schedules attached. The omission of these schedules is not explained. Barnardos were concerned with administrative functions which ensured compliance with relevant regulations concerning child care, as well as collating attendance records, obtained from the carer/educator, of individual children who attend for child care. These records were processed utilising a software package described as “Harmony”. The content of the attendance records having been processed through Harmony, provided data enabling payment by the federal government of all amounts outstanding to individual carers/educators, excluding any “gap” payment payable by individual parents. The evidence reveals that such “gap”, being the difference between the benefit paid and the actual charge made by the carer/educator, was payable in many individual cases.
Ms Mohamed becomes a carer/educator
In 2006, a friend of Ms Mohamed conducted a child minding centre. Ms Mohamed stated that she was interested in doing the same. She approached Centrelink seeking information, at which time she was referred to Auburn Municipal Council. The Council referred Ms Mohamed to Barnardos. A member of Barnardos staff advised Ms Mohamed to attend an information night which was conducted in late 2006 at the Barnardos office in Auburn. The child care scheme was explained, in general terms, to those present. Ms Mohamed informed Barnardos that she was interested in proceeding to become a carer.
Ms Mohamed commenced training for the role of carer in February 2007. The training was conducted part time over a period of two months by Barnardos at their office. Ms Mohamed was not charged for that training. At the conclusion of the training period Barnardos arranged for Ms Mohamed to attend a first aid course conducted by Medlife at Parramatta.
At the conclusion of those training courses a person from Barnados visited Ms Mohamed’s home for the purpose of inspection to determine the suitability of the premises for child care and to conduct a safety check. Ms Mohamed was required to make a number of minor modifications to her premises including placing a small fence across stairs; placing coloured stickers on windows and sliding doors; installing child safety latches on all doors; installing child proof guard on hot water taps; placing a barrier in the kitchen, and was required to obtain a first aid kit.
Barnardos arranged for an inspection of the glass sliding doors and windows at Ms Mohamed’s premises to confirm that each was fitted with safety glass. Ms Mohamed was required to fill out forms provided by Barnardos concerning child security and police checks in relation to herself and her family. Those forms were returned to Barnardos and relevant checks were conducted. Barnardos arranged for Ms Mohamed’s attendance at a child protection training course which was conducted by the State Department of Community Services (DoCS). That training took place during April and May 2007. Ms Mohamed was required to provide Barnardos with a medical certificate from her general practitioner stating that she was fit and had no disability.
Ms Mohamed was thereafter provided with a number of forms and printed material by Barnardos concerning conduct of home-based child care. A written agreement headed “Barnardos Family Day Care Carer Agreement/Acceptance Contract” was executed by both Ms Mohamed and a representative of Barnardos. The introductory paragraph of that document (which appears in a copy tendered in evidence on behalf of Barnardos executed on 11 September 2010) is as follows:
“Barnardos Family Day Care Scheme registers care-providers to function in the professional capacity of providing quality home based childcare. As such, the quality of care the caregivers provide, the conduct of the children in their care, and that of the care-providers families, plus the general appearance of their homes, all reflect on the operation of this scheme.
All carers have a responsibility to familiarise themselves and comply with:
(1) The requirements of Barnardos Family Day Care Scheme as set out in the Scheme’s Policies.
(2) The Children’s Services Regulations.
(3) Family Day Care Quality Assurance Quality Practices Guide
(4) Any other Legislation, regulation or standard relevant to my position. This includes but is not limited to legislation relating to child protection, privacy, discrimination and occupational health and safety.”
The agreement contains 43 separate conditions which stipulate the obligations which the carer/educator accepts. Whilst the agreement as a whole is of particular significance when considering the nature of the relationship between Barnardos and Ms Mohamed, the following matters undertaken by Ms Mohamed should be noted:
“…
5. I will keep accurate and up to date records of the times and days the children attend and will co-operate with the office in lodging Time Sheets on the required day. Further I will ensure that parents initial the Time Sheets every day and specify the reasons for being absent from care.
…
7. I will not undertake the care of any additional children without consulting the Family Day Care staff, eg grandchildren, friends’ children, this includes school aged children.
8. I agree to allow Family Day Care staff access my home at any time whilst children are in my care. This includes, rest time, or after hours for the purpose of observing/working with the children and discussing with me the children’s progress for the purpose of offering me support, ideas, resources, etc.
9. As a condition of continued registration with FDC, I agree to allow entry to Barnardos FDC staff, Barnardos licensee or delegate, NCAC delegate and any officer of the Department to inspect my home during normal working hours in which the children’s service is being provided.
…
21. I agree to have Public Liability Insurance to a minimum of $10 million.
22. I give permission for Barnardos Family Day Care to give out my name, address and phone number to other care providers and for my photo to be displayed at the Family Day Care office and to be shown to parents.
…
26. I will notify the co-ordinator in writing at least two weeks prior to terminating my service as a care giver and also to the parents.
…
29. I give permission for the scheme to discuss my fee schedule and conditions to parents at enrolment interview.
…
31. I agree not to perform any other duties while supervising children.
…
41. I will notify the scheme in writing and also inform parents ahead of time of my intention to take a holiday break (2 weeks’ notice).”
Included among the documents provided by Barnardos to Ms Mohamed was a document headed “Managing your business” which included a statement that:
“Carers are self-employed. You own your own business but are required to work within the Scheme guidelines and government regulations. Being self-employed means that you are responsible for:
[the document makes reference to taxation, budgeting, record keeping, following regulations and guidelines, client service and maintenance].”
The evidence of Ms Patricia May Gibbs, program manager/nominated supervisor employed by Barnardos, established that carers/educators appointed under the scheme do not require individual licenses. Ms Gibbs stated that “Barnardos as agency scheme [sic] holds the required licensing for the childcare operations”. Barnardos tendered in evidence a copy of a Certificate of Approval issued by Barnardos as licensee to Ms Mohamed. That Certificate is dated 17 September 2010 and records that Ms Mohamed is approved “as a care provider to conduct a Family Day Care Home” at her premises in Auburn and that she was “authorised subject to Regulation to care for seven children under 12 years of age in total at any time”. That Certificate is the latest of a number of Certificates in similar form granted by Barnardos, the licensee, permitting Ms Mohamed to care for children at her premises.
Financial dealings between Ms Mohamed and Barnardos
The evidence before the Arbitrator concerning the financial arrangements between Ms Mohamed and Barnardos gave rise to conflict both within the evidence of Ms Mohamed herself and as between Ms Mohamed’s evidence and that of witnesses whose statements were tendered on behalf of Barnardos. In her first statement made on 22 March 2012, Ms Mohamed described arrangements concerning payment for her services as a carer as follows:
“17)I commenced operating in about July/August 2007. All the children for whom I cared were sent to me by Barnardos. At various times, some friends approached me to care for their children and I told them that I could not take them on and referred them to Barnardos. In some cases Barnardos made the appropriate arrangements and I started caring for such children.
18)I took care of an average of 4 to 5 children at once.
19)I never had control of the hours I worked. These hours were decided by Barnardos through arrangement with the parents.
20)I never billed the parents of the children I cared for. All billing was done by Barnardos and all payments of money were made to Barnardos.
21)Barnardos required me to keep timesheets for the children for whom I cared. I had to submit these timesheets to Barnardos every two weeks. I was then paid by Barnardos. The amount I was paid was based upon how many children I cared for, and for how long I cared for the each child in my home. I was paid by Barnardos one week after I gave the timesheet to Barnardos on every second Monday.
22)Whist employed with Barnardos Australia Ltd I was earning approximately $1,500 per fortnight.”
In a subsequent statement made by Ms Mohamed on 18 October 2012, Ms Mohamed stated the following concerning her duties as carer and the manner of payment for those services, as follows:
“16)I commenced operating in about July/August 2007. All the children for whom I cared for [sic] were sent to me by Barnardos. At various times, some friends approached me to care for their children and I told them that I could not take them on and referred them to Barnardos. In some cases Barnardos made the appropriate arrangement and I started caring for such children.
17)On average I took care of about 4 to 5 children at once.
18) Barnardos set the overall hours that I could be open. Then I would set my actual hours according to the hours that the parents needed.
19)Normally I did not bill parents for the care that I gave. Normally all billing was done by Barnardos and Barnardos would collect all the money and then pay me. However there were a few parents who were not receiving 100% Centrelink support. With these parents they would sign a timesheet recording the hours I cared for their child during the fortnight. I would then return the signed timesheet to Barnardos. Barnardos would then process these timesheets, pay me and send me a pay slip every fortnight. With these children, the payslip would show the difference that would need to be paid to me by any parent not receiving 100% Centrelink support.
20)Barnardos required me to keep timesheets for the children for whom I cared. I had to submit these timesheets to Barnardos every two weeks. I was then paid by Barnardos. The amount I was paid was based on how many children I cared for, and for how long I cared for each child in my home. I was paid by Barnardos one week after I gave the timesheet to Barnardos on every second Monday.
21)Whilst employed with Barnardos Australia Ltd I was earning approximately $1,500 per fortnight.”
When cross-examined Ms Mohamed stated that when working with Barnardos she could not accept the task of caring for a child “directly”. If she was approached directly, Ms Mohamed would send them “back to Barnardos because I say I work for that office and then you have to go there”. The evidence of Ms Mohamed, which was given through an interpreter, is somewhat confused, however it appears that Ms Mohamed stated in evidence that an hourly charge between $3.90 and $7.00 was made with respect to care of the children and that, when some complaint was made concerning the cost, Ms Mohamed “adjusted” the rate which was done by comparison to the charges of other carers. It was accepted by Ms Mohamed during the course of cross-examination that Barnardos obtained the child care benefit from the Commonwealth Government on her behalf. It was also agreed that Barnardos deducted a fee, as put in cross-examination, “for the handling of the paperwork”. In addition to the payment received through Barnardos, Ms Mohamed appears to have accepted, when cross-examined, that she received an additional amount by way of payment from parents of the children which represented the “gap” between the actual hourly rate and the amount of the CCB (T64, 24 October 2012). A receipt book relating to such payments was tendered by Ms Mohamed and marked Exhibit “J” (T27, 3 April 2013). I note that Exhibit “J” is not with the Commission’s papers. Its absence is unexplained.
A matter which is not in dispute is that Ms Mohamed had invariably, during the currency of her work as a carer/educator with Barnardos, filed taxation returns which stated that her income was derived from the conduct of a business activity, identified in those returns as “child minding (babysitting in the home)”. Ms Mohamed included in those returns details of gross receipts in respect of payment for her work as a carer/educator and claimed expenses which included the cost of electricity, insurance premiums, materials and supplies, printing and stationery and other sundry expenses. One expense claimed, which exceeded a sum of $5,000 per annum, was in relation to rent. In oral evidence Ms Mohamed agreed in cross-examination that she and her husband paid rent in respect of her premises and that Ms Mohamed claimed some of that rent as an expense incurred in her childcare business. Total expenses represented approximately fifty per cent of gross income.
The evidence of Ms Hamill established that Barnardos received from the federal government monies described as “an operational assistance” which was “in the form of a grant”. Ms Hamill stated in evidence that Barnardos charged “a separate levy” which is included in charges made in respect of the childcare services provided by Ms Mohamed.
In her written statement dated 23 April 2012, Ms Gibbs stated that the “days and hours” that carers are available to operate as a provider of home-based care and the number of children to be accepted “is not something dictated by the supporting scheme, although clearly any proposal would have to be reasonable in this regard and meet the current regulations”.
Ms Gibbs further stated that “Ms Mohamed generally sourced children from within the local Somali community and managed her own waiting list. When the children were due to commence care with Ms Mohamed’s service, these children were then registered through Barnardos as the support scheme”.
Ms Gibbs further stated:
“The educators set their own fees for the service they provide. In the Auburn area, this is currently between $5 and $6 per hour, per child. They are remunerated by the Federal Government child care benefit scheme as well as a gap payment, being the cost that the child care benefit does not cover. The child care benefit is paid electronically via Barnardos as the support scheme, to the educator. The gap payment is paid directly by the parent to the educator. Barnardos as the support scheme collects an administration fee amount of 50 cents per hour from the parent and 20 cents per hour from the educator.
The support scheme (Barnardos) does not deduct any form of taxation from the educator nor is there any entitlement by the educator to any form of paid leave or superannuation from Barnardos. Family Day Care educators are considered small business operators as is clearly explained to them.”
THE ARBITRAL PROCEEDINGS
The documentary evidence which was before the Arbitrator is noted by him at [15] of his Reasons. As earlier noted, Ms Mohamed and Ms Hamill gave oral evidence at the hearing.
It was Ms Mohamed’s case before the Arbitrator that she suffered continuing incapacity as a result of injury caused whilst employed by Barnardos. That injury had been occasioned by reason of the “nature and conditions” of her work, as well as a frank injury which occurred on 1 July 2011. Reliance was placed upon the opinion of Dr Khalid Aziz Qidwai, surgeon, who had provided a report tendered on her behalf dated 23 October 2012. The following diagnosis was noted by Dr Qidwai in that report:
“1. Soft tissue injuries affecting lumbo sacral spinal muscles.
2. Lumbar radiculopathy affecting right S1 nerve root.
3. Anxiety and depression.”
Dr Qidwai expressed the view that Ms Mohamed was “significantly incapacitated”. A whole body impairment by reason of injury to lumbo sacral spine was expressed as being 12 per cent.
Ms Mohamed argued before the Arbitrator that the relevant facts demonstrate that the relationship between herself and Barnardos was one of worker and employer. In the alternative it was argued that the evidence supported a conclusion that she was a “deemed” worker within the meaning of Sch 1 cl 1 of the 1998 Act.
The respondent denied the occurrence of injury and that Ms Mohamed was either a worker or “deemed” worker as alleged.
THE ARBITRATOR’S DECISION
The Arbitrator summarised the evidence relevant to the question of injury (between [22]–[49] of Reasons) and proceeded to state (at [50]):
“I am satisfied that [Ms Mohamed] has suffered an aggravation of her pre-existing disease condition, being spondylosis of the lumbar spine. That aggravation, however, for the reasons given above, I am satisfied occurred after 8 October 2011, when [Ms Mohamed] exited her contract with [Barnardos].”
The conclusion expressed by the Arbitrator noted immediately above was reached having regard to the Arbitrator’s assessment of the evidence concerning Ms Mohamed’s history of treatment prior to July 2011 as well as her recorded complaints made to those treating her between July 2011 and the cessation of her engagement with Barnardos in October 2011. I note that the Arbitrator had earlier recorded (at [7] of Reasons) the evidence of alleged injury on 1 July 2011 and that Ms Mohamed “had time off until Wednesday 6 July when she returned to work”. No express finding of injury on 1 July 2011 is recorded in the Reasons as stated by the Arbitrator.
The Arbitrator proceeded to consider, as stated by him, “the nature of the contract between [Ms Mohamed and Barnardos]”. The Arbitrator summarised the oral and documentary evidence (between [56]–[133]). Following a summary of submissions put on behalf of each party, and reference to relevant authority, the Arbitrator stated the following conclusions concerning the allegation that Ms Mohamed was a worker employed by Barnardos (between [177]–[180] of Reasons):
“The nature of the relationship whereby [Barnardos] is acting within the community support scheme for the Federal Government to my mind excludes [Barnardos] from being able to be categorised as an employer. The fact that [Barnardos] receives a levy for its services and that it employs its CDOs to enforce a high degree of control and oversight of [Ms Mohamed] operation are matters that of themselves might be thought to indicate an employer relationship. However, standing back from the individual indicia and looking at the arrangement as a whole, it lacks the essential element involved in an employer/employee relationship. Bromberg J touched on this at [201] in On Call. He said:-
‘… the employment relationship classically contains two parties. A worker who provides his or her labour and an entity that receives the benefit of that labour. In an employment relationship, labour (being a combination of time, skill and effort) is traded for remuneration…’
In this case the remuneration traded emanates from a third source, that is to say, the government. Whilst the terms of the Funding Agreement between [Barnardos] and the Federal government referred to above and exhibited in Exhibit 4 might be thought to evidence an intention between the contracting parties that [Barnardos] was to be considered independent of the Department, such a consideration is a contractual matter between them, and is of little weight in analysing the relationship between [Ms Mohamed] and [Barnardos].
I have referred to Part D of the Funding Agreement, which contains the specific provision that [Barnardos] is to provide workers compensation insurance ‘Where required by law.’ Although that phrase rather begs the question, it might be thought that prima facie where the respondent eschews as it does any suggestion of an employment or agency relationship with the federal government by agreeing to Part M of the Funding Agreement, that such a provision is an indication that workers compensation insurance ought to have been taken out by [Barnardos]. Nonetheless an arm’s length conclusion on all the evidence before me indicates that the nature of the contract between [Ms Mohamed] and [Barnardos] is not an employment contract.
The high degree of control that [Barnardos] exerts as indicated, arises by force of statute and the CDOs in carrying out their functions are again acting as agents under a scheme involving both the federal and state governments, for a scheme involving the care of children. It is hardly surprising that such a high degree of control would be mandated, but nonetheless, such an indicia cannot assist [Ms Mohamed] if she was not in fact providing [Barnardos] with any service.”
The Arbitrator proceeded to consider the question as to whether Ms Mohamed had, on the facts, established that she was a “deemed” worker within the meaning of Sch 1 cl 2 of the 1998 Act. The Arbitrator concluded that Ms Mohamed was not entitled to the benefit of the “deeming” provision as follows (between [182]–[185] of Reasons):
“There is no disagreement in this case that [Ms Mohamed] performed work exceeding ten dollars in value. However Mr Dodd submitted that the Carer Agreement showed no relevant contractual relationship. If necessary he submitted further that the terms of the exception within the parenthesis also disqualified [Ms Mohamed] from the benefit of the section.
For the reasons given above, I am not satisfied that although [Ms Mohamed] performed work [exceeding $10 in value], it was not pursuant to her contract with [Barnardos]. The Carer Agreement was not for the provision of services to [Barnardos]. It was to provide payment for those services by the parents through the Community Services Programme instituted by the Federal Government, which both parties agreed they operated under.
The ‘services’ in the Carer Agreement were provided by [Barnardos]. It provided services to [Ms Mohamed] in the form of the Funding Agreement with the federal government to process child care benefits, in consideration for which services; [Barnardos] was paid a levy.
[Ms Mohamed] was therefore not required to ‘perform’ work for [Barnardos] at all. She was required to comply with very strict and controlling contractual terms in order to have the benefit of this method of remuneration, but the work she performed was pursuant to her relationship with the parents whose children she was caring for.”
ISSUES IN DISPUTE
The submissions filed by Ms Mohamed in support of the appeal expressly challenge the Arbitrator’s finding concerning the issue of injury and the finding concerning her allegation that she was a worker. The documents which are before the Commission do not include any statement by Ms Mohamed as to the ground or grounds upon which reliance is placed. That omission to comply with the requirements of the relevant Practice Direction No 6 may be explained having regard to the fact that Ms Mohamed is self-represented. Such omission is not fatal to the appeal. The submissions which have been provided adequately demonstrate the bases upon which the Arbitrator’s determination is challenged.
As is noted in submissions filed on behalf of Barnardos in opposition to this appeal Ms Mohamed’s submissions do not include a challenge to the Arbitrator’s finding concerning the application of the provisions of Sch 1 cl 2 of the 1998 Act (deemed worker). Notwithstanding this omission, it is to be noted that on 19 November 2014, copies of written submissions which had been placed before the Arbitrator were forwarded to the Commission by Ms Samira Ibraham on behalf of her mother, Ms Mohamed. Those submissions were intended by Ms Mohamed, I infer, to be considered on appeal. Those submissions address, inter alia, the questions raised concerning the allegation, put in the alternative, that Ms Mohamed was a “deemed” worker of Barnardos.
Given the manner of presentation of the appeal, Barnardos have not addressed the matter of “deemed worker”. Notwithstanding that circumstance, the question is addressed below. As will be seen, I have concluded that the arguments as to “deemed worker” were without substance, hence consideration of those arguments has not affected the outcome of the appeal.
DISPOSITION OF THE APPEAL
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
I consider it appropriate to firstly consider the question as to whether the Arbitrator’s findings concerning the question as to whether Ms Mohamed was at relevant times a worker or a “deemed worker” demonstrate relevant error.
Worker
The term “worker” is defined in s 4 of the 1998 Act as follows:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However it does not include:
…[certain occupations, which are not presently relevant, are specified as being excluded].”
Determination of the existence or otherwise of a contract of service, that is between Barnardos as employer and Ms Mohamed as employee, requires a consideration of the evidence going to the degree of control that may be exercised by Barnardos over Ms Mohamed. That test must be considered together with those matters stated by Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens v Brodribb) (at 24, omitting footnotes):
“But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v. Federal Commissioner of Taxation; Zuijs’ Case; Federal Commissioner of Taxation v. Barrett; Marshall v. Whittaker’s Building Supply Co. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee”.
Other relevant matters were touched upon by Wilson and Dawson JJ in their joint judgment in Stevens v Brodribb when it was stated (at 36–37):
“The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.”
The High Court again had occasion to consider these principles when considering the distinction between a contract of service and one between principal and independent contractor in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Hollis) in which the plurality (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) stated as follows (at [39]–[40], omitting footnotes):
“In Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia [(1931) HCA 53; 46 CLR 41] , Dixon J explained the dichotomy between the relationships of employer and employee, and principal and independent contractor, in a passage which has frequently been referred to in this Court. His Honour explained that, in the case of an independent contractor:
‘[t]he work, although done at [the principal’s] request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.’
This statement merits close attention. It indicates that employees and independent contractors perform work for the benefit of their employers and principals respectively. Thus, by itself, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that this person is an employee. However, Dixon J fixed upon the absence of representation and of identification with the alleged employer as indicative of a relationship of principal and independent contractor. These notions later were expressed positively by Windeyer J in Marshall v Whittaker’s Building Supply Co [(1963) 109 CLR 210 at 217]. His Honour said 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 employer’s business, and a person who carries on a trade or business of his own’.”
Ms Mohamed placed reliance before the Arbitrator upon the authorities noted above, as well as upon the decision of Bromberg J in On Call Interpreters and Translators Agency Pty Ltd v Commission of Taxation (No 3) [2011] FCA 366; 279 ALR 341 (On Call Interpreters) in support of her assertion that the relationship between Barnardos and herself was one of employer and employee. His Honour in On Call Interpreters, when considering the “need to identify the true nature of the relationship” stated (at [190]—[191]):
“[190] The plurality in [Hollis] also emphasised that the substance or reality of the relationship needed to be identified. In that respect the plurality stated that the terms agreed between the parties are not of themselves determinative because parties cannot deem their relationship to be something it is not: at [58]. 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’: at [24]. The application of a practical and realistic approach by the majority in Hollis is discernible from the conclusions reached in that case, including that viewed as ‘a practical matter’ the bicycle couriers were not independent contractors (at [47]): and that it would be ‘unrealistic’ to describe those persons as other than employees (at [57]).
[191] In Damevski v Giudice (2003) 133 FCR 538; 202 ALR 494; [2003] FCAFC 252, Merkel J relied upon Isaacs J in Curtis [Curtis v Perth and Fremantle Bottle Exchange Co Limited [1914] HCA 21; 18 CLR 17] and the majority judgment in Hollis to apply the ‘real substance’ or ‘reality’ approach: see at [144] and [172]. In that case Marshall J applied a similar approach asserting the need to look ‘beyond and beneath the documents’: see at [77] and [78]. Wilcox J agreed with the reasons for judgment of each of Marshall and Merkel JJ.”
The Arbitrator’s reasoning concerning the alleged employer/employee relationship is noted at [38] above. Ms Mohamed argues that the reasoning of the Arbitrator, which was described in submissions as “specious”, demonstrates error of both fact and law. The thrust of the argument is that Ms Mohamed “having satisfied the common law test of determining whether or not [Ms Mohamed] was a worker, an analysis of the nature of the relationship between Barnardos and the federal government was not relevant or necessary” (submissions on appeal at 5.4).
Barnardos, in submissions on this appeal, seeks to support the Arbitrator’s reasoning by suggesting, as was argued before the Arbitrator, that “the relevant contract of or for service was between [Ms Mohamed] and the parents of the children” (submissions at [18]). It seems to be argued as a point of contention that the Arbitrator was correct in concluding that there was no contract of employment as alleged for reasons other than those expressed by him. The reasons identified were the Arbitrator’s acceptance (Reasons at [183]–[185]), in the context of “deemed worker”, of there being a contract between Ms Mohamed and the parents.
Consideration
It must be stated immediately that Ms Mohamed’s assertion that a finding was made by the Arbitrator that “the common law test” as to the existence of a contract of service was “satisfied” cannot be confirmed upon careful analysis of the Arbitrator’s somewhat confusing reasoning, including that relied upon where it was stated (at [176] of Reasons) as follows:
“Whilst the above indicia would indicate in these circumstances that [Ms Mohamed’s] profile was more akin to that of an employee due to the guaranteed nature of the remuneration through the federal government department scheme, difficulties arise when regarding [Barnardos’] role.”
I am of the opinion that the Arbitrator’s Reasons as noted at [38] above demonstrate error. Whilst it is difficult to discern the exact process of reasoning, it appears that no consideration had been given by the Arbitrator to the question as to the true nature of the agreement that undoubtedly existed between Barnardos and Ms Mohamed. Whilst reference is made to the “control” test and the various indicia which, as adopted from the judgment of Bromberg J in On Call Interpreters, might indicate the existence of a business (conducted by Ms Mohamed) the Arbitrator appears, as is argued by Ms Mohamed, to consider the nature of the relationship between Barnardos and the federal government as being in some manner determinative of the question as to whether Ms Mohamed was or was not a worker employed by Barnardos.
The Arbitrator’s approach, which demonstrates the application of the wrong test, constitutes error of law. The reasoning as expressed also, in my view, demonstrates error of fact given the conclusion stated at [180] of Reasons that Ms Mohamed “was not in fact providing [Barnardos] with any service”.
Having identified error it becomes necessary to determine whether the Arbitrator’s decision has thereby been relevantly affected. That question may be answered following an examination of the evidence.
The agreement between Ms Mohamed and Barnardos as evidenced by the document noted at [20] above plainly defines the terms concerning Ms Mohamed’s provision to Barnardos of child care services. Those terms, as seems to have been found by the Arbitrator, established that Barnardos exercised very considerable control concerning the manner in which the provision of those services was to be made. Such would, as observed by the Arbitrator, suggest that the relationship was one of employer/employee, but is not alone determinative of that question. It is instructive to consider, as did the Arbitrator, the observations of Bromberg J in On Call Interpreters concerning the “modern approach” to this question, as follows (at [204]):
“Despite the earlier preoccupation of the law with the degree of control exercised by the putative employer as defining an employment relationship, the modern approach is
multi-factorial. As the majority said in Hollis at [24] it is ‘the totality of the relationship’ which is to be considered. A range of indicia may be examined. Some will be more useful than others in some work arrangements but less useful in other work arrangements. Because of the multiplicity and diversity of work arrangements and the ingenuity of those fostering disguised relationships, there is value in a multi-factorial test which recognises that one spotlight will not necessarily adequately illuminate the totality of the relationship. Such an approach also involves what may be described as a ‘smell test’, or a level of intuition. The majority in Hollis (at [48]) described the notion that bicycle couriers were each running their own business as ‘intuitively unsound’.”The members of the Court in Hollis identified a non-exhaustive range of indicia which might be considered when determining the nature of an agreement concerning the provision of services. Those matters included the mode of remuneration; the provision and maintenance of equipment; the obligation to work; hours of work and provision of holidays; deduction of income tax; delegation of work; the right to dismiss; the right to have a particular person do the work; the right to dictate the place and hours of work and payment by the putative worker of expenses from his remuneration.
A consideration of these indicia does not, in my view, provide a clear cut indication as to the nature of the relationship presently considered. It is nonetheless clear that, despite the conflict in the evidence, Ms Mohamed had direct dealings with the parents of the children for whom she cared concerning, at least, the hourly rate payable, Ms Mohamed having agreed in evidence that rates were altered by her after negotiating with the parents (at T52, 24 October 2012) and had, on occasions, received the “gap” payment directly from the parents for which a receipt was issued. These aspects of the manner in which the agreement with Barnardos was performed lead me to conclude that, as represented to the taxation office, Ms Mohamed was indeed conducting a business. The services provided to Barnardos, I find on this appeal, were provided by Ms Mohamed as an independent contractor. In the circumstances the Arbitrator’s finding that Ms Mohamed was not a worker employed by Barnardos may be confirmed on this appeal. The Arbitrator’s finding concerning Ms Mohamed’s alternative argument concerning “deemed worker” remains to be considered.
Deemed worker
Schedule 1 cl 2 to the 1998 Act provides:
“2 Other contractors
(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
(b) (Repealed)
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.
(2) (Repealed)
(3) A person excluded from the definition of worker in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”
The Arbitrator’s findings concerning “deemed worker” are noted at [39] above. I have earlier found that the Arbitrator had erred in concluding that Ms Mohamed was not “providing [Barnardos] with any service”. The evidence established that Barnardos had been appointed as an Agency Scheme/Co-ordination Unit by the federal government department. The discharge of its obligations required that Barnardos secure the services, on terms dictated by the government, of persons such as Ms Mohamed to provide the service of child care. Those services were provided by Ms Mohamed, as I have earlier found, pursuant to a contract for services. Whilst Ms Mohamed had, as earlier found on this appeal, dealings with the parents of the children, the existence of any contractual relations between Ms Mohamed and the parents does not exclude the existence of contractual relations with Barnardos, as seems to have been determined by the Arbitrator.
The Arbitrator’s erroneous approach to the questions raised concerning “deemed worker” requires, again, examination on this appeal of the evidence to determine whether his determination of the dispute has been relevantly affected.
The submissions referred to at [41] above cite relevant authority including those earlier discussed in these reasons, as well as a Taxation Ruling (TR 2005/16) by the Australian Taxation Office, in support of a bluntly stated assertion that Ms Mohamed was either a worker or a “deemed” worker.
Ms Mohamed provided services to Barnardos between 2007 and 2011. I have earlier found that Ms Mohamed had direct dealings with the parents of children for whom she cared. Throughout that period Ms Mohamed accepted payment from the parents of the sum of the “gap” between the agreed rate and that recovered from the federal government in accordance with her agreement with Barnardos. Those dealings with the parents were relied upon by Barnardos in submissions before the Arbitrator as suggesting that the relevant contract was between Ms Mohamed and the parents. That argument appears to have been accepted by the Arbitrator given the finding made (at [185]) that “… the work [Ms Mohamed] performed was pursuant to her relationship with the parents whose children she was caring for”. That finding was made in the absence of any analysis of the true nature of the relationship between Ms Mohamed and Barnardos. Such finding again demonstrates error on the part of the Arbitrator.
I am of the opinion that the dealings earlier found to have been conducted by Ms Mohamed with the parents demonstrates not only, as earlier found, that Ms Mohamed was an independent contractor, but also that Ms Mohamed was at all relevant times performing work for Barnardos which was incidental to a trade or business regularly carried on by her in her own name. Accordingly, Ms Mohamed may not have the benefit of the deeming provisions: Sch 1 cl 2(1)(a).
The Arbitrator reached a similar conclusion, thus it may be seen that his determination of the dispute has not been relevantly affected by his findings noted above. His orders may, for the reasons stated, be affirmed on this appeal.
In the circumstances there is no need to consider the matters raised on appeal concerning the findings of “injury”. However should I be wrong in my conclusions, I consider it appropriate to briefly state my views concerning argument raised relating to that issue.
Injury
As earlier noted (at [37] above) the Arbitrator had made reference to the evidence concerning the alleged injury on 1 July 2011, however no finding concerning that allegation is to be found in his Reasons. The Arbitrator’s failure to address that issue constitutes error. Whilst the submissions on this appeal suggest a finding of injury was made, but “overlooked” by the Arbitrator, it is clear that no relevant finding, one way or the other, was made.
The evidence found in the clinical notes of the NAS Advanced Medical Centre, of which Ms Mohamed was a patient, corroborates the occurrence of a fall while lifting a child at home. Complaint was made by Ms Mohamed of low back pain. An entry is made on the day of that consultation, Monday 4 July 2011, of “nil radiation to leg”.
Ms Mohamed gave evidence that she had experienced back pain prior to the fall, for which she sought medical attention. Radiological investigation conducted in September 2010 demonstrated at L5/S1 “mild annular disc bulge abutting the anterior surface of the thecal sac with no foraminal narrowing.” I note that a CT scan dated 28 November 2011 demonstrated disc bulging at L4/L5 and L5/S1.
When cross-examined, Ms Mohamed agreed that following an absence from caring duties of “two or three days”, she returned to her usual duties. A certificate was issued by Dr Thakkar on 9 September 2011, it was agreed in cross examination, as to Ms Mohamed’s fitness for carrying out child care work. Ms Mohamed agreed that, following her discontinuance with Barnardos in September 2011, she immediately resumed similar duties with Amazing Family Day Care, an agency similar to Barnardos.
As noted by the Arbitrator, the medical certificates recording Ms Mohamed’s incapacity are dated December 2011 and later.
The material before the Commission establishes that Ms Mohamed has objective evidence to support her complaints of back pain. That evidence does not persuasively address the question of causation of that pain and disability. I reach that conclusion notwithstanding the evidence of Dr Qidwai and that of Barnardos’ medical expert witness, Dr James Powell, orthopaedic surgeon. The weight of the evidence of those experts must be cautiously assessed given that neither of those practitioners was informed of Ms Mohamed’s earlier history of back pain. I note in passing that Dr Powell had access to radiological studies of the lumbar spine dated 2007, 2010 and 2011 which, he stated “would suggest that [Ms Mohamed] had had difficulties in the lumbar spine from at least 2007 without significant advancement of radiological changes noted at L5/S1 from a CT scan of 2010 to a CT scan of 2011.”
Had there been a need I would, on this appeal, have concluded that Ms Mohamed had received injury on 1 July 2011, but that the state of the evidence was not sufficient to discharge the onus upon Ms Mohamed of proving incapacity as a result of the fall beyond 5 July 2011. The evidence does not support the allegation of injury resulting from the nature and conditions of her work.
In my view the appeal must fail. Appropriate orders appear below.
DECISION
The Arbitrator’s orders found in Certificate of Determination dated 25 August 2014, for the reasons stated herein, are confirmed.
COSTS
No order as to costs.
Kevin O'Grady
Deputy President
11 December 2014
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
4
0