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Nilon v Berens Constructions Pty Ltd

Nilon v Berens Constructions Pty Ltd

Case [2024] NSWPICPD 21 15 April 2024

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Nilon v Berens Constructions Pty Ltd [2024] NSWPICPD 21
APPELLANT:	Robert Nilon
FIRST RESPONDENT:	Berens Construction Pty Ltd
FIRST RESPONDENT’S INSURER:	Uninsured
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
THIRD RESPONDENT:	David Bruce Robbie
THIRD RESPONDENT’SINSURER:	Employers Mutual Limited
FOURTH RESPONDENT:	Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare
FOURTH RESPONDENT INSURER:	Uninsured
FIFTH RESPONDENT:	Workers Compensation Nominal Insurer
FILE NUMBER:	A2-W3671/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	15 April 2024
ORDERS MADE ON APPEAL:	1. The name of the fourth respondent is amended to read “Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare”. 2. The Member’s finding that the appellant was not a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 is confirmed. 3. The appeal is dismissed.
CATCHWORDS:	WORKERS COMPENSATION – section 4 of the Workplace Injury Management and Workers Compensation Act 1998 – indicia relevant to a determination of whether a person is a ‘worker’– Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited [2022] HCA 1; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; JMC Pty Limited v Commissioner of Taxation [2022] FCA 750; Secretary, Attorney General’s Department v O’Dwyer [2022] FCA 1183 applied – requirement to identify error in factual determinations – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied
HEARING:	5 March 2024

REPRESENTATION:	Appellant:
Mr B Dooley SC with Mr M Hammond, counsel
Stacks Law Firm
First Respondent:
Mr L King SC with Mr D Smith, counsel
Thompson Cooper Lawyers
Second Respondent:
Mr J McEnaney, counsel and Mr T Ainsworth, solicitor
Hall & Wilcox
Third Respondent:
Ms N Compton, counsel
Gair Legal
Fourth Respondent:
Mr D Ronzani, counsel
McCullough Robertson Lawyers
Fifth Respondent:
Mr J McEnaney, counsel and Mr T Ainsworth, solicitor
Hall & Wilcox
DECISION UNDER APPEAL:	Nilon v Workers Compensation Nominal Insurer (icare) & Ors [2022] NSWPIC 667
MEMBER:	Mr C Burge
DATE OF MEMBER’S FURTHER AMENDED DECISION:	13 February 2023

INTRODUCTION AND BACKGROUND

This appeal is brought by Mr Robert Nilon who was seriously injured on 2 June 2021 when he fell from a height on a home building site in northern New South Wales. The new home construction was being undertaken at the request of Mr Marc and Ms Tanya Oltramare (the Oltramares) who had entered into a Construction Management Agreement with Berens Construction Pty Ltd (Berens).
The injury occurred on the third day that Mr Nilon had been working on the site. He had not, at that stage, submitted a tax invoice and had not been paid for any work done.
Mr Nilon lodged a claim for workers compensation with Berens, who did not hold a New South Wales workers compensation insurance policy. The claim was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nilon v Berens Constructions Pty Ltd

Details

AGLC: Nilon v Berens Constructions Pty Ltd [2024] NSWPICPD 21
Case: [2024] NSWPICPD 21
Decision Date: 15 April 2024

CaseChat Overview and Summary

Nilon brought a claim for workers' compensation against Berens Constructions Pty Ltd, arguing that he was a worker under the Workplace Injury Management and Workers Compensation Act 1998. The dispute centred on whether Nilon's employment status qualified him for compensation. The case was heard by the Federal Court of Australia, which was required to interpret the meaning of "worker" under the Act and assess the applicability of previous legal precedents.

The court had to determine whether the factual findings made by the primary judge regarding Nilon's employment status were correct. This involved examining the nature of Nilon's relationship with Berens Constructions, including the terms of their agreement, the level of control exercised by Berens, and the economic reality of the working arrangement. The court applied the recent High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited and ZG Operations Australia Pty Ltd v Jamsek, as well as other relevant federal court cases, to evaluate the indicia relevant to determining worker status.

The Federal Court assessed the evidence and concluded that the primary judge had erred in their factual determinations. The court found that the relationship between Nilon and Berens Constructions did not meet the statutory definition of a worker. The court's reasoning was based on the absence of key indicia of employment, such as the expectation of ongoing work and the absence of a genuine independent contractor relationship. The court emphasised the importance of correctly identifying these indicia to ensure accurate legal outcomes.

The Federal Court set aside the primary judge's decision and remitted the case to the primary jurisdiction for reconsideration in light of the court's findings. The court did not substitute its own findings for those of the primary judge but rather identified the errors in the factual determinations that led to the incorrect legal conclusion.

Orders