Nilon v Berens Constructions Pty Ltd - [2024] NSWPICPD 21

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 therefore assessed by icare, who investigated the claim and denied liability on the basis that Mr Nilon was not a “worker” within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) or a ‘deemed worker’ as defined in cl 2 of Sch 1 to the 1998 Act.
Mr Nilon commenced proceedings in the Personal Injury Commission (the Commission), nominating Berens as his employer, or in the alternative, the Oltramares, who also did not hold a New South Wales workers compensation policy. Mr Nilon also joined Mr David Robbie to the proceedings, who was an independent contractor on the site and had introduced Mr Nilon to the construction site. As neither Berens nor the Oltramares were insured for workers compensation, the Workers Compensation Nominal Insurer (the Nominal Insurer) was joined to the proceedings as the second respondent (in respect of Berens Constructions) and the fifth respondent (in respect of the Oltramares).
Berens, the Oltramares and Mr Robbie all denied that they had contracted with Mr Nilon to perform the work.
The dispute proceeded to arbitration in the Commission. A Member of the Commission issued a Certificate of Determination in which he determined that Mr Nilon was not a worker within the meaning of s 4 of the 1998 Act, but had contracted with Berens to do the work, and was a deemed worker of Berens within the meaning of cl 2 of Sch 1 to the 1998 Act.
Berens lodged an appeal (A1-W3671/22) (the Berens appeal), asserting that the Member erred in determining that Mr Nilon had contracted with Berens to do the work and in determining that Mr Nilon was a deemed worker within the meaning of the 1998 Act. Mr Nilon lodged this appeal on the basis that it was only necessary if the appeal brought by Berens succeeded and Mr Nilon was found not to be a deemed worker. Mr Nilon asserted error in the Member’s findings that Mr Nilon was not a worker in the employ of Berens or a worker in the employ of the Oltramares.
After the appeals were lodged, the Commission was advised that Mr Oltramare passed away on 13 April 2023. Probate was granted by the NSW Supreme Court to Ms Oltramare on 21 November 2023. The name of the fourth respondent in these proceedings and proceedings in A1-W3671/22, which had previously appeared as “Marc and Tanya Oltramare” was amended by consent at the hearing on 5 March 2024 to “Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare.”
Both Berens and Mr Nilon conceded in their appeals that there was no contract between Mr Robbie and Mr Nilon.
This decision is to be read with the inter-related decision in the Berens appeal, Berens Constructions Pty Ltd v Nilon [2024] NSWPICPD 22.

WHETHER THE APPEAL COULD BE DETERMINED ‘ON THE PAPERS’

For the reasons set out in the Berens appeal decision, I determined that it was appropriate and necessary to hear oral submissions from the parties, and both appeals proceeded to an oral hearing on 5 March 2024.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

While a summary of the evidence is available in the Berens appeal decision, it is useful to reproduce that relevant summary here.

The statement evidence

Mr Robert Neil Nilon

Mr Nilon provided a statement dated 27 October 2021.[1] He described his past experience in building and construction. He said that from about 2020 and up until the time of the accident, he was performing small residential property maintenance jobs such as building decks, repairing internal plastering and making kitchen cabinets for one or two days at a time. He said he operated as a sole trader and was not registered for GST during that time, including at the time of his injury on 2 June 2021.
[1] Application to Resolve a Dispute (ARD), pp 12–21.
Mr Nilon advised that he was approached by a long-term acquaintance, Mr David Bruce Robbie (the third respondent to the appeals), a licensed builder, in respect of installing form work for gables on a residential construction. He said he inspected the site on 28 May 2021 and agreed to commence work on the following Monday, for which he would be paid $55 per hour. He stated that he asked if he could bring an assistant and it was agreed that Mr Nilon’s nephew, Mr Bradley Stayt, who was looking for work, would also work on the site.
Mr Nilon indicated that Berens’ name was on the gate as the head contractor. He said that he was of the understanding that Berens was the head contractor and builder on the site, who would be paying his wages for the work he did. He said that Mr Robbie had informed him that all invoices had to go through to Berens and Berens would be paying him his wages. He said he was not required by either Berens or the Oltramares to complete any paperwork when he commenced the work.
Mr Nilon advised that he commenced work on 31 May 2021 and on that day, he had a discussion with Mr Rodney Berens, a Director of Berens, about how the work he was required to do was to be completed. [It was ultimately determined that Mr Nilon did not meet with Mr Berens until 2 June 2021]. He commented that he did not agree with the manner in which some of the work Berens assigned to him was to be done but he commenced work and had to complete it in a very short time because the concrete was due to be poured on 3 June 2021. He said that he attended work at 6.30 am on the day of injury and had a conversation with Mr Robbie but that was the last thing he could remember. Mr Nilon indicated that he was told that he had been working on scaffolding on the gable end of the second storey of the house (the support part of the roof structure) and that the injury occurred at about 3 pm that day. He described what he perceived to be the lack of safety precautions on site.
Mr Nilon indicated that it was his understanding that his invoices (which were to be time sheets of the work done) would be sent to Berens for payment but had since heard that the invoices were to be made out to the Oltramares. He said that he supplied his own tools, including electric saws, battery powered tools including drills, sawhorses, tool belt, spirit levels and straight edges, which he carried in his utility truck and were the normal tools of a carpenter. He said however that some other tools and equipment were provided on site by Berens. He confirmed he was required to work from Monday to Friday from 7 am to 3 pm, with a half hour lunch break and 15 minutes for morning tea and could not simply turn up when he liked. He said that the work to be done was dependent upon other tradespeople performing their tasks and the timetable was set by Berens.
Mr Nilon advised that he did not discuss holiday pay or taxation deductions with Berens because the period he worked on site was brief, but he said that he expected that taxation would be deducted from his pay. He stated that he did not have the right to delegate any of the work and, while Berens had the right to dismiss him, he was not entitled to dismiss Berens. He added that he worked solely for Berens and was not doing any work for anyone else at the time he worked on site, and he expected that the work would have continued for some weeks or months.
Mr Nilon denied that he was in a position to sub-let the contract to do the work or to employ other workers to work under him on the job site. He denied that his nephew (Mr Stayt) worked for him and asserted that he had never paid Mr Stayt, who was required to lodge his own time sheets or invoices, and he did not treat Mr Stayt as a labourer. He reiterated that his nephew was not working as a labourer and said that, after the accident, Mr Stayt was advised that he could continue to work on site but chose not to do so because of the incident in which Mr Nilon was injured.
Mr Nilon confirmed that he was to be paid $55 per hour for 40 hours per week. He said that he was “was simply asked to come and help with the carpentry formwork on the gable ends of the house”[2] and Berens directed him as to the work to be done. He added that he was not working as a contractor as contractors would normally submit a price for the job to be done, not an hourly rate.
[2] Mr Nilon’s statement, ARD, p 24, [88].
Mr Nilon denied that he was working for Mr Robbie and also that Mr Robbie was his supervisor. He asserted that Mr Robbie had merely approached him about the work but did not contract with him to do the work. He asserted that he did meet Mr Berens on site and discussed with Mr Berens how the gables were to be done and he expected that he would be paid by Berens. He denied having any written documents such as a contract or an application for employment and denied that Berens had asked him about his insurance status.
Mr Nilon provided a further statement dated 8 December 2021.[3] He said that he held an Australian Business Number but was not registered for GST. He maintained that he was not a sub-contractor, but he was an employee, employed either by Mr Robbie or Berens. He referred to documentary evidence relied upon by the Nominal Insurer.
[3] ARD, pp 32–43.
Mr Nilon firstly referred to an entry listing his availability for work on the web page of a service called “service.com.au”. He said that the service called him in January 2021 in relation to advertising his work with them. He explained that the call was unsolicited by him, the service had called him on its own volition, he refused to be listed with the service, however the service refused to take down his listing. He said that any job leads he received through the service were diverted to his spam folder, and he had never paid any money at all for the advertising. He denied having entered into either a written or oral contract with the service.
Mr Nilon also referred to a listing of his availability to work on the web page of “hipages.com.au”. He advised that this service also approached him, the call was unsolicited by him, and he did not agree to enter into any arrangement with that service. He indicated that he did perform one job through that service, which was to fix water damage to cupboards and plaster work in a residential kitchen, but he also put in new bench tops at the request of the owner. He indicated that he did advertise with the service, who would debit his wife’s credit card monthly, but after four months he had not been referred any work. He said that, despite him refusing to continue the service, the service continued to debit the monthly fee. He described his difficulties in ceasing the service after the six-month period he had agreed to, which involved the necessity to cancel his wife’s credit card. He said that he did not work through the service between January 2021 and June 2021.
Mr Nilon further referred to his Linkedin profile. He said it was created by his son in about 2005, without input from him, and he had not received any work or job offers from that platform after 2005. He maintained that he had not used the Linkedin platform to obtain any work, although he did have contact with a few people in the industry who had a Linkedin profile.
Mr Nilon indicated that for most of the years prior to 2 June 2021 he worked as an employee of Quatro Developments Papua New Guinea Limited, a company in which he was a director. He said that after he returned to Australia in December 2019 he did not work on any commercial or residential site under a head contractor for any employer, other than the work he did for Berens.
Mr Nilon stated that, from his knowledge of the building industry, there would normally be a written sub-contractors agreement made between the head contractor and the sub-contractors working on the site. He advised that there was no such written agreement between him and Berens or him and Mr Robbie. He maintained that he did not supply the materials for the job, those were supplied by Berens, and he was paid an hourly rate for the work, which indicated that he was either a full-time or a casual employee at the time he suffered his injury on 2 June 2021.
Mr Nilon provided an explanation of his bank statements which had been provided to the Nominal Insurer. He pointed out those deposits that were not related to payment for work done. He explained that some of the other deposits were payment for rectification jobs done, such as rectification work in respect of water damage to individual units in a high-rise apartment block between 19 June 2020 and 22 January 2021, work on private properties repairing decks and patios, water damage and white ant damage, as well as the work performed by referral from hipages.com.au.
Mr Nilon asserted that those payments were for “odd jobs” that he had done in various places and were totally different to the work he was doing on the building site on 2 June 2021. He said that the bank statements show that he was doing handyman rectification work in his own name for at least 12 months before he commenced with Berens, which was work on a residential construction or building site. He maintained that Mr Robbie was aware of his skills as a carpenter and that was why Mr Robbie contacted him to see if he was interested in doing the work.
Mr Nilon provided a third statement on 19 January 2022.[4] He referred to the Home Building Act 1989 and the Home Building Regulation 2014, which he said required him to have an appropriate licence classifying him as a sub-contractor in order to work on a construction site under the direction of Berens. He said that NSW Fair Trading had advised him that he could not be a contractor on the site because he did not have the appropriate licence. He said that he understood that he was therefore an employee and at all times he believed that he was an employee of either Mr Robbie or Berens.
[4] ARD, p 44.

Mr David Bruce Robbie

Mr Robbie provided a statement dated 6 July 2021.[5] He stated that the property that he and Mr Nilon worked on was owned by the Oltramares. He explained that he was doing some other work on an old cottage for Mr Oltramare, Mr Oltramare introduced him to Mr Berens, who took him on board to help with the Oltramares’ residential build. He said that Mr Berens explained to him how the work was to be undertaken. He said that at first, he submitted his invoices to Berens but was told by Berens that the invoices should be made out to the Oltramares. He said that the invoices for the work done were submitted to Berens, and after they were approved by Berens, they would be paid by the Oltramares.
[5] ARD, pp 1–11.
Mr Robbie stated that it was his understanding that he was employed by Berens. He explained that, if Berens told the builders not to work, they did not work, such as after Mr Nilon’s accident on the work site, when Mr Berens told everyone not to go to work and closed down the site. He added that Mr Berens would explain to those doing the work what needed to be done for each individual task. Mr Robbie said that, normally, the builder would pay the people performing the work and then invoice the owner, but in this case, the contract was in the nature of a “cost plus management fees”.[6]
[6] Mr Robbie’s statement, ARD, p 2, [8].
Mr Robbie advised that the Oltramares were not permitted on site unless Berens gave them permission and if Mr Oltramare came on site, he would have to sign in.
Mr Robbie indicated that there was a shortage of workers on site and Mr Berens asked him if he knew of any tradespeople who could assist with the work. He said Mr Berens advised Mr Robbie that any tradespeople would be paid about $50 or $55 per hour, plus GST. Mr Robbie nominated several people who agreed to do the work, including Mr Nilon, who he described as a builder. Mr Robbie indicated that, if he had people working for him, he would charge them out at $15 more than the hourly rate he was paying them and said he did not employ Mr Nilon, who he would have charged out at about $70 per hour if he had. He added that his hourly rate was $50 but said that the Oltramares offered him an increase to $60 per hour. Mr Robbie said that he would submit his invoice for payment either on a weekly or fortnightly basis, depending upon the amount to be paid, but he was not aware of how frequently the other tradespeople would submit theirs.
Mr Robbie stated that there was no discussion with Mr Nilon as to whether he would be entitled to sick leave or annual leave or pay for public holidays. He added that contractors normally looked after their own superannuation and taxation payments. He said that they were not required to wear a uniform but would wear high visibility shirts. He said they would normally work until about 3 or 3.30 pm with a break for a morning tea as well as 30 minutes for lunch. He said that they were paid an hourly rate, not a daily rate, and Mr Nilon had agreed to be paid $55 per hour. He said that, prior to the accident, he heard Mr Berens instructing Mr Nilon on what was required to do the particular job. He indicated that “[Mr Berens] gave us instructions on what we had to do, and we had a list of things to do and so we just sort of got to it.”[7] Mr Robbie observed that Mr Nilon was competent and had a most thorough knowledge of all forms of work in the building trade.
[7] Mr Robbie’s statement, ARD, p 6, [48].

Mr Robbie was not aware as to whether Mr Nilon subcontracted any of the work and whether the arrangement to work was dependent upon the work available. He observed that if Mr Nilon had made a mistake, he would have been required to fix the problem in his own time. He said that Mr Nilon provided his own tools and equipment, but all of the builders would share their tools if required. Mr Robbie said that he was of the view that Berens was the principal contractor on the worksite and Mr Berens would visit the worksite once per week, or sometimes fortnightly.
Mr Robbie said that the only person who Mr Nilon gave direction to was “Brad” (Mr Stayt), who Mr Robbie described as Mr Nilon’s labourer. He asserted that Mr Stayt was working with and employed by Mr Nilon.
Mr Robbie advised that he was aware that Mr Nilon had been doing other building work before joining Berens, but Mr Robbie did not know where that was or who Mr Nilon had been working for. He said that, at the time of the injury, Mr Nilon was cutting and installing Durisol insulation blocks in the gables of the house they were working on.
Mr Robbie stated that, after Mr Nilon’s accident, Mr Berens approached him and asked him to include Mr Nilon in Mr Robbie’s workers compensation insurance policy as one of his employees. Mr Robbie provided a copy of his email dated 16 June 2021 sent to Mr Berens in response, indicating that he would not do so because he did not employ Mr Nilon.[8]
[8] ARD, pp 28–30.
Mr Robbie advised that, following the accident, Berens instituted greater measures to improve work health and safety and to ensure each tradesperson had insurance in place.

Mr Rodney Berens, Director of Berens

Mr Berens provided a statement dated 2 July 2021.[9] He said that Mr Nilon commenced work as a carpenter with Berens on 31 May 2021, but he did not meet Mr Nilon until 3 days later. He said he was aware that Mr Nilon was on site, having been brought on site by Mr Robbie.
[9] Berens’ reply, pp 62–68.
Mr Berens explained that Berens was the principal contractor on a home building site in Cudgera Creek, New South Wales, with a management contract in place between Berens and the Oltramares. He said there was no fixed price building contract, Berens charged a management fee, all the payments were directed to the client and the client “pays everyone himself.”[10] He added that there was no margin or mark-up on the payments.
[10] Mr Berens’ statement dated 2 July 2021, reply, p 63, [9].
Mr Berens stated that one of Mr Robbie’s workers had left and Mr Robbie brought Mr Nilon and Mr Stayt (Mr Nilon’s labourer) onto the site to work. Mr Berens said that he was under the impression that Mr Nilon was working for Mr Robbie, under Mr Robbie’s control.
Mr Berens described the question of Mr Nilon’s wages as a grey area. He said that he had never previously met Mr Nilon and there had not been a formal job interview, application form or signed agreement and Mr Berens had not obtained details of Mr Nilon’s insurances. He added that, normally a person would not be allowed on site without having their own insurances.
Mr Berens indicated that if Mr Nilon was a contractor, he would have been paid by the client but if he worked for Mr Robbie, Mr Robbie would have paid him. He advised that Berens did not pay the contractors under any circumstances, and it is written in the company’s contract (which was between Berens and the Oltramares) that the company does not have contractors working for it on site.
Mr Berens described the process of the contractors being paid. He said that the contractors submitted their invoices to Berens for the hours worked, addressed to the Oltramares. Berens would check that the hours claimed in the invoices were correct, and, if correct, would stamp them and pass them on to the Oltramares for payment. He confirmed that he had not received an invoice in respect of Mr Nilon. He added that, if Berens had employees, they would have had workers compensation insurance. He said that Mr Robbie had a workers compensation policy and, as Mr Robbie had brought Mr Nilon onto the site, he assumed that Mr Nilon was working for him. He explained that, in those circumstances, there was no reason to ask for Mr Nilon’s insurance documents because Mr Nilon was covered by Mr Robbie’s insurance policy.
Mr Berens advised that all of the contractors worked from 7 am to 3 pm from Monday to Friday, with no overtime. He said that he thought that they would have had a morning tea and a lunch break and that they were paid weekly on submission of their invoices.
Mr Berens stated that Mr Robbie rang him and advised that he intended to pay or charge out Mr Nilon at the rate of $55 per hour, and charge Mr Stayt out at $45 gross per hour. He said that “[m]ost of the guys were working on site for the owner for around that price.”[11] Mr Berens thought that Mr Nilon, as a contractor, would probably not be entitled to annual leave, sick leave or payment for public holidays and he was not aware of whether there was an agreement that superannuation would be paid.
[11] Mr Berens’ statement dated 2 July 2021, reply, p 64, [22].
Mr Berens described what work Mr Nilon was doing on site, which was fitting gable lintels using oriented strand board. He said that the job was basically doing carpentry work and his supervisor would have been Mr Robbie.
Mr Berens referred to Mr Nilon’s accident and provided details of what he knew about it, noting that he was not a witness to it but had arrived shortly after it happened. He made observations of what he thought may have occurred.
Mr Berens indicated that Mr Nilon had a builder’s license and had a person working with him (a labourer). He said Mr Nilon was:
(a)    working for Mr Robbie on site doing whatever task he was assigned;
(b)    a contractor;
(c)    able to bring employees on the site but not able to sub-contract the work;
(d)    paid an hourly rate but would have to fix any errors he had made in his own time;
(e)    retained for the particular task (which had no end date) and, after finishing that task, would only be retained if a further task was available;
(f)    working under similar conditions as the other contractors, who provided their own personal protection equipment and tools, but the materials were provided by the Oltramares;
(g)    to be paid $55 per hour and $45 per hour for his labourer, and Berens would have authorised payment to Mr Nilon of the full amount, and Mr Nilon would then pay the labourer, or potentially Mr Robbie would have been paying them both, and
(h)    able to refuse any work offered.
Mr Berens provided a further statement dated 12 February 2022.[12] He confirmed that Berens did not hold a New South Wales workers compensation policy of insurance on 2 June 2021. He said that he did not meet Mr Nilon on the day Mr Nilon commenced but did meet him at 10 am on 2 June 2021.
[12] Berens’ reply, pp 227–235.
Mr Berens asserted that Berens worked on a management contract with the owner, the Oltramares. He said that Mr Robbie was offered a full contract to complete the installation of the oriented strand board, but Mr Robbie and his team were unfamiliar with the work required. Mr Berens said that Mr Oltramare agreed that Mr Robbie could bring a team to complete the job on an hourly rate. Mr Berens said that Mr Robbie organised the carpenters to work on the site and supervised them in their work on site.
Mr Berens denied that Berens employed Mr Nilon or any other workers at any time on any building or construction sites in Australia. He attached a number of invoices that he had received from Mr Robbie that included work done by labourers in Mr Robbie’s team. Mr Berens said that Mr Robbie’s invoice dated 6 June 2021 did not include a claim for hours worked by Mr Nilon. He asserted that, had Mr Nilon’s injury not occurred, Mr Nilon’s name would have appeared on subsequent invoices.
Mr Berens referred to a text message he sent to Mr Nilon’s wife on 7 June 2021, in which he advised that Mr Nilon should forward his invoice for work done to him at Berens’ email address, but addressed to Mr Oltramare, and Mr Berens would “have it paid”[13] as soon as it was received. He explained that he had done so because the invoice from Mr Robbie dated 6 June 2021 did not include Mr Nilon’s hours of work. Mr Berens attached an invoice from Mr Nilon, bearing Mr Nilon’s name and not Mr Nilon’s business name, dated 30 June 2021 for the work done. Mr Berens stated that the invoice was not paid because it was made out to Berens and not to the Oltramares. Mr Berens also attached an email from Mr Oltramare to Mr Berens dated 21 May 2021, which said:
“Tanya and I would like to increase [Mr Robbie’s] hourly rate to $60 starting next week.
He is doing an outstanding job, assists in areas beyond the standard trade work, is always the last one to leave and ensuring that the site is well maintained and cleaned. We feel he deserve[s] this little pay increase.
We would like to plan on informing him of the news on Monday.”[14]
[13] Berens’ reply, p 232, [28].
[14] Berens’ reply, p 280.
Mr Berens said that Mr Robbie negotiated Mr Nilon’s hourly rate directly with the Oltramares, and once it was agreed, Mr Robbie advised Berens that the Oltramares had agreed to the hourly rate and for Mr Nilon to come on site.

Mr Don Courtney, contractor

Mr Don Courtney, a carpentry contractor on the building site, provided a statement dated 9 October 2021 directed to icare. He gave evidence as to the arrangements made between him, Berens and the Oltramares to perform carpentry work on site.[15]
[15] Mr Robbie’s reply, p 12.

The relevant advertising of Mr Nilon’s trade or business

A print-out dated 14 July 2021 from the web site “hipages.com.au” disclosed that Mr Nilon had been a member of the website since October 2020 and operated under the business name of “Rob Nilon Building and Carpentry Works.” The service categories were listed as building, carpentry, carports and joinery, and included new home, commercial, and general building work.[16]
[16] Nominal Insurer’s reply, pp 193–196.
A print-out from the website “service.com.au” listed Mr Nilon’s business as “Rob Nilon Building and Carpentry Works” and disclosed that he worked in Queensland, the Gold Coast and Currumbin areas.[17]
[17] Berens’ reply, pp 189–190.

The Construction Management Agreement

A Construction Management Agreement signed by the Oltramares and Berens set out the terms of the agreement between the Oltramares and Berens and the obligations of the parties, which included a term that the Oltramares were responsible for the retention of and payments to the contractors on the site.[18]
[18] Berens’ reply, pp 72–86.

THE LEGISLATION

Section 4 of the 1998 Act defines “worker” as (exceptions omitted):
“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).”
Sub-clause 1 of cl 2 of Sch 1 to the 1998 Act relevantly provides:
“2 Other contractors (cf former Sch 1 cl 2)
(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.
…”.

THE MEMBER’S REASONS FOR DETERMINING THAT MR NILON WAS NOT A ‘WORKER’

The Member issued a Certificate of Determination in this matter on 5 December 2022, issued an amended Certificate of Determination on 9 December 2022 and then a further amended Certificate of Determination on 13 February 2023, after this appeal and Mr Nilon’s appeal had been lodged. The Certificate dated 13 February 2023 contained only minor amendments to the orders made and did not amend the substance of the Member’s reasons. The reference in the appeal documents to the date of the Certificate of Determination being 9 December 2022 is to be taken to be a reference to the Certificate of Determination issued on 13 February 2023. A further summary of the Member’s reasons is contained in the Berens appeal decision. This summary pertains only to the Member’s consideration of the issue as to whether Mr Nilon was a ‘worker’ within the meaning of s 4 of the 1998 Act.
The Member reviewed the evidence and the submissions of the parties. The Member referred to the recent High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited[19] and ZG Operations Australia Pty Ltd v Jamsek.[20] He considered those authorities to be of limited use in circumstances where there was no written contract. He said therefore that regard had to be given to the factors relevant to the indicia of an employment relationship. He referred to the earlier High Court decision of Stevens v Brodribb Sawmilling Company Pty Ltd,[21] in which Mason J (as his Honour then was) set out those factors. The Member summarised the indicia as:
[19] [2022] HCA 1 (Personnel Contracting).
[20] [2022] HCA 2 (Jamsek).
[21] [1986] HCA 1; 160 CLR 16 (Brodribb).
(a)    the right to control;
(b)    the mode of remuneration;
(c)    the provision and maintenance of equipment;
(d)    the obligation to work;
(e)    the hours of work and provision for holidays;
(f)    the deduction of income tax;
(g)    the putative employee’s ability to delegate work;
(h)    the right in the employer to have a particular person to do the work;
(i)    the right to suspend or dismiss the person engaged;
(j)    the right to the exclusive services of the person engaged, and
(k)    the right to dictate the place of work.
The Member noted the distinction between a contract of service and a contract for services. He summarised the factors that point to the person performing the work being an independent contractor, namely whether the person performing the work:
(a)    was working in a trade, profession or distinct calling;
(b)    had his or her own workplace or equipment;
(c)    accrued goodwill or saleable assets in the performance of the work;
(d)    paid business expenses of any significant proportion from his renumeration, and
(e)    received renumeration without income tax being deducted.
The Member noted that Mr Nilon was paid at the rate of $55 per hour, which Mr Nilon asserted was a set hourly rate but both Berens and Mr Robbie said was $50 per hour plus $5 GST.
The Member accepted that Mr Berens did not meet Mr Nilon until Mr Nilon’s third day on site and accepted that, even if he could delegate the work, Mr Nilon did not delegate work to Mr Stayt. The Member also accepted Mr Robbie’s evidence as to the content of the conversation between Mr Robbie and Mr Berens in relation to Mr Robbie arranging additional tradespeople for the construction and the discussion with Mr Berens about Mr Nilon and his labourer coming on site and their hourly rates. The Member observed that:
“[Berens], as demonstrated by its own document attached to its Reply, was responsible for arranging for the work on the job site, for determining which contractors would carry out which work, at what rate, and would also vet the work carried out by subcontractors and their invoices to determine whether they would recommend payment by the fourth respondents to the various people carrying out work on the site.”[22]
[22] Nilon v Workers Compensation Nominal Insurer (icare) & Ors [2022] NSWPIC 667 (reasons), [72].
The Member determined that the evidence showed that Berens had the care and control of the worksite and provided the materials for Mr Nilon to work with. He further determined that Mr Nilon did not employ Mr Stayt, taking into account that Mr Nilon did not apply a mark-up in his favour to Mr Stayt’s hourly rate.
The Member determined that Mr Nilon was obliged to carry out the work required by Berens, that he was required to work 8 hours per day and was paid an hourly rate, rather than a set rate to complete the task. The Member considered that those facts pointed to a conclusion that Mr Nilon was in an employment relationship.
The Member noted that Mr Nilon bore the onus of proving he was an employee. He referred to the lack of evidence from Mr Nilon as to whether taxation was to be deducted and considered that the absence of that evidence pointed to Mr Nilon being a contractor rather than an employee. The Member accepted that, prior to commencing at the site, Mr Nilon was a sole trader in the business known as “Rob Nilon Carpentry and Building Works.”
The Member observed that:
“I have little difficulty in accepting that [Mr Nilon] was to work exclusively for [Berens] for the period of his engagement, and that [Berens] had control over the hours of work, the place of work, the tasks to be carried out, broadly the form in which they were to be carried out and also the method of remuneration.”[23]
[23] Reasons, [86].
The Member referred to Mr Nilon’s evidence that he provided his own tools, and that other equipment was provided by Berens, but that he preferred to use his own. The Member formed the view that the evidence disclosed “that the reward for [the work] which [Mr Nilon] negotiated was done so on a commercial basis. [Mr Nilon] negotiated his own rate and that of his nephew.”[24] He accepted that Mr Nilon:
“provided his own tools, did not hold himself out as representing any of the respondents, could potentially have increased his charge out rate based on goodwill developed over the course of the project, was not entitled to any of the benefits of an employee such as paid leave or superannuation and could have refused the work when he came to assess it.”[25]
[24] Reasons, [95].
[25] Reasons, [97].
The Member concluded that the indicia favoured a construction that Mr Nilon was a contractor rather than an employee and, for those reasons, he was satisfied that Mr Nilon was a contractor on site rather than a worker in an employment relationship.
The Member proceeded to determine the question of whether Mr Nilon was a deemed worker in accordance with cl 2 of Sch 1 to the 1998 Act.
The Member determined that question and issued a Certificate of Determination. The further amended Certificate of Determination issued on 13 February 2023 records:
“The Commission determines:
1.     On 2 June 2021, [Mr Nilon] was a deemed worker of [Berens] with preinjury average weekly earnings of $2,200 per week.
2.     At all material times, [Berens] was uninsured for workers compensation purposes.
3.     On 2 June 2021 in the course of his deemed employment with [Berens], [Mr Nilon] suffered injury at a worksite.
4.     As a result of the injury referred to in [3] above, [Mr Nilon] suffered and continues to suffer total incapacity for employment.
5.     The [Nominal Insurer] is to pay [Mr Nilon] weekly compensation as follows:
(a)for the period 2 June 2021 to 31 August 2021 pursuant to section 36 at the rate of $2,090 per week, and
(b)for the period 1 September 2021 to date and continuing pursuant to section 37 at the rate of $1,760 per week.
6.     [Berens] is liable to reimburse the second respondent [the Nominal Insurer] for any compensation paid by the [Nominal Insurer].
7.     Award for [Mr Robbie].
8.     Award for [the Oltramares].
9.     Award for the fifth respondent [the Nominal Insurer].”

GROUNDS OF APPEAL

Mr Nilon brings two grounds of appeal, asserting error on the part of the Member as follows:
(a) Ground One: the Member erred in determining that Mr Nilon was not a ‘worker’ employed by Berens, or in the alternative
(b) Ground Two: the Member erred in determining that Mr Nilon was not a ‘worker’ employed by the Oltramares.

THE SUBMISSIONS RELEVANT TO THIS APPEAL

I have considered Mr Robbie’s submissions, but as he is not inculpated in the appeal it is not necessary to summarise them.

Mr Nilon’s submissions

Mr Nilon indicates that a determination of his appeal is only necessary in circumstances where the Member’s determination in his favour was disturbed by a successful appeal by Berens in the Berens appeal. Mr Nilon submitted that his primary position was that there was no error of the necessary kind demonstrated in the Member’s reasons and his finding that Mr Nilon’s employer was Berens. Mr Nilon cites Raulston v Toll Pty Ltd[26] as authority setting out what is required in order to disturb conclusions of fact made by a primary decision-maker. Mr Nilon submitted that it is not sufficient for a Presidential Member to prefer a different outcome. Mr Nilon provided extensive submissions pertaining to the correctness of the Member’s conclusion that Mr Nilon had entered into a contract with Berens to perform the work.
[26] [2011] NSWWCCPD 25 (Raulston).
Mr Nilon pointed to the Member’s acceptance of Mr Robbie’s evidence as to how Mr Nilon came to be engaged on the site, how the work was assigned, and the procedures adopted. Mr Nilon asserts that the factual findings made by the Member equally support a conclusion that Mr Nilon was employed as a worker. He says that the test is an objective one and, where there is no written contract, the actions of the parties are central to the proper construction of the relationship.
Mr Nilon submits that it is clear from the Member’s reasons that Berens was to manage the work on site, that Mr Nilon was paid an hourly rate, he had no discretion in relation to how the work was to be performed and Mr Nilon was performing the work exclusively on the site. Mr Nilon submits that Brodribb remains good law, the control test is highly relevant to the question of an employment relationship, and that on a fair reading of the evidence, the Member fell into error in his analysis of that evidence and in finding that the relationship was not one of master and servant.
Mr Nilon refers to the Member’s findings in respect of the factors that supported a master/servant relationship and those that fell against that conclusion. Mr Nilon asserts that the observations that he negotiated his own pay rate and did not hold himself out as a representative of Berens are at best neutral indicators. Mr Nilon submits that it is not unusual for employees to negotiate the rate of pay with a potential employer and contends that it is difficult to see how the fact that Mr Nilon did not hold himself out as a representative of Berens is relevant when Mr Nilon was engaged to work on one site only, and not travelling from site to site.
Mr Nilon asserts that the only conclusion from the evidence was that he was a worker employed by Berens, and that a person can be both a worker and a deemed worker, citing Basten JA’s observations in Dickinson v Chapman.[27] Mr Nilon says that, in that authority, Basten JA emphasised the significance of the “contract” in a consideration of the relationship between the parties. Mr Nilon submits that test is an objective one, and where the contract was an oral contract, the parties’ actions are central to the proper construction of the contract. Mr Nilon reiterates that the written agreement between Berens and the Oltramares was of little assistance to the proper characterisation of the relationship between Mr Nilon and Berens.
[27] [2022] NSWCA 2 (Dickinson).
Mr Nilon refers to the matters listed by the Member that the Member considered were indicia supportive of a finding that Mr Nilon was a worker, and the factors that the Member considered were against that finding. Mr Nilon submits that, when balancing those factors, the only finding that could be made is that he was a worker employed by Berens.
Mr Nilon quoted from the Court of Appeal decision in Dickinson, in which Basten JA observed:
“The work for which he was paid was entirely work undertaken at Ms Patrick’s yards. The plaintiff was an odd-jobs man. He did not have fixed hours, but was paid for the work he did. He did not run a business of his own. He kept a record of his hours and was paid at an agreed rate, albeit fixed by Ms Patrick, for the hours he spent working at the yard. While he was not ‘on the books’ of the business as an employee, and was paid cash, there was a standing arrangement that he would be paid for the hours he worked.
…
In these circumstances, the proper conclusion is that the plaintiff was either a person who worked under a contract of service (as defined in s 4 of the [1998 Act]) or a person who performed work exceeding $10 in value pursuant to a contract (within the deemed employment provisions in Sch 1, cl 2 of the [1998 Act]).”[28]
[28] Dickinson, [36]–[37].
Mr Nilon submits that, assuming he was not running a business, the facts in Dickinson are not dissimilar to his situation, where he was also paid an hourly rate. He asserts that a decision that he was either a worker or a deemed worker would be unchallengeable because either conclusion would be justifiably open to a primary decision-maker and both conclusions can be correct.
Mr Nilon submits that all of the factors support the Member’s determination that Berens was his employer or deemed employer. He says however that, if the Member’s determination that the contract was with Berens was wrong, his alternate proposition is that he was a worker employed by the Oltramares. Mr Nilon says that that conclusion could be reached by accepting the case put by Berens that any arrangement that was entered into by Berens was done so on behalf of the Oltramares.
Mr Nilon asserts that the arrangement that the Oltramares were responsible for payment of the invoices for work done does not alter his position that he was employed by Berens, where Berens, as a matter of practice, controlled the site on a day-to-day basis, organised the labour and agreed to the rate of pay. Mr Nilon says that Berens conducted the site as an independent contractor, denying the Oltramares access to the site, and the fact that the Oltramares paid the contractors was merely a method of “accounting”.
Mr Nilon submits that, if the fact that the Oltramares paid the contractors was a relevant factor, it would support his alternate position that the Oltramares contracted with Mr Nilon. Mr Nilon further submitted, however, that had he submitted an invoice for payment which remained unpaid, he would have no difficulty in recovering the amount from Berens. He explained that he was not a party to the agreement between Berens and the Oltramares, his agreement to perform the work was with Berens, Berens authorised Mr Robbie to negotiate his rate of pay and Berens had the obligation to pay, despite the fact that a third party had agreed to do so.

Berens’ submissions

Berens refers to the definition of “worker” as defined in s 4 of the 1998 Act and submits that, on the basis of that definition, a contract is an essential element in assessing whether Mr Nilon was an employee of Berens and maintains that, for the reasons set out in its submissions in the Berens appeal, there was no contract between Berens and Mr Nilon.
Berens points out that “construction” was defined in the Construction Management Agreement to mean “methods, techniques, sequences and procedures” and that safety was the sole responsibility of the contractors, suppliers and service providers working for the client. Berens asserts that these matters are all consistent with the contractors on site being independent contractors and not employees.
Berens refers to the ‘control test,’ as one of the indicia to be considered in determining whether the person performing the work is an employee. Berens says that, in this case, there is no suggestion that Mr Berens, on behalf of Berens, would have informed Mr Nilon what tool to use or how to build the lintels, and the methods employed to perform the work were left to the contractors.
Berens refers to Personnel Contracting, which it says confirmed that the difference between an employee and an independent contractor was that the former was one who serves his or her employer’s business and the latter one who carries on his or her own trade or business. Berens maintains that it cannot be said that Mr Nilon was serving Berens’ business when he was being paid by the Oltramares and no margin or mark-up was applied by Berens to that payment.
Berens submits that the totality of the relationship must be examined, and consideration was to be given to the evidence as to:
(a)    Mr Nilon’s professional background as a licenced builder conducting a trade;
(b)    Mr Nilon’s engagement on the site, which did not involve any paperwork or job interview or employment benefits.
(c)    Mr Robbie being a key figure in the exercise of control over the site;
(d)    the fact that the Oltramares were responsible for payment of the invoices for work done, with no deduction for income taxation;
(e)    Mr Nilon not being a representative of Berens, Mr Nilon using his own tools and working with a degree of autonomy, and
(f)    Mr Nilon having employed his nephew, Mr Stayt.
Berens also refers to Mr Nilon’s submissions relevant to the decision in Dickinson, in which it was suggested that Basten JA considered that a person could be both an employee and a deemed worker. Berens disputes that Basten JA made that observation and submits that on a plain reading of the legislation, the two categorisations are distinctly different creatures.
Berens submits that the evidence is overwhelming that Mr Nilon was not an employee of any person on site.

The Oltramares’ submissions

The Oltramares submit that there was no contract or contract of service between them and Mr Nilon, which is indicated by the nature, extent and expertise required in order to carry out the work, as well as the control Berens had over the worksite. They say that, if there had been an intention to create a legal relationship (which there had not), there would have been a written document created, which there was not. The Oltramares submit that they relinquished all control over the site by entering into the Construction Management Agreement. They provide a summary of items of the Construction Management Agreement. The Oltramares point to Mr Nilon’s own evidence that he was contacted by Mr Robbie, who needed assistance with the building project, that he attended the site the following day to assess the work, he was told that Berens would be paying him and that there was no paperwork created. They submit that there was no evidence from Mr Nilon that he intended to enter into a contractual arrangement with them.
The Oltramares point to the evidence of Mr Robbie that Mr Berens could dictate whether the builders attended work, the Oltramares required permission to enter the site, Berens enquired of Mr Robbie whether he could source more trade workers and Berens had agreed to pay Mr Nilon $55 per hour, plus GST, a proposition to which Mr Nilon agreed.
The Oltramares refer to the email dated 16 June 2021, which they say is evidence supporting the conclusion that there was no contract of service between them and Mr Nilon, as well as the fact that the Oltramares had no discussion with Mr Nilon about his performance. They assert that, contrary to Mr Nilon’s submission, none of the objective facts lead to a conclusion that there was a contract between them and Mr Nilon.
The Oltramares also refer to the facts in this case that they say point to Mr Nilon being a contractor on the site. That is, that Mr Nilon was paid an hourly rate, was under an obligation to pay his own taxes and superannuation, provided his own tools and equipment, and did not hold himself out as a representative of Berens.
The Oltramares add that there was no provision in the Construction Management Agreement that appointed Berens as their agent or for Berens to act on their behalf. They submit that each case must be determined on its own facts and the following facts support the conclusion that Mr Nilon was an independent contractor, that is, that Mr Nilon:
(a)    was paid an hourly rate and more hours performing work would attract more pay;
(b)    was obliged to pay his own taxes;
(c)    was obliged to pay his own superannuation;
(d)    was obliged to provide his own tools and equipment, and
(e)    did not hold himself out as representing Berens.
The Oltramares submit that, in the event that there is a finding that they entered into a contract with Mr Nilon, the contract was to perform work that was incidental to a trade or business regularly carried on by him because:
(a)    Mr Nilon was advertising his services as a builder and carpenter;
(b)    Mr Nilon disclosed income in the 12-month period preceding the subject accident, which income he derived from the building and carpentry work he performed regularly in his own name, and
(c)    Mr Nilon was contacted by Mr Robbie to do work that was similar work to the work Mr Nilon had been doing in that 12 month period at the very least.

The Nominal Insurer’s submissions

The Nominal Insurer indicates that it mostly agrees with and adopts the submissions made by Berens, particularly those in respect of the analysis of the indicia relevant to the question of whether Mr Nilon was an employee or a contractor. It describes the Member’s finding that Mr Nilon’s trade or business was materially different to the work on the building site. It says that it agrees with Berens’ submissions that the Member’s finding that the work performed was “specialist work in the trade of a builder or carpenter” was not founded upon Mr Nilon’s evidence and the difference in the work noted by the Member was not explained.
The Nominal Insurer refers to Mr Nilon’s evidence that Mr Robbie contacted him seeking help with work on a residential construction site and that Mr Nilon thought that Berens was the head contractor on site. The Nominal Insurer says that Mr Nilon did not speak with Mr Berens until the third day on site. It submits that this evidence, where all communication was through Mr Robbie, a third party, counts significantly against the possibility that Mr Nilon had entered into a contract of service with Berens.
The Nominal Insurer submits that the task Mr Nilon was required to perform was to erect the lintels on a home building site, there was no indication that Mr Nilon would continue to perform work on other sites, which evidence was inconsistent with any genuine belief that Mr Nilon intended to enter into a master and servant relationship with Berens.
The Nominal Insurer adds that, on a proper consideration of the facts, Mr Nilon was a “true contractor.” The Nominal Insurer asserts that, regardless of whether there was a contractual arrangement between the Oltramares and Mr Nilon, or between Berens and Mr Nilon, the ultimate decision is wrong because Mr Nilon was not a deemed worker and thus was unable to benefit from the workers compensation legislation.

CONSIDERATION

Ground One: the Member erred in determining that Mr Nilon was not a ‘worker’ employed by Berens

The right to pursue an appeal from a decision of a Member is governed by s 352 of the 1998 Act. The scope of the appeal is limited by s 352(5) of the 1998 Act to the identification of error on the part of the Member, where such error is of fact, law or discretion. The Member’s determination that Mr Nilon was not a worker within the meaning of s 4 of the 1998 Act is a finding of fact.
The parties refer to the decision by Roche DP in Raulston in which he recited the principles relevant to disturbing a primary decision maker’s finding of fact, as enunciated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[29] Those principles have been consistently applied in the Commission. A Member’s finding of fact, therefore, may only be disturbed by a Presidential Member if material facts were overlooked or given too little weight, or other probabilities so outweigh those chosen by the Member that the conclusion was clearly wrong.
[29] (1966) 39 ALJR 505 (Whiteley Muir).
The Court of Appeal in Northern NSW Local Health Network v Heggie[30] considered the above principles in the context of the Commission’s powers on appeal and said as follows (citation omitted):
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable.”[31]
[30] [2013] NSWCA 255 (Heggie), [72].
[31] Heggie, [72].
That is, the party seeking to have the Member’s decision set aside must establish the type of error described in Whiteley Muir above and it is not sufficient that the Presidential Member might prefer a different view.
It is therefore necessary to examine the Member’s reasons and the evidence of the facts pertaining to the Member’s finding that Mr Nilon was not a worker within the meaning of s 4 of the 1998 Act.
The Member considered that the High Court authorities of Personnel Contracting and Jamsek were of little assistance because the contracts under consideration in both authorities involved a written contract between the parties and in this matter, there was no written contract. There are, however, aspects of the High Court’s observations in those authorities which are of assistance where the contract is partly or purely oral. The principles established in those authorities were discussed by Wigney J in JMC Pty Limited v Commissioner of Taxation[32] and Goodman J of the Federal Court in Secretary, Attorney General’s Department v O’Dwyer.[33] In JMC, Wigney J observed that:
“… the contractual provisions that may be relevant in determining the nature of the relationship include, but are not limited to, those that deal with the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, the provision for holidays, the deduction of income tax, the delegation of work and the right to exercise direction and control: Personnel Contracting at [113] (Gageler and Gleeson JJ); [174] (Gordon J), referring to Brodribb at 24 (Mason J); see also 36–37 (Wilson and Dawson JJ).”[34]
“… the characterisation of the relationship as one of service or employment involving an employer and employee, as opposed to a relationship involving an independent contractor providing services to a principal, often hinges on two considerations. The first consideration is the extent to which the putative employer has the right to control how, where and when the putative employee performs the work: Personnel Contracting at [73]–[74] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); see also Brodribb at 24 (Mason J) and 36–37 (Wilson and Dawson JJ). The second is the extent to which the putative employee can be seen to work in his or her own business, as distinct from the business of the putative employer – the so-called ‘own business/employer’s business’ dichotomy: Personnel Contracting at [36]–[39] (Kiefel CJ, Keane and Edelman JJ); [113] (Gageler and Gleeson JJ); cf [180]–[183] (Gordon J). Neither of those considerations are determinative and both involve questions of degree.”[35]
“The characterisation of a relationship as being either one of employer and employee, or one involving the engagement of an independent contractor, is ultimately an evaluative judgment that takes into account the totality of the parties’ contractual rights and obligations. The exercise may not necessarily be straightforward because, in some cases at least, the parties’ contractual rights and obligations may point in different directions. The evaluative exercise also should not be approached on the basis that there is some checklist against which ticks and crosses may be placed so as to produce the right answer. Some degree of uncertainty is unavoidable, particularly in the case of many modern-day work or service contracts.”[36]
[32] [2022] FCA 750 (JMC).
[33] [2022] FCA 1183 (O’Dwyer).
[34] JMC, [21].
[35] JMC, [23].
[36] JMC, [27].
In O’Dwyer, the contract was an oral contract. Goodman J made the following observations:
“In the present case, the Tribunal found that there was no written contract, but did find that there was an oral contract. The Tribunal then did not take the approach set out in Personnel Contracting and Jamsek of considering whether the terms of that contract gave rise to an employment relationship. Instead, the Tribunal applied the ‘multi-factorial approach’ that was disapproved in Personnel Contracting and Jamsek.
…
Thus, the appeal turns on whether the approach to be taken to determining whether an employment relationship has been created as explained in Personnel Contracting and Jamsek is limited to written contracts or extends to oral contracts (as in the present case) or to contracts which are partly written and partly oral. In my view, the approach taken in Personnel Contracting and Jamsek also applies where there is no wholly written contract, for the following reasons.
First, the foundational reasoning of the plurality in each of Personnel Contracting and Jamsek (Kiefel CJ, Keane and Edelman JJ) is that the focus of the inquiry is upon the legal rights and obligations created by the contractual relationship between the parties, rather than upon the history of the relationship between them (including the manner of performance of the contract).
Secondly, in the context of that foundational reasoning, there is no reason to distinguish between wholly written contracts and other contracts. This is so despite there being greater scope in the case of oral contracts for subsequent events to be considered as part of the process of identification of the terms agreed between the parties (see Personnel Contracting at 130–131 [177], 132–133 [183], 134–135 [188] and 135 [190] per Gordon J).
Thirdly, in Personnel Contracting at 108 [57], the plurality noted that Hollis [v Vabu Pty Ltd [2001] HCA 44] involved a contract that was partly oral and partly in writing and approved an observation that Hollis ‘does not alter or even challenge the orthodox principle that courts are not concerned with what has ‘actually occurred’ in a relationship, but rather with ‘the obligations by which the parties [are] bound’. See also Gordon J at 135 [190]. Further, at 108 [59], the plurality stated that a reason why a wide-ranging review of the entire history of the parties’ dealings is unnecessary and inappropriate is that the task of the court is to enforce the parties’ rights and obligations, not to form a view as to what a fair adjustment of those rights might require. These observations apply with equal force to contracts which are not wholly in writing.
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.”[37]
[37] O’Dwyer, [28]–[33].

It is apparent, therefore, that the High Court’s observations in Personnel Contracting and Jamsek should also be applicable, where relevant, to the construction of oral contracts relating to the question of whether the contract is an employment contract. Thus, in order for Mr Nilon to succeed in disturbing the Member’s conclusion that Mr Nilon was a contractor rather than an employee, he needs to establish that the Member’s focus went beyond that of a consideration of the rights and obligations of the parties.
The Member referred to the indicia pointing to and against an employment relationship set out in Brodribb, and the factors that supported a finding of an independent contractor. There is nothing in Jamsek or Personnel Contracting that indicates that the application of Brodribb, or the Member’s approach, was erroneous. The Member referred to the uncontested facts as to Mr Nilon being paid an hourly rate (which Mr Robbie and Mr Berens said included GST), rather than a payment for the set task, Mr Nilon not meeting Mr Berens until the third day on the job, and Mr Nilon not delegating the work. The Member further referred to the facts that Mr Nilon was obliged to perform the work, and to work 8 hours per day, and to his conclusion that Mr Nilon did not employ Mr Stayt. He noted there was no evidence of taxation being deducted and no provision for paid leave or superannuation entitlements. He accepted that Mr Nilon worked exclusively for Berens and that Berens had control over the hours of work and the tasks to be carried out, but concluded that Mr Nilon was not an employee, but was instead a contractor on the site.
Mr Nilon submitted that, on a proper application of the facts to the law, the result must be that Mr Nilon was employed by Berens.
The Member took into account all of the objective factual matters pointing to whether Mr Nilon was or was not an employee of Berens. His approach was consistent with the High Court’s observations as to the objective matters considered relevant to that question. None of those matters identified by either the Member or Mr Nilon are of themselves determinative.
Mr Nilon asserted that how Mr Nilon came to be engaged on the site, how the work was assigned, and the procedures adopted were factual findings made by the Member which equally supported a conclusion that Mr Nilon was employed as a worker. The Member was required to balance the indicia for and against his conclusion, which he did. He determined that, overall, he was not satisfied that Mr Nilon was a worker within the meaning of s 4 of the 1998 Act.
Mr Nilon relies on Dickinson, which he says is factually similar to this case. Dickinson does not assist Mr Nilon. The facts found in that case were that Mr Dickinson was either a worker or a deemed worker because he did not operate a trade or business and he was paid an hourly rate which was determined by Ms Patrick, the putative employer. Mr Nilon asserts that Basten JA concluded that it was possible that a deemed worker could also be an employee in a master servant relationship. While that concept appears in the headnote to the decision, as is stated at the commencement to the headnote, the headnote is not to be taken as part of the judgment and I do not read Basten JA’s judgment to go so far as to support that notion. In any event, the facts in Dickinson are not consistent with the facts in this case.
Mr Nilon submits that a contrary conclusion was open to the Member. Applying Whiteley Muir and Heggie, that submission does not assist Mr Nilon. It is not sufficient to disturb the Member’s finding simply because a different result was available.
The Member weighed the evidence as to the rights and obligations of the parties, as he was required to do. It follows that Mr Nilon’s assertion of error on the part of the Member in determining that Mr Nilon was not a worker employed by Berens is not made out and Ground One of the appeal fails.

Ground Two: the Member erred in determining that Mr Nilon was not a ‘worker’ employed by the Oltramares

The Member determined that Mr Nilon’s contract to perform the work was with Berens, regardless of the characterisation of that relationship. In submissions before the Member, Mr Nilon faintly submitted that he had joined the Oltramares to the proceedings as an alternative proposition in the event that it was found that Berens was not responsible. In submissions to the Member, Mr Nilon conceded that “it is difficult to see how [Mr Nilon] could establish that he was a worker of the [Oltramares].[38]
[38] Mr Nilon’s written submissions in reply dated 25 August 2022, [40].
In his appeal submissions, Mr Nilon said that, in respect of the case put by Berens that the arrangements it entered into were made on behalf of the Oltramares, or that the fact that the payment came from the Oltramares was considered relevant, then the conclusion that Mr Nilon’s contract was with the Oltramares could be arrived at.
None of Mr Nilon’s submissions are sufficiently persuasive in respect of the vague assertion that Mr Nilon was a “worker” employed by the Oltramares. The same objective factors that formed the basis for the Member’s conclusion that Mr Nilon was not a ‘worker’ within the meaning of s 4 of the 1998 Act remain. That is that Mr Nilon:
“provided his own tools, did not hold himself out as representing any of the respondents, could potentially have increased his charge out rate based on goodwill developed over the course of the project, was not entitled to any of the benefits of an employee such as paid leave or superannuation and could have refused the work when he came to assess it.”[39]
[39] Reasons, [97].
The factors that the Member considered were against that conclusion, in particular the control over the work being performed and the set hours of work, are even more tenuous in respect of any relationship between the Oltramares and Mr Nilon.
I reject the notion that Mr Nilon was a ‘worker’ in the employ of the Oltramares.
Mr Nilon has failed to establish error on the part of the Member in concluding that there was no contract between the Oltramares and Mr Nilon. Further, there is no error identified in the Member’s consideration of whether Mr Nilon was a ‘worker’ as defined in s 4 of the 1998 Act.

CONCLUSION

Mr Nilon has failed to establish the necessary error on the part of the Member. The Member’s determination that Mr Nilon was not a worker within the meaning of the 1998 Act either in the employ of Berens or the Oltramares is confirmed.

DECISION

The name of the fourth respondent is amended to read “Tanya Oltramare and Tanya Oltramare as executor of the estate of Marc Oltramare”.
The Member’s determination that Mr Nilon was not a worker within the meaning of s 4 of the 1998 Act is confirmed.
The appeal is dismissed.

Elizabeth Wood
DEPUTY PRESIDENT

15 April 2024