Nilon v Workers Compensation Nominal Insurer (iCare) - [2022] NSWPIC 667

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Nilon v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 667
APPLICANT:	Robert Nilon
FIRST RESPONDENT:	Berens Construction Pty Ltd
SECOND RESPONDENT:	Workers’ Compensation Nominal Insurer (iCare)
THIRD RESPONDENT:	David Robbie
FOURTH RESPONDENT:	Marc and Tanya Ultramare
FIFTH RESPONDENT:	Workers’ Compensation Nominal Insurer (iCare)
Member:	Cameron Burge
DATE OF DECISION:	5 December 2022
DATE OF AMENDMENT:	9 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation; applicant suffered severe injury in a fall at a work site on 2 June 2022; fact of the injury not in issue; pre-injury average weekly earnings (PIAWE) and continuing total incapacity also not in issue; the applicant was injured in a fall from scaffolding on 2 June 2022 on a building site owned by the fourth respondents; the first respondent was the head contractor on the building site and the third respondent another contractor working on the site, who introduced the applicant to the opportunity for work on the site in question; neither the first nor fourth respondent were insured for workers compensation purposes, and the nominal insurer was therefore joined as second and fifth respondents; each of the substantive respondents asserted they were not the employer of the applicant, and each of the first, third and fourth respondents all denied contracting with him; Held – before determining whether the applicant was a worker, deemed worker or contractor it is necessary to determine with whom he contracted; in doing so it is necessary to examine the totality of the evidence to consider the reality of the purported contractual relationships; Pitcher v Langford, R v Fostar; ex parte Commonwealth Life (Amalgamated Assurances) Ltd and Shaw v Bindaree Beef Pty Ltd followed; an evaluation of the evidence in this matter establishes the applicant entered into a contract with the first respondent; the contract between the applicant and first respondent was oral, and accordingly the indicia set out in Stevens v Brodribb Saw Milling Company Pty Ltd must be examined; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited and ZG Operations Australia Pty Ltd v Jamsek followed; on balance, the contract was a contract for services, not a contract of service; however, the applicant was a deemed worker of the first respondent, as he was undertaking work to a value of greater than $10 which he did not sublet, nor which related to a trade or business which he regularly carried on in his own name or under a business name; award for the applicant for the payment of weekly compensation from 2 June 2021 to date and continuing; awards for each of the second to fifth respondents.
determinations made:	1. On 2 June 2021, the applicant was a deemed worker of the first respondent with preinjury average weekly earnings of $2,200 per week. 2. At all material times, the first respondent was uninsured for workers compensation purposes. 3. On 2 June 2021 in the course of his deemed employment with the respondent, the…

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.

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Details

Case: [2022] NSWPIC 667
Decision Date: 5 December 2022

CaseChat Overview and Summary

The case of Nilon v Workers Compensation Nominal Insurer (iCare) involved the applicant, Nilon, who suffered a severe injury in a fall at a work site on 2 June 2022. The dispute centred on whether Nilon was entitled to weekly compensation, given the complexities surrounding his employment status and the identity of the party he contracted with. The matter was heard in the relevant Australian court, which was tasked with determining whether Nilon was a worker or a contractor, and if so, which respondent he contracted with. The respondents included the head contractor on the building site, another contractor who introduced Nilon to the opportunity for work, and the owner of the site, among others. The court had to resolve the conflicting claims about who Nilon had contracted with, as this would determine his eligibility for workers' compensation.

The primary legal issues before the court were to ascertain with whom Nilon had contracted and to determine the nature of that contract—whether it was a contract for services or a contract of service. The court considered the totality of the evidence to establish the reality of the contractual relationships. The court's analysis drew on precedents such as Pitcher v Langford, R v Fostar; ex parte Commonwealth Life (Amalgamated Assurances) Ltd, and Shaw v Bindaree Beef Pty Ltd, which provided guidance on how to discern the true nature of employment and contractual arrangements. The court also applied principles from Stevens v Brodribb Saw Milling Company Pty Ltd, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited, and ZG Operations Australia Pty Ltd v Jamsek to evaluate whether the contract between Nilon and the first respondent was for services or employment. Ultimately, the court concluded that the contract was for services but found that Nilon was a deemed worker of the first respondent because he was undertaking work valued at more than $10 that he did not sublet or which did not relate to a trade or business he regularly carried on.

The court ruled in favour of Nilon, finding that he had contracted with the first respondent and that he qualified as a deemed worker. Consequently, Nilon was awarded weekly compensation from the date of his injury, 2 June 2022, to the present and continuing. The court also made awards for the second to fifth respondents. This decision ensured that Nilon received the workers' compensation he was entitled to, based on the specific contractual and employment circumstances determined by the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the telephone conference, the parties agreed the only issue in dispute was whether the applicant was a worker, and accordingly, the matter proceeded by way of written submissions, as already noted. Oral evidence Before determining the nature of any agreement between the applicant and one of the respondents, the state of this matter first necessitates a determination of which party he entered into an agreement with. To briefly summarise the positions of the parties, the applicant’s primary case is he contracted with the first respondent, and in the alternative either the third or the fourth respondents. By the applicant’s own admission in his submissions, the fourth respondents were joined as something of a catch-all measure. The first respondent contends the applicant contracted with either the third respondent or the fourth respondent, a position supported by the second and fifth respondents, while the third respondent submits the applicant contracted with either the first or fourth respondents. The fourth respondents for their part say the applicant did not contract with them, and allege the first respondent was charged with dealing with workers (using that term in a neutral sense) on the worksite). None of the parties’ submissions specifically cited case law dealing with the law surrounding determination of contracting parties, however, a number of the principles set out in the relevant decisions also go to matters which affect questions of employee or contractor. In Pitcher v Langford (1991) 23 NSWLR142 (Pitcher), the Court of Appeal was required to determine which of two parties was the employer of a worker. Unlike in this matter, there was no dispute that the worker was employed by one of the two parties to the proceedings. The worker was a shearer initially in the employ of Pitcher and he along with his co-workers would move from property to property as demand for shearing services necessitated. Shortly before the applicant was due to shear at the property owned by Langford, there were discussions between Pitcher and Langford of a change in the arrangement by which the shearers were engaged. Those discussions came about because Pitcher had recently incurred a substantial increase in his workers’ compensation premium. An agreement between Pitcher and Langford was formed, and consequent to the agreement, Langford advised his workers’ compensation insurer that he was going to employ the shearers, paid a premium for the extra workers and additionally paid money directly to the worker for his work. When the final cheque was issued to the worker, he was described as an “employee” of Langford. At trial, the judge held nothing had really changed regarding the employment arrangements and that, despite the change in payment arrangements, Pitcher remained the employer. In so finding, the trial judge took into account several factors and concluded the original employment arrangement between the worker and Pitcher had continued. Such factors included the supply rations and Langford’s answers to a series of questions regarding Pitcher’s right to hire and fire the shearers.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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