Nilon v Workers Compensation Nominal Insurer (iCare)

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 applicant suffered injury at a worksite. 4. As a result of the injury referred to in [3] above, the applicant suffered and continues to suffer total incapacity for employment. 5. The second respondent is to pay the applicant weekly compensation as follows: a. for the period 2 June 2021 to 1 September 2021 pursuant to section 36 at the rate of $2,090 per week, and b. for the period 2 September 2021 to date and continuing pursuant to section 37 at the rate of $1,650 per week. 6. The first respondent is liable to reimburse the second respondent for any compensation paid by the second respondent. 7. Award for the third respondent. 8. Award for the fourth respondent. 9. Award for the fifth respondent.

STATEMENT OF REASONS

BACKGROUND

On 31 May 2021, Robert Nilon (the applicant) began carrying out work on a construction site owned by Marc and Tanya Ultramare (the fourth respondents) at Cudgera Creek. The applicant came to be on the site after being informed of the work opportunity by David Robbie (the third respondent), a colleague whom the applicant had known for decades.
There is no issue the principal contractor on the work site was Berens Construction Pty Ltd (the first respondent) whose employed director was Mr Rod Berens.
Neither the first nor fourth respondents are insured for workers’ compensation purposes. As a result, the Workers’ Compensation Nominal Insurer (iCare) is joined to the proceedings as the second and fifth respondents.
The applicant alleges there was agreement he would be paid $55 per hour for his work. Unfortunately, no monies were ever paid to the applicant for work carried out on-site, because on 2 June 2021, he suffered serious injuries when he fell to 2-3 metres from scaffolding onto a concrete slab. He suffered inter alia a fractured skull, fractured collarbone, broken shoulder, broken ribs and a fractured knee in the fall, and was airlifted by a helicopter to Gold Coast University Hospital.
The applicant brings these proceedings seeking payment of weekly compensation. His claim is disputed by all of the respondents on the sole ground the applicant is not a worker, nor a deemed worker employed by any of the first, third or fourth respondents.

MATTERS IN DISPUTE

The only matter which remains in dispute is whether the applicant is a worker or a deemed worker of one of the respondents.
When the matter was listed for telephone conference, the parties agreed that if there was a finding on the question of worker or deemed worker in favour of the applicant, he would be entitled to the payment of weekly compensation. None of the parties made any submissions disputing the amount of any potential award of weekly compensation, nor were any other issues which might disentitle the applicant to an award raised in the parties’ written submissions. Likewise, no party disputed the rate of pay to the applicant was $55 per hour.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that that parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
When the matter was listed for telephone conference, the parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing. Instead, Directions for Submissions were made and the parties each lodged written submissions dealing with the question of worker or independent contractor.
At the telephone conference before the Direction for Submissions was made, the applicant sought leave to cross-examine Mr Berens. Counsel for the first respondent opposed that application, and I declined to make it.
Following the receipt of the last of the submissions in this matter on 25 August 2022, the fourth respondents sought to lodge an Application to Admit Late Documents (AALD) attaching statement evidence from each of them.
The admission of that evidence was opposed by the other parties to the proceedings, and on balance, it should be excluded. The lodging of statement evidence following the closure of written submissions is akin to a party at a hearing seeking to introduce new evidence after all of the parties have completed their oral submissions. In this matter, there are four other respondents and the applicant who would, were the evidence of the fourth respondents admitted, in the interests of justice need to be granted time to respond to the fourth respondents’ evidence. In my view, the interests of justice are not served by the admission of the statement evidence of the fourth respondents, and those documents will not be taken into consideration in making this determination.

EVIDENCE

Documentary evidence

The documents which have been lodged in the Commission and which will be taken into account include the following:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply of first respondent and attached documents;
(c)    Reply of the second and fifth respondents and attached documents;
(d)    Reply of third respondent and attached documents, and
(e)    Reply of fourth respondent attached documents.
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

15. As the matter proceeded by written submissions, no oral evidence was called.

FINDINGS AND REASONS

Preliminary finding of fact – the identities of the contracting parties

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.
On appeal, Kirby P (as he then was) held in these circumstances there was evidence upon which the trial judge could make a determination that Pitcher was the employer and no question of error of law by reason of lack of evidence arose.
In the same matter, Priestley JA held at [154]-[155]:
“[The trial judge’s] reasoning was on the basis that whatever the parties had agreed between themselves, as evidenced by the various documents which came into existence, they in fact conducted themselves not pursuant to their agreement, but upon the basis of the arrangements enforced upon earlier shearings. This kind of approach is sanctioned by such authoritative cases as R v Foster; ex parte Commonwealth Life (Amalgamated Assurances) Ltd (1952) 85 CLR 138, especially at 151 and ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] SR (NSW) 260”.
During the course of his reasons, Handley JA stated:
“In my opinion, the trial judge did not err in holding that the Courts are entitled, independently of any statutory power in that behalf, to consider the reality of purported contractual arrangements. No case was sought to be made at the trial that the written agreement between the owner and the worker was a sham: compare Snook v London and West Riding investments Ltd [1967] 2 QB 786 at 802 per Diplock LJ and Cam & Sons Pty Ltdv Sargent (1940) 14 ALJ 162. Furthermore, no such case was sought to be made in this Court either. But independently of the sham principle, the Courts can consider what the parties to a contract had done, in order to see whether it has been ignored or abandoned.
In R v Fostar; ex parte Commonwealth Life (Amalgamated Assurances) Ltd (1952) 85 CLR 138, a case where the prosecutor alleged that its insurance canvassers employed under a written agreement were independent contractors because the agreement so provided, Dixon, Fullagar and Kitto JJ said (at 151 and 155):
‘… if in practice, the company assumes the detailed direction and control of the agents in the daily performance of their work and the agents tacitly accept a position of subordination to authority and to orders and instructions as to the manner in which they carry out their duties, a course designed to prevent the relation receiving the legal complexion truly which it deserves would be ineffectual… the case for the respondent union simply is that [the agreement] does not represent the reality of the relation in practice that the agents and the prosecutor company… [the evidence fails] to exclude to our satisfaction the possibility that the real relation between some or all of the agents and the prosecutor company in their actual work, week in week out, is in fact that of employer and employee, whatever the agreement may say.’
This decision was applied in ex parte Robert John Pty Ltd; re Fostars Shoes Pty Ltd [1963] SR (NSW) 260; in determining whether a deed of ‘licence’ between the parties prevented their relationship being that of landlord and tenant. Sugerman J said, quoting from the authority (at 269; 414); ‘… It is not necessary to go so far as to find the documentation a sham. It is simply a matter of finding the true relationship of the parties.’
Later, he said (at 272; 416):
‘In determining whether the Fair Rents Board had jurisdiction… it is necessary to have regard to the real character of the relationship of the parties if this is to be found, as the relations were at doubt in fact to have differed from the relationship which might be taken as intended to be constituted by the deed of licence if considered alone.’
In my opinion, this is what the trial judge did in the present case. He held (at 5) that ‘no actual difference could be discerned between how the operation was carried out on that occasion’ from how it had been carried out on earlier occasions when the relationship of employer and employee undoubtedly existed between the contractors and the shearers. He said (at 9) that ‘nothing really changed’ and (at 10) that ‘it was business as usual’. To these findings must be out of the finding that the signing of the written contract by the owner (at 9) was a ‘mere formality’”.
Pitcher has been implied in subsequent decisions such as Suresteps v AG McGrath [2010] NSWSC 169 and was considered by the Court of Appeal in Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125. In that decision, Giles JA stated:
“The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the ‘reality of purported contractual arrangements’ (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even when a written contract gives it as the party.”
In Gothard, in a matter of AFG Pty Ltd (in Liquidation) v Davey (2010) 80 ACSR 56, Edmonds J stated at [52]:
“The Courts have adopted the position that in undertaking [the exercise of identifying an employer of a person from two or more possibilities], they are entitled to take a wide view of the putative relationship, beyond the terms of the contractual documentation, to examine how the parties conducted themselves in practice and whether, there is contractual documentation, the reality of the situation accords with the terms of that documentation or whether it points to another entity being the employer.”
It is necessary to therefore examine the evidence surrounding the applicant’s entering into a legal relationship with one or more of the respondents, and the submissions of each of the parties. Having examined the evidence, it is then appropriate to make a determination as to the identity of the party with whom the applicant contracted, together with the nature of that contract.

The applicant’s evidence

In his statement, the applicant addresses the circumstances leading up to his injury as follows:
“16. I was contacted by David Robbie. David Robbie is a licensed builder in New South Wales. I have known David Robbie for over 40 years.
17.    David Robbie contacted me to indicate that he needed some help with the construction site of a residential premises at Cudgera Creek Road, Cudgera Creek New South Wales. David Robbie called me on 27 May 2021. He asked me whether or not I would be interested in doing some building work for a residential construction site at Cudgera Creek Road, Cudgera Creek NSW.
18.    On 28 May 2021, which was a Friday, at approximately 11:00 am, I attended the building site at Cudgera Creek. This was to assess what they were asking me to do, which was form work on the gables of the house.
19.    David Robbie then rang Rod Berens and also the owners to confirm that I would be starting on Monday and both parties agreed to me starting work on the site on the Monday and they also agreed on the rate of pay which was $55.00 per hour. I said to them at that time, that I need someone to give me assistance.
20.    My nephew was also looking for some work. His name is Bradley Stayt. They agreed that Bradley Stayt would be able to come and work at the same time.
21.    I understood the situation was that Rod Berens was the head contractor on the site and the builder and that therefore, he would be paying me any wages for the work that I performed on the job site. Rod Berens’ name was on the gate on the building site as the head contractor and that the job belonged to Berens Construction. It was my assumption that he was the head contractor and he was the one going to be paying me wages on the site.
22.    David Robbie indicated to me that all payments had to be put through to Rod Berens and that Rod Berens would be the one paying my wages.
23.    There was no paperwork done and no employment declaration form filled in with either David Robbie, the other workers, nor with Rod Berens, the head contractor/builder, and no paperwork filled in with the Oltramares, who were the owner of the land and the house being built.”

The applicant also provided statement evidence that Rod Berens arrived at the building site on the morning of 31 May 2021. He said that he and Mr Berens discussed the work which was required of the applicant, and some of the procedures required were not what the applicant described as being consistent with standard building practice. The applicant’s evidence regarding meeting Mr Berens on 31 May 2021 is contradicted by Mr Berens in his statement dated 12 February 2022. Mr Berens indicates that in fact, he did not meet the applicant until 2 June 2021 (the date of injury). Mr Berens was attending medical appointments on the Sunshine Coast on 31 May 2021.
The supporting documentation attached to Mr Berens’ statement supports his contention. It includes receipts for accommodation and airline flights in his name which confirmed he was not in the area of the building site at issue on 31 May 2021.
In making that finding, I do not criticise the applicant nor find that he was being untruthful in his recollections. The applicant has suffered a serious closed head injury and endured an extended period of post traumatic amnesia.
Nevertheless, it is apparent the applicant and Mr Berens did meet, albeit I find that meeting took place on 2 June 2021, after the applicant had commenced working on the job site.
The applicant’s evidence also includes a statement sworn by the third respondent, Mr Robbie dated 6 July 2021. Presumably, the applicant relies on Mr Robbie’s evidence given that he has attached the statement to the Application. In his statement, Mr Robbie says:
“7.     As far as who employed me on this project. The property is owned by Mark and Tanya Oltramare. Mark is the one that pays the invoices but they are approved by Rod and Werner [the first respondent].
8.      My understanding was that I worked for Rod and Werner. If Rod Berens says we are not allowed to go to work, we do not go to work. When the work site was closed down due to the accident, Rod was the one that said we were not to go to work. Rod would explain to us what needs to be undertaken for individual tasks. Werner told me the contract is a cost to plus management fees. Normally, the builder would pay you and then he would put an invoice into the owner. Mark introduced me to Rod then Werner told me how he wanted the footing work undertaken.
9.      I do not have a contract with Berens Construction. Basically, how it happened was I was doing some work for Mark on his other little cottage on the property at 657 Cudgera Creek Road, Cudgera Creek NSW. They were working on the new house and they needed some footing extensions undertaken on the new house. Because it was around the COVID time, they did not have anyone available. Rod got me on board and I started with them on site 12 months ago around 1 July 2020.
11.    When I submitted my invoices, I made them out to Werner. Werner then said to make the invoice out to Mark Oltramare. I would have thought it should be written out to Mark, care of Rod or something like that because the invoices do not get paid unless Rod and Werner approve the invoice...
13.    Rod has said Mark and Tanya are not supposed to come to the site unless they get permission from him because he is the builder. Since the injury to Robert Nilon, there has been a shake up on all our work, health and safety. Rod told me that Mark is not to come on site unless he is being supervised. Mark has been instructed to sign in when he comes on site.”
As to how the applicant came to be working at the job site, the third respondent said:
“15. Rod asked me whether I knew of any trades that could assist with the work. The main work was to be the installation of the OSB board and insulation to steel rafters. I told Rod I would phone around. I asked Rod what are you prepared to pay them? He said it was around $50.00, $55.00 an hour plus GST.
16. I contacted all the builders and carpenters I knew. Jason Mann and his two workers were available. I asked Jason if he would be happy with the rate then checked that with Rod, the builder. Rod agreed. I contacted Blake, who was another builder who lives just up the road. Josh is his apprentice. As there was still room for more guys, Rod agreed that I could try for more trades.
17. I contacted Rob Nilon, who is the patient. He is a builder that I worked for in Papua New Guinea about five to six years ago. Rob said he was available. I told Rob that Rod was paying $55.00 per hour plus GST. Rob said he would work for the rate. I then confirmed with Rod and said they are available to start Monday. Rod agreed.”

36. In answer to the suggestion the applicant may have contracted with him, the third respondent said:

“There was never any discussion on Rob Nilon working for me. If Rob was working for me and he was on $55.00 an hour, I would be charging him out around $70 an hour.”

In my view, that evidence is persuasive. The third respondent also noted he had two men working for him whom he charged out at $45 per hour. The third respondent said “if you have people working for you, then you really need to charge them out, that was $15 an hour on top of whatever you are paying them to cover their superannuation and all the relevant expenses attached to their employment.”
That is, in my view, compelling evidence. No party to these proceedings disputes the applicant was to be paid $55 per hour. That was the figure to be paid to the applicant, and there is nothing which suggests he was to be paid by the third respondent.
The first report respondent by its director, Mr Berens, states:
“18. Berens Construction works under a management contract with the owner of a building or construction site. Any workers on site would be either contractors or employees of a contractor.
19. Berens Construction builds ‘zero energy’ homes. This type of build is not common in Australia so Berens Construction provides the contractors with some guidance to allow them to be able to complete their work.”
It is apparent in my view from the evidence of the first respondent that it has sought to avoid liability for any incidents such as the one in issue which may have transpired on a building site which it, on the one hand says it has the care and control of, but on the other indicates it is merely a conduit to an owner/builder of the property. In his first statement dated 2 July 2021, which is in the Reply unsigned but which he adopted in a later document, Mr Berens said:
“8.     Robert Nilon did not actually start working with me. I never met Robert until the third day he was on site. He started working on the site on 31 May 2021 as a carpenter. I knew he was on site, but it was three days before I met him. Dave Robbie, another contractor brought him on site.
9.      Dave’s position is a contract carpenter, and my company is the principal contractor on the site. The builder, but then we have a management contract with the client. So, we do not necessarily have a fixed price building contract. We have a management contract, and we charge a management fee, and the client pays everyone himself. So, all the payments are directed to the client. So, there is no margin or mark up on these projects.
10.    So, Dave Robbie mentioned that he was bringing Rob and his labourer on site to do work and one of Dave Robbie’s workers had left.
11.    So, look, we were under the impression that Rob was working for Dave under Dave’s control.
12.    As far as his wages is concerned, well that is a bit of a grey area. Because I have never met him, we have not had our formal job interview, I never got his insurances or anything.
13.    We do not let anyone on site unless they have got their own insurances. They have all got to be insured. Now, as far as payment goes, if he was working as a contractor, he would be getting paid from the owner. If he was working under Dave Robbie, then he would have been getting paid under him. Under no circumstances in any of our jobs do we pay contractors, and it is written in our contract that we do not have contractors working on site under Berens Constructions. I can provide you with a copy of our contract for this construction between Berens and the owners of the house under construction, Mark and Tanya Oltramare.
14.    The contractors submit an invoice for their hours and that goes through us. We check the invoice and if they have done the hours, we stamp it, and send it to Mark Oltramare, the owner for payment.
15.    There has been no invoice for Robert Nilon, there has been nothing. Dave Robbie has not invoiced the guys’ hours. So, that is why I am a bit up in the air on this whole situation as well. If we have employees, we have got insurance.
16.    We do not let anyone on site unless we have got WorkCover, or they have got their own WorkCover or their own public liability or income protection policy.
17.    Dave Robbie has a workers’ compensation policy and he had Rob on site and as far as I was concerned, he was working on site for Dave, and if he was working for him, then I had no reason to go ask him where his own insurances were because he was there as a contractor, working for Robbie, I knew he had his own policies because I had seen them in the past.”
Unfortunately for the first respondent, there is correspondence between Mr Berens and the third respondent which contradicts this version of events. It is apparent that on 16 June 2021, two weeks after the incident at issue and a fortnight before Mr Berens compiled his first statement, he telephoned the third respondent with a view to having the third respondent accept the applicant as a worker on his workers’ compensation policy. That much is made clear from an email sent by the third respondent to Mr Berens and also the fourth respondents on 16 June 2021 at 8.38 pm. The text of that email is illuminating and is as follows:
“Good evening Rod.
In regards to our conversation earlier this afternoon.
I do not feel comfortable with your suggestion to say that [the applicant] was working for me and to put him on my workers’ comp policy as he was not employed by me.
Backtracking to when you needed more trades on site.
I understand as a builder on the Sunshine Coast, it can be difficult to find local trades in our area.
You asked me as being a local carpenter if I knew some tradies and workers to help you undertake the task of fitting OSB board and other building tasks on your project for Mark and Tanya.
We were able to have Jason and his boys, then Blake and his apprentice Josh, then carpenters Don and Shane.
My understanding was that these guys were all working for you, except for Andrew, Josh and Junior who were and are employed by me.
As we still needed more guys, I called up Rob. On finding that he was available, I phoned you and asked whether Rob and his labourer, Brad, could work on your building project. We discussed their rate of $55.00 and $45.00 for his labourer plus GST. Mark also agreed on their rate and has said if the invoice was approved by the builder, he would then pay their invoice.
There was never any discussion on Rob or his labourer working from me.
I feel terrible that this accident has happened on your job site and also the stress you must be under.
Do you think that Barb, Mark and yourself could sit down to discuss what you can do moving forward to avoid having lawyers and other parties involved.
I am happy to be in this conversation if needed.
Kind regards,
Dave Robbie”
There is no evidence of the first respondent or Mr Berens ever responded to that email.
On 9 October 2021, Don Courtney provided a signed letter in relation to the incident at issue. Mr Courtney stated in that letter to iCare, he had provided carpentry service to Rod Berens as the registered builder on the worksite, building the Oltramare residence. He said:
“I was engaged by Rod Berens after being recommended by Dave Robbie at Rod Berens’ request in April 2021. I have provided tax invoices and activity logs to Rod Berens and Werner Weber for approval and Mark Oltramare paid them. I was regularly given task instructions by Rod Berens and my work was reviewed by him.
...
After Robert Nilon’s worksite accident, I was working with Dave Robbie when Rod Berens called Dave. Dave had his phone on speaker mode, and I overheard Rod Berens repeatedly asking Dave Robbie to make Robert Nilon’s accident claim on Dave Robbie’s insurance. Dave Robbie stated that Robert Nilon was not his employee but Rod’s. Dave Robbie said it would be dishonest to make the claim on his own insurance and he did not want to be dishonest.”
It is noteworthy in my view that in his statement dated 12 February 2022, Mr Berens refers to Mr Courtney’s letter but does not dispute the contents of the telephone conversation between he and the third respondent regarding attempts to have the applicant listed as an employee of the third respondent.
The difficulty with the first respondent’s position is that it on the one hand sets itself up as the head contractor on the worksite, but on the other purports to abrogate any and all responsibility for anyone working on that site. There are, however, certain aspects of the first respondent’s evidence which reveal it in fact had the control of the day-to-day operation of the worksite.
The first aspect is Mr Berens’ admission that they control who comes onto the worksite. This is found at paragraph 13 of his initial statement where he says “We do not let anyone on site unless we have got their own insurances. They all have got to be insured.”
At paragraph 14 of the same document, Mr Berens says “the contractors submit an invoice for their hours and that goes through us. We check the invoice and if they have done the hours, we stamp it, and send it to Mark Oltramare, the owner for payment.”
The contract between the first respondent and the fourth respondents is in evidence at page 153 and following of the first respondent’s reply. That document describes the first respondent as “construction manager, project licenced provider and consultant for the client on the work identified in the agreement as the ‘project’”.
The contract between the first and fourth respondents included a scope of work and “all responsibilities which can be reasonably inferred from those tasks, except which are specifically excluded from the scope of work.”
The contract also notes the first respondent would solicit suppliers and contractors and conduct meetings to familiarise prospective contractors with the project, together with evaluating any quotation and forward all quotations received to the fourth respondent with a recommendation to either reject it or to the award the contract.
Likewise, the first respondent was to review all proposed agreements with contractors, subcontractors, suppliers and service providers and forward an evaluation of each proposal to the fourth respondents with the recommendation that the client either reject or approve the agreement. The first respondent was also responsible for ensuring that all work required to complete the project was placed under contract and would monitor work on the project both on and off the job site “on a daily basis as required to ensure that the I-DNA Construction means, methods, techniques, sequences and procedures followed by contractors, suppliers and service providers and also in compliance with their contracts and agreements and that construction is proceeding as planned.”
The contract also made it clear the first respondent would review, evaluate and forward to the fourth respondents each request for payment received from contractors, identify whether the amount requested is correct based on work completed, material supplied in terms of the available contract and would recommend them an adjustment to any request for payment which does not accurately reflect the obligation of the client of the fourth respondent for payment.
Having accepted in the contract the responsibility set out above, the first respondent then included the following disclaimer:
“[The first respondent] will perform no work on the construction site other than to observe progress, communicate with contractors, suppliers and service providers and report progress to the client. Construction means, methods, techniques, sequences, procedures and safety on site are the sole responsibility of the contractors, suppliers and service providers working for the client.”
That disclaimer is so wide as to make one wonder at the purpose of the first respondent even being on site. The first respondent also included a provision stating it had no liability for payments due to contractors, subcontractors, tradespeople, suppliers, service providers or government authorities and there would be no contractual relationship between these and any contractor on the project.
The first, second and fifth respondents rely on the lack of payment due from the first respondent to the applicant as evidence that those two parties could not have contracted. However, as was noted in Pitcher, an agreement between two putative employers as to who was going to pay a worker is not determinative of the contractual relationship between the worker and one of the potential employers. As was noted by the plurality in Fostar, if a company assumes the detailed direction and control of agents in the daily performance of their work and those agents tacitly accept the position of subordination to authority as to the manner in which they carry out their duties, a course of action designed to prevent the relationship receiving the legal complexion which it deserves would be and indeed should be ineffectual.
In my view, this is such a case. If the first respondent’s version of the relationship were to be accepted, one might rhetorically ask why the fourth respondents ought to pay it anything, given that it merely wishes to portray itself as a conduit between the fourth respondent homeowners and persons in the position of the applicant, and indeed of the third respondent.
The lengths to which the first respondent was prepared to go to distance itself from any responsibility relating to the worksite is evidenced by an email attached to the second respondent’s Reply at page 159. In that document, Mr Berens wrote to another contractor requesting they remove from their invoice the words “all works completed as directed by Berens Construction”, following which removal Mr Berens would ensure the invoice was paid.
The contractor in question, Mr Newman agreed to do delete those words from his invoice, however, it is noteworthy that in an email dated 10 July 2021, Mr Berens wrote to Mr Newman via email and said “Thank you for subcontracting to Berens Construction.”
It seems to me that the work to be carried out on the site was at the direction and control of the first respondent. The request to alter an invoice from a contractor to apparently remove reference to the first respondent does not change that fact.
On balance, I am of the view that the contract in issue was formed between the applicant and the first respondent. In making this finding, I note the independent contemporaneous documents refer to the first respondent having the care and control of the building site, of approving and/or retailing the work carried out by contractors and also approving their invoices for payment. I reject the submission that the applicant might have contracted with the third respondent, and in doing so, I note the compelling point that if the applicant had contracted with the third respondent, not only would one have expected an invoice from the third respondent to be raised against the fourth respondents via the first respondent. Instead, Mr Berens of the first respondent requested the applicant forward an invoice to him for payment by the fourth respondents.
I also reject any suggestion that there was a contract between the applicant and the fourth respondents. True it is that invoices were made out to the fourth respondents for payment by contractors, however, in this matter, the applicant at no time raised an invoice against the fourth respondents before he was injured. Additionally, to suggest there was a contract formed between the applicant and the fourth respondents, in my view, fails to give wide enough consideration to the putative relationships involved in this case. It is not so simple as to say that an invoice was drawn against the fourth respondents and there was therefore a contract between them and the applicant. As was noted in Gothard, tribunals of fact are entitled to take a wide view of the putative relationship when undertaking the exercise of identifying the parties to a contract.

In this matter, the first respondent approved payment to persons who worked on the site. It oversaw the construction of the premises and in doing so decided what work was to be done and in what order. Although the applicant was brought onto the site by the third respondent, I find the circumstances of the applicant entering the work site to be in accordance with those set out in the third respondent’s email to the first respondent sent after the accident – namely, the first respondent was looking for tradespeople to carry out work and asked the third respondent to find them for it. The fact the applicant’s rate of pay was agreed on and the third respondent at no time sought to add a mark up of his own for the applicant’s labour is, in my view, strongly suggestive of the contract being made between the applicant and the first respondent.
Moreover, I reject the first respondent’s evidence that it did not scrutinise the work of tradespeople and labourers on site. I reject Mr Berens’ evidence that all approval of contractor invoices was outsourced to Durisol Australia (Mr Berens’ statement at page 234 of the first respondent’s Reply). That evidence contradicts the statements of the third respondent and Mr Courtney, each of whom referred to the first respondent’s control over the work site and the work carried out together with its approval of invoices raised and work carried out. The first respondent was, according to its own agreement with the fourth respondents, the head contractor and site manager. It was responsible for the build. Its own evidence contradicts the statement of Mr Berens as to the extent to which the first respondent was responsible for entering into agreements with persons carrying out work on the site.
Although I have accepted Mr Berens was absent from the site at the time the applicant commenced, I find the applicant was retained by the first respondent to carry out work on the premises. In so finding, I accept the third respondent’s version of the circumstances of the applicant’s retention, namely that the first respondent was looking for tradespeople to work on site and that Mr Berens approved the applicant being retained at a rate of $55 per hour. Such a finding is consistent with the evidence surrounding retention of other tradespeople and labourers on the work site.
The task which the applicant was carrying out at the time of his injury was one which the first respondent required to be completed. I have no difficulty finding the first respondent through Mr Berens had a conversation with the applicant at the work site on the morning of the injury. Mr Berens admits as much in his statement dated 2 February 2022 at paragraph 15. In my view, that meeting is consistent with the first respondent’s obligations as head contractor to have a presence on site and to monitor the work being carried out.
As to the formation of the contract, I accept the evidence of the third respondent recounted at [34] above over that of Mr Berens. I also accept the first respondent was responsible for setting out the tasks to be carried out on the site and the order in which they were to be completed. That is consistent in my view with the third respondent’s evidence as follows:
“40. Duracell blocks are 305mm by 600mm. Duracell blocks are woodchips bonded together. They have excellent insulation qualities. The Duracell blocks had been laid up the gable windows. There is a window that is fitted in the opening. Steel reinforcing is fitted in the block work. I said asked [sic] Rob how he felt about doing this the job. Rob said he felt confident to undertake the task. I told Rob Rod had instructed us that the blocks need to be cut out for reenforcing [sic] to be fitted. Told Rod I'll leave it with you. That was when he started on the job…
44. It is very hard to say who was his actual supervisor on site. There was a total of 4 builders on site. We were all instructed by Rod. It is a really hard one to pin down and say because there was never word of anyone being a supervisor until after the incident. Prior to the incident Rod instructed me on what was required. I also heard Rod explaining to Rob what was required to undertake the work on the Duracell gable ends. I did tell Rob that Rod wanted Rob to undertake that work. Rod the builder gave us a list of jobs that had to be completed. We would work out between us all which Job suited the individual. It just so happened we all had other things that were in the process of doing and so Rob took on that particular job.
45. I've never considered myself a supervisor and I wasn't getting paid to manage the
project. Usually, supervisors get paid quite a deal more than $50 an hour. I am just a carpenter on site that knew what jobs had to be done. I guess this was because I'd been there the longest and so the others just seemed to gravitate to me.”
The third respondent’s recollection of Mr Berens discussing with the applicant what was required to work on the gable ends is consistent with the applicant’s evidence of being instructed by Berens as to the work to be completed. Although it is apparent the conversation between the applicant and Mr Berens could not have taken place on 31 May 2021, it is apparent there was a conversation between them at some point, and I find on balance in favour of the version put forward by the applicant, broadly supported as it is by the recollections of the third respondent.
This being the case, on balance, I am of the view that the evidence in this matter discloses a contract between the applicant and the first respondent for the applicant to carry out work on the construction site.

The Nature of the contract between the applicant and the first respondent

Having determined the parties to the contract, it is then necessary to address the nature of the agreement.
A worker is defined relevantly as a person who entered into works under a contract of service or a training contract with an employer, whether the contract is express or implied, and whether the contract is oral or in writing. Additionally, a person may be deemed to be a worker in accordance with cl 2, Schedule 1 of the Workplace Injury Management and Workers’ Compensation Act 1998 (the 1998 Act).
Given the dispute in this matter, it is necessary to determine whether the applicant is either a worker or deemed worker, or whether he carried out the work at the building site as an independent contractor. Recently, the High Court delivered two decisions concerning the difference between a worker and an independent contractor in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek).
Regrettably, the recent authorities from the High Court are of limited utility in the facts of this case, as the new authorities emphasise the primacy of the terms of a written contract in construing a relationship between two entities. In the current circumstances, there is plainly no evidence of written contract or document formalising or particularising the nature of the agreement between the applicant and the fourth respondent, and accordingly as the High Court noted in its recent decisions, one must have regard to the indicia of employment factors which have been discussed in a long line of authority commencing with the decision in Stevens v Brodribb Saw Milling Company Pty Ltd (1986) 160 CLR 16 (Stevens).
In that decision, the High Court set out a number of indicia which have since been broadly applied when attempting to determine the nature of a putative employment relationship. In Stevens, Mason J stated:
“... 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.”
The relevant factors at which the Court had regard to well as follows:
(a)    mode of remuneration;
(b)    the provision and maintenance of equipment;
(c)    the obligation to work;
(d)    the hours of work and provision for holidays;
(e)    the deduction of income tax;
(f)    delegation of work by the putative employee;
(g)    the right in the employer to have a particular person to do the work;
(h)    the right to suspend or dismiss the person engaged;
(i)    the right to the exclusive services of the person engaged, and
(j)    the right to dictate the place of work, hours of work and the like.
A contracted employment (or contract service) can be distinguished from a contract of services (one of independent contractor). The factors relevant to finding a putative employee is in fact the contractor include:
(a)    work involving a profession, trade or distinct calling on the part of the person engaged;
(b)    the provision by the person engaged of her own place of work or equipment;
(c)    creation by the person engaged of goodwill or saleable assets in the course of the person’s work;
(d)    the payment by the person engaged, from his or her remuneration, of business expenses of any significant proportion, and
(e)    payment to him or her of remuneration without deduction of income tax.
In determining the nature of a putative employer/employee relationship, it is important to keep in mind the nature of the agreement at issue, and not others to which the parties may have entered into with others, even if those agreements were proximate in time to the contract at issue. Whether the first respondent entered into an agreement with the fourth respondents to the effect it would not employ people on the job site is not a relevant factor in determining the nature of the relationship between the first respondent and the applicant.
There is no issue in these proceedings that the applicant was to be paid an hourly rate of $55. The applicant’s evidence is that was a set hourly rate at which he was employed, whereas the evidence of both the first and third respondent is it was a $50 per hour rate plus $5 GST.
The circumstances in which the applicant came to be working at the job site are in issue. I accept Mr Berens’ evidence that he was not on the job site until the morning of the applicant’s accident. However, as has already been noted, that is not determinative of the nature of the relationship between the applicant and first respondent, however, for reasons already stated I prefer the evidence of the applicant and third respondent as to the manner in which the applicant was engaged to carry out work on the site.
The first respondent through its evidence and submissions attempts to portray itself as nothing more than a coordinator which loosely arranged for work on the building site. However, that approach is not born out by the balance of the evidence.
The first respondent, 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. Mr Berens’ attempt to have the third respondent have the applicant listed post facto as a worker on his workers’ compensation policy is, in my view, evidence of an attempt to avoid any liability in relation to this matter and reflects poorly upon him.
I accept Mr Robbie’s evidence concerning the conversation between he and Mr Berens about obtaining additional workers for the job site, and in relation to their conversation after the accident had taken place, about which Mr Robbie emailed Mr Berens. Pointedly, at no point does the first respondent and/or Mr Berens seek to contradict this aspect of the third respondent’s evidence.
As previously noted, I accept that the first respondent through Mr Berens contacted the third respondent asking him to arrange for local tradespeople to attend on and work at the building site.
The relevant passage of Mr Robbie’s email to Mr Berens on 16 June 2021 is as follows:
“As we still needed more guys, I called up Rob. On finding that he was available, I phoned you and asked whether Rob and his labourer, Brad, could work on your building project. We discussed their rate, $55.00 and $45.00 for his labourer plus GST. Mark also agreed on their rate and has said if the invoice was approved by the builder, he would then pay their invoice.”
Notwithstanding the unreliable nature of Mr Berens’ evidence, there are elements of it which are independently corroborated. They are the fact that he was not on the job site until 2 June 2021, being the date of the accident. The documents attached to Mr Berens’ statement include receipts from accommodation providers and Jetstar Airlines confirming that he was in Mackay in the days leading up to the accident at issue, including from the time the applicant started on site.
The first respondent submitted that without evidence of what took place in discussions on the Friday before the applicant commenced employment, the Commission could not be satisfied that the first respondent in any way engaged the applicant. I disagree with that submission noting that Mr Robbie’s evidence concerning the circumstances in which the applicant came to be on site is accepted.
Whilst I do not accept the applicant’s evidence concerning his alleged discussions with Mr Berens on the Friday before his alleged incident, as already indicated, I do not criticize him for this incorrect recollection given the severity of his closed head injury. What is, in my view, apparent is that the first respondent engaged the applicant to perform work on the construction site at its behest. Albeit that Mr Robbie arranged for the applicant to attend on the site, he did so because, as I have accepted, the first respondent needed more labour and trades on site.
A repeated theme of the various submissions in this matter has been that there could be no contract between either of the first or third respondents and the applicant because there was never any payment from those entities to the applicant and in any event the first and third respondents contend, the fourth respondents were responsible for payment. As is noted in the applicant’s submissions, he was injured only a couple of days after commencing on the work site, and therefore, a contention that he would not be paid by the first respondent is nothing more than that. In any event, even were it the case that the fourth respondents were responsible for payment to the applicant, the decision in Pritchett referred to above makes it clear the tribunal of fact must look behind the mere fact of who may be providing payment to a putative worker and examine the relationship in full.
In this matter, the first respondent required tradespeople to carry out work on the gables of the construction site. The evidence on balance discloses that the first respondent had the care and control of the job site and provided materials for the applicant to work with.
The evidence also discloses the applicant was not carrying out any other work at the time of the accident. One of the matters which is in contention is whether the applicant employed his nephew as a labourer on site. If this was the case, it would be indicative of the applicant working as a contractor rather than an employee of the first respondent.
On balance, I do not believe the applicant employed his nephew as a labourer. As with the third respondent’s purported employment of the applicant, were the applicant the employer of his nephew at the site, one would expect there to be a mark-up or a loading on the rate payable to the nephew for the work carried out at the site. This is not the case. The mere fact the applicant arranged for his nephew to be on the site does not mean that there was an employment relationship between them. Rather, in my view, the evidence discloses on balance that the applicant’s nephew was not an employee of the applicant and was instead to be paid at the rate of $45 per hour by either the first respondent or the fourth respondents.
I accept the applicant was obliged to carry out the work as set out by the first respondent as part of its overall care, control and management of the work site. He was to work eight hours per day and was not to be paid on a per task basis, but rather per hour. Those findings are, in my view, indicative of an employment relationship.
There is no suggestion the applicant’s income tax was to be deducted by the first respondent. The evidence in relation to that aspect of the case is lacking and the applicant bears the onus of proof in establishing that he was an employee of the first respondent. This indictor favours a construction of the applicant being a contractor rather than an employee.
I accept the applicant’s submissions that there was no suggestion he delegated his work to his nephew who was on site as a labourer. The applicant was being paid per hour, as was his nephew, albeit at a lower rate. There was no suggestion the applicant was able to have his nephew carry out the work on the applicant’s behalf. Moreover, even were it the case that the applicant had the right to delegate his work, there is no evidence he did so. It is the fact of delegation rather than the right to do so, which is important when considering whether the applicant was a worker, deemed worker or contractor.
I have little difficulty in accepting that the applicant was to work exclusively for the first respondent for the period of his engagement, and that the first respondent 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.
The first respondent’s contract with the fourth respondents reveals it essentially had the power of veto for payment of subcontractors or persons on the site. In my view, that is indicative of a right held in them to suspend or dismiss the contractors so engaged.
The applicant submitted the work which he carried out before commencing work on the job site at issue was of a different nature to that which he engaged with the first respondent. In particular, the applicant submitted that work was in the nature of home handyman work rather than home building work. On balance, I am convinced this is the case. A number of entries in the applicant’s bank records demonstrate he had been carrying out some work, however, I accept the applicant’s detailed statement evidence that the prior work was more in the nature of home handyman work rather than the specialist building work he was carrying out on the job at issue.
In my view, primacy must be given to the nature of the contract in question and the work carried out at the job site. Whilst the Commission should inform itself of the surrounding circumstances of the applicant’s work, the important consideration is whether the contract at issue falls within the definition of that of worker or deemed worker.
Additionally, the applicant’s own evidence was that he had been carrying out property maintenance work from approximately 2020 until the time of the accident. He, quite appropriately, admitted to operating as a sole trader but was not registered for GST purposes at the time of his injury.
The applicant stated at [55] of his statement:
“In terms of the equipment on the site, I supplied and used my own personal tools which included electric saws, battery tools including drills, saw horses, tool belt, spirit levels and straight edges. This is normal for a carpenter to use their own personal tools. These are my personal tools that I carry about on the back of my work ute.
56. Other tools and equipment were provided by Berens Construction and these included the scaffolding, which was used on site. I believe that Berens Construction provided wheelbarrows. There were some other saws and power tools on the job site, which I believed were provided by Berens Construction.
57. I preferred to use my own personal tools because I do maintain my tools in good working order especially power tools, but other tools were certainly provided by Berens Construction.”

On balance, these indicia of the relationship in my view favour a construction that the applicant was a contractor rather than an employee.
There is no evidence that the applicant engaged in the payment from their remuneration of significant of business expenses of any significant proportion.
The applicant’s evidence reveals he was, before engaging in the work at the job site at issue, carried out work for which he was paid by BW Rectification Group, Miranda Wells and Timothy Hill in the nature of rectifying water damage in a kitchen. He obtained that job through an advertisement on the internet. Additionally, there was work which the applicant obtained for which he was referred by real estate agent, Simon Morse, to rectify white ant damage. In my view, that work is more than in the nature of home handyman work than specialist work in the trade of a builder and carpenter.
There is no issue applicant’s business, Rob Nilon Building and Carpentry Works advertised with Hipages .
The applicant provided a supplementary statement in which he explained the circumstances in which advertisements were placed for his business on Hipages and on service.com.au. That evidence in my view should be accepted. The applicant states:
“5.     At page 180 of the Reply filed for the second respondent, reference is made to an entry on a webpage called “service.com.au”. service.com.au telephoned me in January 2021 and pestered me to advertise with them. I did not, of my own volition, contact service.com.au, they telephoned me. They said that they had done a builder’s licence search and in particular, a builder’s licence search in Queensland and they obtained my details from that builder’s licence search and then they, of their own volition, contacted me in an attempt to try to get me to advertise with service.com.au. I did not approach them. I then refused and service.com.au were told that I did not want any advertising. They then offered a one free job lead in order for me to take up advertising with them. I refused that. The male person at the end of the phone from service.com.au said that they would do it anyway at no charge to me. Any job leads that I have received from service.com.au are treated as spam and they are diverted to my spam email folder. Service.com.au have not hassled me for payment for their services and whilst I do not want to be nor have ever requested to be part of the advertising system, service.com.au will not take down my listing from their web page. I basically have not contacted service.com.au. I have never paid service.com.au any money at all for advertising. I have never entered into a contract neither written nor verbal with service.com.au to pay any money or consideration for any advertising services, that service.com.au provided.
6.      I refer to the Reply that has been filed by Hall & Wilcox Lawyers on behalf of the workers compensation nominal insurer.
7.      That Reply indicates, on page 11, an entry with hipages.com.au advertising with hipages.com.au. In approximately October 2020, hipages.com.au contacted me by telephone. Again, they had noticed my builder’s licence through Queensland QBCC, which is Queensland Building and Construction Commission. They said that they would, like service.com.au, provide free advertising to me. I did in no way contact hipages.com.au. I did not approach them for any advertising services. They contacted me. I did not agree to enter into any contact with hipages.com.au for them to provide me with any advertising. They went ahead and advertised my business, notwithstanding that I did not want that to occur. hipages.com.au gave me one free month of advertising and I did one job in that first month in late 2020. I worked for a person called “Simon Mores”. That was a residential building site at Elanora. That was to fix water damage to a kitchen in a residential Unit premises. Mr Mores was not a builder. He was a private owner of a residential premises and he basically had me to come in and fix the water damage to a kitchen, which included kitchen cupboards and water damage to plaster work in the kitchen. This job took about a week’s worth of work. He also asked me to put new benchtops in when he knew that I was a Joiner as well.
8.      After I finished that job, hipages.com.au rang and asked me if I would continue advertising with them and paying them money, which was at a rate of $190.00 per month. The payments were made on my wife’s, Barbara’s, Visa card and I advertised with hipages.com.au. They wanted 6 months contracted advertising. After about 4 months, my credit was over $600 for what I had paid & not used. I then had a dispute with hipages.com.au. I had to go in for another cancer operation. That was in late January 2021. They indicated that I needed to have a doctor’s certificate to cancel the advertising, which was the 6 month contract. They suspended the contract for one month. But they continued debiting $190.00 per month after February. I tried to Cancel everything with Hipages.
9.      I did not take up any other contract of advertising with hipages.com.au after that and I did no further jobs through hipages.com.au between January 2021 and June 2021.
10.    My wife had to cancel her Visa card because after 6 months, hipages.com.au were still trying to take payments out, even though we had an agreement with them that no further advertising was to be done.
11.    We had to take the drastic step of terminating my wife’s credit card, so hipages.com.au could not get at the money on the credit card.
12.    In the Reply filed by Hall & Wilcox Lawyers on behalf of the nominal insurer, at the Annexures, page 201, there is reference made to a LinkedIn profile that I have. That LinkedIn profile was created by my son, Mark Nilon, in approximately 2005. I had nothing to do with the setting up of that LinkedIn profile. I did not receive any work or any job offers from that LinkedIn profile at all at any stage after 2005.”
I accept the applicant’s evidence as to the circumstances surrounding his business being advertised, and as to the nature of the work carried out by him in the lead up to his accepting the role on the first respondent’s job site.
The applicant rendered an invoice to the first respondent dated 30 June 2021. That invoice was rendered for carpentry work at an hourly rate of $55 and is issued by the applicant, not by his business. It remains unpaid.
In my view, the evidence discloses that the reward for which the applicant negotiated was done so on a commercial basis. The applicant negotiated his own rate and that of his nephew.
The first respondent did not directly have the capacity to maximize the applicant’s activities for their own profit by, for example, adding value to the rate it paid him in order to increase the amount billed to the fourth respondents. However, the first respondent was plainly acting as site supervisor on a for-profit basis. There would be no reason otherwise for it to be present on the work site or to have any involvement with it. The submission by the second respondent that “the first respondent could not profit from the management of the activity performed by the applicant” is not, in my view, sustainable. The first respondent profited from the applicant’s activity because that activity progressed the completion of the building works for which the first respondent was ultimately responsible and for which it would be paid by the fourth respondents.
Nevertheless, I accept the applicant 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.
In terms of an increase in charge out rate, there is evidence in the proceedings that the fourth respondents wish to increase the rate payable to the third respondent for the good work which he had done on the site. This, in my view, is indicative of an ability on the part of persons engaged to work on the building site and being able to commercially negotiate their own rates.
On balance, I am satisfied that the applicant was a contractor on the site in question rather than a worker, for the reasons set out above. Notwithstanding the payment of an hourly rate, the applicant had to pay his own tax and superannuation, provided his own tools and equipment and did not hold himself out as representing the first respondent. Whilst some indicia point to a master-servant relationship, an examination of the totality of the evidence in my view does not support a finding of an employment relationship between the first respondent and the applicant.

Deemed worker

When assessing whether a person who would otherwise be considered a contractor is a deemed worker, it is necessary to examine the indicia in cl 2 of Schedule 1 of the 1998 Act.
In this regard, I note the applicant was clearly engaged in a contract for services for an amount in excess of $10. Given the nature of the work which the applicant advertised for was, as outlined in his supplementary statement, so materially different to that which he was carrying out on the job site at issue, I find the work performed at the time of the applicant’s injury was not incidental to a trade or business regularly carried on by him in the applicant’s own name or by his business.
That finding is also supported by the applicant rendering his invoice dated 30 June 2021 to the first respondent in his own name, not that of his business. Moreover, the mere fact a person holds an ABN is not fatal to their status being that of a deemed worker. It is instead necessary to examine the totality of the evidence and to make an appropriate determination on the facts of each case.
The respondents have submitted that in circumstances where the applicant was able to engage a labourer to assist him to perform the work, it would seem there was “a prospect of the applicant being able to subcontract if he so wished.”
I do not believe this to be the case, as the applicant’s nephew was to be paid at a set rate, and there is no suggestion he was either going to be paid by the applicant or that the applicant would sell his nephew’s labour at a marked up rate to make a profit from it. Indeed, there is no evidence at all of any commercial arrangement between the applicant and his nephew. Rather, the evidence simply discloses he advised the third respondent of his nephew’s availability to attend the site to carry out labouring work, which he then did. In any event, even if the applicant had the ability to subcontract the work he was carrying out, there is no evidence at all that he did so and I accordingly I find that he did not.
Taking into account the totality of the evidence, and accepting as I do the applicant’s evidence concerning the difference between the work he was carrying out for the first respondent and that which he had undertaken previously for other people, I am comfortably satisfied on the balance of probabilities the applicant was not engaged in work incidental to a trade or business which he regularly carried out in his own name. Indeed, the evidence in the applicant’s supplementary statement discloses he had not obtained work through the advertising of his business for approximately six months before the injury at issue.
This being so, in my view it cannot be reasonably said the applicant regularly carried on a business undertaking work of the nature which he was carrying out at the time of his injury.
Given the above findings, I am of the view the applicant satisfies the requirements of a deemed worker of the first respondent.

Payment of compensation

There is no issue that a finding for the applicant on the question of worker or deemed worker will lead to an award in his favour for the payment of compensation. The matter was contested purely on the question of liability, and neither injury nor the quantum or the duration of any entitlement to benefits was placed in issue or addressed by the respondents. Likewise, no issue was raised to counter the assertion the applicant has, since the accident, remained totally incapacitated for employment.
I accept the Certificates of Capacity completed by the applicant’s general practitioner Dr Coates as evidence of his ongoing total incapacity. No issue is taken with those certificates, and the respondents offer no medical evidence to contradict Dr Coates’ assessment that the applicant has no residual earning capacity.
No wages schedule was filed by any of the respondents, each of whom quite appropriately took no issue with the quantum of benefits payable to the applicant in the event he succeeded on the question of liability.
There is also no controversy in the proposition the first respondent was uninsured for workers compensation purposes. Orders will therefore be made for the payment of weekly compensation by the second respondent, with the first respondent ordered to reimburse the second respondent for any compensation paid by it.
Given there is no contest raised as to quantum, it is appropriate to adopt the figures in the Application as to the amount payable to the applicant. There is no issue the applicant’s PIAWE is $2,200 per week and accordingly the first respondent will be ordered to pay weekly compensation as follows:
a. for the period 2 June 2021 to 1 September 2021 pursuant to section 36 at the rate of $2,090 per week, and
b. for the period 2 September 2021 to date and continuing pursuant to section 37 at the rate of $1,650 per week.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.

[2022] NSWPIC 667

5 December 2022