NSW Heritage Office v Andrews

[2006] NSWWCCPD 87

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:NSW Heritage Office v Andrews [2006] NSWWCCPD 87

APPELLANT:  NSW Heritage Office

RESPONDENT:  Lincoln Andrews

INSURER:GIO General Limited

FILE NUMBER:  WCC 16740-03

DATE OF ARBITRATOR’S DECISION:          4 March 2004

DATE OF APPEAL DECISION:  16 May 2006

SUBJECT MATTER OF DECISION:                Worker

PRESIDENTIAL MEMBER:  Acting Deputy President Martin

HEARING:On the papers

REPRESENTATION:  Appellant:      Sparke Helmore

Respondent:   Owen Hodge Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 4 March 2004 is confirmed.

NSW Heritage Office is ordered to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 30 March 2004 NSW Heritage Office (‘Heritage Office’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 March 2004.

1. The Respondent to the Appeal is Lincoln Andrews (‘Mr Andrews’). In April 2001 Mr Andrews first commenced work for Heritage Office. At the time he commenced he was studying for a master’s degree, having already a Graduate Diploma in Applied Science (materials conservation) and a Masters in Heritage Conservation.

1. On 20 March 2002 Mr Andrews injured his left shoulder whilst walking up stairs carrying papers. Having reported the incident he consulted a nearby doctor, and then returned to work. Mr Andrews continued working until the 27 March 2002, when he went off work. He was off work for several weeks then returned to Heritage Office until stopping work in February 2003 for unrelated reasons.

1. Proceedings were commenced in the Commission on 24 October 2003 and the arbitration was on 1 March 2004. It was agreed between the parties that the arbitration would be limited to a single issue of whether Mr Andrews was a worker as defined by section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. Mr Andrews gave evidence both orally and in a written statement. At the conclusion of the arbitration the Arbitrator gave an ex tempore decision which is set out below.

1. Mr Andrews was referred for medical assessment on 25 March 2004 and a copy of the Certificate was sent to the parties on 10 May 2004.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 4 March 2004 records the Arbitrator’s orders as follows:

“1.The Applicant [Mr Andrews] is a worker as defined in section 4 of the Work [sic] Injury Management and Workers Compensation Act 1998.

2.The Respondent [Heritage Office] is liable to pay compensation to the Applicant in accordance with the Workers Compensation Act 1987 for the injury the Applicant sustained to his left arm on 20 March 2002.

3.The matter is referred to an Approved Medical Specialist to be selected by the Registrar for medical assessment of the Applicant.”

1. In giving his ex tempore decision, the Arbitrator at page 28 of the transcript found:

“…he [Mr Andrews] did at the time he commenced the work and thereafter, in my view, was under a great degree of supervision. He was throughout the course of his day speaking with a Mr Stewart Reeds, whom he described as a supervisor, and it really seems to me that he had to subject himself to a system of work that was devised by the New South Wales Heritage Office”.

1. The Arbitrator also found at page 28 of the transcript that:

   “The system that was in place by which Mr Andrews had to complete his heritage assessments for the New South Wales Heritage Office, being a system that comprised steps of researching the sites which had been nominated for him, meeting with others of specialist expertise within the Heritage Office, preparing a report based on those two steps and submitting that report to his director and reviewing and revising and making better that report if that director was unsatisfied with it or felt it needed more work, indicates to me that there was really a great level of control exercised by the New South Wales Heritage Office  over Mr Andrews’ activities”.

1. The Arbitrator further found at page 28 of the transcript that:

“…he [Mr Andrews] was not required initially to have an ABN in his initial discussions by way of telephone with Mr McDougall and also on the first day upon which he presented at the New South Heritage Office to perform heritage assessments. It seems to me that the evidence establishes that the requirement was only made known to Mr Andrews after he had completed, as required by the administration section of the New South Wales Heritage Office, some form of employment form  in which he had to quote his tax file number”.

1. The Arbitrator found at page 29 of the transcript that:

“…the evidence is such that Mr Andrews could not be considered to be conducting any independent business”.

“In my view the evidence is such that he really had no independence at all in the way he went about his work. He used the equipment of the New South Wales Heritage Office, predominantly all work was undertaken at the Heritage Office, and as I said before, critically under the direct supervision of Mr Stewart Reeds. He was paid at an hourly rate in accordance with invoices or documents he submitted each fortnight rather than being paid for a particular product”.

ISSUES IN DISPUTE

1. The issues in dispute identified by the Heritage Office are:

1.The Arbitrator failed to take into account all relevant factors in making his determination.

2.Made a finding that Mr Andrews was a worker against the weight of the evidence.

3.Mr Andrews failed to discharge the onus of proof in respect of Schedule 1 of the 1998 Act.

ON THE PAPERS REVIEW

1. Section 354(6) of the 1998 Act provides:

“(6)       If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. The Heritage Office is agreeable to the matter being dealt with on the papers, whilst Mr Andrews does not agree to the appeal being dealt with on the papers.

1. I have before me all of the evidence and submissions that were before the Arbitrator, plus all additional submissions filed in the appeal. I also have a copy of the transcript of the arbitration hearing held on 1 March 2004. The transcript is incorrectly dated 1 April 2004, although the Certificate of Determination is dated 4 March 2004 and refers to the arbitration being held on 1 March 2004. I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2) of the 1998 Act, in Fletchers International Exports Pty Ltd v Regan [2004] NSW WCC PD 7, Deputy President, Dr Gabriel Fleming stated:

“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an “amount of compensation at issue on the appeal” to pass the threshold test in section 352(2)(b) …The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”

1. I am satisfied that although the Arbitrator’s decision did not involve an ‘award’, the decision does “have a real capacity to put the amount of compensation, determined by reference to the decision or the claim in issue in the appeal”. I am therefore satisfied that the section 352 threshold has been met and I grant leave to appeal.

FRESH EVIDENCE

1. Neither party asks that fresh evidence be considered.

EVIDENCE

1. Mr Andrews provided a written statement and also gave oral evidence at the arbitration. Documentary material was also made available on behalf of Mr Andrews and the Heritage Office. The following is a summary of the evidence:

• Mr Andrews first became associated with the Heritage Office whilst undertaking a thesis for a masters degree at Sydney University.

• In early 2001 Mr Reece McDougall, Assistant Director of the Heritage Office phoned Mr Andrews.

• Mr McDougall asked Mr Andrews if he was interested “in working for the New South Wales Heritage Office”. Mr Andrews replied that he was and that he was at university. A meeting was organised after Mr McDougall asked Mr Andrews what his hourly rate was, to which Mr Andrews replied $20 an hour. At this time there was no discussion about hours or similar topics, however Mr McDougall did inform Mr Andrews that the type of work would be heritage assessments.

• At the time of starting with the Heritage Office Mr Andrews had no other employment and the Heritage Office was his only employer once he started.

• Less than a week after the phone conversation, the meeting took place at the Heritage Office. The work was discussed which involved assessing heritage sites. When Mr Andrews asked about the hours, he was told to turn up between 9.30 and 10 o’clock. There was no set hours to work and no mention of the finishing time. At that meeting there was no discussion about how the work would be carried out.

• Mr Andrews commenced shortly after the meeting and on the first day was asked to sign a work agreement. The work agreement was signed by the Acting Assistant Director on 17 April 2001 and by Mr Andrews on 19 April 2001. the letter states:

“I am pleased to confirm the Heritage Office’s offer to engage your services as an in-house contractor on a part time basis. The proposed agreed tasks will be undertaken at the rate of $20.00 per hour to an upper limiting fee of $10,000 as previously discussed with me.

The required services include the preparation of inventory documentation of selected heritage items for the Heritage Council’s consideration for listing on the State Heritage Register, and other tasks as required.

Conditions of this contract are as follows:

1.   That you undertake to ensure that you are covered by a personal accident insurance policy for the duration of the contracting;

2.   That you undertake to inform the Office if you intend to become involved in any other consultancy/contracting which might give rise to a conflict of interest with your activities in the Office;

3.   That you undertake to ensure that information gained in pursuance of or arising out of this agreement will be treated as confidential and that all official records, documents or other material obtained will remain the property of the Office;

4.   The Office will meet the cost of essential travel and other expenses necessarily incurred by you when engaged on Office business on the basis of prior approval being obtained for such travel or for expenses to be incurred;

5.   The agreement shall be deemed to have commenced on and from 9/4/2001;

6.   Payment to be made on receipt of invoices in arrears of work performed; and

7.   That you abide by the rights and obligations as outlined within the Office’s Code of Conduct and Quality of Service Guarantee.

8.   Either party to be able to terminate the agreement on one weeks notice.”

• Mr Andrews was asked at the arbitration about condition 1 in the work agreement that he signed on 19 April 2001 and answered:

“That meant that I needed to have my own insurance for accidents that happened inside and outside of work. I wasn’t happy with that. I spoke to my supervisor about that. It was the first time I’d ever seen that in any type of work I had. We had words about it. My supervisor just said to sign the form. So I did”.

• On 13 September 2001 Mr Andrews signed a similar work agreement to the one he signed on 19 April 2001. In the new work agreement the “current contract for services” was extended and the hourly rate increased to $30. Conditions 1 to 8 were the same except the the new agreement commenced “on and from 17 September 2001”. At the end of the conditions in the work agreement of 13 September 2001 there was the following paragraph which was not in the work agreement of 19 April 2001:

“Your manager for the project will be the PHO State and Commonwealth Government Heritage Management, Cameron White and your day to day supervisor is Stewart Read”.

It appears that this was the work agreement in force at the time of the accident, 20 March 2002.

• Mr Andrews was then shown where he was to sit, which was opposite “other employees” of the Heritage Office and in front of a computer screen. Mr Andrews was shown how to log in and was provided with a log-in number for the computer. Throughout the afternoon Mr Andrews was introduced to other people at the Heritage Office.

• Mr Andrews was instructed to read the research that the Heritage Office had received on the sites. His work involved preparing reports which were then submitted and he would be told when his reports required further research. Mr Andrews was paid by the hour, not by the number of reports.

• Mr Andrews prepared an invoice for payment based on an invoice he was shown by the Heritage Office. Mr Andrews initially filled out the wrong form for his first invoice.

• Whilst working at the Heritage Office Mr Andrews used their computers, phones, stationary and other necessary tools. Mr Andrews explained there were times when he would send work to his home computer via email.

• Mr Andrews was provided with supervision when determining the level of heritage assessment he would assess the sites on and on the legal side of assessments. He was also instructed on ownership information and how to meet owners.

• On travelling to sites Mr Andrews would first seek permission and was always with a supervisor at the sites. He would travel to the sites in the Heritage Office’s car.

• Mr Andrews had no business card, but when told to get an ABN by the Heritage Office was shown a website for that purpose. When registering for the ABN he also registered a business name, Lincoln Andrews Heritage.

• It was never indicated to Mr Andrews that he would be provided with sick leave or holiday leave.

• At the Arbitration Mr Andrews was asked: “so what did you understand the nature of the engagement between you and the Heritage Office was?” Mr Andrews replied:

“that I was employed by them, I would work at the Heritage Office until the heritage assessments were finalised, were completed”.

• The documentary evidence includes three sample “Tax Invoices” from Lincoln Andrews, Heritage Officer, setting out Mr Andrews home address, phone number and ABN. The invoices ask that cheques be posted to “NSW Heritage Office, Parramatta”.

• The documentary evidence also includes two time sheets for the period 25 February 2002 to 22 March 2002 and 25 March 2002 to 19 April 2002. These are standard forms titled NSW Heritage Office and completed in the name of Lincoln Andrews. There are a number of columns including the date worked, start time, lunch time, finish time and daily hours worked. The various columns have been filled in. When looking at the time sheets in the four week period 25 February 2002 to 22 March 2002 it is seen that Mr Andrews consistently worked a four day week with the fifth day at university. The average hours worked is 25.25 over the four days. Maxwell Gray, Office Manager, for the NSW Heritage Office has stated in correspondence which was before the Arbitrator that “Lincoln Andrews was not required to complete them”. Mr Andrews was asked at the Arbitration:

“is whether or not the reason that you filled in those forms was you were required to or because it assisted you in calculating the hours that were invoiced?”

Mr Andrews answered “I was asked to fill them out”

• Mr Andrews was asked after completing the reports who would “sign off” on those reports, “for approving the report”. Mr Andrews answered “ultimately it would have been Reece McDougall [Assistant Director Heritage Office] after all the meetings”.

• Maxwell Gray, Office Manager, of the Heritage Office provided a written statement where he stated that Lincoln Andrews “was not an employee, but engaged as a Contractor with the NSW Heritage Office. He was engaged on contract for his services to the NSW Heritage Office”. Mr Gray further stated that “Lincoln was not bound by the usual Monday to Friday, 8 hours a day routine. He would submit a Tax Invoice, each fortnight, for the number of hours he had worked”.

• Mr Andrews was asked at the Arbitration about working outside the normal start and finish times and “did you have to get anyone’s permission to do that?” He answered “I would inform my supervisor”. Mr Andrews was then asked “did they ever say, “No, you can’t do that, or “You have to be here”?”. Mr Andrews answered “sometimes they told me that, yes”. On then being asked “how often did they say that? How often did they refuse your request to start outside of 9.30 to - -“. Mr Andrews answered “oh, not many times, or else they would inform me a week earlier if there was something on not to turn up any later than 9.30 or to be at work on a Thursday or something if we had a meeting with the Heritage Advisory Committee or – yeah”.

SUBMISSIONS

1. The Heritage Office submits that the finding made by the Arbitrator, quoted by me in paragraph 7 above, is not supported by the evidence given by Mr Andrews at the arbitration. Mr Andrews submits that the Arbitrator was in the best position to weigh up the conflicting evidence.

1. The Heritage Office submits that the finding I have quoted at paragraph 8 above is not supported by the evidence and that the only evidence indicative of control was the evidence of Mr Andrews that he would sometimes be asked to revise his reports. Mr Andrews submits that the evidence of control went far beyond choosing sites to be researched.

1. The Heritage Office submits that the Arbitrator took into account irrelevant evidence when making a finding indicative of employment. The evidence is referred to in the finding I have quoted in paragraph 9 above. Mr Andrews submits that although some of the facts were ambiguous, the Arbitrator was in the best position to determine the issue.

1. The Heritage Office submits that the evidence of the financial arrangements such as payment at an hourly rate is indicative of a contractual relationship and not employment. Mr Andrews submits that although some of the evidence was ambiguous the Arbitrator was in the best position to determine the issue.

1. The Heritage Office submits that the Arbitrator failed to take into account the fact that Mr Andrews was not provided with sick, holiday or long service leave and that tax and superannuation were not deducted from his earnings. Further the contract stated Mr Andrews was able to work elsewhere and required his own personal accident insurance. Mr Andrews submits these issues were fully ventilated before the Arbitrator.

DISCUSSION AND FINDINGS

1. This appeal turns on whether Mr Andrews was a worker for the purposes of the 1998 Act. Section 4 of the 1998 Act defines worker as follows:

“worker means a person who has entered into or works under a contract of
service or training contract with an employer (whether by way of manual
labour, clerical work or otherwise, and whether the contract is express or
implied, and whether the contract is oral or in writing)...”

1. As Deputy President Fleming stated in the matter of Surgenor v Cenehill Pty Limited t/as Rocks Real Estate [2004] NSW WCC PD 4:

“The determination of whether a person is a ‘worker’ under these provisions requires a consideration of the totality of the evidence of the nature of the relationship between the parties (Hollis v Vabu Pty Ltd (2001) 207 CLR 21). There may be a number of relevant indicia, including the degree of control over the work that is exercised by the employer, the nature of the business relationship between the parties, the skills required for the work, the degree of supervision and the financial arrangements between the parties. Deputy President Byron discussed the relevant law on this issue in the matter of Zhao v Monlea Pty Ltd t/as Nordex Interiors [2003] NSWWCC PD 11”.

Ground 1 - The Arbitrator failed to take into account all relevant factors in making his determination

1. The Arbitrator in his ex tempore decision, recorded at page 28 of the transcript, refers to Mr Andrews “throughout the course of his day speaking with a Mr Stewart Reeds, whom he described as a supervisor”. This evidence was given by Mr Andrews at the arbitration and is recorded at page 19 of the transcript. There was sufficient evidence before the Arbitrator demonstrating that Mr Andrews was subject to supervision and was utilising the resources and equipment of the Heritage Office. The Arbitrator refers to the exercise of control by the Heritage Office, particularly in regard to the preparation and reviewing of reports. Included in the evidence I have summarised in paragraph 19 above is the evidence that when travelling to sites Mr Andrews would first seek permission and always be accompanied by a supervisor, was asked to fill out time sheets and would inform his supervisor if he worked outside the normal start and finish time.

1. The Arbitrator specifically refers to the financial situation between Mr Andrews and the Heritage Office, with reference to Mr Andrews having a business name and acquiring an ABN after commencing at the Heritage Office. Reference is also made by the Arbitrator to the evidence that Mr Andrews was paid on an hourly basis, rather than for a “particular product”. The evidence that I have summarised above in paragraph 19 includes evidence that Mr Andrews worked only for the Heritage Office and had no business card. The Arbitrator was of the opinion that Mr Andrews “could not be considered to be conducting any independent business”.

1. The Arbitrator’s decision was ex-tempore and brief. As discussed by Deputy President Fleming in Snow Confectionary Pty Ltdv Askin [2004] NSW WCC PD 56:

“It is not necessary for an Arbitrator to give lengthy reasons for their decision. Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length, nor specify and examine all relevant and judicial authority on the matters decided.”

1. Although the Arbitrator’s findings could well have been more detailed, it is my view that he considered the evidence and the various indicia relevant to the issue of worker. I can see no error in the Arbitrator’s reasoning and findings on this issue. I have reviewed the evidence before the Arbitrator and read the transcript of the proceedings at the arbitration. Accordingly this ground of appeal is not made out.

Ground 2 - Made a finding that Mr Andrews was a worker against the weight of the evidence

1. The Heritage Office submits that the Arbitrator made a finding that Mr Andrews was a worker against the weight of the evidence. In John Robinson t/as Robinson’s Pharmacy v King [2005] NSW WCC PD 39 (‘Robinson’) Deputy President Byron stated:

“The weight and relevance of the evidence is a matter in the discretion of the Arbitrator, upon due consideration of that evidence. In circumstances where it can be demonstrated that the Arbitrator has failed to exercise his discretion fairly and lawfully, the decision may be overturned. The circumstances in which this occurs are where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence his decision, made a material mistake as to the facts or has failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, and Re National Roads and Motorists Association Ltd [2003] FCAFC 206). However, in making an assessment of the matter, the Arbitrator’s decision must be read as a whole, (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444), and without combing it for error, (Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259)”.

1. I have summarised the evidence that was before the Arbitrator in paragraph 19 above. Mr Andrews was not entitled to sick or holiday leave, tax was not deducted from his earnings and he was required to have his own personal accident insurance. At the same time Mr Andrews worked solely for the Heritage Office, had no employees and used their equipment. In my view, it was reasonably open to the Arbitrator to arrive at his decision on the issue of worker and I find accordingly. This ground of appeal does not succeed.

Ground 3 - Mr Andrews failed to discharge the onus of proof in respect of Schedule 1 of the 1998 Act

1. The Heritage Office says finally that Mr Andrews failed to discharge the onus of proof in respect of Schedule 1 of the 1998 Act. This schedule provides that in certain circumstances a contractor may be a deemed worker. This schedule was not raised by Mr Andrews or the Arbitrator in his decision and is not relevant as Mr Andrews was found to be a worker in accordance with the definition contained in section 4 of the 1998 Act.

SUMMARY

1. Having considered all of the evidence in this matter and after reading the transcript of the proceedings before the Arbitrator, I am satisfied that the Arbitrator was entitled to find that Mr Andrews was a worker within the meaning of section 4 of the 1998 Act. As Deputy President Byron stated in Robinson’s case, “The test is not whether on a consideration of the evidence on appeal, a Presidential Member agrees with the decision, but whether it was reasonably open to the Arbitrator to make it (Swain v Waverley Municipal Council [2005] HCA 4 (9 February 2005), per Gleeson CJ)”.

DECISION

1. The appeal is not successful. The decision of the Arbitrator of 4 March 2004 is confirmed.

COSTS

1. NSW Heritage Office is ordered to pay the costs of this appeal.

Julian Martin

Acting Deputy President  

16 May 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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