Payne v Absolute Domestic Cleaning Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Payne v Absolute Domestic Cleaning Pty Ltd [2022] NSWPIC 513
APPLICANT:	Alysha Payne
RESPONDENT:	Absolute Domestic Cleaning Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	16 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Whether applicant who entered into a contract with the respondent to carry out domestic cleaning services for clients of the respondent was a worker, deemed worker or independent contractor; claim for medical expenses; fact of injury not in issue nor the fact the applicant’s medical expenses claimed to date are greater than $5,000; Held – the applicant was a deemed worker of the respondent pursuant to Cl 2 and Cl 2A of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998; Malivanek v Ring Group Pty Ltd followed; Held – in making the finding the Commission notes there was no issue the applicant was a party to a contract with the respondent to perform work the value of which exceeded $10; the evidence disclosed the applicant at no time sublet the contract nor employed workers in the performance of it; the applicant only carried out cleaning duties for the applicant from the commencement of the contract in July 2018 until the date of injury on 23 October 2019; her uncontested evidence was that she obtained an ABN at the request of the respondent and solely so she could do work for it; there was no evidence the work carried out by the applicant was incidental to a trade or business carried on by her in her own name or under a business name; in light of the finding above it is unnecessary to consider the question of whether the applicant was an employee or independent contractor; respondent ordered to pay the applicant’s reasonably necessary medical expenses.
determinations made:	1. Leave is granted without objection to amend the Application to Resolve a Dispute to claim a general order for medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 in respect of injury to the right lower extremity (ankle) and consequential condition to the conditions to the right knee, right hip and lower back. 2. The Commission notes the parties agree that the s 60 expenses incurred to date exceed $5,000. 3. The applicant suffered injury to her right lower extremity (ankle) and consequential conditions to her right knee, right hip and lumbar spine on 23 October 2019. 4. At the time of her injury, the applicant was a deemed worker of the respondent pursuant to cl 2 and cl 2A of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998. 5. The respondent is to pay the applicant’s medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 in respect of an injury to the right lower extremity (ankle) and consequential conditions to the right knee, right hip and lumbar spine upon production accounts, receipts and/or Medicare Australia Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

There is no issue that on 23 October 2019, Alysha Payne (the applicant) suffered an injury to her right lower extremity while carrying out cleaning duties at residential premises in Sylvania when she fell from approximately the fourth or fifth step to the floor at the bottom of a flight of stairs. The applicant at the time had entered into a contract with Absolute Domestic Cleaning Pty Ltd (the respondent) and it was through the respondent's business that the applicant came to be carrying out the cleaning work at the residential premises on the date of injury.
The applicant alleges that she was a worker or a deemed worker of the respondent at the time of her injury. The respondent denies liability on the basis that the applicant is not a worker nor deemed worker but rather an independent contractor carrying on her own business.
By s 78 notice dated 17 June 2021, the respondent denied liability on this basis, and also relied upon the notice provisions contained within the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) pursuant to ss 254 and 261. At the hearing of this matter, the respondent did not press its reliance upon the notice provisions, and the matter proceeded only on the question of whether the applicant was a worker or deemed worker at the time of her injury.
The parties agreed at the hearing that the s 60 expenses claimed by the applicant in these proceedings to date total greater than $5,000.

ISSUES FOR DETERMINATION

The only issue for determination is whether the applicant is a worker or a deemed worker of the respondent. In the event this question is answered in the applicant's favour, there will be an order that the respondent pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a hearing before me on 22 August 2022. I am satisfied that the 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.
At the hearing, Mr Andrew Parker of counsel instructed Ms Lanyon appeared for the applicant. Mr Grant of counsel instructed by Ms Kerkinis appeared for the respondent.
At the hearing, the respondent withdrew its reliance upon the provisions of the time limit and notice provisions of the legislation. Additionally, leave was granted to the applicant without objection to amend the Application to Resolve the Dispute (the Application) in terms consistent with those set out on page 1 of the Certificate of Determination. The parties also agreed that the s 60 expenses incurred to date in this matter are greater than $5,000.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attached documents;
(b)    Reply and attached documents, and
(c)    respondent's Application to Admit Late Documents (AALD) and attached documents dated 15 August 2022.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS
Whether the applicant was a worker or deemed worker

For the following reasons, I find the applicant was a deemed worker of the respondent at the time of her injury.
The provisions relating to whether an injured person is a deemed worker are contained in Schedule 1 of the 1998 Act.
Clause 2 of that schedule states:
“(1) Where a contract –
(a)to perform any work exceeding $10.00 in value (not being work incidental to trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name, or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
Additionally, the applicant relies on the provisions of clause 2A which reads as follows:
“(1) In this clause –
‘Labour hire services contact’ means a contact or arrangement (not being a contract of service or a training contract) under which a person is provided with services to facilitate the performance of work by the person, such as the following services –
(a)Services for finding work for the person,
(b)Services for payment of worked performed by the person,
(c)     Services for insurance coverage in connection with any such work.
(2)    If –
(a)A person (‘a labour hire agency’) under a labour hire services contract with another person ('a contract') arranges for the contractor to perform work for a third person ('the host employer'),
(b)the work performed is not incidental to a trade or business regularly carried on by the contractor in the contractor’s own name or under a business or firm name, and
(c)the contract or another employs any worker nor subcontracts with any person, to perform any of that work, and
(d)the labour hire agency provides services to the contract or under the labour hire services contract during the performance of that work,
(3)     The contractor is, for the purposes of this Act, taken to be a worker employed by the labour hire agency while performing that work.”
The applicant’s evidence in relation to her contractual arrangement with the respondent is contained in her statement as follows:
“(6)    I found this employment through a job finding app and was interviewed at the Absolute Domestic office in Sydney. I have never had a cleaning job before.
(7)     At the interview, they said that I must apply for an ABN and have a police check conducted before I could commence training. I did not have an ABN prior to working for Absolute Domestic.
(8)     I was not questioning as to why I would need an ABN. I assumed that this was just a requirement for employment with them. The relevant documents provided by Absolute Domestic basically set out step-by-step what I had to do. I only did this so that I could work for them."
The applicant then attached to her statement a workshop training manual together with guidelines for registration with the respondent.
At page 5 of the workshop training manual, is a requirement that the applicant had to work a minimum of 10 hours per week. She was also directed to have her payment summary details to the respondent by 5.00pm every week. She stated she was required to give two weeks’ notice if she wished to resign and was provided with a uniform which she was told she had to wear to every initial consultation with a new client.
Every client with which the applicant met and whom she cleaned for was organized by the respondent. Once the applicant had met with the client, it was left to her to organise cleaning days and times, however, the respondent instructed that she had set cleaning hours, which were between 9.00am and 5.00pm.
According to the applicant, the respondent provided her with microfibre cloths when she commenced working, however, there were no cleaning tools or products provided because the respondent's policy was that she should use products which the client already had in their home.
The applicant noted that if she had to bring equipment like a mop or a vacuum cleaner, the client would have to pay extra for her doing so. After each service, the applicant was required to report back to the respondent and provide notes on how the service went or explain why she did not attend upon a client.
It was the applicant's job to collect payment from the client and then submit it and payment summary to the respondent.
All of that evidence by the applicant is uncontested. Submissions were made by both parties as to the nature of the contract between the applicant and the respondent, given the recent decisions of the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (9 February 2022) (Personnel) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (9 February 2022) (Jamsek) in which the Court held that in determining the nature of an agreement concerning work arrangements, primary regard must be had to the terms of any written agreement, not to whether the conduct of the parties establishes an employment relationship.
Those decisions of the High Court in Personnel and Jamsek relate to the interpretation of purported contracts of employment at common law, and do not affect the operation of the deeming provisions.
I accept Mr Parker's submission that if I am satisfied the applicant is a deemed worker of the respondent, then it is unnecessary to determine the nature of the relationship between the applicant and respondent in accordance with the principles set out in Jamsek. It is appropriate, therefore, to examine the question of deemed worker before conducting an examination of the nature of the contract at issue in accordance with the recent High Court decisions.
In examining the requirements for a deemed worker, the leading decision is that of Deputy President Roche in Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4. In that matter, the Deputy President set out at [186] by reference to Court of Appeal authority, the indicia for finding whether a person is a deemed worker. Roche DP said:
“In Scerri v Cahill(1995) 14 NSWCCR 389, Bainton AJA (Kirby ACJ and Rolfe AJA agreeing) held (at 399D) that, to rely on cl 2 of Sch 1, an applicant must establish that:
·(1) he (or she) was a party to a contract with the respondent to perform work;
·(2) the work exceeded $10 in value;
·(3) the work is not work incidental to a trade or business regularly carried on by the applicant in his (or her) own name or under a business or firm name, and
·(4) the applicant has neither sublet the contract nor employed workers in the performance of it.”
In this matter, there is no issue there was a contract between the parties to perform work. Likewise, no issue is taken that the applicant performed work exceeding $10 in value. The uncontested evidence also discloses she did not sublet the contract with the respondent to another, nor did she employ any worker to carry out the work.
Mr Grant submitted, and I accept, that the terms of the contract allowed the applicant to sublet the work if she chose, however, her own untrammelled evidence is that she did not do so. I accept it.
Likewise, the applicant’s unchallenged evidence is that she only obtained an ABN at the behest of the respondent; that she carried out no cleaning work for anyone other than clients of the respondent arranged by the respondent for her and that she exclusively carried out work through that system.
It should, however, be noted that even if the applicant had carried out work for someone else, that does not necessarily preclude her from being either a worker or deemed worker of the respondent. In terms of the deeming provisions, they relate to the nature of the relationship between the parties, and in any event, as the High Court noted at [84] in Personnel “It is commonplace that casual employees do not work exclusively for one employer.”
Unless it could be shown any other work was regularly carried out by the applicant in her own name or connected with a business of her own, she may still be a deemed worker of the respondent. However, that is a moot point as the evidence in this matter clearly establishes the applicant only worked for the respondent from 2018 until the date of her injury.
In my view, the facts of this matter fall squarely within those of Malivanek. That is, the applicant in this matter did not employ workers or a worker at the time of her injury. Nor did she employ workers at any other time.
Secondly, while the applicant had an ABN, the circumstances in which she acquired it were that she wanted to obtain regular work from the respondent and was told that if she wanted that work, she had to have an ABN.
The uncontested evidence is the applicant obtained regular work from the respondent and worked exclusively for them from the time of entering into her agreement until the date of injury. That much is borne out by the only evidence which goes to whether the applicant worked exclusively with the respondent - her statement. That evidence clearly establishes to my satisfaction on the balance of probabilities that she exclusively worked for the respondent from the date of commencement on 27 July 2018 up to and including the date of injury on 23 October 2019.
At page 5, the respondent’s own Workshop Training Manual also sets out the applicant was required to work a minimum of 10 hours per week for the respondent. Her evidence, set out at page 12 of the Reply, is that she was working approximately 30 hours per week for the respondent, across five working days on jobs exclusively allocated to her by the respondent.
There is no evidence that the applicant had any tangible assets which were used by or in support of a business of her own. Indeed, there is no evidence the applicant even had a business phone number or home office.
I accept the applicant's evidence that she did not advertise for work and worked exclusively for the respondent from 2018 until the date of injury. It is uncontested and the only evidence in the matter which goes to that issue.
The key issue for debate on the question of deemed worker is whether the applicant performed work for a business in her own name on a regular basis. On balance, the evidence does not demonstrate that this is the case. In accordance with the principles and indicia as set out in Malivanek, I am comfortably satisfied on the balance of probabilities that the applicant meets the requirements of a deemed worker of the respondent pursuant to cl 2 of Schedule 1 of the 1998 Act.
For abundant completeness, in my view the applicant also satisfies the requirement for a deemed worker pursuant to cl 2A of Schedule 1 to the 1998 Act, in that the respondent acted as a labour hire agency pursuant to a contract through which it arranged for the applicant to perform work for a third person (the cleaning client(s)). In doing so, it provided services to the applicant in providing cleaning jobs for her to carry out with its clients.
As already noted, I have found the work carried out by the applicant was not incidental to a trade or business regularly carried out by her in her own or under a business name, and she neither employed nor subcontracted that work out to another. As such, the applicant is a deemed worker of the respondent as a labour hire agency.
This being the case, and no other matter being in issue in the proceedings, there will be an order to the effect that the respondent pay the applicant's reasonable and necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.
Having found the applicant to be a deemed worker, it is not necessary to embark upon an exercise of analysing the contract between the applicant and the respondent to determine whether it was one of employment or for services in accordance with the principles set out in Personnel and Jamsek.

SUMMARY

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

[2022] NSWPIC 513

16 September 2022