Prica v Parkinson
[2006] NSWWCCPD 186
•14 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Prica v Parkinson and ors [2006] NSWWCCPD 186
APPELLANT: Dusan Prica
FIRST RESPONDENT: Michael David Parkinson
SECOND RESPONDENT: WorkCover Authority of New South Wales
THIRD RESPONDENT: Tien Ngoc Do
INSURER:None
FILE NUMBER: WCC19135-05
DATE OF ARBITRATOR’S DECISION: 12 May 2006
DATE OF APPEAL DECISION: 14 August 2006
SUBJECT MATTER OF DECISION: Worker; trade or business; section 4 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Gajic & Co
FirstRespondent: No appearance
Second Respondent: WorkCover Legal Group
Third Respondent: No appearance
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 12 May 2006 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 8 June 2006 Dusan Prica (‘the Appellant/Mr Prica’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 12 May 2006.
The First Respondent to the Appeal is Michael David Parkinson (‘the First Respondent/Mr Parkinson’), Mr Prica’s alleged employer, who was uninsured under the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’). The Second Respondent is the WorkCover Authority of New South Wales (‘WorkCover’) in its capacity as administrator of the “Uninsured Liability and Indemnity Scheme” under the provisions of the 1987 Act.
The Third Respondent is Tien Ngoc Do (‘Mr Do/Tien’), a solicitor, who was also alleged to have employed Mr Prica at the time of his accident. Mr Do was released from the proceedings by the Arbitrator at the start of the Arbitration hearing on 1 May 2006 because of the Appellant’s non compliance with the provisions in section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). No appeal is made against that decision and I make no comment or finding about it. As a result of that decision, Mr Do has taken no part in the appeal.
For the purposes of this appeal it has not been necessary for me to determine all the factual disputes that were before the Arbitrator. Therefore, I will only set out a brief summary of the facts so far as they are relevant to the issues raised on appeal.
Mr Prica was born on 21 July 1966 in Yugoslavia. Before coming to Australia he worked for two years with a construction company in Bosnia. After completing his National Service in the Yugoslavian Army in 1987 he worked as a painter/renderer until 1991. He then worked in various jobs from 1991 until coming to Australia on 16 April 1996.
He had a limited work record in Australia and was unemployed from about 1998 until 2001. On or about April/May 2001 Mr Prica met Mr Parkinson. At that time Mr Parkinson was employed as the co-ordinator for the ‘work for the dole and community support programs’ at Mission Australia, a position he held from 1997 until January 2004. Mr Prica described him as the ‘training and placement co-ordinator’.
According to the Appellant, Mr Parkinson spoke to him at Mission Australia on 8 October 2001 and said “I am a painter and I want you to work for me” for $120.00 per day (Appellant’s statement 24 March 2005 paragraph 16). He further alleges that Mr Parkinson gave him a business card with Mission Australia on it. Mr Prica understood that he was being employed by Mission Australia. It has subsequently been agreed that Mr Parkinson was not acting for or on behalf of Mission Australia but in his personal capacity at all times.
Mr Prica states that he started work painting the office premises at 14 John Street Cabramatta (’14 John Street’) on Tuesday 9 October 2001. He adds that his hours were to be from 7am until 3pm and that on the first day Mr Parkinson was present and let him into the building. He alleges that he was provided with paint, rollers, sand paper, paint brushes, drop sheets and ladders by Mr Parkinson. He worked for three days and until about 10am on the fourth day when he was “supposed to finish the job” (Mr Prica’s statement 24 March 2005, paragraph 19). According to his statement the only thing left to paint by Friday 12 October 2001 was the internal staircase. On that day he alleges that he fell from a ladder whilst painting the ceiling in the stairway and injured his right wrist.
Mr Parkinson’s recollection of the events leading up to 12 October 2001 is quite different. He states that a friend of his, John Phan (spelt ‘Fan’ in the transcript), a real estate agent with Century 21 at Cabramatta, asked him to “fix up an office for his friend, Ngoc Tien Do” (Mr Parkinson’s statement 14 March 2005, paragraph eight). He states that he was “not being paid for this work. John and I were looking to start a business renovating homes, but the business never commenced” (Mr Parkinson’s statement 14 March 2005, paragraph eight). Mr Phan asked if Mr Parkinson knew anyone who could do painting and strip wallpaper. As Mr Prica had been asking for work, he offered the job to him. Mr Parkinson adds that “Tien Do said he would pay him for the work and it was agreed that he be paid $100 a day” (Mr Parkinson’s statement 14 March 2005, paragraph nine).
Mr Do’s statement of 21 March 2006 relates to a lunch he had with Mr Phan on or about 25 September 2001 when he mentioned a quote he had received to paint the premises at 14 John Street for $1,200.00. Mr Phan said he had a friend (Mr Parkinson) who “does this sort of work for people and needed some money” (Mr Do’s statement paragraph 10). Mr Phan allegedly described Mr Parkinson as a “handy man” who could do the job and had all his own equipment. After the lunch the two men visited Mission Australia where they spoke to Mr Parkinson. After lunch on or about 1 October 2001 Mr Phan, Mr Parkinson and Mr Do all went to the John Street office when Mr Parkinson allegedly said he could do the job for less than $1,200.00. On 6 October 2001 Mr Parkinson and Mr Do met again and attended a hardware store where Mr Do purchased paint and other material for the job for $773.92. Mr Do and Mr Parkinson then drove to the John Street office and started the work. Mr Do helped strip some wallpaper and picked up some rubbish before leaving and giving a key to Mr Parkinson. When he left Mr Parkinson was still at the office either painting or stripping wallpaper. On the morning of 8 October Mr Do attended at the office and found Mr Parkinson there painting. Mr Do thought that about 70% of the work had been completed. He asked if the job could be completed by about 14 October 2001 to which Mr Parkinson replied “he would try and finish by that date” but he might need to get a friend to help him.
On 12 October Mr Do was passing the John Street office on his way to lunch when he noticed the door was open. Upon entering he met the Appellant for the first time. He was standing on the stairs complaining of having hurt his arm. Mr Do noticed a ladder on the stairs and that the only areas still to be painted were the stairs, the toilet and the skirting boards. The rest of the office was finished. On Saturday 13 October Mr Do again attended the office and found Mr Parkinson painting the toilet. He again noted that everything else “appeared to have been finished except for the skirting boards” (Mr Do’s statement, paragraph 25).
A claim for compensation was initially made by Mr Prica against Mission Australia by letter dated 30 August 2004. Subsequently, a claim was made on Mr Parkinson by letter dated 5 September 2005.
An Application to Resolve a Dispute (‘the Application’) was filed by the Appellant on 9 November 2005 naming Mr Parkinson as the First Respondent and WorkCover as the Second Respondent. An amended Application was filed on 10 February 2006 adding Mr Do as a Third Respondent. The Application alleged that Mr Prica sustained injury to his right arm as a result of falling from a ladder while painting at John Street Cabramatta on 12 October 2001. It claimed weekly compensation from that date together with lump sum compensation and hospital and medical expenses of $1,200.
By its Reply filed on 16 February 2006, WorkCover denied injury and denied that the Appellant was an “employee or deemed employee”. A Reply was filed by Mr Do on 28 February 2006 denying that the claim against him had ever been duly made and that, as a result, the Appellant was “barred from claiming” against him. It was also denied that the Appellant was a worker pursuant to the 1987 Act. No Reply was ever filed by Mr Parkinson but he was represented by a solicitor at the Arbitration hearing and it was accepted that he also denied liability on the grounds that Mr Prica was not a ‘worker’.
Lengthy oral evidence was given at the Arbitrator hearing on 1 May 2006 and in a reserved decision the Arbitrator found that the Appellant was not a worker within the meaning of that term in the 1998 Act and made an award in favour of all three Respondents. The Appellant seeks leave to appeal from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 12 May 2006 records the Arbitrator’s orders as follows:
“1.Award in favour of the Respondents in respect of the Applicant’s claim for weekly payments of compensation.
2.Award in favour of the Respondents in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987.
3.Award in favour of the Respondents in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.
4.That each party pay its own costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
1.failing to find that the Appellant was a person who was employed by Mr Parkinson for the purpose of Mr Parkinson’s trade or business, for the purposes of the definition of ‘worker’ in section 4 of the 1998 Act (‘trade or business’);
2.failing to find that the Appellant was a person whose employment was not limited to one period only of not more than five working days, for the purposes of the definition of ‘worker’ in section 4 of the 1998 Act (‘not more than five working days’);
3.as a result of the above errors, failing to determine or properly determine the matters before her, and thereby making an error of law, fact and discretion (‘other matters’);
4.making a determination that was against the evidence, and
5.solely considering section 4 of the 1998 Act in determining whether the Appellant was a worker (‘other matters’).
The Appellant reserved the right to add further grounds of appeal upon receipt of the transcript of the proceedings at the Arbitration hearing. The transcript was forwarded to the parties on 27 June 2006 but no further submissions or grounds of appeal have been filed.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
The Appellant submits that there should be an oral hearing of the appeal because the Commission will be more readily assisted and the errors of law, fact or discretion will be more readily demonstrated in such a hearing. The Appellant and WorkCover have made written submissions dealing with the relevant issues. The matters raised in the appeal are not so complex or novel that an oral hearing is necessary in order to justice between the parties.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by WorkCover that the appeal can proceed to be determined on the basis of these documents, 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.
The appeal papers were served on the First Respondent’s solicitors on 15 June 2006, but no Notice of Opposition has been filed by him or on his behalf. His interests are essentially the same as those of WorkCover and it has filed submissions on appeal.
SUBMISSIONS AND FINDINGS
Worker
The term ‘worker’ is defined in the 1998 Act in section 4(1) as follows:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include:
(a) …, or
(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer’s trade or business, or…” (emphasis added)
By virtue of section 2A of the 1987 Act, this definition applies to the word ‘worker’ where it appears in the 1987 Act. That section provides:
“2A Relationship to Workplace Injury Management and Workers Compensation Act 1998
(1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as "the 1998 Act".
(2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.
(3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.”
To be entitled to compensation under the 1987 Act a person must be a ‘worker’ who has received an injury (section 9 of the 1987 Act). Therefore, even if a person is employed under a ‘contract of service’, he or she will not be a ‘worker’ under either the 1987 Act or the 1998 Act if he or she is excluded by the terms of the definition of ‘worker’ in paragraph (b) of section 4(1) of the 1998 Act.
Arbitrator’s Decision
The Arbitrator found at paragraphs 30 and 31 of her Statement of Reasons for Decision (‘Reasons’):
“30.I am satisfied on the evidence before me, that the work for which the Applicant was engaged to carry out would have taken no more then 5 days. The Applicant admitted that by the morning of the 4th day he had completed 70% of the job. The 1st Respondent claims he had intended to do the ceiling himself. I am satisfied on the evidence before me that the 1st Respondent is not in the business of carrying out painting services, and that, in accordance with the statement of John Phan dated 28th of March 2006 that the 1st Respondent undertook this activity and engaged the assistance of the Applicant in order to help a friend.
31.Although the 3rd Respondent is no longer a party to the proceedings. I am also satisfied on the evidence before me, that the Applicant was not employed by the 3rd Respondent. There is no evidence that the 3rd Respondent was involved in the engagement of the Applicant to carry out work. Further, the Applicant would again fall into the exclusion category of section 4(b).”
Trade or Business
This phrase is used in several places in the 1987 Act and has been considered by the High Court, in the context of local government legislation, in Cooney v Ku-ring-gai Municipal Council (1963) 114 CLR 582 (‘Cooney’) where Menzies J said at 602:
“…the line between ‘trade’ and ‘business’ is not hard and fast and it is to be observed that in the Oxford English Dictionary one meaning of the word ‘trade’ is: ‘The practice of some occupation, business, or profession habitually carried on, especially when practised as a means of livelihood or gain’. In the same way, a meaning of the word ‘business’ that is given is: ‘Stated occupation, profession, or trade’. It is not, I think, a departure from ordinary usage when in the Income Tax
Assessment Acts the word ‘business’ is defined to include ‘trade’.”
In the text Workers Compensation (New South Wales) second edition, C P Mills cites Cooney’s case as authority that the phrase ‘trade or business’ involves the “practice of systematic activity or work for reward or with a view to gain” (page 157). I agree with this interpretation of the phrase and believe that it is the appropriate interpretation to give the phrase in the context in which it appears in section 4 of the 1998 Act. That interpretation is also consistent with the decision of Coleman v Grafton Greyhound Racing Club (1995) SR (NSW) 214 where it was held that the words are not apt to cover hobbies or pastimes engaged in by one or more people.
As at October 2001 Mr Parkinson was employed full time by Mission Australia. He described himself as the co-ordinator for the ‘work for the dole and community support programs’. Mr Prica described Mr Parkinson as the “training and placement co-ordinator” with Mission Australia (Appellant’s statement 24 March 2005, paragraph 16). Regardless of his exact title, it is clear on the evidence that he was employed by Mission Australia in October 2001. That fact on its own does not exclude the possibility that he may have also conducted a ‘trade or business’ when not working for Mission Australia. However, the evidence does not provide any sound basis for concluding that he conducted a ‘trade or business’ as at October 2001.
Mr Parkinson was cross examined at length by counsel for the Appellant at the Arbitration hearing. In respect of his business activities, he was asked at page 79 line 12 of the transcript:
“Q. You’d, in fact, had your own business, hadn’t you?
A. Many, many years ago I did, yeah, that’s right.Q. You haven’t said the business was many, many years ago in your statement, have you?
A. No, but there’s a friend of mine, John Fan, who’s also given me a letter that’s in there. Both John and I had planned in the future to start of the business and do some just basically repair work.”
At page 86 line 24 the following questions were asked:
“Q. You also ‑ Mr Do asked you how you were going to do the job, and you told him that you had all the equipment and that you often did work for people in the afternoons or weekends?
A. I said I did work on the weekends or the afternoons. I was too busy with the job that I had.”
The only other cross examination of Mr Parkinson about his involvement in a ‘business’ is at page 92 line 26:
“Q. No. And you were ‑ sorry, I’m just trying to find the particular passage here. And can I just ask you this. In your statement to them you referred to you were starting up a business, a business renovating homes with Mr Fan. That business never actually commenced, did it?
A. No, nothing ever happened with that because I went into a coma ‑‑Q. Yeah.
A. ‑‑ and ended up with heart surgery.
Q. When did you have the coma?
A. Oh, the exact date I don't ‑‑
Q. What year?
A. ‑‑ recall. It was about three or four months after all this took place.Q. And you’d had a history of heart problems?
A. No, not prior to that. I was actually very fit then. I was practising a number of different sports and was extremely fit.”
The reference to having “all the equipment” and doing work on the weekends raises a suspicion that Mr Parkinson engaged in work outside his normal duties for Mission Australia, but it falls well short of establishing that he conducted a ‘trade or business’ at the relevant time. The Appellant submits that the fact that Mr Do paid Mr Parkinson for the painting job indicates that the work was a business transaction and not a domestic, voluntary or other non remunerative undertaking. Whether Mr Parkinson was being paid for the work was the subject of conflicting evidence between Mr Parkinson and Mr Do. Mr Parkinson maintained that he was not being paid whilst Mr Do’s evidence suggests otherwise. Mr Phan’s evidence in his letter of 28 March 2006 tends to corroborate Mr Parkinson as it says “this activity was to help a friend” and there was no contract involved. Even if Mr Do’s evidence is accepted on this issue, it does not establish that Mr Parkinson was conducting a ‘trade or business’ at the relevant time.
Mr Parkinson’s evidence that he planned to start a business in the future with Mr Phan is also found in his statement of 14 March 2005 at paragraph eight and in the first paragraph of his statement of 19 October 2002 where he said:
“The arrangement was for us all to work together in any time we had to get Tien into the office as soon as possible. Tien was to provide the materials and we under my supervision would plaster and paint the office in preparation for Tien moving in. It was also being done on the basis to develop a good relationship with Tien as John and I were planning to go into business in the future renovation and buying and selling homes.”
The second paragraph of the 19 October 2002 statement from Mr Parkinson also touches on his past involvement in ‘business’. He said:
“It just so happened at that time this Dusan Prica was constantly coming to my office asking both Natalia Maljkovic and myself if I had any weekend work I could give him. Every time he asked I told him that I no longer was in business nor did I have any insurance.”
Mr Parkinson was never asked if he had an Australia Business Number (‘ABN’) or if he had a business name. No questions were put to him about when he last used the equipment he showed to Mr Do. No suggestion was made that he had his own business card. Indeed the evidence suggested that he card he carried was from Mission Australia (transcript page 61 line 31). No evidence was called to cast any doubt on Mr Parkinson’s assertion that he was not conducting a ‘trade or business’ as at October 2001.
In these circumstances the Arbitrator’s conclusion that Mr Parkinson was not “in the business of carrying out painting services” was not only open to her, but, on the evidence, was the only reasonable conclusion available. The Arbitrator made no error of fact, law or discretion in finding that Mr Parkinson was not conducting a ‘trade or business’ as at October 2001. It follows, therefore, that the work being done by the Appellant was not being done “for the purposes of the employer’s trade or business” under the definition of ‘worker’ at paragraph (b) in section 4(1) of the 1998 Act.
Not More Than Five Working Days
The Arbitrator was satisfied that the work the Appellant “was engaged to carry out would have taken no more than 5 days” (Reasons, paragraph 30). The Appellant’s submission is that this finding was contrary to the evidence. Reference is made to Mr Parkinson’s statement of 14 March 2005 at paragraph 20 where he said that “had there not been an accident on the job, the work would have been completed in approximately two more days”.
That evidence is far from conclusive that the period of employment was more than five working days. The accident happened on the morning of the fourth day. It is therefore quite reasonable to conclude that the job would have finished by the end of the fifth day. In addition, there was considerable additional evidence that suggested that the contract was only for four or five days. In his statement of 24 March 2005 Mr Prica said:
“I worked for 3 full days and until about 10am on the fourth day. I was supposed to finish the job on the fourth day. The only [sic] left to paint was the internal staircase.”
Consistent with that statement Mr Prica said in cross examination at page 38 line 10:
“Q. So, what did you do when you started work on the Friday?
A. I was doing some - I was doing walls on that day and when I completed walls, my next task was to do - my task was to do stairs in order to complete the job on that day.
Q. So the walls - where were the walls?
A. There was a small toilet, there was a room and some other walls around and that was it.” (emphasis added)
This evidence is also consistent with Mr Parkinson’s evidence at page 89 line 31:
“Q. I see. And he said you would try ‑ you said you would try and finish by about 14 October?
A. Well, if we were going to try and finish by then, that’s when we were going to try and finish.”
Mr Do’s statement of 21 March 2006 suggests that the work was in fact completed by Mr Parkinson on Saturday 13 October 2001 (statement Mr Do 21 March 2006, paragraph 25). This confirms that the work Mr Prica was engaged to perform was most likely a four day, or, at the most, a five day job.
In my opinion the evidence establishes that the work was only for one period of “not more than 5 working days” and the Arbitrator was justified in reaching the conclusion she reached at paragraph 30 and her conclusion discloses no error of fact, law or discretion.
Other Matters
It follows from the above analysis that the Arbitrator did not “fail to determine or properly determine the mattes before her” as alleged in paragraph three of the Appellant’s grounds of appeal.
The Appellant also submits that the Arbitrator was in error in solely considering section 4 of the 1998 Act in determining whether he was a worker (Appellant’s grounds of appeal, paragraph five). I do not agree. The section specifically excludes persons in the Appellant’s circumstances from being classified as ‘workers’ under the legislation. Therefore, an analysis of the authorities on ‘worker’ would not have advanced the case and was unnecessary.
DECISION
The Arbitrator’s decision of 12 May 2006 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
14 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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