Qantas Airways Ltd v Campisi
[2005] NSWWCCPD 13
•4 March 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Qantas Airways Limited v Campisi [2005] NSW WCC PD 13
APPELLANT: Qantas Airways Limited
RESPONDENT: Angelo Campisi
FILE NUMBER: WCC16773-2003
DATE OF ARBITRATOR’S DECISION: 3 February 2003
DATE OF APPEAL DECISION: 4 March 2005
SUBJECT MATTER OF DECISION: Was the Applicant a ‘worker’ or an ‘independent contractor’ for the purpose of the Workers Compensation Act 1987?
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers.
REPRESENTATION: Appellant: Abbott Tout Solicitors
Respondent: Heazelwoods Bushby International Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed. The Appellant is to pay the costs of the appeal.
Background to the Appeal
Angelo Campisi worked for Qantas Airways Limited doing detailing and cleaning work, primarily on buses operating around Sydney airport, from September 1996 until April 1993. On 31 March 2003 he lodged a ‘Report of Injury’ with Qantas claiming that he had “Musculo-ligamentous injury, Occupational Overuse Syndrome” affecting his “neck, back, upper arms, hands, wrists, elbows and fingers”. He claimed that his injury was due “to the nature and conditions of work including constant stepping in and out of boot of buses, reaching to high sections of buses to clean it, applying pressure to buses while cleaning them, increasing symptoms over past 12 months while doing this work”(sic). Mr Campisi sought compensation by way of weekly benefits from 25 March 2003 and continuing, medical expenses (section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), lump sum compensation for permanent impairment, and pain and suffering.
Qantas denied liability for any work injury suffered by Mr Campisi on the basis that he was engaged by Qantas as an independent contractor, not as an “employee”.
On 22 October 2003 Mr Campisi lodged an ‘Application to Resolve a Dispute’ in the Commission. The matter went before an Arbitrator who held a conciliation and arbitration hearing on 15 January 2004. The Arbitrator determined that Mr Campisi was a “worker” pursuant to section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). He gave his decision and reasons at the conclusion of the arbitration, and a transcript of same is before me on appeal.
Issue in Dispute
Qantas seek leave to appeal against the Arbitrator’s decision and assert that he made an error of law in determining that Mr Campisi was a “worker”. This is the central issue for resolution in this appeal. Qantas argue that the Arbitrator failed to give sufficient weight to factors indicating that Mr Campisi operated as a independent contractor, operating under the business name of ‘Complete Water Blasters’, in his business dealings with Qantas and in relation to the Australian Taxation Office.
Mr Campisi submits that the Arbitrator’s decision was correct
Leave
The threshold criteria of section 352(2) of the 1998 Act are satisfied and accordingly leave to appeal is granted.
On the Papers Review
Both parties have made written submissions on the appeal. I also have before me all of the documents that were before the Arbitrator and a transcript of the arbitration and ex tempore reasons. Qantas submit that the appeal should not be determined on the papers and that an oral hearing should be held. Mr. Campisi submits that a further hearing will incur greater costs to the parties.
I am satisfied that I have sufficient information to proceed ‘on the papers’ pursuant to Section 354(6) of the 1998 Act, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Role of Presidential Member on Appeal
A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential Member is not dealing with the matter do novo.
A Presidential Member may revoke a decision of an Arbitrator, pursuant to section 352(7) of the 1998 Act and substitute a new decision in its place or alternatively, remit the matter to the Arbitrator concerned or another Arbitrator, for determination in accordance with any decision or directions made. These powers are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW PD 6).
Qantas assert the Arbitrator’s decision is “contrary to public policy in that the Applicant asserted to the Arbitrator and was accepted as being a worker whilst throughout the period of his business relationship with the Respondent asserted to the Australian Taxation Office that he was an independent contractor carrying on business on his own account and or in partnership with another person”(submissions on appeal). This submission is misconceived. Issues of public policy are not relevant to the determination of whether a person has a statutory entitlement to workers compensation. In NSW this entitlement is governed, at law, by the Workers Compensation Acts (1987 and 1998). Qantas’s submission also overlooks the very real possibility that a person may be simultaneously considered a ‘worker’, as defined in particular state legislation, and a ‘contractor’ for the purposes of federal tax legislation. The interpretation to be given to these terms will be dependent upon their particular statutory context. It is not open to a Commission Arbitrator to determine a worker’s entitlement to workers compensation according to a parties’ assertion of public policy interests. Alternatively, as suggested by Qantas, Mr Campisi may have been dishonest in his dealings with the tax office, however that fact alone is not determinative of his entitlement to workers compensation benefits.
Mr Campisi’s legal representative submits that: “ the purpose of an appeal is to test issues of public policy, not questions of witness demeanor” and that: “although the Applicant wishes the Workers Compensation Commission to be the forum that affirms the decision of [the Arbitrator] . . .it is submitted that it is questionable whether or not the Commission has jurisdiction to review this issue on appeal”. This legal basis of these submissions is not clear to me, however, to the extent that they suggest a Presidential Member cannot review the decision of an Arbitrator, they are also misconceived. Section 352 of the 1998 Act clearly provides for such review, which includes review of errors of law in addition to errors of fact or discretion.
Did the Arbitrator err in finding that Mr Campisi is a “worker” pursuant to section 4 of the 1998 Act?
This appeal concerns a narrow issue upon which there is substantial judicial authority, namely: What factors should be taken into consideration when deciding whether a person is a ‘worker’ or an ‘independent contractor’ for the purposes of the Workers Compensation Acts? It is a critical issue because a finding that a person is an ‘independent contractor’ means that the employer is not liable to pay workers compensation benefits where the person is injured at work.
Deputy President Byron reviewed the current law on this issue in the matter of Zhao v Monlea Pty Ltd t/as Nordex Interiors [2003] WCC PD 11 (at paragraphs 37 to 46). Having analysed the relevant authorities myself, I adopt his statement of the applicable law, (without repeating it in full here). Arbitrator Molony also considered the definition of “worker” in section 4 of the 1998 Act and clearly set out the relevant law in the matter of Horton v M S Contractors Pty Ltd t/as M S Handyman Services and the Workcover Authority, WCC 13712-03.
In Cartner v Barclay [2002] 9 NSWCC 9, and again in Savage v Programmed Maintenance Service Pty Limited (2002) 22 NSWCCR 670 at 680-681, the Compensation Court, per Walker J, reviewed the authorities on “worker” in section 4 of the 1998 Act in light of the High Court’s decision in Hollis v Vabu Pty Limited (2001) 207 CLR 21. Walker J summarised the following applicable principles:
1. It is an error of law in determining whether or not an employer - employee relationship exists to deduce from the semantic meaning of labels such as employee or independent contractor the legal rights of the parties. To adopt such legal adjectives is to invert the proper order of the inquiry which is into the contents of those terms.
2. Independent contractors carry out their work as principals not as the employers representative. The fundamental difference is between a person who serves his or her employer in the employers business and a person who carries on a trade or business on his or her own.
3. Modern Australian law has shifted the emphasis of the control test from the actual exercise of control to the right to exercise it. Control is no longer regarded as the only relevant factor. Rather the Court must examine the totality of the relationship between the parties.
4. Considerations of questions such as economic independence and freedom of contract are not determinative of the legal character of the relationship.
5. Too much should not be made of investment in capital equipment as an indicia except in cases where the investment was most significant and great skill was required to operate it.
6. Control by the employer over the manner of performance is an important indicia particularly in respect to matters such as hours worked, rosters, denial of the right to refuse work or carry out work for other parties.
7. Requirements as to the wearing of livery, presenting a good corporate image and advertising the employer are also significant indicators to be weighed.
8. Superintendence of finances including restrictions on bargaining the rate of payment, penalties for errors, method of payment and deduction of insurance are also significant indicators.
The Court of Appeal recently considered the relevant law on the issue of establishing an ‘employer/employee’ relationship in the matter of Paddison V Ultimate Image Pty Ltd T/As Hawkesbury Plasterworks [2004] NSWCA 410 at paragraphs 18-31. In that case the Court upheld the finding of the trial judge, that Mr Paddison was not an ‘employee’ of the Respondent. The Court; per Sheller JA, Santow JA and Levine agreeing, looked at the ‘totality of the relationship’ between the parties (Hollis v Vabu Pty Ltd (2001) 207 CLR 21) including the factors listed by Walker CCJ, above.
The Arbitrator sets out his reasons for decision at pages 80 to 84 of the transcript of the arbitration hearing. He correctly identifies that the “sole issue for decision ere is whether the applicant is a worker or not”. He then refers to the relevant authorities, which I have noted above. He refers to the reasoning of Mason J in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, where the ‘control test’ is referred to as one of, but not the only, indicia of the nature of the relationship between an employee and employer. The Arbitrator then states that the “control aspect does attain perhaps more significance than the other indicia unless there is overwhelming evidence which demonstrates the intention in the practice of the alleged worker to carry out his own business”.
I do not accept Qantas’s submission, “that the Arbitrator gave undue weight to considerations of the control test” and thus made an error of law. Reading the Arbitrator’s reasons as a whole it is clear that he did give emphasis to the facts relative to the ‘control’ of the worker in going about his duties. To give this aspect of the case significance is not an error. The Arbitrator’s comments, made giving an ex tempore decision, and while perhaps demonstrating a looseness of language, go no further than to highlight the continued importance of ‘control’ as one of the relevant factors in determining the nature of the employment relationship between the parties. To state that it remains important is not mis-stating the law. Depending upon the circumstances in the instant case, a high degree of control over the work, including regulating where and when a person is to work, what tasks he or she is to do and how he or she is to account for their time, may, when combined with other factors, be a strong indicator that a contract of employment is established (Articulate Restorations and Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 per Kirby P at page 764).
Had the Arbitrator considered the facts of this matter solely on the indicia of ‘control’, and not looked at the ‘totality of the relationship’ between the parties, then he would have erred. However it is clear from the Arbitrator’s reasons, when they are read as a whole, that he did consider the ‘totality of the relationship’ between the parties in coming to his conclusion that Mr Campisi was a ‘worker’ pursuant to section 4 of the 1998 Act, and that he was not engaged by Qantas as an independent contractor. The Arbitrator took the following matters into account in reaching his decision that Mr Campisi was not an independent contractor:
Factors weighing against a contract of employment and in favour of a finding of that Mr Campisi was an independent contractor:
·the financial arrangements between Mr Campisi and Qantas, including his rate of pay and lack of holiday or sick pay or superannuation,
·Mr Campisi’s operation under the business name of ‘Complete Water Blasters’ and his representations to the tax office;
·the lack of any foundation to Mr Campisi’s business offset claims on his tax returns,
·Mr Campisi’s representations as a sole trader in relation to insurance,
Factors weighing for a contract of employment and in favour of a finding of that Mr Campisi was an independent contractor
·The unskilled or ‘menial’ nature of the work Mr Campisi did for Qantas,
·The fact that Mr Campisi, although owning a ‘water blaster’ machine, did not use this or any other of his own equipment in the work he did for Qantas,
·Mr Campisi’s explanation as to why he did not have a policy of worker’s compensation insurance,
·The length of time that Mr Campisi was employed in the same work (1996-2003) the hours of work, the fact that Mr Campisi did not work for anyone else while he worked for Qantas and the degree to which this was set by Qantas, and
·The fact that Mr Campisi had to negotiate his ‘rosters’,
·Uniform requirements.
Qantas also allege the Arbitrator made a discretionary error in relation to findings on the weight of the evidence. It asserts that the weight of evidence clearly supported a finding that Mr Campisi was engaged by Qantas as an independent contractor. Fact finding by the Arbitrator inevitably involves the exercise of discretion. Findings relative to the credit of a witness and the relevance and weight of evidence are for the Arbitrator, who has heard or considered the whole of the evidence at first hand, to determine. It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or 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, In the matter of National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21] to [21]). Whether or not another decision-maker, or an appellate tribunal, would simply have come to a different view of the facts is irrelevant. The Arbitrator in this matter accepted Mr Campisi as a credible witness in his own cause, even though he also accepted that he had made misrepresentations to the tax office and for insurance purposes. On balance, he accepted his evidence on other relevant matters. I am not satisfied that the Arbitrator made an error of discretion in doing so.
The Arbitrator did not err in finding that Mr Campisi was a “worker” for the purpose of section 4 of the 1998 Act.
Future Conduct
Mr Campisi’s substantive entitlements to workers compensation, if any, remain to be determined. He has a claim for weekly benefits, medical expenses and permanent impairment compensation. In relation to the latter he must be assessed by an Approved Medical Specialist before an order can be made. However, the dispute should go back to the Arbitrator for further action before this referral is made.
Firstly, the parties should be given a further opportunity to reach a settlement of the dispute that is acceptable to all of them (section 354 of the 1998 Act). Secondly, the Arbitrator should consider whether he is able to determine the weekly benefits aspect of the dispute prior to referral to an Approved Medical Specialist. This may depend upon whether the evidence of an Approved Medical Specialist is relevant to the general dispute. Thirdly, the parties should be given the opportunity to come to an agreed nomination of an Approved Medical Specialist, failing which the Registrar will appoint.
Costs
Division 3 of Part 8 of the 1998 Act governs the award of costs in the Commission. Section 345 applies to costs of an appeal.
In this matter Qantas was unsuccessful on the appeal (section 345(3)) and it should bear the costs.
Decision
The decision of the Arbitrator is confirmed. The Appellant is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
4 March 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
8
0