Qantas Airways Ltd v Campisi - [2005] NSWWCCPD 13

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWWCCPD 13
Decision Date: 4 March 2005

CaseChat Overview and Summary

Qantas Airways Ltd, the appellant, filed an appeal against a decision of the Workers Compensation Commission, challenging the determination that Angelo Campisi, the respondent, was a 'worker' and not an 'independent contractor' for the purposes of the Workers Compensation Act 1987. The Arbitrator had ruled that Mr Campisi was entitled to workers' compensation for an injury sustained during his employment with Qantas, finding that he was a worker rather than an independent contractor. The central issue in this appeal was whether the Arbitrator had erred in law by incorrectly applying the relevant tests to determine if Mr Campisi was a worker or an independent contractor.

The appeal court examined the applicable legal principles governing the distinction between an employee and an independent contractor, emphasizing that the classification should be based on the totality of the relationship between the parties rather than solely on the control exerted by the employer. The court considered the factors outlined in previous judicial decisions, including the degree of control over the worker's performance, economic dependence, and the nature of the work performed. The court found that the Arbitrator had properly considered the totality of the relationship and had not erred in concluding that Mr Campisi was a worker.

In reaching its decision, the court highlighted that the Arbitrator had considered various factors, both for and against the characterization of Mr Campisi as an independent contractor. These included the financial arrangements, the nature of the work, and the degree of control exerted by Qantas. The court concluded that the Arbitrator had not erred in his assessment of the evidence and had correctly determined that Mr Campisi was a worker. Consequently, the appeal was dismissed, and the original decision of the Arbitrator was upheld.

As a result of the dismissal of the appeal, Qantas was ordered to pay the costs associated with the appeal. The matter was remitted back to the Arbitrator for further proceedings to determine Mr Campisi's entitlement to workers' compensation benefits, including weekly benefits, medical expenses, and permanent impairment compensation.

Orders