Qoreishi v B2C Delivers Pty Ltd
[2025] NSWPICPD 63
•5 September 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Qoreishi v B2C Delivers Pty Ltd [2025] NSWPICPD 63 |
APPELLANT: | Sadi Qoreishi |
FIRST RESPONDENT: | B2C Delivers Pty Ltd |
SECOND RESPONDENT: | Fleets Flyers Pty Ltd |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W25549/24 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 5 September 2025 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 13 December 2024 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – definition of worker under s 4 of the Workplace Injury Management and Workers Compensation Act 1998 – construction of written contract and whether the appellant was an employee or an independent contractor – Construction,Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; ZGOperations Australia Pty Ltd v Jamsek [2022] HCA 2 considered and applied |
HEARING: | 18 August 2025 |
REPRESENTATION: | Appellant: |
| Mr J Trainor, counsel | |
| Walker Law Group | |
| Respondents: | |
| Mr D Stiles, counsel | |
| Hicksons Lawyers | |
DECISION UNDER APPEAL: | Qoreishi v B2C Delivers Pty Ltd [2024] NSWPIC 699 |
MEMBER: | Mr A Halstead |
DATE OF MEMBER’S DECISION: | 13 December 2024 |
INTRODUCTION
Mr Sadi Qoreishi (the appellant) signed a document entitled ‘Independent Contractor Agreement’ (contract)[1] with B2C Delivers Pty Ltd (the first respondent) dated 30 September 2020. Under the contract, the appellant was inter alia required to supply his own vehicle and be available to perform the services, which involved the delivery of goods, usually household appliances. I set out below in greater detail the terms of the contract. Under the contract, the appellant was required to take instruction from ‘ANC’, which is a business name for Fleets Flyers Pty Ltd (the second respondent).
[1] Application to Resolve a Dispute (ARD), pp 110–122.
On 11 March 2022, the appellant suffered injury whilst performing his contractual duties for the respondents. The appellant claims weekly compensation and the payment of medical treatment expenses. The appellant claims that notwithstanding the contract, he was in fact a worker.
The respondents resist the appellant’s claims, asserting that he was not a worker but rather his status was that of an independent contractor.
Before the Member the threshold issue for determination was whether the appellant was in fact a ‘worker’, as defined in s 4 of the Workplace injury Management andWorkers Compensation Act 1998 (the 1998 Act), at the time he was injured.
The Member found that the appellant was not a worker and accordingly entered an award in favour of the respondents. It is from this decision that the appellant appeals.
This matter was heard by me on Monday 18 August 2025.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The starting point for the consideration of the evidence is the documents comprising a letter and the contract. The contract comprises the contract, a cover letter, the ANC Codes of Conduct, and the Contractor Business Application. I set out below the relevant extracts from the contract and the ‘covering letter’ dated 30 September 2020, which is specifically incorporated in the contract except where it is inconsistent with the contract.[2]
[2] Contract clauses 1.1 and 1.2, ARD, p 112.
Covering letter
The Covering letter is set out in the following way:
“Dear Driver,
Your appointment as an Independent Contractor with B2C Delivers Pty Ltd
B2C Delivers Pty Ltd is a transport company providing services to ANC and their clients.
We appreciate that you are interested in conducting deliveries for the Company. We look forward to building a strong relationship with you and working together in the future.
These are the key terms that we would like to offer you:
Start date: 01 Oct 20 approx
Availability for Work: You are required to be available to provide the Services between 6.00am to 6.30pm each day from Monday to Friday, and on weekends if requested or other times by mutual agreement. The start time will be based on our client and their requirements to ensure a smooth loading time at their relevant sites.
Equipment you must provide: You must supply your own vehicle, smart phone for using the FMS delivery software, and all delivery equipment to ensure the safe conveyance and manual handling of each consignment. Such equipment would include trolleys, ropes, appropriate tie-downs, restraints, tarpaulins, blankets, rugs and carpet lengths for floor protection as appropriate to each delivery.
Equipment the Company will provide: The Company will provide you with ANC signage, 2 ANC polo shirts, 2 pairs of trousers and 1 ANC cap.
Termination: The agreement can be terminated by either party giving two weeks’ notice.
More detailed terms of our engagement are set out in the attached Independent Contractor Agreement. Please read the agreement and seek your own independent legal advice. If you would like to discuss or propose amendments to any terms, please outline any proposed amendments in writing for consideration. If you would like to accept the terms, please sign the agreement at the end and return it to me.”[3]
[3] ARD, p 111.
Contract
The parties to the contract are described as the “Company” (first respondent) and the “Contractor” (being the appellant). The contract then goes on to specify a number of terms. I set out the terms that are germane to the issues contested in this matter.
“1. Cover Letter dated 30 Sep 20
1.1 The terms of the attached cover letter form part of this agreement.
1.2 If there is any inconsistency between the cover letter and this agreement, the terms of this agreement will prevail.
2. Contractor Business Application dated 30 Sep 20
2.1 The Contractor has read, completed, and understood the Contractor Business Application.
2.2 The Contractor warrants that all details provided in the Contractor Business Application are correct.
2.3 The Company’s Contractor Business Application includes the ‘ANC Chain of Responsibility’ document, the ‘Important notice to Contractors regarding your rights and obligations as insurance policy holders’ and other documents provided by the Company to the Contractor from time to time.
2.4 The Contractor Business Application forms part of this agreement.
3. Code of Conduct – Drivers & Offsiders dated 14 Sept 20
3.1 The ANC Code of Conduct – Drivers & Offsiders has been read and understood by the Contractor.
3.2 The ANC Code of Conduct – Drivers & Offsiders forms part of this agreement.
4. The Work
4.1 The Contractor will perform the Services for the Company:
(a) of goods as requested by the Company or ANC;
(b) at locations and times requested by the Company or ANC,
(c) and any other related tasks as reasonably requested by the Company or ANC.
4.2 The Contractor must cooperate with the Company or ANC to successfully complete all deliveries.
4.3 If the Contractor does not successfully complete a delivery, the Contractor must rectify the delivery at their cost. If the Contractor cannot rectify the delivery, the Company will arrange for the delivery to be rectified and the rectification cost will be charged to the Contractor.
4.4 The Contractor must provide the Company or ANC with a signed proof of delivery for every consignment (unless the contract of carriage has an authority to leave) and any other information requested by the Company or ANC.
4.5 The Contractor will be available to work at the times set out in the cover letter.
4.6 If the Contractor will not be available to work at the times set out in the cover letter (including where the Contractor goes on holidays), the Contractor must:
(a) notify the Company at the earliest opportunity; and
(b) where possible supply an employee or agent to perform the Services in accordance with clause 15.
4.7 When not available for work, the Contractor can work elsewhere.
4.8 If the Contractor works elsewhere, the Contractor must not hold themselves out as representing the Company or ANC or use equipment provided.
4.9 The Company has an absolute discretion in relation to the amount and type of work it offers to the Contractor. The Company makes no guarantees or representations about the amount or type of work it will provide.
5. Contractor’s Obligations
5.1 The Contractor must:
(a) successfully complete all inductions and all annual online refresher courses;
(b) comply with ANC’s Code of Conduct – Drivers & Offsiders;
(c) perform the Services in a professional, competent and conscientious manner;
(d) use all reasonable care to ensure goods are carried safely;
(e) carry out all lawful requests of the Company in accordance with the Company and ANC’s customer requirements;
(f) at all times use the FMS delivery software on a smart phone while performing the Services for the Company;
(g) notify the Company immediately if:
(i)they are unable to provide the Services including not being able to carry out a contract of carriage;
(ii) an accident or injury occurs while performing the Services;
(iii)the goods to be carried are dangerous or hazardous;
(iv) the goods to be carried are not packed or wrapped in a proper and secure manner or are in a damaged or unsafe condition;
(h) maintain proper accounts and records in relation to the Services;
(i) use the techniques set out in the safe handling and lifting technique contained in documentation provided by the Company and ANC to the Contractor from time to time;
(j) comply with all policies and procedures of the Company and ANC, all safe work practices and all safety instructions contained in documentation provided to the Contractor from time to time;
(k) comply with all laws and regulations, including health and safety legislation relevant to the State of the performance of the Services in the Commonwealth of Australia.
6. Payments to the Contractor
6.1 The Company will pay the Contractor the fee set out on the Company Cover Letter for each delivery completed successfully. This amount includes GST and fuel levy (if applicable).
6.2 In order to be paid the Payment set out on the Company Cover Letter, the Contractor must:
(a) use their smart phone at all times with the most up to date version of the FMS delivery software;
(b) provide ANC with a signed proof of delivery for each delivery (unless the contract of carriage has an authority to leave); and
(c) If a Recipient Created Tax Invoice (RCTI) is not provided by the Company to the Contractor, then a valid Tax Invoice is to be provided at the end of each week.
6.3 The Company will pay the Contractor within 14 days of receiving a valid tax invoice or within 14 days of the Company issuing the RCTI to the Contractor. The Company will deposit the payment into a bank account nominated by the Contractor.
6.4 Payment by the Company of any Top-up amount is specified in the Company Cover letter is subject to the following conditions:
(a) the Contractor must be available to provide the Services at the times specified in the Company Cover letter and must log in by 7:00am on each of those days;
(b) if the Contractor is not available to provide the Services or does not log in as required on any day, the Top-up amount will not be paid to the Contractor for that day.
6.5 The Company may continue to pay Top-ups after the period specified in the Company Cover letter at the absolute discretion of the Company, and the Company may cease paying the Top-up amounts at any time.
6.6 The Company may review and change any amounts payable to the Contractor with one weeks’ notice.
7. Recipient Created Tax Invoice
7.1 At the end of each calendar week period that the Contractor provides the Services, the Company may provide the Contractor with a Recipient Created Tax Invoice (RCTI) for that period.
7.2 The Contractor must notify the Company of any inaccuracies in a RCTI within 14 days of receipt. If no notice is received within 14 days, all payments will be deemed correct and no further corrections will be made.
8. Vehicle and Equipment
8.1 The Contractor will use their own vehicle at their own cost to provide the Services.
8.2 Each vehicle provided by the Contractor:
(a) is subject to inspection and approval by the Company prior to use;
(b) must be suitable for the work to be done by the Contractor; and
(c) must be white in colour, unless otherwise agreed by the Company.
8.3 The Contractor must display on the vehicle any reasonably signage directed by the Company.
8.4 The Contractor may substitute an alternative vehicle, but only if;
(a) the vehicle so specified is unable to be used due to breakdown or accident; and
(b) the alternative vehicle is fit for the purpose of providing the Services; and
(c) the Company agrees that the Contractor may use the alternative vehicle.
8.5 The Contractor must at all times have a current:
(a) driver’s licence sufficient to operate the vehicle;
(b) vehicle registration;
(c) compulsory third-party insurance;
(d) comprehensive motor vehicle insurance; and
(e) Public liability insurance
and will provide the Company with evidence of these as requirements and relevant certificate of currency upon requested by the Company.
8.6 If any of these insurances cease to be current the Contractor must tell the Company immediately.
8.7 The Contractor must ensure the vehicle is at all times:
(a) mechanically sound and in roadworthy condition;
(b) in a suitable condition for the safe carriage of the goods being delivered;
(c) kept clean and presentable inside and outside;
(d) fully equipped with all equipment necessary to perform the Services;
(e) fully equipped with personal protective equipment, first aid supplies and fire protection equipment.
8.8 The Contractor must ensure that any person who operates the vehicle is properly qualified, experienced, and fully licensed to operate the vehicle, has completed all relevant online induction courses and has the necessary skills to do so.
8.9 The Company will not be liable for any costs associated with the vehicle or any equipment associated with the vehicle.
8.10 The Contractor must supply all necessary delivery equipment, such as manual handling equipment, ropes, tie-downs, and tarpaulins.
8.11 The Contractor must supply a smart phone compatible with the FMS delivery software to be used at all times.
9. Right to Suspend Allocation of Services
9.1 The Company may not issue a request to the contractor to provide the Services (Allocation) if:
(a) The Contractor’s vehicle is declared un-roadworthy, or, in the reasonable opinion of the Company, is not in a safe or roadworthy condition;
(b) The Contractor or any employee or agent of the Contractor ceases to hold any necessary licence as required within this agreement;
(c) The Contractor’s vehicle does not meet the Company’s reasonable requirements concerning appearance; or
(d) The Contractor is in breach of any term of this agreement.
9.2 During any period of suspension, where the Contractor is not providing the Services, the Contractor is not entitled to any minimum payment; and
9.3 The Company will re-commence the Allocation of services to the Contractor as soon as practicable after the Contractor has provided evidence to the Company that the breach has been remedied.
9.4 Nothing in this clause removes the right of either party to terminate this agreement in accordance with clause 20 (Termination of this Agreement).
…
14. Insurance and Indemnities
14.1 The Contractor must maintain all insurances required by law.
14.2 The Contractor will effect and maintain on terms acceptable to the Company a public and products liability insurance covering liability arising out of any injury to or death of any person or any loss of or damage to any property, including any loss of use, in the amount of at least $20,000,000 in respect of any one occurrence. Such policy shall cover the Company and ANC for any liability arising out of any injury to or death of any person or any loss of or damage to any property caused by the Contractor or its employees or agents.
14.3 The Contractor will be responsible for and will indemnify the Company and ANC against liability for all loss, damage or injury to persons or property (including company owned equipment) caused by the Contractor or its employees or agents while providing services, and the amount of all claims, damages, costs and expenses which may be paid, suffered or incurred by the Company or ANC in respect to any such loss, damage or injury shall be made good at the Contractor’s expense and may be deducted from any Payment due to the Contractor.
14.4 The Contractor will comply with any obligations to take out a worker’s compensation policy for the Contactor, and any employees or agents of the Contractor under the relevant State or Territory Workcover Legislation.
15. Employees and Agents
15.1 The Services under this agreement may be done by the Contractor as a sole trader or an employee or agent of the Contractor, provided that the employee or agent:
(a) is given prior approval by the Company;
(b) has the necessary qualities, accreditation, competence, and skills to perform the Services;
(c) has disclosed to the Company their medical conditions and previous injuries or claims relevant to the provision of the Services; and
(d) The Company has the right to refuse their approval to allow the Contractor, or the employee or agent of the Contractor to perform the Services if any of the above requirements are not provided to the satisfaction of the Company.
15.2 Each Contractor or their employee or agent must:
(a) adhere to the terms of this agreement; and
(b) comply with the requirements of the Company’s Contractor Business Application as applies to the provision of the Services by the employee or agent; and
(c) at all times hold a valid driver’s licence sufficient to perform the work.
15.3 The Company may direct the Contractor to cease providing the Services or using any employee or agent if the Contractor employee or agent fails to comply with any provisions of this agreement.
15.4 Where possible, when a Contractor or their employee or agent becomes unavailable to perform the Services, the Contractor must supply a replacement employee or agent to perform the Services in accordance with this clause. The Company is not responsible for any Payment to the Contractor or to a Contractors employee or agent during any period of non-performance of Services from the Contractor’s employee or agent.
15.5 Prior to an employee or agent starting work, the Contractor must provide the Company with all details and documents requested by the Company in relation to that person.
15.6 The Contractor will be fully responsible for and will meet all obligations in relation to all employees or agents, including:
(a) payment of fees, wages, allowances, leave payments, redundancy payments and any other similar entitlements under any industrial instrument, law or agreement;
(b) income tax deductions and payroll tax;
(c) superannuation contributions unless the Contractor is exempt under the law; and
(d) workers compensation and any other applicable insurance requirement.
15.7 The Contractor must provide to the Company on request any documentation requested by the Company in evidence that these obligations are being met.
15.8 The Contractor will be responsible for and will indemnify the Company against all liability incurred by the Company in respect of any employee or agent who provides the Services on behalf of the Contractor under this agreement. This includes any payments in respect of tax, wages, salary, allowance, or superannuation incurred or payable to any person or authority.
15.9 All acts by the Contractor’s employees or agents will be deemed to be acts of the Contractor. Any breach by an employee or agent of the Contractor pursuant to this agreement will be deemed to be a breach by the Contractor of this agreement.
16. Status of Contractor
16.1 The Contractor is engaged as an Independent Contractor and will not be an employee, partner, or joint venture partner of the Company.
16.2 The Contractor will not make any claims that they are an employee, partner, or joint partner of the Company.
16.3 Where the Contractor is unable to provide the Services due to temporary absence, the Contractor is not entitled to any Payment from the Company for that period of non-performance of Services.
16.4 The Contractor will use their own expertise and equipment to perform the Services.
16.5 The Contractor will pay their own tax, superannuation workers compensation insurance, public liability insurance and any other similar amounts.
16.6 The Contractor has no authority to incur any obligations on behalf of the Company without the written authority of the Company. The Contractor must not represent to anyone that they have such authority.
16.7 The Contractor must not represent that they have any interest of any kind in the Company or its goodwill.
16.8 The Contractor will be responsible for and will indemnify the Company against any liability incurred by the Company as a result of a breach by the Contractor of the obligations set out in this clause.
…
21. No Assignment
21.1 This agreement is personal and may not be assigned without the written consent of the other party.”
The contract also specifies terms which prohibit the appellant having any conflict of interest with the first respondent’s interests,[4] which protect the first respondent’s confidential information[5] and protecting the first and second respondents’ business.[6] The contract also contains a number of other clauses dealing with termination (clause 20), waiver (clause 22), invalidity (clause 23), changes to the agreement (clause 24), governing law and entire agreement (clauses 25 and 26 respectively).
[4] Contract clause 17, ARD, p 119.
[5] Contract clause 18, ARD, p 119.
[6] Contract clause 19, ARD, pp 119–120.
THE MEMBER’S REASONS
The Member initially directed himself to the definition of “worker” as provided in s 4 of the 1998 Act.[7]
[7] Qoreishi v B2C Delivers Pty Ltd [2024] NSWPIC 699 (reasons), [11].
The Member noted that as there was no claim by either party of an existing training contract, the task before him was to consider whether the appellant had entered into or worked under a contract of service with the respondent, noting the onus was on the appellant to establish, on the balance of probabilities, that he was a worker under s 4 of the 1998 Act.[8]
[8] Reasons, [12].
The Member noted the essential elements of a valid contract before directing himself to the authorities noting Dietrich v Dare,[9] Stevens v Brodribb Sawmilling Company Pty Limited,[10] Malivanek v Ring Group Pty Ltd,[11] ZG Operations Australia Pty Ltd v Jamsek[12] and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd.[13]
[9] (1980) 30 ALR 407.
[10] [1986] HCA 1 (Stevens).
[11] [2014] NSWWCCPD 4.
[12] [2022] HCA 2 (Jamsek).
[13] [2022] HCA 1 (Personnel Contracting).
The Member considered the contract at reasons [19]–[21], noting there was no dispute that the appellant had entered into a contract with the first respondent on 30 September 2020 and there was an associated cover letter referring to the appellant as an “independent contractor”. The contract stipulated that the cover letter formed part of the contract.
The Member noted that throughout the contract the appellant was referred to as “Contractor” and the first respondent was referred to as “The Company.” The Member noted that although the contract recorded the appellant was “engaged as an Independent Contractor and will not be an employee, partner, or joint venture partner of the Company,” that label was not in itself determinative, what was relevant was how the parties viewed the relationship.
The Member considered the appellant’s submissions that despite the contract referring to the appellant as contractor or sub-contractor, the nature of the arrangement was one of employment and thus satisfied the definition of “worker” as provided by s 4 of the 1998 Act. The appellant cited factors that were indicia of an employment relationship, referring to the control exercised by the respondents over the appellant, being subject to the second respondent’s Code of Conduct, having been provided with training, having to work during fixed hours, and the requirement to wear a uniform.[14]
[14] Reasons, [22]–[25].
The Member noted the appellant’s submission that although it was not the appellant’s responsibility to identify the correct employer, the appellant had nonetheless believed the first respondent was the appropriate employer as it was the contractual counterparty and paid the appellant as per the contract terms. The appellant submitted that “it is clear from the contractual terms that control of the [appellant] was with the second respondent in a manner not dissimilar to a labour hire arrangement.”[15]
[15] Reasons, [25].
The respondents submitted that the appellant was an independent contractor, relying on the contract terms noting he was required to provide his own equipment, including his own vehicle to deliver the goods, had his on ABN, and was registered for GST. The respondents also submitted that there was no exclusivity of service, the appellant was required to have his own business insurances and was responsible for paying his own tax and superannuation contributions. The respondents also argued the appellant employed an “off-sider” in the delivery work, the appellant’s tax returns confirmed he was operating a business, and he had also applied for the government COVID-19 grant as a business for financial support.[16]
[16] Reasons, [27].
The Member noted that the parties had accepted the terms of the relationship were contained within the written contract, cover letter and the “Chain of Responsibility” document, however the appellant had challenged the interpretation to be given to the agreement based on the indica.[17]
[17] Reasons, [29].
The Member acknowledged that while some specific terms of the contract extracted by the appellant could, on their own, be capable of establishing an employment relationship, those extracts did not have full regard to the contract as a whole.[18]
[18] Reasons, [30].
The Member rejected the appellant’s submission that there was ‘exclusivity of service’ noting the contract expressly stated to the contrary. The Member also considered that there was flexibility in the contract for the appellant to work outside the set hours to increase his income and furthermore, the respondents could not be said to have significant control over the delivery and installation service provided by the appellant. The Member noted these facts resembled those considered in Jamsek where it was held an employment relationship did not exist.[19]
[19] Reasons, [31].
The Member noted it was evident from the contract that the appellant was not required to undertake the work personally and could employ other persons and that “[s]uch an arrangement could not usually, if ever, be accepted as an employment relationship.”[20]
[20] Reasons, [32].
The Member noted the contract provided for the appellant to structure his business in a way to obtain workers compensation insurance and other various insurances.
The Member was of the view that clause 15 of the contract was central to the relationship of the parties, noting it was open for the appellant to engage his own employees or sub-contractors and was permitted by the terms of the contract to conduct a business more broadly than in his own capacity as an individual. The Member viewed the arrangement extending “far beyond the confines of a contract of service.”[21]
[21] Reasons, [34]–[35].
The Member considered that the control mechanisms as argued by the appellant were in fact parameters to ensure compliance with the respondents’ business requirements and were not personal to the appellant but rather applied to him if he chose to perform the delivery work. In circumstances where the appellant had employed other persons, the appellant was obligated to ensure those employees complied with the respondents’ business requirements.[22]
[22] Reasons, [36].
The Member was ultimately satisfied that the evidence did not establish a contract of service but rather a contract for services. The Member said, “In circumstances where there was no contract of service, the [appellant] cannot have been a “worker” for the purposes of s 4 of the Act.”[23]
[23] Reasons, [38].
The Certificate of Determination issued on 13 December 2024 records:
“1. The [appellant] was not a worker for the purposes of s 4 of the Workplace [Injury] Management and Workers Compensation Act 1998.
2. Award for the respondent[s].”
GROUNDS OF APPEAL
The appellant advances the following five grounds of appeal:
Ground One - That the Member’s failure to find ‘exclusivity of service’ was an error of fact and, or, an error of law.
Ground Two - That the Member’s finding that the Contract did not apply to the appellant ‘as an individual’ was an error of fact, and, or, an error of law.
Ground Three - That the Member’s construction of clause 15 of the Contract was an error of fact, and, or, an error of law.
Ground Four - The Member erred in law in that he failed to consider, or alternatively, failed to provide any reasons for rejecting, the appellant’s submissions regarding the control exercised over the appellant by the respondent; an error of fact, and, or, an error of law.
Ground Five - That the Member’s finding that the appellant was a contractor was an error of law, and, or an error of fact, and, or a mixed error of fact and law.
NATURE OF APPEAL
Since this appeal was filed, a five-member bench of the Court of Appeal delivered judgment in State of New South Wales v Culhana.[24] Culhana considered the nature of an appeal under s 352(5) of the 1998 Act, disapproving what had been the leading authority of Raulston v Toll Pty Ltd[25] on this question. The Court of Appeal rejected what it described as the ‘narrow’ view of the appellate function under s 352(5) of the 1998 Act that Raulston had decided, instead stating the following:
“Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential Member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal without fully addressing whether there is an error of fact, law or discretion.”[26]
[24] [2025] NSWCA 157 (Culhana) 17 July 2025.
[25] [2011] NSWWCCPD 25 (Raulston).
[26] Culhana, [91].
After the decision in Culhana was published, I issued a Direction to the parties inviting submissions on this authority.
Appellant’s submissions
The appellant provided further submissions specifically addressing Culhana dated 30 July 2025. The appellant submits that Raulston can no longer be considered good law but to the extent that Culhana is relevant, it is only relevant to appeals based on an error of fact. The appellant says that the effect of Culhana is to widen the scope of an appeal, thus making an appellant’s task significantly easier.
The appellant submits the following in relation to this appeal:
“The appellant’s submissions in chief challenged various findings of fact by the Member (see [7.1], [7.2], [7.3], [7.4] and [7.5] of the submissions in chief). He did so on the basis that he had to satisfy the Presidential Member that those challenged findings of fact were, in accordance with Raulston, not open to the Member (see [11], [12], [15] and [17] of the submissions in chief). In light of Culhana, the appellant no longer has to satisfy the Presidential Member that this is so; as a result of Culhana, the Presidential Member is now required to consider the evidence relating to the factual matters complained of afresh and reach his or own conclusion as to what are the correct factual findings, totally independently of the non-Presidential Members factual findings.”[27]
[27] Appellant’s submissions dated 30 July 2025, [6].
Respondents’ submissions
The respondents say the following about the application of Culhana to this appeal:
“Given the direction provided by Justice Leeming in paragraphs [91] of Culhana, and noting the specific reference to paragraph 55 of the High Court’s decision in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2019] HCA 28, it is the First and Second Respondents’ submission that the proper application of section 352 of the 1998 Act causes no controversy in relation to the determination of the current appeal. That is, there were no findings of the Member that were affected by impressions about the credibility or reliability of witnesses as a result of seeing or hearing them give evidence. Indeed, no oral evidence was given in this matter and there was no real controversy raised regarding the facts. The issues raised on Appeal predominantly relate to [the] Member’s analysis of the written contract of employment, rather than evidence of any witnesses.
In the First and Second Respondents’ submission, the Presidential Member appointed to determine the Appeal would be in as good a position as the Member to decide on proper inferences to be drawn from any facts which are undisputed or which, having been disputed, were established by the findings of the Member in his original determination.”[28]
[28] Respondents’ submissions dated 28 July 2025, [5]–[6].
LEGISLATION
Section 4 of the 1998 Act defines “worker” as:
“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).”
DISCUSSION
Some principles about the determination of a person having the status as a ‘worker’ under the 1998 Act
It is necessary to set out the relevant principles by which it is determined whether the appellant is a worker. Under s 4 of the 1998 Act, a ‘worker’ is a person who has entered into or works under a contract of service.
In two 2022 decisions,[29] the High Court by majority stated the correct approach to deciding the question as to whether an individual was an employee or an independent contractor. I summarise these principles as follows:
“Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide-ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require.
In this respect, the principles governing the interpretation of a contract of employment are no different from those that govern the interpretation of contracts generally. The view to the contrary, which has been taken in the United Kingdom, cannot stand with the statements of the law in Chaplin and Narich.”[30]
[29] Personnel Contracting; Jamsek.
[30] Personnel Contracting, [59]–[60], per Kiefel CJ, Keane and Edelmann JJ (Gordon and Steward JJ agreeing).
The High Court said this about how the parties characterise the relationship:
“To say that the legal character of a relationship between persons is to be determined by the rights and obligations which are established by the parties' written contract is distinctly not to say that the ‘label’ which the parties may have chosen to describe their relationship is determinative of, or even relevant to, that characterisation.
Subject to statute, under the common law the parties are free to agree upon the rights and obligations by which they are to be bound. But the determination of the character of the relationship constituted by those rights and obligations is a matter for the court.
…
As a matter of principle, however, it is difficult to see how the expression by the parties of their opinion as to the character of their relationship can assist the court, whose task it is to characterise their relationship by reference to their rights and duties. Generally speaking, the opinion of the parties on a matter of law is irrelevant. Even if it be accepted that there may be cases where descriptive language chosen by the parties can shed light on the objective understanding of the operative provisions of their contract, the cases where the parties' description of their status or relationship will be helpful to the court in ascertaining their rights and duties will be rare.”[31]
[31] Personnel Contracting, [63], [64] and [66], per Keifel CJ, Keane and Edelmann JJ. See also Gageler and Gleeson JJ at [127].
In this case, the appellant made much of the element of ‘control’ said to be exercised over him by virtue of the contract terms. The High Court said the following:
“Like the ‘own business/employer’s business’ dichotomy, the existence of a right of control by a putative employer over the activities of the putative employee serves to sensitise one to the subservient and dependent nature of the work of the employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services.”[32]
[32] Personnel Contracting, [73].
As a corollary to the appellant’s control argument, much reliance has been placed on Stevens, both before the Member and on appeal. In Personnel Contracting, the following was stated about Stevens and another High Court decision of Hollis v Vabu Pty Ltd:[33]
“To the extent that it has been supposed that a departure from the long‑standing approach predating, but exemplified in, Chaplin and Narich was required by this Court’s decisions in Stevens and Hollis, that understanding is also not correct. In neither Stevens nor Hollis did this Court suggest that, where one person has done work for another pursuant to a comprehensive written contract, the court must perform a multifactorial balancing exercise whereby the history of all the dealings between the parties is to be exhaustively reviewed even though no party disputes the validity of the contract.
In Stevens, Mason J said that ‘it is the totality of the relationship between the parties which must be considered’. But this statement was made in the context of a discussion the point of which was to emphasise that the right of one party to control the work of another was ‘not ... the only relevant factor’. It was not an invitation to broaden the inquiry beyond the contractual rights and duties of the parties. Importantly, Stevens was not a case where the parties had committed the terms of their relationship to a written contract. In this respect, Stevens stands in obvious contrast to cases like Chaplin and Narich – and the present case.
In Hollis, the ‘contractual relationship’ pursuant to which Vabu ‘imposed’ its work practices upon couriers was partly oral and partly in writing. The terms of the relationship between the parties had not been committed comprehensively to a written agreement. Moreover, there was no suggestion in any of the judgments in Stevens or Hollis that their Honours entertained any misgivings as to the statements of principle in Chaplin and Narich. Indeed, in Stevens, Mason J (with whom Brennan J agreed) and Wilson and Dawson JJ referred to Chaplin with evident approval. It is also noteworthy that Gleeson CJ, who followed Narich in Connelly v Wells, was a party to the plurality judgment in Hollis. As has been correctly observed, Hollis ‘does not alter or even challenge the orthodox principle that courts are not concerned with what has ‘actually occurred’ in a relationship, but rather with ‘the obligations by which the parties [are] bound’’.”[34]
[33] [2001] HCA 44; 207 CLR 21 (Hollis).
[34] Personnel Contracting, [55]–[57].
Before embarking upon a consideration of the various appeal grounds, it is important to note the following about this matter. Firstly, nowhere does the appellant assert that the contract was a sham arrangement. The appellant confirmed this position, namely that there is no allegation that the contract was a sham, when the appeal was heard before me.[35] Rather, the argument is that the ‘label’ attached to the agreement is not determinative and when examined, it in fact reveals an employment relationship. The appellant in particular points to various contractual provisions which he says reveal significant amounts of control being exercised by the respondent. Secondly, and unlike Stevens, the parties in this matter had reduced the terms of the relationship to a written contract. I have extracted the contract at length above and in my view it is comprehensive.
[35] Transcript 18 August 2025 (T), 30.
The appellant puts great emphasis on the “overarching control”[36] that the respondent could exercise over the appellant by virtue of various terms in the contract and that I should thus be satisfied that the relationship was in fact one of employment. The appellant accepts however that in approaching this task of weighing the contract terms, I have to consider the entirety of the contract[37] in assessing the true characterisation of the relationship.[38]
[36] T 30.27.
[37] T 45–46.
[38] Personnel Contracting, [59].
The appellant quite properly made the following remark at the hearing: “It is conceded that this is a case which falls outside the zone that comfortably would conform with one or the other of those definitions”,[39] referring to the definitions of independent contractor and employee. However the appellant stated that once the contract had been examined, I would be satisfied that the appellant was in fact an employee.[40]
[39] T 24.34–25.2.
[40] T 25.10–11.
I would also make the following remarks which fall from a consideration of the recent Court of Appeal decision in Culhana. No viva voce evidence was heard by the Member in this matter. Rather, counsel for both parties addressed the Member on the evidence and the decision was then reserved. This is a very common occurrence in the Commission given the way the rules and procedural directions govern the way disputes are framed and heard. There is no presumptive right for a party to call oral evidence, leave must be sought and granted by the Member for this to occur.[41] Consequently, the advantages that a first instance decision maker would have over an appellate body, having heard such evidence, has limited resonance in this appeal. The evidence germane to the issues before me on appeal are the various statements and the contract which were before the Member. What this means is that I am in as good a position as the Member was to consider the evidence and to draw what I consider to be are the correct inferences or conclusions if I decide that the Member was in error. In other words, I will not perpetuate a demonstrated error as referred to in Warren v Coombes and as discussed in Culhana. What this does not mean is that I would merely substitute my preferred view of a particular factual outcome; error must be proven for an appeal to succeed.
[41] Rule 34 of the Personal Injury Commission Rules 2021; Procedural Direction PIC1 [38].
As to Gound One
The appellant takes issue with the Member’s finding at reasons [31] which reads as follows:
“… I do not accept the [appellant’s] submission (which was also refuted by the respondents) that there was any exclusivity of service. The contract expressly states the contrary: ‘When not available for work, the [appellant] can work elsewhere’.”
The appellant says that this reasoning fails to read the contract as a whole. The appellant points to clauses 4.5 and 4.7 of the contract and an extract from the cover letter, which three provide as follows:
“4.5 The Contractor will be available to work at the times set out in the cover letter.”
“4.7 When not available for work, the Contractor can work elsewhere.”
“Availability for Work: You are required to be available to provide Services between 6:00am to 6:30pm each day from Monday to Friday …”
The appellant says the only conclusion open to the Member was that the appellant was required by the contract to provide exclusivity of his service. The appellant says that the part of clause 4.7 of the contract, upon which the Member’s finding was based, “should logically have been read as being subject to both clause 4.5 and the cover letter, which the Member failed to do.”[42]
[42] Appellant’s submissions dated 6 January 2025, [12].
In response, the respondents state that the appellant’s submission is based upon selective extracts from the contract and fails to consider it as a whole. The respondents also point to other paragraphs of the reasons where the issue of exclusivity of service was dealt with.[43] In answer to this ground generally, the respondents rely on the High Court decisions in Personnel Contracting and Jamsek as requiring primacy to be given to the contract terms.
[43] The respondents rely on reasons [31], [32] and [34].
In its reply submission, the appellant submits the following:
“A recurrent theme throughout the respondents’ Submissions is that the appellant, both in addressing the Member, and by his Primary Submissions was ‘selective’ in his construction of the Contract. Instances of this can be seen at paragraphs [1], [8], [11], and [14] of the respondents’ Submissions. Lest his silence on this matter be construed as acquiescence, the appellant says this: In the context of a contest as to whether a contract is for service or for services, identifying those indicia within the Contract that suggest the former is a legitimate forensic exercise. That this is so is seen by the fact that course of the Arbitration undertaking this task [sic], the appellant made reference to clauses 3.1 and 3.2 of the Contract, clause 4.1, 4.2, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 and 5.1 of the Contract; and indeed by the Member’s Decision, which makes reference to two, and only two, provisions in the Contract, namely clause 4.5 and clause 15.”[44]
[44] Appellant’s submissions in reply dated 21 February 2025, [19].
The appellant submits the respondents’ submission fails to address what the appellant says about the Member not addressing clause 4.5 of the contract or the covering letter. This, the appellant says, was the gravamen of its complaint in its primary submission.
Generally, the appellant responds by stating that the respondents’ submissions fail to answer the appellant’s submissions in chief.
Consideration
For the following reasons, I do not accept the appellant’s arguments in this ground. A consideration of the contract terms as a whole reveal that the appellant did not contract to provide any exclusivity of his own service to the respondents.
The contract provides the following. Clause 4 is entitled “The Work”. It describes how the contract work will be performed. It starts with clause 4.1 noting that the appellant will perform the work. There is a general promise in clause 4.5 that the appellant will be available to work at the times set out in the cover letter. However, clauses 4.6 and 4.7 then make provision for what will happen if the appellant was not available to work. He could have his employee or agent perform the work[45] and if the appellant was not available, he could work elsewhere.[46] I do not read clause 4.7 as being subject to clause 4.5 and the cover letter as the appellant has submitted. Rather these provisions deal with two separate circumstances, the first when the appellant is available to work, the second when he is not available to work. I would also note that clause 4.9 states that there is no guarantee regarding the amount and type of work being offered to the appellant. Under the contract, the appellant is only paid for work performed.[47] This is to be contrasted with an employment relationship where the obligation at common law is to pay an employee’s wages whether work is supplied or not. Whilst this was acknowledged by the appellant, he submitted that this aspect of the contract was “hardly decisive”.[48] This is a factor arising from the contract in favour of an independent contractor relationship. It also militates against exclusivity as there is no guarantee of work and as described above, the appellant may work elsewhere.
[45] Contract clause 4.6, ARD, p 113.
[46] Contract clause 4.7, ARD, p 113.
[47] Contract clause 6 & 7, ARD, pp 114–115.
[48] T 27.18–27.
Clause 15 then specifically sets out that the contract services may be provided by the appellant as a “sole trader” or “an employee or agent of the [appellant]” and then provides the scheme by which such employees or agents can perform the services. In particular, clause 15.4 provides that if the appellant, his employee or agent are not available to perform the work, then the appellant must supply a replacement employee or agent. The appellant is responsible for all payments to his employees or agents.[49]
[49] Contract clause 15.6, ARD, p 118.
The fact that the contract work can be performed by persons other than the appellant, an employee, agent or replacement, compels the conclusion that the appellant had not agreed that the contract services supplied would be exclusively his.
While the contract does not allow the assignment of the contract without the consent of the other party, and it is expressed to be personal to the appellant,[50] this provision deals with the contract. It does not deal with how the services under it may be performed which are set out in other contractual terms. It is apparent that the contract contemplates that the work may be performed by the appellant, or by his employee or agent or by replacements of either. If the appellant was not available to work for the respondents, he could work elsewhere. None of this reveals any exclusivity on the part of the appellant. This finding is a factor which suggests the relationship is that of an independent contractor.
[50] Contract clause 21, ARD, p 121.
The Member’s finding at reasons [31] was correct. Ground One is dismissed.
As to Ground Two
The appellant takes issue with the Member’s construction of the contract at reasons [32]. At this section the Member found that the contract did not confine itself to the appellant as an individual, finding that he could expand his business. Specifically, the appellant states that the Member found that he had a right under the contract to operate ‘vehicles’ (plural) and engage an unspecified number of employees. The appellant says that this is not the correct construction of the contract. The appellant says that the contract refers to a ‘vehicle’, that is the singular and not the plural. In terms of the appellant retaining ‘employees’, the appellant points to section B of the Background to the contract as well as clauses 5 and 21 as attaching the contract terms to the appellant personally. The appellant says that the appellant’s ‘right’ to retain employees was a ‘qualified’ right under clause 15 of the contract.
The appellant filed supplementary submissions[51] after receipt of the transcript of the hearing before the Member. The appellant advanced the following two arguments to add to its prior submissions. Firstly, the appellant says that clause 4.1 of the contract, which says that “[the appellant] will perform the Services for the [respondent]” contradicts the Member’s finding about exclusivity. Secondly, the appellant alleges that the Member’s “comment” at reasons [32] involved a denial of procedural fairness. The comment says, “the contract does not confine itself to the [appellant] as an individual”. Having reviewed the transcript, the appellant says that this proposition was never stated and the appellant thus had no opportunity to respond. The appellant says that the Member’s finding that the contract did not apply to the appellant as an individual was central to his reasoning process.
[51] Appellant’s supplementary submissions dated 17 January 2025.
In response, the respondent says the appellant is selectively highlighting clauses of the contract, noting that while the contract cannot be assigned, there is a contractual ability to assign duties and tasks under clause 15 of the contract. The respondent says the Member found as much at reasons [34].
In terms of the appellant’s supplementary submission, the respondent says while the submission might not have been framed in the manner decided by the Member, the position had been put that the appellant could employ other workers and that this was not consistent with an employment relationship.[52] The Member’s decision, the respondent maintains, is consistent with the position argued by the respondent.
[52] Referencing T27 and T28.
In reply, the appellant argues that the respondents’ submission about the later ownership of the vehicle is contrary to what the High Court said in Personnel Contracting and Jamsek. Both decisions highlight that conduct subsequent to the entering of the contract is irrelevant when characterising the relationship.
Next the appellant states that the respondents’ reliance on clause 21 of the contract does not answer the arguments advanced by the appellant.[53] The appellant further submits that the “heavily circumscribed right of the appellant to retain an offsider”[54] is inconsistent with an unfettered right of the appellant to employ whomever he wants.
[53] Relying upon paragraph [15] of the appellant’s submissions dated 6 January 2025.
[54] Appellant’s submissions in reply dated 21 February 2025, [8.3].
In response to the procedural fairness issue the appellant says the following:
“9.1 The respondents seek to excuse the denial of procedural fairness on the basis that while it did not argue the proposition that that the Contract did not apply to the appellant ‘as an individual’, it did argue that the appellant was, under the Contract, able to employ other workers. There are several difficulties with this.
9.1.1 At a literal level, the proposition that the Contract did not apply to the ‘appellant as an individual’ if [sic, is] distinct from the Contract allowing the appellant being able to employee employees [sic].
9.1.2 Further to 9.1.1. at the Arbitration, in response to the respondent’s argument, the appellant argued that the right created by clause 15 did not allow the appellant to employ persons ‘in his own right’, but rather as the agent of the respondents. The fallacy in the respondents’ reasoning is seen in that that those [sic] submissions by the appellant made at the Arbitration would not go to the proposition as to whether the Contract applied to the appellant ‘as an individual’.”
Generally, the appellant says that the respondents’ response is either non-responsive to the argument or only responds in a limited manner.
Consideration
The appellant takes issue with reasons [32] which reads as follows:
“It is evident that when read in its entirety the contract does not confine itself to the [appellant] as an individual. It anticipates a situation where he was at liberty to conduct and expand his business to have multiple employees and vehicles operating to make deliveries across a wider area. That is, it was clearly open to the [appellant] to have employed other persons to do the work for which he was contracted, he was not required to do that work personally. Such an arrangement could not usually, if ever, be accepted as an employment relationship.”
For the reasons I have expressed in answer to Ground One, I do not accept the appellant’s submissions about the appellant’s obligation to provide exclusivity of service under the contract. As I have found above, clause 21 makes the contract personal to the appellant in terms of not being able to assign the rights and obligations under the contract without consent of the respondents. This is different from the performance of the work under the contract, which contemplates that the appellant, an employee, agent of the appellant, or a replacement of both, could perform the work.
Next the appellant takes issue with the Member’s finding that the appellant could utilise “multiple employees and vehicles …”.[55] In terms of the appellant’s ability under the contract to retain an employee or agent, this the appellant says is heavily circumscribed. Even if I accept this proposition, that is no answer to the fact that under the contract, the appellant can have the contract work performed by an employee or agent (or a replacement of either) if he is not available. The net result of these provisions is that the appellant can use a variety of persons to perform the contract work – an employee, an agent or a replacement for either. Further, I do not read the contract as putting any limitation on the appellant’s employees or agents in terms of number, provided that they otherwise comply with the requirements of clause 15.
[55] Reasons, [32].
In terms of the ability of the appellant to use vehicles, plural, to perform the contract work, the appellant submitted the following to me in the hearing. The appellant acknowledged that while the introductory phrase in clause 8.2 could be read in two ways, one suggesting the singular, the other the plural, a consideration of the contract terms as a whole leads to a conclusion that the term ‘vehicle’ is used in the singular form.[56]
[56] T 4–5.
I accept this submission. If one reads clause 8, whatever the infelicity of the language at the commencement of clause 8.2, the clause reflects the ability of the appellant to utilise a vehicle in the singular sense. The Member did not at reasons [32] explain in terms how he reached the conclusion that multiple vehicles could be used by reference to any contractual terms. This was an error.
This error was used in part to support the Member’s statement in reasons [32] that the appellant could expand his business under the contract.
In my opinion, the key point is that the contract provides that the appellant will use his own vehicle at his own cost in accordance with the terms of clause 8. In short, the vehicle was not supplied under the contract by the respondents as would be the case in an employment relationship. The supply of the vehicle (singular) by the appellant is a factor that supports the respondents’ assertion that the relationship was that of an independent contractor.
Whilst I have found that the Member’s description of vehicles (plural), deployed to support the Member’s opinion that the appellant could expand his business, was an error, the error must have affected the result.[57] In my view this error does not affect the result because the key point is that the contract requires the appellant to use or supply his own vehicle. This is a factor which militates against the existence of an employment relationship.
[57] Walshe v Prest [2005] NSWCA 333, [27].
Whilst error has been shown in this ground in part, for the reasons set out above, it has not affected the result.
Ground Two is dismissed.
As to Ground Three
The appellant takes issue with what the Member said at reasons [34]. Reasons [34] is as follows:
“I consider clause 15 of the contract to be central to the relationship. It provides for ‘Employees and Agents’ and makes clear the obligations and requirements of the contract are not personal to the [appellant], they may be delegated by him to an employee or agent (which presumably refers to something like a sub-contractor for practical purposes). It was open to the [appellant] to conduct a business with his own employees or sub-contractors making deliveries where his role was to manage and coordinate the operations. He would bear ultimate responsibility to ensure performance on the contractual arrangements but was undoubtedly permitted by the terms of the contract to conduct a business considerably broader than his personal physical capacity would allow as an individual.”
The appellant says that the Member’s descriptor of clause 15 as being ‘central to the relationship’ is a “gross overstatement” as to the significance of the clause to the operation of the contract. The appellant says that this indicates that the Member has misconstrued the contract, noting that the language of the clause is “permissive”. The appellant states that the right for the appellant to retain employees or contractors under clause 15 is qualified and required the respondent’s approval. The appellant states the construction of clause 15 is an error of fact and law.
In response, the respondent says that clause 15 is central to the relationship and makes clear that the contractual obligations are not personal to the appellant and may be delegated, which the appellant did do in this matter.
In his reply, the appellant says that the respondents’ submissions do not engage with the appellant’s arguments under this ground.
Consideration
I do not consider that the Member has misconstrued clause 15. As I have discussed in my reasons in Ground One above, clauses 4 and 15 need to read in tandem. Clause 4 contemplates two scenarios, the first where the appellant does the work, the second where the work is done by the appellant’s employee or agent. Clause 15 then sets out the contractual terms that apply to the appellant’s employees, agents, or replacements[58] if they perform the contract work. One matter that is abundantly clear from clause 15 is that the relationship is between the appellant and his employee or agent. The respondents are not part of that legal relationship. The fact that the appellant is responsible for payments to any employee or agent is indicative of the appellant being an independent contractor. Such an arrangement would not be a part of any employment relationship between the appellant and the respondents.
[58] Contract clause 15.4, ARD, p 118.
The appellant has described the language in clause 15 variously as “permissive” in this ground or “heavily circumscribed” in Ground Two. As I found above, even if I accept this characterisation, this does not alter the fact the provision enables the contract work to be performed by an employee or an agent of the appellant or their replacement. Such a capacity to have persons other than the appellant perform the work does not lead to a conclusion that the appellant was an employee of the respondents. Rather the conclusion is that the relationship is that of an independent contractor.
The appellant criticises the Member’s description of clause 15 as being ‘central to the relationship’ as a gross “overstatement”, and that this reveals a misconstruction of the contract thus constituting an error of fact and law. I do not accept this submission. Firstly, the fact that the contract enables the appellant to use the services of an employee or agent is a powerful indicator that the relationship with the respondents is not an employment relationship. Secondly, the appellant’s description of clause 15 as qualified or permissive does not detract from or deal with its essential purpose, which is to enable, on terms, persons other than the appellant to undertake the work. For the controversy the Member was called upon to decide, grappling with clause 15 was essential. Whilst the descriptor ‘central to the relationship’ may place the clause too highly, it is still an important provision as it represents the agreed scheme by which the performance of the work, which is the whole point of the contract, may be carried out by persons other than the appellant.
Error has not been established. Ground Three is dismissed.
As to Ground Four
The appellant submits that, notwithstanding Jamsek and Personnel Contracting, the nature and extent of control exercised by the putative employer remains fundamental in determining whether the relationship is one of employment. The appellant points to a number of the contractual provisions which he says reveal a substantial amount of control being exercised by the respondent which is consistent with employment.[59]
[59] Appellant’s submissions dated 6 January 2025, [18].
The appellant further states that the Member in fact circumscribed the indicia of control by saying the following at reasons [36]: “The measures that have been argued by the [appellant] as employer control mechanisms … are in effect parameters to ensure compliance with the respondents’ business requirements, including in the context of a contractor who potentially engages employees to perform the work. When the contract is viewed from that perspective, the strictures it … contains are not personal to the [appellant], but merely applied to him if he chose to perform the delivery work.” The appellant develops his argument regarding this aspect of the reasons[60] which the appellant says, for various reasons, is wrong at law.
[60] Appellant’s submissions dated 6 January 2025, [21]–[24].
The appellant also repeats what he says is the Member’s error that the contract did not apply personally to the appellant.
The appellant also filed a supplementary submission which went to this ground, which is the argument advanced in Ground Two that the Member’s finding that the contract did not apply to the appellant as an individual denied the appellant procedural fairness.
In reply, the respondent states as follows:
“It appears the Appellant is critical of the fact that the Member did not deal with submissions made on behalf of the Appellant in relation to the control test that is referred to in Stevens v Brodribb Sawmilling Company Limited [1986] HCA 1. Once again, the Respondents submit that the Member had proper regard to the Appellant’s submissions and dealt with them appropriately. In particular, the Member noted at paragraph 14 of the Statement of Reasons for Decision that the multi-factor test, and the consideration of various indicia that indicate employment, was required. However, the Member went on to acknowledge, at paragraph 16 and 17, that more recent High Court authority required consideration of the terms contained in the contract entered by the parties.”[61]
[61] Respondents’ submissions dated 2 February 2025, [13].
The respondent says that the Member dealt with indicia of employment and gave primacy to the contract. The respondent maintains its argument that the appellant is selectively quoting from the contract.
The appellant filed a reply submission which made the following points. The appellant says that Jamsek and Personnel Contracting do not have the effect of overruling control as an essential consideration in the determination of the proper construction of the relationship.[62] The appellant says that the Member did not balance the various indicia, rather submitting that he excluded considering control and exclusivity of service by virtue of his construction of clause 15 of the contract.
[62] Appellant’s submissions in reply dated 21 February 2025, [13.1].
The appellant once more asserts that the respondents’ submissions fail to deal with their arguments.[63]
[63] Appellant’s submissions in reply dated 21 February 2025, [15].
Consideration
The essential argument prosecuted by the appellant, both before the Member and before me on appeal, was that the level of control authorised by the contract over the appellant was of such a degree that the inevitable finding is that the appellant was an employee of the first respondent. Before me the appellant submitted that “the crucial thing in this contract is the overarching control that was exercised by the respondent over the [appellant] and we say when you look at that on a day-to-day basis the only conclusion that you would be comfortable drawing is that it was, in substance, in effect, a contract of employment.”[64] The appellant ended by submitting “the control in terms of the indicia is the first amongst equals. It’s preeminent.”[65] The appellant pointed to various contractual provisions as substantiating what he maintained about the high level of control being exercised, for example clauses 4, 8, 9, 10, 14, 15, and the requirement to be available to work up to 60 hours per week and on weekends.[66]
[64] T 30.27–32.
[65] T 46.12–14.
[66] As set out in the cover letter, ARD, p 111.
The appellant alleges that the Member did not deal with the control element appropriately having regard to what was said at reasons [36], which had the effect of circumventing the indicia of control. The appellant also says that he was not afforded procedural fairness with respect to the finding that the contract did not apply personally to the appellant.
For the following reasons the Member was right not to find the element of control as being decisive in this matter. Undoubtedly, there are aspects of the control which evidence the respondents exercising control over the appellant which are emblematic of an employment relationship. For example, the obligation to comply with the Code of Conduct (clause 5.1.(b)), how the vehicle is presented (clauses 8.3 and 8.7) and the termination provision (clause 20). But consistent with Personnel Contracting and Jamsek, it is the entirety of the contract that must be weighed in the balance in deciding the true nature of the relationship. This is the effect of what the Member said at reasons [29] and [30].
Firstly, contrary to what was submitted to me, the appellant was not required to work “in excess of 60 hours a week”. In terms of weekend work, the appellant says this requirement to be available on weekends was not for negotiation.[67] The cover letter[68] stated that the appellant had to be available between 6 am and 6.30 pm Monday to Friday and on weekends if requested or at other times by mutual agreement. This needs to be read in conjunction with clause 4 of the contract, which as I have explained above contemplates circumstances where the appellant is not available to work. Namely the appellant can work elsewhere or utilise the services of an employee or agent to perform the work. Additionally, there is no guarantee about the supply of work, or its type, under the contract.[69] Patently under the contract, if the appellant is not supplied work, he is not paid.[70] I would also remark that the availability to work at other times by mutual agreement does not bespeak the exercise of control by the respondent over the appellant. The terms of the agreement prevail over any inconsistency with the cover letter.[71]
[67] T 12.25–30.
[68] ARD, p 111.
[69] Contract clause 4.9, ARD, p 113.
[70] See contract clauses 6 & 7, ARD, pp 114–115.
[71] See contract clause 1.2, ARD, p 112.
Secondly, I turn to clause 16.4 which provides as follows: “The [appellant] will use their own expertise and equipment to perform the Services.” This provision is not consistent with control being exercised by a putative employer over the actual duties being performed by the appellant.[72]
[72] See Personnel Contracting, [73].
Thirdly, the work being performed under the contract involves the appellant providing a vehicle and undertaking deliveries at the request of the respondents. The contract does not specify or control how this work is carried out. This is the effect of the Member’s finding in the final two sentences of reasons [31], which contain observations with which I agree for the following reasons. Clause 4.1 sets out in general terms various aspects of the services, namely the goods to be delivered at the locations and times requested by the respondents. Whether the work is done by the appellant or his employee or agent, none of these persons is, in the performance of the services, under any supervision of the respondents. I have been taken to no clause in the contract which specifies a right of control held by the respondents over the actual work of delivering the contract services. It is trite to say that if the appellant is using the services of an employee or agent, as envisaged by clause 4 if he was not available, there can be no suggestion that the appellant himself is under the respondents’ direction and control (under the contract) while the contract services are being performed.
Fourthly, I do not accept that the payment provisions, clauses 6 and 7, represent the respondents exercising control over the services. Rather these provisions specify the agreed process to facilitate payment to the appellant for the performance of the contract work.
Fifthly, the appellant points to what he says is the “granular level” of control[73] represented by the provisions in clause 5, in particular sub clauses (i) and (j). Clause 5(i), (j) and (k) are health and safety provisions. For the purposes of the health and safety laws (Work Health and Safety Act (NSW) 2011 (the 2011 Act)), the respondents are a person conducting a business or undertaking (PCBU)[74] and as such have obligations under that legislation which are not transferable.[75] I do not see that the compliance with such statutory duties constitutes evidence of control for the purposes of this dispute. I would remark that in any event, the appellant as a PCBU is himself covered by those duties under the 2011 Act.
[73] T 28.19–32.
[74] Section 5 of the 2011 Act.
[75] Section 14 of the 2011 Act.
Sixthly, I deal with the complaint about the Member’s finding at reasons [32] that the contract did not apply to the appellant as an individual. I have in Grounds One and Two above dealt with this argument. I do not accept, for the reason I have expressed, that there was any exclusivity of service imposed on the appellant. I have stated in paragraph [67] of this decision that while I accept the obligation regarding non assignment of the contract is personal to the appellant, this is different to the performance of the contract services. These services are not required, under the contract, to be exclusively performed by the appellant.
Seventhly, the appellant complains that the Member failed to deal with his submission based on Stevens. The Member described Stevens at reasons [14]. At reasons [30], the Member said the following: “The various terms of the contract as identified by the [appellant] are certainly capable of being indicia of employment according to Stevens. Those terms do appear to establish an employment relationship, they have however been selectively extracted by the [appellant] and read without full regard to the complete document.” While control is undoubtedly an important factor to weigh, indeed this is the effect of what the High Court said in Personnel Contracting at [73], it is not the only factor to be weighed. The Member considered the control submission and was not persuaded that it had the effect the appellant submitted. For the reasons I have set out in answer to this ground, I agree with the Member’s assessment of the appellant’s control argument.
As a result of these reasons, Ground Four fails.
Ground Four is dismissed.
As to Ground Five
Ground Five is a general complaint about the Member’s finding on the ultimate issue. The appellant says that the Member’s reasoning process was wrong for the reasons identified in Grounds One to Four. The appellant repeats his complaints about how the Member treated the appellant’s contractual ability to retain employees or contractors to perform the contract work.
The respondent says that the Member’s approach was consistent with High Court authority. The respondent submits:
“19. On any view of the evidence in this matter, the indicia of employment are not suggestive of an employee/employer relationship. The Appellant was operating a business and it is clear from the tax and financial records contained in the Application to Resolve a Dispute (see pages 359 and 465–468) that he was claiming tax benefits associated with the business. He was not paid a salary and received payments pursuant to an invoice that was calculated on the basis of each item he delivered. He provided and maintained his own equipment (his own truck and trolleys) and was able to advise the First Respondent that he did not want to work and was in a position to work elsewhere when he was not working for the First Respondent. There is no evidence that income tax was deducted from any of the payments that were made to him, and he was also paid GST in relation to the services he rendered. He was claimed business deductions and, as was highlighted by the Member, he was in a position to delegate work. Indeed, we note he did employ others to undertake work with him.
20. It is therefore the Respondents’ submission that an analysis of the contract, as well as the various indicia of employment, lead to the same conclusion in this matter – that the Appellant was an independent contractor and not a ‘worker’ within the meaning of s 4 of the 1998 Act.”
The appellant filed a reply submission which argued that the respondent failed to deal with the effect of Stevens and that the Member failed to consider indicia of both control and exclusivity of service as required by Stevens. The appellant repeats its earlier submission that the Member did not consider the indicia of control and that the Member’s approach contravened Stevens.[76]
[76] Appellant’s submissions in reply dated 21 February 2025, [17].
In terms of paragraph [19] of the respondents’ submission, which I have set out above, the appellant replies in the following terms:
“18.1 While it is conceded that there were factors indicative of a contract of service present, that is not the point, as there were also indicators suggestive of a contract of services, including exclusivity of serve [sic, service] and most importantly, control. The fact that various indicia may alternatively suggest alternative types of contractual relationship is not decisive; indeed, the multi-factor test described in Stevens arises because of this ambiguity, and calls for the various indicia to be balanced. In so far as the respondents assert that ‘on any view’ of the evidence, the indicia of employment are not suggestive of an employee/employer relationship is a self-serving opinion and of no relevance.
18.2 In so far as the respondents’ Submission seeks to catalogue those indicia indicating a contract for service, this is not relevant for two reasons. As indicated at paragraph [18.1] it is not disputed that certain indicia supported the respondents’ case, the issue is whether the Member’s decision contains error. Second, in so far as the respondents’ seek to reagitate these matters, to do so is to place the President in the position of a primary finder of fact which is specifically excluded by section 352(5) of the [1998 Act].”
Consideration
Ground Five is effectively a broad complaint that the Member’s finding on the ultimate question, namely that the appellant was a contractor, was an error due to the errors argued in Grounds One to Four.
For the reasons I have set out above, Grounds One to Four have not been established and as a necessary result of these decisions, Ground Five also must fail.
This matter involved the weighing of various contractual terms, some of which were suggestive of an employment relationship while other were suggestive of an independent contractor relationship. For the reasons I have expressed above, the finding made by the Member that the relationship was that of an independent contractor is supported by a dispassionate review of the entirety of the contract terms. I agree with the Member’s assessment of the nature of the relationship. In particular, it is striking to me that the contract services can be performed by persons other than the appellant and that payment is made by tax invoice issued by the appellant. No tax is deducted by the respondent, the putative employer. I am also persuaded, notwithstanding the appellant’s submissions about the “overarching control” exercisable under the contract, that the delivery of the actual contract services was not subject to the respondent’s supervision or control for the reasons I have expressed.
The relationship between the appellant and respondent is that of a contractor and the Member was correct so to find.
DECISION
The Certificate of Determination dated 13 December 2024 is confirmed.
Judge Phillips
PRESIDENT
5 September 2025
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