Radhope Pty Ltd t/as Banks Events v Peach
[2006] NSWWCCPD 144
•10 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Radhope Pty Ltd t/as Banks Events v Peach [2006] NSWWCCPD 144
APPELLANT: Radhope Pty Ltd t/as Banks Events
RESPONDENT: Gregory Peach
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC5929-05
DATE OF ARBITRATOR’S DECISION: 22 February 2006
DATE OF APPEAL DECISION: 10 July 2006
SUBJECT MATTER OF DECISION: Worker; section 4 Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Vardanega Roberts
Respondent: Taylor & Scott
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 February 2006 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal and of the Conciliation and Arbitrator proceedings.
BACKGROUND TO THE APPEAL
On 21 March 2006 Radhope Pty Ltd t/as Banks Events (‘the Appellant Employer/Banks Events’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 February 2006. The Appellant Employer was wrongly named as Radhope Pty Ltd t/as Banks Marine in the Application to Resolve a Dispute (‘the Application’) filed in the Commission on 21 April 2005 but nothing turns on that and the record has now been corrected.
The Respondent to the Appeal is Gregory Peach (‘the Respondent Worker/Mr Peach’).
In December 2002 the Respondent Worker, an experienced rigger, was engaged by the Appellant Employer to assist in rigging a three mast barge built to replicate a sailing ship as part of the New Years Eve fireworks celebrations on Sydney harbour. On the night of the fireworks he was present on the barge on the harbour when he was struck by fireworks and sustained serious injury to his left arm. His presence on the barge was at the request and direction of the Appellant Employer and his task was to turn electric show lights on and off.
In the Application the Respondent Worker sought lump sum compensation and compensation for medical and hospital expenses in respect of his injuries. His claim was denied by the Appellant Employer on the grounds that he was not a worker within the meaning of that term in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The claim was heard in an Arbitrator on 8 February 2002 and the preliminary issue of worker was decided in favour of the Respondent Worker in a reserved decision delivered on 22 February 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 February 2006 records the Arbitrator’s orders as follows:
“1.Greg Peach is a worker within the meaning of Section 4 of the Workplace Injury Management and Workers Compensation Act 1998.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(a)in failing to recognize that the contract leading to the generation of invoices 24 and 26 was a contract for services between the Appellant Employer and Skywalker Rigging Services (‘Skywalker’);
(b)in finding that the Respondent Worker was a ‘worker’ within the meaning of section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (‘worker’);
(c)in finding that the indicia of control pointed to an employer/employee relationship, as evidenced by the agreement and the conduct of the parties in their dealings with each other (‘worker’), and
(d)in the manner in which she dealt with inferences to be drawn from tax returns for the financial years 2003 and 2004 (‘tax returns’);
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the compensation claimed is at issue on appeal, therefore the second limb of section 352(2)(b) is also satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Employer submits that the appeal involves close consideration of a developing area of law and as there are a number of authorities on the issue, there should be an oral hearing. I have carefully considered this submission. I do not believe the issues are such that an oral hearing is necessary. Each party has made detailed written submissions dealing with the issues raised on appeal.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
FRESH EVIDENCE
Neither party seeks to adduce fresh evidence on appeal.
THE EVIDENCE
In 2002 Banks Events was engaged by the City of Sydney Council to build a display barge to simulate a burning sailing ship as part of the fireworks on Sydney harbour on the evening of 31 December 2002 (‘the fireworks’). Banks Events contracted with riggers from the vessel ‘James Craig’ to build the basic structure of a sailing ship and with Foti International Fireworks to provide the fireworks. They also engaged two other riggers on the job: Scott Sullivan and the Respondent Worker. In addition, they employed a safety officer, Wayne Pleace, to ensure the safe operation of the display. Mr Pleace also involved in the construction phase of the work but the exact extent of his involvement at that stage is unclear. Banks Events provided a supervisor for the project, Matthew Seventy, one of its casual employees.
Mr Peach is an experienced rigger who has worked in that capacity for various employers around Australia over several years. In the late nineteen nineties he registered the business name Skywalker Rigging Services (‘Skywalker’) in Victoria (transcript page 27 line eight). He also applied for an Australian Business Number (‘ABN’) when he was in Victoria in about 1999. His evidence was that he had been employed as a rigger for various companies from 1997 until 2002.
In late 2002 he was employed by Edwin Shirley Staging Pty Ltd (‘Edwin Shirley’) as a rigger building concert stages from about October 2002 until mid December 2002. That involved him in building a stage for the ‘Rumba’ concert at Homebush Stadium in Sydney. In the course of that job he met Scott Sullivan, another rigger. Mr Sullivan told him “he was building a tall ship on a barge for the new years eve fireworks celebrations on Sydney harbour” and he offered Mr Peach a job on that project (Respondent Worker’s statement 7 March 2003 paragraph 13).
Mr Sullivan’s exact relationship with Banks Events is not known but it is suggested he contracted with the Appellant Employer to do rigging work on the project under the business name of “Strutt Productions” (statement Adam Huie 7 March 2003 paragraph seven). Mr Huie is a director of the Appellant Employer. Banks Events had worked with Mr Sullivan in the past and considered him to be one of the “leading riggers” (statement Mr Huie paragraph 10). On the recommendation of Mr Sullivan, Banks Events engaged the Respondent Worker to help with the rigging work on the ‘sailing ship’.
In his statement Mr Huie says at paragraphs 12 and 13:
“12. The claimant was engaged as a Contractor. I do not recall go [sic] into any detail on the arrangements, I would have discussed the payment arrangements with him but I do not recall having any discussion with him.
13. There was no agreement, written or otherwise, between the Claimant and Banks Events and I do not remember discussing any terms or conditions of engagement with the Claimant of anyone else.”
Mr Huie adds that the Respondent Worker was supervised on the project by Mr Sullivan and Mr Seventy. It is unclear exactly when Mr Peach started work. Mr Huie says that it was “sometime in early December 2002” (statement paragraph 15) but Mr Peach was still working full time for Edwin Shirley at that stage. It seems more likely that he started work about 16 December 2002 (Appellant Worker’s statement 7 March 2002 paragraph 14). Mr Huie states that the hours of work “would have been set by Mr Seventy, he was organizing the job” (statement paragraph 15). Mr Huie claims that the Respondent Worker was given training “in the safety aspects of the job” by Mr Pleace (statement Mr Huie paragraph 24) but this is disputed by Mr Peach (statement by Mr Peach 7 March 2003 paragraph 32).
The work was done at White Bay where a three mast steel barge was constructed. Mr Seventy says in his statement of 12 March 2003 that:
“4.I was employed by Banks Events as Production Manager. It was a New Years Eve fireworks show that Banks were doing for the City of Sydney. I started work there in early December or late November. I had to order equipment and oversee the scheduling of building the 3 masted barge that was to have fireworks attached to it. I had the Claimant working as a rigger and Scott Sullivan as a rigger, they were also working for Banks Events. There was another two guys who worked on the vessel ‘James Craig’ which is connected with the Maritime museum at Darling Harbour.”
Mr Seventy says that he was asked by Mr Huie to keep a record of the hours worked by Mr Sullivan and Mr Peach so their invoices could be checked. He adds that:
“6.We were working at White Bay every day for about 10 hours per day, it varied a bit. The Claimant worked 5 or 6 days a week from the time he started until New Years Eve. His job was the installation of the masts and the rigging. He was taking directions from Scott and myself, I was on site or in the nearby office, about 500 metres from the barge, each day.”
The work required Mr Peach to assemble the masts, paint them and “rig ropes according to the plan” (Respondent Worker’s statement 7 March 2003 paragraph 17). It is not know who provided the plan but it seems cleat that it was not the Respondent Worker’s plan. A crane with a ‘man box’ was initially provided to do the rigging but, as a result of complaints by Mr Peach, a ‘cherry picker’ was ultimately provided and paid for by Banks Events. The Respondent Worker provided his own rigging tools: hammers, shifting spanners, harness and safety gear. Banks Events provided a hard hat and all other supplies and equipment. Occasionally Mr Peach had to attend a hardware shop in his own car to pick up supplies for the job.
From the time he started until his accident on the evening of 31 December 2002 Mr Peach states that he worked only for Banks Events. This is consistent with evidence from Mr Seventy that the men were working about 10 hours per day.
The method of remuneration required Mr Peach to submit invoices to Mr Huie and the appropriate amount would be paid by Banks Events into Mr Peach’s personal bank account. The invoices were a point of contention at the Arbitrator hearing. Only two were submitted: the first dated 23 December 2002 for $637.50 in respect of 25.5 hours work (‘invoice 24’) and the second dated 29 December 2002 a total of $1,162.50 in respect of 46.5 hours work (‘invoice 26’). Mr Peach was cross examined about the absence of invoice 25. His evidence was that he searched through all his papers but could not locate it (transcript page 22 line 15). He added that it may have been destroyed or written for Edwin Shirley prior to starting work with Banks Events. I do not think anything of significance turns on the missing invoice.
The work progressed without mishap until 31 December 2002. On that day it was very windy. Mr Peach thought it was too windy to use the cherry picker but he states that Mr Huie “wanted us to continue with it” (Respondent Worker’s statement 7 March 2003 paragraph 23). The rigging work continued until 10pm. The Respondent Worker’s job during the fireworks display was to turn the electric show lights on the barge on and off and to help Mr Sullivan with the special effects rigging. That work seems to me to have been different from the rigging work he was originally engaged to perform.
Placed on the barge was a shipping container in which personnel were able to seek shelter from the fireworks. Mr Huie states at paragraph 17 of his statement that:
“The Claimant’s performance at work seemed pretty good, there were no complaints. The work was only up until New Years Eve. He was present on board the boat on New Years Eve. His role was to support Scott as required and he was to remain within the safe workplace of the container that was on the barge. He was briefed on this a number of times by myself, by Scott and by the Safety Officer. The barge was 55 metres long and about 15 metres wide. The container was placed on board for the purpose of protecting operators from any potential injury as there were fireworks and flammable rope on the barge that were to be ignited during the display.”
The above passage highlights that Mr Peach had been given directions by Mr Huie as to what he was to do and where he was to stay during the fireworks.
The Respondent Worker did leave the safety of the shipping container to go onto the barge to “keep an eye on” Mr Sullivan (Respondent Worker’s statement paragraph 26). While he was standing on the barge Mr Peach was struck in his left arm by one of fireworks intended to simulate a canon being fired. As a result he sustained serious injury to his arm and he filed an Application in the Commission seeking lump sum compensation in the sum of $26,000.00 in respect of 19% whole person impairment, $25,000.00 compensation under section 67 and payment of hospital and medical expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’)
SUBMISSIONS AND FINDINGS
Skywalker
It is submitted by the Appellant Employer that the inference to be drawn from the evidence is that Mr Peach, as the principle of Skywalker, was directing that business to submit invoices to Banks Events and to Edwin Shirley. This submission ignores the Respondent Worker’s evidence in his second statement of 28 July 2005 that he has “always worked as an employee as I don’t run a business” and at page 30 of the transcript where he said in cross examination that he was not a subcontractor but an employee. This evidence was accepted by the Arbitrator who found the Respondent Worker to be “a convincing witness” (Statement of Reasons for Decision paragraph 36 (‘Reasons’).
There is no evidence that as at December 2002 Skywalker was an active business. It is not referred to in the Respondent Worker’s 2003 tax return. There is no evidence that it had a place of business, any business cards or a letter head. The invoices submitted by the Respondent Worker to Banks Events make no mention of Skywalker or of any other business. Invoice 24 does refer to the Respondent Worker’s ABN, but without more I do not believe the evidence establishes that Mr Peach was conducting a business under the name of Skywalker in or about December 2002.
The ‘Payroll Advice’ from Edwin Shirley refers to payments to Mr Peach as ‘wages’. The oral evidence established that a group certificate was issued by that company for the period Mr Peach worked for them (transcript page 26 line five).
Worker
The term ‘worker’ is defined in section 4 of the 1998 Act as follows:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).”
The Arbitrator referred to Hollis v Vabu Pty Ltd (2001) 207 CLR 27 (‘Hollis’) and Stevens v Brodbribb Sawmilling Co Pty Ltd (1986) CLR 16 (‘Stevens’). In Stevens Justice Mason (as he then was) said at 29:
“…the common law has been sufficiently flexible to adapt to changing social
conditions by shifting the emphasis in the control test from the actual
exercise of control to the right to exercise it, ‘so far as there is scope for
it’, even if it be ‘only in incidental or collateral matters’ (Zuijs v. Wirth
Brothers Pty Ltd, at p 571).”Furthermore, control is not now regarded as the only relevant factor.
Rather it is the totality of the relationship between the parties which must
be considered.” (emphasis added)
In Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8 (‘Sweeney’) Ipp JA noted at [54]:
“The control test remains important and it is appropriate, in the first instance, to have regard to it (albeit that it is by no means conclusive) because, as Wilson and Dawson JJ said in Stevensv Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 (at 36):
‘[I]t remains the surest guide to whether a person is contracting independently or serving as an employee.’”
In Australian Air Express Pty Limited v Langford [2005] NSWCA 96 (‘Langford’) Justice McColl made two important preliminary observations at [15-16] about cases of this kind:
“15 The first concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.
16 The second observation concerns the distinction between an employee and an independent contractor. That distinction has been said to be ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s business, and a person who carries on a trade or business of his own’: Marshall v Whittaker’s Building Supply Co [1963] HCA 49; (1963) 109 CLR 210 at 217 per Windeyer J. Although this statement was criticised by Wilson and Dawson JJ in Stevens (at 34) as ‘posing the ultimate question in a different way rather than offering a definition which could be applied for the purpose of providing an answer’, it was referred to with approval by the majority in Hollis (at 38 – 39 [39] – [40]).”
In the present case the Arbitrator concluded that Mr Peach was a ‘worker’ within the terms of the 1998 Act. She specifically found and/or accepted that:
(a)whilst working for the Appellant Employer Mr Peach did not work for any other company or person (Reasons paragraph 48);
(b)there was no suggestion that he hired any employees or had the power to delegate his work to anyone (Reasons paragraph 48);
(c)Mr Peach was expected to “be committed” to the job and “see it through” (Reasons paragraph 48 and Respondent Worker’s statement 7 March 2003 paragraph 19);
(d)Mr Peach took directions from and was supervised by Mr Sullivan, Mr Seventy and Mr Huie (Reasons paragraph 52 and 62);
(e)whilst Mr Peach supplied his own rigging tools the Appellant Employer supplied other materials and equipment including a hard hat and the cherry picker (Reasons paragraph 55);
(f)the rate of remuneration was set by the Appellant Employer and not negotiated by the parties (Reasons paragraph 56);
(g)at the relevant time the Respondent Worker did not believe he had ever worked as a contractor (Reasons paragraph 59);
(h)Mr Peach’s tax return for 2003 provided further evidence that he did not run a business and had in fact been employed at various times as an employee by different companies (Reasons paragraph 59);
(i)Mr Peach included no GST on his invoices (Reasons paragraph 63);
(j)Mr Peach had been engaged to provide his personal service in the performance of the rigging work thus indicating an employer/employee relationship (Reasons paragraph 61);
(k)the Appellant Employer set the hours of work (Reasons paragraph 62);
(l)the Appellant Employer had the right to control Mr Peach (Reasons paragraph 62);
(m)the “degree of control” was such that it was consistent with an employer/employee relationship (Reasons paragraph 62), and
(n)the “indicia of control” pointed to an employer/employee relationship.
In Langford McColl JA discussed the relevance of the ‘power to delegate’ and said at [57]:
“A contract of employment carries an obligation of personal service. Accordingly a power to delegate the performance of a contract tells against there being an employment relationship. Thus in Australian Mutual Provident Society v Allen and Another (1978) 52 ALJR 407 at 410 (sub nom. Australian Mutual Provident Society v Chaplin and Another), the Privy Council concluded that a power of unlimited delegation was ‘almost conclusive against the contract being a contract of service”’.
The Arbitrator noted the competing indicia that pointed to Mr Peach being an independent contractor as being:
(a)he used his own car to pick up supplies on occasions;
(b)the work was short term and was for a specific project;
(c)the fact that the Respondent Worker had an ABN and put that ABN on invoice 24, and
(d)the Respondent Worker was a skilled worker.
In a case like the present no one factor is decisive but an Arbitrator is required to considerer the “totality of the relationship” (Stevens above). The Arbitrator did that and concluded at paragraph 63 that:
“The indicia of control in the present case itself point to an employer/employee relationship, as evidenced by the agreement and the conduct of the parties in their dealings with each other. The control exercised over the Applicant was far more than necessary for the direction of an independent contractor who was contracted to do a specific job. This together with the other indicia discussed above provide a view of the totality of the arrangements between the parties.” (emphasis added)
The Appellant Employer challenges this part of the Reasons on the ground that the agreement was “in writing and identifies the party to perform the work as ‘the subcontractor’” (Appellant Employer’s submissions page three). This submission is contrary to the submissions made by Mr Roberts at the Arbitration hearing at page 38 line 32 where he said “there were no written terms there was no agreement”. No written contract was tendered in evidence before the Arbitrator (save for the invoices referred to above) and none is before me on appeal. The Arbitrator noted the absence of a written contract at paragraph 18 of her Reasons. No application has been made to submit new evidence on appeal. The Application for leave to Appeal Against Decision of Arbitrator in Part 2.6 expressly states that no application is made to seek leave to rely on fresh evidence.
Therefore, the Appellant Employer’s submissions, to the extent that they rely on a ‘written agreement’, are rejected. There was no “express term of the written agreement” as suggested by the Appellant Employer in paragraph nine of its submissions on page four. There was no written agreement.
The Appellant Employer submits that the requirement that Mr Peach supply and maintain his own “personal and protective equipment” is indicative that he was an independent contractor. The argument is that for the $25.00 hourly fee Banks Events got “the full package on offer by the Respondent, namely, the services of a skilled and expert rigger, together with the equipment which enabled the services to be provided”. Reliance is placed on the following passage from Dixon J (as he then was) in Humberstone v Northern Timber Mills and Wright v Attorney-General (1954) 94 CLR 389 (‘Humberstone’) at 402:
“…it seems reasonable to suppose that it was considered proper that a person conducting a business in the course of which he contracted to perform work should himself carry the risk of personal injury as one of the hazards of his business, while the man who worked under contract but only for the employer or without any general trade or business or outside his trade or business should, like an ordinary
employee, be insured by the Act against the risk of injury in his work.” (emphasis added)
However, in Humberstone the contract concerned the supply and control by the contractor of his vehicle for the purpose of performing the terms of the contract. His Honour added at 404 – 405:
“The essence of a contract of service is the supply of the work and the skill of a man. But the emphasis in the case of the present contract is upon mechanical traction. This was to be done by his own property in his own possession and control. There is no ground for imputing to the parties a common intention that in all the management and control of his own vehicle, in all the ways in which he used it for the purposes of carrying their goods, he should be subject to the commands of the respondents.”
The tools provided by Mr Peach were personal tools of his trade and no more. The ownership of equipment and its relevance to the current question was considered by McColl JA in Langford at [44] where after an extensive review of the authorities her Honour said:
“There is a consistent line of High Court authority supporting the ‘conventional view’ that owners of expensive equipment such as the truck owned by the respondent are independent contractors. As MacKenna J said in Ready Mixed (at 526), such ownership indicates a contract of carriage rather than one of service because ‘the ownership of the assets, the chance of profit and the risk of loss in the business of carriage are [the owner/driver’s] and not the company’s”’. (emphasis added)
The fact that Mr Peach provided his own personal tools is not inconsistent with a contract of employment (Neale v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419). The more important and expensive equipment for the project (the cherry picker) was hired and paid for by Banks Events. The chance of profit and the risk of a loss was carried by Banks Events.
The Appellant Employer also disputes the Arbitrator’s findings in respect of the ‘conduct of the parties’. It is submitted that just because Mr Peach worked long hours is not determinative of whether he was an employee or an independent contractor. That is correct. What is more important is that the hours were set by Mr Seventy who was “organizing the job” (statement by Mr Huie 7 March 2003 paragraph 15) in his capacity as an employee of Banks Events. That point was quite rightly made by the Arbitrator at paragraph 62 of her Reasons. The Appellant Employer further exercised its right to control in several key respects:
(a)general organisation and supervision of the project;
(b)directing the Respondent Worker to continue working in the windy conditions on 31 December 2002;
(c)directing the Respondent Worker what his activities would be whilst on the barge on the evening of 31 December 2002, and
(d)directing the Respondent Worker where he was to stay during the fireworks display.
It is submitted that the fact that the Respondent Worker used his own car to pick up supplies indicates that he was an independent contractor. The Arbitrator conceded that that fact pointed to a contract of services but it was not the only factor to be considered. The evidence on this point was unsatisfactory. It is not known how often he used his own car or what items he collected. In the end it does not matter because this point is of very little weight compared to the far more significant factors noted above.
It is submitted that the fact that the Respondent Worker was supervised in his work does not indicate that the relationship was one of employer/employee. It is correct that this fact on its own is not decisive. However, the fact that the Appellant Employer exercised control in the comprehensive manner set out in paragraph 48 above is the more important point.
Tax Returns
It is submitted that the Arbitrator erred in the “manner in which she dealt with inferences to be drawn from tax returns for the years ended 1 July 2003 and 1 July 2004” (Appellant Employer’s submissions page three paragraph four). The 2004 tax return (the year after the accident) disclosed a total income of $47,955 made up of a salary of $32,400.00 and a business and investment income of $15,555.00. The business disclosed is “scaffolding construction” and the Respondent Worker’s Australian Business Number (‘ABN’) is recorded. The 2003 tax return showed no ‘business and investment income’ but only salary and wages income. It did not disclose the Respondent Worker’s income from his short period of work with the Appellant Employer.
The Arbitrator considered this evidence at paragraphs 57 to 59 inclusive of her Reasons. She stated that:
(a)the 2003 return provided evidence that the Respondent Worker did not run a business in that year and that he only worked as an employee, albeit with a number of different employers;
(b)no Goods and Services Tax (‘GST’) was paid by any of the companies for whom Mr Peach worked in 2003;
(c)there was no evidence of any Business Activity Statements (‘BAS’) having been lodged by Mr Peach in 2003, and
(d)she accepted the Respondent Worker’s evidence that “at the relevant time” he did not believe he had ever worked as a contactor (Reasons paragraph 59).
The Appellant Employer’s challenge is that the 2003 tax return did not disclose the income from Banks Events and “at the very best” the tax return was neutral as to whether payments from Banks Events were wages. The Respondent Worker was cross examined about why his income from Banks Events was not recorded in his 2003 tax return (transcript page 26) and gave the explanation that his mind “wasn’t really on tax at that time” because recuperation from his serious injury was more important to him. The Arbitrator accepted that explanation (Reasons paragraph 38).
The Arbitrator concluded that the above analysis supported “to some extent the inference that the Applicant was not running a business at the time of his employment with the Respondent” (Reasons paragraph 59). That inference was open on the evidence and I see no error in the Arbitrator’s conclusion on this point.
CONCLUSION
The meaning of a ‘review’ in the Commission was considered in Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1 where it was said:
“The ‘review’ on appeal, before the Commission, is by way of rehearing, where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesch v Maunz (2000) 203 CLR 172).”
In my view the Arbitrator’s decision discloses no error of fact, law or discretion. The conclusion that the Respondent Worker was a ‘worker’ under the 1998 Act was supported by the evidence and the authorities.
DECISION
The Arbitrator’s decision of 22 February 2006 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal and of the Conciliation and Arbitration proceedings before the Arbitrator.
OTHER
This matter will need to be referred back to the Arbitrator to finalise all outstanding issues between the parties.
Bill Roche
Acting Deputy President
10 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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