Ribeiro v Elmir Transport Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ribeiro v Elmir Transport Pty Ltd [2022] NSWPIC 464
APPLICANT:	Leonardo Jose Mariano Ribeiro
RESPONDENT:	Elmir Transport Pty Limited
Member:	Carolyn Rimmer
DATE OF DECISION:	19 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and section 60 expenses of the Workplace Injury Management and Workers Compensation Act1998; whether applicant was a worker or deemed worker; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, ZG Operations Australia Pty Ltd v Jamsek considered; in the absence of a written contract; consideration of the indicia of employment remains relevant; Held – applicant was neither a worker nor a deemed worker; award for the respondent.
determinations made:	The Commission determines: FINDING 1. The applicant has not discharged the onus of proof in relation to establishing that he was a worker or deemed worker. ORDERS 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

On 30 September 2022, Leornado Jose Mariano Ribeiro (the applicant) lodged an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (the Commission). It is alleged that the applicant’s employer at the relevant time was Elmir Transport Pty Ltd (the respondent). The respondent’s workers compensation insurer at the relevant time was Employers Mutual Limited (the insurer).
The applicant alleged that on 5 July 2021 he fell from a truck owned by the respondent at a rubbish tip in Glenfield and suffered injury to his right leg. The applicant alleges that he was employed by the respondent as a worker or deemed worker.
The applicant notified the respondent of the injury and made a claim for compensation on the insurer as required.
The insurer in a letter dated 21 July 2021 provided the applicant with an injury management plan.
On 19 August 2021, the insurer issued a s 78 notice declining liability for the applicant’s claim for right revision anterior cruciate ligament reconstruction.
On 23 September 2021, the insurer issued a s 78 notice disputing the applicant’s entitlement to compensation for his injury on 5 July 2021. The insurer declined liability on the basis that the applicant was not a worker nor a deemed worker pursuant to the workers compensation legislation.
On 31 January 2022, the insurer issued a review notice maintaining the decision of the insurer dated 23 September 2021. The claim was declined on the basis that the applicant was not a worker as defined in s 4 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) and was not a deemed worker as defined in cls 1-19 of Schedule 1 of the 1998 Act.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration through a video platform, Teams, on 20 April 2022. The proceedings were sound recorded and a copy of the recording is available to the parties. The applicant was represented by Mr Phillip Perry, who was instructed by Mr David Pena of Sinclair of Colin Daly Quinn, Solicitors. The respondent was represented by Mr Simon McMahon, who was instructed by Ms Jesse Mikaekian of Turks Legal. Ms Gillian Lawrence from EML also attended the conciliation conference and arbitration. The matter was adjourned part-heard on 20 April 2022 to Monday 27 June and listed for an in-person hearing. Mr Perry was granted leave to cross-examine Mr Toufic Elmir, director of the respondent company.
The parties attended an arbitration on 27 June 2022. The proceedings were sound recorded and a copy of the recording is available to the parties. The applicant was represented by Mr Phillip Perry, who was instructed by Mr David Pena of Sinclair of Colin Daly Quinn, Solicitors. The respondent was represented by Mr Simon McMahon, who was instructed by Ms Jesse Mikaekian of Turks Legal. Ms Alisha Lawrence from Turks Legal and Ms Hatfield from the insurer were also present.
At the conclusion of the arbitration on 27 June 2022 the applicant was directed to lodge and serve written submissions by 25 July 2022 and the respondent was directed to lodge and serve written submissions by 8 August 2022. The applicant was directed to serve any submissions in Reply by 15 August 2022.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertions made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The applicant filed submissions dated 25 July 2022. The respondent file submissions dated 8 August 2022. The applicant filed submissions in reply dated 16 August 2022.

ISSUES FOR DETERMINATION

Matters previously notified as disputed

The parties agreed that the following issues remained in dispute:
(a) Was the applicant a worker as defined in section 4 employed by the respondent?
(b) Was the applicant a deemed worker as defined in cl 2 of Schedule 1 of the 1998 Act employed by the respondent?
(c) Capacity for work and entitlement to weekly benefits.
(d) Section 60 expenses.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    the Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents (AALD) and attached documents filed on 13 April 2022 and 21 April 2022 by the respondent (the statement of Mr Toufic Elmir dated 12 April 2022 was attached to both of these AALDs);
(d)    AALD and attached documents filed on 21 June 2022 by the applicant;
(e)    AALD and attached documents filed on 24 June 2022 by the respondent, and
(f)    Statement of Agreed Facts.

Oral evidence

Mr Perry was given leave to cross-examine Mr Toufic Elmir. Mr McMahon also sought leave to call evidence from the applicant, Mr Ribeiro, which was granted.
The applicant, Mr Rieiero, gave evidence on 27 June 2022.
Mr Elmir gave evidence on 27 June 2022 via video-link.
Relevant parts of the oral evidence are referred to in my findings and reasons.

STATEMENT OF AGREED FACTS

The parties filed an agreed statement of facts, which read as follows:
“1.     Mr. Toufic Elmir is the sole director of the respondent.
2.      The respondent is involved in the storage and distribution of packaged meat products.
3.      In October 2018, the applicant commenced to drive the respondent’s trucks.
4.      The applicant when driving the respondent’s vehicles and performing deliveries, wore a shirt displaying the respondent’s logo. The applicant was responsible for providing all other personal protective equipment and clothing.
5.     At all times when driving the respondent’s trucks, the applicant followed the directions of Eduardo, (nickname ‘Melo’).
6.      JCM Logistics Pty Ltd, (JCM) was registered on 24 September 2020.
7.      The applicant is and, at all times, was the sole director and the secretary of JCM.
8.      Either Mr Elmir, or the respondent, paid all fees in connection with the registration of JCM.
9.      The applicant’s work duties remained the same after JCM was registered.
10.    After JCM was registered JCM invoiced the respondent for work conducted by the applicant.
11.    The respondent paid the invoices issued by JCM.
12.    Whilst driving the respondent’s trucks and performing the respondent’s deliveries after the registration of JCM, the applicant continued to wear a shirt with the respondent’s logo.
13.    The respondent, through Eduardo, continued to direct the applicant as to the tasks the applicant was to perform.
14.    The applicant suffered injury to his right knee on 5 July 2021.
15.    The applicant was paid provisional workers compensation benefits by the respondent’s workers compensation insurer after the injury on 5 July 2021.
16.    At the request of the respondent’s workers compensation insurer, the applicant was medically examined by Dr. Roger Rowe, orthopaedic surgeon on 17 August 2021.
17.    The respondent’s workers compensation insurer issued a section 78 Notice dated 23 September 2021.
18.    The applicants treating orthopaedic surgeon, Dr. Dimitri Papadimitriou, has recommended surgery to the applicant's right knee in the form of ACL reconstruction.”
Agreed Fact No 5 refers to Eduardo (nickname “Melo”). It appears that Melo’s full name is Eduardo Melinho and for convenience he will be referred to as “Melo” in this decision.
The respondent withdrew its agreement to Agreed Fact No 8, that is, “Either Mr Elmir, or the respondent, paid all fees in connection with the registration of JCM” at the commencement of the hearing.

FINDINGS AND REASONS

The respondent conceded in the proceedings on 20 April 2022 that the proposed medical treatment, that is, the revision right knee anterior cruciate ligament reconstruction proposed by Dr Dimitri Papadimitriou was reasonably necessary.

Evidence of the applicant

In an unsigned statement attached to the Factual Investigation Report by Mr Rod Duncombe of All State Investigations dated 8 September 2021, the applicant stated that he was provided with a jacket and shirt to wear by the respondent and supplied all other clothing and safety boots himself. He said that he was given a run each day with all of the deliveries. The applicant stated that he was paid by the respondent each week and he provided an invoice to the respondent each week for payment. He said that the rate for the work he performed as a delivery driver was $1,250 plus GST. He said that there was a second rate for a truck and delivery driver, that was for the services provided by Bruno Bellardo (Bruno) and for the applicant’s truck and that amount was $1,800 per week including GST.
The applicant stated that the payment was made into an account in the name of JCM. He said that he would then pay Bruno for his delivery driver duties whist driving the applicant’s truck. He stated that Bruno has “worked” for him in this capacity for about six months.
In relation to JCM the applicant said that this was first registered on 21 September 2021 [sic] and that the director of the respondent, Toufic Elmir had registered the company on the applicant’s behalf. He wrote: “Toufic paid for the registration of the company.”
The applicant then wrote:
“39. Toufic had come to me and another driver and told us that we needed to be a company to work for him, so he just arranged it from there. It was just one day that Toufic gave me a book saying that I was a company. Toufic told me that it would be good for me and that I would be covered if I have an accident. He told me I could claim rent and other things because I was a company.
40. 1 needed the job so I just accepted that everything was ok in this regard.
41. Prior to forming a company, I was paid directly into my personal bank account. I did not provide any invoices to the insured; I was just paid the weekly agreed rate”.
In a statement dated 17 December 2021, the applicant said that he was born in Brazil in 1984. He described injuring his right knee playing soccer in about 2004 and underwent a right knee anterior cruciate ligament reconstruction. The applicant said that he made a good recovery from the right knee operation and got back to playing soccer and surfing. The applicant said that he came to Australia in 2014. The applicant said that he started working for the respondent as a truck driver in October 2018.
The applicant wrote:
“The big boss was Toufic Elmir. Melo was the manager…I worked very hard. On Tuesdays and Thursdays I had to do a Newcastle run and on Wednesdays I had to do a Canberra run. I was paid $940.00. I did not think that my pay was enough and I recall talking to Toufic. I said to Toufic, words to the effect, ‘My pay of $940 is not enough. I think I will have to find another job because the work is very hard for not much money. Toufic said to me, words to the effect, ‘Let me look at it and I will come back to you’. About 10mins after this conversation with Toufic I received a text message from Toufic. The text was to the following effect, '1 will increase your pay by $150. 00 per week’. I recall sending a text to Toufic. My text was to the following effect, ‘Thanks Toufic’”.
The applicant described his job as delivering boxes containing meat to customers of the respondent. He stated that he was required to drive the respondent’s truck and deliver boxes of meat.
The applicant wrote:
“I worked Monday to Friday and started work at 5.00am. Toufic set my work hours, my work days and the number of deliveries that I had to make on each work day. My work uniform was a hi-viz shirt that Toufic gave me. The shirt had an ‘Elmir Transport’ logo on it….
21. I was required to complete all of my deliveries on any given day. My run sheet had a list of all deliveries that I had to make. I was given the run sheet at about 5.10am every morning. The run sheet was handed to me by Melo. The Respondent organized the runs that I had to do. I did as I was told. The petrol for the truck that I was required to drive was paid for Toufic”.
The applicant said that he always did “what he needed to do to keep Toufic and Melo happy”.
The applicant stated that in September 2020 Mr Elmir said words to the effect “You need to be a company to keep working for me”. The applicant stated that he wanted to continue to work for Mr Elmir and said “OK” to Mr Elmir. The applicant said that not long after that conversation, Melo phoned him and said words to the effect “What name do you want for your company” and the applicant said “JCM” which were his daughter’s initials.
The applicant wrote:
“25. A few days after the above conversation, Melo handed to me a folder and said to me, words to the effect, ‘Congratulations – you are a company now. This is good for you. You can claim rent, groceries and other stuff because you are a company. You are covered if you have an accident’. Toufic paid for the company to be set up. I was not involved in setting up the company. I was in the depot at the time of this conversation.
26.    I really had no understanding of what Melo was saying to me. I just worked. I was just happy that I held onto my job with Toufic. I did not want to be out of work. I noticed that JCM Logistics Pty Ltd was the name of the company. Toufic had added ‘Logistics’ to JCM. It did not mean anything to me at the time. Melo also told me to attend St George bank and put $500.00 into a new bank account. I did as I was told and I opened a bank account in the name of JCM Logistics Pty Ltd at the St George Bank Rockdale branch.
27.    My job with the Respondent continued to be the same. I continued to wear the same hi-viz shirt with the Elmir Transport logo. I continued to drive the same truck. Toufic asked that I provide him an invoice with the name JCM Logistics Pty Ltd. My wage was paid into the JCM Logistics Pty Ltd St George Bank account that Melo wanted me to open. I was paid $1,200.00 per week. I attach an invoice dated 17 October 2020.
28.    The big boss continued to be Toufic. I continued to report to and follow the directions of Toufic and Melo. I did not work for anybody else or do other work apart from working for the respondent. I worked full time for Toufic and I was happy.
29.    In about December 2020, Melo sold me a truck for $25,000.00. The truck was a 2008 4.5 tonne Isuzu refrigerator. My first payment to Melo was for $7,500.00. We agreed that I would pay the truck off by paying Melo weekly until the truck had been paid off.
30.    I did not drive the 2008 Isuzu truck. I continued to drive the respondent's truck and another worker, Bruno, drove the truck that I bought from Melo. Bruno had worked for the respondent for a few years and Bruno continued to complete the same deliveries that he had completed for the respondent prior to me buying Mela's truck. Bruno started with the respondent in about 2016. Bruno reported to Toufic and Melo. Melo set the run that Bruno had to complete. Bruno wore the same shirt with the Elmir Transport logo that I wore. Whenever Bruno had a problem, he reported to Toufic and Melo. I was not Bruno's boss. Bruno did not answer to me. I am aware that Bruno contacted Toufic or Melo whenever he had a problem with a delivery or any other issue that Bruno came across when he was working for the respondent.
31.    I continued to be paid my wage by the respondent into the JCM Logistics Pty Ltd St George Bank account that Melo wanted me to open. It was explained to me by Melo that Bruno's wage would be paid to the same JCM Logistics Pty Ltd St George Bank account. I did not ask questions and I just carried on with my job. Bruno was paid for the work he did for the respondent out of the JCM Logistics Pty Ltd St George Bank account”.
The applicant stated that whenever he had a problem at work, he spoke to the boss, Toufic or Melo. He described making a delivery to Blacktown in early 2021 and having a problem when bar codes on the boxes could not be read. He said that he rang Melo, who made some calls and fixed the problem and the delivery was accepted. The applicant said that in April or May 2021 he made a delivery to Auburn and was asked to take back a box of meat that had been delivered on an earlier occasion. He said that he called Melo, who provided him with directions.
The applicant stated that on 5 July 2021 he and Renato were directed by Melo to load construction rubbish from the depot into the truck and take it to the tip in Glenfield. The applicant wrote:
“Renato and I did as we were told. We loaded the truck and made our way to the tip. Upon arriving at the tip, we started throwing the rubbish off the back of the truck. I was standing on the tray of the truck. As I was moving a very heavy wooden box with Renato, I lost balance and came off the truck landing heavily on my right knee. I fell about 1.5 metres to the ground. My right knee cracked as I landed”.
The applicant stated that Renato drove him back to the depot and told Melo what had happened and Melo telephoned Toufic. The applicant said that his knee felt very unstable and he went to Royal North Shore Hospital. He said that while on his way to hospital Toufic rang him and said words to the effect “Don’t worry – we have insurance”.
In a statement dated 21 June 2022, the applicant stated that while he was driving to Royal North Shore Hospital following the injury on 5 July 2021 Mr Elmir telephoned him and the applicant told him about the accident. The applicant stated that Mr Elmir said words to the effect “No worries – don’t worry we have insurance. Just get to hospital; and let me know.”
The applicant stated that at the hospital in response to a question by the medical staff he told them that it was a work accident. He said he contacted Melo and sent Melo a picture of his injured right knee. He said that he and Melo sent each other messages in Portuguese and audio messages. The applicant said that he also contacted Mr Elmir and said that he might need surgery. The applicant said that Mr Elmir told him to contact icare, which the applicant did.
The applicant said that in the days after the injury, he sent Melo a message reminding Melo that when Mr Elmir opened the company JCM, Mr Elmir informed him that if he had any kind of accident, he would be covered.
In reply to Mr Elmir’s statement dated 10 September 2021, the applicant wrote:
“13. Paragraph 15: I have no knowledge of ‘a verbal contractor agreement’. JCM Logistics Pty Ltd was set up by Toufic Elmir. At all times, I worked for Toufic Elmir and abided by the directions of Toufic Elmir both prior to and after JCM Logistics Pty Ltd was set up.
14.    Paragraph 16: JCM Logistics Pty Ltd does not offer the services of delivery drivers. Both prior to and after Mr Toufic Elmir setting up JCM Logistics Pty Ltd, I worked for Mr Toufic Elmir. I did not work for anybody else.
15.    Paragraph 18: JCM Logistics Pty Ltd does not have employees. I did not work for JCM Logistics Pty Ltd. I worked for the respondent.
16.    Paragraph 19: Both prior to and after Mr Toufic Elmir set up JCM Logistics Pty Ltd, whilst I worked for the respondent, I wore a Hi Viz shirt that had the Elmir Transport logo.
17.    Paragraph 21: JCM Logistics Pty Ltd did not own a small truck. I bought a 2nd hand truck from Melo in about December 2021. The truck was a 2008 refrigerated Isuzu 4.5 tonne. My first instalment to Melo was for $7,500. JCM Logistics Pty Ltd did not provide a driver for this truck and JCM Logistics Pty Ltd did not contract to the respondent. As directed by Toufic Elmir and Melo, Bruno Bellardo drove the Isuzu 4.5 tonne and completed deliveries for the respondent.
18.    Paragraph 23: Whilst I worked for the respondent, I was not asked to sign a written contract.
19.    Paragraph 24: Toufic Elmir increased my pay from $1,200.00 per week to $1,375.00 per week. This pay increase occurred in about June 2021. At the time of my work injury, I was paid $1,375 per week.
20.    Paragraph 27: As directed, I submitted a tax invoice to the Respondent. The payment was made to the St George account that I was directed to open in the name of JCM Logistics Pty Ltd. My wage and Bruno's wage was paid out of the St George account.
21.    Paragraph 28: Bruno was paid $800 per week. Melo was aware that Bruno was paid $800 per week. Melo came up with Bruno's pay of $800 per week. I am aware that Melo and Toufic spoke constantly about work and everything associated with work. Toufic Elmir was the boss and he knew what the workers were getting paid.
22.    Paragraph 31: I deny that JCM Logistics Pty Ltd was responsible for directing their drivers and what deliveries their drivers would do. Bruno reported to Toufic Elmir and Melo. Bruno completed deliveries as directed by Toufic Elmir and Melo. Whenever Bruno had a problem or issue with his deliveries, Bruno contacted Melo or Toufic Elmir for direction. Bruno reported to Toufic Elmir and Melo. Likewise, I also reported to Melo and Toufic Elmir.
23.    Paragraph 32: Toufic Elmir and Melo always provided Bruno and I with instruction and direction. For example, on the day of my injury, I was following the instruction and direction of the respondent. ·
24.    Paragraph 33: As Toufic Elmir was my boss, I followed his instruction and direction. I valued my job with the respondent and did as I was told.
25.    Paragraph 36: Renato also worked for the respondent.
26.    Paragraph 39: I deny I wanted to set up a company. I deny I wanted to work as a contractor. I was happy working for the respondent and I wanted to keep working for the respondent. I trusted and respected Toufic Elmir. I simply did as I was told.
27.    Paragraph 40: I trusted and respected Toufic Elmir. He was my boss. I was informed that I would be covered if I had an accident whilst working”.

The text messages between the applicant and Melo during the period following the injury on 5 July 2021 were interpreted by a Certified Translator. There appeared to be a discussion about workers compensation and Melo said: “As you and the company it does not apply to you do you understand”. The applicant responded: “But I am going to check with him.” Melo replied: “I was reading here … you should have had as you the company’s employee do you understand…but I am going to talk to Toufic to see whether he knows how that works.” The applicant respondent: “Mate, I have almost the whole certainty that he said he has insurance.”
At a later stage the applicant said: “With regard to what happened I don’t know what to do” and Melo responded: “As the company is yours …it is you who is liable you understand”. The applicant replied: “Mate, Toufic said he was going to open insurance”. Melo responded: “You are not employee.”
During cross examination, the applicant gave the following evidence at Transcript (T) 20.28-T21.3:
“Q.    Mr Ribeiro, have you ever in a personal capacity been paid by Elmir Transport into your own personal account?
A.     Actually because I was working for Toufic three years so we change a lot, like sometimes I work for Melo, sometimes I work for ...(not transcribable 00:31:06).. or a subcontractor.
Q.     Yes.
A.     But to be honest I don’t know if Toufic pay me in my personal account, I’m not sure.”
The applicant gave the following evidence at T23.5-23.19 concerning his work prior to September 2020:
“A.     I usually work for ..(not transcribable 00:34:36).. and then I work to Melo and I work for another guy, the name if Rafael because they are Brazilian so maybe Toufic used this guy for transfer the money for us and just - how can I say - they - like made for communication, you know, for the Brazilian communication.
Q.     It’s the case, isn’t it, that Elmir Transport has never ever transferred money into your - - -
A.     Elmir Transport you mean?
Q.     - - - personal business account - your personal accounts?
A.     I don’t know. I have to check but I don’t know, I don’t know”.
The applicant gave the following evidence at T29.16-29.24:
“Q.    Well, would you agree that your assertion that either Toufic Elmir or Elmir Transport Pty Limited paid the ASIC fees is really something you don’t know for sure, you don’t know?
A.     I don’t know.
Q.     Yes.
A.     They just say we’re going to open the company and that’s it.
Q.     Yes.
A.     Who’s going to pay I don’t know”.
The applicant gave the following evidence at T23.5-23.19:
“A.     Melo paid me but I was driving the Toufic’s truck.
Q.     Yes. And it’s the case, isn’t it, that then you know Melo is not an employee of Elmir Transport Pty Limited?
A.     Probably - I don’t know, I don’t know how he’s like - how Melo works for Toufic, if Toufic pay his as a contract or tax, I don’t know, I never ask him or if you’re asking I don’t remember, you know.
Q.     When Melo paid you when you drove Toufic’s trucks was this prior to September 2020?
A.     Yeah, yeah.
Q.     Yes. Okay. And you received direction from time to time .. (not transcribable 00:49:03).. the work to be undertaken by Melo after September 2020 until July 2021, is that right?
A.     Before the company?
Q.     No, after the company.
A.     Melo and Toufic as well.
Q.     Yes. Melo was directing you mostly though, is that right?
A.     Actually they say what we have to do and we just load the truck and then go”.
The applicant gave the following evidence at T47.25-46.01 in relation to the text messages sent between the applicant and Melo following the injury on 5 July 2021:
“Q.    It’s the case there that Melo is telling you to apply for workers compensation through JCM, is that right?
A.     Yeah, is right.
Q.     And you said, ‘But I don’t have’, didn’t you?
A.     Mm-hmm.
Q.     You knew you didn’t have any workers compensation insurance through JCM?
A.     I didn’t.”
And at T48.27–33:
“MR RIBEIRO: Sorry. But before my accident I never heard about the work compensation. Never, never.
MR McMAHON: Q. As and at 5 July 2021 onwards you knew that JCM did not hold a policy of workers compensation benefits?
A.    Never heard about the work compensation.”
The applicant gave the following evidence at T54.24-T55.14:
“Q. Bruno drove your truck, yes?
A.     Yeah.
Q.     Okay. When Bruno drove your truck I assume fuel would have to be put into it, is that right? Fuel, petrol into the truck, yes?
A.     I paid ..(not transcribable 01:25:58)..
Q.     Yes. So you paid for the petrol that went into your truck?
A.     Mm-hmm.
Q.     And if your truck needed new tyres you would pay for the new tyres?
A.     I paid for it.
Q.     Yes. And if your truck needed maintenance to be undertaken on it, an oil change or something like that you would pay for that?
A.     Yeah.
Q.     And you’d be responsible for the registration costs of that truck as well?
A.     Yeah.
Q.     No, no, no, the $1,800, that’s the bundle deal for a truck and a driver for a week, is that right?
A.     Yeah.
Q.     Yes. And you at that point paid Bruno $800 a week, is that right?
A.     Mm-hmm.
Q.     There is there a difference of a thousand dollars a week, would you agree with that?
A.     Mm-hmm.
Q.     It’s the case, isn’t it, then that you were making or seeking to make some sort of profit out of that particular part of your invoice, would you agree with me?
A.     Yeah, because for this $1,000, 10 per cent is GST and then I paid Melo and then I pay the truck service, whatever, save money, whatever, that’s it.
Q.     Okay.
MR PERRY: I think the witness said ‘I pay Melo’. Perhaps that might be clarified.
MR RIBEIRO: Pay for the truck, you know, weekly.
MR McMAHON: Q. So you paid the money to Melo that you owed on the truck?
A.     Yep.
Q.     Yes. And you’d pay some money for fuel?
A.     Fuel, yeah. Toll.
Q.     Yes, tolls, things like that?
A.     Yep.
Q.     And presumably in that you’re looking at some point to make a profit, is that right?
A.     Actually, no, it’s just for buy the truck and I look for a good opportunity, you know, because like I’m student here and I couldn’t buy one truck by myself .. (not transcribable 01:32:33)..
Q.     It’s the case, isn’t it, that when you say I’m looking for a good opportunity you’re looking to, if you can, make a profit?
A.     Yeah.”
The applicant gave the following evidence at T71.4-34:
“Q.    I can say it’s the case, isn’t it, that Mr Elmir Toufic paid that transaction via a card for that $750?
A.     I don’t know how much they paid, you know, I don’t know who opened the company, you know.
Q.     And on that same date you paid Mr Toufic Elmir about $750 in cash?
A.     I paid him cash.
Q.     Yes.
A.     I paid?
Q.     Yes.
A.     No.”
The applicant gave the following evidence at T76.04-T76.34:
“Q.    Okay. So you started charging GST at around November 2020?
A.     11 November.
Q.     Yes. And that coincided with the purchase of the truck, is that right?
A.     Yes.
Q.     The truck that Bruno drove?
A.     (NO AUDIBLE REPLY)
Q.     Yes. Okay. Did you from that point on file what are referred to as Business Activity Statements?
A.     What do you mean?
Q.     From that point on did you file what might be known as a Business Activity Statement or a BAS statement?
A.     I have - no, maybe at this point, no.
Q.     Okay. Sorry - - -
A.     …(not transcribable 01:55:31)..
Q.     - - - the question being - - -
A.     You mean the tax, sorry?
Q.     The question being from that point onwards did you file a BAS statement?
A.     Yes.
Q.     And did you pay GST each quarter for that?
A.     Yeah.”
The applicant gave the following evidence at T81.10-28:
“Q.    And that’s something that you have stated Melo said to you in September 2020?
A.     It was when we - he gave to us like the book, like the company book, the black book and I remember was very - like they are very happy and they say, now, guys, that’s your book right now, you are businessman, blah, blah, blah, and now it’s good for you guys because you can claim for everything, you can like - you can save some money, you know.
Q.     And Melo said to you then, ‘You are covered if you have an accident.’
A.     Like you going to be covered, like if you have an accident you can cover for everything, like you can claim for rent, you can claim for.,.(not transcribable 02:03:40).. rent, what else, food, that’s why I start buy everything my company card because they said buy everything and pay your rent, everything from your company card.”
And at T82.4-T83.9:
“Q. No, no, from September 2020 onwards you bought things on your company card, is that right?
A.     Yeah, but like when I open the company, when Toufic open the company and I open like then I open my account, my bank account so I paid everything in the company card.
Q.     Okay. Then, I suppose, you gave that information to an accountant or someone to do your tax and your BAS?
A.     Yeah, they say.
Q.     Yes. And you claimed write-offs on your taxation, is that right?
A.     Yeah, they said.
Q.     And when you say everything, what do you mean?
A.     Like they say like - they say like when you open your bank account with your company you can buy - when you go into the supermarket, buy something, you know, buy with your card and then when you’re doing your BAS you can claim for that one, like for rent, you can claim for groceries.
Q.     Did you claim for rent from time to time?
A.     That’s when I do - when I did my BAS.
Q.     Your BAS?
A.     Yeah, my BAS, I did.
Q.     You claimed all sorts of different business expenses, is that right?
A.     Actually I send to the accountant the - my statement, bank statement and they done.
Q.     And he did the BAS for you?
A.     Yeah.
Q.     And you would then pay the quarterly BAS based upon the information that you - sorry, what you were told to pay by the accountant, is that right?
A.     Yep”.
The applicant gave the following evidence at T85.25-T86.03
“Q. You did not have any hesitation at that point in asking Mr Toufic about workers compensation insurance, did you?
A. No, because I didn’t hear about the work compensation before I had the accident. Like if Toufic said - if Toufic said to me you’re going to make like $1200 and you’re going to pay for your work compensation, you have to pay for your accountant, you have to pay for that, you’re going to make like $1000. Have to say, Toufic, it doesn’t work for me, you know, that’s why we ...(not transcribable 02:10:19).. you’re going to make the same money and you’re going to be like cover with this, with that”.

Evidence of Bruno Bellardo

In a statement dated 16 February 2022 Mr Bellardo said that he started working for the respondent in about September 2016. He said that Toufic Elmir was the boss and there was a manager, Melo. Mr Bellardo described his work as driving a small truck and delivering meat to butchers. He said that he started work at 5.30am, collected his run sheet for the day from Melo in the office and then loaded up the small truck. He stated that the run sheet set out the deliveries that he had to make on any given work day. He said he was given a hi viz shirt which had the Elmir Transport logo and wore this shirt whilst working. He stated that he worked for Elmir Transport full time and did not have any other job.
Mr Bellardo stated that Toufic set his daily wage rate and he was required to give Elmir Transport an invoice each week. He said that he did as directed by Toufic and Melo and whenever an issue arose at work, he reported it to Melo. He said that Melo normally had “all of the answers” but on the rare occasion Melo would say that he would check with Toufic.
Mr Bellardo stated that in late 2020 he was told by Melo to give his invoice each week to the applicant. He wrote: “I did not ask questions and I just got on with my job. My job remained the same and I continued to report to Melo and Toufic. I continued to wear my Elmir Transport t shirt and I continued to get my run sheet every morning at 5.30 am from Melo”.
Mr Bellardo stated that he kept on working for Elmir Transport job until October 2021. He said that instead of driving the small truck, he did the deliveries in a van and gave his weekly invoice to Melo. Mr Bellardo stated that he stopped working for the respondent because he was asked by Melo to obtain a truck licence and he did not want to obtain a truck licence and he explained this to Melo and Toufic. He said he then gave the respondent his notice and left the company.

Evidence of Toufic Elmir

In an unsigned statement attached to the Factual Investigation Report by Mr Rod Duncombe of All State Investigations dated 8 September 2021, Mr Elmir stated that the applicant was provided with a shirt with the respondent’s name on it to wear when carrying out duties for the respondent. He stated that the applicant “worked for me most days” and drove one of the respondent’s trucks. Mr Elmir said that the applicant also owned a smaller truck which he contracted to the respondent and the applicant provided a driver for this truck which was owned by the applicant. Mr Elmir stated that there were no written contracts between the respondent and the applicant’s company and any agreements were verbal.
Mr Elmir said that the applicant’s company was paid an agreed rate of $275 per day (inclusive of GST) for the applicant to drive one of the respondent’s trucks and a further $360 (inclusive of GST) per day for providing a truck and driver. He said that the applicant provided a tax invoice each week and was paid by the respondent into the nominated account on the invoice.
Mr Elmir stated that the agreement for payment with the driver of the applicant’s truck had nothing to do with the respondent and he had no idea what the driver was paid or how he was paid. Mr Elmir stated that the applicant was responsible for directing his driver and for what deliveries the driver would do. Mr Elmir said that he would just allocate the work to the applicant for both trucks and the applicant would manage his driver and the truck which the applicant’s company had. Mr Elmir stated that he never provided any instruction or direction to the applicant’s driver and all communications weer to the applicant.
Mr Elmir confirmed that he funded the registration of the applicant’s company. He wrote:
“The claimant was never asked to repay the money which I paid for the registration of the company. I just felt this was a reward for all the hard work the claimant had been doing for my company. I did not ask the claimant if he set up his own insurance such as Workers Compensation Insurance. I assumed that the claimant would have spoken to his accountant about such things like his Business Activity Statements and Insurance requirements, all those sorts of things that he would require as a company.”
In a signed statement dated 10 September 2021, Toufic Elmir stated that he was the sole director of the respondent company, which was a logistics company that stored and distributed meat products. He stated that the respondent did not have any employees other than himself.
Mr Elmir wrote:
“15. The claimant was initially introduced to me as an employee of Down Under Trade Pty Ltd ABN 42 621 682 255. At the time, Elmir Transport Pty Ltd had a verbal contractor agreement with Down Under Trade Pty Ltd. As of 25 September 2020, the claimant was then engaged through a verbal contractor agreement with his company, JCM Logistics Pty Ltd ACN 644 599 584. The claimant was never an employee of Elmir Transport Pty Ltd or any other company that I am affiliated with, including at the time of the accident on 5 July 2021.
16. JCM Logistics Pty Ltd offers the services of delivery drivers including that of the claimant where drivers are expected to drive a truck each day with meat products delivering those items to shops on a designated run each day”.
Mr Elmir stated that the applicant drove one of the respondent's trucks which required a truck licence. He said they operated two trucks this size being a Hino and Isuzu Truck. Mr Elmir stated that JCM also owned a smaller truck which only required a car license. He stated that this smaller truck was contracted to the respondent and JCM provided a driver for this truck.
Mr Elmir stated that JCM was not required to pay for fuel for the truck which was owned by the respondent. He confirmed that there were no written contracts between the respondent and JCM and any agreements were verbal.
Mr Elmir stated that JCM was paid an agreed rate of $275 per day for the applicant to drive one of the respondent's vehicles. He said that JCM was paid a further $360 per day for providing a truck and driver. He said that both these amounts were inclusive of GST.
Mr Elmir stated that JCM supplied a tax Invoice each week which was paid by the respondent into a nominated account of JCM as documented on the tax invoice. He stated that the agreement for payment of the driver who drove JCM's truck was between JCM and the driver and had nothing to do with the respondent. He said that he had no idea what the driver was paid or how the driver was paid.
Mr Elmir said that JCM was responsible for directing their drivers and what deliveries their drivers would do, so long as the work was completed within a specified timeframe. He stated that he never provided any instruction or direction directly to JCM’s drivers (including towards the applicant).
Mr Elmir stated that on 5 July 2021, JCM’s employee, the applicant, was asked to take some rubbish to a local tip. He said that this was a one-off task and not something he had previously asked JCM or their employees to do. He said that the applicant drove the respondent’s truck to the tip and was accompanied by another driver, a separate contractor of the respondent. Mr Elmir stated that the deliveries to the depot had been late that morning and were not due until around 9.00am so there was some down time. He said he decided to remove the rubbish and utilise the time of JCM and another contractor to transport the rubbish to the tip. Mr Elmir said that he was advised by telephone that the applicant had hurt himself whilst at the tip.
Mr Elmir stated that the applicant wanted to purchase a truck and set up a company so he could finance his own truck and work as a contractor. He stated that he assumed that JCM had the necessary workers compensation insurance in place but did not ask for copies of certificates of currency. He said that he also assumed that JCM would have spoken to their accountant about such things like Business Activity Statements and insurance requirements, as all of these items would be required of a company.
In a statement dated 12 April 2022, Mr Elmir stated that Mr Bruno Bellardo was the driver of the truck owned by the applicant’s company and that Mr Bellardo was paid directly by the applicant. He wrote: “The rate that was paid to Mr Bellardo had nothing to do with me and I have no idea how Mr Bellardo was paid”. Mr Elmir said that prior to working for the applicant, Mr Bellardo was employed by one of the respondent’s contractors whom the applicant bought the truck from.
Mr Elmir wrote:
“10. There was no relationship, employment, contractor or otherwise between Mr Bellardo and myself.
11. No instructions were provided to Mr Bellardo directly. I instruct the owners of the truck/contractors in terms of delivery routes for each truck and the owners of the truck/contractors appoint drivers for those trucks. The routes for the trucks are fixed beforehand and the insured does not appoint drivers to those trucks. Rather, the contractors do.
12. Eduardo is a contractor to the insured and goes by the nickname of Melo. Eduardo is engaged by the insured through his company (as a contractor). I am not aware of any instructions that Eduardo may have given to individuals including Mr Bellardo as the insured's focus is on allocating the fixed routes that are determined each morning by the weight of each route. As stated, the drivers are not appointed by me nor the insured. Eduardo appoints drivers through his company as an independent contractor of the insured”.

In examination in chief Mr Elmir gave the following evidence at T101.27-T102.15.
“Q.    Did you pay an amount on your credit card?
A.     Yes.
Q.     What was that amount in relation to?
A.     It was the amount he needed to set up his company.
Q.     Did Mr Ribeiro give you any money?
A.     Yes.
Q.     How much was that?
A.     I believe it was close to $750, maybe $5 over, $5 under, I’m not sure of the exact amount. It was around 750.
Q.     When did that occur in relation to your payment on the credit card?
A.     It was around - it was around September 21, 22, same day, let’s say same day. I’m 99 per cent that it could be a day over, under, I’m not sure.
Q.     Okay. The money - sorry, the amount you referred to, did Mr Ribeiro hand that to you?
A.     Yes”.
In cross-examination Mr Elmir gave the following evidence at T113-17-T114.11
“Q.    Thank you. Okay. You recall, do you, a conversation with both Mr Ribeiro and another gentleman - another driver Renato shortly prior to formation of the company JCM Logistics Pty Limited?
A.     Recall a conversation?
Q.     Yes. With Renato concerning the need for both Renato and Leo Ribeiro to incorporate?
A.     No.
Q.     In that conversation, I want to suggest to you, you said to both gentleman, ‘It is necessary for you to form companies if you want to continue working for me’, that conversation took place just outside the premises at Heathcote, did it not?
A.     No. No, it would’ve been - the conversation would’ve been with Eduardo, he was their employer.
Q.     I see. So you’re happy that that conversation took place in which they were told that it was necessary for them to incorporate if they were going to continue working, is that right?
A.     No, because I’ve never had - I’ve never had employees.
Q.     I hear you say that, sir, and that’s been your effort to ensure that you don’t have employees throughout the operation of your business, hasn’t it?
A.     Correct, because - - -“
Mr Elmir gave the following evidence at T115.22-25
“Q. It is the case, isn’t it, that Melo gave instructions to drivers who were to drive trucks owned by Elmir Transport Pty Limited, is that right?
A. Yes.”
Mr Elmir gave the following evidence at T116 1-25
“Q.    You know, don’t you, that Melo gave instructions to drivers as to the carriage of Elmir Transport Pty Limited’s goods?
A.     Yes.
Q.     And he did so because that’s what the arrangement was between Melo and Elmir Transport Pty Limited, that was his job, was it not?
A.     Well, that was his - yes, well, he gave instructions as a contractor, yes.
Q.     Yes. Okay. And it was with not only your consent but your direction that Melo look after - I withdraw that question. That Melo direct the operation of Elmir Transport’s business in that way?
A.     No. Melo is - Melo is his own, he gives his own instructions, I do not instruct him unless there’s an emergency or a fire or something. He - that’s his - that’s what he does, I do not direct vehicles.
Q.     But it’s his business, sir, isn’t it? It’s his business? I’m sorry, I withdraw. It’s your business that he gives the instructions concerned, isn’t it?
A.     Yes, and he makes money because he does a role in a certain part of my business.”

Documentary evidence

In an Invoice dated 17/10/2020 (invoice number 0001) from JCM to the respondent, 5 units at $240 were billed for services of “Refrigerator Transport”. Payment was to be made to an account in the name of JCM. Similar invoices (invoices numbers 0002- 0006) were issued on 25/10/2020, 1/11/2020, 8/11/2020, 15/11/2020, and 22/11/2020).
In an Invoice dated 29/11/2020 (invoice number 0001) from JCM to the respondent, 5 units at $240 were billed for services of “Refrigerator Transport”. Payment was to be made to an account in the name of JCM. A similar invoice (invoice number 0008) was issued on 06/12/2020.
In an invoice dated 11/12/2020 (invoice number 0009) from JCM to the respondent, 5 units at $264 were billed for driver service and 5 units at $360 were billed for truck delivery with details of the services described as “Refrigerator Transport and Driver Service”. Payment was to be made to an account in the name of JCM. A similar invoice (invoice number 0010) was issued on 20/12/2020.
In an Invoice dated 20/12/2020 (invoice number 0011) from JCM to the respondent, 4 units at $264 were billed for driver service and 4 units at $360 were billed for truck delivery with details of the services described as “Refrigerator Transport and Driver Service”. Payment was to be made to an account in the name of JCM.
In an Invoice dated 20/12/2020 (invoice number 0012) from JCM to the respondent, 3 units at $264 were billed for driver service and 2 units at $360 were billed for truck delivery with details of the services described as “Refrigerator Transport and Driver Service”. Payment was to be made to an account in the name of JCM.
In an Invoice dated 08/01/2021 (invoice number 0013) from JCM to the respondent, 5 units at $264 were billed for driver service and 4 units at $360 were billed for truck delivery with details of the services described as “Refrigerator Transport and Driver Service”. Payment was to be made to an account in the name of JCM.
In an Invoice dated 17/01/2021 (invoice number 0014) from JCM to the respondent, 5 units at $264 were billed for driver service and 5 units at $360 were billed for truck delivery with details of the services described as “Refrigerator Transport and Driver Service”. Payment was to be made to an account in the name of JCM. Similar invoices (invoices numbers 0015- 0033) were issued between 22/01/2021 and 29/5/2021. These invoices include some charges for diesel and a tyre.
In an Invoice dated 05/06/2021 (invoice number 0034) from JCM to the respondent, 5 units at $275 were billed for driver service and 5 units at $360 were billed for truck delivery with details of the services described as “Refrigerator Transport and Driver Service”. Payment was to be made to an account in the name of JCM. Similar invoices (invoice numbers 0035- 0037) were issued on 12/06/2021 and 19/06/2021 (x2).
In an Invoice dated 02/07/2021 (invoice number 0038) from JCM to the respondent, 5 units at $275 were billed for driver service and 5 units at $360 were billed for truck delivery with details of the services described as “Refrigerator Transport and Driver Service”. Payment was to be made to an account in the name of JCM.
In an undated Invoice (invoice number 001) from Bruno Bellardo to the respondent, Elmir Transport Pty Ltd, 5 units at $170 were billed for services of “Refrigerator Transport”. Payment was to be made to an account in the name of Bruno Bellardo. Similar invoices (numbers 002-006) were issued on 2-6 August 2021, 9-13 August 2021, 16-20 August 2021, 23-27 August 2021 and 29 August to 03 September 2021.
In an Invoice (invoice number 27) dated 14/06/2021 from Bruno Bellardo to JCM Ltd, 5 units at $160 were billed for services of “Truck driver”. Payment was to be made to an account in the name of Bruno Bellardo.

Was the applicant a worker or a deemed worker?

The issue to be determined in this matter is whether the applicant was, at the time of his injury on 5 July 2021, a worker within the meaning of the 1998 Act or a deemed worker employed by the respondent pursuant to the provisions of cl 2 of Schedule 1 of the 1998 Act.
All parties made written submissions following the arbitration. I have considered the written submissions filed but do not propose to set out the submissions in detail.
Counsel for the applicant submitted that the applicant was party to an arrangement whereby payment for work he performed for the respondent was paid not to him, but to a company, JCM Logistics Pty Ltd. JCM invoiced the respondent for deliveries of meat to the respondent’s customers performed by the applicant. The appellant argued that such a procedure did not exclude a relationship of employer and employee between the respondent and applicant respectively and if the indicia, including control, are those of the existence of a relationship of employer and employee between the respondent and applicant, then the method of calculation of the remuneration for the applicant’s work and its payment need not exclude that relationship. The applicant submitted that the critical matter was the respondent’s agent, Melo, engaging the applicant and directing him in every aspect of the work he performed in the respondent’s business and this indicated a contract of service between the applicant and the respondent.
The applicant argued that it was agreed that the applicant had duties and the duties remained the same after JSM was registered. These were duties owed by the applicant to the respondent before, and by agreement, after the registration of JCM. The applicant’s duties to the respondent were contractual in nature. Notwithstanding the formation of JCM, it was the applicant who owed these duties pursuant to a contract of service between the applicant and the respondent. It was consistent with the existence of such a contract that Melo on 5 July 2021 directed the applicant to take the respondent’s rubbish in the respondent’s truck to a tip and there unload the rubbish. The applicant could not object as his obligation was to arrive at work at 5.00am and take directions from Melo and his obligation to do so arose out of a contract of service.
The respondent submitted that the applicant, at the time of his injury, was neither a worker nor a deemed worker. Counsel submitted that there was no bargain between the applicant and the respondent. The applicant commenced operations of a company JCM in September 2020. JCM Logistics invoiced the respondent. The applicant was then paid by JCM. The respondent argued that considering the comments of the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek) which gave primacy to the contractual bargains between the parties, the task is to construe and characterise the contract made between the parties at the time it was entered into (PersonnelContracting at [194] per Gordon J). The inquiry remains an objective inquiry, the purpose of which is to ascertain the terms the parties can be taken to have agreed (PersonnelContracting at [178] per Gordon J.)
The respondent submitted that the parties to the contract were the respondent and JCM. While there was a verbal agreement and a requirement that the applicant form a company to undertake work for the respondent, the fundamental terms of the contract were that the agreement be between JCM and the respondent. If the parties to the contract were JCM and the respondent, the applicant’s claim must fail. The simple requirement of the contract was that the applicant needed to form a company and work through that company to be engaged by the respondent. This cannot be ignored and noting the comments of the High Court in PersonnelContracting should be put before the application of the indicia test. The terms of the contract identified above would satisfy the Commission that the applicant was not a worker as he was not engaged under a contract of service with the respondent. Further, the evidence supports the conclusion that the applicant was conducting his own business which provides a guide to the characterisation of the arrangement between the parties.
In the submissions in reply dated 16 August 2022, the applicant argued that the acceptance of the direction by Melo on 5 July 2021 to take the respondent’s rubbish to the tip and there to unload it, was entirely consistent with a contract of employment between the respondent and the applicant. The applicant submitted the respondent engineered a situation in which a corporation would be bought into existence and that corporation would then provide the respondent with invoices. Further the applicant argued that the existence of a contract between JCM and the respondent was not inconsistent with there also being a contract of employment between the applicant and the respondent and that the work performed on 5 July 2021 was part of the contract of employment and separate from the logistical services provided by JCM.

Legislation

Section 4(1) of the 1998 Act defines “worker” 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 express or implied and whether the contract is oral or in writing).”
Schedule 1, cl 2 of the 1998 Act provides:
“2 Other contractors
(cf former Sch 1 cl 2)
(1) Where a contract:
(a) to perform any work exceeding $10 in value (not being work incidental
to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.
(3) A person excluded from the definition of ‘worker’ in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”
A crucial matter to be resolved in determining the question is whether the applicant was a worker or deemed worker employed by the respondent, is what, if any, contract arrangements existed between the applicant and the respondent.
Roche DP in Riverwood Legion and Community Club Ltd v Morse [2007] NSWWCCPD 88 (Riverwood) said:
“Before any applicant for compensation can succeed it is necessary that he or she establish that a contract for service existed with the putative employer. The fundamental principles of contract law apply to the formation of the contract of employment just as they do to any other contract.”
Roche DP accepted that it was necessary to look at the totality of the arrangements in determining whether there was a contract.
The applicant must establish the existence of the essential ingredients of a contract, namely agreement between the parties to perform and consideration (Unicomb v Jimmy Cole Caravans Pty Ltd [1979] WCR (NSW) 65).
Whether a contract has been entered into is determined on “an objective assessment of the state of affairs between the parties”; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2001) 209 CLR 95 at 25. It is not necessary in determining whether a contract has been formed, to identify either a precise offer, or a precise acceptance, nor a precise time at which an offer or acceptance could be identified (Ormwave Pty Ltd v Smith [2007] NSWCA 210).
The respondent submitted that while there was a verbal agreement and a requirement in September 2020 that the applicant form a company to undertake work for the respondent, the fundamental terms of the contract were that the agreement be between JCM and the respondent. The respondent argued that if the parties to the contract were JCM and the respondent, the applicant’s claim must fail.
In this case there was no written contract between the applicant and the respondent or between the respondent and JCM. However, there was evidence about the formation of the contractual arrangements between the respondent, the applicant and JCM. The applicant gave evidence, which I accept, that he was told in about September 2020 he needed to form a company in order to continue to perform the work he had been doing, that is, driving the respondent’s truck to deliver meat products that the respondent was selling to its customers. It is common ground that a company, JCM, was registered in September 2020 and this company invoiced the respondent for the applicant’s services as a truck driver. The respondent paid the monies due to JCM into a bank account in the name of JCM which the applicant had opened. In November 2020 there was a variation in the contract between the respondent and JCM. JCM commenced invoicing the respondent in November 2020 for the provision of a small Isuzu truck and driver in addition to the applicant’s services as a truck driver. Bruno, the driver of the small Isuzu truck, invoiced JCM for his services as a driver and JCM paid the monies due into Bruno’s personal bank account.
The variation in the contract in November 2020 occurred after the applicant purchased a small Isuzu truck from Melo. The price of the Isuzu truck was $25,000 and the applicant stated that he had paid a deposit of $7,500 and then commenced to pay off the balance in weekly instalments.
While the applicant submitted that he had to set up this structure in order to continue his employment driving the respondent’s trucks, I am satisfied that the applicant agreed to enter into an arrangement whereby he set up a company, JCM, and payments for his services were to be made by the respondent to JCM. The applicant was aware of certain benefits in operating through a company structure, including the ability to claim various expenses of operating a business such as rent. The applicant gave evidence that JCM paid Bruno $800 per week, as the driver of the small Isuzu truck which the applicant had purchased, out of the $1,800 per week JCM invoiced the respondent for the services of a truck and driver. In cross examination, the applicant said that 10% of the remaining $1,000 was paid as GST and then payments were made to Melo for the purchase of the truck, fuel, tolls, registration and maintenance such as new tyres, and then the balance was saved “whatever that was”.
The applicant in cross-examination agreed that from September 2020 on he bought things on his company card and he gave that information to an accountant who did his tax and Business activity statements (BAS). The applicant agreed that he claimed write-offs on his taxation. He gave evidence that he sent to his accountant his statements, bank statements and the accountant did his BAS for him. He agreed that he paid quarterly BAS based on what he was told to pay by his accountant.
The actual arrangements concerning the applicant’s employment before September 2020 were not clear. Mr Elmir gave evidence in which he stated that the respondent never employed the applicant directly although he conceded that the applicant drove the respondent’s products in a truck owned by the respondent to the respondent’s clients. Mr Elmir stated that the applicant had been employed by others such as Melo or other companies prior to September 2020. The applicant’s evidence was that he had been paid for his work by Melo or Rafael and he did not know if he had ever been paid by the respondent.
In view of the evidence concerning the formation of JCM and the payments by the respondent to JCM for the applicant’s services as a truck driver, I am not persuaded that there was a contract of service between the applicant and the respondent. Indeed, I am satisfied that as at the time of injury on 5 July 2020, the contract was one between the respondent and JCM, that is, the company that the applicant commenced to operate in September 2020.
The applicant in the submissions in reply argued that the existence of a contract between JCM and the respondent was not inconsistent with there also being a contract of employment between the applicant and the respondent and that the work performed on 5 July 2021 was part of the contract of employment and separate from the logistical services provided by JCM.
In my view there was no evidence of any separate contract between the applicant and the respondent and no evidence of any payment by the respondent to the applicant in person. The applicant was content to have JCM as the recipient of monies paid for his services and to benefit from the contract formed between JCM and the respondent including the gains he could make in terms of the deductions to be made for tax purposes.
At the time of his injury on 5 July 2021, the applicant was performing duties involving the unloading rubbish at a tip and I accept that such actions were not part of his normal duties as a truck driver. However, this work was ancillary to his work duties and can be regarded as part of the need to maintain good relations with the respondent.

There was nothing in the transactions referred to above that suggested that there were two contracts. There was no indication of an intent to create legal relations or consideration for the task of taking the rubbish to the tip. There was no suggestion of a discussion for additional payment and I am not persuaded that this work on 5 July 2021 was the subject of a separate contract.
However, if I am wrong in respect to this issue and there was a contract of service between the respondent and the applicant, it is necessary to consider the factors which have traditionally formed part of the multifactorial test.
Until the recent High Court decisions of Jamsek and Personnel Contracting, the determination of whether an injured person who claims workers compensation is a worker involved a consideration of all relevant indicia in the relationship between the person claiming to be a worker and the entity which engages that person to provide his or her labour.
In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) (Stevens), Mason J said at [9]:
“... the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it as merely one of a number of indicia which must be considered in the determination of the question... Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”
Wilson and Dawson JJ in Stevens said at [10] that “the control test in the first instance remains the surest guide to whether a person is contracting independently or serving as an employee” but then said at [11]-[12]:
“The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.
Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.”
The recent High Court decisions in Personnel Contracting and Jamsek both concerned relationships which were governed by a written contract. In the Federal Court and Full Federal Court in Personnel Contracting, a multifactorial test had been adopted despite the existence of a written contract. In the High Court, the plurality (Keifel CJ, Keane J and Edelman J) said at [34]:
“In Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd, it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to ‘the totality of the relationship between the parties’. It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.
In this Court, the appellants submitted that the question whether a labourer is conducting his or her own independent business, as distinct from serving in the business of the employer, provides a more meaningful framework to guide the characterisation of the parties' relationship. There is force in that submission.”
The plurality said at [59]-[61]^;
“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.
...
The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider ‘the totality of the relationship between the parties’by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties' contract, and not simply an aspect of how the parties' relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.”
The principles set out by the majority decisions in Personnel Contracting are contingent upon the parties having “comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute” (Kiefel CJ, Keane and Edelman JJ) or having a “wholly written employment contract” (Gordon J). As there is no evidence of such a written contract in this dispute, it is necessary to return to the consideration of the various indicia to be considered to gauge whether the relationship is one of employment.
The members of the Court in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) CLR 21identified a non-exhaustive range of indicia which might be considered when determining the nature of an agreement concerning the provision of services. Those matters included the mode of remuneration; the provision and maintenance of equipment; the obligation to work; hours of work and provision of holidays; deduction of income tax; delegation of work; the right to dismiss; the right to have a particular person do the work; the right to dictate the place and hours of work and payment by the putative worker of expenses from his remuneration.
The control test is not determinative of an employer/employee relationship. The other indicia that must be considered include the provision of tools and equipment, the method of remuneration, the arrangements about the hours of work and the provisions of holiday, the obligation to work, the arrangements about taxation and the capacity to delegate work (Stephens at p 24).
In Stephens, Mason J at p 24 listed the following indicia, additional to control, as relevant, although not exhaustive, to determining the existence of a contract for service:
·        mode of remuneration;
·        the provision and maintenance of equipment;
·        the obligation to work;
·        the hours of work and provision for holidays;
·        the deduction of income tax, and
·        delegation of work by the putative employee.
Wilson and Dawson JJ, concurring with Mason J on the balance of indicia approach, listed at p 36 the following as indicating an employment relationship:
·        the right of the employer to have a particular person do the work;
·        the right to suspend or dismiss the person engaged;
·        the right to the exclusive services of the person engaged, and
·        the right to dictate the place of work, hours of work and the like.
I have considered the various indicia of employments and note the following factors:
(a)    In respect of the control test, I am satisfied that in the arrangement between the respondent and the applicant as to the work to be carried out, the respondent exercised a degree of control over the applicant in terms of when and where the work was to be done, and what was required. The parties agreed that at all times when driving the respondent’s trucks, the applicant followed the directions of Melo. I accept the applicant’s evidence that Melo gave him a run sheet for the deliveries to be made each day at 5.10am. The applicant gave evidence in cross-examination that Melo would tell them what they had to do, they would just load the trucks and then go. However, much of the evidence given by the applicant is conclusory and he did not provide any additional details as to how the respondent actually exercised control over his work. It would appear that much of the applicant’s work was performed when he was driving the respondent’s truck to make deliveries and during that time it is difficult to see how the respondent exercised any control over the applicant. In my view, the degree of control exercised by the respondent through Melo and Mr Elmir was not inconsistent with there being a contract for services in this industry. I accept that if the applicant had problems with making a delivery, he would contact Melo so that the problem could be sorted out. It also appears that Melo occasionally contacted Mr Elmir, if Melo could not resolve the problem himself. On the day of the injury on 5 July 2021, the respondent, through Melo, directed the applicant and another worker to load a truck with rubbish and take the rubbish to a tip. On balance, I am satisfied that while the respondent had a degree control of the work performed it was not inconsistent with there being a contract for services.
(b)    In terms of set times of work, I accept the applicant’s evidence that he attended the respondent’s premises at 5.00am each day that he was required to drive the respondent’s truck. No evidence was given as to whether there was an agreed number of hours to be worked each day but the driver was required to complete the deliveries.
(c)    In terms of the mode of remuneration, the rate of pay appeared to be determined by the respondent. However, from September 2020 on, the respondent paid JCM for the applicant’s services as a truck driver and JCM paid the applicant. The applicant’s rate of pay was increased on about 31 May 2021 from $264 per unit to $265 per unit. The applicant gave no evidence as to the circumstances leading to the increase in the rate of payment and who determined that the rate be increased. No tax was deducted by the respondent in the payments made to JCM. After the purchase of the small Isuzu truck in November 2020, JCM paid GST on the payments made to JCM by the respondent. The applicant was not paid for holidays, sick leave, or superannuation by the respondent. The payment to JSM for the applicant’s services as a truck driver weighs heavily against a finding that the applicant was a worker for the respondent. The absence of any provision for holiday pay, sick pay or superannuation is a factor which weighs against a finding that the applicant was a worker. In considering the mode of remuneration, the evidence is clearly against a finding that the applicant was a worker.
(d)    In terms of the provision of equipment, the applicant said that the respondent provided a shirt with the respondent’s logo on it. The applicant stated that he provided all other clothing and safety boots. I do not regard the provision of a shirt as particularly significant as it merely enabled the applicant to be identified as delivering the respondent’s products. In about November 2020 the applicant purchased a small Isuzu truck from Melo for the agreed sum of $25,000. The applicant stated that he had paid a deposit of $7,500 and then commenced to pay off the balance to Melo in weekly instalments. The applicant gave evidence that he used his savings to pay the deposit for the small Isuzu truck. The respondent then paid JCM for the use of the Isuzu truck and a driver. The purchase of such a large item and the subsequent arrangement for the respondent to pay JCM for the use of the Isuzu truck and a driver weighs heavily against a finding that the applicant was a worker.
(e)    In terms of conducting a business, it appears that prior to forming JCM in September 2020, the applicant was paid by Melo or by another person, Rafael, or by a company other than the respondent. There was no evidence that the respondent ever paid the applicant for his services as a truck driver. The applicant stated that payments made before JCM was formed were made to his personal account. When JCM was incorporated in September 2020, JCM issued invoices to the respondent for the services of the applicant as a truck driver. JCM opened a bank account in the name of JCM and payments were made into that account by the respondent. Other factors that should be considered when looking at whether the applicant conducted a business include whether he had tools and equipment. There was evidence that the applicant purchased a small Isuzu truck from Melo in November 2020 as noted above in (d). The respondent then paid JCM for the services of the Isuzu truck and a driver for that truck as well as the applicant’s services as a truck driver. The applicant stated that JCM had a business credit card and the card would be used to purchase things that would be then used for tax benefits for JCM. JCM used the services of an accountant, who completed quarterly BAS returns on behalf of JCM. On balance, the evidence as a whole is, in my view, consistent with the proposition that the applicant regularly carried out a business.
(f)    In terms of exclusivity of the relationship the applicant stated that he only worked for the respondent. However, the period of time between the incorporation of JCM in September 2020 and the applicant’s injury on 5 July 2021 was relatively short. The fact that his work came from one source does not preclude the conclusion that he was running a business.
(g)    In terms of whether there was an obligation to perform the work, and the entitlement to have others perform the work, the applicant stated that after he purchased the small Isuzu truck in November 2020, Bruno drove that Isuzu truck to make deliveries of meat for the respondent. The applicant stated that Bruno invoiced JCM for his work as a driver and JCM invoiced the respondent for the provision of the Isuzu truck and driver. The applicant stated that Melo “came up with Bruno’s pay of $800 per week”. The applicant stated that Bruno reported to Mr Elmir and Melo and completed deliveries as directed by Mr Elmir and Melo. The respondent paid JCM for the provision of the Isuzu truck and driver and then JCM paid Bruno for his work as a driver by transferring the monies into Bruno’s personal account. The applicant said that he was simply following the respondent’s instructions. However, I regard the change in the contractual arrangements in November 2020 as very significant. It was clear that the applicant had decided to purchase the small Isuzu truck from Melo and paid a deposit of $7,500 and agreed to pay off the balance in instalments. The applicant agreed to provide the Isuzu truck and a driver to the respondent for an agreed amount of $1,800 per week. The applicant saw this as an opportunity to acquire an asset and make a profit.
Both parties made submissions concerning the incorporation of JCM and the question of who paid for the incorporation of JCM. The applicant alleged that Mr Elmir or the respondent paid for incorporation, including the Australian Securities and Investments Commission(ASIC) fees.
There were some inconsistencies in the various statements of the applicant concerning the formation and incorporation of JCM. In his first statement given to Mr Duncombe of All State Investigations dated 8 September 2021, the applicant said that Mr Elmir paid for the registration of JCM and had registered the company of behalf of the applicant. The applicant stated that Mr Elmir then gave him a book “saying that I was a company” and told him it would be good for him.
In his statement dated 17 September 2021, the applicant said that Mr Elmir told him that he needed to be a company to keep working for him and then not long after Melo phoned him to ask what name he wanted for his company. The applicant stated that a few days later Melo handed him a folder and told him he was a company now and could claim rent and groceries and other stuff.
In cross-examination (T29) the applicant agreed that he did not know for sure who paid the ASIC fees. At (T71) the applicant denied that he had paid Mr Elmir the sum of $750 in cash because Mr Elmir had paid $750 via a credit card to incorporate JCM.
In the unsigned statement taken by Mr Duncombe dated 8 September 2021, Mr Elmir said that he funded the registration of the applicant’s company and he never asked the applicant to “repay the money which I paid for the registration of the company.” Mr Elmir stated that he had felt that this was a reward for all the hard work the applicant had been doing for the respondent.
Mr Elmir in cross-examination stated that the interview with Mr Duncombe had been conducted by telephone (T105) and when Mr Duncombe sent him the typed statement he did not agree with the statement and did not sign it (T106). At (T126) Mr Elmir was asked if the requirement to incorporate was an instruction given by Melo to the applicant and he replied “I don’t know if Eduardo asked him if he wanted to work here or not.”
In examination in chief, Mr Elmir gave evidence that he paid about $750 on his credit card for the ASIC fees for JCM and the applicant then paid him $750 in cash.
Mr Elmir, in cross-examination, stated that he did not have a conversation with the applicant and another worker about it being necessary to form a company if they wished to continue working for him. Mr Elmir said that the conversation would have been with Melo.
The evidence concerning who paid for the ASIC fees and costs of setting up JCM is not satisfactory. The applicant’s recall of detail appears to be poor although he maintained at all times that the respondent or Mr Elmir had paid the fees and expenses involved in setting up JCM. It was odd if the investigator, Mr Duncombe, had made the mistakes alleged by Mr Elmir in taking Mr Elmir’s statement and also that Mr Elmir did not address this with the insurer. On balance I prefer the evidence of the applicant on this issue. However, I do not consider the fact that the respondent or Mr Elmir paid for the costs of incorporating JCM as significant in the overall consideration of the question of whether the applicant was a worker.
The other issue that was raised by the parties was whether the applicant had been told by either Mr Elmir or Melo he would “be covered” if he had an accident. In his first statement given to Mr Duncombe of All State Investigations dated 8 September 2021, the applicant said that Mr Elmir gave him a book “saying that I was a company” and told him he would be covered if he had an accident. In his statement dated 17 September 2021, the applicant said that not long after Melo phoned him to ask what name he wanted for his company, Melo handed him a folder and said that “you are covered of you have an accident”. The text messages between Melo and the applicant after the injury on 5 July 2021 were evidence in my view of the applicant not being aware of workers compensation insurance until after his injury. In cross-examination (T48) the applicant said that before his accident he had never heard of workers compensation.

If an undertaking was given by Mr Elmir or Melo to the effect that the applicant would be covered if he had an accident, such an undertaking lacked clarity. If the applicant’s account of what was said was accepted, there was no reference in any of the alleged conversations to any form of insurance. On balance, I do not consider it plausible that such an undertaking was given by either Mr Elmir or Melo. The two statements by the applicant were inconsistent in terms of who gave the undertaking after he was handed the folder for JCM. In one statement the applicant said that Mr Elmir gave the undertaking and in the other the applicant said that Melo gave the undertaking. Mr Elmir denies that such a conversation took place. The text messages between Melo and the applicant after the injury on 5 July 2021 were inconsistent with Melo having told the applicant that he would be covered when JCM was formed if he had an accident.
On balance, I am not satisfied that the applicant was employed by the respondent as a truck driver as at 5 July 2020. In reaching this finding I have concluded that the applicant was conducting a business through JCM. The subsequent purchase of the small Isuzu truck from Melo in November 2020 by the applicant and the variation in terms of the contract between the respondent and JCM so that the respondent would pay JCM for the use of the Isuzu truck and a driver supports the conclusion that the applicant was conducting a business. I do not accept that this was a situation where the respondent engineered a situation in which JCM was brought into existence and in which JCM would then provide the respondent with invoices.
While the respondent had some control and direction of the manner in which the applicant was to perform his work, the place of work, and the work to be performed, that degree of control was not inconsistent in my view with the applicant being engaged through a contract for services. The applicant worked exclusively for the respondent and attended the depot every day. The respondent provided a truck that the applicant drove to make deliveries and paid for the fuel in that truck. The respondent provided a shirt with the respondent’s logo on it for the applicant and Bruno to wear. Payments were made by the respondent to JCM from about September 2020 on for the applicant’s services as a truck driver and these payments were made into an account in the name of JCM. No tax was deducted in any payments between the respondent and JCM. In November 2020, the applicant purchased a small Isuzu truck from Melo and then JCM commenced invoicing the respondent for the use of a truck and driver. The payments by the respondent continued to be made into JCM’s bank account. Both the applicant and Bruno’s services were invoiced at a daily rate. JCM commenced to pay GST from November 2020 and lodge BAS returns through an accountant. The applicant obtained a company credit card in September 2020 and used that card to pay for expenses that JCM would claim. The evidence is that the applicant was engaged in a trade or business once he commenced to operate JCM. The applicant made claim for rent for JCM and had purchased equipment, namely, the small Isuzu truck. I accept that there was no evidence that the applicant was engaged in creating goodwill or a saleable asset in the form of any regular work carried out by him as a driver or provider of a truck and driver. However, the applicant stated that he regarded the purchase of the truck as a good opportunity.
I find that the indicia in relation to conducting a business and the mode of payment together with the purchase of the small Isuzu truck would not favour a finding of an employer/employee relationship between the respondent and applicant. In my view, these indicia were not outweighed by the factors in respect of control.
Having regard to the whole of the evidence which I have summarised and dealt with above, I am not satisfied that the applicant has discharged the onus on him to show that, on 5 July 2015 when he was injured, he was an employee of the respondent, and therefore suffered injury arising out of or in the course of that employment.
Although a further finding in respect of the “deemed worker” issue is not necessary in view of my finding on the applicant’s primary submission, if I am wrong about this conclusion, it is necessary to have regard to Schedule 1 cl 2 of the 1998 Act.

Deemed worker

Was the applicant a “deemed worker” within the meaning of Schedule 1, cl 2(1)(a) to the 1998 Act?

The applicant made no submissions on the question of whether the applicant was a “deemed worker” within the meaning of Schedule 1, cl 2(1)(a) of the 1998 Act. The applicant limited his submissions to there being a contract of service between the applicant and the respondent. However, I will briefly deal with the question of deemed worker for completeness.
The workers compensation legislation deems certain people to be workers for the purposes of claiming workers compensation. Section 5 and Schedule 1 of the 1998 Act deals with the concept of deemed employment of workers. Section 5 states that Schule 1 has effect. Schedule 1, cl 2 is set out as follows:
“Outworkers and other contractors
2.
(1) Where a contract:
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) [Repealed]
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
The applicant bears the onus in reliance on Schedule 1, cl 2(1)(a) to the1998 Act. Bainton AJA in Scerri v Cahill (1995) 14 NSWCCR339 (Scerri) said the applicant must establish:
“(a)    he was a party to a contract with the respondent to perform work;
(b)     the work exceeds $10 in value;
(c)     that the work was incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name, and
(d)     that the applicant had neither sublet the contract nor employed workers in the performance of it.”
For there to be a “contract”, the first ingredient listed by Bainton AJA in Scerri, there must be an intention to create legal relations and mutuality or contractual consensus. The presence of both of these factors is to be determined objectively: Lindeboom v Goodwin (2000) 21 NSWCCR 297 at [302] and [305] and Cudgegon Soaring Pty Ltd v Harris. 91996) 13 NSWCCR 92 at [101].
In Davis v Pioneer Concrete (NSW) Pty Ltd [1976] 1NSWLR 562, Mahoney JA said at [575] that the applicant in that case:
“…did, in a sense, carry on a trade or business; what he did involved expenditure, eg, in the requisition of a vehicle and on maintenance, equipment and the like, and may have had a sufficient complexity and regularity of operation to fall within the ambit of the phrase…”
In considering the matters referred to by Bainton AJA in Scerri, it was common ground that the work exceeded $10 in value.
However, I am not satisfied in view of the findings made above that in respect of the work performed on 5 July 2021 that the applicant was a party to a contract with the respondent to perform work.
Further, if I am wrong and the applicant was a party to a contract with the respondent, I am satisfied that the applicant did employ a worker in the performance of it. The applicant, through JCM, employed Bruno as a driver of the small Isuzu truck and JCM invoiced the respondent for Bruno’s services as a driver.
In my view, there was no contract between the applicant and the respondent as at 5 July 2021 because the applicant had commenced the operation of a company JCM in September 2020 and JCM invoiced the respondent for the applicant’s services as a truck driver. The respondent made payment for the applicant’s services into an account in the name of JCM. The contract between the respondent and JCM was varied in about November 2020 when Bruno was engaged by and paid by JCM as a driver of a small Isuzu truck that had been purchased by the applicant. I am satisfied that the contract was between JCM and the respondent as opposed to between the applicant and the respondent.
A further issue is whether the contract to perform work was incidental to a trade or business name regularly carried out by the applicant in the applicant’s own name or under a business or firm name.
The evidence of the applicant is scant in relation to his work history and the history of JCM. There are no financial records, BAS statement, accounts or financial records. I accept that the company, JCM, had been operating for less than one year at the time the applicant was injured. Within two months of setting up JCM, the applicant or JCM bought a small Isuzu truck in November 2020 and invoiced the respondent for the use of this Isuzu truck and a driver. There is no evidence that the applicant advertised. However, the applicant used the services of an accountant to lodge BAS returns for JCM, and the applicant used a company credit card from September 2020 to purchase various items. The applicant gave evidence that he would claim such items and rent as an expense. These were factors that supported a finding that the applicant through JCM did carry on a trade or business. In addition, there was evidence that what he did in his work involved expenditure, eg, the acquisition of a vehicle, maintenance costs, and the like. On balance I am of the view that the applicant through JCM carried on a trade or business.
In those circumstances, I am satisfied that the applicant does not fall within the definition of “deemed worker” in Schedule 1 cl 2 of the 1998 Act.

[2022] NSWPIC 464

19 August 2022