Spirkoski v Workers Compensation Nominal Insurer

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Spirkoski v Workers Compensation Nominal Insurer & Ors [2022] NSWPIC 241
APPLICANT:	Aleksandar Spirkoski
first RESPONDENT:	Plumb & Level Masonry Pty Ltd
second respondent:	Sub Group Pty Ltd
third respondent:	Workers Compensation Nominal Insurer
Member:	John Wynyard
DATE OF DECISION:	25 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant injured performing work as a bricklayer; at time of injury undergoing a trial under the control of the putative employer; whether applicant a worker or deemed worker; whether relevant indicia supportive; Held- On Call and Hollis considered and applied; indicia indicated contract of services; issues of credit considered; award respondents; applicant neither worker nor deemed worker.
determinations made:	1. The applicant and the second respondent, Sub Group Pty Ltd entered into a contract for services, and Mr Spirkoski was accordingly not a worker. 2. Mr Spirkoski was not a deemed worker. The work he was doing was incidental to his business which he conducted as MKLJ Holdings Pty Ltd, of bricklaying.
Orders made:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Aleksandar Spirkoski, the applicant, brings an action for weekly compensation and lump sum benefits against the abovenamed three respondents with respect to an injury alleged to have been sustained on 1 October 2020 to the lumbar spine and both knees.
Dispute notices were issued and an Application to Resolve a Dispute (ARD) and Reply were lodged.
In these reasons I shall refer to the first respondent as “Plumb Ltd” and the second respondent as “Sub Group.”.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Was Mr Spirkoski a worker or a deemed worker?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

This matter was heard by video link on 12 April 2022. The applicant was represented by Mr David Carter from Carters Law Firm instructing Mr Frank Curran of counsel. The first and third respondents were represented by Mr Justin Hart of Messrs Gair Legal instructing Mr James McEnaney. There was no appearance for the second respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
The applicant
(a) ARD and attached documents, and
(b) Application to Admit Late Documents (ALD) and attachments.

First and third respondent
(c)    Reply and attached documents;
(d)    ALD and attached documents, and
(e)    Letter dated 11 April 2022 from the applicant to the first and third respondents.

Oral evidence

No application was made for oral evidence.

FINDINGS AND REASONS

Preliminary

At the onset of the hearing I granted leave to the applicant to amend his pleadings in the ARD form regarding the claim for permanent impairment by deleting therefrom the claim for “thoracic spine” and substituting therefore “lumbar spine” and to add after the claim for each lower extremity the word “knee”.
As indicated, there was no formal appearance for the second respondent. By Direction dated 18 February the third respondent was ordered to notify Sub Group at both its company address and that of its director as identified in ASIC searches. I was advised that this had been done, and as the evidence shows there was a relationship between Plumb Ltd and Sub Group I am satisfied that proper notice of the hearing was given to Sub Group. I note the Certificate of Service which certified that the pleadings were served at the ‘Street Address” of Sub Group.

EVIDENCE

Applicant statements

Mr Spirkoski lodged four statements dated 29 October 2020,13 January 2021, 26 March 2021 and 1 October 2021.

Statement 29 October 2020[1]

[1] ARD p 108.

This statement was given to the respondent’s insurer and taken by an investigator, Mr Craig Bayldon at a time when the applicant was not legally represented. With regard to the nature of his employment, Mr Spirkoski said from [8]:
“8.     I am employed by the Insured. I have been employed with the Insured since around September 2020. I was employed as a Casual Foreman however once I commenced, they were still working on an old project and I would be the foreman on the new project that would start later. In the meantime, I was to work as a brick layer on this project they were currently doing.
9.      I was working 46 hours per week, Monday to Saturday. I was working 7.00am to 3.00pm Monday to Friday and on Saturday I was working 7.00am to 1.00pm.
….
11.    Prior to commencing work with the Insured, I was brick laying under my own Company- MKLJ Holdings Ply Ltd -ABN - 88 621 753 795. I am the sole Director of this Company. It has been in operation since September 2017.
12.    I have been working as a brick layer for over 20 years.
13.    Through the time that I was working through my Company I would work for a number of different Companies doing brick laying.”
Mr Spirkoski leased his vehicle through his business, noting that he was then behind in his payments. Mr Spirkoski said that he had the mobile number of “the boss of the insured” whom he had known through the building trade and other people that worked for him, for about 10 years.
Mr Spirkoski said from [22]:
“21. I had been operating through my own Company and my work had dried up and I had no jobs coming in.
22. I started going through my phone and contacting people that I had in my contacts looking for some work. I contacted the boss of the Insured - Costa by phone. I asked him if they had any work for me. Costa told me in that phone call that they were looking for a foreman for a project. He then told me to go to office in Concord the following day and meet with George.”
Mr Spirkoski described the meeting from [24]:
“24.   I then went to a coffee shop with George and we sat and discussed work. In this discussion - George told me that they were looking for a Foreman. I explained to George that I was running my own Company and I knew how to be a Foreman on a job. George then told me to attend a worksite and work as a brick layer for
2-3 weeks and then after when the new job starts, they would look at me being the foreman on the new job.
…
26.    There was no discussion at that time about contracting to the Insured through my ABN, as far as I was concerned following that meeting with George I was to be employed by the Insured. At no time did I sign a contract or an agreement for the work.
27.    I commenced work the following day as was agreed at a job site in Penrith. I used my own vehicle to attend the job site.
28.    On my arrival at the job site I first had to do an induction which was run by the Builders in charge of the site. Once the induction was finished, I then commenced working as a brick layer at this site.”
Mr Spirkoski stated that the supervisor for the insured did take his shirt size but as they had none available “I just wore my own clothing on the site.”
The applicant said that he asked the supervisor, who had a name similar to “Photis,” about providing his details for payment to the office. He was told he was not to work for anybody else whilst working for the insured. Mr Spirkoski spoke to “Bill” whom he described as Head Foreman regarding payments. Mr Spirkoski said at [31]:
“I would be paid to start with $340 plus GST per day equating to $374.00. I was then told that once I become the Foreman it would go to $370 plus GST - $407 per day. I agreed to the amounts per day with Bill.”
Mr Spirkoski said he spoke with someone at the office, and provided his ABN number, his Bank BSB and account number, and copies of his white card and drivers licence. He was told that his pay would be paid directly into his chosen bank account.
When he was paid, Mr Spirkoski found that he had been paid by Sub Group. He said at [34]:
“I was not required to send an invoice…. I was paid as per the agreed amount from my meeting with Bill.”
Mr Spirkoski said that the payments did not include any withholding tax and he was still required to pay tax “through my Company.” Mr Spirkoski received two payments from Sub Group, the first three days work on 25 September 2020, and the second for 42 hours work on 2 October 2020. As indicated, Mr Spirkoski suffered his injury on 1 October 2020.
The accident occurred whilst Mr Spirkoski was pushing a wheelbarrow load of 48 bricks when he felt a pain in his lower back, which he compared to that of a knife, and fell to the ground. An ambulance was called and after Mr Spirkoski had laid on the ground without moving for about 20 minutes, the ambulance arrived and took him into Penrith Hospital Emergency Department. He was released after about four hours and “George from the Insured”, who had come to the hospital, drove him back to the job site so Mr Spirkoski could pick up his car and go home.
Mr Spirkoski underwent some chiropractic treatment which was paid by “Costa”. Mr Spirkoski contacted Costa on 9 October 2020 to tell him that he, Mr Spirkoski, was not seeking a full week’s pay because of his accident. He said at [51]:
“I did ask him if he could help me with a couple of hundred dollars to help me with my family for food for my kids.
Costa said, ‘I am not paying you nothing because you did not work’."
Mr Spirkoski then contacted Workers Compensation and was told to see a general practitioner (GP) to get a certificate. Mr Spirkoski did not remember the name address of his first GP, as he did not have a regular GP. He transferred to Dr Kuzmanovski Blagoj, who spoke his language, and who managed the applicant thereafter.
Mr Spirkoski said at [59] that he had pain going down his left leg which was causing more pain than the back.
Mr Spirkoski had not at that stage worked since 1 October 2020. He said that he did not know the company that paid him, Sub Group.

Statement 13 January 2021

Mr Spirkoski made a further statement to the investigator on 13 January 2021 in which he repeated his earlier assertions.[2] In the meantime a statement had been taken on 5 November 2020 from Costa Meitanis, the Managing Director of Plumb Ltd which gave a somewhat different version of Mr Spirkoski’s engagement, as will be seen.
[2] ARD p 118.
Mr Spirkoski said that he had known the owner of Plumb Ltd for many years, as well as other people in the company. From [14] he repeated:
“14. I was looking for work as a foreman or supervisor.
15.    I was given George's number and met with George at Concord.
16.    He told me there was no work as a foreman/supervisor but that something may come up.
17.    He asked me if I would work as a bricklayer and when the foreman/supervisor role came up I would get that position.
18.    I told him that I was happy to assist.
19.    He gave me the address of where I was going to be working.
20.    I also spoke to Bill who gave me the number for the Project Manager.
…….
24.    I was employed on a casual basis.
25.    I was paid at an hourly rate.
26.    I was employed through my ABN.”
Mr Spirkoski said that he did not have any workers compensation insurance.   The ABN was in the name of “MKLJ Holdings”. At [31] Mr Spirkoski said he was told that he would be made a foreman “after two or three weeks.” He then said:
“33. I was asked when I started where my tools were.
34.    I told them I don't need my tools.
35.    I spoke to Kosta and then got my tools from my truck.
36.    I wore my own clothes.
37.    I was directed and supervised by Fotis.
38.    I then started to work as a bricklayer.
……..
41.    Fotis gave me the number of the person in the office.
42.    They wanted a copy of my White Card, my bank account name and number, and BSB number.”
Mr Spirkoski then gave further detail about the system of payment. He said that “Fotis” gave him the number of the office, to whom he gave a copy of his White Card and his bank account details
Mr Spirkoski was paid twice prior to the accident, and when he sought payment after it, was told that he “hadn’t worked the previous week.” At [74] he said he received $2,150 for the weeks he worked.
From [69] he said:
“69. I made a claim through the company's insurer Employers Mutual Limited.
70.    The claim was declined by that insurance company.
71.    I was then told to make a claim through Sub Group Ply Limited.
72.    I believe that company has the same address as Plumb and Level Pty Limited and the persons running that company are the same people.”

Statement 26 March 2021

This was a short statement, which was certified to have been interpreted by Angel Ristov. Mr Spirkoski noted there was a dispute about who his employer was, and gave some details regarding other injuries.

Statement 1 October 2021

Mr Spirkoski began this statement by saying:[3]
“I arrived in Australia in 2001. I have never done an English course since I arrived in Australia. I speak the Macedonian language at home with my family.
2. My English is very poor and a series of statements have been taken in this claim where I did not have the benefit of an interpreter. Those statements must be seriously brought into question as much of the material contained in the statements was not understood by me and must be treated with caution.”
[3] ARD p 210.
Mr Spirkoski then repeated the outline of the events that he had given in his earlier statements. He asserted that there had never been an arrangement that his company would be the employer, that he was supposed to be employed as a foreman by Plumb Ltd, and that Fotis was a representative of Plumb Ltd at the induction, and advised that the employer was Plumb Ltd.
Mr Spirkoski repeated his allegation about not wearing a shirt with Plumb Ltd’s logo on it at [5], and alleged that the agreed rate of pay was to be at $340 plus GST, to increase to $370 when he was made foreman. Mr Spirkoski said that he had given his bank details over the phone to the office, and that he later provided his White Card and drivers licence by email.
Mr Spirkoski had available the tax invoice for 25 September 2020 for $1,075.25 for three days work, and said he was paid $2,127,50 for his second week. He said that in relation to the second week he only worked for half a day on one of his days worked, as he had to collect his children from school.
At [7] Mr Spirkoski said:
“Until my solicitors received a copy of that document, I had never seen it before. It is not in my handwriting. It is written by somebody else and at that time I was not familiar with the company Sub Group Pty Ltd. The document does have the correct ABN of MKU Holdings Pty Ltd, my company but the document was never prepared by me or seen by me.
Furthermore, I did not instruct that the document be created in that form. I have never prepared an invoice to Plumb & Level Masonry Pty Ltd and/or Sub Group Pty Ltd. This document and any other invoices served by the insurer in this case were not authorised by me or written by me and were created by somebody else.”
Mr Spirkoski said from [8] that the bank records established that the monies were paid into his personal account, and not his company account. He said “it was never put to me” that his company would be a contractor. He was simply to work as a bricklayer on an agreed rate of pay, plus GST, which was “very common” in the building industry. He was, Mr Spirkoski said, “a deemed employee” of either Plumb Ltd or Sub Group.

39. The invoice was lodged.[4] It was handwritten and dated “25/9/20”. It was addressed to “Sub Group Pty Ltd” and quoted Mr Spirkoski’s ABN number. It was said to be from “Aleksander Spirkoski (MKLJ Holdings)” and it gave Sub Group’s ABN also. The invoice was for:

“bricklaying – 22/9 to 24/9
23 hours @ 42.50
977.50 + GST 97.75 – 1075.25”
[4] ARD p 215.

Mr Spirkoski revisited the arrangement he had spoken of earlier regarding the use of tools. He said at [11] that he used the tools supplied by Plumb Ltd, but after the first day used his own trowel, but otherwise used Plumb Ltd’s tools.
He also said that he did not authorise anybody to submit a claim on behalf of MKJL Holdings Pty Ltd.
Mr Spirkoski stated at [13] that his company “used to have workers compensation and public liability insurance” but that it lapsed on about 3 August 2020. He asserted that he was aware of that position which was why he had no intention of working as a subcontractor but was seeking work as an employee. He said that he had not done any other work since 2 August 2020.
Mr Spirkoski said that he had been told he was employed by Plumb Ltd at the induction, and in his personal capacity. Mr Spirkoski was not sure whether he was being employed by Plumb Ltd or Sub Group. He did not identify whom he alleged told him.

Notice to Produce

A Notice to Produce had been served on Mr Spirkoski, and in an ALD a further statement was lodged, along with bank statements and three statements from other people. The statement evidence was clearly lodged to explain the movement of monies shown in the bank records.
The Notice to Produce was lodged by the respondent at p 80[5]. It sought the following:
“You are directed to produce to the above requesting party the documents described below which are in your possession or control (and which have not otherwise been provided to the Respondent pursuant to a previous Notice for Production):
1. Copies of your PAYG summaries, tax returns and notice of assessments for the financial years ending 30 June 2020 to date inclusive.
2. Copies of all documents which evidenced any earnings received by you or any company you control, including MKLJ Holdings Pty Ltd since 1 January 2020 to date.
3. Copies of all bank statements in relation to any bank account conducted by you since 1 January 2020 to date.
4. Copies of all documents which evidence business earnings in relation to any businesses operated by you, including the business operated by MKLJ Holdings Pty Ltd since 1 January 2020. In respect of any and all such businesses, please provide copies of all bank statements, financial statements, Business Activity Statements, balance sheets and all profit and loss statements and copies of any company tax returns.”
[5] Reply
In response, Mr Spirkoski lodged bank statements in the name of MKLJ Holdings Pty Ltd dating from 1 October 2020 to 5 October 2021.[6] He also lodged part of a bank statement in his own name covering the period 1 July 2020 to 30 December 2020. The statement was said to be 29 pages long, but only two pages were lodged covering the period 1 July 2022 to 18 July 2020.[7] These two pages were lodged twice, the first two being illegible. A further page from the same account, but which indicated that it was page “38 of 54” was lodged covering the period from 25 September 2021 to 3 October 2021. This portion of the statement followed a different layout to the earlier two pages.[8]
[6] AALD pp 8-20.
[7] AALD pp 5-6.
[8] AALD p 7.
The account for MKLJ Holdings Pty Ltd demonstrated a deposit from “Cemcon Group Pty” of $4,440 on 25 January 2021 which was added to a balance of $0.29. The statement showed amongst other things a payment of $1,460 on 26 January 2021 to M Derimackovski for “brick layer wages.” Thereafter it does not appear that the company account was active.
On 11 April 2022 the applicant’s solicitors wrote in answer to an enquiry about the Notice to Produce in the following terms:
“We refer to your letter of 2 February 2022 and are instructed, so far as the notice to Produce is concerned:
1.PAYG summaries are not produced. Tax returns and Notices of Assessments are not produced.
2.Not produced except, so far as a Commonwealth Bank Statement 1 July 2020 to 30 September 2020; 1 October 2020 to 30 December 2020; 31 December 2020 to 30 March 2021; 31 March 2021 to 30 June 2021; 1 July 2021 to 30 September 2021; 1 October 2021 to 5 October 2021; 30 March 2020 to 30 June 2020.
3.Bank statements enclosed.
4.The applicant produces the bank statements which are the only documents in existence that are required.
5.We note the deposits to the Commonwealth Bank referred to in your letter of 2 February 2022 are fully described in the late documents which have been served on you.”

Mr Spirkoski’s personal account showed considerable activity, and the statements that accompanied the late documents sought to explain some of that activity.

Statement 23 February 2022

Mr Spirkoski said that his injury had left him having to ask “friend and people of good will” to assist him to support his wife and family of four children. He had to find other ways to support him. He said:
“Since I work as a bricklayer in the past 20 years and I also have my business I started to sell some of the jobs that were given to me.”
Mr Spirkoski accordingly gave work to Maninderjit Singh, whom he said worked on jobs which showed income in Mr Spirkoski’s bank account on 4 March 2021 from Taeus Group, from which Mr Spirkoski paid $2,000 cash in hand. Similarly on 14 April 2021 he paid Mr Singh cash in hand from another deposit by Taeus Group. Another entity, Windbrook Building also made deposits in Mr Spirkoski’s bank account on 11 June 2021 and 19 June 2021. Mr Spirkoski paid Mr Singh $3,200 cash in hand on the first occasion, and was paid two “instalments” of $2,080 and $1,110 the same day – again, cash in hand.
“I also feel the need to explain the deposit of $22,000 on 30^th of September, 2021,” Mr Spirkoski said.
This came about, Mr Spirkoski explained, because he had won $50,000 on the “pokies” after a family dinner about a year earlier. His friend, Jovan Popovski, was older than the applicant “and very stable person,” so he was given the money because Mr Spirkoski feared he might spend it quickly.
When Mr Spirkoski learnt that his father in Macedonia needed surgery, Mr Spirkoski asked Mr Popovski to give him $22,000. Mr Spirkoski added:
“Also my daughter in Macedonia needed financial aid since she just started High School and her expenses increased suddenly.”
This amount was “taken from [Mr Popovski] and sent overseas,” Mr Spirkoski said.
Mr Spirkoski next referred to transactions appearing in his statement on 13 May 2021, 19 August 2021 and 4 September 2021 in the amounts of $400, $305 and $600.
“I would say that I borrowed Mr Adham Kheireddine $1,300.00 when I met him in February and he returned those money into my account in 3 instalments,” Mr Spirkoski said.
Finally, Mr Spirkoski referred to transactions appearing on 3 October 2021 and 4 October 2021. These concerned the sale of a Pomeranian dog, which Mr Spirkoski and his wife had decided to sell. The contract, Mr Spirkoski said, was for payment in two instalments of $1,500 and $6,500.

Statement Jovan Popovski

Mr Popovski wrote a letter addressed “To whom it may concern” dated 19 February 2022. He said that on 7 July 2020 after a family dinner he was playing “pokies” with Mr Spirkoski whom he had known for 10 years. He said he heard Mr Spirkoski “scream happily” and saw that Mr Spirkoski had won a grand jackpot. On 13 July 2020 Mr Spirkoski met Mr Popovski and gave him $50,000, saying that the monies were from the grand jackpot. Mr Popovski said:
“Due to the largeness of the amount, he told me he was a bit scared to keep them in case he spends them, therefore he wanted me to keep them.”
Mr Popovski said that on 30 September 2021 the applicant called him and said he needed $22,000 to send to Macedonia as a family member needed medical assistance. Mr Popovski said that the applicant sent the money to Macedonia the same day.

Statement Adham Kheireddine

Mr Kheireddine wrote a letter, also addressed “To Whom It May Concern” dated 20 February 2022. He said that he had known Mr Spirkoski over the past four years and that in February 2021 he had borrowed money from Mr Spirkoski in the sum of $1,300. When he collected the money Mr Spirkoski said that he was not working as he had injured his back at work, and he would like them money refunded as soon as possible. Mr Kheireddine said:
“And I would also like to add that I paid him back in instalments and in one transaction while I was sending him the money back I made a mistake in the payment description [I] wrote ‘wages’ instead of writing ‘refund’.
These are the dates of payment:
13th of May,2021-$400
19th of August,2021-$305
4th of September; 2021-$ 600
I also gave him $100 cash on hand.”

Statement Manindjerit Singh

Mr Singh also wrote a letter addressed “To Whom It May Concern” from Adelaide on 19 February 2022. He said that he had known Mr Spirkoski over the past five years and for three years had been employed by MKLJ Holdings Pty Ltd. He said that in July 2020 his employment had been terminated. In January 2021 Mr Singh met Mr Spirkoski in a shopping centre where:
“…he told me that he got a job worth 10,000 $ and he wanted me to do that job for him since he could not work due to the injury. We made a deal that out of 10,887.00$ his commission would be 2000$...”
Mr Singh said that he performed that work on 4 March 2021 and that Mr Spirkoski gave him two further jobs on 11 June 2021 and 19 June respectively. Cash payments were made to Mr Spirkoski on 4 March 2021, 14 April 2021, 11 June 2021 and 19 June 2021.

Respondent evidence

Statements

Costa Meitanis

Mr Meitanis is Managing Director of Plumb Ltd and Sub Group, and he made a statement on 5 November 2020.[9] He said that his company had about 10 permanent employees, and that if needed they would bring on extra people for short periods as subcontractors.
[9] ARD p 122.
Mr Meitanis said that all permanent employees were employed by Plumb Ltd and that workers compensation, public liability and other insurances were all covered with this company.
When using contractors on jobs for short periods, the company ensures that the contractors have all their own relevant insurances, Mr Meitanis said. In order to keep a “clear distinction” between employees and contractors, the contractors were paid through Sub Group.
Mr Meitanis said that he received a phone call from Mr Spirkoski in early to mid September 2020. Mr Meitanis said he had never met Mr Spirkoski, and did not know of him. Mr Meitanis said:
“…In this phone call the claimant told me that he was looking for work, he had his own business and insurances, and he was looking for some work as his work had dried up. He did state that he had some work coming up in about a month but was looking for some work to cover that period.”
Mr Meitanis made some enquiries and found that there was a project in Penrith that “needed to push” and it was suggested that Mr Spirkoski be used for a couple of weeks. Mr Meitanis contacted Mr Spirkoski by phone, telling him that “we needed to push for a couple of weeks, and I could get him on this job.” Mr Spirkoski was asked to attend the office in Concord the following day and to speak to the General Manager, George Saaib, to provide his insurance, ABN, BSB, white card and drivers licence.
Mr Meitanis said that the required documentation was received on 24 September 2020 by email. Mr Meitanis said he contacted the claimant seeking a copy of his insurance details, and was told by Mr Spirkoski that he had left them at home and he would email those, which he never did. He said there was an agreed daily amount which was to be paid by invoice through Sub Group. No taxes were withheld and no superannuation was paid.
When Mr Spirkoski was asked for his invoice, Mr Meitanis was asked to fill in the invoice for him as the company had all his details.
On-site, Mr Meitanis said that the claimant had all his own tools, and he was not provided with any company clothing. Mr Meitanis said from [23]:
“……I have hundreds of shirts in the office. Normally any employees of our Company are provided with the Company clothing to work on site. The claimant wore his own Company clothing on site.
24. On 25 September 2020, the claimant was asked for his invoice for the first week. He told me to fill the invoice in for him as we had all his details. An invoice was then completed, and the claimant was paid accordingly for that invoice by a direct deposit into his nominated account.”
Following the accident, Mr Meitanis said from [27]:
“27. The following day the claimant contacted me by phone asking for money and if I could keep on paying him for the rest of the week. I told him no. I then told him that we would pay him for the rest of the day that he did not work out of good will but then he would need to go under his insurance for his injury. The claimant said, ‘No I need your Insurance details.’
I said, ‘No you are a sub-contractor and you have told us all you have your own insurance otherwise you would not have been given any work This is the reason that you are paid the extra money as you are covered with your own insurance. You cannot double dip.’
The claimant then hung up the phone on me.
28. I called the claimant back. The claimant then said, ‘I got to do what I got to do.’ He then hung up on me again.”
After making some arrangements for Mr Spirkoski to see a chiropractor, Mr Meitanis said that he spoke later to the chiropractor involved. Mr Meitanis said at [31]:
“The Chiropractor Nikos informed that he was there also with the physiotherapist. The claimant refused to allow either of them to touch him to make any type of assessment of the injury. They told me that the claimant then left the practice without any assessment being done other than a conversation.”

George Saaib

Mr Saaib was General Manager of Plumb Ltd. He gave a statement on 5 November 2020.[10] He stated that following a directive from Mr Meitanis, he met with the applicant, whom he had never met before, at a nearby café. Mr Saaib said that he did not have a background in bricklaying and discussed the business at hand. Mr Saaib said at [10]:
“I asked the claimant about his employment history. He informed that he worked for himself and he was looking to undertake work for bricklaying Companies as there was less stress relating to dealing with builders and getting paid. He informed that he had his Company, his own men and that he had been brick laying and run his own business for a long time.”
[10] ARD p 138.
Mr Saaib told the applicant that there was some upcoming work, and Mr Spirkoski said he wished to discuss pay. Mr Saaib said at [11]:
“…He wanted to talk about pay. That was not something that I am involved with and that I would have someone speak with him about the pay. I never talk about payments with employees or contractors.”
Mr Saaib said from [12]:
“I am aware the claimant later commenced working as a bricklayer at a site at Penrith working within one of our teams. This was to be a trial before deciding whether additional responsibilities could be given to the claimant.
13. It was always discussed with the claimant that he would be contracting to our Company through his own ABN.”
Mr Saaib went to the hospital following the accident and obtained information from the applicant which Mr Saaib completed from the description given to him by Mr Spirkoski. Mr Saaib completed the form on 1 October 2020, which was attached to his statement.

24 September 2020 email

In the reply, a copy of the email sent by the claimant to the Accounts Manager at Plumb Ltd was attached at p 51. It read as follows:
“From: Francis Thettayil
Sent: Thursday, 24 September 2020 12:05 PM
To: alek spirkoski
Subject: RE: Aleksandar Spirkoski 2
Thanks Aleksandar
I got your mobile 0426223660
Regards
Francis Thettayil
Accounts Manager
PLUMB & LEVEL
MASONRY
T 97 436719 F 97 436893
E [email protected]
Licence No 292723C
From: alek spirkoski <[email protected]>
Sent: Thursday, 24 September 2020 12:00 PM
To: Francis Thettayil <[email protected]>
Subject: Aleksandar Spirkoski 2
BSB-062 329
ACC- 10457408
ABN - 8821 753 796
I EM REGISTER WHIT JST TNX FRANCIS
MY Name is Aleksandar Spirkoski”

SUBMISSIONS

Mr Curran

Mr Curran referred me to the various statements made by the applicant as “objective proof” that the intention of the parties had been that Mr Spirkoski was employed pursuant to a contract of service.
Mr Curran placed considerable weight on the initial statement made by Mr Spirkoski, saying it was made without the benefit of legal advice to an investigator on 29 October 2016. Mr Curran noted that Mr Spirkoski said that he was the director of his company and had an ABN. He had been operating this company since September 2017, and had been working as a bricklayer for over 20 years.
Mr Curran referred to the decision by Mr Spirkoski that he decided to try and find employment because the work had dried up.
Mr Curran submitted that a significant indicium was that Mr Spirkoski went to an induction when he started work for Plumb Ltd, which he would not have done had he been attending in his capacity as a contractor.
Mr Curran then referred to Mr Spirkoski working for three days. He said that the evidence to this point was totally consistent with the applicant being an employee. Mr Curran in detailing the conditions of payment, also submitted that it was significant that the monies were paid to Mr Spirkoski’s personal account.
Mr Curran referred to the evidence that the applicant was not required to supply an invoice and that the monies were to be paid into his account. Mr Curran said that the evidence was that Mr Spirkoski’s company had since ceased trading in August.
Mr Curran submitted that the Commission would be aware of the system of payment that had been current since about 2007 or 2008 when the government of the day introduced the system for taxation benefits of such employees.
The Howard government Mr Curran said had introduced changes to the tax system whereby tradespersons could use their ABN in getting paid and thus achieve some taxation advantage. This had become standard in the building world and had been so for almost the last 20 years Mr Curran advised.
Mr Curran submitted that there was no contest that the accident itself occurred. Mr Curran noted that the issue of insurance arose and that it transpired that Sub Group did not carry insurance.
There was then an interchange whereby Mr Curran was asked whether he had any instructions about how, when Mr Spirkoski had said he could not speak English, he had been able to give all the detail contained in his first statement. Mr Curran said he did not have instructions but said that Mr Spirkoski had been in the country for over 20 years and was bilingual to some extent.
Although an interpreter was present for the formalities of legal proceedings, the fact that no interpreter was used for any input at that stage showed, Mr Curran said, the bona fides of his client in answering these questions.
Mr Curran referred to the origins of the relationship with Plumb Ltd, pointing out that Mr Spirkoski insisted that it was never contended that his company would be the contractor.
Mr Curran argued that because of the consistency of Mr Spirkoski’s statements it should be accepted that Mr Spirkoski was being inducted as a potential foreman to Plumb Ltd, and that his company was to have no association in any way with the work to be done.
Mr Curran referred to Mr Spirkoski’s evidence about tools and said this was a significant matter going to Mr Spirkoski’s status.
Mr Curran advised that a trowel is a very cheap tool which would cost no more than $5 and were available at Bunnings if one wanted to buy one. He advised further that Mr Spirkoski used his trowel because it was a better trowel, but otherwise he used the company’s tools and equipment.
Mr Curran said it was important to note that Mr Spirkoski’s company used to have workers compensation cover but it lapsed in August 2020. This was another piece of evidence that was consistent with his assertion that he always intended to be an employee when he took the job at Penrith.
Mr Curran said that when Mr Spirkoski saw the first invoice by which he had been paid from Sub Group, Mr Spirkoski had never seen the subject invoice before. This was “profound and substantially strong” evidence, as the payment method was known only to Plumb Ltd. How Sub Group became involved was a mystery to the applicant.
Sub Group could be a subsidy of Plumb Ltd, Mr Curran said, but it was not for his client to know. The fact remained that the work was done and paid for, not to the company account but to the applicant’s personal account. This system of payment was alien and foreign to the accepted system within the building industry at that time, Mr Curran advised. The system had been going for 15 years and still does “to this day”.
If a person did not want to be characterised as an employee, he would have to fill out an invoice and submit it to the payer and get the payment made. That was the way the system worked, Mr Curran said.
This assertion was a self-evident truth of the matter, Mr Curran submitted. The fact that the money was paid straight into Mr Spirkoski’s account was, Mr Curran said, “highly probative evidence”.
Mr Curran said that in his company business Mr Spirkoski was familiar with the use of invoices and produced some that he earlier used to the Commission. Mr Curran said however that those invoices bore no correlation to the invoices produced by the respondents. They were not signed, written or drawn up in any way by Mr Spirkoski.
Mr Curran said that it was a convenient way for the company that was uninsured to fraudulently forge these documents. They were not the applicant’s invoices and were totally foreign to the pattern of invoices that Mr Spirkoski had been used to, Mr Curran said. It was a very convenient and facilitating way for a respondent entity to improperly dress up a situation in order to avoid liability.
Mr Curran exhorted the parties not to be “juvenile” about this. This was a significant matter for the directors of Plumb Ltd and Level Masonry Pty Ltd, he submitted. He noted that the nominal insurer now stands in the shoes of Sub Group and it would be naïve in the extreme not to accept that there was a severe financial incentive on the persons having an interest in Sub Group to seek to avoid any finding that their company employed the applicant whilst it was uninsured.
Mr Curran said those persons would be personally liable for any steps that the nominal insurer wished to take with regard to their being uninsured and to recovery.
Mr Curran said that when the evidence was looked at and scrutinised in the case, all the annexures, all the confirmation, all the corroborating material, including the financial statements, nonetheless, on the preponderance of probabilities established that the applicant was in fact employed as a simple tradesman bricklayer for Plumb Ltd.
As far as the applicant was concerned Mr Curran said, Sub Group was a mystery organisation, the overwhelming probability of its involvement points to Plumb Ltd.
It was significant, Mr Curran submitted, that if the respondent’s case were correct it would suggest that the applicant had done a silly thing in having the money put into his personal account because he thereby deprived himself of any taxation advantages which would otherwise have accrued had he been working for his own company.
If the Commission was not satisfied that he was a worker, then there was no doubt, Mr Curran said, that Mr Spirkoski was a deemed worker and was not working for anyone else. He was not holding himself available or advertising himself as being available to do other work. He was working under the direction of Plumb Ltd supervisors on site. He had no tools apart from his trowel, the others being supplied. He was working for over $10.

Mr McEnaney

Mr McEnaney opened by noting that there was no suggestion that there was a written contract between the applicant and Sub Group, which was not unusual in this industry. The contract was oral and had to be established by a consideration of the evidence surrounding their activities.
Mr McEnaney submitted that I would not get to the point of considering each of the relevant indicia because the evidence did not go so far as to raise a question as to whether there was any other agreement than a contract of services and that the basis of Mr Spirkoski’s contract was that he was to be a subcontractor.
Mr McEnaney stated that the test had to be objective. The standard in that objective test was of a reasonable person and thus what the applicant might have been thinking was not binding any more than what the officers of the company thought.

The issue was clear - that the applicant thought he was employed by Plumb Ltd, and not by Sub Group. On any view of the evidence Sub Group was an administrative arm of Plumb Ltd, Mr McEnaney submitted.
Mr McEnaney referred to the first statement which had been taken about three weeks following the accident, and was conducted in “very competent English”. I would accordingly look askance at Mr Spirkoski’s attempt to disassociate himself from that earlier statement.
Mr McEnaney then addressed the statement evidence, which I consider below in Discussion. I have by and large adopted his submissions, and will not rehearse them at this point.
Mr McEnaney submitted that a matter that might be relevant in any assessment of Mr Spirkoski’s credit, was that Mr Meitanis said that he did not know Mr Spirkoski, which was inconsistent with Mr Spirkoski’s assertion that he had known him for many years.
Whilst it had been suggested that Mr Spirkoski’s company, MKLJ Holdings, had been inactive since August 2020, Mr McEnaney referred to the movements of money shown in the bank statements produced by Mr Spirkoski. The ABN was still current Mr McEnaney noted, and that indicated that the company remained active. Mr McEnaney submitted that it had been an active and registered company at the time of the injury so that any suggestion that it had ceased to trade was unlikely.
As to the applicant’s allegation of fraud and forgery, Mr McEnaney quite properly submitted that Mr Curran had gone “a submission too far” in his advocacy.
Mr McEnaney referred to Sarac v Itxcel Pty Ltd[11] and Sergei Sergienko v AXL Financial.[12]
[11] [2015] NSWWCCPD 32.
[12] [2021] NSWSC 1.

Mr Curran in reply

Mr Curran submitted that the email of 24 September 2020 was unclear and the appearance of the name “Francis” and other markings on it were unexplained.
Mr Curran resisted the submission that MKLJ Holdings was still trading because it sold the company vehicle. He submitted that the applicant’s evidence that work activity had ended in August 2020 should be accepted, it being obvious that there would be some intrinsic details when the company was winding down.

DISCUSSION

119.A worker is defined in s 4(1) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) relevantly as follows:-
“‘worker’ means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing)...”

120.Schedule 1, clause 2 of the 1998 Act provides relevantly:-

“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...”

The task of the Commission in deciding whether a given relationship constitutes a contract of service (that is to say, an employment contract), or a contract of services (also described as an independent contractor) was considered by DP O’Grady in Mohamed v Barnados Australia Limited.[13]The learned DP said[14]:-
“ … It is instructive to consider, as did the Arbitrator, the observations of Bromberg J in On Call Interpreters[15] concerning the ‘modern approach’ to this question, as follows (at [204]):
‘Despite the earlier preoccupation of the law with the degree of control exercised by the putative employer as defining an employment relationship, the modern approach is multi-factorial. As the majority said in Hollis[16] at [24] it is ‘the totality of the relationship’ which is to be considered. A range of indicia may be examined. Some will be more useful than others in some work arrangements but less useful in other work arrangements. Because of the multiplicity and diversity of work arrangements and the ingenuity of those fostering disguised relationships, there is value in a multi-factorial test which recognises that one spotlight will not necessarily adequately illuminate the totality of the relationship. Such an approach also involves what may be described as a ‘smell test’, or a level of intuition. The majority in Hollis (at [48]) described the notion that bicycle couriers were each running their own business as ‘intuitively unsound’.
58. The members of the Court in Hollis identified 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.”
[13] [2014] NSWWCCPD 81.
[14] At [57].
[15] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (Number 3) [2011] FCA 366: 279 ALR 341 (On Call Interpreters).
[16] Hollis v Vabu Pty Ltd [2001] HCA 44: (2001) 207 CLR 21 (Hollis).

The contract

It was common ground that following the meeting in the café with Mr Saaib, the applicant commenced working as a bricklayer. The applicant’s assertion that he underwent an induction and was subject to the directions of the supervisor “Fotis” was not contested. Indeed those assertions were consistent with the evidence of Mr Saaib that the applicant commenced working as a bricklayer as “a trial before deciding whether additional responsibilities could be given to the claimant.”
The applicant submitted that this demonstrated that the parties intended to enter an employer/employee relationship.
The intention of the parties however is to be gleaned on an objective consideration of the evidence regarding the mutuality of obligation in the formation of the contract. In Riverside Legion & Community Club Ltd v Morse[17] DP Roche at [41] cited the High Court decision of Dietrich v Dare:[18]
“….. A contract of service is of its nature a bilateral contract. It may be conceded that merely to say that the parties had agreed upon a trial does not necessarily rule out its formation. The answer in that respect will depend upon the detail of the arrangement. In particular, the answer will be affected, among other things, by the discovery in the arrangement of the assumption by the ‘worker’ of an obligation to perform some work, it being the purpose of the trial to determine whether the work is performed in a satisfactory manner. ….”
[17] [2007] NSWWCCPD 88.
[18] (1980) 30 ALR 407 at [409].
In the present case there was clearly an obligation on the applicant to perform work as a trial, but the dispute concerns the detail of the arrangement, or the totality of the relationship, as the High Court said in Hollis.
Mr McEnaney submitted that in the present case there would be no need to consider the usual indicia, as the evidence showed conclusively that Mr Spirkoski had entered his engagement with the respondents as an independent contractor.
Be that as it may, a consideration of the relevant indicia is a helpful way to highlight the credit issues in this case.

Contract indicia

Company structure

It is common ground that the first and second respondents were connected. Plumb Ltd employed its permanent workforce of about 10 employees under a contract of employment. Plumb Ltd maintained the usual requirements expected of employers, including current workers compensation cover. Sub Group was responsible for the rights and entitlements due to independent contractors who were hired from time to time and who had no entitlements such as workers compensation or public liability cover.
The management of the office’s affairs was conducted with such clarity that it was able to demonstrate a significant divide between the way it treated its employees and the way it treated its independent contractors.

Payment method

Mr Spirkoski emailed his payment details to the Accounts Manager, Mr Francis Thettayll. It contained his bank account details, his ABN number, and he advised that he was registered for GST. The email was dated 24 September 2020 and Mr Spirkoski identified the sender of his email as “alek spirkoski <MKLJ [email protected].”
I note in passing that there was some controversy about the appearance of the words “TKS” and “Francis”, in the email, but it is clear that “FrancIs” was the Account Manager, and “TKS” is a commonly shortened way of saying “thanks.”
Mr Spirkoski was paid the following day, 25 September 2020, by a direct deposit into his nominated account, without his issuing an invoice.

The invoice

The invoice was dated 25 September 2020. It contained Mr Spirkoski’s ABN number, and was for the agreed amount of $977.50 plus GST of $97.75. It had been prepared by Sub Group, and was addressed to Sub Group, purporting to be from “Aleksander Spirkoski (MKLJ Holdings).”
In his statement of 29 October 2020 Mr Spirkoski said that he was not required to send an invoice, and that his pay would be paid directly into his bank account.

Remuneration

The applicant was paid an hourly rate, which was expressed to include GST. The daily rate was increased from $340 per day to $374 per day to reflect that adjustment. This adjustment I infer that Mr Meitanis was referring to as the “extra money” being paid because the applicant was an independent contractor. Mr Meitanis said it was for the applicant’s insurance, which would be unlikely.
It is within the Commission’s knowledge that wage earning employees do not usually pay GST, but that independent contractors are liable. Mr Spirkoski has been registered for GST since 1 October 2017.[19]
[19] ARD p 64.
Whether or not, as Mr Curran advised, tradespersons can be paid as employees and use their ABN to achieve some taxation advantage, is not within the Commission’s knowledge. Neither is it known that this practice has been in force for 20 years. There being no evidence to establish that opinion, I move on.

The provision and maintenance of equipment

There was a conflict in the evidence in this regard. In his statement of 1 October 2021, Mr Spirkoski said that tools were supplied, but that he began to use his own trowel. Mr Meitanis said that the applicant had all his own tools. In his statement of 13 January 2021 to the investigator the applicant said that he was told by Mr Meitanis to get his tools from the truck after Mr Spirkoski had said he did not need them.

Hours of work and provision of holidays

The applicant worked 46 hours per week, and had no entitlement to holiday pay.

Income tax

No tax was deducted.

Uniform

This was another area of conflict. In his statement of 29 October 2020 the applicant said there was no shirt his size, so he wore his own. Mr Meitanis said that he had hundreds of shirts in the office, but that the applicant “wore his own company clothing;” In his statement to the investigator on 13 January 2021, the applicant said he wore his own clothes.

Language

Submissions were made regarding Mr Spirkoski’s claim in his statement of 1 October 2021 that his English was very poor, and that the statements he made to the investigator on 29 October 2020 “must be seriously brought into question” as much of the material therein was not understood by Mr Spirkoski and had to be treated with caution.
I accept that the applicant had problems with written English, and in technical matters was more comfortable in using his own Macedonian language. The email of 24 September 2020 demonstrated a rudimentary knowledge of written English. At [54] and [55] of his statement of 29 October 2020, the applicant said that he found a doctor who spoke his language and has been going to him since, which I accept as being evidence that he preferred to use his own language in technical matters. I do not see anything sinister in Mr Spirkoski’s solicitors obtaining the services of an interpreter for the compilation of the necessary legal documentation.
I bear in mind that Mr Spirkoski’s statements of 29 October 2020 and 13 January 2021 were taken by an investigator but even so their contents demonstrated a familiarity with the industry the applicant was working in, and that he was comfortable with business concepts such as limited companies, ABN and GST. Given that he had been working in the industry for 20 years or so, and that he had been running his own company since 2017, a facility with spoken English is unsurprising.

Control

At the time of his injury, the applicant was subject to the usual control exercised by an employer over an employee. He was under supervision, and required to work set hours. These assertions were not challenged.

Credibility

Language

It is apparent why Mr Spirkoski sought to distance himself from the two statements he made to the investigators of 29 October 2020 and 13 January 2021. His disclaimer that those statements should be viewed with caution because he had difficulty with the English language I view with a great deal of hesitancy. As indicated when discussing the indicium of language, I am satisfied that Mr Spirkoski had a sufficient familiarity with spoken English to make an accurate statement to the investigator. The inconsistencies between those statements and that of 1 October 2021 cannot be ascribed to language difficulties.
Mr Spirkoski’s allegation that his English was “very poor” and that he “did not have the benefit of an interpreter” was not directed to any particular part of either statement that he made to the investigator.

Contract formation

In his statement of 29 October 2020 the applicant’s description of how he obtained the work was broadly consistent with that given by the respondent witnesses. He described that after looking through his phone trying to find contacts to get some work he had telephoned Mr Meitanis.
Mr Meitanis confirmed that account, saying that he had never met or known of Mr Spirkoski prior to the phone call, which in context I assume was a rebuttal to Mr Spirkoski’s assertion that he had had Mr Meitanis’s phone number for about 10 years. Mr Spirkoski explained that he knew Mr Meitanis through the building trade and other people that had worked for him, so it may be that Mr Spirkoski was saying that he knew Mr Meitanis by his reputation.
The applicant’s account of his conversation with Mr Meitanis was broadly consistent, although whilst he said that Mr Meitanis offered him a job in the first telephone conversation, Mr Meitanis said that the job offer followed a return call from him after he had made some enquiries. This inconsistency is of no moment, and is the sort of inconsistency one would expect from time to time in statements that were recalling events witnessed by different people.
Neither Mr Meitanis nor Mr Saaib mentioned the word “foreman,” but agreed that they “needed to push” on a project in Penrith. Mr Meitanis explained that under those circumstances, he would take on independent contractors to complete the work on time.
Be that as it may, it was common ground that Mr Spirkoski was engaged to work as a bricklayer. However whether or not a position as foreman was discussed is not relevant as an indicium as to the nature of the contract. A foreman, as much as a bricklayer, can be either an independent contractor or an employee.

Payment arrangements

There was, however, an inconsistency between the accounts of what was said at the café that does require further consideration. In his statement of 29 October 2020 the applicant said that there was “no discussion” about his contracting to the insured through his ABN. Mr Spirkoski said that he “explained to George that I was running my own Company and I knew how to be a foreman on the job.” Mr Saaib then told him to work as a bricklayer for two to three weeks and Mr Spirkoski might be retained as foreman on a forthcoming job.
In his statement of 1 October 2021 Mr Spirkoski said that his discussions were with Mr Meitanis only and it was Mr Meitanis who told him to go to the worksite. I do not regard that misstatement as being anything more than carelessness, but the applicant’s statements that the arrangement was never that his company would be a contractor needs to be examined in the light of the evidence by Mr Saaib.
Mr Saaib’s version of the meeting was that Mr Spirkoski wished to work for a brick laying company, as that was less stressful than working for builders. Mr Spirkoski had his own company, his own men and had been running his own business for a long time. This is consistent with Mr Spirkoski’s account in his first statement. Mr Saaib said that Mr Spirkoski wished to talk about pay, but Mr Saaib said in effect that pay was not his concern, and some-one would speak to him about it.
It is thus apparent that although Mr Spirkoski had asked about pay, he did not discover the payment arrangements until he commenced the following day, and spoke to “Fotis” and “Bill”. The applicant did not say what his purpose was in asking to speak about pay to Mr Saaib. It may have related to the hourly rate, or it may have related to the method of payment. At that point in time the objective indicia pointed to a contract of service – the applicant was under the control of the supervisor “Fotis” and the “Head Foreman Bill,” who were both presumably employees of Plumb Ltd, and he was working set hours for an hourly rate.
However the pay arrangements that were eventually made indicated a mutually agreed and unambiguous contrary intention. I have already referred to the email sent by Mr Spirkoski on 24 September 2020. In his statement of 1 October 2021 he made no explanation of how those arrangements could be interpreted as evidence of an ordinary employer/employee relationship, nor did he seek to distance himself from the implication inherent in supplying those details - that he was willingly entering a contract of services. Again, although he made a general disclaimer on account of his alleged language difficulty, he did not suggest that he did not understand what he was doing when he supplied those details.

GST

The remuneration package that was agreed included an additional hourly rate to cover Mr Spirkoski’s liability to pay GST. As Indicated, that arrangement was not explained in the evidence, but Mr Meitanis stated that Mr Spirkoski was being paid additional money to reflect his status as an independent contractor, and the payment of additional monies to cover GST liability was an indicium that the contract was one of services. I acknowledge that Mr Meitanis said the “extra money” was for insurance costs, but I think that unlikely. He was more probably referring to the additional hourly rate for GST.

Insurance

Mr Meitanis’ stated on 5 November 2020 that he had contacted Mr Spirkoski to get a copy of his insurance details, but had been told that Mr Spirkoski had left them at home and would email them, which he never did. I have no reason not to accept Mr Meitanis’ evidence in any event, but I note no answer was made by Mr Spirkoski in any of his subsequent statements, which might have been expected in the face of such an allegation. Mr Spirkoski indeed sought to make a virtue out of his insurance position by conceding that his company insurances had expired in August 2020, which was why he thought he was being hired as an employee. I have reservations about that assertion in view of his actions in regard to the payment arrangements, and in view of his failure to respond to Mr Meitanis’ accusation. A request for insurance details and a promise to supply them are clear indications that it had been mutually agreed that the applicant was being retained as an independent contractor.

I would note in passing that some more diligence on behalf of management in substantiating the applicant’s insurance position might have been useful.

Clothing

Similarly, I do not accept the applicant’s evidence that he could not wear a Plumb Ltd shirt because none was available that fitted him. That was not what he said in his statement of 13 January 2021, where he simply said he wore his own clothes. Mr Meitanis stated he had “hundreds of shirts in the office.” It is logically consistent that Plumb Ltd would carry a number of shirts for its employees, as in other respects the organisation was well set up as I have indicated, and it is more probable that Mr Spirkoski wore his own company clothing. In the light of the many other inconsistencies in his evidence, I do not accept his contention as to why he did not wear a company shirt.

Tools

Similarly, the applicant’s evidence regarding the use of tools was inconsistent. Whilst in his statement of 1 October 2021 he alleged that tools were supplied (except for the trowel, so thoroughly described by counsel), he made no effort to revisit his statement of 13 January 2021. There he alleged that, when he started work he was asked where the tools were, and was told to get his own from his truck by Mr Meitanis when the applicant suggested that he did not need tools.

General comments

Mr Spirkoski’s attempt to distance himself from the arrangements made for payment I had difficulty in accepting. Firstly, Mr Spirkoski said that he was told to ring the office with his bank details, and he also emailed further details in his email of 24 September 2020 to “the office.” He knew that Sub Group was at the same address as Plumb Ltd, and “run by the same people.”
Secondly the amount of money he received was correct, and his ABN number was correctly recited.
Thirdly, there was no mystery as to the subsequent receipt by Mr Spirkoski’s solicitors of the invoice on Sub Group’s letterhead, as Mr Spirkoski said himself in his statement of 20 October 2020 that he was not required to send an invoice. Mr Spirkoski’s attempt to create some issue around that arrangement was the occasion of some forceful submissions from counsel including accusations of fraud and forgery which would have required a finding that would have blackened the reputations of the first and second respondents and their officers. It was an improper argument to make without any more basis than mere speculation. I have no reason to doubt the integrity of those impugned by such allegations. The email of 24 September 2020 shows that Mr Spirkoski supplied the information himself, and it is no small leap of logic to conclude that he did so in order to be paid, as the email was addressed to the Accounts Manager. Moreover, the email constitutes independent contemporaneous documentary support for the accounts of both Mr Meitanis and Mr Saaib as to the system of payment agreed with Mr Spirkoski.
Fourthly, Mr Spirkoski’s attempt to create some doubt about the contractual arrangements by noting that monies were paid into his personal bank account has no substance, as it was Mr Spirkoski himself who nominated the bank account into which monies were to be paid.
Mr Spirkoski clearly authorised the payment by supplying the pay details that were requested. He did not attempt to engage with the question of why he gave those details, nor for what purpose they were to be used if he were just an employee. As indicated, he had been in business on his own testimony for 20 years, and had been operating his own company since 2017, which are facts that militate against any suggestion that he was limited in his understanding of spoken English, and naïve in business experience.

The Notice to Produce

With regard to the evidence produced in answer to the respondents’ Notice to Produce, the transactions are not self-evidently transparent. They rely on unsworn statements of Mr Spirkoski’s friends which themselves do not provide any corroboration for the movement of the monies. From the records produced, it is apparent that there were amounts of cash being deposited and withdrawn by him.
In Sergei Sergienko v AXL Financial Pty Ltd[20] Hammerschlag J was confronted with an action that involved undocumented commercial transactions and the transfer of large sums of cash. He said at [1]:
“1 … A party asserting, and seeking to rely upon, the terms of an alleged, undocumented commercial transaction said to involve the transfer of very large sums of cash, ought not to be taken by surprise when he, she or it fails to persuade the Court of its existence.”
[20] [2021] NSWSC 297.
With respect, the same observations apply in cases such as the present, where the sums of cash involved were not on the scale His Honour was discussing. There was no attempt to produce any receipts or other independent documentary corroboration for the movement of cash money is it was revealed in the bank records. Whilst Mr Spirkoski’s account of his good fortune might well be true, there was no paperwork tendered to substantiate the origin of the $50,005.20 that was deposited in the Carnes Hill branch of the Commonwealth Bank on 8 July 2020, neither was there any paperwork evidencing the withdrawal of $50,000 from the Liverpool Westfield branch on 13 July 2020. Moreover the conduct by Mr Spirkoski in giving the money to his friend raises more questions than it answers. Why did Mr Popovski keep the money for over a year? What did he do with it? What did he do with the remaining funds after he had given the applicant the $22,000? This evidence did not assist the applicant’s credit.

DECISION

For the above reasons I find that the applicant and the second respondent Sub Group entered into a contract for services, and Mr Spirkoski was accordingly not a worker.
For the same reasons Mr Spirkoski was not a deemed worker. The work he was doing was incidental to his business of bricklaying, which he conducted as MKLJ Holdings Pty Ltd.
There is accordingly an award for the respondent.

[2022] NSWPIC 241

25 May 2022