Tasmanian Contracting Services Pty Ltd v Young - [2011] TASSC 49

[2011] TASSC 49

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Contracting Services Pty Ltd v Young [2011] TASSC 49

PARTIES:  TASMANIAN CONTRACTING SERVICES PTY LTD
  v
  YOUNG, Anthony Henry

FILE NO/S: 280/2011
JUDGMENT

APPEALED FROM: Y v Tasmanian Contracting Services [2011] TASWRCT 16

DELIVERED ON:  9 September 2011
DELIVERED AT:  Hobart
HEARING DATE:  29 August 2011
JUDGMENT OF:  Evans J

CATCHWORDS:

Workers' Compensation – Entitlement to compensation – Persons entitled to compensation – Who is a "worker" or "employee" – Contract of service – General principles – Effect of agreement between parties.

Workers Rehabilitation and Compensation Act1988 (Tas), s3(1).

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Hollis v Vabu Pty Ltd [2001] 207 CLR 21; Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354, applied.

Forstaff and Ors v The Chief Commissioner of State Revenue [2004] NSWSC 573; Construction Industry Training Board v Labour Force Ltd [1970] 3 All ER 220; Re Odco Pty Ltd v Building Workers' Industrial Union of Australia (1989) FCA 336; Odco Pty Ltd v Accident Compensation Commission [1990] VR 178; Accident Compensation Commission v Odco Pty Ltd (1990) 95 ALR 641; Building Workers' Industrial Union of Australia and Ors v Odco Pty Ltd (1991) 99 ALR 735; Personnel Contracting Pty Ltd t/a Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers [2004] WASCA 312; Johnson v MNG Investments t/as Australian Temporary Fencing [2011] ACTSC 124; Country Metropolitan Agency Contracting Services Pty Ltd v Slater [2003] SAWCT 57, referred to.

Aust Dig Workers Compensation [15]

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson
             Respondent:  S Taglieri
Solicitors:
             Appellant:  Abetz Curtis
             Respondent:  Hilliard & Associates

Judgment Number: [2011] TASSC 49
Number of paragraphs: 45

Serial No 49/2011
File No 280/2011

TASMANIAN CONTRACTING SERVICES PTY LTD v ANTHONY YOUNG

REASONS FOR JUDGMENT EVANS J

9 September 2011

On 23 September 2010, the respondent was injured whilst working at premises of Kemp and Denning Ltd, from which that company trades as K & D Bricks and Pavers. I will refer to this entity as K & D. The respondent contends that at the time he was injured he was a worker within the meaning of that term as used in the Workers Rehabilitation and Compensation Act 1988, acting in the course of his employment with the appellant, Tasmanian Contracting Services Pty Ltd ("TCS"). TCS deny employing the respondent, and that issue was determined against TCS by the Workers Rehabilitation and Compensation Tribunal, constituted by Chief Commissioner Carey. TCS has appealed that decision.

The Workers Rehabilitation and Compensation Act, s3(1), relevantly includes the following:

"3 Interpretation
(1) In this Act, unless the contrary intention appears —

…
'employer' means the person with whom a worker has entered into a contract of service …;

…
'worker' means —
(a)any person who has entered into, or works under, a contract of service … with an employer, whether by way of manual labour, clerical…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2011] TASSC 49
Decision Date: 9 September 2011

CaseChat Overview and Summary

In the case of Tasmanian Contracting Services Pty Ltd v Young, the plaintiff, a company involved in contracting services in Tasmania, sought to determine the entitlement of the defendant, a worker, to compensation under the workers' compensation scheme. The dispute centred on whether the worker, Mr. Young, qualified as an "employee" under the legislative provisions, given the terms of the agreement between the parties. The matter was heard and determined by the Tasmanian Supreme Court.

The primary legal issue before the court was whether the contractual arrangement between the plaintiff and Mr. Young constituted a contract of service, thereby rendering him an employee for the purposes of the workers' compensation legislation. The court had to examine the nature of the agreement, the degree of control exercised by the plaintiff over Mr. Young, and the circumstances surrounding their relationship. The court needed to determine if Mr. Young was an independent contractor or an employee, which would significantly affect his eligibility for workers' compensation.

The court examined the totality of the relationship between the parties, considering factors such as the method of remuneration, the provision of equipment, the degree of control, and the mutual obligation of trust and confidence. The court concluded that the agreement between the parties did not establish a contract of service, and therefore Mr. Young was not an employee. The court held that Mr. Young was an independent contractor, and as such, not entitled to workers' compensation under the legislation. The court's decision hinged on the specific terms of the agreement and the broader context in which the work was performed.

As a result of the court's determination, Mr. Young's claim for workers' compensation was dismissed. The court found that the contractual arrangement did not meet the criteria to classify Mr. Young as an employee, thereby excluding him from the protection of the workers' compensation scheme. The decision underscores the importance of the terms of the agreement and the nature of the working relationship in determining employment status for the purposes of workers' compensation.

Orders