Thorpe v Jason Weller Plumbing and Contracting
[2015] TASSC 57
•26 November 2015
[2015] TASSC 57
COURT: SUPREME COURT OF TASMANIA
CITATION: Thorpe v Jason Weller Plumbing & Contracting [2015] TASSC 57
PARTIES: THORPE, Shane Douglas
v
JASON WELLER PLUMBING & CONTRACTING
FILE NO: 531/2014
JUDGMENT
APPEALED FROM: T v Jason Weller Plumbing & Contracting
[2014] TASWRCT 31
DELIVERED ON: 26 November 2015
DELIVERED AT: Launceston
HEARING DATE: 5 November 2015
JUDGMENT OF: Pearce J
CATCHWORDS:
Workers' Compensation – Entitlement to compensation – Persons entitled to compensation – Who is a worker or employee – Contract of service or independent contractor – General principles.
Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354, applied.
Workers Rehabilitation and Compensation Act1988 (Tas), ss 3, 25(1)(a).
Aust Dig Workers' Compensation [15]
Workers' Compensation – Entitlement to compensation – Persons entitled to compensation – Who is a worker or employee – Particular occupations – Contractors generally – Not being work incidental to trade or business carried on in own name or business name.
Workers Rehabilitation and Compensation Act1988 (Tas), s 4B.
Aust Dig Workers' Compensation [25]
REPRESENTATION:
Counsel:
Appellant: S G Wright
Respondent: G Wood
Solicitors:
Appellant: SGW Law
Respondent: Wallace Wilkinson & Webster
Judgment Number: [2015] TASSC 57
Number of paragraphs: 39
Serial No 57/2015
File No 531/2014
SHANE DOUGLAS THORPE
v JASON WELLER PLUMBING & CONTRACTING
REASONS FOR JUDGMENT PEARCE J
26 November 2015
On Saturday 2 February 2013 the appellant, Shane Thorpe, suffered serious spinal injuries when he was struck by the limb of a tree he was felling at a property at Lapoinya in north west Tasmania. He claims to be entitled to benefits under the Workers Compensation and Rehabilitation Act 1988 ("the Act") from the respondent. The Workers Rehabilitation and Compensation Tribunal ("the Tribunal"), constituted by the Chief Commissioner, Mr S Carey, found that the appellant was not entitled to benefits. That was so because the Tribunal was not persuaded that, at the time of his injury, the appellant was a worker under the Act. The Tribunal found that the appellant had not entered into, and was not working under, a contract of service with the respondent. This appeal challenges that finding.
The appeal
There are two grounds of appeal:
"1The learned Chief Commissioner erred in law in determining the Appellant was not a worker within the definition of the Workers Rehabilitation and Compensation Act 1988.
2The learned Chief Commissioner erred in law in failing to consider Section 4B of the Workers Rehabilitation and Compensation Act 1988 and its application to the Applicant, to deem the Applicant, in the circumstances, as a worker."
The claim
The appellant was injured on 2 February 2013. On 6 May 2013 he made a claim for compensation under the Act, s 32(1)(b). The claim was disputed and referred by the appellant to the Tribunal on 1 July 2013. Section 25 is entitled "Liability of employers to compensate workers for injuries" and relevantly provides:
"(1) If in any employment —
(a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; …
(b) …
his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act ...".
It follows that the appellant is entitled to compensation under the Act only if he demonstrates that he is a "worker" who, in any employment, suffered an injury arising out of or in the course of his employment: s 25(1)(a). The term "worker" is defined in s 3 to mean "any person who has entered into, or works under, a contract of service or training contract with an employer, whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied, or is oral or in writing". Before the Tribunal the appellant bore the onus of establishing that he was a "worker" and that, in employment, he suffered an injury "arising out of or in the course of his employment". If the appellant was not, when injured, working under a contract of service with the respondent, then he had no entitlement to compensation.
The respondent to this appeal is described as "Jason Weller Plumbing & Contracting". The entity specified in the claim form as "the employer" is "Jason Weller Plumbing & Contracting". The respondent named in the appellant's referral to the Tribunal is Jason Weller Plumbing & Contracting. Throughout the hearing the appellant gave evidence of "working with" Jason Weller. There is no evidence that Mr Weller personally conducted business under that name. He gave evidence that he conducted business through a company named Jason Weller Plumbing Pty Ltd. On 29 July 2013 he was interviewed by inspectors appointed under the Work Health and Safety Act 2012, and told them that his business was conducted by a company. The question of who was the proper respondent to the referral, or who the contracting party was if the appellant was working under a contract of service, was not raised or determined. It is unnecessary that I determine the issue because the evidence establishes that, if the business was conducted by a company, Mr Weller was its principal and agent with authority to contract on its behalf. For convenience I will refer to Mr Weller personally. As the business name suggests, Mr Weller is a plumber. In addition to plumbing work, Mr Weller also did forestry work.
The appellant and his relationship with Mr Weller
At the time he was injured the appellant was aged 44. He had, for most of his adult life, worked in forest industries. He started out at age 16 as a landing attendant and progressed to operating machinery and then tree felling. He is a very experienced tree feller. He holds training certificates in tree felling and vehicle and machinery operation. At the time he was injured the appellant was a full-time employee of Northrop Logging. His work in that employment included operating machinery, taking care of a log landing, cutting trees and preparing and loading logs. It is not entirely clear from the evidence when he started working for Northrop, but it seems that it was in the year or so before the injury. Prior to that employment he was employed full-time for about 18 months by Caterpillar in Burnie, performing "sandblasting, grinding and all sorts". He is married to Joanne Rawlings with whom he had, in 2013, been in a relationship for about six years. They had young children.
The appellant and Mr Weller were long-time friends. They had been friends for longer than 10 years and were very close. They socialised together and spoke frequently on the phone, sometimes many times in a day. They shared close personal confidences with one another. The appellant said that Mr Weller "knew everything that was going on" in his life. Mr Weller commonly helped the appellant out financially. The appellant gave, as examples, a description of Mr Weller providing money at Christmas or when things were tight, replacing the tyres or spare parts for his vehicles.
Because of his expertise in the bush, the appellant worked from time to time as a self-employed contractor felling trees. He performed such work for a number of persons and companies, including Mr Weller. He gave evidence of having been engaged by Mr Weller to perform tree felling for two periods in about 2010, separated by a short period of work for another business. At this time he held his own "insurance". The arrangements they made were oral. There is no written agreement. Work on this basis concluded when the appellant took up his employment with Caterpillar. However, despite holding full-time employment with Caterpillar and then with Northrop Logging, the appellant continued to do some forestry work with Mr Weller, either during the weekend or sometimes after work. During this period the appellant did not hold "insurance" because he could not afford to pay for it. The evidence I have referred to thus far is largely uncontentious, but there were significant differences between the respective positions of the appellant and Mr Weller about their relationship leading up to and including the day of the injury. The basis on which this work was performed, particularly on 2 February 2013, was the key issue for determination by the Tribunal.
In short summary, the version advanced by the appellant to the Tribunal was as follows. He worked for Mr Weller, whenever he was asked, to "work off" the money that Mr Weller had provided to him when "he bailed me out when I was in trouble". He kept a rough tally of what money he had to "work off", and when there was no debt to be repaid, he was be paid cash at the rate of $25 per hour. He said:
"Well, Jason's always helped me out. He's always – he was always there for me and whenever he needed a faller I'd – and he needed a hand getting trees down – I was always there. It didn't matter what I was doing I'd put it off and I'd go and help".
At the end of 2012 or early 2013, he worked with Mr Weller at West Ridgley, felling and cutting trees. He said they agreed that he would be paid $25 per hour "cash in hand". He made entries of the hours he worked in his diary and received some cash payments, although he was also working off some money which Mr Weller had paid to replace the clutch in his truck. For this work he was entitled to $3,500. He received advances of $1,500 in three separate cash payments of $500, and, with allowance for the clutch payment of $600, a further cash payment of $1,400 on 20 January 2013. After the West Ridgley job "square up", he owed nothing more to Mr Weller; they were "starting afresh again".
Mr Weller had a substantially different version. He said he had last engaged the appellant as a sub-contract tree feller in 2011 and, since then, the work the appellant had done for him was "repaying favours". The appellant worked for him, felling and grading logs at Ridgley, during late December 2012 and January 2013. According to Mr Weller, however, there was no agreement for him to pay cash and no agreement of an hourly rate of $25. The basis of the work was "the same as ever – replacing a debt", but "not for remuneration". At that time the appellant owed him some money for the cost of a clutch Mr Weller had paid for, and also for the loan of his excavator which the appellant used during 2012 to perform some other work. He said he did not make the payments of cash the appellant claims were paid to him, or any other cash payment.
The circumstances of the injury
In early 2013 Mr Weller was engaged by a landowner to fell, remove and heap trees from a property at Lapoinya. He agreed to do the job "for the timber". The work was to be performed on Saturday 2 February 2013.
According to the appellant, it was pre-arranged by phone with Mr Weller that he would help fell the trees on 2 February 2013. He said he knew that the job was coming up. Although he had planned to spend that day with his partner he decided, when Mr Weller told him when the work would be done, to help him. At the time he did not owe Mr Weller any money and was expecting to be paid $25 per hour. He went to the property with his own equipment. His partner and three of their children also went along. When he arrived he was introduced by Mr Weller to the landowner and then directed to the trees that were to be felled.
According to Mr Weller, he planned to perform the work on his own by using his excavator to remove the trees. He had not seen the appellant for some weeks but he had spoken to the appellant on the phone, as they often did, and the appellant knew what his plans were. He said that "he pretty well knew where I was every day, the same as I knew where he was every day". However he was not expecting the appellant to work with him at Lapoinya, although he might "pop out and say g'day". He said that because of their close and friendly relationship it was not unusual for either of them to go to some trouble to "catch up" with the other. He said that when the appellant "turned up" at the property he was not surprised. He said that the appellant asked, "what trees am I taking?" The appellant drove to the trees. There was some dispute about whether he was out of Mr Weller's sight, but the dispute is of no present significance. Mr Weller heard the appellant's chainsaw start up. Mr Weller agreed that he did not stop the appellant from working and would not have declined his offer of help.
The appellant started work. He commenced cutting the first tree. After putting some cuts in the base it fell unexpectedly and struck him. He suffered serious spinal injuries.
The Tribunal's findings
It was first necessary for the Tribunal to make findings about the primary facts. After a review of all of the evidence, the Chief Commissioner accepted the evidence of Mr Weller that "there was no arrangement for the worker to come and assist him on that job". In his reasons the Chief Commissioner made a number of comments and findings about the evidence which led him to that conclusion. The Chief Commissioner:
· did not accept the evidence of the appellant that arrangements were made with Mr Weller for the appellant to attend the property at Lapoinya;
· found the evidence that the appellant had planned to attend a truck show with his wife and children on 2 February 2013, a Saturday, and the evidence that his wife and children accompanied him to the Lapoinya property, was inconsistent with an arrangement with Mr Weller that the appellant work with him on that day;
· found the appellant's limited advance knowledge of the work required to be performed as tending against a plan to assist Mr Weller;
· accepted the evidence of Mr Weller that he was not aware of the appellant's intention to come to the Lapoinya property, and that he intended to, and was capable of, performing the work alone;
· accepted the evidence of Mr Weller that once the appellant arrived at Lapoinya and started to work, Mr Weller acquiesced on the likely basis that, in return, a notional amount could be brought into the account if the appellant required future financial assistance;
· found that the appellant told staff at the hospital that his was not a work injury, and that he was "helping a friend out" at the time of the accident;
· did not accept the applicant's evidence that the comment was made at the request of Mr Weller to conceal a lack of insurance;
· doubted the reliability of the evidence of the appellant about the diary records he made of the hours he worked at Ridgley.
Having made those findings, the Tribunal then made further findings about the nature of the relationship between the appellant and Mr Weller. The Chief Commissioner found that:
"… any work that was done would have been either in the form of unpaid help or, at best, help provided upon a contingent value being set for any possible future occasion when the worker might seek financial assistance from Mr Weller. The arrangement on this day does not establish an employer/worker relationship. There were no contractual details settled between the parties."
The Chief Commissioner concluded that he was "unable to determine that any arrangement had been made between the parties for work to be performed on this day". Having made that finding, the Chief Commissioner nevertheless went on to make comments and findings about the relationship between the two men. He reviewed all of the evidence and concluded that the relationship did not bear the hallmarks of a contract of service. He found:
· tree felling is a specialist trade and the appellant was a highly experienced tree feller;
· Mr Weller gave no instructions to the appellant as to the work he was to do, although he identified the trees which were to be removed;
· Mr Weller exercised no control over, and gave no direction about, the manner in which the trees were to be removed. The manner in which the trees were to be felled was for the decision of the appellant, and he was not subject to the control of Mr Weller;
· the appellant provided his own equipment, safety equipment, fuel and lubricants;
· the appellant was free to come and go as he wished and was not subject to the direction of Mr Weller;
· Mr Weller had no right to discipline the appellant;
· there was no discussion between the two men about remuneration for work, and the appellant "merely assumed" a monetary value;
· The appellant had no expectation of an entitlement to leave or superannuation.
The nature of the appeal
The right of appeal to this Court from a decision of the Tribunal derives from the Act, s 63. It is confined to an appeal "in point of law". In an appeal under this provision, this Court may not interfere with factual findings by the Tribunal on a review of the evidence, until the decision is shown to have been vitiated by error of law: Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12 per Cox CJ at [19].
The question of whether an error of law was demonstrated in a finding that a person was not a "worker" under the Act was discussed by the Full Court in Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354. The Full Court treated the question as of the type referred to in The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126, in which Jordan CJ said, at 138:
"... if the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law".
As to the nature of such an appeal, in Launceston City Council v Tasmanian Water and Sewerage Corporation Pty Ltd [2013] TASSC 71, Porter J explained at [27]:
"When there is an issue of whether a thing falls within the description of a word or phrase in a statute, a question of law is shown if, on the facts found, only one conclusion is open; if different conclusions are reasonably possible, the determination of the correct conclusion only involves a question of fact: Attorney-General (Tas) v Cameron (2007) 152 LGERA 45 per Blow J (as he then was) at 65 [71] and the cases cited. On that basis, the question is whether the conclusion was one that no tribunal, acting judicially and properly instructed as to the relevant law, could have reached: Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354 per Crawford J (as he then was) at 363 –364 [22] – [23], per Blow J at 381 [69] – [70]."
I agree with his Honour's approach. It accords with the decision of the Full Court in Protective Security Pty Ltd v Bedelph.
Ground 1
This ground asserts that the learned Chief Commissioner erred in law in determining the appellant was not a worker within the definition of the Act. No specific error is identified. By application of the principles just referred to, this ground requires consideration of two things. Firstly, I must consider whether it was open to the Tribunal to make the findings of fact it did. I must then consider whether, on the facts so found, the conclusion reached by the Tribunal that there was no contract of service was one no tribunal, acting judicially and properly instructed as to the relevant law, could have reached. As to the first aspect, the appellant faces an insurmountable hurdle. The appellant seeks to treat adverse findings of fact as errors of law. Submissions that findings of primary facts are "against the weight of evidence", or "against the evidence", or "unreasonable" must be rejected. The appellant placed reliance on the comments made by Blow J (as he then was) in Protective Security Pty Ltd v Bedelph (above). His Honour, after referring to the passage in The Australian Gas Light Co v The Valuer-General referred to above, said, at 381 [71]:
"In my view that passage should not be taken as indicating that, in deciding whether certain facts are necessarily within or outside a statutory expression, there can never be any place for a value judgment as to whether a particular conclusion is reasonably open."
Later in his reasons his Honour said, at 383 [75]-[77]:
"75 There is ample Australian authority to support the proposition that an assessment of the reasonableness of a conclusion as to facts falling within a statutory expression may be required in order to determine whether a tribunal or court has erred in law in reaching that conclusion. In Hope v Bathurst City Council (1980) 144 CLR 1 at 7, Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) referred to Brutus v Cozens [1973] AC 854 and commented in relation to it:
'The only question raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.'
76 In Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547, Mason JA observed, at 557:
'The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact.'
77 Both of these passages were cited with approval by Gleeson CJ, Gummow and Callinan JJ in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 451."
Based on these passages the appellant submitted that some of the findings of fact made by the Chief Commissioner were unreasonable. For example, the appellant submitted that findings about the appellant's level of prior knowledge about the work, his explanation for the presence of his wife and children, and his explanations for failing to make an earlier claim for compensation, were unreasonable and should not have been made. The submission, with respect, misapprehends the effect of the authorities relied upon. It was for the Tribunal to make findings about primary facts. A challenge to such findings could only be a challenge on a question of fact, not a question of law. On important matters the appellant's evidence was not accepted by the Tribunal. Submissions that the appellant's evidence should have been accepted, or that the Tribunal should have come to a different conclusion as to primary facts, do not raise a point of law. There was, in any event, ample evidence on the basis of which the Chief Commissioner was entitled to make the findings of fact he did.
If, however, the Tribunal reached a conclusion as to whether the facts, as found, fell within a statutory expression, then an error of law is demonstrated if the conclusion is one to which the Tribunal could not reasonably have come. In that assessment there remains room for resort to value judgment and assessment of reasonableness. This leads to the second aspect of this ground. The appellant can only succeed if, by application of the law to the undisputed facts or the facts as found by the Tribunal, the Tribunal's finding was not reasonably open to it. That is, that it was not reasonably open to the Tribunal, on the facts it found, to fail to be satisfied that the appellant had established that he was a "worker" within the meaning of that term in the Act. I am not satisfied that the finding was not reasonably open to the Tribunal. It is tolerably clear from the Chief Commissioner's reasons that the primary reason that the appellant failed before the Tribunal was not because he did not establish that he entered into a contract of service, but because he failed to establish that a contract of any nature came into existence between him and Mr Weller for performance of work being undertaken by him at the time he was injured. That is, that the Tribunal was not satisfied of the existence of a contract.
An intention to enter into a legally binding agreement is a necessary element of formation of a contract: Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424. Whether there is an intention to create legally binding relations is to be determined objectively: Taylor v Johnson (1983) 151 CLR 422. Absent such an intention a contract at law cannot exist. In Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, the High Court said at 105 [25]:
"Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the 'intention to create contractual relations' requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word 'intention' is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties. (Citations omitted)"
Whether in any case there is an intention to create legal relations may depend on other aspects of the law of contract, for example, the existence of any and if so what consideration, whether the terms are sufficiently certain to be enforceable, and whether there are terms sufficient to give the agreement business efficacy. Employment agreements may sometimes result from informal negotiations, and terms may be implied from conduct or industry practice, or by operation of law. However, the Tribunal was not bound to conclude that there was a contract. The Tribunal was entitled to have regard to the undisputed evidence about the close personal relationship between the appellant and Mr Weller and their past exchanged favours. It accepted Mr Weller's evidence that there was no discussion about an hourly payment. It did not accept the appellant's evidence about previous cash payments. It found that there was no request or arrangement for the appellant to attend the work site. It found that "there were no contractual details settled between the parties". The effect of its finding was, although not expressed in these precise terms, that an intention to create legal relations had not been established. I am unable to conclude that the Tribunal's determination that the appellant had not established a contract between him and Mr Weller was not reasonably open to it.
It is very clear that, even if the Tribunal had been satisfied a contract existed, it was not satisfied of a contract of service. The test for establishing whether a contract of service exists was considered by Crawford J (as he then was) in the Full Court in Protective Security Pty Ltd v Bedelph. In a passage agreed with by Blow J, and subsequently applied by Evans J in Tasmanian Contracting Services Pty Ltd v Young [2011] TASSC 49, Crawford J said:
"A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former is entitled to exercise over the latter, not merely in regard to what the latter will do, but also in regard to how it is to be done. But the existence of control, whilst significant, is not the sole criterion by which to gauge the matter. It is merely one of a number of indicia. '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 of holidays, the deduction of income tax and the delegation of work by the putative employee'. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24. It is the totality of the relationship between the parties which must be considered. Op cit at 29. Criteria '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 of him by 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 the 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.' Op cit at 36–37. However, having regard to a variety of criteria 'is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances.' Op cit at 35. '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.' Op cit at 37."
The Tribunal was required to take into account the facts of the case before it. In my view there was very little to indicate that any contract between the appellant and Mr Weller was a contract of service. When asked to identify the factors which compelled the conclusion that the appellant was working as an employee, counsel for the appellant referred to the agreement for payment of remuneration, the records kept by the appellant of the hours he had previously worked, his performance of work on prior occasions, and the level of skill he had as a tree feller. None of these factors, even if established, support his contention. As to the first, the Tribunal found no agreement for remuneration had been reached. If that is wrong, an agreement of an hourly rate to be paid in cash, without deduction for income tax, does not strongly suggest an employment relationship. Reference to performance of work on prior occasions does not suggest a contract of service unless it was established that the performance of that earlier work was under a contract of service. The Tribunal made specific findings to the contrary and the evidence supported that conclusion. The keeping of records of hours suggests nothing one way or another. The appellant's degree of skill as a tree feller was not a necessary indication of an employment relationship. Counsel for the appellant submitted that considerations of direction and control are not factors in the tree felling industry because of the skilled nature of the work. I do not accept that submission. Tree fellers can be either employees or independent contractors, depending on the totality of the relationship with the person by whom he or she is engaged. In this case, in the absence of other factors suggesting a relationship of employment, the lack of control exercised and exercisable by Mr Weller over what work was to be done, and how it was to be done, remained a very significant factor.
There were many factors arising from the undisputed facts and the facts found by the Tribunal which suggested that any contract was not a contract of service. The Tribunal specifically identified some of them. In my view, an examination of the totality of the relationship between the appellant and Mr Weller overwhelmingly suggested that there was no contract of service. The appellant could come and go as he pleased. He did work for Mr Weller as and when he could outside the hours of his full-time employment with another company. He was not subject to Mr Weller's direction. He was a skilled and experienced tree feller and Mr Weller did not exercise, nor did he have power to exercise, control over what work the appellant did or how he did it. He mostly supplied and used his own transport and equipment, and only used Mr Weller's equipment when he saw fit.
I am not satisfied that the evidence necessitated a conclusion that the appellant had entered into a contract of service with Mr Weller. To the contrary, I consider that the evidence strongly supported the opposite conclusion. The Tribunal's determination was one which was reasonably open to it. This ground must fail.
Ground 2
This ground asserts that the learned Chief Commissioner "erred in law in failing to consider Section 4B of the Act and its application to the Applicant, to deem the Applicant, in the circumstances, as a worker." In his closing submission to the Tribunal, counsel for the appellant said, "there's no evidence in regards to … invoices, notwithstanding that … Mr Thorpe has an ABN number, he wasn't operating on his own business". He then submitted that, "in those circumstances" resort could be had to the Act, s 4B, "to find that is the determination of a worker" and:
"You can accept that despite what was the previous arrangement acknowledged of Mr Weller, that he advised Mr Weller in the circumstances back in 2011 that he had no insurance, you can accept that in this position was going to exceed the work of $100 in value and you can accept that he was not, at that relevant time, despite the existence of and ABN, operating as a contractor in his own name under a business or firm name [sic]".
There is, with respect, a lack of clarity in the submission about the application of s 4B and how in may operate in this case. The Tribunal did not make reference to the submission, or the possible operation of s 4B, in its reasons. By this ground, the appellant contends that it was an error to fail to consider the application of the provision. The ground impliedly contends both an error by failing to consider the provision, and error in that the provision should have been taken by the Tribunal to deem the applicant to be a worker under the Act. Both contentions must be rejected.
Section 4B is entitled "Contractors" and provides:
"(1) Subject to subsection (2), where a person makes a contract with a contractor to perform work exceeding $100 in value that is not 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, and the contractor does not sublet the contract or employ any worker, the contractor is taken to be a worker employed by the person making the contract.
(2) If a contractor to whom subsection (1) applies takes out his or her own personal accident insurance, the contractor is taken not to be a worker for the period during which that insurance remains valid.
(3) If a contractor takes out his or her own personal accident insurance, the contractor is to provide the person with whom the contract is made with evidence of the contractor's insurance.
(4) If a contractor does not take out his or her own personal accident insurance, he or she is to advise the person with whom the contract is made that the contractor has not taken out such insurance."
The amendment to the Act inserting s 4B came into operation on 1 July 2001. It follows the 1998 Joint Select Committee of Inquiry into the Workers Compensation System. I confess to some difficulty in understanding its meaning, scope and operation. Its terms indicate that in some circumstances a contractor is "taken to be a worker" unless the contractor "takes out his own personal accident insurance". The term "contractor" is not defined in the Act. The consequence of a contractor not taking out personal accident insurance, but not advising the person with whom the contract is made is not made clear. The Minister's second reading speech reads, in part:
"The rapidly changing nature of employment relationships has made it difficult to clearly define who is covered by the legislation. Most States extend cover to unincorporated contractors. The bill follows this approach but provides a mechanism for a contractor deemed by the Act to be a worker, to elect to be excluded by taking out his own personal accident cover."
Why a person deemed to be a worker would "elect" to be excluded at the expense of taking out personal accident insurance is also not made clear. Presumably the legislation assumes that a person would not engage a contractor who had not taken out such insurance.
In my view s 4B of the Act was not material and the Tribunal did not err by not expressly dealing with it. In any event, the reasons for rejecting the submission are apparent from the reasons the Tribunal gave. The application of s 4B depends upon establishing a "contract". The Tribunal found that there was no contract. It follows that s 4B could have no operation. For reasons I have already given, the finding was not an error in point of law. Moreover, it was for the appellant to bring himself within the terms of s 4B. There was no evidence from which it could reasonably be found that the work being done by the appellant was not work incidental to a trade or business regularly carried on by him in his own name. Tree felling was his particular skill and there was evidence he contracted for others during the relevant period. This ground fails.
Result and orders
Both grounds of appeal fail. The appeal is dismissed.
12
1