Tsakiris v Active Pools and Spas Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tsakiris v Active Pools and Spas Pty Ltd [2025] NSWPIC 243
APPLICANT:	Jordan Tsakiris
RESPONDENT:	Active Pools and Spas Pty Ltd
MEMBER:	Mitchell Strachan
DATE OF DECISION:	3 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether applicant was a worker; considered and applied Stevens v Brodribb Sawmilling Co Pty Ltd, Malivanek v Ring Group Pty Ltd, and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3); indicia of employment to be considered within context of overall relationship between the parties; Held – applicant failed to discharge onus in establishing he was a worker in the employ of the respondent.
DETERMINATIONS MADE:	The Commission determines: Findings 1. The applicant has not discharged his onus in establishing he was a worker, employed under a contract of service, at the time of his injuries on 18 January 2024. Orders 2. All additional documents filed by the parties are introduced into the proceedings. 3. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained significant injuries on 18 January 2024 when his skin became contaminated with concrete while cutting and shaping a pool on behalf of the respondent.
The dispute concerns whether the applicant was engaged by the respondent as an employee and thus working under a contract of service or was a contractor working under a contract for service.

ISSUES FOR DETERMINATION

The parties agree the only issue requiring determination is whether the applicant was a worker when undertaking activities with the respondent on 18 January 2024.
The applicant did not argue before the Personal Injury Commission (Commission) that he was a deemed worker in accordance with schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Further it was agreed, that if the applicant succeeded on the issue of worker, he would be entitled to an award for weekly compensation and medical expenses as claimed in the application with the claim for lump sum compensation to be ultimately referred to a Medical Assessor.
I am grateful to the parties for limiting the issues requiring determination to the real issues in dispute between them.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing before me on
19 May 2025 by MS Teams. Mr James McEnaney of counsel appeared for the applicant instructed by Mr Kasturi. The applicant was in attendance. Mr Stiles of counsel appeared for the respondent instructed by Ms Chaplin. Mr Say of the respondent’s insurer was also in attendance.
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:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attachments;
(c)    Application to Lodge Additional Documents filed by the respondent dated
1 April 2025;
(d)    Application to Lodge Additional Documents filed by the applicant dated
14 May 2025, and
(e)    Application to Lodge Additional Documents filed by the respondent dated
14 May 2025.
No objection was taken by either party with respect to any of the additional documents. The additional documents are brief and assist in determination of the factual issues in dispute between the parties. I am satisfied that it is appropriate the additional documents be introduced into the proceedings.

FINDINGS AND REASONS

Was the applicant a worker

Evidentiary burden

The applicant has submitted that caution should be taken in placing any weight on the evidence of Mr Cutugno and referred to the decision of Lord Mansfield in Blatch v Archer (1774), 1 Cowp. 63, 98 E.R. 969, submitting that the respondent was in a stronger position to put evidence before the Commission and the evidence needed to be weighed on that basis.
The applicant submitted that the respondent’s evidence was weak with respect to principal elements and asked that adverse inferences be drawn about matters to which the respondent’s evidence does not go to including emails and accounting records that were not produced and witnesses who might have been able to assist but from whom statements have not been put before the Commission.
It is not controversial that the statement of Mr Cutugno is not in a traditional form and while it is clearly the evidence of Mr Cutugno on behalf of the respondent it is at times written in the third person and difficult to follow. Having regard to the fact the traditional rules of evidence do not apply in proceedings before the Commission, I am satisfied that it is of sufficient probative value to assist in determining the dispute, however I have approached it with caution and I have been mindful of where the evidence of the applicant and Mr Cutugno diverge and the respondent may have been in a position to provide documentary evidence to clarify or corroborate a particular statement.
However, this does not derogate from the position that it is the applicant, through his own evidence, who carries the onus in establishing an entitlement to compensation, including that he was a worker within the meaning of s 4 of the 1998 Act.

Worker

Section 4 of the 1998 Act defines “worker” as:
“‘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)…”
It is implicit in the definition of worker that I must be satisfied that the applicant and the respondent entered into a contract. Neither party submitted that I would not be so satisfied. The applicant gave evidence as to his interaction with Blake Long whereby he was asked to assist with a concrete spray and the applicant accepted. While the precise terms are not disclosed in the evidence and may not have been discussed, the applicant was clearly not undertaking the work with no expectation of payment.
The applicant submits that on 18 January 2024 he was working as a skilled labourer under a contract of service with the respondent and as such was an employee of the respondent and entitled to compensation benefits as provided in s 9(1) of the 1987 Act.
The respondent submits that on 18 January 2024, the applicant was engaged as a contractor to provide labour to the respondent during a concrete spray for a new residential pool and that he was not employed under a contract of service but rather a contract for service.
Consideration of whether the applicant was working under a contract of service such that he was a worker or a contract for service such that he was an independent contractor requires a multifactorial consideration of the available factual evidence.
The principal consideration is the employer’s right of control however this is not determinative and particularly in the context of more modern employment relationships, courts have preferred looking at a number of criteria. Ipp JA said in Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8:
“The control test remains important and it is appropriate, in the first instance, to have regard to it (albeit that it is by no means conclusive) because, as Wilson and Dawson JJ said in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 (at 36):
‘[I]t remains the surest guide to whether a person is contracting independently or serving as an employee.’” (at [54])
In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens v Brodribb) the High Court held that the control exercised over a purported worker while significant was not the only indicia of employment which also included consideration of:
(a)    the mode of remuneration;
(b)    the provision and maintenance of equipment;
(c)    the obligation to work;
(d)    the timetable of work and provision for holidays;
(e)    the deduction of income tax;
(f)    the right to delegate work;
(g)    the right to dismiss the person;
(h)    the right to dictate the hours of work, place of work and the like, and
(i)    the right to the exclusive services of the person engaged.
However, it remains a multifactorial exercising in balancing the relevant and competing indica.
In Langford, McColl JA observed as follows:
“The second observation concerns the distinction between an employee and an independent contractor. That distinction has been said to be ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s business, and a person who carries on a trade or business of his own’: Marshall v Whittaker’s Building Supply Co [1963] HCA 49; (1963) 109 CLR 210 at 217 per Windeyer J. Although this statement was criticised by Wilson and Dawson JJ in Stevens (at 34) as ‘posing the ultimate question in a different way rather than offering a definition which could be applied for the purpose of providing an answer’, it was referred to with approval by the majority in Hollis (at 38 – 39 [39] – [40] [Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 (Hollis)]).”
In Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4; 15 DDCR 146 (Malivanek), Roche DP referred to observations made by Buchanan J (Lander and Robertson JJ agreeing) in ACE Insurance Ltd v Trifunovski [2013] FCAFC 3 at [93] that in Hollis “a real emphasis was authoritatively placed on the notion of working in the business of another, rather than in the business of the individual”. Roche DP then went on to say at [182] “This statement attempts to overcome the broad, and often unhelpful and imprecise, “multifactorial” approach developed in Stevens v Brodribb.
In On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366, Bromberg J, having explained that while the majority in Hollis followed a multifactorial approach, stated they also provided “a focal point around which relevant indicia can be examined” and noted at [207]:
“That focal point has been elsewhere expressed as the ‘ultimate question’ posed by the totality approach: Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 at [34] (referred to with approval by Crispin P and Gray J in Yaraka Holdings Pty Ltd v Gilgevic (2006) 149 IR 339 at [303]); and see Sappideen C, O’Grady P and Warburton G, Macken’s Law of Employment, (6th ed, Lawbook Co., 2009), at [2.80]. As Wilson and Dawson J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 observed at 35 ‘the ultimate question’ was posed by Windeyer J in Marshall v Whittaker’s Building Supply Co Ltd (1963) 109 CLR 210 at 217, in a passage which the majority in Hollis strongly endorsed at [40]. The majority in Hollis (citing Windeyer J) said, the distinction between an employee and an independent contractor is ‘rooted fundamentally’ in the fact that when personal services are provided to another business, an independent contractor provides those services whilst working in and for his or her own business, whereas an employee provides personal services whilst working in the employer’s business: at [40]. Unless the work is being provided by an independent contractor as a representative of that entrepreneur’s own business and not as a manifestation of the business receiving the work, the person providing the work is an employee: Hollis [39], [40], [47], and [57] and see Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at [30]-[32]. The English courts have taken a similar approach. There the ‘entrepreneur test’ seems to be the dominating feature: Selwyn NM, Laws of Employment (2006) Oxford University Press at [2.34].
[208] Simply expressed, the question of whether a person is an independent contractor in relation to the performance of particular work, may be posed and answered as follows:
Viewed as a ‘practical matter’:
(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii)in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?
If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”
When considering and balancing the relevant indica, regard needs to be had to, and the balancing exercise conducted in the context of, the overall relationship.
The factual evidence before the Commission with respect to this discrete issue is limited to:
(a)    two statements from the applicant dated 20 February 2025 and 13 May 2025;
(b)    statement of Andrew Cutugno dated 1 April 2024;
(c)    various invoices prepared by the applicant, and
(d)    a bank statement of the applicant for the period 6 March 2023 to 5 June 2023.

Control

The applicant gives evidence that “I had no idea what the expectations were before I got there. My impression from my communication with [Blake Long] was that I would be helping [the respondent] to complete their job in whatever way they wanted”. He explains that on the day “Andrew [Cutugno] explained the design of the pool and how he wanted to go about the work at hand. He provided me with clear direction on how I was to complete the job”. He details some difficulties with the concrete supplied and then states “Also, throughout the day I was in direct communication with Andrew constantly getting instructions on how he wanted me to do the job to his specifications”.
Mr Cutugno gives evidence that “He assisted with the 1 day help to spray a pool”.
Both the evidence of the applicant and Mr Cutugno is consistent with the applicant “assisting” and working under the direction and control of Mr Cutugno and the respondent.
This level of control is consistent with the applicant working under a contract of service with the respondent and weighs heavily in favour of him being a worker pursuant to s 4 of the 1998 Act however it is not determinative.

The mode of remuneration

From the evidence of the applicant, it does not seem there was any real discussion with respect to the basis upon which he would be paid when he initially discussed the job with Blake Long. The applicant states that at the end of the day Mr Cutugno paid him “$600 cash in hand” and he drove home. He states he was never asked to issue an invoice. He recalled in the further statement that as he was leaving Mr Cutugno called out to him to pay him cash.
Mr Cutugno’s evidence on this issue is that the applicant asked for cash payment on the day and was paid $650 cash and it was logged in the respondent’s accounting software.
He states that the respondent pays a daily rate for the spray set by the contractor who pay their own tax. He notes that no invoice has been sent.
The applicant was critical of this evidence from Mr Cutugno in that it could have been supported by evidence showing the accounting process and documented follow ups for the applicant’s invoice.
I have approached Mr Cutugno’s evidence in this regard with caution however they are largely in agreement that the applicant was paid cash, at the completion of the work. The applicant describes it as cash in hand, which I take to mean no income tax was to be deducted and Mr Cutugno characterises it as a cash payment made to a contractor. I don’t think anything turns on whether the applicant was paid $600 or $650 (noting PIAWE has been agreed by the parties).
The applicant has produced invoices to others to who he provides his services, these are for varying amounts although the amount of $800 appears commonly and I have inferred this would be a usual “day rate” for the applicant (although I note there is a more formal invoice dated 27 February 2025 which records a unit price of $45 which is considerably lower and would appear more consistent with the rate payable to an employed labourer). Noting the applicant’s evidence that the payment to him was “cash in hand” and thus no income tax would be payable by the applicant, a discount for cash in hand payment is a common practice and a day rate of $600 or $650 would therefore be consistent with the applicant’s usual rates when supplying labour as a sole trading independent contractor.
Given the inferences I have made from the available evidence, the evidence of both the applicant and respondent on this issue is lacking. However, the mode of renumeration of the daily rate paid is consistent with a principal and independent contractor relationship and weighs against the applicant being employment under a contract of service.

The provision and maintenance of equipment

It is the applicant’s evidence that he brought a trowel and level to the worksite, tools he describes as items a concreting labourer would be expected to own, and that all other tools he used on the day of his injury were provided by the respondent.
Andrew Cutugno does not provide any evidence on this issue.
I have no basis not to accept the evidence of the applicant that he supplied a trowel and level and no other tools. It is unclear however what other tools he used which he says were supplied by the respondent.
Accepting the applicant supplied the basic tools of his trade, but nothing else, this weighs in favour of the applicant working under a contract of service and being a worker under s 4 of the 1998 Act.

The obligation to work

In his evidence, the applicant details how he was contacted by Blake Long via Facebook Messenger. Mr Long was employed by the respondent but he and the applicant were known to each other as they were previously together. The applicant states that Mr Long was aware of his experience. Mr Long told the applicant that the respondent had a big job and they could use his assistance. They exchanged messages and the applicant agreed to assist.
Mr Long contacted the applicant about a week before the job and told him the specifics.
It is clear from the evidence of the applicant that at no point was he obligated to undertake the work that had been proposed for him to assist with.
This is also consistent with the evidence of Mr Cutugno who states “Our subcontractors can leave at any time, they are not employed by active pools so we cannot and do not dictate their time etc.”
This arrangement is consistent with a contractor and principal relationship and weighs against the applicant being a worker employed under a contract of service.

The timetable of work and provision for holidays

The applicant worked with the respondent for one day. There is no suggestion in the evidence that there was any provision of any type of leave. It is the applicant’s evidence that Mr Long confirmed the date of the job a week out and he was asked to “arrive a little early so that I could meet everyone from [the respondent], and we could discuss the job and what work they wanted me to do”. This is consistent with a contractor and principal relationship and weighs against the applicant being a worker employed under a contract of service.

The deduction of income tax

On the applicant’s evidence, he was paid $600 “cash in hand”. It is evident from this that no income tax was deducted. It is Mr Cutungo’s evidence that he paid the applicant $650 cash at his request and processed the payment through the respondent’s accounting system as a contractor payment.

This arrangement is consistent with a contractor and principal relationship and weighs against the applicant being a worker employed under a contract of service.

The right to delegate work

The applicant gives evidence that Mr Long approached him because he knew him professionally and that knew of his skills and experience. This suggests that Mr Long was asking for the applicant himself to assist and I infer from this that it would be unlikely that the applicant would have been able to delegate the work to someone else.
This is consistent with an employment arrangement and weighs in favour of the applicant being employed under a contract of service.

The right to dismiss the person

The applicant was engaged to assist the respondent for a one-day period. Neither the applicant nor Mr Cutugno give evidence that it would be an ongoing arrangement. Ultimately, if part way through the day of work Mr Cutugno decided that the applicant wasn’t suitable then he could ask him to leave to worksite but that did not occur. The indicia does not assist and is a neutral consideration.

The right to dictate the hours of work, place of work and the like

The applicant was engaged by the respondent for one day to assist in spraying concrete as part of the installation of a concrete swimming pool. The nature of the work necessitated the applicant work at the site at the time arranged for the concrete pour. The applicant needed to work from the site at which the work was being conducted. The hours and place at which the applicant worked does not assist greatly however on the applicant’s evidence he was directed at what time he was to arrive at site. This weighs, to a minimal degree, in favour of an employment relationship consistent with a contract of service.

The right to the exclusive services of the person engaged

There is no suggestion that, other than for the day the applicant was engaged by the respondent that there was any expectation that the respondent had an exclusive right to the applicant’s services. The applicant gives evidence that he had an ABN and was working as a sole trader, predominately for another company.
This arrangement is consistent with a contractor and principal relationship and weighs against the applicant being a worker employed under a contract of service.

Indicia summary

In summary, I have found that the level of control exercised by the respondent in the way the work was conducted, the limited need for the applicant to provide his own tools and equipment, his inability to delegate work to other people and to a lesser degree the inability of the applicant to dictate his own hours of work, weigh in favour of the applicant being a worker under s 4 of the 1998 Act.
However, this needs to be balanced against the findings I have made with respect to the mode of the applicant’s remuneration, the lack of obligation to work if he did not want to, timetabling of work and in particular the non-provision of holidays and other leave, taxation arrangements and the clear lack of any right on the part of the respondent to the exclusive use of the applicant’s services.
It is clearly finely balanced however I am not satisfied the applicant, on his own evidence, has discharged his onus of proof. In reaching this finding I have considered and weighed the relevant indicia as discussed above and the evidence of the applicant.
Having discussed his work history including 10 years as an employee of a different company (where he worked with Blake Long) the applicant states:
“I then decided to start working for myself as a sole trader. I have worked for myself since February 2023 and have held an ABN since September 2022. My business is JT Pools and Landscapes.
…
The work I perform for Darren is cutting and shaping pools. The nature of the work is similar to the work I was doing at [earlier employer].”
This is the contextual basis for the relationship between the applicant and the respondent (and Mr Blake as their representative approached the applicant) and the basis upon which the indicia need to be evaluated.
It is evident that the applicant is holding himself out, operating a business as a sole trader, as an experienced pool cutter and shaper. Paraphrasing Windeyer J in Marshall, the applicant is working in a business of his own, and has been since February 2023, rather than solely serving the respondent in its business. It is in this context that I find the applicant has not discharged his onus in establishing he was a worker.

SUMMARY

The applicant has not discharged his onus in establishing he was a worker, employed under a contract of service, at the time of his injuries on 18 January 2024.

[2025] NSWPIC 243

3 June 2025