Wilczak v PT Painting Pty Ltd
[2025] NSWPIC 241
•2 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Wilczak v PT Painting Pty Ltd [2025] NSWPIC 241 |
| APPLICANT: | Jan Wilczak |
| RESPONDENT: | PT Painting Pty Ltd |
| MEMBER: | Mitchell Strachan |
| DATE OF DECISION: | 2 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 was a worker in the employ of the respondent. |
| DETERMINATIONS MADE: | The Personal Injury Commission determines: Findings 1. At the time of his injuries on 17 June 2022 the applicant was a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 in the employ of the respondent. Orders 2. The respondent to pay the applicant weekly compensation as follows: (a) From 17 June 2022 to 15 September 2022 at the rate of $1,379.33 per week in accordance with s 36 of the Workers Compensation Act 1987 (the 1987 Act). (b) From 16 September 2022 to 30 September 2022 at the rate of $1,161.54 per week in accordance with s 37 of the 1987 Act. (c) From 1 October 2022 to 30 March 2023 at the rate of $1,200 per week in accordance with s 37 of the 1987 Act. (d) From 1 April 2023 to 16 June 2023 at the rate of $1,560 per week in accordance with s 37 of the 1987 Act. 3. The respondent to meet the applicant’s reasonably necessary medical expenses in accordance with s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant was engaged in painting activities at a residential address on 17 June 2022 when he fell from a ladder sustaining an injury to his left shoulder for which he subsequently came to surgery.
The proceedings before the Personal Injury Commission (Commission) concern whether at the time of the injury the applicant was working as a worker in the employ of the respondent within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) or whether he was engaged as an independent contractor.
The applicant has argued that he was a deemed worker within the meaning of Schedule 1 of Workers Compensation Act 1987 (the 1987 Act) and as such is only entitled to compensation benefits if he is a worker within the meaning of section 4.
For the following reasons I am satisfied that on 17 June 2022 he was a worker in the employ of the respondent and entitled to compensation benefits in accordance with the Acts.
ISSUES FOR DETERMINATION
During conciliation the applicant withdrew his claim for lump sum compensation and with respect to injury to the cervical spine.
As such, the parties agree that the following issues remain in dispute:
(a) whether the applicant was a worker within the meaning of s 4 of the 1998 Act at the time of his injury.
During the conciliation, agreement was reached between the parties as to the following issues:
(a) the applicant’s Pre-Injury Average Weekly Earnings (PIAWE) is $1,451.93 (subject to indexation); and
(b) if a finding is made in favour of the applicant on the worker issue:
(i)he will be entitled to weekly compensation for a closed period between 17 June 2022 and 16 June 2023 on the basis of total incapacity pursuant to s 36 and 37 of the 1987 Act; and
(ii)he will be entitled to a general order for medical and treatment expenses in accordance with s 60 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was listed for conciliation conference and arbitration hearing before me on
29 May 2025. Mr S Hickey of counsel appeared for the applicant instructed by Mr Romeo. The applicant was in attendance supported by his wife. The Commission was also assisted by a Polish/English interpreter. Mr B Necovski of counsel appeared for the respondent instructed by Ms Kaur. Mr Johnson of the respondent’s insurer was also in attendance during the conciliation however was granted leave to be excused from the arbitration hearing.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; and
(b) Reply and attachments.
FINDINGS AND REASONS
Was the applicant a worker
I accept, as submitted by the respondent, that the applicant carries the onus of establishing that at the time of his injury he was a worker within the meaning of s 4 of the 1998 Act which provides 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)…
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 (although the respondent submitted it was not a contract of employment and the applicant must establish the content of an oral contract).
The applicant gives evidence that he started working for the respondent in about July 2017 and in about 2020 he agreed with Mr Faber, the director of the respondent that he would pay him $35 an hour and he would work eight hours per day Monday to Friday and Saturdays and some Sundays. In infer from the context provided by other parts of the applicant’s statement that this was when work was available for him.
Mr Faber, in his statement dated 6 October 2022 states that the applicant does painting for him “so he works as a painting contractor” and provides him with invoices for payment. He states that there is no contract, which I have taken to mean there is no written contract between the applicant and respondent.
Having regard to the evidence of the applicant and Mr Faber I am satisfied that an oral contract existed between the applicant and respondent whereby the applicant undertook painting work at the request of the respondent and in consideration was paid $35 per hour for that work.
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 several 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), which was referred to at length by the parties in submissions before me, 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 employment relationship.
Control
The applicant gives evidence in his statement of 28 March 2024 that he started working for the respondent in about July 2017 and that when the respondent did not have any work available, he would refer him to some of his friends or acquaintances and he would do work for them.
It is the applicant’s evidence that occasionally Mr Faber would tell him to meet him at a warehouse rented by the respondent initially in Moorebank and subsequently in Smithfield to collect paint or equipment required for a job. Alternatively, Mr Faber would send the applicant a text message, telephone him or speak to him in person as to “where to go and what to do”. Sometimes he would be told that someone at the site would tell him what and where to pain. He stated that Mr Faber would always supervise his work.
Describing the period immediately following his injury, the applicant states that he “took my mobile from my pocket and telephoned Pawel Faber, to tell him what had happened” and “Pawel Faber then telephoned me again. As I was in pain and could not continue with work, Pawel told me to clean up, pack up and go home.
The applicant provides a similar version of events in his earlier statement provided to an investigator dated 29 August 2022.
Mr Pawel Faber, a director with the respondent, also provided a statement to the investigator dated 6 October 2022. When asked if the applicant was responsible for “all aspects of a painting job that you task him with completing” Mr Faber stated “That’s correct, I send him the details of a job and he goes and does it”. He states that the applicant reports to him. He noted that the applicant came to him as a qualified painter. He provided some training to the applicant, presumably on larger jobs, as he notes it was when a Safe Work Method Statement was required.
With respect to the job on 17 June 2022, Mr Faber noted that he sent the applicant details of the job and he went to the job by himself and then at some point in the morning he called him to say that he arm was very sore.
Finally, he states that the applicant only works for him when he has work and when he doesn’t have a suitable job for him he doesn’t come to work and doesn’t get paid.
It is evident from the statement evidence of Mr Faber and the applicant that the applicant is an experienced painter however Mr Faber continued to provide direction to the applicant either by text message, telephone or in person as to where he was to attend for work and what was required of him when he was working. The precise manner in which the work was undertaken was not something that the applicant needed direction on as he was an experienced painter. The applicant however did not have control over when or where the work was undertaken. If he was unavailable, he would not work and would not get paid.
I consider the interaction between the applicant and Mr Faber immediately following the injury demonstrative of the level of control that would be expected in an employment relationship. There is no great variance in the description of the interaction given by the applicant and Mr Faber. The applicant had sustained a significant injury, that is something outside the ordinary scope of his job occurred, and the first thing he did was to call Mr Faber for direction on how to proceed and Mr Faber provided that direction to applicant that if he could not continue working to clean up, pack up and go home. That this direction was given is not disputed by the applicant. If the applicant was responsible to the home owner for the completion of the job, then it is likely he would have taken steps to ensure the job was completed however he did not do this, he called Mr Faber.
The control exercised by Mr Faber over where and when the applicant worked and the manner in which he was to proceed when something unexpected happened weighs in favour of the applicant being a worker rather than independent contractor.
Mode of remuneration
The applicant was renumerated on an hourly basis, being paid $35 an hour. He submitted invoices on a fortnightly basis charging GST and providing an ABN number.
The fact that he was renumerated on an hourly basis based for the hours worked in the preceding fortnight is suggestive of an employment relationship. However the fact that he was charging GST, issuing an invoice and providing an ABN number is weighs in favour of a contracting arrangement.
The earnings are ultimately reflected in the applicant’s tax returns which the respondent took me to.
I find that the mode of renumeration is an equally balanced indicia and does not assist.
The fact that the applicant was at times paid on the basis of invoices issued by his wife for work that the applicant himself had completed is unusual although the applicant’s reasons for doing so could by hypothesised there was no explanation from the applicant as to why this was so. There was no suggestion in the dispute notice issued by the respondent’s insurer that the applicant was in fact employed by his wife at the time of his injury. There is also no evidence that the applicant’s wife herself was undertaking the work or that the applicant was paid by his wife. There is no evidence as to whether the amounts were paid into the same account regardless of the name on the invoice issued. Given the lack of evidence or explanation I make no findings in this regard and it is at most a neutral issue as to whether the applicant was a worker or not.
Provision and maintenance of equipment
The evidence with respect to the provision and maintenance of equipment is contradictory both between Mr Faber and the applicant and between the applicant’s two statements.
In his initial statement to the investigator the applicant stated
“Generally, I was employed by [the respondent] to do the painting, that included buying paint brushes, the tools required to do the job, and completing the job, so the whole spectrum from the beginning to end, this did not include my providing the paint as it was furnished by PT Painting.”
In his subsequent statement the applicant stated
“Pawel Faber, or his company, [the respondent], also had an account with Dulux Stores. When we had to start a job for his company, if Pawel Faber did not have all the required equipment, he would ask me to go to any Dulux store to purchase the required equipment for the painting.
Sometime he would come with me to purchase this equipment. All the equipment was provided and paid for by Pawel Faber or his Company, [the respondent].
This equipment consisted of the paint, paint brushes, paint trays, drop sheets, sandpaper, scrapers, rollers, extension poles for the rollers, turps, thinners, masking tape, paint buckets/pots, gyprock, helmets, safety vests and the link.
Pawel Faber would also provide the ladders which he brought at the worksite.”
Mr Faber however states “He supplies everything, I supply only the paint, he supplies the tools and his own ladders and everything, yeah”.
There is no dispute that the respondent provided the paint.
I do not consider that the applicant’s two statements are necessarily contradictory. When he says in his first statement, that he did everything, including purchasing paint brushes and tools he does not state that he himself paid for these. In his second statement, which is more detailed on the issue, he explains that he would indeed go to the Dulux store to make the purchases but would make use of the respondent’s Dulux account and in fact signed the account of behalf of the respondent.
The evidence of Mr Faber and the applicant on this issue remains diametrically opposed and I do not have the benefit of any further evidence from Mr Faber.
I prefer the evidence of the applicant, that the respondent was responsible for the provision of materials, over that of Mr Faber, for the following reasons.
Firstly, the evidence of the applicant is more detailed. He sets out the extent of the material that would be required including tools such as scrapers, rollers, extension poles as well as more consumable items such as paint brushes, sandpaper turps, thinners, masking tape and gyprock. He also explains the process why which these items were acquired; either obtained from the respondent on earlier jobs, collected from the respondent’s warehouse, provided by the respondent or purchased by the applicant on the respondent’s Dulux account.
Secondly, having regard to the applicant’s invoices in evidence, there is no suggestion that the costs of these items, particularly the consumable items, were on charged to the respondent.
Thirdly, as discussed in MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482 at [489], as a specialised tribunal, the Commission is entitled to draw inferences from material before it, particularly with respect to matters of pay. It is not disputed that the applicant was paid an hourly rate of $35 per hour for the hours worked, regardless of the work performed. Having regard to rates generally payable to contractors, it is implausible that such a rate was intended to also provide for the reimbursement of consumable materials.
In terms of tools such as ladders and drop sheets, the applicant having worked for the respondent since 2017, likely developed a collection of these from the respondent or other sources, that Mr Faber saw as now being provided by the applicant and the applicant seeing as having been originally provided by the respondent and that when something additional was required, on the applicant’s evidence he would obtain this from the Dulux store on the respondent’s account.
Having made these findings on the available evidence, the manner in which I have found paint, materials and tools were provided and maintained weights heavily in favour of the applicant being a worker.
The obligation to work
The applicant was offered work on a job-by-job basis and he could accept or reject the work on that basis, although he tended to work for the respondent for considerable periods of time and when work as not available the respondent would refer the applicant to friends of his who might have work available. This is equally consistent with the applicant being a casual employee or an independent contractor but weighs, in my view to a small degree, in favour of a principal and contractor relationship.
The timetable of work and provision for holidays
The applicant was told when and where he was required to work and he had the expectation that he would work for and be paid for eight hours when he did. He was not entitled to any leave. If he did not work he would not be paid. Again, this is consistent with the applicant being both a casual employee or an independent contractor but weighs, in my view to a small degree, in favour of a principal and contractor relationship.
The deduction of income tax
The applicant provided invoices for the work undertaken, including GST and the invoices were paid in full by the respondent. There is no evidence that incomes tax or superannuation were withheld from payments made. It is the applicant’s evidence that the invoices were used to prepare his tax returns. This weighs heavily in favour of a principal and contractor relationship.
The right to delegate work
There is no suggestion that the applicant, if he was unable or did not want to work, that he could delegate the work to someone else. There is evidence that at times the applicant would issue invoices with the details of an ABN held by his wife rather than his own, but there is no evidence nor was there a suggestion during submissions that the applicant’s wife was undertaking the work for which the invoices were issued. This weighs in favour of the applicant being a worker rather than a contractor.
The right to dismiss the person
There was no obligation on the respondent to continue to provide the applicant with work. Again, this is consistent with the applicant being either a worker or a principal and contractor relationship and I do not consider it weighs more favourably for either and it does not assist me.
The right to dictate the hours of work, place of work and the like
The applicant gives evidence that he would work eight hours a day Monday to Saturday but not always on a Saturday and sometimes on a Sunday although as I have noted above this appears to have only been when work was available. Mr Faber would tell him when he had to work and where he had to work. This was not something that the applicant could control. If he did not work, he did not get paid. The fact that the applicant could not dictate in particular his own ours of work weighs in favour of his being a worker rather than an independent contractor.
The right to the exclusive services of the person engaged
It is clear from both evidence of both the applicant and Mr Faber that there was no expectation of either side that the respondent had exclusive right to the services of the applicant.
In his initial statement, the applicant states that “when [Mr Faber] didn’t have enough work for me, he would refer me to other companies, other firms, to do work for them, during the slack period”.
Mr Faber states “[the applicant] only works when I have work for him, that means when I don’t have suitable job for him, he doesn’t come to work and doesn’t get paid, in between jobs for me he works for other people/companies”.
However, on the eight hour days that the applicant is working for the respondent, there is no evidence that he can work for anyone else during that time although this would also be a matter of practicality. This weights, to a limited degree, to the applicant being an independent contractor rather than a worker, although again would also be entirely consistent with him being a casual employee.
Indicia summary
In summary, I have found that the level of control retained by the respondent, the provision of tools and equipment, the lack of a right to delegate work to others weigh in favour of the applicant being a worker and the inability to dictate his own hours of work (other than to reject work altogether) weigh in favour of the applicant being a worker employed under a contract of service. To varying degrees, I have found that the obligation to work, the timetable of work and provision of holidays, the fact that income tax and superannuation were not deducted and GST paid and the lack of exclusivity in his services weigh in favour of the applicant and the respondent having a principal and contractor relationship.
The respondent submitted that if there was a master/servant relationship between the applicant and respondent then there would be an expectation of exclusivity, an agreement as to annual leave, the applicant wouldn’t be operating under and ABN or charging GST. These are all indicia which I have taken into account and analysed above, however they alone do not determine the issue.
It is clearly finely balanced. The respondent submitted that the situation was very similar to that in Malivanek and on that basis I should not be satisfied that the applicant had met his onus in establishing worker. Every situation needs to be determined on its own facts. In Malivanek the Deputy President made it clear that either finding was open to the Arbitrator (as members of the previous Workers Compensation Commission were known) on the evidence. As such, I am not assisted by the factual scenario.
Further, as noted by the Deputy President in Malivanek an argument was not advanced before the Arbitrator that the indicia need to be considered in the context of the relationship and the notion of whether the applicant was working in the business of another rather than in his business as an individual.
It is evident from the evidence of Mr Faber and the applicant that it was Mr Faber who was the entrepreneur, who sold his services to the public and was overall responsible for the work being undertaken, even where he retained the services of an experienced painter in doing so. He retained the control over when the work was to be undertaken and by who. The applicant was not at liberty to delegate the work for others. Mr Faber was responsible for obtaining the work from the public.
There is no evidence that the applicant was involved in quoting for specific jobs nor shared in any windfall if the work could be undertaken more efficiently. He was simply paid an hourly rate in exchange for his labour. This is to say, paraphrasing Windeyer J in Marshall, he is serving the respondent is his business rather than working in a business of the applicant’s own. The shirt advertising the respondent’s business provided to the applicant to wear is a demonstration of this.
For these reasons, and acknowledging it is finely balanced, I am satisfied that the applicant is a worker within the meaning of s 4 of the 1998 Act.
Indexation of PIAWE
The parties agreed that the applicant’s PIAWE at the date of injury was $1,451.93 and that if, as I have done, I found in favour of the applicant with respect to the worker issue, he would be entitled to weekly compensation on the basis of total incapacity for the period claimed.
It follows that the applicant is entitled to 95% of the PIAWE figure for the first 13 weeks in accordance with s 36 of the 1987 Act.
For the balance of the period he is entitled to 80% of the PIAWE. The PIAWE figure must be indexed from 1 April and 1 October each year in accordance with s 82A of the 1987 Act.
The indexation figures published by the State Insurance Regulatory Authority and the relevant calculations are as follows:
(a) 1 October 2022 1.0337 x $1,451.93 = $1,500 (rounded to nearest $10)
(b) 1 April 2023 1.0414 x $1,500 = $1,560 (rounded to nearest $10)
The above is provided by way of explanation for the orders made in the attached Certificate of Determination.
SUMMARY
For the reasons above, I have found that the applicant is a worker for the purpose of
s 4 of the 1998 Act and entitled to compensation benefits in accordance with workers compensation legislation and make the findings and orders set out in the attached Certificate of Determination.
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