Youssef v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Youssef v Workers Compensation Nominal Insurer (iCare) & others [2022] NSWPIC 445
APPLICANT:	Salah Said Youssef
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:	Abdul Kader Tozlok Workers Compensation Nominal Insurer Adelson’s Building & Bathroom Renovation Pty Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	8 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to left arm; claim for lump sum pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act); consideration of statements from the applicant, the first respondent and others; medical reports and other treatment records; claim correspondence and factual material; consideration of whether the applicant was a worker as defined in section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); Stevens v Brodribb Sawmilling Co Pty Limited, Digby v Hyspec Construction & Roofing Pty Limited, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited, ZG Operations Australia Pty Limited v Jamsek, Drca v KAB Seating Systems Pty Ltd considered; consideration of whether the applicant was a deemed worker as defined in Clause 2 of schedule 1 to the 1998 Act; consideration of whether there was in existence a contract between the first respondent and the third respondent sufficient to make the third respondent liable for the applicant’s injury pursuant to section 20 of the 1987 Act; Held – the applicant was not a worker when he was injured; the applicant was a deemed worker when he was injured; the applicant sustained a personal injury to his left arm arising out of or in the course of his employment with the first respondent on 6 November 2018 pursuant to section 4(a) of the 1987 Act; the third respondent was liable to pay compensation to the applicant pursuant to section 20 of the 1987 Act; matter remitted to the President for referral to a Medical Assessor in relation to the claim pursuant to section 66 of the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was not a worker (as defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) when he was injured on 6 November 2018. 2. The applicant was a deemed worker (as defined in cl 2 of schedule 1 of the 1998 Act) when he was injured on 6 November 2018. 3. The applicant sustained a personal injury to his left arm arising out of or in the course of his employment with the first respondent on 6 November 2018, pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act). 4. As at 6 November 2018, there was in existence a contract between the first respondent and the third respondent to satisfy s 20 of the 1987 Act. The first respondent was uninsured as at 6 November 2018. The third respondent is therefore liable to pay any compensation to the applicant under the 1987 Act which the third respondent would have been liable to pay if the applicant had been immediately employed by the third respondent when he suffered injury on 6 November 2018. The Commission orders: 1. The matter is remitted to the President for referral to a Medical Assessor for assessment of the applicant’s whole person impairment, as follows: (a) Date of injury: 6 November 2018, and (b) Body systems/parts: Left upper extremity, scarring. 2. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents - including the Application to Resolve a Dispute which was lodged with the Commission on 29 April 2022; (b) the first respondent’s Reply and attached documents; (c) the second respondent’s Reply and attached documents; (d) the third respondent’s Reply, and (e) the second and third respondents’ Application to Admit Late Documents lodged 15 June 2022 and attached documents. 3. Liberty to apply to the Commission is granted to the parties regarding the terms of the referral to the Medical Assessor. The referral to the Medical Assessor is not to occur prior to 10 October.

STATEMENT OF REASONS

BACKGROUND

Salah Said Youssef (the applicant) is 47 years old and alleges that he was employed by Abdul Kader Tozlok (the first respondent) when he sustained an injury to his left arm in the course of that employment on 6 November 2018. On that occasion, he alleges that he sustained a significant lesion to his left elbow area when it was struck by a shattered tile. He alleges that he has not been able to work since.
On 10 January 2019, the applicant completed a Worker’s Injury Claim Form, and on the same date, he completed an icare Uninsured Liabilities Worker Claim Form which was submitted to the Workers Compensation Nominal Insurer (the second respondent) on the basis that the first respondent was not insured as required by the Workers Compensation Act 1987 (the 1987 Act) as at 6 November 2018. The first respondent concedes non-insurance in this regard.
On 24 April 2019, the second respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim on the basis that he was neither a worker (as defined in s 4 of the 1998 Act) nor a deemed worker (as defined in cl 2 of schedule 1 of the 1998 Act).
The applicant subsequently made a claim pursuant to s 66 of the 1987 Act in relation to his whole person impairment as a result of his left arm injury. The second respondent issued a further notice under s 78 of the 1998 Act on 29 June 2021, denying liability for that s 66 claim.
The applicant then made a s 66 claim upon Adelson’s Building & Bathroom Renovations Pty Limited (the third respondent) by letter dated 16 December 2021, on the basis that the third respondent was liable to compensate the applicant pursuant to s 20 of the 1987 Act.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims a lump sum pursuant to s 66 of the 1987 Act from all three respondents. That ARD was amended following a Commission teleconference on
26 April 2022, and an amended ARD was lodged with the Commission on 29 April 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant was a worker (as defined in s 4 of the 1998 Act) when he was injured on 6 November 2018;

(b) if not, whether the applicant was a deemed worker (as defined in cl 2 of schedule 1 of the 1998 Act) when he was injured on 6 November 2018, and

(c) if the answer to (a) or (b) is in the affirmative, whether there was in existence a contract between the first respondent and the third respondent sufficient to make the third respondent liable for the applicant’s injury pursuant to s 20 of the 1987 Act.

All the respondents have confirmed that should the answer to (a) or (b) be found to be in the affirmative, there would be no dispute that the applicant sustained an injury on
6 November 2018, in order to allow his s 66 claim to be referred to medical assessment with the Commission.

PROCEDURE BEFORE THE COMMISSION

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.
A conciliation conference was held in the dispute on 24 June 2022. On that occasion,
Mr Greg Young of counsel appeared for the applicant, instructed by Mr Ko. The applicant was present, as was his wife, and he had the assistance of an Arabic interpreter. Mr Bill Carney of counsel appeared for the first respondent, instructed by Ms Charleston. The first respondent was also present. Mr Tony Baker of counsel appeared for both the second and third respondents, instructed by Mr Dolan. Ms Groth was present representing the insurance interests of the second respondent, and Ms Lawrence was present representing the insurance interests of the third respondent.
The dispute did not resolve during the conciliation conference, and it needed to be determined at an arbitration hearing. Oral submissions were made on behalf of all parties.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents - the applicant proceeded upon the ARD which was lodged with the Commission on 29 April 2022, and there was no objection from the respondents in this regard;
(b)    the first respondent’s Reply (first respondent’s Reply) and attached documents;
(c)    the second respondent’s Reply (second respondent’s Reply) and attached documents;
(d)    the third respondent’s Reply (third respondent’s Reply) - there were no attached documents to this Reply, and
(e)    the second and third respondents’ Application to Admit Late Documents lodged 15 June 2022 (second and third respondents’ AALD) and attached documents.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided four signed statements.
In the first statement which he signed on 19 February 2019 (page 3 of the ARD), he says that he started working for the first respondent in June 2018. He had known the first respondent socially for around 10 years, and it was the first respondent who contacted him to offer him work. He was told that he would work as a labourer/tiler, and he had experience in this field. There was no written contract between him and the first respondent.
He says that he worked for the first respondent at approximately 40 work sites. He was paid $220 per day and was told that the first respondent would be paying the relevant taxation separately. He was paid every second or third week in cash, although the first respondent would advance him monies if he requested it. He asked to be paid by EFT transfer, but the first respondent insisted that he be paid in cash. He did not provide invoices to the first respondent.
He estimates that he worked 25-40 hours per week, starting work each day at 7:30 am and leaving at different times once the work was done. He worked Monday to Friday (or sometimes he would work on a Saturday rather than on a Friday). If there was no work for him, he would stay at home.
He describes the nature of his work as follows:
(a)    the first respondent controlled where he worked – on most days he would meet the first respondent at the first respondent’s home, and the first respondent would drive him to where they were working – he would go to the work site himself however if it was close to his home;
(b)    he never personally found any of the work to be performed by him while he worked for the first respondent;
(c)    he was not subject to any code of conduct while he worked for the first respondent – he was never disciplined by the first respondent;
(d)    he supplied his own safety shoes and vest while working for the first respondent – the vest did not display any logo;
(e)    the first respondent supplied all the necessary tools and equipment for the tiling and grouting;
(f)    the first respondent was with him while they were working – he would follow the directions of the first respondent – “I would not do anything on the work sites unless Mr Tozlok had told me to do it. I had no discretion in my work”;
(g)    he did not give any work that had been given to him by the first respondent to anyone else to do;
(h)    while he worked for the first respondent, he would do the cutting and the grouting of the tiles, but the first respondent or other qualified tilers arranged by the first respondent would lay the tiles;
(i)    he was not responsible for the quality of the work performed;
(j)    no-one reported to him while he worked for the first respondent;
(k)    the first respondent told him that the first respondent possessed workers compensation insurance coverage for him, when he commenced work for the first respondent;
(l)    he did not refuse any work offered to him by the first respondent as he thought that his employment would otherwise be threatened, and
(m)     while he worked for the first respondent, he considered that he “was just the employee” - he says that his “employment was on a continuing basis as long as he had work for me, he told me that I would continue to be employed by him”.
He says that previous to working with the first respondent, he had “worked only as an employee with my previous employers”, and that he “did no jobs on my own”. His normal work over the 10 previous years was employment as a labourer/tiler, although he was not a qualified tiler. He had not obtained any insurance to cover him in his work.
He says that he did not advertise his services, and although he possessed an ABN number, he was not registered for GST.
He says that while he worked with the first respondent, he did not work for anyone else.
He then describes the injury that he sustained on 6 November 2018. The first respondent and himself were working in the bathroom of a house at Oatley. He is unaware as to who owned this house.
He had been using a tile cutter to cut a large tile and was then using pliers to finish the cutting, when the tile shattered, and a piece of it “embedded itself very deeply” into his left elbow. The first respondent and the owner of the house dressed the wound, and he continued working. The wound however continued to bleed, and it needed re—dressing after about an hour. The first respondent then took him to a medical centre, but he was unable to be treated as the centre was so busy. They therefore returned to the work site, where he rested in the first respondent’s car, and later helped the first respondent pack up the car, before the first respondent dropped him off at a different medical centre.
At the medical centre, he was told to go to hospital, and he eventually was admitted to Auburn Hospital, where surgery was performed on his elbow.
In his second statement on page 9 of the ARD (signed on 13 August 2019), the applicant clarifies:
(a)    he worked for the first respondent from about 1 July 2018 to 6 November 2018;
(b)    prior to that, he had been unemployed since about 1 February 2018;
(c)    prior to that, he had been employed by Merheb Wehbe t/as Oasis Tiling from about 2015 to 31 January 2018;
(d)    he had never advertised his services on job seeking websites, and
(e)    he had never used his ABN number.
In his third statement on page 10 of the ARD (signed on 24 November 2020), the applicant clarifies a number of deposits that appear in his joint banking account with his wife (Achwak Youssef) between 7 July 2018 and 12 November 2018. They include deposits transferred from each of their personal savings accounts as well as a deposit which he received for trading in some scrap metal.
The applicant’s fourth statement (page 18 of the ARD) was signed on 18 November 2021, and largely contains commentary on a statement (discussed later) provided by the first respondent and signed by him on 3 November 2021.
Much of the information in the statement repeats information provided in the applicant’s first statement (that the first respondent had taken issue with in his 3 November 2021 statement). However, it is relevant to note:
(a)    the applicant maintains that he worked exclusively for the first respondent between 1 June 2018 and 6 November 2018 – he did not work for anyone else during this period;
(b)    the applicant maintains that in the 4-5 years prior to his accident, whenever he worked for tilers, he worked for them exclusively and not simultaneously with other tilers;
(c)    the applicant advises that his English is not particularly strong and he conversed with the first respondent in Arabic – his English was not good enough to allow him to converse with head contractors – he denies being contacted directly by head contractors or being paid by them directly;
(d)    the applicant maintains that his work with the first respondent was not a rare occurrence or infrequent between 1 June 2018 and 6 November 2018 – while his hours and days varied, he “worked exclusively for Mr Tozlok for 3-4 days per week before the accident”;
(e)    the applicant advises that whenever he worked for the first respondent between
1 June 2018 and 6 November 2018, he was the only person providing assistance;
(f)    the applicant advises that he did not wear a uniform, and that he relied upon the first respondent to provide tools and material, including sponges, squeegies, scrapers, and the tile cutter that he was using at the time of his accident;
(g)    the applicant maintains that it was the decision of the first respondent to pay him in cash, and he maintains that he was paid $220 per day, and not between $180 and $200 per day;
(h)    the applicant denies having discussions with the first respondent about holiday pay or superannuation - he assumed they would be eventually discussed;
(i)    the applicant advises that his ABN was registered for GST;
(j)    the applicant maintains that while the first respondent did not discipline him, “he had the right to exercise control over my work hours, he could decide whether I work on a particular project and judge the quality of my work”;
(k)    the applicant denies having any special skill in grouting, maintaining that grouting was not a specialist trade, and also maintaining that he did both grouting and cutting work for the first respondent;
(l)    the applicant denies having to guarantee or warrant his work, and maintains that the first respondent had to guarantee and warrant that work;
(m)     the applicant denies telling the first respondent that he had his own business insurance, income protection insurance, and workers compensation insurance;
(n)    the applicant denies advertising his services on “Gumtree”, and maintains that he has never operated his own business as his English is poor and he holds no trade qualifications or specialised skills - he has only ever worked as a tiling labourer, and
(o)    the applicant denies having any contact or contract with the third respondent in relation to the work that he was performing on 6 November 2018 - he also denies having any control as to how the tiling was to be performed on that date.
The applicant’s wife has also provided a statement signed on 24 November 2020 (page 15 of the ARD). This statement however does little more than confirm the banking details provided in the applicant’s third statement, which was also signed on 24 November 2020.
The applicant also relies upon three other statements obtained from independent witnesses.
There is a statement from Mohamad Hello signed on 16 November 2020 (page 13 of the ARD).
Mr Hello has known the applicant since 2004. He met the applicant during his work as a tiler, but he is also aware that the applicant worked as a general labourer. He runs his own business as a tiler, and he employed the applicant as a general labourer in about 2016 and 2017. He says:
“When Salah worked for me, he did not work under his ABN and he did not work for anyone else at the time. Salah has never run his own business as a tiler because he does not have all the skills to do tiling by himself. Salah only worked as a helper.”
Mr Hello also knows the first respondent, and is aware that the first respondent is a tiler and runs his own business. He advises that the applicant told him in about July 2018 that the first respondent had employed him as a labourer and was paying him cash in hand. He also advises that he was aware that the applicant was employed by another tiler (Merheb Webhe) in about 2017.
Relevantly, Mr Hello advises:
“The tiling industry in the Western Sydney area is small and we all hear about what is happening with other tilers, which jobs they are doing and who they are hiring.”

There is a statement from Bassam Breis signed on 22 July 2021 (page 16 of the ARD).
Mr Breis advises that he has known the applicant since about 2015. He worked with the applicant for Merheb Wehbe t/as Oasis Tiling in about 2017. He was an employee of that business, being paid a weekly wage, and the applicant was also an employee of that business, being paid a weekly wage. The applicant had informed him that he obtained his employment with the business through a job agency, Ability Options Blacktown.
Mr Breis also advises that in about 2017, he worked as an employee, being paid a weekly wage, by the first respondent, when he took days off from his employment with Oasis Tiling.
There is a statement from Aref Ahmad Badra signed on 26 July 2021 (page 17 of the ARD).
Mr Badra has known the applicant since 2011 and recalls being told by him that he had started working for the first respondent in about July 2018. He has always known the applicant to work as an employee and not as a contractor. He specifically remembers a conversation that he had with the applicant prior to 6 November 2018 in which the applicant advised him that he did not wish to obtain contracts for himself as he did not want the responsibility and didn’t know enough English.
The ARD also contains the following evidence:
(a)    various claim forms submitted by or on behalf of the applicant;
(b)    various bank statements of the applicant’s;
(c)    the applicant’s job placement file with Ability Options Blacktown;
(d)    a medication history of the applicant’s, and
(e)    medical evidence in relation to the injury suffered by the applicant on
6 November 2018, including medico-legal reports from Associate Professor Meares.
I will refer to these documents if I am specifically referred to them during the parties’ submissions. It is clear however from the medical evidence that the applicant sustained a significant injury on 6 November 2018, which does not seem to be disputed by any of the parties. The level of his whole person impairment as a result of that injury will be a matter for a Medical Assessor if I find him to have either been a worker or a deemed worker of the first respondent on that date.

First respondent’s evidence

The first respondent relies on a statement signed by him on 3 November 2021 (page 1 of the first respondent’s Reply). As at 6 November 2018, he had been working as a self-employed tiler for around 10 years, and traded under BOODI Building & Construction. He denies employing any workers at that time.
He had met the applicant four or five years beforehand, and says that the applicant used to work as a sub-contractor for other tilers that he knew. At his request, the applicant “would occasionally come and work with me for a day if I was busy and had excess work, but it was a rare occurrence”. He knew that the applicant was also working for other tilers “as we are all friends”. He makes the comment that the applicant “could and did work simultaneously for other persons on the rare occasions that he worked for me”.
He says:
“The general arrangement when a job was on was that the facilitator of the job (i.e., the head contractor) would telephone me, Salah and others to arrange the time and place of the job. There was never any obligation on Salah to attend any particular job. I would ask him if he wanted to work or not. He decided that for himself. I had no control over his decision whether to work on a specific project or not. I would not insist that he worked on a particular project. He was able and at liberty to refuse to do any work that was offered by either myself or contractors.”
He did not enter into any written contract of employment with the applicant. He paid the applicant an agreed rate of between $180 and $200 per day. He says that the applicant wished the payments to be made in cash and did not wish for taxation to be deducted from the payments. He did not receive any invoices from the applicant “because his work with me was so infrequent that I did not consider it necessary”. He did not pay the applicant holiday pay or superannuation.
He says that he was unable to discipline the applicant, and was not required to rectify any of the applicant’s work mistakes as the applicant was responsible for the quality of his own work. However, he later says that “on the rare occasion he worked for me I would have to guarantee or warrant the work”.
He says he was unable to restrict the applicant from sub-contracting work, but concedes that as far as he knew, the applicant did not sub-contract any of the work that he engaged the applicant to do. He also says that the applicant told him that when he was doing larger jobs “in his own work”, he would contract other tilers and grouters to assist him.
He also makes the following additional points:
(a)    he used other sub-contractors to the applicant;
(b)    he did not provide the applicant with any protective clothing;
(c)    he did not require the applicant to work exclusively for him;
(d)    the applicant told him that he had an ABN number and was registered for GST;
(e)    he occasionally (as a favour) drove the applicant to work sites;
(f)    he had no control over the way the applicant did his work;
(g)    the applicant provided his own tools and equipment as well as his own grout (if it was not supplied by the homeowner or head contractor);
(h)    he believed the applicant had his own business insurance, income protection insurance, and workers compensation insurance; and
(i)    the applicant told him that he advertised his services on “Gumtree”.
In relation to the injury sustained by the applicant on 6 November 2018, the first respondent advises that he and the applicant were then working at an Oatley property. He had been contracted by the third respondent to do tiling work at the property, but not grouting work. He cannot recall if it was the third respondent or another contractor who telephoned him to request that the applicant do the grouting work. He implies that he was approached to retain the applicant as the applicant “has very little English”.
On the morning of 6 November 2018, the applicant came to his house and they drove together to the Oatley property. Just after they started work there, the applicant told him he had injured himself and showed him “a little cut on his left elbow”. He did not witness how the applicant’s injury occurred, as he was in a different room at the property to the hallway where the applicant was.
The applicant told him that he was using a nipper (a tiling tool similar to pliers) to break a tile when the tile “popped in half” and hit the applicant’s elbow.
He drove the applicant to a medical centre in Riverwood, where the applicant’s wound was dressed and cleaned by a nurse. He says that the applicant did not want to wait for his wound to be stitched by a doctor when it became apparent that he would be charged about $120 in this regard. According to the first respondent, this charge was levied because the first respondent had told the receptionist at the medical centre that the injury was a work accident, assuming that it would be covered by the applicant’s workers compensation insurance. The applicant got upset with the first respondent for advising the receptionist that the injury was a work accident.
They then returned to the Oatley property where the applicant rested in the first respondent’s car until he later took him to a different medical centre at Guildford.

Second and third respondents’ evidence

The second and third respondents also rely upon the statement that the first respondent signed on 3 November 2021. They further rely upon an unsigned statement from the first respondent prepared by an investigator (page 6 of the second respondent’s Reply). It seems to me that the 3 November 2021 signed statement was very much based upon this unsigned statement, and I do not intend to therefore summarise the unsigned statement. Being unsigned, I also do not intend to give much weight to that statement. However, there are a few points worthy of consideration:
(a)    the unsigned statement refers to the period covering four or five years prior to the accident, and in relation to the work performed by the applicant for other tilers, says that the first respondent knew that those tilers did not employ him and that he worked with them only on a sub-contract basis;
(b)    the unsigned statement says that the first respondent did not have other sub-contractors to the applicant;
(c)    the unsigned statement says that the applicant did not require a trade qualification to be a grouter, and
(d)    the unsigned statement says “I knew that he was working for other tilers who are my friends as a grouter/helper”.
A statement has also been obtained from George Haidar (page 11 of the second and third respondents’ AALD) which he signed on 13 May 2022. Mr Haidar is the sole director of the third respondent. The third respondent provides residential and commercial building services, and Mr Haidar has been operating the business since May 2010.
The third respondent utilises the services of a number of other businesses on a sub-contracting basis. From time to time, the first respondent is utilised as a sub-contractor by the third respondent. There is no written contract between the first respondent and the third respondent. When the third respondent requires the services of the first respondent, he is contacted and offered an opportunity to accept or decline a job. The third respondent has no control as to how the first respondent performs the job, or whether he engages others to perform work on his behalf. The third respondent then pays the first respondent once the job has been completed.
Mr Haidar does not remember the specific arrangement between the third respondent and the first respondent in relation to the job at the Oatley property where the applicant was injured. He does however remember that the homeowner was disappointed with the tiles which she had chosen. He also remembers the first respondent approaching him after the
6 November 2018 injury and advising him that the applicant “is demanding that you take him on as an employee and back date it to before the injury so he can claim workers comp”. He refused this approach.
In relation to the applicant, he advises that he would not “recognise him if I saw him walking down the street”. He did not have the applicant’s phone number, and had not called the applicant or sent him text messages. The third respondent had never employed the applicant or offered him work or paid him any amount.
The other evidence relied upon by the second and third respondents is as follows:
(a)    reports from the investigators who prepared the applicant’s 19 February 2019 statement, the first respondent’s unsigned statement, and Mr Haidar’s statement - these reports largely summarise those statements;
(b)    a medico-legal report from Dr McGlynn (page 17 of the second respondent’s Reply);
(c)    two photographs (said to have been provided by Merheb Wehbe) depicting two cheque butts (dated 23 December 2017 and 27 January 2018) showing payments made to the applicant in the amounts of $1,500 and $2,700 (page 14 of the second respondent’s Reply);
(d)    a search (page 15 of the second respondent’s Reply) undertaken by the investigators referred to above, in relation to the applicant’s ABN number - the search revealed that the ABN number was active, but no posts, listing or advertisements were located – no listings were either located with HiPages, Yellow Pages, or a trades license check; and
(e)    a LinkedIn profile (page 16 of the second respondent’s Reply) which I find not to be of the applicant – the photograph is not of the applicant (who I saw during the arbitration hearing), and the description in the profile (including the name of the employer recorded in the profile) does not match the applicant.

Applicant’s submissions

The applicant’s submissions have been recorded, and I will not go through them in detail.
In his submissions, the applicant refers to specifically the evidence in his statements as providing the necessary indicia in order to prove his employment relationship with the first respondent. He also argues that if the employment relationship is not proved, it is still clear that he would be considered to be a deemed worker, as defined in cl 2 of schedule 1 of the 1998 Act.
The applicant submits that the element of control is made out in the relationship between the first respondent and himself. The first respondent had control over his working hours and told him where to be and when. The first respondent regularly drove him to work sites. The first respondent had the power to decide whether he would work on certain jobs, and had the power to judge and reject the quality of the work performed by the applicant. The applicant had no discretion in the performance of the work, and was not answerable for the quality of the work.
The applicant rejects the suggestion that his work with the respondent (and indeed grouting work in general) was specialised work. The laying, cutting, and grouting of tiles were all facets of one job, which was the responsibility of a specialist tiler (that is, the first respondent). The first respondent had been engaged by the third respondent as a specialist tiler, and how the job was to be performed was not so specialised as to require the first respondent to delegate cutting or grouting tasks to other specialised contractors. The first respondent was the specialist who controlled how the work was to be performed, and directed the applicant accordingly. The first respondent was responsible for the quality of the work performed.
On the date of his accident, the applicant was not performing work incidental to a trade as a specialised grouter. He was cutting tiles as directed by the first respondent. Following the accident, he was instructed to continue working by the first respondent, and he did so until he was driven to a medical centre by the first respondent. The applicant therefore submits that on the date of his accident, he was firmly under the direction and control of the first respondent.
Other indicia of employment relied upon by the applicant include:
(a)    tools were provided for the applicant’s use – including the tile cutter that the applicant was using when he was injured;
(b)    the applicant did not work for anyone else;
(c)    the applicant did not get anyone else to do the work given to him by the first respondent;
(d)    the applicant did not submit invoices to the first respondent; and
(e)    the applicant did not use his ABN number while he was working with the first respondent.
The applicant also submits that these indicia are highly relevant to his alternative position that he should be considered to be a deemed worker. He points out:
(a)    there has been no evidence produced by the respondents (other than the unsubstantiated comments in the statements from the first respondent) as to any advertising carried out by the applicant;
(b)    the applicant’s bank accounts do not reveal any deposits from work undertaken by him, to suggest that he was carrying on his own business;
(c)    the idea that the applicant could carry on business as a specialised grouter does not make any sense, as that work is inherently unspecialised, and
(d)    in order to obtain work, the applicant was dependent on others who spoke English better than him – the first respondent refers to the fact that they conversed in Arabic.
The applicant submits that of the independent witnesses who have provided statements, Messrs Hello, Breis and Badra all corroborate the applicant’s position that he had not worked other than as an employee. The thrust of their evidence is that the applicant had never carried on his own business as he had neither the skills, the English ability, or the inclination, to do so.
The applicant also submits that the statement from Mr Haidar corroborates his statements more than it corroborates the first respondent’s statements. The third respondent regularly uses the services of tiling sub-contractors but does not know the applicant. Further,
Mr Haidar makes it clear that once the third respondent engaged the first respondent to perform the job on 6 November 2018, it relied upon the first respondent solely to perform that job. This is contrary to the first respondent’s explanation (see paragraph 42 above).
Finally, the applicant submits that the statements provided by the first respondent are too broad and sweeping to be accepted. The references to the applicant only working infrequently or on rare occurrences are not specific enough, compared to the applicant’s assertion that he worked for the first respondent at about 40 work sites
The first respondent has not provided any objective evidence to support his allegations that the applicant was advertising and carrying on his own business. The applicant submits that the suspicions as to what the applicant was doing which are referred to in the first respondent’s statements are “inaccurate and unsubstantiated and squarely challenged”.

First respondent’s submissions

The first respondent’s submissions have also been recorded. I will not go through them in detail.

The basis behind the submissions is that there is virtually no corroborative evidence produced relevant to the relationship between the applicant and the first respondent. There is no statement from anyone who witnessed them working together. “It is one word against another” is the thrust of the submissions.
The first respondent then identifies contradictions and inconsistencies in the applicant’s account, which he submits are real and important, and cast doubts on that account.
Specifically, the first respondent identifies the following:
(a)    the applicant alleges that he was reliant upon the first respondent for work and that led to the first respondent having an element of control over him, especially as his English was not good. However, he had been able to obtain work through Ability Options, showing a capacity to use such organisations in order to obtain work. He could not therefore be said to be a “prisoner” to the first respondent;
(b)    although the applicant alleges that he worked for the first respondent at around 40 work sites, none of them (except the site where he was injured) have been identified. The applicant’s wife could have provided a corroboratory statement in this regard;
(c)    in his 19 February 2019 statement, the applicant alleges that on some occasions, the first respondent would have other tilers working with him, in which case, the applicant would do the cutting and grouting work for all the tilers. However, in his
18 November 2021 statement, the applicant alleges that he was the only one who provided the first respondent with assistance. Not only are the two statements inconsistent, but if the first statement is correct and the applicant was able to work for a number of tilers on the same job, it shows a level of proficiency and skill in his work that he seems to otherwise downplay; and
(d)    if the first respondent was making the regular wage payments to the applicant that he alleges (close to $900 per week over many months), it would be expected that some of those payments would be deposited into his bank accounts in order to pay bills and so on. The bank accounts produced however do not show any such deposits.
The first respondent also made some submissions based upon an understanding that the cheque butts (see paragraph 57(c) above) related to payments made to the applicant by the first respondent. It was later conceded that these payments were made to the applicant by Merheb Wehbe, and I therefore do not intend to refer further to those submissions.
In relation to the statement evidence from Mr Hello, the first respondent submits that it is consistent with that of the first respondent. Tilers such as Mr Hello and the first respondent would not have labourers “on staff” but would instead hire whoever was available on a daily basis. They would know who was available because the tiling industry in Western Sydney was small, and because they could telephone other tilers if necessary.

In relation to the statement evidence from Mr Badra, the first respondent questions the relevance of the applicant’s discussions with him referred to, as those discussions occurred seven years prior to the applicant’s accident.
In relation to the statement evidence from Mr Haidar, the first respondent concedes that his approach (see paragraph 55 above) to Mr Haidar to lodge a workers compensation claim on behalf of the applicant “does not reflect well” upon either the first respondent or the applicant. However, the first respondent submits that the circumstances of the approach reveal the applicant’s state of mind that he did not expect to be covered by any workers compensation insurance of the first respondent’s.
The first respondent concludes by submitting that it is up to the applicant to prove his case, rather than it being up to the first respondent to disprove that case. If the Commission has doubts as to whether the applicant has proved his case, he will not have satisfied his burden of proof. The first respondent submits that the applicant cannot be accepted as a witness of truth, or at least his evidence cannot be accepted over the evidence of the first respondent on the balance of probabilities. If the Commission cannot rely upon the applicant’s evidence, he cannot succeed in proving that he was either employed by the first respondent or a deemed worker. There was no intent to create an employment contract between the applicant and the first respondent, and the Commission could not be satisfied that the applicant only worked for the first respondent, in order to enable him to be considered to be a deemed worker.
Upon being questioned by the Commission, the first respondent conceded that there was no direct evidence that the applicant was working for anyone other than the first respondent as at 6 November 2018. It however relied upon the statement evidence from both Mr Hello and the first respondent as to the practice in the tiling industry in Western Sydney, for inferences to be drawn that persons such as the applicant regularly worked for different tilers on different days, on a contract basis.
The first respondent also made the point that in order to find that the applicant was conducting a trade or business while he was working for the first respondent, it was not necessary to find that he was actually working for others at the time, but just that he was running a business in his own name where he could have worked for others.

Second and third respondents’ submissions

The submissions of the second and third respondents have also been recorded. I will not go through them in detail.
The submissions refer to the first respondent’s submissions and note a “real clash” between the statement evidence of the applicant and the statement evidence of the first respondent. The applicant asserts that he was an employee of the first respondent’s, and the first respondent asserts that he was an irregular sub-contractor. “Objective material” therefore needs to be considered to resolve this clash, and the submissions identify the following:
(a)    the method by which the applicant alleges that he was paid by the first respondent needs to be scrutinised. He alleges that he was paid $220 per day no matter how many hours he worked, which would be extremely unlikely in an employment relationship. He also alleges that he was paid every 2-3 weeks. These are haphazard arrangements and not consistent with the applicant being a regular worker with the first respondent. The lump sum payments which the applicant received from Merheb Wehbe (as evidenced by the relevant cheque butts - see paragraph 57(c) above) also suggest that he was a sub-contractor, rather than an employee, when he earlier worked for that gentleman;
(b)    the applicant alleges that he has limited English ability, but Associate Professor Meares (in the context of a medico-legal examination) had no difficulties conversing with him, and indeed (see page 86 of the ARD) noted “he speaks good English”. The applicant’s argument that his limited English ability makes him reliant upon others in order to work is therefore not sustainable;
(c)    the applicant’s bank records between 25 January 2018 and 7 December 2018 (pages 289-300 of the ARD) reveal that prior to his alleged employment with the first respondent in June 2018, he was receiving regular Centrelink Newstart and pension payments. However these payments continued at the same regular intervals during his alleged employment with the first respondent. These payments are not consistent with the applicant being in regular employment with the first respondent, and
(d)    the statement evidence from Mr Haidar (who states that he does not know the applicant) supports the proposition that the applicant was not in regular employment (and indeed the proposition that the applicant did not regularly work as a sub-contractor) with the first respondent, as otherwise, Mr Haidar would have got to know the applicant as he had regular dealings with the first respondent.
In relation to the statement evidence relied upon by the applicant from Messrs Hello and Breis, the submissions request the Commission to place little weight upon the legal conclusions in those statements as to whether or not the applicant was employed. That is a conclusion that both gentlemen are not qualified to make. Both statements are also generalised, not specific, and contain hearsay.
The submissions request that the Commission draw a “negative” inference in relation to the applicant’s wife providing a statement in relation to their bank account details, but not providing a statement supporting the applicant’s allegations that he regularly worked with the first respondent and received regular payments from him.
In determining the agreement reached between the applicant and the first respondent and their intention to create legal relations, it is submitted that the Commission could not be satisfied on the balance of probabilities that the applicant has proved that he was an employee. No sick leave, superannuation, or other standard employment benefits were received by the applicant, and taxation was not deducted from his payments. The first respondent did not possess workers compensation insurance because he did not believe that he needed to in order to retain sub-contractors like the applicant.
It is also submitted that the Commission could not be satisfied on the balance of probabilities that the applicant was a regular retained sub-contractor working only for the first respondent, in order for him to be considered to be a deemed worker.
Upon being questioned by the Commission as to the elements necessary for the applicant to prove that he was a deemed worker, it was conceded that the agreement between the applicant and the first respondent was for an amount over $10, and it was also conceded that there was no sub-letting involved in the agreement. The live issue was whether when the applicant worked for the first respondent, he was working incidental to a trade or business of his.
It was conceded that there was no positive evidence of the applicant working for others, but only the statement evidence of the first respondent that he knew the applicant was working for other tilers because he was friends with those tilers. When questioned by the Commission as to where the statement evidence was from those friends, it was conceded that that question could not be answered. The standard of the evidence was poor as to whether the applicant was working for others.
The only submissions made in relation to whether s 20 of the 1987 Act would apply if I found the applicant to be either employed by the first respondent or a deemed worker, were that the evidence of Mr Haidar was clear, and he stated that he retained the first respondent as a sub-contractor. No further submissions were sought to be made.

Applicant’s submissions in reply

These submissions have also been recorded. I will not go through them in detail.
The thrust of the submissions is that the applicant has discharged his onus of proving that he was not working incidental to his own trade or business while he was working with the first respondent as he was working exclusively for the first respondent in the critical period between June 2018 and the date of his accident. There is no evidence to squarely challenge or positively rebut the applicant’s statement evidence in this regard.
The respondents have failed to deal with that evidence, the only challenge to it being the suspicions, inferences and suggestions (but not knowledge) set out in the first respondent’s statements, that the applicant was working for other tilers. The first respondent refers to being aware that the applicant was working for other tilers, from his community of friends in the industry. However, no corroboration from any of these friends is provided. The first respondent could have and should have obtained statements from these friends, but has not.
Indeed, the only “friends” in the industry who have provided statements (Messrs Hello, Breis and Badra) have provided those statements in support of the proposition that the applicant only ever worked exclusively for the one tiler during any one particular period. While those statements do not deal precisely with the period between June 2018 and the date of the applicant’s accident, they do add some weight and some level of corroboration to the applicant’s statement evidence, in circumstances where there is no corroboration of the allegations in the first respondent’s statement evidence.
The applicant therefore urges the Commission to accept his statement evidence that he worked exclusively for the first respondent between June 2018 and the date of his accident, even if the Commission rejects other parts of his statement evidence.
The applicant also addresses some of the submissions made by the second and third respondents, as follows:
(a)    the first respondent in his statement evidence accepts that the applicant does not speak English well. Associate Professor Meares’ comments were in the context of a refresher examination, in which the doctor would have not needed to ask the applicant for much information. There had been an interpreter available for the assistance of the applicant when he was first examined by the doctor;
(b)    the bank records referred to are from a joint account operated by the applicant and his wife. There is therefore no indication that the Centrelink and pension payments referred to in the records relate to the applicant, rather than his wife. Without cross-examining the applicant, the respondents cannot positively submit that the Centrelink and pension payments were paid to the applicant, and
(c)    there is no reason why Mr Haidar would know the applicant if the applicant worked regularly for the first respondent. Mr Haidar states that he only dealt with the first respondent, and not those whom the first respondent might engage to perform work on his behalf.
Following the applicant’s submissions in reply, brief submissions were made on behalf of the second and third respondents, in relation to the suggestion that the Centrelink and pension payments referred to in the bank records of the applicant and his wife may have been his wife’s. Those submissions referred to the statement from the applicant’s wife which specifically referred to the bank records and explained some of the deposits which she had made. This statement however did not explain any of the Centrelink and pension payments, and it was submitted that the Commission could therefore infer that if the payments were hers, she would have explained as such in her statement.

FINDINGS AND REASONS

Whether the applicant was a worker (as defined in s 4 of the 1998 Act) when he was injured on 6 November 2018

Section 9 of the 1987 Act provides:
“(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act.”
Section 4 of the 1998 Act then defines “worker” 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)….”
The essential feature of the definition in s 4 is that there must be a ‘contract of service’ between the worker and the employer, rather than a ‘contract for services’. The essential elements of a contract, such as consideration, mutuality of obligation, and an intention to create legal relations, all need to be present.
Once a contract has been established, there are a number of criteria or indicia to be considered in order to determine whether the contract is a contract of service. The indicia were summarised by the High Court in Stevens v Brodribb Sawmilling Co Pty Limited [1986] HCA 1 (Stevens). In Digby v Hyspec Construction & Roofing Pty Limited [2018] NSWWCCPD 39, President Keating referred to the criteria outlined in Stevens when he stated:
“90. The Arbitrator correctly identified that in Stevens, Mason J said:
“... the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question.” -
91. The Arbitrator referred to the criterion by which to gauge whether a relationship is one of employment, as stated in Stevens. Justice Mason listed other additional criteria, to “control”, as follows:
(a) the mode of remuneration;
(b) the provision and maintenance of equipment;
(c) the obligation to work;
(d) the hours of work and the provision of holidays;
(e) the deduction of income tax, and
(f) delegation of work by the putative employer.
Justices Wilson and Dawson added the following additional criteria:
(a) the right in the employer to have a particular person do the work;
(b) the right to suspend or dismiss the person engaged;
(c) the right to the exclusive services of the person engaged, and
(d) the right to dictate the place of work, the hours of work and the like.”
The High Court discussed Stevens in its recent decisions of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Limited [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Limited v Jamsek [2022] HCA 2. The determination as to whether an employment relationship exists is more complex than just using the criteria referred to in Stevens as a checklist. Keifel CJ, Keane and Edeleman JJ said in Personnel Contracting:
“34. In Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd, it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to ‘the totality of the relationship between the parties’. It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.”
And:
“39 While the ‘central question’ is always whether or not a person is an employee, and while the ‘own business/employer's business’ dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs, the dichotomy usefully focusses attention upon those aspects of the relationship generally defined by the contracthttps:// - which bear more directly upon whether the putative employee's work was so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. In this way, one may discern a more cogent and coherent basis for the time‑honoured distinction between a contract of service and a contract for services than merely forming an impressionistic and subjective judgment or engaging in the mechanistic counting of ticks on a multifactorial checklist.”
The criteria referred to in Stevens are still highly relevant, but they need to be considered as part of the exercise of determining both the totality of the relationship between the parties, and the degree to which the work performed by the putative employee was so subordinate to the putative employer’s business, so that it should not be considered to be part of an independent enterprise.
Unfortunately, the relationship between the applicant and the first respondent as at the date of the applicant’s accident is anything but clear based upon the significantly different statement evidence provided by each of them as to the nature of that relationship.
As a result, the submissions from the parties have largely concentrated upon criticising the statement evidence of the other party, the assumption being that if the applicant’s statement evidence was accepted by the Commission he would be found to be a worker, but if the first respondent’s statement evidence was accepted by the Commission he would not be found to be a worker.
While this assumption may be correct if I was able to accept in full the statement evidence of either the applicant or the first respondent, I find that I cannot do so. I find both sets of statement evidence to be self-serving, and to contain inconsistencies. I also find some credit issues with both the applicant and the first respondent.
There is a useful statement in evidence from Mr Haidar, and there is some weight that I can place upon the statement evidence from Messrs Hello, Breis and Badra. However, I would have expected there to be statement evidence from the applicant’s wife in relation to the work that the applicant did for the first respondent, as well as statement evidence from the first respondent’s friends in the Western Sydney tiling industry who he alleges the applicant worked for at the same time when he worked for him.
I would also have expected there to be statement evidence from at least the applicant and the first respondent regarding the particular work sites where they worked together. The applicant states that there were around 40 such sites, and the first respondent states that the applicant only worked for him on rare occurrences. The applicant has submitted that the respondent has not been specific enough in this regard, and the respondents have submitted that the applicant has not been specific enough in this regard. I agree with both sets of submissions. This lack of specific evidence regarding the particular work sites suggests to me that both the applicant and the first respondent are exaggerating. It would not have been difficult for both of them (but especially the first respondent, who presumably keeps some business records) to provide more details regarding these particular work sites.
In relation to the applicant’s statement evidence, I note the inconsistency referred to by the first respondent (see paragraph 72(c) above). I also accept the submission of the second and third respondents that the method of payment put forward by the applicant ($220 per day no matter how many hours were worked, and only receiving payment every 2-3 weeks) is haphazard and unlikely in an employment relationship.
I draw a negative credit inference in relation to the applicant from the bank records produced. Although these records only relate to a joint account of his with his wife, they do not reveal any deposits from payments received by him from the first respondent, and yet they reveal ongoing Centrelink Newstart and pension payments. The only conclusion to be reached is that either the applicant was not receiving the extent of the payments from the first respondent that he claims he was receiving (as he was still entitled to the Centrelink Newstart and pension payments), or he did not tell Centrelink about the payments from the first respondent that he was receiving. If the Centrelink Newstart and pension payments related to his wife, I would have expected her to have provided statement evidence in this regard (especially as the one statement that she provided specifically dealt with deposits that she had made into the relevant joint account). If there were other accounts into which the applicant deposited the payments from the first respondent that he claims he received, I would have expected records from those accounts to be available.

In relation to the respondents’ submissions regarding the applicant overplaying his lack of ability in the English language, I do not place much weight on the submissions. The first respondent states that he conversed with the applicant in Arabic and that the applicant “has very little English”, and Mr Badra states that the applicant advised him as to his lack of confidence in the English language. The fact that the applicant could utilise the services of Ability Options and provide information to Associate Professor Meares during a supplementary examination, perhaps reveal that the applicant should have more confidence in his ability to speak English. However, it is clear to me from the evidence that Arabic remains his first language.
In relation to the submission of the second and third respondents at paragraph 81(d) above, I accept the applicant’s submission in reply that there is no reason why Mr Haidar would know the applicant assuming that he was regularly working for the first respondent. Mr Haidar specifically states that he only dealt with the first respondent and had no control over how the first respondent performed the work requested by the third respondent.
In relation to the first respondent’s statement evidence, I note the inconsistencies between that evidence (see paragraphs 42 and 47 above) and Mr Haidar’s statement. Mr Haidar specifically states that he only dealt with the first respondent and it was then up to the first respondent as to how the work was carried out. However, the first respondent states that head contractors (such as Mr Haidar) would deal with him and the applicant and others on a particular job. The first respondent also states that, in relation to the particular job where the applicant was injured, he was only contracted to perform the tiling work, and not the grouting work. This is directly contrary to Mr Haidar’s statement evidence.
There is also inconsistency between the signed statement from the first respondent and the unsigned statement from the first respondent, regarding whether he used workers other than the applicant.
I draw a negative credit inference in relation to the first respondent as a result of his conversation with Mr Haidar when he attempted to get Mr Haidar to agree to submit what I find would have been a fraudulent workers compensation claim on behalf of the applicant, on the basis that he was employed by the third respondent. The first respondent does not provide any evidence regarding this conversation, including any evidence that the applicant actually asked him to contact Mr Haidar. I therefore only draw the negative credit inference in relation to the first respondent.
In relation to the criteria referred to in Stevens, the following seem to be accepted by both the applicant and the first respondent:
(a)    the applicant was not paid sick pay or other leave entitlements;
(b)    the applicant was not paid superannuation;
(c)    the applicant did not issue invoices to the first respondent;
(d)    the applicant was paid in cash;
(e)    the applicant did not use his ABN;
(f)    the first respondent often drove the applicant to work sites;
(g)    there was no written contract;
(h)    the applicant provided his own protective clothing and safety shoes;
(i)    the first respondent found the work;
(j)    no-one reported to the applicant while he was performing the work; and
(k)    the applicant did not arrange for others to do the work on his behalf.
The applicant states that he was paid $220 per day by the first respondent, but the first respondent states that he was paid $180-$200 per day. I do not believe that a lot turns on this difference.
Taxation was not deducted from these payments. The first respondent states that the applicant agreed to be responsible for his taxation arrangements, but the applicant states that the first respondent agreed to pay the necessary taxation separately. This is a direct conflict on the evidence.
The applicant states that the first respondent provided all necessary tools and equipment, but the first respondent states otherwise, except where material was provided by the relevant homeowner. This is also a direct conflict on the evidence.
The applicant states that the first respondent told him that he would be covered by the first respondent’s workers compensation insurance, but the first respondent states otherwise. It is however relevant to note in this regard that following the accident, the first respondent states (see paragraph 50 above) that the applicant did not want the first medical centre which he attended to know that he had had a work accident. The applicant does not answer this allegation when he provides his statement in response to the first respondent’s statement. I therefore infer that, at least as at the date of the accident, the applicant did not believe that he was covered by workers compensation insurance for his accident injuries.
The applicant is adamant that he worked exclusively for the first respondent between June 2018 and the date of his accident. Indeed, in the 4-5 years prior to this period, he had also only worked exclusively for whoever was his relevant “employer” at the time. I accept this. In addition to my general concern regarding the statement evidence provided by the first respondent, although he states that the applicant worked for other tilers, he has failed to provide any support for this evidence even though he also states that those other tilers are his friends. Mr Hello also states that the tiling industry in Western Sydney is close knit, to the extent that “we all hear about what is happening with other tilers”. I do not believe that it would have been difficult for either the first respondent or the second respondent (which engaged investigators – see paragraph 57(a) above) to obtain corroborative statement evidence if the applicant had in fact worked for others between June 2018 and the date of his accident. Instead, the only independent statement evidence as to the applicant’s tendency to work exclusively is that from Mr Hello, who states that the applicant worked for him exclusively in about 2016 and 2017. I find this evidence helpful even if it relates to a period prior to June 2018.
The applicant is adamant that he has never run his own business. He has never used his ABN number, and did not use it while he worked for the first respondent. He denies advertising, and there is no documentary evidence of advertisements in this regard. He needed the assistance of Ability Options in order to obtain work in the past with Oasis Tiling. Mr Hello states that he does not have the ability to run his own business, and Mr Badra recalls a conversation with him (albeit in 2011) when he explained that he did not want the responsibility of getting contracts for himself.
It is clear that at least the second respondent has investigated the applicant’s potential business activities. Indeed, its investigators obtained the documentation referred to at paragraphs 57(c), 57(d) and 57(e) above. That documentation does not reveal any business activities of the applicant’s.
I am satisfied that during the period when the applicant worked with the first respondent, he was not conducting his own business.
In relation to the significant criterion for an employment relationship of the existence of control, there is again conflicting statement evidence. The applicant states that the first respondent controlled where he worked, and he also states that the first respondent worked with him and he did not do anything unless directed by the first respondent. The first respondent states that he had no control over the way that the applicant worked.
The applicant concedes that he did the cutting and grouting work, while the first respondent did the tiling work. While I do not believe cutting and grouting to be specialised trades, it seems to me reasonable to accept that while the first respondent was performing the tiling work, he did not have much control as to the manner in which the applicant performed the cutting and grouting work. Indeed on the date of the accident, he was in a different room to the applicant.
The element of control was present in the form of directing the applicant where to be and what to do, but probably not in the form of closely supervising the manner in which the applicant performed his work.
The first respondent also states that the applicant had the power to refuse work that he offered, and that he could not control the applicant in ensuring that the applicant undertook the work offered. The applicant states that he never refused any work in this regard as he thought that such a refusal would threaten his employment, however, he fails to specifically address whether he actually had the power to refuse work.
Responsibility for the applicant’s work is also relevant to the existence of control in the relationship between the applicant and the first respondent. Both state that the first respondent was required to guarantee and warrant the work performed by the applicant, but this is standard in business where the first respondent has the contract with the head contractor. Both also state that the applicant was never disciplined by the first respondent, and that no mistakes of his needed to be rectified. There is no evidence from either party as to what would have occurred had mistakes needed to be rectified.
In summary, both the statement evidence from the applicant and the statement evidence from the first respondent have limits to the degree to which I can accept that evidence. Both sets of evidence are equally self-serving and exaggerated.
In terms of the parties’ intentions however, it is reasonable to infer that the first respondent did not wish to create any relationship of employment with the applicant. It is also reasonable to infer that the applicant had some concerns as to whether if he was employed by the first respondent, he was receiving his entitlements as an employee, especially in relation to holiday pay and superannuation (see paragraph 27(h) above).
The applicant bears the burden of proving that he was a worker.
In Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10, Roche DP stated:
“103. Last, by saying that there was not ‘sufficient evidence’ for him to be ‘comfortably satisfied’ that Mr Drca’s gastrointestinal condition arose as a result of pain relieving medication for his accepted back injury, the Arbitrator applied the wrong standard of proof. For an applicant to succeed in a claim for compensation, he or she only has to satisfy the Commission on the balance of probabilities of the facts that establish the claim.
104.   A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen[1940] HCA 20; (1940) 63 CLR 691 at 712).
105.   Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes[2008] NSWCA 246).
106.   The standard of being ‘comfortably satisfied’ is a higher standard than that of actual persuasion on the balance of probabilities. While the balance of probabilities standard will be satisfied if an Arbitrator is ‘comfortably satisfied’ that a fact exists, that is not a necessary prerequisite for satisfaction of the civil standard and the Arbitrator erred in applying that standard. The evidence only had to establish that it was more probable than not that the gastrointestinal condition resulted from the medication taken for Mr Drca’s accepted back injury.”
On balance, I do not feel an actual persuasion with a probability in excess of 50% that the applicant has proved that he was a worker.
Although I have found that he did not work for others while he worked for the first respondent, and did not run a business, that was his choice. Although I believe that he probably worked for the first respondent more than just on rare occurrences, I am not satisfied that the first respondent exercised substantial control over the work that he then performed or that he was obliged to work for the first respondent when required. He was aware that entitlements such as holiday pay and superannuation that employees could expect, were not being afforded to him. He must have been suspicious regarding the taxation arrangements. He also must have been suspicious regarding the haphazard payment arrangements in general.
Having considered the criteria in Stevens as well as the comments of the High Court in Personnel Contracting, I am not persuaded on the evidence that the totality of the relationship between the applicant and first respondent was that of worker and employer. While the applicant was not working in his own business as he was not an entrepreneur, his work with the first respondent was not in my opinion “so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise”.

Whether the applicant was a deemed worker (as defined in cl 2 of schedule 1 of the 1998 Act) when he was injured on 6 November 2018

Notwithstanding my finding that I cannot be satisfied that the applicant was a worker when he was injured on 6 November 2018, he will nevertheless be entitled to compensation pursuant to the 1987 Act (including the s 66 compensation claimed in the ARD, subject to his injury being assessed at causing him greater than 10% whole person impairment) if I find him to be a deemed worker.
Clause 2 of schedule 1 of the 1998 Act provides as follows:
“(1) Where a contract--
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name)…
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
There are three elements here:
(a)    payment for the work to be performed under the contract must exceed $10;
(b)    the work to be performed under the contract must not be incidental to a trade or business regularly carried out by the contractor (in this case, the applicant) in his own name or under a business or firm name, and
(c)    the contractor (in this case, the applicant) must not sub-let the contract nor employ any worker under the contract.
The second and third respondents, when questioned by the Commission, rightly conceded that the first and third elements applied to the applicant (see paragraph 86 above). The first respondent’s statement evidence agrees that he paid the applicant more than $10 per day, and it also agrees that as far as he knew, the applicant did not sub-contract any of the work that he engaged the applicant to do (see paragraph 45 above). The applicant positively states that he did not give any work that had been given to him by the first respondent to anyone else to do (see paragraph 17(g) above).
I therefore make findings that the first and third elements referred to in the clause apply to the applicant. I have also already made findings (see paragraphs 119-122 above) that during the period between June 2018 and the date of his accident, the applicant worked exclusively for the first respondent and was not conducting his own business.
Although I have expressed concerns as to my ability to accept the applicant’s statement evidence in full, I have also expressed concerns as to my ability to accept the first respondent’s statement evidence. I have found both sets of statement evidence to be equally self-serving and exaggerated. However, there is some corroborative evidence (from Messrs Hello and Badra) confirming the applicant’s history of working exclusively, and also confirming the applicant’s history of not conducting his own business. In contrast, all the respondents accepted (upon being questioned by the Commission) that there was no positive or direct evidence from them that the applicant was working for others during the period between June 2018 and the date of his accident. This is despite the fact that at least the second respondent engaged investigators to look into the applicant’s alleged business activities, and the fact that the first respondent specifically stated that he had friends who the applicant worked for also.
I also find Mr Haidar’s statement in some way helpful. The third respondent has been operating its business since 2010 and yet Mr Haidar does not know the applicant. In that time, it has utilised the services of a number of sub-contractors (including the first respondent). If the applicant had been active in his own business in the close knit Western Sydney tiling community (even as a specialised or unspecialised grouter), I would have expected Mr Haidar to have at least come across him.
It is also of course relevant to note in this regard the first respondent’s statement evidence (see paragraph 42 above) that the applicant would also be contacted by head contractors (such as the third respondent) when a job was on. However, the only head contractor who has provided evidence contradicts this and states that he does not know the applicant.
There has been simply no evidence presented that the applicant was either working for others or conducting his own business during the period between June 2018 and the date of his accident, other than the suspicions, inferences and suggestions (but not knowledge) set out in the respondent’s statement evidence. I accept the applicant’s submissions (see paragraphs 90-93) in this regard.
Although the applicant still of course bears the burden of proving that he was not working incidental to his own trade or business when he was working for the first respondent between June 2018 and the date of his accident, on balance and considering the totality of the evidence, I do feel an actual persuasion with a probability in excess of 50% that the applicant was not working incidental to his own trade or business during the relevant period.
I therefore find that when the applicant was injured on 6 November 2018, he was a deemed worker (pursuant to cl 2 of schedule 1 of the 1998 Act), and his injury arose out of or in the course of his deemed employment, pursuant to s 4 of the 1987 Act.

Whether there was in existence a contract between the first respondent and the third respondent sufficient to make the third respondent liable for the applicant’s injury pursuant to s 20 of the 1987 Act

Section 20 of the 1987 Act provides as follows:
“(1) If any person (in this section referred to as ‘the principal’) in the course of or for the purposes of the person's trade or business, contracts with any other person (in this section referred to as ‘the contractor’) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is, if the contractor does not have a policy of insurance or is not a self-insurer at the time a worker employed in the execution of the work receives an injury, liable to pay any compensation under this Act which the principal would have been liable to pay if that worker had been immediately employed by the principal.
(2) If compensation is claimed from or proceedings are taken against the principal in respect of any such injury, then, in the application of this Act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed.”

For s 20 to make the third respondent liable to compensate the applicant in relation to his
6 November 2018 injury, there are two elements:
(a) the third respondent, in the course of or for the purposes of its trade or business, must have contracted with the first respondent for the execution of the whole or any part of work that the third respondent had undertaken, and
(b) the first respondent must not possess workers compensation insurance at the time when the applicant received his injury.
There is no dispute as to the second element, the first respondent having admitted that it did not possess workers compensation insurance coverage for the applicant as at
6 November 2018.
Counsel for the third respondent was in a very difficult position to make submissions as to the second element and as to whether s 20 would apply if I found the applicant to be a worker or deemed worker. He also represented the second respondent. If I made that finding (which I have), there would be a direct conflict between the second and third respondents regarding liability for the applicant’s injury.
Nevertheless, the third respondent in its submissions did concede (see paragraph 88 above) that the third respondent had retained the services of the first respondent as a sub-contractor to perform tiling work at the Oatley premises where the applicant was injured.
This is entirely consistent with the first respondent’s statement evidence as well as
Mr Haidar’s statement. Although Mr Haidar does not remember the specific arrangements between the third respondent and the first respondent relevant to that job, he does remember discussing the job with the owner of the premises (who he refers to as his client) later, when she expressed that she was disappointed with the tiles which she had chosen.
In the circumstances, I conclude that the owner of the premises had contracted with the third respondent (a provider of residential and commercial building services across the greater Sydney area specialising in complete bathroom renovations, plumbing, electrical, carpentry, painting and waterproofing, according to Mr Haidar’s statement - see page 6 of the second and third respondents’ AALD) for the relevant tiling work to be undertaken, and the third respondent (in the course of its business) had then contracted with the first respondent to perform that work.
I find that the elements of s 20 have been made out, and the third respondent is therefore responsible to compensate the applicant in relation to his 6 November 2018 injury.

SUMMARY

I find that the applicant was not a worker (as defined in s 4 of the 1998 Act) when he was injured on 6 November 2018.
I find that the applicant was a deemed worker (as defined in cl 2 of schedule 1 of the 1998 Act) when he was injured on 6 November 2018.
As a result, and in accordance with the concessions of the respondents, I find that the applicant sustained a personal injury to his left arm arising out of or in the course of his employment with the first respondent on 6 November 2018, pursuant to s 4(a) of the 1987 Act.

I find that, as at 6 November 2018, there was in existence a contract between the first respondent and the third respondent to satisfy s 20 of the 1987 Act. I also find, pursuant to his concession, that the first respondent was uninsured as at 6 November 2018. I therefore find that the third respondent is liable to pay any compensation to the applicant under the 1987 Act which the third respondent would have been liable to pay if the applicant had been immediately employed by the third respondent when he suffered injury on 6 November 2018.
As the ARD only claims compensation pursuant to s 66 of the 1987 Act, I remit the matter to the President for referral to a Medical Assessor for assessment of the applicant’s whole person impairment, as follows:
(a) Date of injury: 6 November 2018, and
(b) Body systems/parts: Left upper extremity, scarring.
The documents to be reviewed by the Medical Assessor are:
(a)    the ARD and attached documents - including the ARD which was lodged with the Commission on 29 April 2022;
(b)    the first respondent’s Reply and attached documents;
(c)    the second respondent’s Reply and attached documents;
(d)    the third respondent’s Reply, and
(e)    the second and third respondents’ Application to Admit Late Documents lodged 15 June 2022 and attached documents.
Liberty to apply to the Commission is granted to the parties regarding the terms of the referral to the Medical Assessor.
The referral to the Medical Assessor is not to occur prior to 10 October 2022. The third respondent requested this order (which was not opposed by the applicant) should it be found to be liable to compensate the applicant (as has been found), in order to allow it to arrange its own medical assessment of the applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established