Al Anzi v Skyview Formwork Pty Ltd (NSWPIC 2024)

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Key Takeaways

When dealing with the issue of whether a person is a ‘worker’ or ‘deemed worker’ under the NSW legislation it will now be difficult for claimant’s to run either/or cases because of the shift in focus to the establishment and nature of the contract between the person and the employer.

Brief Facts

The claimant was a worker and labourer who was engaged by the employer to perform work on a particular building site in early 2020.

In March 2020, the claimant contacted one of the employer’s directors, Mr Gerges, about whether he had any work available. Mr Gerges knew of the claimant from a previous worksite where they had both been engaged separately to perform various services and considered the claimant to be a good worker. Mr Gerges informed the claimant that he had no work available at that time but that in about one month a new job would be starting and so would contact him at that time. During this conversation, Mr Gerges enquired whether the claimant had an ABN as he noted that the employer could not pay wages to an employee due to the amount of work available. The claimant confirmed that he did have an ABN.

In April 2020, Mr Gerges contacted the claimant to inform him of work available at a site in Wentworthville, NSW. Mr Gerges required two people to provide labouring services. The claimant confirmed that he had another person available, Mr Samuel. At some stage prior to the claimant commencing work at the Wentworthville site, the rate of pay of $650 per day was agreed, which covered the work of both the claimant and Mr Samuel. The hours and days the claimant and Mr Samuel were required was also discussed.

From about 15 April 2020 to the day of his injury, the claimant performed labouring work at the Wentworthville site. During this time, the claimant submitted tax invoices in which he included his ABN, however, the claimant asserted that his ABN had nothing to do with the payments he received. The tax invoices also demonstrated irregular working days each week. Otherwise, the evidence supported that the claimant provided many of his tools to work, no tax was deducted from the claimant’s payments, the claimant was not paid any superannuation, and the claimant was not entitled to any paid leave.

On 8 May 2020, the claimant attended work and was injured when a beam he was working on collapsed, causing him to fall three metres to the ground. He suffered a serious injury to the head, left eye, left knee, left arm, lower back and neck in the fall.

Liability for the claimant’s injuries was disputed by the employer’s workers compensation insurer on the basis that the claimant was not a ‘worker’ or ‘deemed worker’ under s.4 and cl.2, of the Workplace Injury Management and Workers Compensation Act 1998. The claimant subsequently commenced proceedings in the Personal Injury Commission.

Judgment

In determining the principle issue of whether the claimant was a ‘worker’, the Member referred to the recent High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2. These decisions clarified that when determining whether an employment contract existed, it was necessary to review the actual terms of the contract and resulting contractual obligations, rather than immediately turn to analysing the indicia of employment as set out in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1.

As such, it was necessary for the Member to review the March and April 2020 conversations to assess the contractual terms established as part of those conversations. Based on the available evidence, the Member found that the claimant had not established that a contract of employment had been created between him and the employer.

Turning to the issue of whether the claimant was an independent contractor and fell within the ‘deemed worker’ provisions, the employer submitted that the claimant’s position from the outset had been that he was a full-time employee. As such, while the employer conceded that the claimant was an independent contractor, it submitted that the claimant should be precluded from relying on the ‘deemed worker’ provisions, since this was entirely inconsistent with his primary position. The Member accepted this submission and found that the claimant was not a ‘deemed worker’.

Implications

There is nothing controversial about how the Member applied the various authorities with respect to the issue of whether the claimant was a ‘worker’.

However, often times, when the issue of whether an injured person is a ‘worker’ for the purposes of statutory compensation arises, a fall-back position may be taken to assert that as an alternative, the person is a ‘deemed worker’.

Now that the High Court has clarified that the starting point is an analysis of the terms of a contract between parties, rather than looking at whether the actions of the parties demonstrate an element of control by the employer over the employee, it will be very difficult for a person to assert on one hand that they are a ‘worker’ (i.e work under a contract of employment), while on the other assert they are a ‘deemed worker’ (i.e. an independent contractor). Those two positions are inherently inconsistent.

Moving forward, where the issue of whether a person is entitled to compensation arises because of the question of whether they are a ‘worker’ or ‘deemed worker’, this decision demonstrates that they will have to assert one or the other, not both.