Askew v Donald Noel Spence t/as Don’s Guttering and Roofing Services (NSWPICPD 2023)

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Key Takeaways

In determining whether a claimant is a worker as defined in s4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the High Court authorities ZG Operations Australia Pty Ltd v Jamsek (HCA 2022) (Jamsek) and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (HCA 2022) (Personnel Contracting) apply not only to written contracts but also to oral contracts. Therefore, even in the absence of a written contract, what must be examined is not the history of the relationship between the claimant and the insured but the actual terms of the oral agreement.

In this case, Deputy President Wood upheld the Member’s decision that the claimant was not a worker and that the approach taken by the Member in coming to that conclusion was consistent with the High Court authorities.

Brief Facts

The claimant had been working in his own roof business since 1986 and performed roof repairs for various clients. In May 2021, he suffered significant physical injuries while performing roof repair work through an arrangement with the insured. He claimed he was a ‘worker’ of the insured as defined in s4 of the 1998 Act.

The following were the relevant agreed facts:

• there was no written contract between the claimant and the insured.
• The insured had several customers for roof repairs and cleaning.
• The insured could contact the claimant about performing the work.
• The insured would explain the nature of the job, advise of the location, provide any relevant commencement or completion time, and establish the amount he would be paid.
• The claimant would confirm whether he was available.
• The payment was made into the claimant’s bank account and there were no invoices issued.
• The claimant was responsible for paying his own income tax.
• The claimant held his own ABN. He did not advertise his services except for having signage on his vehicle. He worked exclusively for the insured in the month leading up to his injury. He did not subcontract the work. He was not supervised at the job site.
• The insured provided the materials and the claimant provided his own tools and equipment.
• The claimant’s name was listed on the insured’s website.

At first instance, based on the balance of the above evidence, the Member determined that the claimant was an independent contractor and was not a ‘worker’ of the insured. The worker appealed arguing the Member had erred in his finding.

Judgment

DP Wood considered whether the recent High Court authorities (i.e. Jamsek and Personnel Contracting) applied in circumstances where there was no written contract. Those authorities involved matters where the parties comprehensively committed the terms of their relationship to a written contract. They established that the characterisation of that relationship as one of employment or otherwise must proceed by reference to the rights and obligations of the parties under the contract. The focus of the enquiry must be on the legal rights and obligations created by the contractual relationship between the parties, rather than on the history of the relationship between them.

DP Wood held that there was no reason to distinguish between wholly written contracts and other contracts. This was so despite there being greater scope in the case of oral contracts for subsequent events to be considered as part of the process of identification of the terms agreed between the parties. Courts are not concerned with what has actually occurred in a relationship, but rather with the obligations by which the parties are bound. These observations applied with equal force to contracts which were not in writing.

Ultimately, DP Wood was satisfied that the Member had considered all available evidence when determining the issue of whether the claimant was a ‘worker’ of the insured. DP Wood further found that the Member determined the matter by applying the evidence relevant to the terms of the oral contract. This approach was consistent with the principles from the High Court cases.

Implications

In considering whether a claimant is a ‘worker’, DP Wood held that the fundamental task is the ‘ascertainment and construction of the terms of the legal rights and obligations of the parties, rather than an assessment of the history of the relationship between the parties throughout the life of the contract’. This task remains the same regardless of the form of the contract in question.