Payne v Absolute Domestic Cleaning Pty Ltd (2022 NSWPIC)

Link to Decision

Key Takeaways

In this matter, the key issue was whether the applicant performed cleaning services for a business or in her own name. Member Burge was ultimately satisfied on the basis of the applicant’s uncontested evidence that she was a deemed worker under Clauses 2 and 2A of the Workplace Injury Management and Workers Compensation Act (NSW) 1998 (1998 Act).

As the Member determined the applicant to be a deemed worker, there was no requirement to consider the contract pursuant to the common law principles regarding construction of employment contracts established by the recent High Court decisions of Personnel and Jamsek.

Brief Facts

The applicant entered into a contract with the respondent to perform cleaning duties for the respondent under her own ABN. The applicant suffered an accepted injury to her right lower extremity (ankle) while performing duties as directed by the respondent on 23 October 2019.

The applicant argued that she was a worker or deemed worker of the respondent at the date of injury and accordingly claimed reasonably necessary medical expenses. The respondent denied liability, arguing the applicant was an independent contractor - not a worker or deemed worker. This declinature was effected by a s78 notice dated 17 June 2021.

The applicant brought proceedings in the PIC challenging this declinature and seeking payment of her reasonably necessary medical expenses. The proceedings were heard before Member Burge on 22 August 2022.

Determination

Member Burge examined the deemed worker provisions in Clauses 2 and 2A of the 1998 Act as well as the considerations outlined in Deputy President Roche’s decision in Malivanek v Ring Group Pty Ltd (2014 NSWWCCPD) (Malivanek), namely:

1. Whether one was a party to a contract with the respondent to perform work.
2. Whether the work exceeded $10 in value.
3. That the work is not incidental to a trade or business regularly carried on by the applicant in their own name or under a business or firm name.
4. The applicant has neither sublet the contract nor employed workers to perform it.

Member Burge noted there was no issue surrounding the existence of a contract between the parties to perform work, that the value of that work exceeded $10 or whether the applicant sublet performance of the work. The key issue in debate was therefore whether the applicant had carried on cleaning services under her own name or business. Member Burge recognised that the applicant’s uncontested statement evidence was the only evidence going to this issue but noted that:

‘…even if the applicant had carried out work for someone else, that does not necessarily preclude her from being either a worker or deemed worker of the respondent. In terms of the deeming provisions, they relate to the nature of the relationship between the parties…’

Upon review of the applicant’s uncontested statement evidence, documentation provided by the respondent to the applicant during her employment and the absence of contrary evidence adduced by the respondent, Member Burge was satisfied the applicant was a deemed worker under both Clause 2 and Clause 2A of the WIM 1998 Act.

An order was made for the respondent to pay the applicant’s reasonably necessary medical and treatment expenses per s60 of the 1987 Act.

Implications

The case illustrates the procedure of the PIC when determining whether an applicant is a deemed worker as well as the importance for respondents to present evidence challenging an applicant’s submissions. If an applicant’s evidence positively addresses the indicia laid out in Malivanek, absent evidence to the contrary, they will be found to be a deemed worker.

The case also indicates that the operation of the deeming provisions are not impeded by common law principles for determining the nature of parties’ relationship through analysis of a contract. If a person is found to be a deemed worker, such common law provisions are inapplicable.