Therikildsen v Deemann Pty Ltd [2026] NSWPIC 138

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Key takeaways

• Determining whether a person is a worker or a deemed worker is a recurring issue in workers compensation matters and is not always straightforward to determine.
• The Personal Injury Commission (PIC) recently revisited this issue, reaffirming that the characterisation turns on the totality of the relationship between the parties, informed by the established multifactorial test in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens) and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Vabu).
• While the contract between the parties remains the starting point, this case highlights the evidentiary and analytical challenges that arise where the contractual arrangement is wholly oral.

Brief facts

The applicant, a plumber, suffered serious facial and right eye injuries on 5 April 2021 when an oxygen regulator exploded. He alleged that he was employed by the respondent at the time of injury.

He lodged an injury claim form on 24 July 2023, naming the respondent as his employer. The claim was initially accepted; however, liability was subsequently disputed in February 2024 on several grounds, including that the applicant was neither a worker or deemed worker.

The applicant subsequently commenced proceedings in the PIC.

This article focuses on whether the applicant was a worker under s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) or a deemed worker under cl 2 of Sch 1 to the 1998 Act, at the time of the injury.

Judgment

There was no dispute that the contract between the applicant and the respondent was oral. Whether the contract could be categorised as a contract of service or a contract for services was in dispute.

The PIC confirmed that, where a contract has not been reduced to writing, the characterisation exercise requires application of the multifactorial test articulated in Stevens and Vabu. The PIC emphasised that no single indicium is determinative. Rather, the task is to undertake a balancing exercise, assessing all aspects of the relationship. The PIC also cautioned against adopting a mechanistic checklist approach.

Was the applicant a worker?

Under s 4 of the 1998 Act, a ‘worker’ means a person who has entered into, or works under, a contract of service 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).

To establish entitlement to compensation for the injury, the onus rested on the applicant to prove that a contract of service existed.

Guided by the indicia articulated in Stevens and Vabu, and having considered the evidence, the Member determined that the applicant was not a worker, but rather an independent contractor. Key indicia included:

• Control and autonomy over work: the applicant exercised a high degree of autonomy over the performance of work, including determining his hours and managing others. While control remains a significant indicator, it was not determinative in isolation.
• Mode of remuneration: the applicant invoiced the respondent through his own business, describing work performed and charging goods and services tax (GST). There was no evidence of wages, payslips, pay as you go (PAYG) withholding or superannuation contributions.
• Provision and maintenance of equipment: the applicant supplied his own tools.
• Working arrangements: there was no evidence of standard hours, leave entitlements, or ongoing obligations typically associated with employment.
• Financial records: the applicant’s income tax return for the financial year ending 30 June 2021 recorded no income other than government allowances and $1 in interest, further undermining the assertion of an employment relationship.
• Right to exclusive services: the Member was not satisfied that the respondent had a right to the applicant’s exclusive services. While there was some evidence the respondent could direct the place of work from time to time, this was insufficient to outweigh the other indicia.

Was the applicant a deemed worker?

Clause 2 Sch 1 to the 1998 Act provides:
(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), or
(b) (Repealed)
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.

The Member determined that the evidence did not support a finding that the applicant was a deemed worker in 2021. While the value of the work exceeded the statutory threshold, the evidence established that:

• the work performed in early 2021 was incidental to the plumbing trade regularly carried out by the applicant under the name Hydraulic Plumbing Services or H.P.S. Aust Pty Ltd; and
• the applicant employed others, which is inconsistent with the deemed worker provisions.

Implications

The decision underscores the continued importance of clearly documenting working arrangements. Where contractual terms are unclear or entirely oral, the practical reality of the relationship will be closely scrutinised.

Objective evidence, including invoices and tax records, will generally be afforded greater weight than retrospective assertions of employment.