Cagney v D&J Building Contractors Pty Ltd
[2025] QCA 116
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- Cagney v D&J Building Contractors Pty Ltd[2025] QCA 116
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Cagney v D&J Building Contractors Pty Ltd[2025] QCA 116
Cagney v D&J Building Contractors Pty Ltd[2025] QCA 116
SUPREME COURT OF QUEENSLAND
CITATION: | Cagney v D&J Building Contractors Pty Ltd [2025] QCA 116 |
PARTIES: | SCOTT ANTHONY CAGNEY (applicant) v D&J BUILDING CONTRACTORS PTY LTD (respondent) |
FILE NO/S: | Appeal No 14321 of 2024 DC No 38 of 2021 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Civil) |
ORIGINATING COURT: | District Court at Ipswich – [2024] QDC 162 and [2024] QDC 171 (Horneman-Wren SC DCJ) |
DELIVERED ON: | 27 June 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 April 2025 |
JUDGES: | Mullins P and Flanagan and Boddice JJA |
ORDERS: |
|
CATCHWORDS: | EMPLOYMENT LAW – EMPLOYMENT RELATIONSHIP – ASCERTAINING EXISTENCE AND NATURE OF RELATIONSHIP – GENERALLY – where the applicant was a trade qualified carpenter of 40 years’ experience – where the applicant was self-employed and contracted his services to others throughout almost all of those 40 years – where the respondent company and the applicant were both subcontractors on the first building site – where the natural person who was working on behalf of the respondent at the first building site offered the applicant work on a second building site where the respondent was contracted by the owner to carry out building work – where the extent of the contractual negotiations between the parties was an exchange of a short series of text messages – where the applicant sought cash payment for his work for the respondent at the second building site – where neither party proposed any change in the usual mode the applicant undertook his carpentry work as an independent contractor – whether the applicant was an employee of the respondent ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – GENERAL PRINCIPLES – where the applicant was a carpenter of about 40 years’ experience – where the applicant fell from a ladder and was injured while working on a job site for the day for a cash payment from the respondent company which was contracted by the owner to carry out building work – where the applicant made an application to WorkCover Queensland for workers compensation in relation to the injuries sustained in the accident – where WorkCover allowed the application for workers compensation and accepted the applicant was a worker for the purposes of that application – where the respondent applied for a review of WorkCover’s decision and the Workers’ Compensation Regulator confirmed the decision of WorkCover – where the respondent did not appeal the Regulator’s decision – where the applicant argued the confirmation of WorkCover’s decision by the Regulator gave rise to an estoppel on the issue of whether the applicant was an employee at common law – whether the approach in Kuligowski v Metrobus (2004) 220 CLR 363 applied – whether Workcover was estopped from denying the applicant was a worker under s 11(1) Workers’ Compensation and Rehabilitation Act 2003 (Qld) Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 11, s 237, s 541, s 546 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1, cited EFEX Group Pty Ltd v Bennett (2024) 330 IR 171; [2024] FCAFC 35, considered Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34, considered Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, cited SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81; [2018] QCA 296, considered |
COUNSEL: | S C Holt KC, with A D Stobie, for the applicant B F Charrington KC, with M A McGarrity, for the respondent |
SOLICITORS: | McNamara & Associates for the applicant Hede Byrne Hall Lawyers for the respondent |
- [1]MULLINS P: The applicant was unsuccessful in his claim for damages for personal injuries sustained on Easter Saturday (31 March 2018) brought against the respondent on the basis he was injured when working as a construction labourer for the respondent and was a “worker” within the meaning of that term defined in s 11(1) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA): Cagney v D&J Building Contractors Pty Ltd [2024] QDC 162 (the reasons). The applicant had also argued that the respondent was estopped from denying the applicant was a worker within the definition in s 11(1) of the WCRA. This was based on the acceptance of the applicant’s application for workers’ compensation in respect of the injuries sustained in the accident by WorkCover Queensland on or about 1 August 2018 and the respondent’s application to the Workers’ Compensation Regulator pursuant to s 541 of the WCRA for review of WorkCover’s decision which was rejected and not the subject of any further review or appeal.
- [2]The trial judge found (at [111] of the reasons) that there was a contract for services between the applicant and the respondent and not a contract of service; there was never intended to be an ongoing relationship; and the applicant was not a worker under s 11(1) of the WCRA. The trial judge concluded (at [62]-[63]) that the respondent was not estopped from denying the applicant was a worker by reason of WorkCover’s decision to pay compensation to the applicant, as that decision of WorkCover only had finality in respect of the part of the Act to which the decision was relevant which was compensation under chapters 3 and 4.
- [3]The applicant applies, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), for leave to appeal against the trial judge’s judgment in favour of the respondent and the order for costs made in favour of WorkCover on 17 October 2024. The proposed grounds of appeal are:
- The trial judge erred in fact and law in finding that the applicant was not a worker as defined under s 11(1) of the WCRA.
- The trial judge erred in law in finding that the respondent was not estopped from denying the applicant was a worker as defined under s 11(1) of the WCRA by reason of prior determination of that issue.
The relevant legislation
- [4]Section 11 of the WCRA that was in force at the date of the accident (which was the reprint current between 1 January and 30 November 2018) provided as follows:
“11 Who is a worker
- A worker is a person who—
- works under a contract; and
- in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.
- Also, schedule 2, part 1 sets out who is a worker in particular circumstances.
- However, schedule 2, part 2 sets out who is not a worker in particular circumstances.
- Only an individual can be a worker for this Act.”
- [5]The definition of “worker” in s 11(1) requires satisfaction of two conditions. First, the worker must be a person who works under a contract and, second, in relation to the work, the worker is an employee for the purpose of assessment for PAYG withholding. Part 2-5 of schedule 1 of the Taxation Administration Act 1953 (Cwlth) (TAA) sets out in a table a summary of the payments covered by PAYG withholding. Item 1 is “A payment of salary etc. to an employee” with a reference to s 12-35. The term “employee” is not defined for the purpose of the TAA. Section 12-35 provides:
“An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as an employee (whether of that or another entity).”
- [6]It was therefore common ground at the trial that the determination of whether the applicant was a worker under s 11(1) of the WCRA would be answered by asking whether he was an employee at common law.
Facts relevant to the applicant’s engagement
- [7]The following facts relating to the applicant’s engagement by the respondent are taken from the reasons (at [1] and [83]) and together with evidence set out at [84]-[86] of the reasons were not challenged in this application. The applicant is a trade qualified carpenter of almost 40 years’ experience. Throughout almost all that period he was self-employed and contracted his services to others. Generally, the applicant provided his services to those contracting him at an hourly rate and he charged GST. PAYG taxation instalments were not withheld by those who engaged his services. Immediately preceding the accident, the applicant was contracting his services to a company performing work on a building site at Greenslopes and the respondent was subcontracting to the same company on the same site.
- [8]The trial judge set out (at [84] of the reasons) the applicant’s evidence of a conversation between himself and Mr Ellison on behalf of the respondent at that building site where both the applicant and the respondent were subcontractors on the Thursday before Good Friday:
“So he told you then the job site? --- He told me he had a job site and he talked to the little apprentice that was there, and he turned to the apprentice and said, ‘Yeah, I’ve got a couple of them going at the same time’.
And did he on that occasion say anything to you about working there? --- He said – not in the distant future, he said may be later on, I might have something for you.
Okay. And what was your reply? --- I said ‘Oh, alright then’.
Okay? --- I could do with a couple of cashies.
Okay? --- and that was it, I was home for the weekend then.
Did he make any response when you referred to cashies? --- No.
Okay. Is – talking about cashies, is that accepted terminology in the industry? --- Sometimes.
Okay. And what does it mean? --- That means you get paid cash instead of hourly rate or wages.”
- [9]The next communication between them was on Good Friday and comprised an exchange of text messages that the trial judge set out (at [85] of the reasons). Mr Ellison asked the applicant whether he would “like to give me a hand tomorrow on this frame at Eastern Heights”. The applicant responded that he could “but most of my tools are at work if that’s ok”. Mr Ellison said the applicant would need a nail bag, if he had a spare one, and the applicant responded that he thought he could come up with a spare. Mr Ellison gave the applicant the address of the site at Eastern Heights and stipulated the time for the applicant to arrive as 7.00 am. The conversation finished with the applicant saying that he would be there.
- [10]The following was noted by the trial judge (at [86] of the reasons). There was no discussion between the applicant and Mr Ellison of any rate of remuneration or by whom the remuneration would be paid. There was no discussion about completing a tax file declaration. When it was put to the applicant there was no discussion about supplying his superannuation details, the applicant said “You don’t usually worry about it if it’s one day”. When it was put to the applicant there was no discussion about the duration of the work, he said “as far as I knew, it was one day, and that was it”.
- [11]The applicant attended the site at Eastern Heights on the following day and Mr Ellison arrived shortly afterwards. The trial judge set out (at [87] of the reasons) the applicant’s evidence of the conversation that ensued as to the work to be performed:
“He told me what he’d like me to do: just go up on the roof and cut the roof sheets back so the trusses, when they come on Tuesday, could go in and not make too much water damage if it did rain.”
- [12]The trial judge noted (at [88] of the reasons) that Mr Ellison’s account of the same conversation was to similar effect:
“Okay. And did you have any discussion with Mr Cagney about what work you wanted him to do that day to assist you? --- I just – I just, sort of, said, well this needs to be done, that needs to be done and we’ve got to get this done, you know, as a leading hand does. Just, sort of, you know, things need to be done.
Did you tell him what specific task you wanted him to start doing? ---No, I didn’t.
Okay. Did you give him, though, the job that he had to do? As in, did you tell him what job to do? --- Well, no, I didn’t tell him what to do. I just told him what had to be done ---
Exact? --- On that job.
Thank you. And what was it that had to be done by him? --- What he was doing, which the role he took on was to cut some roofing iron – 18 inches of roofing iron off the back of the roof.”
- [13]The trial judge then summarised (at [89]-[91] of the reasons) the applicant’s account of what happened on site before he was injured. According to the applicant, there were three ladders on site, two of which were “six foot” and one that was “three or four foot”. He described them as being of the A frame type which could not be folded out and was “pretty sure” that Mr Ellison said “pick the best one over there”. The applicant positioned one of the six foot ladders, so he could access to the roof. He described it as “a bit rickety” and there was one rubber foot missing on the bottom of one leg. The applicant set up the ladder hard against the wall. He took his own metal cutting saw and nail bag up the ladder. He later took an extension lead from his van, when the one on site was not long enough. His total time on the job before the accident was about 25 minutes. The applicant’s description of the accident was set out (at [91]):
“I lowered the saw down by the cord, and then I walked over to where the ladder was. And now that the sheets were gone out of the thing, I stepped on the top plate of the existing house, and now that the sheets had gone from there, it was a bit further across to reach, so I put my hands on the top plate – on top plate and stepped on to the ladder and then – with me left foot and me right foot was going down to the second rung and the next minute, the ladder went sideways.
It went that way, I went the other way and I landed on the ground – or on the floor there.”
- [14]The trial judge set out (at [108]-[110] of the reasons) his conclusions from the communications and circumstances of the engagement of the applicant and his performance of work on site:
“[108] The [respondent] company, as a licensed building contractor, had a contractual obligation to perform the building work for which it had entered into a contract with the homeowners. Mr Ellison, on behalf of the [respondent], offered work in respect of the contracted works to the [applicant] knowing the [applicant] to be a building tradesperson.
[109] The [applicant], as a qualified tradesperson contracting in his own right for many years, accepted that offer to perform work on the building site. The mutual expectation of Mr Ellison (and thus the [respondent]) and the [applicant] was that the [applicant] would provide his professional trade skills in the performance of work on the site for one day only and that he would be remunerated a reasonable amount although details of remuneration were not discussed. He was subcontracting his services to the [respondent]. The obligation to pay that remuneration fell on the [respondent] it having engaged the [applicant], there having been no discussion at all to suggest that the [applicant] was being engaged directly by the owners. Who discharged the obligation to remunerate the [applicant] and whether Mr Ellison had an expectation that that would be by the owners had no bearing upon the obligation to remunerate being that of the company. It could not reasonably be argued that in the absence of payment by the owners the [respondent] had no obligation to pay the [applicant]. The [applicant]’s expectation, and that of the [respondent], was that payment for his services would be made in cash. Not only would there be no taxation withheld from the payment to the [applicant], the arrangement was deliberately one to avoid that. Indeed, in the [applicant]’s own words, it was a ‘cashie’ which meant that he was to ‘get paid cash instead of hourly rate or wages’. One readily infers that the [applicant] expected that he would earn remuneration on which he would never pay tax.
[110] The work which was to be performed by the [applicant] on the day would be that which he was directed to perform on the site by Mr Ellison (whether that be giving him a hand with the frame as referred to in the text messages or other work as directed on the site on the day). In that way, the [respondent], through Mr Ellison, controlled what work the [applicant] was to perform. There was no expectation that Mr Ellison would, and no evidence that he did, control how the [applicant] would perform the work. In fact, as was expected, the [applicant] determined for himself how the work was to be performed. The [applicant], in performing the work was engaged in his own business of sub-contract carpentry. He was not engaged or immersed within the business of the [respondent].”
Was there a prior determination of the issue of whether the applicant was a worker that gave rise to an estoppel?
- [15]The primary judge set out (at [7]-[8] of the reasons) the basis for the applicant’s claim of an estoppel against the respondent. WorkCover had accepted the applicant’s application for compensation under the WCRA which necessarily included a finding that the applicant was a worker as defined in s 11(1). The respondent applied for a review of WorkCover’s decision and the Workers’ Compensation Regulator confirmed the decision of WorkCover accepting the applicant’s application for compensation which constituted a confirmation of the finding that the applicant was a worker. Pursuant to s 546(3)(b) of the WCRA, the Regulator’s decision informed the respondent of its appeal rights and the respondent did not appeal.
- [16]Before the trial judge, the applicant had relied on Kuligowski v Metrobus (2004) 220 CLR 363 and asserted that the Regulator’s decision had the necessary “judicial” quality to give rise to an estoppel on the issue. The trial judge found that was not the case, concluding (at [13] of the reasons) that a consideration of the provisions of the Workers’ Compensation and Rehabilitation Act 1981 (WA) demonstrated that the relevant review process under the WA Act was more formal than the review under the WCRA. The trial judge noted (at [14]-[17]) the provisions of s 541, s 542, s 543 and s 544 of the WCRA. The trial judge noted (at [19] and [26]) the significance to the decision in Kuligowski of the privative clause in s 84ZN(1) of the WA Act which provided:
“Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.”
- [17]The issue in Kuligowski surrounding the construction of s 84ZN within division 3 of part IIIA of the WA Act (which provided for proceedings for the resolution of disputes in connection with claims for compensation under that Act) was the absence of the words “final and conclusive” which had been included in other provisions in the WA Act. The High Court concluded (at [39]) that the decision of the relevant review officer was final because it was completely effective unless and until it was rescinded, altered or amended. On the facts in Kuligowski, the High Court held (at [46]) that the relevant review officer did not make any finding on the evidence as to when the injury to Mr Kuligowski’s left ankle sustained at work in 1994 had resolved which meant there was no estoppel that would prevent the District Court in the proceeding for common law damages brought by Mr Kuligowski considering whether there was ongoing instability in his left ankle in April 1995 when he suffered an exacerbation of the symptoms in his left ankle. The High Court observed (at [48]) that it might have been possible for the relevant review officer to have made findings which would operate as issue estoppels in relation to the District Court proceeding, but he did not.
- [18]The trial judge concluded (at [29] of the reasons) that review decisions under the WCRA lacked the finality of decisions under the WA Act and considered that view was confirmed by SS Family Pty Ltd v WorkCover Queensland [2019] 3 Qd R 81.
- [19]The applicant submits that the trial judge was in error in relying on SS Family, as the application of Kuligowski to the decision of the Regulator confirming WorkCover’s decision to accept the applicant’s application for compensation on the basis he was a worker within the meaning of s 11 of the WCRA gave rise to an estoppel in relation to that issue in the applicant’s common law proceeding against the respondent. In other words, there was re-litigation before the trial judge in the damages claim of precisely the same issue resolved by the Regulator in respect of the applicant’s application for compensation and, applying Kuligowski, the respondent was not entitled to deny the applicant’s status as a worker. The assumption that underpins that submission is that the legislative scheme under the WCRA was relevantly of similar effect to the WA Act in the terms in which it stood for the purpose of Kuligowski. That is not a valid assumption as the construction task undertaken in SS Family shows.
- [20]In SS Family, the second respondent Mr Stankovic applied for compensation for an injury that he said he sustained when he was a worker employed by SS Family. The application was accepted by WorkCover which assessed Mr Stankovic as having a permanent impairment with a work-related impairment of less than 20 per cent. He was offered lump sum compensation but elected to sue SS Family for damages for personal injury for breach of duty in tort and contract. He was therefore taken to have rejected the offer of lump sum compensation. Subsequently WorkCover denied that it was obliged to indemnify SS Family on the ground that Mr Stankovic was not a worker because he performed his work under a contract of service with a trust of which he was the trustee which was one of the categories of persons who was deemed not to be a worker under part 2 of schedule 2 of the WCRA. SS Family defended Mr Stankovic’s statement of claim and issued a third party proceeding against WorkCover, claiming that WorkCover was liable to indemnify it against Mr Stankovic’s claim. SS Family was unsuccessful in striking out the allegations in WorkCover’s defence that it was entitled to deny indemnity on the ground that Mr Stankovic was not a worker when he sustained the injury. The appeal from that decision in SS Family was unsuccessful.
- [21]In SS Family, Fraser JA (with whom Sofronoff P and Davis J agreed) reframed the question to be decided (at [36]) as:
“Upon the proper construction of the Workers’ Compensation and Rehabilitation Act 2003 does an insurer’s decision to allow an application for compensation by a person claiming to have been a worker who sustained an injury in the course of working for an employer preclude the insurer from subsequently contending that the person was not a worker as a ground for denying that the alleged employer is entitled to an indemnity against legal liability for damages for the injury?”
That question was answered “No”. (The version of the WCRA relevant to SS Family was that which was current as at 14 August 2012. The differences between the 2012 version and the 2018 version of the WCRA are immaterial for the purpose of this appeal.)
- [22]In order to answer the question under consideration in SS Family, Fraser JA undertook the process of statutory construction of the WCRA. The starting point (at [6]) was the definition of “accident insurance” in s 8 of the WCRA as meaning “insurance by which an employer is indemnified against all amounts for which the employer may become legally liable, for injury sustained by a worker employed by the employer for— (a) compensation; and (b) damages”. Fraser JA noted (at [16]) that it was necessary to have regard to “the insurer’s obligation to pay compensation to a worker and its obligation to indemnify an employer against legal liability for damages claimed by a worker”. Fraser JA observed (at [16]) that s 8 of the WCRA describes the statutory accident insurance both in relation to paying compensation to a worker and in relation to legal liability for damages claims which are different heads of liability. Fraser JA also noted (at [16]) that a worker’s rights in relation to compensation derived from the WCRA and are regulated in chapters 3 and 4 which give effect to the objects summarised in s 5(1)(a) of the WCRA but that chapter 5 which limits the common law rights of persons to seek damages for injury sustained by a worker gives effect to the objects expressed in s 5(4)(c) and s 5(5) of the WCRA. It was also emphasised (at [16]) that chapter 5 does not create any entitlement to damages for workers but merely regulates a worker’s access to exercising those common law rights. Fraser JA also commented (at [17]) on the expressions used in the objects relevant to regulating damages claims under chapter 5:
“Those expressions discourage a construction of the Act which would extend the effect of determinations implicit in an insurer’s decision to allow compensation beyond that subject matter and in a way that would enlarge the scope of the statutory accident insurance described in s 8 with reference to defined terms, including ‘worker’.”
- [23]Fraser JA then noted (at [18] and [21]) that s 134 of the WCRA provides for the insurer to allow or reject an application for compensation and that, subsequent provisions (s 135, s 136 and s 137) then use “worker” to describe a person whose application for compensation has been allowed, but concluded (at [21]) that those provisions were “consistent with a decision to allow an application for compensation having effect only in relation to compensation, and even then, only in the absence of any review under s 168”.
- [24]The gateway for a person entitled to seek damages for an injury sustained by a worker is found in s 237(1) of the WCRA and s 237(1)(a)(i) has remained in the same terms as it was in SS Family that the worker is entitled to seek damages for an injury sustained by the worker “if the worker … has received a notice of assessment from the insurer for the injury”. That is a condition precedent to the bringing of the common law claim for damages but Fraser JA noted (at [29]) that it did not follow that an insurer’s decision under s 134(1) of the WCRA to accept a claim for compensation (which was relevant under s 237(1)(a)(i)) justifies not applying in s 8 the definition of “worker” to determine the scope of the indemnity available to the alleged employer under the statutory accident insurance against the claim for damages. Fraser JA then stated at [30]:
“The applicant primarily relied upon s 237(1). The purpose of s 237(1) is made plain by the provision in s 237(5) that s 237(1) ‘abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker’. It is no part of that purpose to make an insurer’s decision under s 134(1) that a person is entitled to compensation binding upon the insurer in the different context of the alleged employer’s entitlement to indemnity against such a claim. To construe s 237(1) in such a way would not give effect to the statutory objects mentioned in [16] of these reasons. Nor is such a construction required by the statutory text. The definition of ‘worker’ is one of the pivotal provisions upon which the scope of the Act depends. Its use in the introductory text of s 237(1) is naturally to be understood as attracting the definition. The natural and literal construction is that each claimant for damages for injury sustained by a ‘worker’ as defined may bring such a claim only after having obtained the decision required by the subparagraph which is applicable to such a claim. Subsection 237(1) does not apply to regulate a proceeding which is not for damages for an injury sustained by a ‘worker’ as defined, whether or not a decision by an insurer under s 134(1), or under a provision in Ch 5 related to s 237(1), suggests that the proceeding is of that character.”
- [25]SS Family’s attempt to hold WorkCover to its acceptance of Mr Stankovic’s claim for compensation for the injury sustained at work in relation to Mr Stankovic’s common law claim for damages was rejected for the following reason (at [34]):
“The effect of the applicant’s construction is that an insurer is not permitted to deny indemnity against the liability of an employer to pay damages which is outside the scope of the statutory accident insurance on the ground that the claimant is not a ‘worker’ as defined in the Act merely because the insurer earlier allowed a claim for compensation upon the basis of a mistaken determination that the applicant was a ‘worker’ as defined in the Act. That construction of the Act is not reconcilable with the definition of ‘accident insurance’ in s 8 read with the definitions of key terms, it does not find support in other provisions, none of which is directed to the scope of the accident insurance, and it is incompatible with the statutory purposes expressed in the Act.”
- [26]The decision in SS Family resolved a dispute between the insurer and the employer which had sought indemnity under the statutory insurance scheme in relation to the employee’s claim against the employer for common law damages where the employee’s application for compensation had been allowed by the insurer. There had been no decision by the Regulator (as there is in the subject appeal) in relation to the acceptance of the applicant’s application for compensation in SS Family. The approach to the construction of the WCRA in SS Family remains relevant, however, to the dispute between the applicant and the respondent in the subject appeal, as the construction of the WCRA adopted by the Court in SS Family treated WorkCover’s decision on the acceptance of the application for compensation as relevant only to the compensation scheme and not relevant to any claim for damages that was pursued by Mr Stankovic for compensation against SS Family in respect of the injury sustained during employment. Applying the same construction of the WCRA applied in SS Family means that there is no basis for the applicant to rely on Kuligowski to assert an issue estoppel against the respondent in respect of the issue of whether the applicant was a worker for the purpose of his proceeding for common law damages for the injury in respect of which he was paid compensation under the WCRA.
- [27]Even if an issue estoppel arose from the Regulator’s decision, the issue estoppel was in respect of the finding that the applicant was a worker for the purpose of entitlement to compensation under the compensation scheme provided for in the WCRA and for satisfaction of the condition precedent in s 237(1)(a)(i) for bringing the common law damages claim. It did not raise an estoppel against WorkCover in respect of the issue of whether the applicant was a “worker” under s 11(1) for the purpose of defending the proceeding for common law damages in relation to the injury sustained by the applicant. There was no error in the trial judge’s finding (at [63] of the reasons) that the respondent was not estopped from denying the applicant was a worker.
What is the test to be applied as to whether the applicant was a worker?
- [28]The trial judge noted (at [68] of the reasons) the High Court authorities in which the determination of whether there was an employment relationship was considered in circumstances where the parties’ relationship had been comprehensively committed to a written contract: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 (CFMMEU) at [43], [45], [47] and [55] and ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254 at [8]. The trial judge noted (at [69]) that the terms of any contract between the applicant and the respondent were “barely ascertainable at all”. Notwithstanding the contrast between the contract entered into by the applicant and respondent and those cases in which there was a comprehensive written contract, such as CFMMEU, the trial judge noted (at [73]) that the analyses of the plurality of Kiefel CJ and Keane and Edelman JJ in CFMMEU and the joint judgment of Gageler and Gleeson JJ (who agreed with the plurality in the result but for different reasons) provided guidance which led to the trial judge’s conclusion that the relationship between the parties was not one of employment.
- [29]The judgment of the plurality in CFMMEU emphasised (at [39]) that:
“… the dichotomy [of own business/employer’s business] usefully focuses attention upon those aspects of the relationship generally defined by the contract 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.” (footnotes omitted)
The trial judge observed (at [76] of the reasons) that “the own business/employer’s business dichotomy is a live consideration in this case”.
- [30]The trial judge also noted (at [77] of the reasons) that the plurality in CFMMEU (at [73]) considered the issue of control:
“Like the “own business/employer’s business” dichotomy, the existence of a right of control by a putative employer over the activities of the putative employee serves to sensitise one to the subservient and dependent nature of the work of the employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services.”
The trial judge noted the two elements to the issue of control referred to by the plurality in CFMMEU (at [76]-[77]) of the right to control the work to be done and how it was to be done.
- [31]The trial judge also referred to the guidance given in the joint judgment in CFMMEU of Gageler and Gleeson JJ who referred (at [108]) to the contract of employment having “a two-tiered structure” of an exchange of work and remuneration at the first level and an exchange of mutual obligations for future performance at the second level. The trial judge quoted [113] of the joint judgment in CFMMEU (at [81] of the reasons) which focused on the extent of the control that the putative employer can be seen to have over how, where and when the putative employee does the work and the extent to which the putative employee can be seen to work in his or her own business as distinct from the business of the putative employer.
- [32]The applicant submitted that the trial judge erred in applying the multifactorial test, as the principles in CFMMEU are applicable even when there is no comprehensive written contract: EFEX Group Pty Ltd v Bennett (2024) 330 IR 171. The respondent relied on dicta in CFMMEU as suggesting that the principles applied in that case for determining whether a party was engaged as an employee or as an independent contractor were limited to those cases where parties had comprehensively committed the terms of their relationship to a written contract. The respondent relied particularly on the judgment of the plurality at [59] and [61]:
“[59] Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties’ rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties’ relationship by a wide-ranging review of the entire history of the parties’ dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties’ rights and obligations, not to form a view as to what a fair adjustment of the parties’ rights might require.
…
[61] The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider ‘the totality of the relationship between the parties’ by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.” (footnotes omitted)
- [33]The worker in CFMMEU had entered into a wholly written contract with Personnel Contracting Pty Ltd which was a labour hire company that placed the worker at building sites to undertake basic labouring tasks under the supervision and direction of the builder which was a major client of the company. It was held that the worker was an employee of Personnel Contracting Pty Ltd. The plurality applied the principles of contract interpretation which the plurality held (at [45] and [48]) had been the long-standing approach to contract interpretation to determine the nature of the relationship between parties. The pluality explained (at [55]-[57]) that the Court’s decisions in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21 did not suggest a departure from the long-standing approach to contract interpretation that predated those decisions where one person had done work for another pursuant to a comprehensive written contract.
- [34]The Full Court of the Federal Court in EFEX did deal with the approach that should be taken in determining the nature of the parties’ relationship in respect of a wholly oral contract for work by one person for a company. That appeal concerned whether the primary judge erred in finding that Mr Bennett who was retained under an oral contract was an employee during the period of 19 months when he performed sales and related work for a technology services company. Even where there is no comprehensive written contract, Katzmann and Bromwich JJ explained at [10] that “whether the [contract] is written or not, or is oral in whole or in part, the characterisation of the relationship between the parties depends on their contractual rights and not on circumstances, facts or events that do not affect those rights”. They observed (at [11]):
“The principles of contract interpretation also apply to the terms of an unwritten contract that are able to be ascertained, inferred or implied. They allow regard to be had to circumstances surrounding the making of the contract and events and matters, known to the parties at the time of contracting, which assist in identifying the object or purpose of the contract. The nature of the work contracted for and the arrangements of the supply or provision of any tools or equipment to the putative employee may also be relevant. Generally, things said or done after a contract was made are not legitimate aids to its construction. In a case such as this, for a matter with no necessary connection to the contractual obligations of the parties to have any bearing on the characterisation of their relationship, ‘it must be concerned with the rights and duties established by the parties’ contract, and not simply an aspect of how the parties’ relationship has come to play out in practice’: Personnel Contracting at [61] (Kiefel CJ, Keane and Edelman JJ).”
- [35]The appeal in EFEX succeeded and the finding that Mr Bennett was an employee was set aside. Lee J (who was the third member of the Full Court in EFEX) agreed with the orders proposed by Katzmann and Bromwich JJ but observed (at [57]) that it was a significant oversimplification where there are informal arrangements that the Court must put out of its mind any post-contractual conduct, as post-contractual evidence is admissible to resolve what was said in forming an oral contract.
- [36]Even though the trial judge purported to apply the guidance obtained from CFMMEU, his Honour expressly took into account (at [109] of the reasons) the performance by the applicant of the work on site in determining whether he was an employee of the respondent. It was therefore arguable (and was so argued on behalf of the applicant) that the trial judge had applied aspects of the multifactorial test in determining the nature of the relationship between the applicant and the respondent, rather than focusing on whether any inference could be drawn from the manner in which the applicant performed work on site as to the terms of the applicant’s engagement by Mr Ellison.
- [37]Although the applicant submitted that the trial judge erred in fact and law in finding the applicant was not a worker as defined in s 11(1) of the WCRA, it was the trial judge’s determination and application of the law and ultimate conclusion on the facts that was the focus of this ground. As noted at [7] above, it was not the fact finding made by the trial judge by reference to the evidence accepted by the trial judge that was the subject of this appeal. The law for determining the nature of the parties’ contract as explained by the plurality in CFMMEU and applied in EFEX can be applied to the facts as found by the trial judge.
- [38]The applicant and Mr Ellison were tradesmen and businessmen. Their arrangement was informal but, in the circumstances, as found by the trial judge (at [108] of the reasons) where the respondent had a contractual obligation to perform the building work at the Eastern Heights site for which it had entered into a contract with the homeowner, the contract between the respondent and the applicant was a commercial contract. The approach to determining the nature of the relationship provided for by the terms of contract includes the circumstances surrounding the making of the contract known to the parties at the time of contracting as set out in EFEX at [11] or, in other words, consideration of the context in which the contract was made as set out in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]:
“The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.” (footnotes omitted)
- [39]Both the applicant and Mr Ellison on behalf of the respondent were operating their respective businesses as building subcontractors on the Greenslopes site when Mr Ellison on behalf of the respondent engaged the applicant to assist him at the Eastern Heights site where the respondent had a contract for building work with the homeowner. That was the context in which the engagement was negotiated to which it is relevant to have regard in considering the nature of the engagement. As the applicant submitted, the inference drawn by the trial judge (at [109]) that the parties did not intend for the respondent to deduct PAYG withholding from the cash paid to the applicant for working at the Eastern Heights site was not determinative, as the question of whether a worker is an employee for the purpose of assessment for PAYG withholding under the TAA depends on the objective determination of the parties’ relationship and not whether they intended to comply with those mandatory provisions of the TAA where salary or wages was paid to an employee.
- [40]The applicant had only raised with Mr Ellison one aspect of payment for assisting the respondent at the Eastern Heights site that differed from the conditions that applied to his engagement at the Greenslopes site and that was that he was seeking a cash payment. Mr Ellison did not demur to that request during the exchange of text messages on Good Friday in which he offered the applicant to give him a hand on Saturday “on this frame at Eastern Heights” and therefore acquiesced to the applicant’s request to be paid in cash. Obviously to do that job, the applicant had to attend the site when Mr Ellison or others working for him were at the site. The provision of the address of the Eastern Heights site and that he should be there about 7.00 am was therefore essential information for the engagement and not otherwise relevant to the nature of the relationship between the parties under their contract. Because of the circumstances that both the applicant and Mr Ellison were working as subcontractors at the Greenslopes site, the fact that the applicant raised that most of his tools were at that site was also a matter that did not assist in determining the nature of the parties’ relationship. Most significantly, however, the inference to be drawn from the fact that neither the applicant nor Mr Ellison proposed any change in the usual mode (known to Mr Ellison) that the applicant undertook his carpentry work as an independent contractor (apart from the applicant’s request to be paid in cash) was that the parties did not intend for the applicant to be other than a subcontractor to the respondent at the Eastern Heights site. The brief exchanges the parties had that resulted in the formation of the contract meant that the applicant was continuing to operate as a subcontractor. The applicant was therefore conducting his own business and not involved in the respondent’s business as an employee when he attended at the Eastern Heights site.
- [41]Even though the performance of the applicant of the work at the Eastern Heights site was not a matter relevant to the determination of the nature of the relationship between the parties pursuant to their contract that had been made prior to the applicant’s arrival at the site, the findings of the trial judge (at [109] of the reasons) that there was no evidence that Mr Ellison controlled how the applicant performed his work at that site is consistent with the conclusion that their contract was for the applicant to be the respondent’s subcontractor.
- [42]There was no error in the trial judge’s ultimate conclusion that the applicant was not an employee of the respondent.
Whether leave to appeal should be granted
- [43]Even though the determination of the questions of law raised by the proposed grounds of appeal does not result in success on the appeal for the applicant, those questions of law may have wider application than the applicant’s matter. It is therefore appropriate to grant leave to appeal, even though the appeal will be dismissed.
Orders
- [44]There is no reason why costs should not follow the event. The orders which should be made are:
- Leave to appeal granted.
- Appeal dismissed.
- The appellant must pay the respondent’s costs of the appeal.
- [45]FLANAGAN JA: I agree with Mullins P.
- [46]BODDICE JA: I agree with Mullins P.