Peter Hunt (trading as Peter Hunt Plastering v Review unit Q-COMP
[2015] QIRC 55
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- Peter Hunt (trading as Peter Hunt Plastering v Review unit Q-COMP[2015] QIRC 55
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Peter Hunt (trading as Peter Hunt Plastering v Review unit Q-COMP[2015] QIRC 55
Peter Hunt (trading as Peter Hunt Plastering v Review unit Q-COMP[2015] QIRC 55
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Peter Hunt (trading as Peter Hunt Plastering v Review unit Q-COMP [2015] QIRC 055 |
PARTIES: | Peter Hunt (Appellant) v Review unit Q-COMP (Respondent) |
CASE NO: | WC/2013/120 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 23 March 2015 |
HEARING DATES: | 9 July 2013; 14 November 2013 (hearing) 12 August 2013 (Respondent's submissions) 25 October 2013 (Appellant's submissions) 8 November 2013 (Respondent's submissions in reply) |
MEMBER: | Industrial Commissioner Knight |
ORDERS : |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - DECISION OF SIMON BLACKWOOD (WORKERS' COMPENSATION REGULATOR) - S 11 OF THE ACT "WHO IS A WORKER" - WHETHER “CONTRACT WHOLLY OR PRINCIPALLY FOR LABOUR - contract for labour only or substantially labour only - Who is a worker in particular circumstances - Schedule 2 persons who are workers - Piecework or contract for service - Results test - Appellant bears onus of proof - Wilton was not a "worker" in accordance with s 11 of the Act - appeal dismissed. |
CASES: | Workers’ Compensation and Rehabilitation Act 2003 (Qld) 2012 Act No. 17 Blue Wren Holdings Pty Ltd t/a Civic Showerscreens and Q-COMP (WC/2012/425) - Decision Brett Holt Plumbing Pty Ltd v Q-COMP Review Unit (2005) 178 QGIG 255 Dean Robinson v Q-COMP (C/2009/30) - Decision Hollis v Vabu Pty Ltd (2001) CLR 21 Margaret Green v Q-COMP Decision of Noonan Industrial Magistrate delivered 12 May 2004 (MAG – 00004554/04(3)) Marshall v Whittaker’s Building Supply Company (1963) 109 CLR 210 Reliable Couriers Pty Ltd v Q-COMP [2005] 180 QGIG 130 Simon Blackwood (Workers' Compensation Regulator) v Blue Wren Holdings Pty Ltd [2014] ICQ 011 Smith v Bush [1990] 1AC 831 SPE Pty Ltd AND Q-COMP (WC/2009/19) - Decision Workcover Queensland v J.M Kelly Pty Ltd (2003)173 QGIG 589 World Book (Australia) Pty Ltd v Commissioner of Taxation (1992) 27 NSWLR 377 Sheller JA at 387 |
APPEARANCES: | Mr H. Lepahe instructed by Australian Business Lawyers for the Appellant. Mr S. Sapsford directly instructed for Simon Blackwood (Workers' Compensation Regulator). |
Decision
- [1]On 25 August 2012, Mr Brent Wilton was performing sanding services at Lot 43, Fairway Boulevard, Hope Island for the Appellant, Peter Hunt (the "Appellant") when he slipped and fractured his left wrist. Mr Wilton submitted a claim for workers compensation on 6 September 2012 which was subsequently accepted by Workcover on 3 October 2012. Mr Hunt sought a review of the decision by Workcover however the Regulator (the "Respondent"), by decision dated 11 March 2013, confirmed Workcover's decision. It is this decision that Mr Hunt is appealing.
Issues for Determination
- [2]There is no dispute between the parties in this appeal that Mr Wilton suffered a personal injury by way of a left wrist injury on 25 August 2012. It is also accepted that at the time he injured his wrist Mr Wilton was performing work under a contract for service for Mr Hunt. The issue in dispute is whether or not Mr Wilton was, at the relevant time, a "worker" within the meaning of that term as used in the Act whilst undertaking a contract for service.
- [3]Australian Business Lawyers, on behalf of the Appellant contends that at the point Mr Wilton was allegedly injured he did not come within the definition of a worker in s 11 of the Act. Further, that Mr Wilton was excluded from being a worker, due to each of the disqualifying factors in section 2 of Schedule 2, Part 1 of the Workers’ Compensation and Rehabilitation Act 2003 (the "Act").
- [4]The Respondent submits the services provided by Mr Wilton were for labour only or substantially for labour only. Further, that the Appellant has failed to make out all three elements of the results test and in particular subsection (iii) to 2(a) of Part 1 of Schedule 2, which means Mr Wilton is not excluded from the definition in this part which deems him to be a worker.
The Evidence
- [5]Mr Peter Hunt, a sole trader, operates a small plastering business on the Gold Coast which provides plastering services to building contractors in both the residential and commercial markets. His evidence was that when quoting for a job he considers factors including height, meterage, the materials required for the job and location. In regards to the sanding elements of his service, he advised the Commission he would ordinarily quote a rate for sanding depending on the meterage and height of the job. For larger commercial jobs Mr Hunt would quote an hourly rate which he said was due to union involvement in commercial building projects where work was generally paid by the hour.
- [6]In order to undertake his plastering work Mr Hunt supplied his own materials, tools and equipment including screw guns, aluminum planks, ladders, hammers, automatic tools, protective clothing, saws and mitre boxes. Materials, tools and equipment utilised for the sanding aspects of his work included an electrical powered sanding machine, planks, ladders, trestles and extension cords. He estimated the weight of a sanding machine with a vacuum attachment to be in the vicinity of between 10kg’s and 15kg's, with a width and height of approximately 80 centimetres by 70 centimetres. Mr Hunt maintained his own accident and income insurance but did not maintain a Worker's Compensation policy because he said he did not employ people.
- [7]Mr Hunt recalled being introduced to Mr Wilton in or around 2006 by a company he was employed by at the time. He recalled Mr Wilton had told him he was a sanding contractor and if he (Mr Hunt) "needed … (anyone) outside that company … to do sanding for him" to contact him. Subsequent to that conversation Mr Hunt confirmed Mr Wilton performed one job for him in 2006 after which Mr Wilton invoiced him for his services. At no stage did Mr Hunt pay Mr Wilton's superannuation, payroll tax or provide him with any equipment or tools of trade. He agreed with the proposition that Mr Wilton's machine sander would have cost him in the vicinity of $1500. His evidence was that Mr Wilton also used other specialised equipment such as stilts and a dustless sanding vacuum attachment.
- [8]Some years later, Mr Hunt was undertaking plastering and sanding contract work in Brisbane on a job for Beenleigh Interior Linings where he was working side by side on a duplex with another contract plasterer. The other contract plasterer, Greg Spain, mentioned to Mr Hunt he had arranged for Mr Wilton to undertake the sanding services on his job. As Mr Hunt already knew Mr Wilton, he decided it would be convenient to also contact him and ask if he was able to undertake the sanding he required in the other half of the duplex.
- [9]Mr Hunt explained that Beenleigh Interior Linings (Beenleigh) probably had a group of forty or more contractors and employees that it relied on to perform various building construction services. He would be contacted by Beenleigh to undertake plastering and sanding work on various residential and commercial properties. Where he required additional sanding support he would contact other contractors such as Mr Wilton to see if he was available to do the work.
- [10]Mr Wilton's evidence was that he first met Mr Hunt in 2005 where they were both working on a site for Beenleigh. He agreed that he was later approached by Mr Hunt in 2006 to undertake some sanding services but did not do any further work for him until 2012 when he undertook a series of sanding jobs for him on residential building sites up until his injury occurred in August 2012. Mr Wilton estimated the cost of his sander and the vacuum attachment at approximately $1400. Under cross-examination Mr Wilton told the Commission he had an ABN which he needed to run his business.
- [11]Mr Hunt used a Nissan Patrol to move around his gear from site to site. He said Mr Wilton owned a blue Ford Falcon utility and he would not have engaged Mr Wilton if he didn't own a utility given the amount of equipment he was required to carry with him to undertake the sanding work. Under cross-examination Mr Hunt acknowledged Mr Wilton used his vehicle to get to work, however he was not prepared to accept Mr Wilton could have used a bus to get to work given the size of the equipment and tools he would have been required to move from job to job. Mr Wilton told the Commission that in his current job with MIK, another building contractor for whom Mr Wilton performed work, he car pooled with another fellow called Craig who allowed him to put his sander in his four door utility. Under cross-examination Mr Wilton's evidence with respect to getting to and from various jobs was that he didn't car pool when he was undertaking Mr Hunt's jobs because they would often be "out of the way" and that he needed his vehicle to get to the job and move his equipment around.
- [12]Mr Hunt told the Commission he did not work onsite with Mr Wilton when he was performing his sanding services as he had already moved on to the next job. Mr Hunt's evidence was that he did not direct Mr Wilton in how he did the job. Further, it was open to Mr Wilton to organise other people to assist him with his sanding. He was of the view it was up to Mr Wilton to do the job however he wished to and recalled on one occasion Mr Wilton had taken his brother to a residential site in Toowong to assist him with a job. Under cross-examination, Mr Hunt agreed with the suggestion he might have encouraged Mr Wilton to take other people to the Toowong job due to its size.
- [13]Mr Wilton described a normal work day whereby he would head out to his XR6 utility where his tools and sander were already loaded up. He denied having any containers, drills or hand tools in the utility. He agreed the size of his professional sanding machine was approximately 80cm by 80cm and weighted approximately 15kg when there was dust in it. He agreed he would also place extension cords, an esky, a respirator, sanding discs and stilts in his utility. Mr Wilton also had bars on his utility to carry a ladder but said he could not recall using a ladder for any of the jobs he undertook for Mr Hunt.
- [14]In respect of organising various sanding jobs, Mr Hunt said he would contact Mr Wilton over the phone to inquire as to whether he was available to do the job. Mr Wilton would either say yes or no depending on the time frame and nature of the job. Mr Hunt's evidence was that Mr Wilton knocked back work on occasions because he had other jobs on or he was unable to contact Mr Wilton at various times. He also recalled Mr Wilton not accepting certain jobs on occasion because they were unable to agree on a suitable rate. Mr Wilton's evidence was that he recalled accepting the work that was offered on most of the occasions Mr Hunt contacted him.
- [15]Mr Hunt provided examples of other jobs where he was aware Mr Wilton was also performing sanding services including the Logan Hospital where he said Mr Wilton was working at the same time he was also performing the Hope Island job for Mr Hunt. He recalled Mr Wilton started at Hope Island on a Wednesday, but worked at Logan Hospital on Thursday and Friday and then made separate arrangements with the builder to access the Hope Island site on the Saturday which is where Mr Wilton claimed he injured his wrist. Under cross-examination Mr Hunt indicated he was unsure as to where and when Mr Wilton had actually hurt his wrist.
- [16]In relation to the Hope Island job, Mr Wilton's evidence was that he started the job on the Wednesday. On that day he recalled taking his utility and sanding machine to the site where he completed all the necessary machine sanding. He was contacted by another contractor on the same day and asked to assist with a job at the Logan Hospital on the Thursday and Friday of the same week. He said there was no particular schedule or time within which he had to finish the Hope Island job so he performed sanding work at Logan Hospital and then arranged to get access to the Hope Island site through the principal builder on the Saturday to finish the job. Mr Wilton's evidence was that he came back on the Saturday to complete the square sets which predominantly required hand sanding.
- [17]Mr Hunt recalled Mr Wilton contacting him on Saturday night, 25 August 2012 at about 7.00pm to say that he had finished the job but that he had hurt himself. He also recalled receiving a further call from Mr Wilton on the following Monday to confirm he had definitely broken his wrist. In the same conversation, Mr Hunt said he asked Mr Wilton if he had his own insurance and he recalled Mr Wilton telling him he had let it lapse because he had been working for MIK and they had their own insurance. At some point during their conversation about his injury, Mr Hunt recalled Mr Wilton saying he would approach Beenleigh about a Workcover claim.
- [18]Mr Wilton's evidence was that he fractured his wrist at the Hope Island site when he stepped over a 'jam' which caused him to skid, put his arm back and hit the concrete. He noticed a lump on his wrist straight away and went to Paradise Point medical centre. He recalled being unsure as to whether Beenleigh was responsible for Workcover. Under cross-examination Mr Hunt had not told him to claim that Beenleigh was his employer.
- [19]In response to questioning around why he didn't have any work insurance Mr Wilton said:
"I'd only just finished working for MIK, and then I was sorting out my Workcover insurance through Westpac, and it was three days before that they actually rung me and told me, yeah, we're going to give you insurance, but I had the accident."
…
Mr Taylor: And, you need insurance to work for other people: correct? ---I wanted to get insurance to work. So, it's not that I needed it. I wanted to get the insurance. As I said, I only finished working for MIK.
Because when you work for yourself you need insurance? --- Yeah. You don't."[1]
- [20]On 6 September 2012, Mr Hunt was contacted by a Workcover representative and was requested to work through, over the telephone, a Worker Determination Form containing a series of questions. Mr Hunt's evidence was that a number of the questions that were ticked as 'no' on the form including a question as to whether Mr Wilton was required to use a vehicle and to supply significant materials, plant and equipment were incorrectly ticked on the form. Instead, Mr Hunt's view was that Mr Wilton was required to supply significant materials, plant and equipment. Additionally he was required to provide and use a work vehicle.
- [21]Mr Hunt said he had been invoiced $440 for the Hope Island job where Mr Wilton claimed he hurt his wrist. He estimated the job should have taken Mr Wilton a day and a half to complete. The invoices provided to Mr Hunt by Mr Wilton contained a reference to 'sanding' with a dollar amount, inclusive of GST and no further details other than a reference to the address where the work was undertaken. Mr Hunt said there was no need to have any breakdown because he and Mr Wilton had generally worked out the amount of the job beforehand with both of them well aware of the metreage and the agreed rate. He said occasionally the rate would be adjusted if it was recognised the work was more complex or difficult than originally thought. For example, on occasion Mr Hunt said he might perform more complex ceiling work with Mr Wilton picking up the less difficult work where he assessed that Mr Wilton might not get the job finished on time. On those occasions the price would be renegotiated.
- [22]Mr Wilton's evidence was the amounts he would record on invoices he gave to Mr Hunt were not always clear at the commencement of the job because adjustments would be made based on the meterage and complexity of the job once it had been completed. When Mr Wilton indicated he was available to do a job, Mr Hunt's evidence was that they would discuss the meterage rate and Mr Wilton would ask how many metres were in the job so they would both know from the start what the job would be worth to Mr Wilton. Mr Hunt’s recollection was that the rates would generally be the same and it was just a matter of discussing the meterage, including the lineal metre rate around the ceiling levels which attracted a higher rate.
- [23]Mr Hunt explained Mr Wilton would receive a higher rate for sanding of lineal plasterboard with a square set. He explained that sanding which was undertaken with a sanding machine generally attracted the lower rate of 30 cents a metre, but that the sanding work undertaken up higher where the walls and ceilings intersected was more intricate and also required the use of hand tools, stilts, trestles or ladders therefore attracting a higher rate of 50 cents per lineal metre. Under cross-examination Mr Hunt was of the view the split between hand sanding and machine sanding was about 20/80, with the vast majority of work being performed by the machine. In contrast, Mr Wilton estimated the split at 40/60 with the majority attributed to machine sanding. Under cross-examination Mr Wilton acknowledged the majority of the sanding work he performed was undertaken by machine.
- [24]Mr Hunt's evidence was that Mr Wilton was required to remedy any defects in his work. He recalled an occasion where he received a complaint from Beenleigh who told him they were patching some walls. He expected a bill for it and contacted Mr Wilton to let him know there was a problem with the sanding. He recalled advising Mr Wilton that there would be a back charge for the work; however in the end he did not receive a bill from Beenleigh for the rectified work so he didn't take it any further with Mr Wilton.
- [25]Later, under cross-examination Mr Hunt indicated that he did not say directly to Mr Wilton that he would be required to pay a back charge because in the end Beenleigh did not charge him for the rectification work. Mr Hunt recalled another occasion where Mr Wilton contacted him and advised the walls were damp and that he had hit a damp area with his sanding machine and ripped out some compounds after which Mr Wilton patched it as best he could. Mr Hunt was not charged for the additional work by Mr Wilton. Mr Wilton's evidence was that he was not required to rectify any work and that he had simply contacted Mr Hunt to let him know the Beenleigh patchers might need to do some additional work due to challenges with the dampness.
- [26]Mr Hunt's evidence was that in addition to a series of phone calls his total contact with Mr Wilton consisted of one meeting in 2006, and only two other occasions where he ran into him on another job site and possibly at a supply company. He said he utilised the services of Mr Wilton on six jobs but was never present when Mr Wilton undertook his sanding work.
- [27]Mr Hunt’s evidence was that it was not uncommon for a builder to provide outside scaffolding on a building site which would then be utilised by others. On occasions, he indicated Mr Wilton would have been required to undertake sanding at a height where it would not have been appropriate to use a machine. At those times, he thought it would have been necessary for Mr Wilton to bring along a ladder in order to finish the job. He said it was not uncommon to use a sanding pad with square edges to sand the square set and internal corners but the sanding machine was used for a 'major' part of the work because it was a lot quicker than hand sanding.
- [28]Under cross-examination Mr Wilton agreed that between 9 March 2012 and 2 September 2012 he earned the following amounts from various contractors for sanding services:
• $5950 – MIK
• $2590 – Peter Hunt Plastering
• $1830 – Fry's Interior Linings
• $1711 – Adam Emblam
• $1015 – Beenleigh Interior Linings
• $410 – Gordon Muggeridge
• $300 – Payne Family Trust
• $130 – Grabucon Carpentry
- [29]He explained that he charged some of the contractors such as MIK an hourly rate because they were commercial sites. He was uncomfortable about including MIK within the named group of invoices. Mr Wilton recalled performing six jobs for Peter Hunt between March 2012 and September 2012. Further invoices tendered by Counsel for the Respondent suggest Mr Wilton performed work on three other jobs in April, May and June 2012 which weren't included in the above total for Peter Hunt. Mr Wilton told the Commission he would not be paid until a job was completed in its entirety.
- [30]Mr Wilton confirmed that on occasion his brother would assist him with certain jobs or they would swap jobs due to the job location or when it was more practical to 'trade' jobs. On one occasion he recalled his brother assisting with a job he was undertaking for Peter Hunt.
The Relevant Legislative Provisions and Authorities
- [31]The legislative provisions dealing with who is a worker for the purposes of this matter are found at s 11 and Schedule 2 of the Act. Section 11 provides as follows:
"11 Who is a worker
(1)A worker is a person who works under a contract of service.
(2)Also, schedule 2, part 1 sets out who is a worker in particular circumstances.
(3)However, schedule 2, part 2 sets out who is not a worker in particular circumstances.
(4)Only an individual can be a worker for this Act."
- [32]At the time Mr Wilton lodged his claim, Part 1 of Schedule 2 provided that:
"1A person who works under a contract, or at piecework rates, for labour only or substantially for labour only is a worker.
2A person who works for another person under a contract (regardless of whether the contract is a contract of service) is a worker unless -
(a)the person performing the work -
(i)is paid to achieve a specified result or outcome; and
(ii)has to supply the plant and equipment or tools of trade needed to perform the work; and
(iii)is, or would be, liable for the cost of rectifying any defect in the work performed;"
- [33]With respect to s 2(a) of Schedule 2 - Part 1, all three elements of that part must be met in order to prove that an individual is not a "worker".
- [34]In SPE Pty Ltd and Q-COMP[2] Asbury C considered the Explanatory Notes which accompanied the Workplace Health and Safety and Another Act Amendment Bill 2002 and in particular those relevant to Schedule 2, Part 1 s. 2 of the Act, which noted:
"To fulfill the Workcover Queensland - Leading Australia policy, and in keeping with the beneficial nature of the workers' compensation legislation, it is proposed to amend the definition of "worker" to provide greater certainty by applying a 'results test' in addition to the other legislative criteria regarding who is a worker. Under the results test a person will be considered to be a 'worker' unless it can be shown that the person meets all elements of the results test...
The importance of the proposed amendments is that they require the satisfaction of the three tests irrespective of whether or not a contract of service exists or can on the evidence be found. The essential character of the proposed amendments is not that they go to the existence or otherwise of a 'contract of service' for the purpose of s. 12(1) of the Act, but rather that the proposed amendments provide an alternative way of determining whether or not someone is a 'worker'… ibid at p.5-6."
- [35]In Simon Blackwood (Workers Compensation Regulator) v Blue Wren Holdings Pty Ltd,[3] His Honour, Deputy President O'Connor also considered the Explanatory Notes to the Workers Compensation and Rehabilitation Bill 2003 (Qld) noting:
"A person who works for another person under a contract would ordinarily be a person who works for labour only or substantially for labour only, or a person who seeks to receive a reward mainly for his or her personal effort or skills. However for the purposes of the results test it does not matter whether the contract is a contract of service, a contract for services, or any other type of contract.
…
In order to prove that an individual is not a "worker, all three elements of the results test must be met.
…
In the event of an application for compensation being lodged, all of the information available at the time of the claim may be considered. This is keeping with the current common law as enunciated by the High Court of Australia in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd (2001) HCA 44 that there is no single objective test for deciding who is an "employee" or "worker" and that all of the circumstances of a case must be considered, on an individual case by case basis. Part 1 does not therefore seek to replace or codify the common law meaning of "employee" or "worker".
- [36]In World Book (Australia) Pty Ltd v Commissioner of Taxation [4] it was said, when considering the term "wholly or principally for labour only",
"It may be that there are contracts for services which are wholly or principally for the labour of a person and which are not undertaken by the contractor to produce a given result. To the rewards of such contracts the definition may apply. But a contract which is undertaken by the contractor to produce a given result is not, in my opinion, a contract wholly or principally for the labour of a person for reason that the labour is undertaken not for the principal but for the contracting party himself to produce the result he has contracted to produce."
- [37]In a more recent case in the Industrial Court see Brett Holt Plumbing Pty Ltd v Q-COMP Review Unit [5], Hall P noted:
"Whatever may be said of the provisions of the WorkCover Queensland Act 1996 dealing with actions for personal injury, the provisions about statutory benefits are plainly in the nature of beneficial legislation. Schedule 2, Part 1, s.1 should be construed to give the fullest relief which a fair meaning of its language will allow without straining or exceeding the true significance of the provision…"
And later:
"Further, the explicit purpose of the scheme at s. 12 and Schedule 2 is to bring some persons within the definition of "worker" without regard to whether the categorization is justified (Part 1), and to exclude other persons from the definition without regard to whether characterization as a "worker" is truly justified (Part 2). Additionally, whereas one may readily grasp the notion of "payment made wholly or principally for the labour of the person to whom the payments are made" with which the fiscal cases were concerned, read literally Schedule 2, Part 1, s.1 is a nonsense. A person cannot work under a contract "substantially for labour only. A person may work under a contract for labour only. A person may work under a contract other than for labour only. A person working under a contract otherwise than for labour only may be paid principally for the labour expended. But a person cannot work under a contract "substantially for labour only" nor may a person be paid "substantially for labour only". The adjectives "substantially" and "only" are antipathetic. Schedule 2, Part 1, s. 1 is the imperfect expression of an idea. It has to be read robustly lest the imperfections impede achievement of the section's purpose."[6]
- [38]With respect to the term "substantially for labour only" Hall P wrote:
"Having regard to the nature and purpose of the statutory benefits regime, the scheme at s. 12 and Schedule 2 and the deficiencies in the language of Schedule 2, Part 1, s.1, it seems to me that the second limb of the section is about the remuneration paid under a contract, not the nature of the contract and is satisfied where in reality or 'to all intents and purposes' the remuneration is in return for manual labour…"[7]
Conclusions and Findings
- [39]Notwithstanding there appeared to be a general acceptance between the parties that Mr Wilton was performing work under a contract for service, a large proportion of the submissions on behalf of Mr Hunt were dedicated to re-enforcing this issue. Relying on Hollis v Vabu[8], which supports the proposition that it is necessary to look past the contract to the true nature of the agreement between the parties, Australian Business Lawyers submitted:
- Mr Hunt exercised minimal control over Mr Winton in respect of his sanding services;
- Mr Wilton carried on his business independently of the Appellant;
- Mr Wilton clearly identified himself as being a ‘sanding contractor’ as opposed to an employee;
- Mr Wilton issued multiple invoices to other clients during the period he also performed contract sanding services for Mr Hunt;
- Mr Wilton operates under his own ABN and attracts his work by word of mouth;
- Mr Wilton had the freedom to delegate the services he offered to Mr Hunt;
- Mr Wilton maintained the flexibility and discretion to engage his brother in the performance of his services to the Appellant who was also a contractor;
- Mr Wilton was only paid for his services on full completion of his task;
- Mr Wilton was solely responsible for supplying the tools of trade and equipment necessary to perform the work;
- Mr Wilton issued invoices to Mr Hunt for the payment of sanding services and
- Mr Wilton did not have access to entitlements such as annual leave or other employment based entitlements.
- [40]Mr Sapsford, Counsel for Regulator argued references to Hollis v Vabu Pty Ltd[9] and the common law as so far relating to the distinction between an employee and independent contractor served little utility, submitting it was quite clear the worker was not a person who worked under a contract of service in accordance with section 11(1) of the Act and further noting the undisputed facts in relation to payment of invoices, the ability to accept other work and the nature of the retainer.
Whether Working "For Labour Only or Substantially For Labour Only"
- [41]The next step in this matter is to consider then whether Mr Wilton was a worker by virtue of Part 1, Schedule 2 of the Act and in particular, whether Mr Wilton worked under a contract, or at piecework rates, for labour only or substantially for labour only.
- [42]The Appellant relied on the findings in Blue Wren Holdings Pty Ltd t/a Civic Showerscreens and Q-COMP[10] and Dean Robinson v Q-COMP[11] arguing a contractor who uses his own vehicle to transport equipment to a site to perform the contract, is not a contract for labour or substantially for labour only.
- [43]Further, that Mr Wilton did not receive a payment by the hour or payment for the provision of labour but instead was required to complete the required sanding service, and only on the full completion of the job was he entitled to seek payment at a predetermined specified rate points to him being a contractor rather than an employee.
- [44]Mr Lepache on behalf of the Appellant also submitted that as part of his services to Mr Hunt there was an expectation Mr Wilton would be required to provide his own utility vehicle for transportation to jobs, as well as the provision of his own tools and equipment.
- [45]In support of his position that Mr Wilton satisfied the definition of section 1, Part 1 of Schedule 2, Mr Sapsford relied on Reliable Couriers Pty Ltd v Q-COMP[12] and Margaret Green v Q-COMP[13] where the remuneration was not for labour or substantially for labour only where an essential part of the retainer was for the provision of substantially more for use in the service rendered namely a motor vehicle. The Respondent also pointed to Workcover Queensland v J.M Kelly Pty Ltd[14] and Marshall v Whittaker’s Building Supply Company[15], in support of the position that just because a worker supplied his or her own hand tools did not necessarily exclude them from the ambit of s. 1 of the Schedule.
- [46]Mr Sapsford argued the only tool of trade supplied by the worker was a dusterless plasterboard sanding machine, that Mr Wilton performed 40 percent of his sanding services by hand and that Mr Wilton was remunerated in accordance with a price per metre which fell squarely into the definition of ‘piece work’. Further, that there was no requirement for Mr Wilton to use his motor vehicle for the performance of his tasks and that instead he could have attended to his duties by obtaining a lift or by carpooling.
- [47]The difficulty I have with this submission is that Mr Wilton acknowledged in his evidence that he had to use his utility to travel to Mr Hunt’s jobs which were somewhat out of the way and that he was also reliant on his utility to transport the equipment he used in order to undertake Mr Hunt’s work.
- [48]Mr Wilton relied on his own specialised tools to perform sanding services. These included special stilts, a specialist sanding machine with a vacuum attachment, a respirator and a range of other hand tools and smaller items such as sanding pads and extension cords. Whilst the sanding machine was nowhere near the cost of a standard ute, it was still a valuable tool of trade and on the evidence of both Mr Wilton and Mr Hunt integral to the completion of the sanding work undertaken by Mr Wilton to the extent that it was utilised to undertake the vast majority of the sanding work.
- [49]In Blue Wren Holdings Pty Ltd t/a Civic Shower Screens and Q-COMP[16] Commissioner Thompson considered the authorities in respect of the use or provision of motor vehicles in so far as this factor impacted on a conclusion that a person was working substantially for labour. In particular, Thompson C considered Robinson[17] where Hall P dealt with the provision of a vehicle (by Robinson) to be used in the course of performing work and noted:
"Quite apart from the circumstances that the Appellant had to pay rent for the shed from the monies paid to him for his labour, he also paid for the utility which he used to transport the gates to the intended destination, a conclusion that the Appellant was working substantially for labour only, was not open."
- [50]
- [51]The Regulator appealed Thompson C’s decision, however his honour, O'Connor DP found such conclusions were consistent with the established authorities and open on the evidence before the Commission.
- [52]Whilst Mr Wilton was not required to transport materials to building sites, the facts in this matter are not that dissimilar to those in Blue Wren[20] in so far as Mr Wilton, like Mr Rusek relied on a work vehicle in order to get to Mr Hunt’s jobs. The vehicle was also utilised to transport specialist trade tools and equipment which were essential to carrying out the sanding services. In particular, Mr Wilton relied on the specialist sanding machine to undertake, on the evidence of Mr Hunt up to 80 percent of the sanding work. As he had already undertaken the plastering work on each site, it was not necessary for Mr Hunt (who was also a sander) to be present at the time Mr Wilton was performing his sanding services to have an understanding of the ratio of machine sanding to hand-sanding.
- [53]In this respect, I consider that Mr Wilton’s reliance on his utility and the supply and transport of specialist trade tools and equipment and in particular the specialist sanding machine were not incidental in the provision of sanding services supplied to Mr Hunt. Further, whilst the mechanism relied on for calculating final payment to Mr Wilton was an agreed meterage rate, Mr Wilton was not entitled to access part payment, nor was he entitled to claim for a portion of the meterage and simply not finish the rest of the job. It was not until Mr Wilton had completed the sanding job in its entirety, which was largely undertaken with a specialist sanding machine, that he was paid. As such, the remuneration was not in my view simply for "work done and paid for by the piece", or for labour only or substantially for labour only, but instead for a full sanding service which also incorporated the transport and use of a specialist sanding machine and other trade equipment and tools.
- [54]The Respondent in my view has been able to demonstrate that Mr Wilton does not fall within the definition of a worker as prescribed by Schedule 2 – Part 1 (2)(a)(ii) of the Act.
Schedule 2, Part 1, s 2(a) - ‘the results test’
- [55]At the time of the claim, s 2(a) of Schedule 2, Part 1[21] deemed a person to be a worker unless it can be established that the person performing the works:
- is paid to achieve a specified result or outcome;
- has to supply the plant and equipment or tools of trade needed to perform the work; and
- is, or would be, liable for the cost of rectifying any defect in the work.
- [56]The Appellant must establish that all of the subsections (i), (ii) and (iii), to Section 2(a) of Part 1 of Schedule 2 apply to exclude Mr Wilton from the definition of worker. Mr Lepahe on behalf of the Appellant submitted that even if Mr Wilton is found to have been a worker in accordance with subsections 11(1) or (2) of the Act, he is nevertheless disqualified from being a worker under Section 2, Part 1 of the Schedule 2 of the Act.
- [57]Mr Sapsford argued there was not and had never been an agreement between Mr Wilton and the appellant regarding the rectification of defects. He argued the evidence supported the position that where rectification work was required, it was undertaken by the principle contractor, Beenleigh Interior Linings.
Was Mr Wilton paid for a specified task or outcome?
- [58]The Appellant argued Mr Hunt would engage Mr Wilton for the specific task of sanding services at a nominated address, with payment subject to the full completion of the agreed services.
- [59]In my view Mr Wilton was paid for and was well aware of the specific task or outcome required of him by Mr Hunt. On the evidence of both men, at the commencement of the engagement there would be a discussion about the project including the meterage and an agreed rate. Mr Wilton was able to use the rate and the meterage to calculate the remuneration he was due once he had completed the specified task. Whilst there may have been occasional minor variations or adjustments to the final payment, I am satisfied s 2(a)(i) has been satisfied.
Was Mr Wilton required to supply the Plant and Equipment or Tools of Trade needed to perform the work?
- [60]The Appellant submitted the evidence supports the position that Mr Wilton was required to provide all the tools of trade (including the essential plant and equipment) necessary to perform his sanding services.
- [61]Again, on the evidence of both men, it is clear Mr Wilton was required to supply the necessary tools or trade required to perform the work and accordingly, s (2)(a)(ii) is satisfied. I also accept Mr Hunt’s evidence that he did not provide any tools to Mr Wilton.
- [62]Mr Wilton described a normal work day whereby he would head out to his XR6 utility where his tools and sander were already loaded up. Whilst he initially denied having any containers, drills or hand tools in the ute he later agreed that in addition to his sanding machine, he would also place extension cords, an esky, a respirator, sanding discs and stilts in his utility. Mr Wilton also had bars on his utility to carry a ladder though he could not recall using a ladder for any of the jobs he undertook for Mr Hunt.
- [63]Mr Wilton relied on the utility to transport both himself and his tools of trade to various jobs.
Is or would Mr Wilton be liable for the costs of rectifying defects in the work performed?
- [64]Mr Lepahe argued Mr Wilton was liable for any costs in defects of the services he provided. In support of this position he relied on the evidence of Mr Hunt who recounted a conversation he had held with Mr Wilton where he advised he had rectified some defects in a property where he had damaged some external joints. Mr Sapsford submitted Mr Wilton was not liable for the cost of rectifying any defect in the work performed and that there was not and had never been an agreement between Mr Wilton and the appellant regarding rectification of defects.
- [65]In support of this argument, Mr Sapsford relied on evidence of Mr Hunt in relation to to the rectification of some work on another site where he said:
"But Beenleigh rung me up to say that they were patching the walls and I expected a bill for it because it was my – because I was to sander for the job and they did not bill me. They patched it; it took them a couple of hours, and that, but I’ve been with them for seven/eight years. I’m one of their best plasters they’ve got and I [indistinct] sort of best as far as I know because I get all of the big hard jobs, like, difficult house, sort of thing, and that’s just how it’s been so…"[22]
- [66]It is helpful here to consider the authorities in respect of the relationship between an independent contractor and his or her liability, whether implied or express, for the costs of rectifying defects in the work performed. In Smith v Bush[23] it was found the common law imposes on a person who contracts to carry out an operation an obligation to exercise reasonable skill and care in his calling.
- [67]The real question to ask here when considering this subsection as it relates to this matter is whether or not, in requesting Mr Wilton to come back and fix up a particular sanding job, there would have been a variation of the agreement which would have attracted extra remuneration, or whether or not he would be making good his failure to carry out the contract with reasonable care and skill in the first place. Having carefully considered the evidence of both men, my view is that the answer lies with the latter. That is, Mr Wilton would not have charged Mr Hunt for any rectification work he undertook and instead would have fixed up any mistakes. This is supported by the evidence of Mr Hunt where he recalled Mr Wilton contacting him to advise he had rectified some damage in some external joints.
- [68]As such, I find the Appellant has been able to satisfy to the appropriate standard the provisions of Schedule 2 - Part 1 s 2(a)(i), (ii) and (iii) to the extent that Mr Wilton is excluded from the category of worker as specified in that section.
- [69]I am of the view, that at the point Mr Wilton was allegedly injured he did not fit within the definition of a worker in section 11 of the Act. Further, Mr Wilton is also excluded from being a worker, due to each of the disqualifying factors in section 2, Part 1 Schedule 2 of the Act.
- [70]The Appeal is upheld and the decision of the Q-COMP Review Unit of 11 March 2013 is set aside. Mr Wilton’s application for compensation is not one for acceptance.
- [71]The matter of costs is reserved,
- [72]I order accordingly.
Footnotes
[1] Transcript of proceedings, Peter Hunt trading as Peter Hunt Plastering v Q-Comp (Queensland Industrial Relations Commission, WC/2013/120, Commissioner Knight, 9 July 2013) 60-61 (B.P. Wilton).
[2] SPE Pty Ltd AND Q-COMP (WC/2009/19) - Decision
[3] Simon Blackwood (Workers' Compensation Regulator) v Blue Wren Holdings Pty Ltd [2014] ICQ 011 [11].
[4] (1992) 27 NSWLR 377 Sheller JA at 387.
[5] (2005) 178 QGIG 255 at 255.
[6] (2005) 178 QGIG 255.
[7] (2005) 178 QGIG 255 at 255.
[8] Hollis v Vabu Pty Ltd (2001) CLR 21.
[9] (2001) CLR 21.
[10] (WC/2012/425) - Decision
[11] (C/2009/30) - Decision
[12] [2005] 180 QGIG 130.
[13] Decision of Noonan Industrial Magistrate delivered 12 May 2004 (MAG – 00004554/04(3)).
[14] (2003)173 QGIG 589.
[15] (1963) 109 CLR 210.
[16] (WC/2012/425) - Decision
[17] Dean Robinson v Q-COMP (C/2009/30) - Decision
[18]Blue Wren Holdings Pty Ltd t/a Civic Showerscreens and Q-COMP (WC/2012/425) - Decision
[19] Blue Wren Holdings Pty Ltd t/a Civic Showerscreens and Q-COMP (WC/2012/425) - Decision
[20] Blue Wren Holdings Pty Ltd t/a Civic Showerscreens and Q-COMP (WC/2012/425) - Decision
[21] Workers’ Compensation and Rehabilitation Act 2003 (Qld) 2012 Act No. 17.
[22] Transcript of proceedings, Peter Hunt trading as Peter Hunt Plastering v Q-Comp (Queensland Industrial Relations Commission, WC/2013/120, Commissioner Knight, 9 July 2013) 43 (P. A. Hunt).
[23] [1990] 1 AC 831 at 843.