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Oliver v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 78

Oliver v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 78

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Oliver v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 078

PARTIES:

Oliver, Kenneth

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2014/254

PROCEEDING:

Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)

DELIVERED ON:

30 April 2015

HEARING DATE:

28 November 2014

18 February 2015 (Appellant Submissions)

10 March 2015 (Respondent Submissions)

13 March 2015 (Submissions in Reply)

MEMBER:

Deputy President Swan

ORDERS :

  1. The Appeal is dismissed.
  2. The decision of the Workers' Compensation Regulator is confirmed.
  3. The Appellant is to pay the Respondent's costs of and incidental to the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION -APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - whether Mr Pattrick was a 'worker' or 'contractor' pursuant to s 11 and Schedule 2 Part 1 - determined that Mr Pattrick was a 'worker'.

CASES:

Workers' Compensation and Rehabilitation Act 2003

Industrial Relations Transparency and Accountability of Industrial Organisations and Other Acts Amendments Act 2013

Stevens v Brodribb Sawmilling Co. Pty Ltd (1985-86) 160 CLR 16 at 23-24

Global Plant Ltd v Secretary of State for Social Services ([1972] I QB 139)

Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 41

WorkCover Queensland v J M Kelly (Project Builders) Pty Ltd) No. C31 of 2003, 11 June 2003

Abdulla v Viewdaze Pty Ltd trading as Malta Travel [2003] AIRC FB, PR 927971

APPEARANCES:

Mr K. Oliver, the Appellant, in person.

Mr P. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator).

Decision

  1. [1]
    This application is made by Mr Kenneth Oliver (the Appellant) against a decision of the Workers' Compensation Regulator (the Respondent) which determined that Mr Craig Pattrick was employed as a "worker" within the meaning of the Workers' Compensation and Rehabilitation Act 2003 and that he worked for the Appellant.

Relevant Legislation

  1. [2]
    Section 11 of the Act states:

"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."

  1. [3]
    Schedule 2, Part 1 of the Act now relevantly provides:-

 "Who is a worker in particular circumstances

Part 1 Persons who are workers

  1. A person who works a farm as a sharefarmer is a worker if -

 (a) the sharefarmer does not provide and use in the sharefarming operations farm machinery driven or drawn by mechanical power; and

 (b) the sharefarmer is entitled to not more than 1/3 of the proceeds of the sharefarming operations under the sharefarming agreement with the owner of the farm.

  1. A salesperson, canvasser, collector or other person (salesperson) paid entirely or partly by commission is a worker, if the commission is not received for or in connection with work incident to a trade or business regularly carried on by the salesperson, individually or by way of a partnership.
  1. A contractor, other than a contractor mentioned in part 2, section 4 of this schedule, is a worker if -

 (a) the contractor makes a contract with someone else for the performance of work that is not incident to a trade or business regularly carried on by the contractor, individually or by way of a partnership; and

 (b) the contractor -

(i)does not sublet the contract; or

(ii)does not employ a worker; or

(iii)if the contractor employs a worker, performs part of the work personally.

  1. A person who is party to a contract of service with another person who lends or lets on hire the person's services to someone else is a worker.
  1. A person who is party to a contract of service with a labour hire agency or a group training organisation that arranges for the person to do work for someone else under an arrangement made between the agency or organisation and the other person is a worker.
  1. A person who is party to a contract of service with a holding company whose services are let on hire by the holding company to another person is a worker."

Witnesses

  1. [4]
    Witnesses for the Appellant were:
  • Mr Kenneth Oliver;
  • Mr David Carmody - former Operations Manager for Mr Oliver;
  • Mr Kevin Phillips - former housemate of Mr Oliver;
  • Mr Geoffrey McGuiness - neighbor.
  1. [5]
    Witnesses for the Regulator were:
  • Mr Craig Pattrick - worker;
  • Mr Graham Conry - work colleague.

 Onus of Proof

  1. [6]
    The Appellant bears the onus of proof on the balance of probabilities.

Representation

  1. [7]
    Mr Oliver represented himself and the Respondent was represented by Mr O'Neill of Counsel.

Background to Claim

  1. [8]
    Mr Pattrick had lodged an application for compensation with WorkCover on 17 January 2014 for an injury described as a forearm fracture, sustained as a result of a slip and fall from the back of a truck on 24 December 2013.
  1. [9]
    WorkCover accepted the application and paid compensation by way of weekly benefits, and medical and rehabilitative expenses.
  1. [10]
    In that decision, Mr Pattrick was found to have been a "worker" for the purposes of the Act and that he was employed by Mr Oliver at Keno's Express.

Issue for determination

  1. [11]
    To be determined is whether Mr Pattrick was a "worker" pursuant to the Act or was he an independent contractor.

Mr Oliver's submissions

  1. [12]
    Mr Oliver states that he engaged Mr Pattrick as a "contractor".  Mr Pattrick was to ensure his own WorkCover insurance and pay his own superannuation and taxes.  Mr Oliver said that Mr Pattrick worked under that understanding until such time as he had an accident.
  1. [13]
    Mr Oliver said that there was an oral contract between he and Mr Pattrick. 
  1. [14]
    The first time Mr Oliver became aware that Mr Pattrick had not paid for his superannuation or all of his tax was when he had the accident on 24 December 2013.
  1. [15]
    Mr Oliver said that he had paid Mr Pattrick well above the Award rate of pay because he was a 'wonderful driver'.  Mr Pattrick was paid $250.00 per day for 8 to 9 hours work.
  1. [16]
    Mr Oliver said he had discussed the issue of Mr Pattrick paying for his own insurance but was told by Mr Pattrick that the insurance was too expensive at $140.00 per month.
  1. [17]
    The duties undertaken by Mr Pattrick were those of truck driving and deliveries.
  1. [18]
    Mr Oliver says that Mr Pattrick was able to engage another driver to undertake his duties if he so wanted.
  1. [19]
    In relation to Australian Taxation Office guidelines, Mr Oliver said that in response to the question "Does the agreement you have, give the worker the right to pay another person to do the work instead of them?" he had responded "yes".
  1. [20]
    Mr Oliver said that Mr Pattrick worked on Tuesday, Wednesday, Thursday and Saturday and in the remaining days could work elsewhere.
  1. [21]
    Mr Oliver said that Mr Pattrick always held himself out to be a contractor and evidence would be called from his witnesses to that effect.

Cross-examination

  1. [22]
    Mr Oliver said that Mr Pattrick had initially been a casual driver for his business (then called "Oliver's Choice") from 2008 to 2010.  For the period 2010 to 2012, the business was called "Cool Express" and Mr Pattrick worked a five day week.  That business faced financial difficulties and in May 2012 the method of operating the business was changed by Mr Oliver and the business was then known as "Kenos Express".
  1. [23]
    Mr Oliver agreed that in May 2012, he had called a staff meeting advising staff that he was required to close his business "Cool Express".
  1. [24]
    Mr Oliver agreed that when Kenos Express started, he had approached Mr Pattrick to provide him with an ABN.  Mr Oliver agreed that he then advised Mr Pattrick how to set out invoices and he in fact had written a description of how that was to occur on Mr Pattrick's invoice book.  On that invoice book he had written $25 per hour, but Mr Oliver said that was not what happened in fact [Exhibit 3].
  1. [25]
    The invoice book showed from Invoice 51 (10/5/12) to Invoice 84 the same $25.00 per hour appeared.
  1. [26]
    In January 2013, that procedure changed and Mr Oliver and Mr Pattrick agreed that Mr Pattrick would work for four days for $250.00 per day.
  1. [27]
    When asked whether Mr Pattrick often worked over five days, Mr Oliver said that the entries were 'ambiguous' because on one or the other of those days, Mr Pattrick might only do one delivery.  The Respondent highlighted many occasions when the invoices showed that Mr Pattrick was working over 5 days.
  1. [28]
    Mr Oliver agreed that the only thing that Mr Pattrick provided (in order to do his work) was his personal clothing and a mobile phone.
  1. [29]
    On a few occasions, when Mr Pattrick was unable to work, Mr Oliver said he would assume those duties and on other occasions Mr Conry performed that work and Mr Conry submitted invoices which were paid by Mr Oliver.
  1. [30]
    Mr Oliver was referred to various 'run sheets' that continued through to 18 December 2013 and they show the particular times Mr Pattrick was required to deliver goods to a specific customer.  Mr Oliver said he had designed those run sheets as he had previously worked on those runs and believed that they could be completed within a particular timeframe.
  1. [31]
    Mr Oliver agreed that run sheets had also been provided by major customers, Cut Fresh, Sizzler and Kentucky Fried Chicken [T1-28].  A further run sheet was also referenced - i.e. it was called the Northern Rivers Run although Mr Oliver said that Mr Pattrick did not do this run regularly.  Other runs were mentioned which were undertaken by Mr Pattrick.
  1. [32]
    Mr Carmody gave evidence that he had been in a business partnership with Mr Oliver for about 5 years.  He held the position of operations manager.
  1. [33]
    Mr Carmody said he had seen Mr Pattrick around 18 months ago where he had told Mr Carmody that he was working for Mr Oliver as a contractor.
  1. [34]
    In cross-examination Mr Carmody was asked whether this conversation with Mr Pattrick occurred after 24 December 2013 and whether or not Mr Carmody became abusive towards Mr Pattrick because he had made a claim for Workers' Compensation.  This was denied by Mr Carmody.
  1. [35]
    Mr Phillips' evidence was that he knew Mr Pattrick because he used to share a house with Mr Oliver and he became responsible for handing out keys and fuel money to the drivers.
  1. [36]
    Mr Phillips recalled a specific discussion between Mr Oliver and Mr Pattrick in his presence where Mr Pattrick had agreed to be a contractor for Mr Oliver [T1-46].
  1. [37]
    Mr McGuinness' evidence was that he is a neighbour of Mr Oliver's and on occasions he had driven for him.  Mr McGuiness said that Mr Pattrick had told him he was working as a contractor for Mr Oliver [T1-57].
  1. [38]
    Mr Conry drove a truck for Mr Oliver for a period of some months working about three and a half to four hours per night.  He had various runs to complete that had been identified on run sheets.  His duties were performed on a regular basis in terms of businesses to which he delivered goods.
  1. [39]
    He believed that he had filled in for Mr Pattrick on one occasion for a period of around a week.
  1. [40]
    When working for Mr Oliver, Mr Conry said he was paid $25 per hour.  Even if Mr Conry worked more hours than those specified by Mr Oliver, he only got paid for the agreed hours [T1-66].
  1. [41]
    Mr Conry thought he might have been a contractor, but there had never been anything signed between himself and Mr Oliver [T1-68].
  1. [42]
    Mr Conry said it was impossible to perform the work allocated within the time frames for which one was paid [T1-70].
  1. [43]
    Mr Pattrick's evidence was that in the earlier period when he was working for Mr Oliver (2008 - 2010) as a truck driver, he worked as a casual employee.  His superannuation was paid by Mr Oliver.  Mr Oliver both supplied the truck and paid for the fuel.
  1. [44]
    Mr Oliver had worked out how long the runs should take and drivers were paid for those hours, even if the job took longer [T1-73].
  1. [45]
    Mr Pattrick was given a run sheet each day to complete.
  1. [46]
    From 2012 until January 2013, Mr Pattrick was given a particular run (the Sizzler Run) and added to that was the Northern Rivers run.  Mr Pattrick was not working for anyone else at that time.
  1. [47]
    As a consequence of a decline in Mr Oliver's business, in January 2013 there was a change instituted by Mr Oliver.  Mr Pattrick said he had a discussion with Mr Pattrick around this time.
  1. [48]
    Mr Pattrick said the conversation was to the effect that Mr Oliver could give him work for four days, paid at the rate of $250.00 per day for up to 10 hours work and that he would guarantee Mr Pattrick that work until things got better for the business.  However, if Mr Pattrick worked a 14 hour day, for example, the payment would revert back to $25.00 per hour [T1-80].
  1. [49]
    Mr Pattrick said for the whole period during which he worked for Mr Oliver he did not own his own truck, he had never advertised for work saying he could undertake deliveries for others, and he had never owned a business as a delivery driver [T1-80].

Mr Pattrick's evidence around his injury

  1. [50]
    On 24 December 2013 at around 6.30am, Mr Pattrick had driven to Cut Fresh to pick up a load for a run.  As he was getting out of the back of the truck, his foot slipped.  His right foot went into a crevice next to a drain, "causing me to snap to the right".  As a consequence of that injury, Mr Pattrick said he had plates and pins put into his wrists and he had a full shoulder reconstruction [T1-80].
  1. [51]
    Mr Pattrick had no arrangement with Mr Oliver regarding payment of superannuation.
  1. [52]
    Mr Pattrick said he was not able to refuse to perform any work for Mr Oliver.  Mr Pattrick stated:  "Mr Oliver wouldn't take it if I told him that I didn't like it.  I told him that I didn't like to do one job one day and he - he swapped it for me, but he didn't like as well, so I got it back, with help" [T1-81].
  1. [53]
    If Mr Pattrick wanted a day off or take some holidays, Mr Oliver required one month's notice beforehand so he could organise someone to do his work.  When this occurred, Mr Pattrick was not required to pay that person.  Mr Pattrick also did not issue an invoice in respect of that work.
  1. [54]
    Mr Pattrick said that he had never met Mr McGuinness, but he had met Mr Carmody, who had worked for Mr Oliver.  Mr Carmody ceased working for Mr Oliver in 2010.  Mr Pattrick said that he had seen Mr Carmody at a shopping centre and he had asked Mr Pattrick what he was doing to Mr Oliver.  This exchange had occurred after his accident of 24 December 2013.
  1. [55]
    Mr Pattrick was asked by Mr Oliver to nominate the number of hours he might have worked per day over 52 weeks of the year.  Mr Pattrick's response was on average he worked eight and a half hours to nine hours per day [T1-59].
  1. [56]
    Evidence was given around the requirement for Mr Pattrick to provide his own telephone.  Mr Pattrick's evidence was that Mr Oliver was always calling him and for being required to own a mobile phone, Mr Pattrick was paid $40.00 per month.
  1. [57]
    Mr Pattrick said the only time he was aware that Mr Oliver had not paid insurance contributions for Mr Pattrick was on the day of the accident [T1-103].

Consideration of the evidence and submissions

  1. [58]
    The Regulator stated that it was clear that Mr Pattrick's initial engagement with Mr Oliver was as a casual employee.
  1. [59]
    However, after 2012, the Regulator claims that he was a "worker" within the meaning of the Act when Mr Oliver conducted his business as a sole trader.
  1. [60]
    Mr Pattrick said that:
  1. Mr Oliver provided the truck and fuel for the work performed;
  1. Mr Pattrick supplied his own high visibility shirt and mobile phone;
  1. Nothing changed with the arrangement between Mr Oliver and Mr Pattrick except that Mr Pattrick was required to provide invoices;
  1. Mr Pattrick was required to adhere to the information provided on the run sheets;
  1. Mr Pattrick was working for Mr Oliver over 5 to 6 days a week;
  1. He did not take on additional employment (on any organized or regular basis);
  1. Mr Pattrick did not own a truck;
  1. He has never held himself out as operating a trucking business;
  1. He has not advertised for work and has no premises and is not running a business;
  1. Mr Pattrick confirmed that his employment arrangements changed in May 2012.  Mr Pattrick's evidence was that if he wished to continue working with Mr Oliver then he had to provide an ABN and invoice Mr Oliver.  Mr Oliver confirmed this [T1-17];
  1. Mr Oliver provided him with an example as to how the invoicing would work in the front of his invoice book [Exhibit 3].  Mr Oliver confirmed this;
  1. Mr Pattrick said that from May 2012 to 5 January 2013 he was charging Mr Oliver an hourly rate of $25.00 per hour.  Mr Pattrick completed invoices showing the arrangement that he would be paid at the rate of $25.00 per hour up until 10 January 2013;
  1. Mr Pattrick said why he believed that he was paid higher than the Award rate was discussed with Mr Oliver and it was not for the purpose of covering superannuation, personal accident and injury cover as was stated by Mr Oliver.  The payment was to compensate Mr Pattrick for overtime rates, Saturday work and his telephone and internet use which were necessary for work;
  1. Mr Pattrick's evidence was that under prior arrangements with the two companies operated by Mr Oliver, Mr Pattrick was paid time and a half for work performed on Sunday and triple time for public holidays;
  1. In January 2013, Mr Oliver lost some of his contracts and from 5 January 2013, Mr Oliver changed the arrangement and said he would pay Mr Pattrick a rate of $250.00 a day and that would apply for four days.  Mr Pattrick stated that the payment was to compensate him for his personal taxation payments, overtime rates, Saturday working, telephone and internet use;
  1. Mr Pattrick was not permitted to refuse to do part of a run schedule if he did not like the client;
  1. If Mr Pattrick wanted holidays, he was required to provide a months' notice and find another driver.  Mr Conry confirmed that he invoiced Mr Oliver in these instances;
  1. When either Mr Conry or Mr Oliver undertook a run in his absence, he would not pay either of those two.  In that instance, Mr Oliver would pay Mr Conry and Mr Pattrick would not issue an invoice.  This was confirmed by Mr Conry.
  1. [61]
    Mr Oliver confirmed that in January 2013 he paid Mr Pattrick $250.00 a day, but in circumstances where Mr Pattrick worked additional hours he charged those hours at $25.00 per hour on top of the $250.00 per day [T1-20].
  1. [62]
    While Mr Oliver said that the terms of the engagement in 2013 were that Mr Pattrick would work Tuesday, Wednesday, Thursday and Saturday, Mr Pattrick's evidence was that he worked more than four days per week [T2-40].  That evidence is supported by considering the entries in Exhibits 3 and 4.
  1. [63]
    Mr Pattrick said he was not working for anyone else other than Mr Oliver, but Mr Oliver says that this was a matter of choice for Mr Pattrick.  The Regulator submits that "the reality is that given he was working between 4 to 5 days a week for Mr Oliver his ability to undertake employment for anyone else was negligible, particularly in circumstances where he may be called on by Mr Oliver to work on one of his off days as did occur on occasion" [Regulator's submissions - page 11].
  1. [64]
    Mr Oliver believed that Mr Pattrick was able to engage other drivers as long as he verified their credentials.  There is no evidence of this occurring.  The only evidence was from Mr Pattrick who stated that when he could not work, it was usually Mr Oliver who performed the work.  The only other occasion, was when Mr Conry filled in for Mr Pattrick and he was paid by Mr Oliver [T1-24].
  1. [65]
    Mr Oliver confirmed that the way the business operated was that there were run sheets provided to Mr Pattrick and others.  These were compiled by Mr Oliver.
  1. [66]
    Those run sheets set out the various locations and deliveries were set out.
  1. [67]
    Time frames were established for when a driver was expected to be at a particular business.
  1. [68]
    The run sheets identified that there was an indication provided as to the time at which Mr Pattrick was expected to be at various locations and also on the form was a space for the driver to indicate the time that he expected to arrive at the location.
  1. [69]
    Exhibit 5 related to time sheets from Mr Oliver's principal customer which the Regulator says identified the fairly strict control exercised over Mr Pattrick's work.
  1. [70]
    Mr Carmody's evidence primarily related to his seeing Mr Pattrick at the Runaway Bay Shopping Centre on two occasions.  Mr Carmody alleges that Mr Pattrick told him he was working as a contractor for Mr Oliver.  This allegation, however had not appeared in Mr Carmody's Statutory Declaration that he had prepared to assist Mr Oliver [T1-37 and Exhibit 7].  Mr Carmody said that this conversation had been some 18 months to 2 years ago.  Mr Pattrick denied that this conversation took place.
  1. [71]
    Mr Pattrick accepts that there was one conversation held with Mr Carmody at the Runaway Bay Shopping Centre after he had incurred his injury and at that time Mr Carmody had remonstrated against Mr Pattrick for what he had perceived he had done to Mr Oliver by making his claim.
  1. [72]
    I have not accepted the evidence of Mr Carmody as it related to the first conversation he said he had with Mr Pattrick.  I formed the view that Mr Carmody was doing nothing more than trying to assist his former business friend, Mr Oliver and that this interchange between himself and Mr Pattrick did not occur.  It is also telling that this version of events did not arise in Mr Carmody's Statutory Declaration.
  1. [73]
    I have accepted Mr Pattrick's evidence on his discussions with Mr Carmody.  In any event, the reality of what is to be determined by the Commission is whether, as a matter of fact and law, the relationship between Mr Pattrick and Mr Oliver was one of "worker" or "contractor". 
  1. [74]
    Likewise, the evidence of Mr Phillips did little to advance Mr Oliver's claim.  Mr Phillips said that he had attended a meeting where the issue of Mr Pattrick becoming a contractor had been discussed, but he then proceeded to advise that he didn't really hear much of the conversation because he was in his room watching television [T1-48].
  1. [75]
    Mr Phillips' evidence was also at odds also with the evidence of Mr Oliver.  I do not accept that Mr Phillips recalled much of what had occurred around the time period in question. 
  1. [76]
    Concerning Mr McGuiness, his evidence was that he met Mr Pattrick on one occasion and on that occasion Mr Pattrick told him he was a contractor.  I have viewed this witness similarly to the others.  It is hard to accept that on random meetings with Mr Pattrick, all that Mr Pattrick wanted to tell those he had met was that he was a contractor for Mr Oliver.  There is no other context to these meetings, other than Mr Pattrick's desire to ensure that everyone knew he was a contractor for Mr Oliver.
  1. [77]
    I have not accepted this evidence of Mr McGuinness as reflecting what really happened.
  1. [78]
    Mr Pattrick denied ever having had a discussion with him and I have accepted that evidence.

Application of the law with regard to the evidence and the determination of whether Mr Pattrick was a "worker" or a "contractor" for the purposes of the Act.

  1. [79]
    The Regulator has made reference to amendments made by the Queensland Parliament to the definition of a 'worker' in the Act.  This occurred on 5 June 2013.[1]
  1. [80]
    There have been no submissions made by the Mr Oliver under this consideration.
  1. [81]
    The previous definition of 'worker' was defined in the Act as "a person who works under a contract of service" and extended beyond employees.  Under that definition, a contractor was regarded as a 'worker' if the worker performed services under a contract for labour or substantially labour only, amongst other things.
  1. [82]
    The Regulator submits that now the amending provisions align with the Australian Taxation Office guidelines which defines a 'worker' as 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 (Cth)" (Regulator's submissions - point 64).

  1. [83]
    It is submitted that Mr Pattrick meets the first part of the definition - i.e. he was working under a contract.
  1. [84]
    The Regulator referred to the two Australian Taxation Office 'tool documents' dated 17 January and 21 January 2014 which confirm Mr Pattrick's status as an employee rather than a contractor [Exhibit 2, 2a].
  1. [85]
    The Respondent stated that "it is clear that the new test is much narrower than the old test, however, the Respondent submits that the issue of control will still be significant in the new test in determining whether someone is actually an independent contractor or in fact an employee".
  1. [86]
    It is submitted that the Australian Taxation Office's new test in determining an employment relationship utilizes some of the indicia that have been identified in the older authorities in determining the status of a tax payer.
  1. [87]
    The Respondent cites the case of Stevens v Brodribb Sawmilling Co. Pty Ltd[2] as authority for determining what is the nature of the relationship and whether a person was an employee or an independent contractor.
  1. [88]
    The Respondent stated: "This is an objective assessment, although the actual construction of the contract embodying the relationship is a matter of law"[3].
  1. [89]
    The contract to be considered in this matter is one based upon oral discussions between Mr Pattrick and Mr Oliver.
  1. [90]
    The law governing the determination turns on a number of considerations or factors[4],[5].
  1. [91]
    The Respondent submits that a decision from the Australian Industrial Relations Commission in Abdulla v Viewdaze Pty Ltd trading as Malta Travel[6] is useful in determining the question of 'worker' versus 'contractor'.
  1. [92]
    The tests include the following:

"(a) Whether the putative employer exercises, or has the right to exercise, control over the manner in which the work is performed, place of work, hours of work etc."

  1. (i)
    If there was an absence of control of this nature, then that may be more indicative of a contractor relationship;
  1. (ii)
    That type of control is significant but not a determinative factor of itself.
  1. (iii)
    The absence of control where the worker has high level skills is not necessarily indicative that the worker is an independent contractor.
  1. [93]
    The factual circumstances of this case are as follows:
  • Mr Oliver decides what days Mr Pattrick will work.
  • Mr Oliver decides what runs Mr Pattrick will undertake on each day.
  • Run sheets produced for that day determine the time frames within which the work must be performed.
  1. [94]
    These are uncontested facts which have emerged in this hearing.  It is reasonable to say that there is a high level of control exercised by Mr Oliver over the way in which Mr Pattrick performs his job.
  1. (b)
    Whether Mr Pattrick can or does perform work for others.
  1. The Respondent submits that Mr Pattrick, from a practical perspective considering the hours and days he works for Mr Oliver, is unable to perform work for others and, as a matter of fact, does not.
  2. The evidence which I have accepted is that Mr Pattrick had generally worked those hours and it would seem improbable that he could have worked any extra hours.
  1. (c)
    Whether Mr Pattrick has a separate place of work and/or advertises his services to the world at large.
  1. (i)
    There was no evidence or assertion that Mr Pattrick was conducting his own business as a truck driver.
  1. (ii)
    Mr Pattrick's evidence was that he did not own a truck and was reliant upon Mr Oliver to provide him with the use of a truck, fuel and the particular runs which he wanted him to work.
  1. (d)
    Did Mr Pattrick own tools and/or equipment for the purpose of performing his job?
  1. (i)
    The Respondent states that the significant item of capital equipment, i.e. the truck, was owned by Mr Oliver.  The only things provided by Mr Pattrick was "his time, a mobile telephone and his clothing."
  1. (e)
    Can the work being performed by Mr Pattrick be delegated or sub-contracted?
  1. (i)
    Mr Oliver stated that Mr Pattrick could delegate his work to others.
  2. (ii)
    However, the evidence shows that the only time others performed Mr Pattrick's work, those 'others' were Mr Oliver and Mr Conry.  Mr Conry's evidence was that when he did this work, he had to invoice Mr Oliver for his work.  Mr Pattrick had no involvement in the process which occurred when he was unable to drive on occasions.  I have accepted Mr Pattrick's evidence as accurate.  I have not accepted that Mr Pattrick had any ability to delegate or sub-contract his work to others.
  1. (f)
    Whether the putative employer had the right to suspend or dismiss Mr Pattrick?
  1. (i)
    Mr Oliver had the right to suspend and/or terminate the services of Mr Pattrick.
  1. (g)
    Whether the putative employer presents the worker to the world at large as an emanation of the business?
  1. (i)
    The usual scenario involves the worker wearing the logo of the business for which he is working.
  2. (ii)
    This is not the case in this matter.

The Respondent viewed this matter as being neutral and the Commission agrees with this.

  1. (h)
    Whether income tax is deducted from remuneration paid to Mr Pattrick.
  1. (i)
    This has not occurred in this case.  Mr Pattrick provided an invoice which included an ABN.
  1. (i)
    Whether Mr Pattrick was remunerated by periodic wages or salary.
  1. (i)
    The Respondent submitted that employees tend to be paid a periodic wage or salary.  Independent contractors are mostly paid by reference to completion of tasks.  In this case, Mr Pattrick was paid either an hourly fee or a daily fee and this is more consistent with him being a worker rather than a contractor.

 (j) Was Mr Pattrick provided with paid holidays or sick leave?

  1. (i)
    Mr Pattrick's evidence was that he was a casual employee and as such would not be entitled to these benefits.

 (k) The work performed by Mr Pattrick was not work which involved a profession, trade or distinct calling. 

  1. (i)
    No further consideration of this criterion is required.

(l) Whether Mr Pattrick creates goodwill or saleable assets in the course of his work.

  1. (i)
    The evidence shows that Mr Pattrick's work does not create goodwill or saleable assets.
  1. [95]
    From a consideration of these factors, with the exception of a few criteria which were not applicable, the test significantly establishes that Mr Pattrick was a 'worker' rather than a 'contractor'.
  1. [96]
    Schedule 2, Part 1 of the Act provides:

 "3. A contractor, other than a contractor mentioned in part 2, section 4 of this schedule, is a worker if:

  1. (a)
    the contractor makes a contract with someone else for the performance of work that is not incident to a trade or business regularly carried on by the contractor, individually or by way of a partnership; and
  1. (b)
    the contractor -
  1. (i)
    Does not sublet the contract; or
  2. (ii)
    Does not employ a worker;
  3. (iii)
    Or if the contractor employs a worker, performs part of the work personally."
  1. [97]
    The Respondent submits that "if Mr Oliver insists that Mr Pattrick was a contractor, then it would appear more than arguable that he falls within the operation of this provision and is therefore deemed to be a worker for the purposes of the Act".  [Respondent's submissions - point 77].
  1. [98]
    Primarily, it is found that pursuant to the analysis found in paragraph 92-94 of this decision, my view is that Mr Pattrick was a 'worker' for the purposes of the Act.
  1. [99]
    The Appeal is dismissed.
  1. [100]
    The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.
  1. [101]
    Order accordingly.

Footnotes

[1] Industrial Relations Transparency and Accountability of Industrial Organisations and Other Acts Amendments Act 2013

[2] Stevens v Brodribb Sawmilling Co. Pty Ltd (1985-86) 160 CLR 16 at 23-24

[3]Global Plant Ltd v Secretary of State for Social Services ([1972] I QB 139)

[4] Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 41

[5] WorkCover Queensland v J M Kelly (Project Builders) Pty Ltd) No. C31 of 2003, 11 June 2003

[6] Abdulla v Viewdaze Pty Ltd trading as Malta Travel [2003] AIRC FB, PR 927971

Close

Editorial Notes

  • Published Case Name:

    Oliver v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Oliver v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 78

  • Court:

    QIRC

  • Judge(s):

    Deputy President Swan

  • Date:

    30 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Global Plant Ltd v Secretary of State for Social Services [1972] I QB 139
2 citations
Jump To
Cite 1 - [1972] I QB 139
Cite 2 - [1972] I QB 139
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
2 citations
Jump To
Cite 1 - (2001) 207 CLR 21
Cite 2 - (2001) 207 CLR 21
Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16
2 citations
Jump To
Cite 1 - (1986) 160 CLR 16
Cite 2 - (1986) 160 CLR 16

Cases Citing

Case NameFull CitationFrequency
Aus-Care Sports Medicine Pty. Ltd. as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 1825 citations
Toowoomba Demolition and Earthmoving Pty Ltd v Workers' Compensation Regulator [2020] QIRC 302 citations
1

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