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- Schepis v Workers' Compensation Regulator[2016] QIRC 77
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Schepis v Workers' Compensation Regulator[2016] QIRC 77
Schepis v Workers' Compensation Regulator[2016] QIRC 77
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Schepis v Workers' Compensation Regulator [2016] QIRC 077 |
PARTIES: | Schepis, Michele Debra (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2015/163 |
PROCEEDING: | Appeal |
DELIVERED ON: | 27 July 2016 |
HEARING | 17 March 2016 |
MEMBER: | Deputy President O'Connor |
ORDERS : |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL FROM THE WORKERS' COMPENSATION REGULATOR – Whether the deceased was a worker under the Act – Whether the deceased was working under a contract of service and an employee for the purposes of PAYG taxation – Whether the deceased worked under a contract of service with a corporation of which he was a director. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 ss 11, 550(1)(a), Schedule 2 Industrial Relations Act 1999 Schedule 6 Corporations Act 2001 (Cth) s 9 Inspector James v Ryan (No 3) [2010] NSW IR Comm 127 Chameleon Mining NL v Murchison Metals Limited [2010] FCA 1129 Deputy Commissioner of Taxation v Leslie Raymond Austin [1998] FCA 1034 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 |
APPEARANCES: | Mr A. Hockings of Purcell Taylor Lawyers, for the appellent Mr P. O'Neill of counsel, instructed directly by the respondent Decision |
- [1]This is an appeal by Michele Debra Schepis ("the appellant") seeking to set aside the decision of the Regulator dated 29 May 2015 that Mr Anthony Demetrius Schepis (Mr Schepis Snr) was not a "worker" within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
- [2]The only issue to determine is whether Mr Schepis Snr, at the time of his death on 23 July 2014, was a worker within the meaning of s 11 of the Act.
- [3]In particular, whether the deceased is caught by the exclusionary provision contained in Schedule 2 Part 2(a) of the Act, namely, being a person who performs work under a contract of service with a corporation of which the person is a director.
- [4]It is not in contention that Coachcode Pty Ltd ACN 058 225 013 ("Coachcode") was a company incorporated at law, is the corporate trustee of the Schepis Family Trust, and traded as "All Commercial Refrigeration and Air Conditioning Services," operating from 24 Paxton Street, North Ward, Townsville.[1]
Background
- [5]On 23 July 2014, Mr Schepis Snr sustained fatal injuries arising out of a single vehicle motor accident on his way home from the work at the Eureka Village, a serviced accommodation 'town' for miners. An application for compensation was made that same day.
- [6]At the time of his death, Mr Schepis Snr was performing work providing refrigeration and air conditioning services at Eureka Village for the Compass Group. The Compass Group had contracted with Hays Specialist Recruitment for the services of Mr Schepis Snr.
- [7]It is not in dispute the deceased was not employed by either the Compass Group or Hays Recruiting.
- [8]It is the appellant's case the deceased was, at the relevant time, a PAYG employee of Coachcode and, therefore, a worker for the purposes of s 11 of the Act.
- [9]The deceased had been a shareholder and director of Coachcode but resigned as a director in 2005. His father, Mr Aldo Schepis, was a director from 2005 to 2011.
- [10]On 21 September 2011, the deceased's son, Mr Anthony Schepis Jnr, became the sole director. Mr Schepis Snr was the only qualified refrigeration mechanic at Coachcode and the only person to provide refrigeration and air conditioning services of behalf of the company.
Relevant statutory provisions
- [11]Section 11 of the Act provides:
"11 Who is a worker
- (1)A worker is a person who -
- (a)works under a contract; and
(b) 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.
- (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."
- [12]Schedule 2, Part 2 of the Act relevantly provides:
"A person is not a worker if the person performs work under a contract of service with -
- (a)a corporation of which the person is a director; …"
- [13]Schedule 6 of the Industrial Relations Act 1999 defines a director as:
"director, of a corporation, includes -
- (a)a person holding or acting in the position of a director (by whatever name called) of the corporation whether or not the person was validly appointed to hold, or is duly authorised to act in, the position; and
- (b)a person under whose directions or instructions the corporation is ordinarily controlled."
- [14]Section 9 of the Corporations Act 2001 defines "director" in the following terms:
"Dictionary
…
'director' of a company or other body means:
(a) a person who:
- (i)is appointed to the position of a director; or
- (ii)is appointed to the position of an alternate director and is acting in that capacity;
regardless of the name that is given to their position; and
(b) unless the contrary intention appears, a person who is not validly appointed as a director if:
- (i)they act in the position of a director; or
- (ii)the directors of the company or body are accustomed to act in accordance with the person's instructions or wishes.
Subparagraph (b)(ii) does not apply merely because the directors act on advice given by the person in the proper performance of functions attaching to the person's professional capacity, or the person's business relationship with the directors or the company or body.
Note: Paragraph (b)--Contrary intention--Examples of provisions for which a person referred to in paragraph (b) would not be included in the term "director" are:
* section 249C (power to call meetings of a company's members)
* subsection 251A(3) (signing minutes of meetings)
* section 205B (notice to ASIC of change of address).
…"
Was Mr Schepis Snr a director of Coachcode Pty Ltd?
- [15]In short, it is the appellant's case that Mr Schepis Snr was a worker within s 11 of the Act and did not act as a Director thereby avoiding the exclusionary provisions in Schedule 2 Part 2 of the Act.
- [16]Even if the evidence supported a conclusion that Mr Schepis Snr was working under a contract of service, and an employee for the purposes of PAYG taxation, Schedule 2, Part 2 makes it clear that he cannot be both a director and a 'worker' under s 11.
- [17]The primary contention of the respondent is that Mr Schepis Snr was a director of Coachcode for the purposes of Schedule 2 Part 2 of the Act and thereby not a worker.
- [18]Mrs Schepis is the widow of Mr Anthony Schepis Snr and the appellant in these proceedings. She told the Commission that her involvement in Coachcode was limited to debt collection, picking up spare parts and being a contact person for her husband when he was working on site.
- [19]According to the appellant, Mr Schepis Snr had been involved in litigation with a finance company. Mr Schepis Snr's reason for relinquishing his directorship of Coachcode is apparent from the following extract from the evidence:
Mr Schepis was involved in some fairly heavy duty litigation. He did not want to expose the trust to any fallout from that litigation, particularly if he lost and had costs awarded against him. Further, as you would know the details of a director are on the public record and he wasn’t terribly keen to have that available to anyone that meant him any trouble.[2]
- [20]The decision was made in 2005 for Mr Schepis Snr to resign as a director of Coachcode, and to appoint Mr Aldo Schepis, the 76 year old father of the deceased, as a director.
- [21]The trust deed for the Schepis Family Trust was varied in August 2005 to remove Mr Schepis Snr and Mrs Schepis as beneficiaries as a means of insulating them from the effects of any litigation.[3]
- [22]According to the evidence of Mrs Schepis, both she and Mr Schepis Snr were made bankrupt in 2007.[4]
- [23]Mr Aldo Schepis was removed as a director in 2011 as he was becoming elderly, in semi-retirement and would have the ability to access Centrelink benefits. In September 2011, Mr Anthony Schepis Jnr was appointed as a director of Coachcode.
- [24]Mrs Schepis said in cross-examination that the financial affairs of the business were managed by her husband and it was customary for her husband to tell Mr Schepis Jnr to make payments or do other things once he became a director in 2011.[5] Mrs Schepis stated Mr Schepis Snr was the primary point of contact with Mr Martin,[6] a partner with Martin & Orr Accountants and accountant for the business.
- [25]
- [26]The evidence before the Commission is that Mr Schepis Snr had sole access to the bank accounts of the business, including exclusive access to the passwords of the bank accounts.[9] He also signed agreements with Hays Recruiting on behalf of the Company and, as the nominated person, conducted negotiations with people about the terms upon which he would work.
- [27]In cross-examination, Mr Schepis Jnr said:
I put to you that you were in effect just a figurehead director. Do you agree with that? You’re there just to sign forms. That’s what your role was, wasn’t it?‑‑‑Well for the – for most purposes, yes. But I did – I did take the position seriously. I did authorise things and when I disagreed with something I disagreed with it, and he knew about it.[10]
- [28]Mr Schepis Snr gave the instructions to Mr Martin on matters concerning the financial affairs of Coachcode. As the following exchange in cross-examination indicates, Mr Schepis Jnr had no understanding of the financial affairs of the Company:
What about the financial affairs of the company? Who was in charge of that? You or your father? I gave that over to my father. I don’t have the business smarts for the – the financials.[11]
- [29]Mr Schepis Jnr gave evidence he would sign off on company documents related to the company's taxation as well as the minutes of meetings:
Okay. Now, what was your role? I mean you were a director obviously but was it – what did you actually do as a director? I would just sign the documents for the tax. I’d be there with meetings. Sign off on the meetings as well for the minutes.[12]
- [30]
- [31]I do not accept the submission of the appellant that "the real control of Coachcode remained with him [Mr Schepis Jnr]." In that regard, I found the evidence of Mr Schepis Jnr unconvincing. The preponderance of evidence, in my view, painted the opposite picture.
- [32]The weight of evidence supports a conclusion that Mr Schepis Snr was a de facto director and his son, Mr Anthony Schepis Jnr, was nothing more than a figurehead. His only true involvement in the conduct of the business was to undertake the formal requirements. As Mr Martin said in cross-examination:
Correct? Can I put this proposition to you, Mr Martin, that it would seem on the entirety of your evidence, when we particularly deal with the period from 2011 to 2014, that in effect there is no difference in your interactions with Mr Schepis Snr as to what it was pre 2005. That in effect Mr Schepis Snr is the controlling mind of the company in this period from 2011 through to 2014?‑‑‑I would agree.
In effect Mr Schepis, during that period of time, is acting as the director of the business?‑‑‑You certainly could characterise some of the activities but I maintain that from a formal sense he was definitely not a director.[15]
- [33]The case authorities support a proposition that a person may engage in a course of conduct that would enable the Commission to conclude that whilst so engaged the person was, over a period of time, a de facto director.
- [34]
"We see no impediment in the definition of director in the Corporations Act. Indeed, we think the wording supports the notion that where a person engages in a particular course of conduct over a period of time, he or she may be regarded as acting in the position of director over that period. We note that despite his reliance on what McHugh JA discussed in GJ Coles v Retail Trade Industrial Tribunal, Marks J acknowledged at [102] that it was possible that a person may engage in a course of conduct that would enable a court to conclude that whilst so engaged the person was, over a period of time, a director for the purpose of the definition. However, his Honour found there was no evidence in the proceedings that there was any such course of conduct."
- [35]The case law on the issue is summarised in the decision of Jacobsen J in Chameleon Mining NL v Murchison Metals Limited as follows:
Whether a person is acting as a director of a company will depend upon the nature of the functions and powers which are exercised and the extent to which they are exercised. It is a question of fact which may often be one of degree. It requires consideration of the duties performed by the person in the context of the operation and circumstances of the company...
The circumstances which bear on the question include the size of the company, its internal practices and structure and how the alleged de facto director is perceived by outsiders who deal with the company.[17]
- [36]
"If, in the case of a small company, a person has, with full discretion, 'acted as the company' in relation to matters of great importance to the company, and other than as an arms' length expert engaged for a limited purpose, the conclusion that that person has acted in the capacity of a director may well be justified. The extent to which and the circumstances in which the person has so acted will nevertheless be of importance.
I do not, however, think it necessary to show that Mr Austin performed duties that could only be performed as a director. In Re Valleys Rugby League Football Club Ltd (1997) 2 Qd.R. 645 at 657 Williams J expressed himself as satisfied that an employed manager, seeking priority for her unpaid wages in a winding-up, had:
'performed acts which could only be done by a director in accordance with the Articles when she was asked to do so. She was also prepared to hold herself out as a director when, for example, giving instructions to the club's solicitors.'"
- [37]In my view, Mr Schepis Snr was at all times the dominant and controlling influence on the company. The overwhelming conclusion to be drawn from the evidence is that Mr Schepis Jnr was appointed only to satisfy the legal aspects of the Company. In all other respects, his father controlled Coachcode.
- [38]I would conclude for the reasons advanced above that Mr Schepis Snr was a de facto Director and having regard to the exclusionary provision contained in Schedule 2 Part 2 of the Act he would not be a worker for the purpose of the Act.
Was Mr Schepis Snr working under a contract of service and an employee for PAYG taxation purposes?
- [39]The evidence of Mr Schepis Jnr in relation to whether an employer and employee relationship existed between Coachcode and Mr Schepis Snr was as follows:
Okay. So you became the appointed director of Coach Co on 21 September 2011. What was your father’s role in the company?‑‑‑He was a refrigeration mechanic. He was an employee.
How was he an employee of Coach Co Pty Ltd?‑‑‑He was seeking work for the company – mine work and what not.
Yes but was there any discussions or any written agreement between you as a director on behalf of Coach Co and your father ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ that led to his employment?‑‑‑Yes there – yes there was.
Well please tell the Commission what?‑‑‑Sorry. We did have a verbal agreement where I would employ him. He would look for work and whenever he found the work he would go for it.[19]
- [40]The evidence of Mr Schepis Jnr was that when he became a director in 2011, Mr Schepis Snr was a refrigeration mechanic and an employee of Coachcode.
- [41]It seems odd to me, notwithstanding that Mr Schepis Snr was, according to Mr Schepis Jnr, an employee of Coachcode at the time he became a director in 2011, he found it necessary to have a further discussion with his son about his employment with Coachcode.
- [42]Contrary to that evidence, the tax returns for Mr Schepis Snr for 2011 and 2012 record no wage occupation or employer for either year.[20] They do not record that he was an employee of Coachcode. The tax return for 2013 records his occupation as "Mechanic - air conditioning and refrigeration". His employer is recorded as "Corestaff Qld Pty Ltd". The 2014 tax return,[21] completed after Mr Schepis's death, records the same wage occupation but now records Coachcode as his employer.
- [43]The evidence of Mr Martin suggests that in terms of the 2013 taxable year, Mr Schepis Snr had a short term engagement with Core Staff Qld Pty Limited for which he received $2080.
- [44]There is no clear evidence before the Commission to demonstrate how Mr Schepis Snr was remunerated under a contract of service with Coachcode.
- [45]What is clear is that there is no written employment agreement between Coachcode and Mr Schepis Snr.
- [46]According to the evidence of Mr Martin, in or around mid-2013 he had discussions with Mr Schepis Snr regarding a daily wage commensurate with the 'market rate' for the services he would provide under a potential engagement with Hays Recruitment.
- [47]It was contended by the appellant Mr Schepis Snr was a worker for the purposes of PAYG taxation. It was submitted that Coachcode:
- (a)Paid the deceased a wage;
- (b)was responsible for withholding PAYG tax under the Taxation Administration Act 1953;
- (c)was liable for the superannuation guarantee under the Superannuation Guarantee (Administration) Act 1992; and
- (d)provided the deceased with a vehicle, plant and equipment and other tools of trade needed to perform work.
- [48]The appellant relies upon on a document prepared by Mr Martin following the death of Mr Schepis Snr. Mr Martin prepared this reconciliation document (to assist the the Regulator in its review) to demonstrate the basis upon which the deceased's wage had been determined.[22] Mr Martin concedes that it was an exercise of reconstruction and involved making a number of assumptions, the nature of which are not immediately evident. Mr Martin also concedes that wage slips were created after the death of Mr Schepis Snr for the purposes of the review.
- [49]There is a paucity of evidence to demonstrate the existence of a contract of service between Coachcode and Mr Schepis Snr.
- [50]When the evidence is considered as a whole, there is little or no evidence before the Commission to demonstrate the relationship between Mr Schepis Snr and Coachcode was that of employer and employee.
- [51]There is no clear evidence before the Commission in respect as to how Mr Schepis Snr was to be remunerated, the provision and maintenance of equipment, the arrangements that are made about his hours of work, provision for holidays or sick leave, and the obligation to work. Nothing before the Commission would support a conclusion he was under the direction or control of Mr Schepis Jnr. Indeed, the reverse is the case.
- [52]There is no evidence that Mr Schepis Snr was paid any wage by Coachcode. The evidence of Mr Martin was as follows:
Okay. All right. The payments – when you’ve gone through and looked at the Westpac records, exhibit 9 – do you still have those there?‑‑‑Yes.
If we go to the first page, that’s the entries starting from the 29 of January, where there’s in fact a deposit into Coach Code’s account from Hays Personnel, it would appear that was in fact payment in respect of the work undertaken by Mr Schepis Senior; that’s your understanding?‑‑‑Yes.
And that’s pursuant to the agreement that had been reached with Hays?‑‑‑Yes.
Then there’s a withdrawal on the 30 of January, and that’s done via way of an internet online banking transaction?‑‑‑Yes.
You didn’t do that?‑‑‑The transaction?
Yes?‑‑‑Not at all.
And that transaction I now understand is that a sum of $3000 is paid into the bank account of another company; that’s correct?‑‑‑I haven’t got any evidence to suggest that it went to another company, or that it went to a private account for Anthony Senior.
So you don’t know where that money went?‑‑‑I don’t have any – that’s right. As I have previously mentioned, that the notation being “payment interest” I took to mean that at least part of that has gone into his mortgage account.
But you haven’t been able to confirm through source documentation that’s been provided by ‑ ‑ ‑?‑‑‑No, I haven’t.
‑ ‑ ‑ by either Mrs Schepis or Mr Schepis Junior?‑‑‑No, I haven’t.
That’s correct?‑‑‑That’s correct.
All right. So that’s merely an assumption by you that that amount represents wages?‑‑‑As I’ve previously stipulated.
And you can’t say whether in fact that amount has actually been paid to Mr Schepis Senior or at his direction?‑‑‑No, I can’t.[23]
- [53]The elements of a contract of employment[24] have not been clearly established. It is apparent from the evidence the negotiations concerning remuneration was not with Coachcode, but directly between Mr Schepis Snr and Hays Recruiting. Mr Schepis Snr did not discuss wages with his son, the sole director of his alleged employer. Rather, the level of remuneration to be paid by Hays was discussed between Mr Schepis Snr and Mr Martin, the company's accountant.
- [54]The quantum of the remuneration was determined, according to the evidence of Mr Martin by calculating what "he was worth"; i.e. what he would expect to get paid from someone else.
- [55]The true engagement was between Mr Schepis Snr and Hays Recruiting. Coachcode was merely a conduit through which payment was channeled. As the tax returns indicate, Mr Schepis Snr was in receipt of some form of disability support pension.
- [56]Wages were never paid directly to Mr Schepis Snr from Coachcode. The bank statements reveal that $26,200.00 was withdrawn or transferred by Mr Schepis Snr.
- [57]The respondent contends the evidence before the Commission supports the conclusion that Mr Schepis Snr was the one who researched and pursued work opportunities, conducted all the business negotiations, made the high-level decisions as to what work would be accepted by Coachcode and at what rate of remuneration.
- [58]It is my view the appellant has failed to establish, on the balance of probabilities, that there was a contract of service between Mr Schepis Snr and Coachcode, or that he was an employee for the purposes of PAYG taxation.
Conclusion
- [59]It was the primary submission of the respondent that Mr Schepis Snr was in fact a director of Coachcode, albeit not legally or formally appointed.
- [60]The respondent submits the definition of director contained in the dictionary in schedule 6 of the IR Act contemplates a person being found to be a director despite not being actually appointed. That is, either a shadow director or a de facto director within the meaning of the Corporations Law.
- [61]Mr Schepis Snr retained sole control over the company's bank accounts and was responsible for providing instructions and information to Mr Martin, the company accountant.
- [62]I accept that Mr Schepis Snr was making the decision as to what work would be pursued and on what terms. He signed agreements with Hays Recruiting in October 2011 and the other in January 2014 and these signatures could be considered as holding himself out as a director with an authority to sign. In the October 2011 agreement with Hays, Mr Schepis Snr signs as the nominated person and also on behalf of the company.
- [63]Having considered the totality of the evidence, I accept the submission of the respondent that Mr Schepis Snr made all important decisions on behalf of Coachcode and draw the inescapable conclusion that Mr Schepis Jnr was simply a rubberstamp and did whatever his father wanted him to do.
- [64]As such, Mr Schepis Snr was a de facto director of Coachcode Pty Ltd and therefore, not a 'worker' under the Act by virtue of Schedule 2, Part 2.
- [65]I am further of the view that there is no evidence to support a conclusion that Mr Schepis Snr was in fact working under any contract of service for Coachcode or an employee of Coachcode for the purposes of PAYG taxation. As such he is not a worker within the meaning of section 11 of the Act.
Orders
- [66]I make the following orders:
1. Appeal dismissed;
2. The decision of the respondent dated 29 May 2015 is affirmed; and
3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission.
Footnotes
[1] Exhibit 11.
[2] T1-15 at Ll. 34-39.
[3] T1-15 at Ll. 25-39.
[4] T1-5 at Ll. 6-7.
[5] T1-11 at Ll. 36-45.
[6] T1-12 at Ll. 26-32.
[7] T1-16 at Ll. 14-17.
[8] T1-17 at Ll. 23-39.
[9] T1-48 at Ll. 46-47.
[10] T1-50 at Ll. 27-31.
[11] T1-44 at Ll. 43-45.
[12] T1-44 at Ll. 22-24.
[13] T1-49 at Ll. 30-33.
[14] T1-45 at Ll. 1-2, T1-48 at Ll. 46-47 and T1-49 at Ll.1-4.
[15] T1-38 at Ll. 33-41.
[16] Inspector James v Ryan (No 3) [2010] NSW IRComm 127.
[17] [2010] FCA 1129 [90]-[91].
[18] [1998] FCA 1034.
[19] T1-43 at Ll. 29-43.
[20] Exhibit 4.
[21] Exhibit 7.
[22] Exhibit 6.
[23] T1-35 at Ll. 37-45 and T1-36 at Ll. 1-28.
[24] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.