Zhong v Workers' Compensation Regulator
[2018] QIRC 98
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- Unreported Judgment
- Zhong v Workers' Compensation Regulator[2018] QIRC 98
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Zhong v Workers' Compensation Regulator[2018] QIRC 98
Zhong v Workers' Compensation Regulator[2018] QIRC 98
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Zhong v Workers' Compensation Regulator (2018) QIRC 098 |
PARTIES: | Zhong, Xiaoyong (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2016/99 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 19 July 2018 |
HEARING DATES: | 15 and 16 May 2018 |
MEMBER: HEARD AT: | Vice President Linnane Brisbane |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL - whether deceased was a worker - whether deceased sustained an injury within the meaning of s 32 of the Act - whether the relationship was an employment relationship or a contractor relationship - whether worker's injury arose out of, or in the course of, his employment. |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 Taxation Administration Act 1953 (Cwlth) Zuijs v Wirth Bros. Pty Ltd (1955) 93 CLR 561 Workers' Compensation Board of Queensland v Juran and Another (unreported, QSC, Mackenzie J, 11 February 1994) Hill v WorkCover Queensland [2005] QSC 257 Kevin Daly v Q-Comp [2009] QIC 32 Simon Blackwood (Workers' Compensation Regulator) v Blue Wren Holdings Pty Ltd. [2014] ICQ 011 Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 182 |
APPEARANCES: | Mr R. Yu of Counsel instructed by Pi-En Hsu Lawyers for the Appellant. Mr S. Gray of Counsel directly instructed by the Workers' Compensation Regulator for the Respondent. |
Reasons for Decision
[1] This is an appeal by Xiaoyong Zhong (Appellant) against a decision of the Workers' Compensation Regulator (Regulator) dated 31 May 2016. That decision of the Regulator was to confirm a decision of WorkCover Queensland (WorkCover) to accept an application for compensation by Mr Wen-Ping Wang in accordance with s 11 and s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act).
[2] On or about 25 July 2015, Mr Wang fell off a ladder whilst painting a ceiling at 65 Sundance Way, Runaway Bay. Following the fall, Mr Wang was taken to the Queen Elizabeth II Hospital and was subsequently transferred to the Princess Alexandra Hospital with life threatening head injuries resulting from the fall. Mr Wang subsequently died as a result of those injuries.
[3] On or about 29 July 2015 Ms Yun-Chen Lu, on behalf of Mr Wang, made application for compensation in respect of that fall by Mr Wang. Following assessment of Ms Lu's application, WorkCover made a decision and issued their reasons for decision dated 5 November 2015. That decision found that Mr Wang was a "worker" for the purposes of s 11 of the Act and further considered that Mr Wang was employed by Mr Zhong, that he had sustained a work related "injury" as a result of the fall and that the injury to Mr Wang satisfied the provisions of s 32 of the Act.
[4] On or about 2 February 2016, Mr Zhong sought review of that decision to the Regulator contending that Mr Wang was not an employee but rather an independent contractor when he was injured. The Regulator issued its decision dated 31 May 2016 which confirmed the WorkCover decision. It is against that decision that this appeal was filed in the Industrial Registry on 16 June 2016.
Legal Framework
[5] The appeal relates to s 11 of the Act which 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."
[6] Those provisions were inserted into the Act by the 2013 amendments. The reasons for the amendment are set out in the Explanatory Memorandum as follows:
"Clause 71 amends section 11(1) to provide that a worker is a person who works under a contract and in relation to the work, is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), schedule 1, part 2-5. This applies to a contract regardless of whether it is a contract of service or another kind of contract for example, a contract for piecework. This applies to a person for whom PAYG tax instalments are required to be withheld, or for whom they would be withheld if the withholding is not exempted, for example by tax free income thresholds."
[7] I agree with the Regulator's submission that whether someone works under a "contract of service" or a "contract for service" is now of little significance given the definition of "worker" in s 11 of the Act. Schedule 2, Part 1 of the Act sets out the categories of persons who are workers for the purposes of the Act. Schedule 2, Part 2 of the Act sets out the categories of persons who are not workers for the purposes of the Act. The Appellant did not refer me to either Part 1 or Part 2 of Schedule 2 in the course of this hearing.
[8] Also relevant to a determination of this appeal is s 32(1) of the Act which provides:
"(1) An injury is a personal injury arising out of, or in the course of, employment if -
- (a)for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
…"
Issues for Determination
[9] The issues for determination in this appeal are:
- (i)whether Mr Wang was a "worker" within the meaning of s 11 of the Act; and
- (ii)whether Mr Wang sustained an "injury" within the meaning of s 32 of the Act.
[10] For the Appellant to succeed in this appeal he must first prove that:
- (i)Mr Wang did not work under a contract; and
- (ii)in relation to the work, that Mr Wang was not an employee for the purposes of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5.
[11] If the Appellant is unable to prove that Mr Wang was a "worker" within the meaning of s 11 of the Act then it must also be determined whether Mr Wang sustained an "injury" within the meaning of s 32 of the Act. In this regard the issue is whether Mr Wang sustained a personal injury, that the personal injury arose out of, or in the course of, Mr Wang's employment and that Mr Wang's employment was a significant contributing factor to the injury. Given the evidence before me, the Appellant basically conceded that, provided Mr Zhong was found to be a "worker", then the circumstances of his injury fell within the provisions of s 32 of the Act.
[12] Given the evidence adduced in the course of the hearing, it became apparent that the only issue for determination in this appeal is whether Mr Wang was a "worker" when injured on 25 July 2015. There is no dispute that Mr Wang suffered an "injury" within the meaning of that term in the Act if the Appellant is unable to prove that Mr Wang was not a "worker".
Onus of Proof
[13] The hearing of the appeal was conducted as a hearing de novo. The Appellant bears the onus of proving, on the balance of probabilities, that Mr Wang was not a "worker" within the meaning of that term in the Act. Whilst the onus is to be discharged on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist.
Evidence
[14] The Appellant relied upon the evidence of the following witnesses:
- the Appellant, Mr Xiaoyong Zhong;
- Mr Digen Hur;
- Ms Yujie Wang, the wife of the Appellant; and
- Mr Kok Yin Chew.
The Regulator did not call any witness in the proceeding given that Mr Wang had died as a result of the injury he sustained on 25 July 2015.
[15] Xiaoyong Zhong's Evidence: Mr Zhong indicated that he required an interpreter to give evidence and an interpreter was provided. It became clear fairly early in his evidence that Mr Zhong was complaining about the interpreter's interpretation of the responses he was giving to questions asked of him. It became apparent that Mr Zhong's command of the English language was superior to that of the interpreter's command of the English language. In those circumstances, the interpreter remained near Mr Zhong in case he needed some assistance but otherwise ultimately he gave his evidence without the need for an interpreter.
[16] Sometime around April 2015 Mr Zhong was engaged by Mr Digen Hur who, at the time, was General Manager of Everbright Services Pty Limited (Everbright). Everbright, at the time, was involved in the construction of sixteen new townhouses at 36 Ewing Road, Logan Central (the Ewing Road site). Everbright engaged more than thirty persons each day during the construction period of those townhouses. Mr Zhong at this time was given a supervisory role over the painters employed by Everbright at the Ewing Road site.
[17] On 13 April 2015 Mr Zhong and Everbright signed a Work Order for painting work to the sixteen townhouses at an hourly rate of $25.00. The commencement date of this first arrangement was 16 April 2015. Ultimately this first arrangement existed only for the exterior painting of the townhouses. That Work Order referred to a Subcontract Number which was blank and then to the Subcontract Conditions. There was no evidence of Mr Wang signing a similar Work Order. Mr Zhong also had the role of finding painters to undertake the painting work at the Ewing Road site on behalf of Mr Hur or Everbright. Mr Zhong saw his role in the first arrangement as assisting in managing the painting work for Mr Hur and/or Everbright at the Ewing Road site. Mr Zhong also said that he provided Mr Hur with an ABN when he signed the Work Order although that is not noted on the Work Order. Both Mr Zhong and Mr Hur agreed that Mr Zhong was, at this time and at all times during the first arrangement, an employee of Everbright.
[18] It was Mr Zhong's evidence that he was introduced to Mr Wang through a mutual friend who was aware that Mr Zhong was looking for painters to perform work at the Ewing Road site. Mr Wang telephoned Mr Zhong and undertook one day's trial. Mr Hur then negotiated to pay Mr Wang a wage rate of $20.00 per hour. The arrangement for Mr Wang to perform painting work for Everbright occurred sometime in April/May 2015.
[19] During the first arrangement the individual painters on the construction site would complete timesheets and give them to Mr Zhong who in turn would provide them to Mr Hur. Mr Hur would then calculate the wages to be paid to the painters and give a cash cheque to Mr Zhong who in turn cashed the cheque and paid the individual painters on the construction site on behalf of Mr Hur and/or Everbright.
[20] The arrangement between Mr Hur and Mr Zhong changed when the interior painting of the townhouses was to be undertaken (the second arrangement). Mr Hur had complained that the exterior painting cost was excessive and over-budget. At this time Mr Zhong became a sub-contractor to Mr Hur/Everbright and he was then to engage the painters to undertake the interior painting of the townhouses. Mr Hur agreed to pay Mr Zhong a particular sum for the internal painting of each townhouse. In respect of this second arrangement Mr Zhong signed another Work Order. This Work Order (Exhibit 1) identified that it was for the internal painting only and the payment to Mr Zhong was a lump sum per unit of $2,812.50 inclusive of GST and the payment was to be made on the completion of the interior painting of each townhouse. The commencement date of this second arrangement was 24 June 2015.
[21] It was Mr Zhong's evidence that he then sub-contracted the interior ceiling painting work of each townhouse to Mr Wang. As and when the painting of each townhouse was finished he would pay Mr Wang the agreed amount ($560.00) for the painting of the townhouse. Whilst this was the evidence, I believe that the arrangement with Mr Wang was only for the painting of the ceilings in the townhouses. Whether the arrangement with Mr Wang was for the painting of the townhouses generally or for the painting of the ceilings is of no relevance to my determination. Mr Zhong supplied the paint with Mr Wang supplying the paint roller. Mr Zhong said that the second arrangement involved Mr Wang supplying everything he needed to perform the work but for the paint which was supplied by Mr Zhong. Mr Zhong however did indicate that if Mr Wang wanted a long trestle or a ladder then Mr Zhong himself would supply that trestle or ladder. Mr Zhong was keen to emphasise that Mr Wang would "borrow" such trestle or ladder from him. Mr Zhong could not advise the Commission whether Mr Wang engaged others to perform this work. There was no evidence that Mr Wang engaged anyone to perform any of the ceiling painting work at the Ewing Road site and, if he had, it would have been evident to Mr Zhong as Mr Zhong was also involved in the painting of the townhouses.
[22] Whilst there was no evidence that Mr Wang did work longer hours during this second arrangement, Mr Zhong said he could have worked longer hours in order to earn more money. Mr Zhong agreed that he still needed to push Mr Wang to complete the work within the timeframe required by Everbright for the completion of the interior painting of all townhouses. Mr Zhong instructed Mr Wang as to which townhouse to paint and in what order. Mr Zhong also determined the timeframe within which each townhouse needed to be completed. Mr Zhong agreed that there was more work involved in the interior painting of the townhouses than there was in the exterior painting of the townhouses.
[23] Mr Zhong introduced into evidence a document (Exhibit 3) which he said was given to him by Mr Wang as purporting to be Mr Wang's company name. Mr Zhong said that he had asked Mr Wang for an ABN in this second arrangement. The document was a PowerPass Bunnings Warehouse receipt for goods purchased with a card named "The Trustee for the Lee Family Trust". Mr Wang is alleged to have provided this to Mr Zhong as evidence of his company. Mr Zhong then wrote the name down and the details of that receipt on another piece of paper and said that it was evidence that Mr Wang was contracting with him under that corporate entity i.e. The Trustee for the Lee Family Trust (Exhibit 2). Apparently the person who authorised the payment to Bunnings was Mrs Kay Kong. No relationship between Mr Wang and Mrs Kong was identified during the course of this hearing and no relationship between Mr Wang and The Trustee for the Lee Family Trust was identified. I do not accept that this receipt was offered to Mr Zhong as evidence of any business that Mr Wang was operating either during the second arrangement or at any time thereafter. It appears to be a receipt for goods purchased at Bunnings by someone. It does not assist Mr Zhong in attempting to prove that Mr Wang was operating a business at the time of the second arrangement or at any time thereafter.
[24] Whilst the intent behind introducing these documents was to show that Mr Wang had an ABN, no connection between Mr Wang and The Trustee for the Lee Family Trust was established during the course of the hearing. During this second arrangement Mr Zhong himself paid Mr Wang in cash. Mr Zhong kept no records of any such payments to Mr Wang. Further, there is no evidence that Mr Wang provided Mr Zhong with any invoice for the work performed either during the second arrangement or for the Runaway Bay work. No invoice was issued in either Mr Wang's name or in the name of any corporate entity seeking the payment of monies for work performed.
[25] It was quite evident that both the first and second arrangements with respect to the Ewing Road site involved an intention to avoid the payment of various taxes e.g. no tax was deducted from any employee involved in painting at the Ewing Road site. It seems that the payment of all employees/workers on site involved an avoidance of taxation by both Mr Hur/Everbright during the first arrangement and by Mr Zhong during the second arrangement.
[26] Towards the end of the completion of the townhouses at Ewing Road, Mr Zhong commenced work for a friend on the interior painting of a house at the Runaway Bay site. This job was said by Mr Zhong to have commenced around the end of July 2015. Mr Wang was engaged to perform the painting of the ceiling only of the Runaway Bay house. Mr Zhong said that he sub-contracted this work to Mr Wang. Once again Mr Zhong provided no documentation to support the arrangement between him and Mr Wang. Mr Zhong said that Mr Wang wanted $500.00 to paint the ceiling whereas Mr Zhong was only offering $300.00. Mr Zhong said that Mr Wang agreed to the $300.00 on the condition that Mr Zhong provided the paint and Mr Wang provided labour only. Mr Zhong later clarified that by saying that the owner provided the paint. Mr Zhong also provided the ladder to enable Mr Wang to complete the painting of the ceiling. No issue arose during the course of the hearing with respect of Mr Wang being able to engage any other painter to perform the painting work at the Runaway Bay site. Mr Zhong contracted with Mr Wang to perform that work.
[27] On 25 July 2015 Mr Zhong was not at the Runaway Bay house as he took his wife and child to Dreamworld. Mr Wang was at the house site as was Mr Kok Yin Chew performing painting work. Mr Zhong visited the house for a short period on his way home from Dreamworld. Mr Zhong was on his way home from the Runaway Bay site when he received a telephone call from Mr Chew advising him that Mr Wang had fallen. Mr Chew asked Mr Zhong to return to the Runaway Bay site which Mr Zhong and his wife did. When Mr Zhong returned to the Runaway Bay site he said that Mr Wang was sitting on a bucket. According to Mr Zhong, Mr Wang said that he was alright and that he was going to drive home. Mr Zhong said that he would drive Mr Wang home to Sunnybank Hills. On the way to Mr Wang's home, Mr Zhong returned his child to his home.
[28] When Mr Zhong arrived at Mr Wang's home, Mr Zhong said that Mr Wang did not look very well and he took Mr Wang to the Queen Elizabeth II Hospital. At this time Mr Wang was having to hang onto something when he walked. Whilst at the Hospital both Mr Zhong and his wife met Mr Wang's wife.
[29] It was during a conversation at the Hospital that Mr Zhong's wife advised Mrs Wang that it was her and her husband's house at Runaway Bay that Mr Wang was painting when he fell from the ladder. This statement was made in response to a statement from Mr Wang's wife that Mr Zhong was her husband's employer or boss. Mr Zhong agreed that he did not advise Mr Wang's wife differently although he knew what his wife had said was a lie. His reason for not rectifying the position was that emotions were "quite unstable" at the time. The making of such a statement by Mr Zhong's wife would appear to have been an attempt to dissuade Mr Wang's wife from her belief that her husband was an employee of Mr Zhong.
[30] Mr Zhong agreed under cross-examination that, at the relevant time (early 2015 to 25 July 2015), he provided painting and decorating services as a business and he advertised his business in newspapers. Whether Mr Wang was introduced to Mr Zhong via a friend or whether Mr Wang responded to a newspaper advertisement is not relevant to my determination of this matter. Mr Zhong agreed that he was required to supervise the painters on site during the first arrangement with Mr Hur/Everbright.
[31] Digen Hur's Evidence: Whilst Mr Digen Hur is currently a director of a construction company titled BulkBuild, he was, at the relevant time, the general manager of Everbright. He said he employed more than 30 people each day at the Ewing Road site although he later said that those 30 people were a combination of employees and sub‑contractors. His evidence was that employees were paid via internet transfers. Clearly that was not correct as the painters at the Ewing Road site were paid in cash. With sub‑contractors, Mr Hur said he would normally ask for ABN's, insurance details (particularly WorkCover) and their work licence number. Mr Hur said that this request was made before any sub-contractor commenced work at the Ewing Road site.
[32] Mr Hur then stated that because of the timeframes for completion of jobs, the sub‑contractors started work having agreed to provide the ABN, the insurance and the licence information at a later time. Under cross-examination, Mr Hur said that whilst he asked everyone for their ABN's and work licences he was not given either an ABN or a licence at the Ewing Road site. It became apparent that Mr Hur did not have any real interest in obtaining the ABN, the insurance details or the work licence information from such sub-contractors. Under cross-examination, Mr Hur said that, at the time, he was "disappointed" that he did not get any ABN or work licence from those engaged on the construction at the Ewing Road site. At all times, Mr Hur had it within his power to prevent any sub-contractor from commencing work at the Ewing Road site until the sub‑contractor provided their ABN, their insurance details and their work licences. Being "disappointed" is not an adequate response.
[33] The fact that Mr Hur had no interest in confirming for himself and/or Everbright the work licence details of tradespersons engaged as sub-contractors is of particular concern. At no time did he obtain a licence from Mr Zhong even though he entered into two different arrangements with Mr Zhong. He was aware that Mr Zhong did not have a painting licence and there was no evidence that Mr Wang provided his licence to Mr Zhong to provide the details to Mr Hur.
[34] Mr Hur agreed that, in the first arrangement, he provided Mr Zhong with a cash cheque to enable Mr Zhong to then pay the painters on the construction site in cash on behalf of Mr Hur and/or Everbright. Another issue of concern in Mr Hur's evidence is that he and/or Everbright appeared to be party to an arrangement designed to avoid the payment of tax in a number of areas.
[35] According to Mr Hur's evidence, during the first arrangement Mr Zhong was expected to paint for the $25.00 per hour he was being paid and Everbright and/or Mr Hur were responsible for any rectification work. With the commencement of the second arrangement, Mr Hur said he had no interest in how Mr Zhong arranged his business. The only interest that Mr Hur seemed to have in this second arrangement was that Mr Zhong became responsible for any rectification work.
[36] Kok Yin Chew: Mr Chew also indicated that he required an interpreter. Mr Chew had known Mr Zhong prior to the Ewing Road construction having worked for him previously at Sunnybank Hills in a car wash. Mr Chew continues to work for Mr Zhong as at the hearing date. Mr Chew was engaged at the Ewing Road site as a handyman. It was at this site that he met Mr Wang although he did not work at this site often. Mr Chew, at the time, was on a student visa and therefore he was restricted in the number of hours he could work. Mr Chew was also engaged by Mr Zhong to perform work at the Runaway Bay site. His evidence was that only three persons performed work at the Runaway Bay site i.e. Mr Zhong, Mr Wang and himself. Clearly then Mr Wang personally performed the Runaway Bay site work and did not employ others to perform the work.
[37] On 25 July 2015 Mr Chew obtained a ladder from Mr Zhong to enable Mr Wang to paint the ceiling at the Runaway Bay site. It became clear during Mr Chew's evidence that he had been coached in relation to his evidence. One example was Mr Chew's response to questioning about him obtaining the ladder. His answer was to say "that Daniel had borrowed" the ladder from Mr Zhong. Daniel being the name used to describe Mr Wang. This statement was not responsive to the question asked.
[38] Mr Chew said he arrived at the Runaway Bay site in a car with a "trolley" or "trailer" attached to enable the ladder to be transported to the site. Mr Wang assisted him in bringing the ladder into the house.
[39] Mr Chew said that he and Mr Wang were the only persons working at the Runaway Bay house on 25 July 2015. They were about to finish work and Mr Chew said that he was cleaning his brushes when he heard a noise. He found Mr Wang on the floor. Beside Mr Wang was the fallen ladder. Mr Chew went to Mr Wang and asked him how he was but Mr Wang did not answer. Mr Chew then rang Mr Zhong. Mr Chew said that he told Mr Zhong that "Daniel fell off". Under cross-examination, Mr Chew said that Mr Wang looked in a bad way, he was on the floor and he could not talk. He then said that Mr Wang suddenly got up on both his hands and feet. Mr Chew's responses to similar questions asked of him in evidence-in-chief and in cross-examination appeared to result in different responses.
[40] Mr Chew said that he did not have an ABN whilst working at the Ewing Road site and he was never asked to provide one. He said that this was because both Mr Hur and Mr Zhong knew that he was on a student visa. It became evident that Mr Chew had no idea what an ABN was although he did state that he had recently been made aware of what an ABN was. Mr Chew agreed, in cross-examination, that he never had an ABN. His response to a question asked of him to describe an ABN, was that it was "an account number".
[41] Mr Chew also questioned the interpreter's interpretation of his responses saying that the interpreter's response was wrong. At this point I formed the view that the interpreter was being used and I indicated that I was not impressed with the manner in which the interpreter was being used.
[42] Yujie Wang: Mrs Wang also sought the assistance of an interpreter in giving her evidence. Mrs Wang is the wife of Mr Zhong. Whilst she was aware of her husband's business she was not employed in that business. She was also aware of Mr Wang because he had earlier performed some painting at her and Mr Zhong's home.
[43] Mrs Wang said that she found out about the incident with Mr Wang when she and her husband were driving home and Mr Chew telephoned her husband. Mrs Wang said that she was employed as a registered nurse at Bolton Clarke aged care facility at Sunnybank Hills. I assume that this is the Bolton Clarke Cazna Gardens Sunnybank Hills - Retirement Living residential aged care facility. Mrs Wang said she had taken the day off work on 25 July 2015 because it was her son's birthday and the family were going to Dreamworld to celebrate his birthday.
[44] Mrs Wang said that the family had driven to the Runaway Bay site on the way home from Dreamworld and her husband had entered the Runaway Bay site. The family had left the Runaway Bay site and were travelling to their home when Mr Chew telephoned Mr Zhong advising of Mr Wang's fall. They then immediately drove back to the Runaway Bay site.
[45] I had a concern about Mrs Wang giving evidence via an interpreter when she had indicated that she was employed as a registered nurse at an aged care facility. Mrs Wang then advised that she had obtained her Bachelor of Nursing degree at a tertiary institution in Queensland. As a registered nurse employed at an aged care facility, I was aware that she was likely to be dispensing medications to the aged care residents and as such she would be required to have a very good command of the English language. When I asked Mrs Wang why she was utilising an interpreter she responded that "the reason is just that I'm worried if an error" or "some basic words I don't really understand". I then indicated to Mrs Wang that she should answer the questions asked of her without utilising the interpreter. I further indicated to her that should she need the interpreter to explain any question asked of her she could then utilise the services of the interpreter. After this Mrs Wang did not need the interpreter.
[46] Mrs Wang said that when she and her husband arrived at the Runaway Bay site, Mr Wang was sitting in the garden, walking around and saying that he wanted to go home. Mrs Wang said that Mr Wang looked alright and that she saw no obvious signs of injury to Mr Wang. Mrs Wang said that her husband then decided to drive Mr Wang home and he arranged for someone else to drive Mr Wang's vehicle to his home. Mrs Wang said that she drove Mr Wang and her husband to Mr Wang's home. Mr Wang was able to direct her to his home.
[47] When they arrived at Mr Wang's home, Mr Wang was walking very unsteadily and Mr Zhong said to Mr Wang "what about we take you to the hospital". Shortly thereafter they drove Mr Wang to the Emergency Department of the Queen Elizabeth II Hospital. Sometime later, probably two or three hours later, Mr Wang's wife arrived at the Hospital with a friend.
[48] Mrs Wang then said that when Mr Wang's wife arrived at the Hospital "she was very aggressive and very angry towards Mr Zhong and kept asking whether her husband (Mr Zhong) was "his boss". Mrs Wang said that she tried to explain that Mr Zhong, her husband, was not Mr Wang's boss.
[49] When cross-examined, Mrs Wang agreed that she said to Mr Wang's wife, that she and Mr Zhong were the owners of the house that Mr Wang was painting when he fell. She further advised Mr Wang's wife that she and Mr Zhong had engaged Mr Wang to paint their house. Mrs Wang said that she said this because her husband, Mr Zhong, was not Mr Wang's boss and that Mr Wang's wife was becoming "very aggressive and very angry and wouldn't let them go".
[50] Mrs Wang agreed that she knew that what she had said to Mr Wang's wife was not the truth.
Credibility
[51] I have a real issue with the credibility of all witnesses for the Appellant. The arrangements entered into by Mr Zhong at the Ewing Road site were designed to remunerate the employees a lesser amount for their work than any award entitlement and to then pay them in cash so that the employees did not pay income tax. He appeared to be involved, in the second arrangement, in a scheme designed to avoid the payment of tax.
[52] As Mr Wang was unable to give evidence about the arrangement he entered into with Mr Zhong, I have great difficulty accepting Mr Zhong's evidence concerning those arrangements. The suggestion that the Bunnings' invoice was provided to him as evidence of Mr Wang's corporate entity is clearly not believable given that Mr Zhong could show no connection between Mr Wang and The Lee Family Trust or between Mr Wang and Mrs Kong.
[53] It was Mr Zhong's attempt to prove that Mr Wang contracted with him via a corporate entity when there was no evidence whatsoever of Mr Wang having an ABN or a corporate entity let alone evidence that Mr Wang contracted with Mr Zhong via that corporate entity.
[54] Mr Zhong, at the Queen Elizabeth II Hospital on 25 July 2015, also failed to correct his wife's assertion that Mr Wang was painting his and his wife's house when he fell. This is also indicative that Mr Zhong was prepared to condone lies being said to the wife or a person who was in a seriously ill condition. That did not enhance my view of Mr Zhong's credibility.
[55] Mr Zhong's evidence on these three issues has, in my view, coloured his evidence generally. Where there has been no corroboration of Mr Zhong's evidence, either by other credible evidence or by documentation, I have had difficulty in accepting much of his contentious evidence e.g. that he sub-contracted the ceiling painting at the Ewing Road site to Mr Wang or that he sub-contracted the ceiling painting work at the Runaway Bay site to Mr Wang. The requested need for an interpreter for Mr Zhong also appeared to be used as a mechanism for him to have time to respond to questions asked of him.
[56] Mr Hur's evidence was littered with credibility issues. Clearly Everbright and Mr Hur were not interested in their taxation and workplace health and safety obligations. Payment of employees in cash, not obtaining work licences from sub-contractors prior to commencing work and not obtaining them at all during the construction of the Ewing Road site does not give one confidence in accepting Mr Hur's evidence. In any event his evidence does not assist me to decide the issue in this proceeding.
[57] There are a number of credibility issues with the evidence of Mrs Wang. Suggesting that she required an interpreter when she has undertaken tertiary education in Queensland and obtained a degree in nursing from that tertiary institution and currently works as a registered nurse in Queensland would, in my view, be of concern to the Australian Health Practitioners Regulation Agency.
[58] The fact that she would lie to Mr Wang's wife at the Queen Elizabeth II Hospital when her husband was in a serious condition also detracts from her credibility. Once again Mrs Wang's evidence does not assist me in determining this matter.
[59] Mr Chew's evidence also does not really assist me in determining the matter before me but his credibility is also at issue. I need only point to his evidence about the ABN and to the fact that he appeared to have been coached in his evidence. I question also his need for an interpreter.
Submissions
[60] Appellant's Submission: The Appellant submits that the main issue for the Commission to decide is whether or not Mr Wang was a "worker" for the purposes of s 11 of the Act. In relation to the evidence of Mr Zhong, the Appellant contends that Mr Zhong was not a licensed painter although he was expected by Mr Hur to perform painting work during the first arrangement. It was contended that, as at 18 June 2015 when the second arrangement commenced, Mr Zhong sub-contracted "the painting of the internal walls" at the Ewing Road site to Mr Wang at a set rate for each townhouse completed. The Appellant submits that whilst it was agreed that Mr Zhong would provide and pay for the paint, that cost had been factored into the price that Mr Wang received to achieve the specific result.
[61] The Appellant submits that Mr Wang gave Mr Zhong an ABN i.e. the "Trustee for the Lee Family Trust" being the name on the Bunnings receipt which was tendered in evidence. I have already expressed a view on this issue. Mr Zhong's evidence was that Mr Wang was required to rectify any defects in his work although there is no evidence of Mr Wang having had to rectify any work.
[62] The Appellant further contends that, in respect of the Runaway Bay site, Mr Zhong sub‑contracted with Mr Wang to paint the ceiling of a living room at a price of $300.00 to be paid at the completion of the work. The Appellant contends that Mr Wang was to provide his own tools and equipment to complete the task and that Mr Wang was responsible for the rectification of any defects. The evidence is clear that Mr Wang did not provide his own equipment in that the ladder was provided by Mr Zhong. It was further submitted that Mr Zhong had no control over how Mr Wang carried out the work. Given that Mr Zhong was not a licensed painter it would be difficult for Mr Zhong to control how Mr Wang performed the actual painting of the ceiling work. In any event Mr Zhong was not present at the Runaway Bay site when Mr Wang was performing the painting work. What Mr Zhong could however control was when Mr Wang performed the painting work.
[63] Mr Wang also provided the paint required in the work performed although there was some evidence from Mr Zhong that the owner of the Runaway Bay site provided the paint.
[64] The evidence of Mr Hur and Mr Chew shed no light on the arrangements between Mr Zhong and Mr Wang in respect of the Runaway Bay house except that Mr Chew was required to bring Mr Zhong's ladder to the Runaway Bay site on 25 July 2015 to enable Mr Wang to undertake his work. Further, Mr Chew witnessed the immediate after effects of Mr Wang's fall.
[65] Regulator's Submission: The Regulator provided an extensive analysis of the case law on "employee" versus "independent contractor". The Commission was referred to the case of Zuijs v Wirth Bros. Pty Ltd (Zuijs)[1] where the High Court considered the position of an acrobat in a circus. The High Court held that where duties performed may depend on special skills or knowledge, or they may be so clearly defined or evidence that the employee acting on his or her own behalf does not require much direction or command in detail. As long as there is a lawful authority to command, even though the scope is limited, the work is performed under a contract of service and not under an independent contract. The fact that Mr Wang was a licensed painter and Mr Zhong was not indicates that Mr Zhong would not have the ability to have directed Mr Wang in the manner in which he actually painted. This lack of control in how Mr Wang performed his painting work does not necessarily result in an independent contractual relationship.
[66] In Workers' Compensation Board of Queensland v Juran and Another[2] the issue was whether an injured person who was constructing a roof was entitled to compensation. In this case the "employer" provided the tiles and timber and any other necessary material to construct the roof whilst the "worker" was responsible for supplying the necessary nails, tools of trade and ladders. In holding that the injured person was working as a contractor and not as a worker, Mackenzie J was influenced by the following facts as outlined by Mr Gray, Counsel for the Regulator, in his written submission:
"(a) so far as supervision was concerned, except to the extent that Taylor Roofing as the entity entering into the contract with the householder made sure that the work had been done properly, Mr Juran was left to his own devices to carry out his trade. It was not a case where Mr Taylor or other employees of the company purported to direct the defendant how to carry out the trade work;
- (b)the company's role was to negotiate the contract with the householder, estimate the materials required and supply them;
- (c)Mr Juran was not required to work particular hours. The only constraint in that respect was the practical constraint that the work had to be done with satisfactory expedition, which normally involved working ordinary building trade hours. However that was not something which was imposed upon him by direction from Taylor Roofing Pty Ltd;
- (d)each job was invoiced to Taylor Roofing on behalf of the partnership constituted by the defendant and his wife. The only deductions made were the prescribed payments of tax. No PAYE deductions or allowances for holiday pay were made;
- (e)from time to time other people were employed by the partnership, constituted by the defendant and his wife. They were paid wages by the partnership. Any jobs which were done for companies other than Taylor Roofing Pty Ltd were invoiced to those companies by the partnership. Taylor Roofing Pty Ltd derived no benefit from these jobs; and
- (f)the defendant was required to supply the nails used in the performance of his work and the expenses involved were not minor."
[67] In the case before me, there is no evidence of Mr Wang, during the second arrangement at the Ewing Road site, being required to provide, or providing, any invoice prior to receiving payment for the work performed. Mr Wang was paid in cash by Mr Zhong without any invoice being provided. There was no suggestion that Mr Wang was required to provide an invoice for the work performed at the Runaway Bay site. Further, there is no evidence whatsoever of Mr Wang engaging other people to perform painting work at either the Ewing Road site or the Runaway Bay site. There was also no evidence of any expenses incurred by Mr Wang other than his paint brushes in performing either the Ewing Road site work or the Runaway Bay site work.
[68] In Hill v WorkCover Queensland[3] (Hill) Moynihan J was considering whether a jockey performing track work came within the extended definition of "worker". In determining the issue of skill by the jockey, Moynihan J. said:
"The applicant's employment was closer to involving the use of his own skill and judgment to achieve the desired result independently of the trainer and this is indicative of a contract 'for services' rather than 'of service': Simmons v Heath Laundry Co. It is true and the applicant submits that in Zuijs v Wirth Bros Pty Ltd inability to control did not necessarily lead to a conclusion that work was not performed under a contract of service. In that case there was one contract and one employer. Here there are multiple contracts with multiple parties."
[69] In the matter before me, Mr Wang was not involved in multiple contracts with multiple parties. During the first arrangement he was employed by Everbright. When Mr Zhong became a sub-contractor to Everbright, Mr Wang continued performing the same type of work although this time he was engaged by Mr Zhong rather than Everbright. The Runaway Bay site work was performed for Mr Zhong. There was no evidence of Mr Wang performing any other work during the period from April/May 2015 when he commenced with Everbright to 25 July 2015 when he fell and injured himself at the Runaway Bay site.
[70] In Kevin Daly v Q-Comp[4], Hall P said:
"Whatever role the 'control test' continues to discharge in Australian employment law, it has always been about control not over what work is to be performed, but over the manner of performance of the work. Here, the alleged employer did not have control even over what work the appellant performed. …"
[71] In Simon Blackwood (Workers' Compensation Regulator) v Blue Wren Holdings Pty Ltd[5], O'Connor DP had to determine whether Mr Zbigniew Rusek was a worker in accordance with the provisions of the Act. Those matters which influenced His Honour to determine that Mr Rusek was not a worker are identified in paragraph [28] of that decision as follows:
"In examining the relationship between Blue Wren and Rusek the evidence supports the following conclusions reached by the Commission:
- remuneration was to be paid on receipt of an invoice and remunerated in accordance with the agreed rates schedule;
- Rusek was required to provide his own vehicle to carry out his work and was solely responsible for meeting all maintenance and running costs;
- Rusek was free to accept or not accept any job that was offered;
- there were no restrictions on Rusek performing outside work for other persons;
- Rusek was entitled to engage other people to undertake the work offered by the appellant;
- GST was paid to Rusek and he was responsible for remitting payments to the Australian Tax Office ('ATO') as well as make [sic] tax instalments to the ATO for monies received;
- Rusek had his own Australian Business Number;
- Rusek did not have access to entitlements such as holiday pay, sick leave and superannuation;
- Rusek was required to provide work tools including cordless drills, drill pits and levels;
- Rusek was required to undertake rectification work on any defective work; and
- there was limited communication in the course of the work day".
[72] Mr Wang at no stage provided any invoice and there was no evidence that he was required to provide an invoice, Mr Wang provided only his paint brushes (something which any employed painter would provide), there is no evidence before me that Mr Wang was free to accept or not accept any job that was offered or that there weren't restrictions on him performing outside work for other persons. There was no evidence that Mr Wang was entitled to engage other people to undertake the painting work at either the Ewing Road site or the Runaway Bay site. Mr Zhong needed Mr Wang's painting licence in performing the work at the Ewing Road site so it is highly likely that Mr Wang was required to undertake the painting work personally. There was no evidence that Mr Wang was responsible for remitting payments to the Australian Tax Office. Mr Wang did not have an Australian Business Number and he was not required to provide all work equipment as the paint and the equipment at the Ewing Road site was provided by Everbright during the first arrangement and by Mr Zhong during the second arrangement. Insofar as the Runaway Bay site, Mr Zhong and/or the owner of the Runaway Bay site provided the paint and Mr Zhong provided the equipment other than the paint brushes. Whilst Mr Zhong asserted that Mr Wang was responsible for any rectification work during the second arrangement at the Ewing Road site and at the Runaway Bay site there was no other evidence to support his assertion. As for the communications between Mr Zhong and Mr Wang, the evidence is that Mr Zhong was at the Ewing Road site throughout the painting work. Whilst Mr Zhong was spending a day with his family on 25 July 2015 at Dreamworld, it is noted that Mr Zhong attended the Runaway Bay site on his way home from Dreamworld. It was also the evidence of Mr Chew that only three persons were engaged in the painting of the Runaway Bay site and that included Mr Zhong and Mr Wang.
[73] The Regulator further refers to the decision of Thompson IC in Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator)[6] and in particular to paragraphs [108] - [112] of that decision as to the effect of the 2013 amendment to the definition of "worker" in the Act. That case concerned a physiotherapist employed pursuant to a fee splitting arrangement. The physiotherapist was found to be a "worker" for the purposes of the Act. A failure to deduct income tax from the worker in that case did not inhibit a finding that she was a worker for the purposes of the Act.
[74] The Regulator then dealt with the factual basis of this application whilst applying the principles outlined in the authorities it referred to in its submission. In so doing the Regulator submitted that it was largely not disputed that:
- Mr Wang did not know Mr Zhong, however they had a mutual friend;
- Mr Zhong had placed an advertisement in a Chinese newspaper soliciting work;
- Mr Wang contacted Mr Zhong offering his services as a painter; and
- Mr Zhong accepted that offer and, after demonstrating his proficiency in completing one day's work at Sunnybank Hills, Mr Wang thereafter performed painting work at the Ewing Road site and the Runaway Bay site that Mr Zhong was working on.
[75] The Regulator submitted that there was no attempt made on the part of Mr Zhong to identify any document that might shed light on the nature of the relationship between Mr Wang and Mr Zhong. Mr Zhong asserts that he was running a business. As such he was required to keep all the necessary documentation to support the business he was running. What the Commission is left with is Mr Zhong's word about the terms of their employment contract. If that relationship was one of sub-contractor then Mr Zhong had it within his power to produce the documentation supporting such a relationship. In this regard the Regulator raised the issue of Mr Zhong's credibility and that of the other witnesses called by Mr Zhong. The Regulator submitted that each of those witnesses tailored their evidence to what they thought best helped Mr Zhong. In this regard the Regulator pointed to the following evidence:
- the claim that all workers were required to provide an ABN, irrespective of whether they were a labourer or otherwise;
- Mr Chew, a person who came to Australia on a student Visa, earning $18.00 per hour, who did not even know what an ABN was; and
- the attempted reliance on the interpreter, only to suggest that the interpreter was not interpreting their evidence properly.
[76] In respect of the Runaway Bay work, the Regulator submitted that Mr Zhong had asserted that:
- Mr Wang was a sub-contractor paid to achieve a specific result or outcome, painting the ceiling;
- Mr Wang was to provide his own tools and equipment to complete the task and was required to rectify any defects; and
- Mr Wang supplied his own vehicle.
[77] The Regulator contends that the fact that Mr Wang drove himself and his paint brushes to the job site in his own vehicle is not something that could be considered as indicating a sub-contractor relationship. The only reason for Mr Wang's vehicle was to get him and his paint brushes to and from the work sites. A photograph of Mr Wang's vehicle is Exhibit 5. The vehicle appears to be a sedan and does not resemble, in any fashion, a tradesperson's work vehicle. I find that it is not indicative of any sub-contractor relationship between Mr Zhong and Mr Wang.
[78] In terms of the control test, the Regulator submitted that there was no evidence that Mr Wang was performing work for others. Mr Wang appeared to be in regular contact with Mr Zhong and Mr Zhong gave him directions as to the work to be performed. It is evident that Mr Zhong did not specifically direct Mr Wang as to how he performed his actual painting work. On the basis of the Zuijs and Hill decisions, the fact that Mr Zhong did not actually direct Mr Wang in the performance of his painting work does not result in Mr Wang being in a sub-contractor relationship with Mr Zhong. I concur with that submission.
[79] The Regulator also relies upon the fact that Mr Zhong did not produce any banking or other financial records relating to his transactions with Mr Wang or any other worker. This is in circumstances where Mr Zhong has the onus of proving that the relationship between him and Mr Wang was not an employment relationship.
[80] The Regulator submits that having regard to all of the available evidence, the appropriate finding is that Mr Wang was Mr Zhong's employee and it does not matter that the calculation of his wages was by reference to an hourly rate or an agreed sum. Whether or not Mr Wang was paying income tax or not, Mr Zhong should have deducted taxation from Mr Wang's wages in accordance with the Taxation Administration Act. In this regard the Regulator refers to section 12-190 in Schedule 1, part 2-5 of the Taxation Administration Act 1953 (Cwlth), S10-1 contains an explanation as to what the Part is about as follows:
"Under PAYG withholding, amounts are collected in respect of particular kinds of payments or transactions. Usually, someone who makes a payment to you is required to withhold an amount from the payment, and then to pay the amount to the Commissioner. If the payment is personal services income that is included in the assessable income of someone else under Division 86 of the Income Tax Assessment Act 1997, the payer must pay such an amount to the Commissioner at a later date.
If a non-cash benefit is provided instead of a payment, the provider must first pay to the Commissioner the amount that would have been withheld from the payment.
This Part also contains provisions about the obligations and rights of payers and recipients."
[81] The Regulator also referred the Commission to S10-5 of the Taxation Administration Act 1953 which contains a heading of Summary of withholding payments and provides:
"10-5 Summary of withholding payments
- (1)The payments and other transactions covered by PAYG withholding are called withholding payments. That are summarised in the table.
Note: The obligation to pay an amount to the Commissioner is imposed on the entity making the withholding payment (except for items 17, 19 and 22, and 26 (to the extent that it covers subsection 12-390(b)(4))."
[82] The Regulator further submitted that the summary of withholding payments is then itemised. Item 15 refers to a withholding payment described as "A payment for a supply where the recipient of the payment does not quote its ABN" and section 12-190 applies. Section 12-190 provides as follows:
"(1) An entity (the payer) must withhold an amount from a payment it makes to another entity if:
- (a)The payment is for a * supply that the other entity has made, or proposes to make, to the payer in the course or furtherance of an * enterprise * carried on in Australia by the other entity; and
- (b)None of the exceptions in this section applies.
ABN correctly quoted
- (2)The payer need not withhold an amount under this section if, when the payment is made:
- (a)the other entity has given the payer an * invoice that relates to the * supply and * quotes the other entity's * ABN; or
- (b)the payer has some other document relating to the supply on which the other entity's ABN is * quoted.
(2A) The payer need not withhold an amount under this section if the other entity has made the * supply, or proposes to make the supply, through an agent and, when the payment is made:
- (a)the agent has given the payer an * invoice that relates to the supply and * quotes the agent's * ABN; or
- (b)the payer has some other document relating to the supply on which the agent's ABN is * quoted.
Payer has no reason to believe that ABN has been incorrectly quoted
- (3)The payer need not withhold an amount under this section if, when the payment is made:
- (a)the other entity has given the payer an * invoice that relates to the * supply and purports to * quote the other entity's * ABN, or the payer has some other document that relates to the supply and purports to * quote the other entity's ABN; and
- (b)the other entity does not have an ABN, or the invoice or other document does not in fact quote the other entity's ABN; and
- (c)the payer has no reasonable grounds to believe that the other entity does not have an ABN, or that the invoice or other document does not quote the other entity's ABN;
(3A) The payer need not withhold an amount under this section if the other entity has made the * supply, or proposes to make the supply, through an agent and, when the payment is made:
- (a)the agent has given the payer an * invoice that relates to the supply and purports to * quote the agent's * ABN, or the payer has some other document that relates to the supply and purports to * quote the agent's ABN; and
- (b)the agent does not have an ABN, or the invoice or other document does not in fact quote the agent's ABN; and
- (c)the payer has no reasonable grounds to believe that the agent does not have an ABN. Or that the invoice or other document does not quote the agent's ABN.
- (4)The payer need not withhold an amount under this section if:
- (a)the payment is made otherwise than in the course or furtherance of an * enterprise * carried on in Australia by the payer; or
- (b)the payment (disregarding so much of it as relates to * GST payable on the * supply) or, if the payer has also made, or proposes to make, one or more other payments to the other entity for the supply, the total of all the payments (disregarding so much of them as relations to * GST payable on the supply) does not exceed $50 or such higher amount as is specified in regulations in force for the purposes of subsection 29-80(1) of the *GST Act; or
- (c)the supply is made in the course or furtherance of an activity, or series of activities, done as a member of a local governing body established by or under a *State law or * Territory law; or
- (d)the supply is wholly * input taxed.
- (5)The payer need not withhold an amount under this section if the payment:
- (a)is covered by section 12-140 or 12-145 (about not quoting * tax file number in respect of an investment in respect of which the payment is made); or
- (b)would be covered by section 12-140 or 12-145 if the other entity had not quoted as mentioned in subsection 12-140(1) or section 12-155; or
- (c)would be covered by section 12-140 or 12-145 apart from section 12-160, 12-165 or 12-170 (which are exceptions to sections 12-140 and 12-145); or
- (d)is covered by section 12-175 or 12-180 (Payment of income of closely held trust where TFN not quoted); or
- (e)would be covered by section 12-175 or 12-180 if the other entity had not quoted as mentioned in paragraph 12-176(2)(a) or 12-180(2)(a); or
- (f)would be covered by section 12-175 or 12-180 apart from section 12-185 (which is an exception to sections 12-175 and 12-180).
- (6)The payer need not withhold an amount under this section if, when the payment is made:
- (a)the other entity is an individual and has given the payer a written statement to the effect that:
- (i)the * supply is made in the course or furtherance of an activity, or series of activities, done as a private recreational pursuit or hobby; or
.
- (ii)the supply is, for the other entity, wholly of a private or domestic nature; and
- (b)the payer has no reasonable grounds to believe that the statement is false or misleading in a material particular.
- (7)In working out, for the purposes of this section, whether an enterprise is * carried on in Australia, ignore any part of Australia that is not in the indirect tax zone (within the meaning of the * GST Act).
Note: The effect of this subsection is to treat an enterprise as carried on in Australia only where it would be treated as carried on in the indirect tax zone under the A New Tax System (Australian Business Number) Act 1999."
[83] The Regulator submits that if I were to find that Mr Wang was obliged to provide an ABN, the evidence is that no ABN was ever provided. The Regulator submits that the only reference to an ABN is the reference to "The Lee Family Trust" and there is no suggestion in Mr Zhong's case that he entered into any agreement with that entity for the provision of the work. In those circumstances, the Regulator submits that Mr Zhong was required to deduct tax. I was not addressed by the Appellant in respect of withholding payments. I find that Mr Zhong was required to deduct income tax from Mr Wang's remuneration both in the second arrangement at the Ewing Road site and at the Runaway Bay site. Mr Zhong should have deducted taxation instalments from Mr Wang's remuneration and his failure to do so is not an indicia of a sub-contractor relationship between him and Mr Wang.
[84] The Regulator submits that the evidence supports a finding that Mr Wang was a worker, who was paid most probably at an hourly rate.
Consideration
[85] The evidence clearly supports a finding that Mr Wang was an employee of Mr Zhong on 25 July 2015 when he was injured in a fall at the Runaway Bay site. I find that Mr Wang at no stage supplied Mr Zhong with an ABN and nor do I find that Mr Wang was obliged to provide an ABN. He commenced employment with Everbright as an employee. Mr Hur agreed that he was an employee of Everbright. Everbright were obliged to deduct income tax from his salary. It is evident that Everbright sought to construct these townhouses whilst paying painting employees without deducting the appropriate amount of income taxation. This obviously enabled Everbright to construct these townhouses at a commercial advantage to those construction companies operating within the law.
[86] No documentary evidence was supplied by Mr Zhong which would have established the relationship between him and Mr Wang. If there was a sub-contracting relationship then Mr Zhong should have had documentation to support that relationship. There is no evidence that Mr Wang held an ABN. There is no evidence that Mr Wang supplied Mr Zhong with an invoice for the work performed during the second arrangement or at the Runaway Bay site. He was simply paid in cash. Nothing in this arrangement points to a contractor relationship between Mr Zhong and Mr Wang.
[87] The evidence is that Mr Wang personally performed the painting work of the ceilings. I gather from the evidence that Mr Wang was the only licensed painter and Mr Zhong relied upon Mr Wang's licence in sub-contracting to Everbright in the second arrangement. There was no suggestion that Mr Wang had the ability to engage others to perform the painting of ceilings either during the second arrangement or at the Runaway Bay site. Once again this is indicative of an employment relationship.
[88] The only tools supplied by Mr Wang at both the Ewing Road site and the Runaway Bay site were his paint brushes. The paint was provided either by Everbright or Mr Zhong although Mr Zhong indicated that the owner of the Runaway Bay site supplied the paint for that house. No corroboration of Mr Zhong's oral evidence in this regard was adduced. The tools required by Mr Wang to perform his work, other than his paint brushes, were supplied by either Everbright, during the first arrangement, and by Mr Zhong during the second arrangement at the Ewing Road site and at the Runaway Bay site. This indicia does not support any sub-contractor relationship between Mr Zhong and Mr Wang.
[89] Whilst Mr Wang did not receive direction from Mr Zhong on how to paint the ceilings he did have lawful control to command Mr Wang as to which townhouse at the Ewing Road site to paint and in which order. As for the Runaway Bay site it involved the painting of a ceiling. Mr Zhong had also employed Mr Chew to undertake painting work at this site. Mr Zhong obviously controlled the day on which Mr Wang performed the ceiling painting at the Runaway Bay site as Mr Chew was required to deliver the ladder to Mr Wang on that day to enable him to undertake his work. There is no evidence whatsoever of Mr Wang contracting with the owner of the Runaway Bay house. He was simply employed to paint the ceiling.
[90] There was no evidence of Mr Wang employing others to perform any painting work at either the Ewing Road site or the Runaway Bay site. Mr Chew was clear that there were only three persons performing work at the Runaway Bay site i.e. he, Mr Wang and Mr Zhong. Mr Wang personally undertook the ceiling painting work. There was no evidence of Mr Wang performing work for any other entity during the period from when he commenced employment with Everbright up to and including 25 July 2015.
[91] There was no evidence of Mr Zhong making payment to Mr Wang of any monies in respect of GST and there was no evidence to suggest that Mr Wang was responsible for the remittance of such payments to the Australian Tax Office for monies received. This was in circumstances where Mr Zhong, during the second arrangement at the Ewing Road site, had been paid an amount of money for the painting of each townhouse which was inclusive of GST. In those circumstances Mr Zhong would have been responsible for the remittance of those monies to the Australian Tax Office.
[92] There was again no evidence that Mr Wang was required to undertake rectification work other than Mr Zhong's statement to that effect.
[93] The evidence of the conversation between Mr Zhong, Mrs Wang and Mr Wang's wife at the Queen Elizabeth II Hospital on 25 July 2015 indicates that both Mr Zhong and his wife were concerned that Mr Wang would be seen to be an employee of Mr Zhong. Clearly Mr Zhong's wife found it necessary to lie to Mr Wang's wife about whose house Mr Wang was painting on the day he was injured. It seems that the lie was an attempt to avoid the implication that Mr Zhong and Mr Wang were in an employment relationship. It is apparent that, even within hours of Mr Wang being injured, Mr Zhong's wife was aware of the potential consequences should Mr Wang be seen as an employee of Mr Zhong.
[94] The need, in circumstances where Mr Wang was gravely ill, to advocate such a lie is an indication that Mrs Wang knew of the potential harmful effects for Mr Zhong should he be seen as Mr Wang's employer. Mr Zhong, in not advising Mr Wang's wife of the truth on that evening, must also have been aware of the potential consequences for he and his business should Mr Wang be seen as an employee of Mr Zhong.
[95] The only potential indicia of any sub-contractual relationship between Mr Zhong and Mr Wang was the fact that Mr Wang agreed to a set figure for the painting of the ceiling of the Runaway Bay house. The indicia referred to above pointing to an employment relationship is however far more persuasive i.e. Mr Wang provided no invoice on behalf of himself or any corporate entity of his, he personally performed all the ceiling painting work, he did not engage others to perform any of the painting work, he did not perform work for others whilst employed by Everbright and/or Mr Zhong, there was no evidence that he could have engaged others to perform the painting work, he had no ABN and, at no stage, did he provide Mr Zhong with an ABN. One can image that Mr Zhong had the receipt (Exhibit 3) because Mr Wang, or some other person, had sought reimbursement of expenses incurred on behalf of Mr Zhong at Bunnings.
[96] Mr Zhong agreed that he was, at the relevant time, providing painting and decorating services as a business. Mr Zhong was aware of the Work Order documentation that Mr Hur had required him to sign prior to his commencing as a sub-contractor to Everbright in the second arrangement. Mr Zhong was unable to provide any such documentation between him and Mr Wang although he says he entered into a sub‑contractor arrangement with Mr Wang when the second arrangement commenced. I find that Mr Zhong knew that if he entered into a sub-contracting arrangement with Mr Wang he would at least have needed Mr Wang to sign some documentation evidencing that relationship. He himself was required to do that with Everbright prior to the commencement of the second arrangement.
Finding
[97] I find that Mr Wang was employed by Mr Zhong both during the second arrangement at the Ewing Road site and during the Runaway Bay site works. The indicia supports the fact that Mr Wang was an employee and that he was employed pursuant to an oral contract of employment.
[98] The Appellant had the onus of proving that Mr Wang was a sub-contractor. I find that he has failed to discharge that onus. As an employee of Mr Zhong, Mr Wang met the description of "worker" in s 11 of the Act and therefore his dependent was entitled to compensation on his death. I confirm the decision of the Regulator dated 31 May 2016 that Mr Wang was a "worker" within the meaning of s 11 of the Act. I further find, in the absence of any dispute and any evidence to the contrary, that Mr Wang sustained a personal injury on 25 July 2015, that the personal injury arose out of, or in the course of, Mr Wang's employment with Mr Zhong and that Mr Wang's employment was a significant contributing factor to his injury.
Orders
[99] I therefore make the following orders:
- The appeal is dismissed.
- Mr Wang was a "worker" within the meaning of s 11 of the Act.
- Mr Wang's injury meets the definition of "injury" in s 32 of the Act in that it arose out of, or in the course of, his employment with Mr Zhong and his employment with Mr Zhong was a significant contributing factor to his injury.
- The decision of the Workers' Compensation Regulator dated 31 May 2016 is confirmed.
- The Appellant is to pay the Workers' Compensation Regulator's costs of and incidental to this appeal.
Footnotes
[1] Zuijs v Wirth Bros. Pty Ltd (1955) 93 CLR 561.
[2] Workers' Compensation Board of Queensland v Juran and Another (unreported, QSC, Mackenzie J, 11 February 1994)
[3] Hill v WorkCover Queensland [2005] QSC 257.
[4] Kevin Daly v Q-Comp [2009] QIC 32.
[5] Simon Blackwood (Workers' Compensation Regulator) v Blue Wren Holdings Pty Ltd [2014] ICQ 011.
[6] Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 182.