CJM Innotrack Pty Ltd v Workers' Compensation Regulator & Anor
[2020] QIRC 171
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- Unreported Judgment
- CJM Innotrack Pty Ltd v Workers' Compensation Regulator & Anor[2020] QIRC 171
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CJM Innotrack Pty Ltd v Workers' Compensation Regulator & Anor[2020] QIRC 171
CJM Innotrack Pty Ltd v Workers' Compensation Regulator & Anor[2020] QIRC 171
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | CJM Innotrack Pty Ltd v Workers' Compensation Regulator & Anor [2020] QIRC 171 |
PARTIES: | CJM Innotrack Pty Ltd (Appellant) v Workers' Compensation Regulator (First Respondent) and Follett, Jamie (Second Respondent) |
CASE NO: | WC/2018/112 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 25 September 2020 |
HEARD AT: | Brisbane |
HEARING DATES: | 27 November 2019 15 January 2020 |
MEMBER: | Hartigan IC |
ORDER: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – whether the appellant was a worker within s 11 of the Workers' Compensation and Rehabilitation Act 2003 |
LEGISLATION: | Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11 ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator [2019] QIRC 51 Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 182 Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385 Charters Tower Regional Council v Workers' Compensation Regulator [2019] QIRC 027 Church v Workers' Compensation Regulator [2015] ICQ 031 Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 Lopez v Deputy Commissioner of Taxation [2005] FCAFC 157; (2005) 143 FCR 574 Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 Re application by Donald Alexander Porter of an Inquiry in an Election in the Transport Workers' Union of Australia [1989] FCA 226 Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 Toowoomba Demolition and Earthmoving Pty Ltd ATF Castle Family Trust v Workers' Compensation Regulator [2020] QIRC 030 |
APPEARANCES: | Mr P Travers of counsel instructed by Chris Toogood Lawyers for the Appellant Mr S P Gray of counsel directly instructed by Ms R. Moroney for the First Respondent Mr D J Kelly of counsel instructed by Kerin Lawyers for the Second Respondent |
Reasons for Decision
Introduction
- [1]On 21 June 2018, the appellant, CJM Innotrack Pty Ltd ("CJM") filed a notice of appeal in relation to a decision made by the Workers' Compensation Regulator ("the Regulator"), which set aside a decision of WorkCover to reject Mr Jamie Follett's application for workers' compensation, and substituted a new decision that Mr Follett is a "worker" in accordance with s 11 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act").
- [2]On 25 January 2017, Mr Follett was performing carpentry work at a property located at Valencia Street, Sunnybank Hills ("Valencia Street"), when he fell off a ladder and injured himself. The site at Valencia Street was controlled by CJM. Mr Follett lodged an application for compensation with WorkCover on 1 March 2017, seeking compensation for a shoulder and wrist injury said to have occurred on 25 January 2017.
- [3]The application for compensation was rejected by WorkCover on 9 March 2017, on the basis that Mr Follett to be a was found not to be a "worker" within the meaning of s 11 of the Act.
- [4]On 27 March 2017, Mr Follett applied to the Regulator for a review of the WorkCover decision. On 21 June 2017, the Regulator set aside the decision of WorkCover and determined that Mr Follett was a "worker" within the meaning of s 11 of the Act. It is against the decision of the Regulator that CJM appeals to this Commission.
- [5]The issue to be determined in this appeal is whether, at 25 January 2017, Mr Follett was a "worker" within the meaning of s 11 of the Act.
- [6]
- [7]During the course of the hearing, the Commission heard from four witnesses. CJM called Mr Xiu (director of CJM), Ms Han (accountant of CJM) and Mr Boakes (construction supervisor of CJM). Mr Follett gave evidence on his own behalf.
- [8]Mr Xiu's and Ms Han's evidence is of limited relevance to the Commission with regard to determining whether Mr Follett was a worker within the meaning of the Act. Neither of these witnesses had direct knowledge regarding the formation of the contract or the way in which Mr Follett performed work at the Valencia Street site.
- [9]Credit issues have been raised with respect to Mr Xiu's evidence, including with respect to email communications he had with his insurer.[3] However, given that I have determined that his evidence is of limited relevance, I have not made a determination as to his credit.
Section 11 of the Act
- [10]Regard must be had to the meaning of "worker" for the purpose of s 11 of the Act.
- [11]Section 11 of the Act defines the meaning of "worker", as follows:
- (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]Accordingly, in order to determine if Mr Follett was a worker for the purpose of s 11(1) of the Act, consideration must be had to the following two issues:
- (a)did Mr Follett work under a contract for CJM?; and
- (b)in relation to the work, was Mr Follett an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth) ("TA Act"), Part 2-5?
- [13]The meaning of worker in s 11 of the Act was amended to its current form by Part 4 of the Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act 2013. The explanatory notes to the Industrial Relations (Transparency and Accountability of Industrial Organisations) and other Acts Amendment Bill 2013, provided an explanation for the amendment to the meaning of "worker" as follows: [4]
Definition of 'worker' in the Workers' Compensation and Rehabilitation Act 2003 Finally, the current definition of 'worker' in the WCR Act is considered to be unworkable; it creates uncertainty and adds to the regulatory burden on employers who have to interpret the definition i.e. who is a worker and who is a contractor. The Bill amends the definition of worker by aligning it with the tests used by the Australian Taxation Office (ATO) to determine whether a person is a worker for workers' compensation purposes.
…
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.[5]
- [14]
[16] Section 11 of the Act, as amended, has been considered by the Commission. The approach taken is that the intention of the Parliament, in enacting the new definition, was to reflect the manner in which the Australian Tax Office ('ATO') would determine if an individual was an employee for PAYG withholding assessment purposes, namely, whether the person was an employee at common law. Such an approach, having regard to the construction of the definition of 'worker' in s 11(1) is correct.
…
[20] Having regard to the Explanatory Note, the mischief to which the 2013 amendment to s 11 of the Act was directed was to persons who worked under a contract for services, but who were deemed to be workers where their circumstances met those referred to in sch 2, pt 1 of the previous version of the Act, including those reproduced immediately above. The mischief was remedied, in part,15 by providing that a worker was 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), sch 1, pt 2-5.[8]
- [15]I agree that this is the proper approach to be taken. Accordingly, in order to determine if s 11(1)(b) is satisfied, it is necessary to consider whether Mr Follett is an employee at common law.
Did Mr Follett work under a contract?
- [16]The issue as to whether Mr Follett worked under a contract was in dispute between the parties. CJM submitted that any agreement concerning the engagement of Mr Follett at Valencia Street was, on its correct construction, an agreement between CJM and Kooyoo Trust.
- [17]In support of this contention, CJM argues that an inference could be drawn from the conduct of the parties, including that the invoice issued by Mr Follett for the work performed in January 2017 at Valencia Street, was issued under Kooyoo Trust's ABN.
- [18]It was uncontentious that prior to the Valencia Street job, Mr Follett had performed work under the name of Kooyoo Carpentry operated by the Kooyoo Trust. On earlier occasions, CJM had engaged Mr Follett through Kooyoo Carpentry to perform work at other sites.
- [19]It was not CJM's position that Mr Follett made representations that he was contracting on behalf of an entity.[9]
- [20]In considering the factors relevant to the formation of the contract, it is necessary to have regard to the previous dealings between the parties.
- [21]Mr Follett and CJM had previous dealings with each other whereby Mr Follett was engaged by Kooyoo Carpentry and performed work on other CJM jobsites during 2016. It is not contested by Mr Follett that he was engaged by CJM as a contractor previously.
- [22]On those previous occasions, a process was followed whereby a purchase order was issued by CJM to Mr Follett, Mr Follett would perform the work and issue an invoice for the work that was conducted. The invoice issued by Mr Follett on those occasions,[10] referenced the purchase order and was for a lump sum amount for labour and/or labour and materials.
- [23]It was submitted by the Regulator and Mr Follett, that the arrangements on those previous occasions can be contrasted with the arrangements in place for the work he performed for CJM in January 2017. In January 2017, Mr Follett performed work without a purchase order being issued and produced an invoice which identified an hourly rate, of eight hours per day, for his labour only.
- [24]Mr Follett's evidence was that Mr Boakes, construction supervisor, telephoned him between early to mid January 2017 and offered him work, in the following terms:
Look mate, I'm under the pump. Can you give us a hand?[11]
- [25]Mr Follett agreed to perform the work with an agreed hourly rate of $40 per hour. The evidence was that the rate that was agreed upon was not as a contract price for the remaining part of the job but an hourly rate for Mr Follett to provide his labour to CJM.
- [26]It was submitted by the Regulator that there is no evidence produced that it was a term of the agreement that Mr Follett would be responsible to rectify any defects on the job, as one would ordinarily expect in a contractor arrangement.
- [27]Mr Boakes' evidence is generally consistent with the evidence of Mr Follett regarding the terms of the oral agreement. Namely, there was an agreement formed over the telephone that Mr Follett would perform the work for an hourly rate.[12]
- [28]An inspection of the invoice issued on 25 January 2017,[13] identifies that the hourly rate did not take into account, or make any allowance for, Mr Follett providing tools or other equipment. This was in contrast to the previous arrangements.
- [29]The conduct of Mr Follett in issuing an invoice for an hourly rate for labour only, is consistent with his evidence as to his understanding of the agreement.
- [30]CJM also relied on the invoice submitted on 25 January 2017 but on the basis that it was issued under the Kooyoo Trust's ABN. It was submitted that an inference could be drawn from the conduct of Mr Follett by issuing the invoice under the Kooyoo Trust's ABN, that it was his intention to contract on behalf of the Kooyoo Trust.
- [31]It was submitted on behalf of Mr Follett in response, that issuing the invoice under Kooyoo's ABN is "merely a sign of and confirmation of his lack of sophistication as a business person."[14] I accept this submission, particularly, in the context of extensive cross-examination of Mr Follett with regard to his financial and tax affairs.[15] I conclude from Mr Follett's evidence that he relied on his bookkeeper to advise in relation to his affairs to the extent that Mr Follett had limited direct knowledge of these matters.
- [32]I do, however, consider the 25 January 2017 invoice to be relevant, in so far as it supports Mr Follett's evidence that he and CJM formed an oral agreement that he perform work at Valencia Street and that he would be paid an hourly rate. This invoice differed from previous invoices issued before the formation of the agreement in January 2017, in so far as it did not invoice for materials or the use of tools, nor was it issued after the rendering of a purchase order.
- [33]Having regard to the evidence as to formation of the contract, I have formed the view that Mr Follett worked under a contract between himself and CJM.
In relation to the work, was Mr Follett an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth), Part 2-5?
Was Mr Follett an employee at common law?
- [34]Whether a worker is an employee or an independent contractor turns on the consideration as to whether the worker is serving another, in that other's business, or could be said to be conducting a business of his or her own. The question is to be answered by considering the totality of the relationship.[16]
- [35]There is not one single test to be applied in determining whether a relationship is one of employee or independent contractor. Rather, instead, a multi-factorial approach is taken. Perram J summarised the position in ACE Insurance Ltd v Trifunovski [2011] FCA 1204 at [29], as follows:
[29] With that in mind one can at least say this: first, the distinction between an employee and an independent contractor is "rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own" (Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 39 [40] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ citing Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217 per Windeyer J); secondly, the answers to that question are to be determined by reference to the 'totality' of the relationship (Hollis at 33 [24]); thirdly, a number of indicia have accreted over time in the authorities which are thought to throw light to varying degrees on the outcome without being determinative: the terms of the contract; the intention of the parties; whether tax is deducted; whether sub-contracting is permitted; whether uniforms are worn; whether tools are supplied; whether holidays permitted; the extent of control of, or the right to control, the putative employee whether actual or de jure; whether wages are paid or instead whether there exists a commission structure; what is disclosed in the tax returns; whether one party 'represents' the other; for the benefit of whom does the goodwill in the business inure; how "business-like" is the alleged business of the putative employee — are there systems, manuals and invoices; and so on — the list is neither exhaustive nor short: see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24 per Mason J and 36–37 per Wilson and Dawson JJ; for application see Hollis at 42–45 [48]–[57] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; Sweeney at 172–173 [30]–[33] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. It will be necessary to refer to some of these factors later in these reasons and the authorities upon which they rest.
- [36]The manner in which the parties describe the relationship is relevant but not conclusive. The parties for instance cannot deem the relationship to be something that it is not.[17] However, when the competing indicia are reasonably, evenly balanced, the parties' understanding of their own relationship may be decisive.[18]
- [37]The assessment of the indicia is not to be undertaken in a mechanical fashion, that is, by checking off a list of matters which decided cases have tended towards the characterisation of a person as an employee or independent contractor.[19] Instead, having examined the totality of the relationship and all the various indicia, the court should come to a conclusion by standing back and examining the overall effect of the facts as found.[20]
- [38]I will consider whether Mr Follett is a worker within the meaning of the Act by reference to the indicia identified by CJM as being relevant to the matter.
Degree of control
- [39]CJM contended that the degree of control over the performance of Mr Follett's work, supports a conclusion that he was a contractor. It was submitted that Mr Boakes' evidence was that Mr Follett controlled the way in which he performed the agreed scope of works, and that any direction Mr Boakes gave was to do the agreed works but not how to do the agreed works.
- [40]The Regulator contended that whilst there was dispute in the evidence as to how much time Mr Boakes spent at the project, that is largely irrelevant. The Regulator contended that Mr Follett's evidence is that he and Mr Boakes performed the work together. In any event, it was submitted that the fact that Mr Boakes may not have had to give much direction to Mr Follett as to his carpentry work is irrelevant. It was submitted that Mr Follett was a qualified carpenter, able to rely on his own special skill or knowledge without constant supervision or direction by Mr Boakes.
- [41]Mr Follett contended that Mr Boakes exercised control over the performance of the work performed by him. Relevantly, it was submitted that Mr Boakes confirmed in his evidence that he did instruct Mr Follett as to what work he wanted Mr Follett to do and showed him where the gear was[21] and where the tools were.[22] Further, it was submitted that Mr Boakes accepted that he provided further instruction for the work to be done by Mr Follett on subsequent days at the beginning of each work day.[23]
- [42]In relation to the degree of control exercised over Mr Follett's work, I prefer the evidence of Mr Follett.
- [43]Mr Follett's evidence was that Mr Boakes was with him on site for 90% of the time for the five days he performed the work, including the day he had his accident.[24] When it was put to Mr Follett that he performed the majority of the work under his own direction, he responded "if you know anything about framing, it's a two man job".[25]
- [44]Despite Mr Boakes' evidence that he spent limited time at the site, his assistance of Mr Follett seems to have been accepted by Mr Boakes under cross-examination. It was put to Mr Boakes that he and Mr Follett worked together to the put the formwork in place Mr Boakes accepted this and said, in words to the following effect, "I had to assist him every now and again to get – because one man just can't do some of those things."[26]
- [45]Mr Boakes' evidence with regard to the scope of work, which I accept, was that Mr Follett was engaged to complete the framing that was remaining, put the roof on and do the cladding. Mr Boakes' evidence,[27] was that he met Mr Follet on site, described what needed to be done, walked him into the property, introduced him to the customer and left him there to do his job. However, this is inconsistent with other aspects of his evidence, for instance, when he was describing what was occurring moments before the accident.
- [46]Relevantly, Mr Boakes' evidence was that time of the accident, he was working together with Mr Follett,[28] his evidence was that "[h]e [Mr Follett] was assisting with putting on the roofing sheets. I was above the roof, he was below the roof, he was standing on a ladder."
- [47]I consider it consistent with the evidence of both Mr Follett and Mr Boakes, that Mr Boakes directed Mr Follett to perform certain tasks at the beginning of each day in relation to the Valencia Street site. Having regard to the evidence of Mr Follett, I have also concluded that he worked together with Mr Boakes on the performance of the scope of works on the Valencia Street site and that Mr Boakes exercised control over the work when this was occurring.
- [48]For these reasons, I have concluded that CJM, through Mr Boakes, exercised a degree of control over the work performed by Mr Follett.
Mode of renumeration and provision of equipment or resources
- [49]In terms of the mode of renumeration, it was submitted by CJM that whilst the parties agreed on an hourly rate, that does not in itself prevent a conclusion of a contract for service, as the evidence of Mr Boakes was that the agreement of an hourly rate arose as it was difficult to anticipate a fixed price for the agreed works.[29]
- [50]It was further contended by CJM that the provision and maintenance of equipment or resources supported that Mr Follett was a contractor. CJM submitted that it provided the material and Mr Follett was required to provide his own tools.
- [51]This is disputed by the respondents. Relevantly, it was submitted by Mr Follett that Mr Boakes confirmed that CJM provided the materials to Mr Follett for the work at Valencia Street.[30]
- [52]The Regulator submitted that Mr Follett did not provide significant tools or equipment. It was submitted that Mr Boakes' evidence was that Mr Follett was required to provide his own tools but CJM provided the materials[31] can be rejected because Mr Boakes admitted in cross-examination that Mr Follett's compressor had broken down and he no longer had the tools required to do the job.[32] Further, it was submitted that Mr Boakes also admitted that when Mr Follett attended at the site, he showed him where all the gear was and where all the tools were.[33]
- [53]Finally, it was submitted that Mr Follett's evidence is that he was not required to provide his own tools on the job and they were provided by Mr Boakes.[34]
- [54]The evidence of the invoice dated 25 January 2017,[35] supports the conclusion that Mr Follett was engaged on an hourly rate for the performance of his labour. Accordingly, in respect of the Valencia Street site, Mr Follett was renumerated by reference to an hourly rate for the performance of his labour rather than in relation to the completion of a task.
- [55]With respect to the provision of equipment or resources, it is not in dispute that CJM provided the relevant materials for the completion of the work.
- [56]What is in dispute, however, is whether Mr Follett used his own equipment in the performance of the tasks. It was accepted by Mr Follett,[36] that he did drive his vehicle with his tool trailer attached to it, to the Valencia Street site. However, his evidence is that,[37] he used his nail belt only and did not require the use of his tools that were located in his tool trailer.
- [57]Under cross-examination, Mr Boakes accepted that he showed Mr Follett where all the gear and tools were.[38] Mr Boakes also gave evidence that he provided Mr Follett with a battery-operated nail gun and a battery charger, as Mr Follett's tools were not working.[39] For these reasons, I am satisfied that Mr Follett did not provide significant tools or equipment for the performance of the work at Valencia Street.
Delegation of work by contractor or exclusivity of performance
- [58]CJM further contended that there was no obligation for Mr Follett to perform the work. In this regard, it was submitted that Mr Follett was under no obligation to work for CJM and on his own evidence, determined the days and hours that he performed. It was further contended that there was no restriction on Mr Follett delegating part or all of the work or seeking assistance in the work he performed.[40] Further, it was submitted there was no exclusivity of performance by Mr Follett for CJM.
- [59]The Regulator contends that Mr Follett was not able to delegate or subcontract out the work. It was submitted that Mr Follett only had a genuine and practical entitlement to work for CJM, as he was expected to be on the site as directed by Mr Boakes and there was an urgency for this work to be completed. The Regulator contends that the evidence does not allow a finding that Mr Follett was able to subcontract the work to anyone else.
- [60]I accept the Regulator's submission that the evidence does not allow a finding that Mr Follett was able to subcontract the work to anyone else, on the basis that Mr Follett's and Mr Boakes' evidence in relation to the terms of the oral agreement between them was silent to this. However, I also note that under cross-examination, Mr Boakes accepted the proposition that because of the urgency of the work that needed to be done, he required Mr Follett to work full days at the site for CJM and "not duck off" to perform other works.[41]
- [61]On the basis of this evidence, I have concluded that there was limited, if any, capacity for Mr Follett to delegate the work that he performed given the urgency of the work to be completed. This is consistent with Mr Follett charging eight hours per day for his labour and Mr Boakes' evidence that he must stay at the site to complete the work.
Determining hours of work
- [62]CJM contended that Mr Follett determined the hours he worked, which supports a conclusion that he was a contractor. Mr Follett's evidence was that he was required to perform eight hours of work per day. It was submitted that this indicates that there was little ability for Mr Follett to determine his hours of work and there was agreement in place that he was to perform eight hours per day.
- [63]The evidence of the invoice dated 25 January 2017,[42] supports a conclusion that the terms of the agreement were that Mr Follett work an eight-hour day and charge $40 per hour for such work. The evidence is not that Mr Follett unilaterally advised Mr Boakes that he would commence work at 8:00am at the site, but rather, it appears that during discussion in relation to the formation of the contract, it was agreed that they would meet on site at 8:00am on the relevant day.[43]
- [64]I consider that the evidence is that the parties agreed to a start time of 8:00am each day and there was a requirement for Mr Follett to complete a full day of work at the site because of the urgency of the work to be performed.
Holidays, income tax, superannuation and workers' compensation
- [65]CJM also contended that as there was no provision for holidays, no deduction of income tax, no provision for superannuation and workers' compensation a conclusion that Mr Follett was a contractor can be drawn.
- [66]I accept the evidence that there was no provision for holidays, no deduction of income tax and no provision for superannuation and workers' compensation.
- [67]I do not, however, accept CJM's submission that such matters are necessarily determinative as to whether a person is an independent contractor rather than a worker.
- [68]Mr Follett had only performed several days of work at the time of the accident and there was no evidence that there had been any discussion of taking holidays. Due to the absence of evidence with respect to this, I am unable to make a finding in this regard.
- [69]It appears to be apparent that no deduction was made for income tax from the payments made to Mr Follett and that there was no provision for superannuation or workers' compensation.
- [70]The failure to deduct income tax from the payments made, does not necessarily support a finding that Mr Follett was an independent contractor.[44] To place too much reliance on the failure to deduct income tax from payments assumes that the payer has acted in accordance with the requirements of income tax legislation.[45] It is my view, that the same could be said in relation to placing too much reliance upon whether there has been provision for superannuation or workers' compensation.
Totality of the evidence
- [71]In my view, Mr Follett, at the date he was injured when working at Valencia Street, was an employee of CJM for the following reasons:
- (a)Mr Boakes, as the site supervisor employed by CJM, exercised control and direction over the work performed by Mr Follet, which I have concluded is indicative of Mr Follett being an employee of CJM;
- (b)Mr Follett was renumerated by payment at an hourly rate for this labour, as opposed to a fixed price contract for the work performed, which I have concluded is indicative that Mr Follett was an employee of CJM;
- (c)CJM provided all of the material to be used at the site and most of the tools used by Mr Follett, which I have concluded is indicative of Mr Follett being an employee of CJM;
- (d)Mr Follett was not able to delegate the work and was required to exclusively work for CJM to perform the work at the Valencia Street site, which I have concluded is indicative of him being an employee of CJM;
- (e)the hours of work performed by Mr Follett were agreed to between the parties in that Mr Follet and Mr Boakes agreed to a start time of 8:00am and it was expected Mr Follett would work a full day in order to complete the work required, which I have concluded is indicative of him being an employee of CJM;
- (f)CJM did not provide holidays to Mr Follett as he had only worked for several days at the time of the accident and there was an absence of evidence as to any agreement between the parties, accordingly, I make no finding with respect to this fact; and
- (g)CJM did not deduct income tax or provide for superannuation or workers' compensation, and these factors may support a finding Mr Follett was a contractor.
Conclusion
- [72]In this appeal, the onus was on CJM to prove on the balance of probabilities, that Mr Follett was not a worker within the meaning of s 11 of the Act.
- [73]For the reasons given above and in consideration of the totality of the evidence, I have concluded that Mr Follett was a worker within the meaning of s 11(1) of the Act.
- [74]I dismiss the appeal. The decision of the Regulator dated 21 June 2017 is affirmed and CJM is to pay the Regulator's and Mr Follett'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] Charters Tower Regional Council v Workers' Compensation Regulator [2019] QIRC 027, [61] and [62]; Aldi Stores (A Limited Partnership) v Workers' Compensation Regulator [2019] QIRC 51.
[2] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [27].
[3] Exhibit 4.
[4] Explanatory Notes, Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Bill 2013 (Qld), 3.
[5] Ibid, 16.
[6] [2020] QIRC 030.
[7] Ibid, [16] and [20].
[8] Footnotes omitted.
[9] CJM had amended its statement of facts and contentions to remove any contention that Mr Follett represented that he was contracting behalf of the Kooyoo Trust.
[10] Exhibit 1.
[11] T2-4; ll 6-7.
[12] T1-70, ll 26-46.
[13] Exhibit 2.
[14] Second Respondent's Submissions filed 14 February 2020, [16].
[15] T2-11, L23 to T2-18, L3.
[16] Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, [40] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ citing Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210, 217 (Windeyer J)).
[17] Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, [58] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ); ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146, [11] (Lander J) and [28] (Buchanan J).
[18] Australian Mutual Provident Society v Chaplin [1978] UKPC 7; (1978) 18 ALR 385, 389.
[19] Lopez v Deputy Commissioner of Taxation [2005] FCAFC 157; (2005) 143 FCR 574, [82].
[20] Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448, [35].
[21] T1-105, L46.
[22] T1-106, L1.
[23] T1-106, ll 40-47.
[24] T2-24, ll 13-15.
[25] T2-33, ll 29-31.
[26] T1-108, ll 26-27.
[27] T1-75, ll 43-45.
[28] T1-79, ll 21-23.
[29] T1-70, ll 31-35.
[30] T1-76, L11.
[31] T1-76, ll 5-10.
[32] T1-107, ll 10-15.
[33] T1-105, L45; T1-106, L1.
[34] T2-23; ll 40-45.
[35] Exhibit 2.
[36] T2-23, ll 1-2; T2-23 ll 19-23.
[37] T2-23, ll 29-31.
[38] T1-105, L46; T1-106, L1.
[39] Under cross-examination, Mr Boakes noted that the nail gun provided was his personal gun rather than CJM's. However, it is noted that Mr Boakes was an employee of CJM and that he clearly used the gun in the performance of his work for CJM, see T1-108; ll 5-9.
[40] T1-108, ll 45-46.
[41] T1-108, ll 13-17.
[42] Exhibit 2.
[43] T1-75, ll 22-32 and T1-106, ll 14-15. See also T2-4, ll 20-23.
[44] Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 182.
[45] Re application by Donald Alexander Porter of an Inquiry in an Election in the Transport Workers' Union of Australia [1989] FCA 226.