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WIRO Bulletin Issue 23 | Page 1
ISSUE NUMBER 23
Bulletin of the Workers Compensation Independent Review Office (WIRO)
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CASE REVIEWS
Recent Cases
These case reviews are not intended to substitute for the headnotes or ratios of the cases. You are strongly encouraged to read the full decisions. Some decisions are linked to AustLii, where available.
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Workers Compensation Commission - Presidential Decisions
Motor vehicle accident – injury due to serious and wilful misconduct - s 10 (1A)
WCA does not disentitle a worker where the injury arose out of employment under s 4 (a) WCA
Ballina Shire Council v Knapp [2018] NSWWCCPD 35 – Deputy President Wood – 27
August 2018
Background
The appellant employed the worker as a plant operator. He usually worked from Monday
to Friday and travelled to his workplace at Alstonville from his place of residence at Evans
Head, but on 5 July 2014, he was scheduled to work overtime as a traffic controller with a
different crew in Ballina. He left his place of residence at about 6am to travel either to the
Works Depot or directly to the worksite, but he was involved in a head-on collision on-route.
Police determined that the worker was ‘at-fault’ and charged him with dangerous driving
causing death. The worker has no memory of the accident. However, Police opined that
the accident occurred because while the worker was driving, and just before the accident
occurred, he was using his mobile telephone and lost control of his car. The worker pleaded
guilty and was sentenced in the District Court of NSW. He then claimed weekly payments
and medical treatment expenses for his injuries on the basis that he was injured while on
a journey to which s 10 (1) WCA applied.
The Insurer disputed the claim and raised 5 issues: (1) Whether the worker suffered injury
arising out of or in the course of his employment (s 4 (a) WCA); (2) Whether the injuries
occurred on a periodic journey (s 10 (1) WCA) for which there was a real and substantial
connection between the employment and the accident (s 10 (3A) WCA); (3) Whether the
worker was guilty of gross misconduct, taking him outside the scope of his employment;
WIRO Bulletin Issue 23 | Page 2
(4) Whether the injury was attributable to serious or wilful misconduct (s 10 (1A) WCA);
and (5) Whether weekly payments and treatment expenses were payable.
Decision at first instance
Arbitrator Bell found for the worker and ordered the insurer to pay his s 60 expenses. He
granted leave to the parties to apply if any issue regarding weekly payments could not be
resolved. The reasons for decision are summarised as follows:
Real and substantial connection – s 10 (3A) WCA
The Arbitrator found that when the accident occurred the worker was using a mobile
telephone that was issued to him by the appellant to contact his work supervisor. He found
that the worker had his gear with him and there was no need to go to the Depot and that
the only explanation for the call to his supervisor was to tell him that he was running late
or that he would go straight to the work site. The logical inference was that the calls “were
about work”. It is not necessary to establish a direct causal connection to the employment
(see: Namoi Cotton Co-Operative Ltd v Easterman [2015] NSWWCCPD 29; Dewan Singh
and Kim Singh t/as Krambach Service Station v Wickenden 2014] NSWWCCPD 13; and
Field v Department of Education and Communities [2014] NSWWCCPD 16. He found that
the the ‘relatively broad’ test of ‘real and substantial connection’ in Field was satisfied.
Serious and wilful misconduct – s 10 (1A) WCA
The insurer did not seek to rely upon s 14 (2) WCA, but it relied upon the following factors
to establish serious and wilful misconduct under s 10 (1A) WCA: (1) using a mobile
telephone while driving; (2) speeding; and (3) the presence of alcohol in his bloodstream.
However, the presence of alcohol was raised in a dispute notice and the insurer required
leave to rely upon it. The worker opposed the granting of leave.
The Arbitrator discussed s 289A (4) WIMA, which allows a new issue to be referred if it is
in the interests of justice to do so, but he decided that he did not need to consider whether
this was a new issue, as it was not an element that carried any weight as the Police and
the District Court formed the view that alcohol was not a causative factor. There was also
no evidence that the worker knew that he had alcohol in his system from the previous night
and the authorities require knowledge of the risk of injury.
The Arbitrator referred to the decision of Roche DP in Karim v Poche Engineering Services
Pty Ltd [2013] NSWWCCPD 24 (“Karim”) as authority that: (1) the onus on proving serious
and wilful misconduct rests on the respondent; (2) ‘serious and wilful misconduct’ is more
than carelessness, negligence or disregard for others; (3) where the risk of loss or injury is
remote, or if probable, trivial, it will not ordinarily be serious misconduct, and (4) the gravity
of the conduct is not to be judged by its consequences. He also quoted from the decision
of O’Meally CCJ in Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; 18
NSWCCR 109 (Sawle) at [24], as follows:
Serious and willful misconduct is conduct beyond negligence, even beyond culpable
or gross negligence. In order to establish serious and willful misconduct, it must be
demonstrated that the person performing an act or suffering an omission knows it
will cause risk of injury, or acts in disregard of consideration whether it will cause
injury. The word ‘willful’ connotes that the applicant must have acted deliberately. As
it seems to me, in order to establish serious and willful misconduct, a person accused
of it must be shown to have knowledge of the risk of injury and, in the light of that
knowledge, proceeded without regard to the risk.
The insurer argued that the District Court found that the worker’s actions were deliberate,
but the Arbitrator found, based upon Sawle and Karim, that “deliberate” refers to an act by
a person aware of the risk of injury but who proceeds regardless of the risk. He found that
WIRO Bulletin Issue 23 | Page 3
the worker’s actions in exceeding the speed limit by 11 kph and using a mobile telephone
while driving “did not reach the standard of serious and wilful misconduct and that the
conduct must be beyond culpable or gross negligence”.
Based upon the decisions in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21;173 CLR
473 (Hatzimanolis) and Vinidex Pty Ltd v Campbell 2012] NSWWCCPD 6 (Campbell), he
held that the worker’s conduct was not sufficient to take him outside his employment
because: (1) it was necessary for him to travel to the depot or worksite; (2) the telephone
that he used was issued by the employer; and (3) contact with the supervisor was for work
purposes.
Appeal
The Insurer appealed on 6 grounds and argued that the Arbitrator erred: (1) By failing to
take account, or adequate account, of the totality of the worker’s conduct that resulted in
the accident; (2) By failing to allow it to raise alcohol consumption as an issue; (3) By
misunderstanding the relevance of consumption of alcohol; (4) In the application of the
relevant authorities to the facts in this case; (5) In finding the injury was not attributable to
gross misconduct and in relying on the same grounds advanced in respect of serious and
wilful misconduct to find that the injury was a personal injury within the meaning of s 4 (a)
WCA; and (6) in finding that the worker was entitled to an award under s 60 WCA.
DP Wood determined the appeal ‘on the papers’. She stated that given the serious nature
of the worker’s injuries, it was appropriate that the insurer did not rely upon s 14 (2) WCA.
Submissions
Ground 1
The insurer argued that the Arbitrator failed to consider the totality of the worker’s conduct
in (a) manually using a mobile phone, holding the phone in one hand and using the other
to periodically dial the number; (b) taking his eyes off the road to do so; (c) driving on a
narrow highway and in damp conditions and over the speed limit while steering with one
hand; and (d) possible impairment of driving due to the ingestion of alcohol the previous
evening. The totality constitutes serious and wilful misconduct.
Ground 2
The insurer argued that it is not necessary to recite every allegation of fact relied upon in
support of its reasons for disputing liability and s 74 WIMA should be read in a less
restrictive way: see: Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 (Wilkinson),
[214] and [219] regarding the construction of s 318 WIMA. The Arbitrator erred by finding
that issues of serious and wilful misconduct and gross misconduct ‘were not squarely
raised’ by the s 74 notice and he should have allowed the evidence of alcohol consumption.
Ground 3
The insurer argued that alcohol consumption was relevant. The Arbitrator erred by relying
upon the District Court’s finding that it was not a relevant factor, as alcohol consumption
was not recorded in the Agreed Facts that were tendered during the sentencing hearing,
although the Police had evidence of blood alcohol concentration.
Ground 4
The insurer argued that the established case law regarding journey claims and serious and
wilful misconduct no longer reflect public standards and it relied upon the comments by
Geraghty J in Schinnerl v Commissioner of Police (1995) 11 NSWCCR 278:
Different ages and cultures approve different standards of conduct, condemn
different acts of misconduct. What was once judged foul language is now chic, even
WIRO Bulletin Issue 23 | Page 4
compulsory on the ABC. What Oscar Wilde was imprisoned for is now protected by
legislation. ‘Gross misconduct’ is a movable feast, though some acts remain grossly
inappropriate - selling illegal drugs, accepting bribes, assaulting a member of the
public, for example.
It also referred to the remarks made by Wells J during the sentencing hearing and argued
that the worker must have been aware of the risk of injury and that he acted deliberately
and without regard to it.
Ground 5
The insurer argued that gross misconduct is sufficient to take a worker outside the course
of his employment: see Hatzimanolis. The conduct was independent of the employer and
there is no evidence that the employer directed or encouraged him to speed; to drink
alcohol in the hours before attending work; or to use a mobile telephone without pulling
over; or to leave insufficient time to arrive at work by the start time.
Ground 6
The insurer argued that if the appeal succeeded on grounds of either serious and wilful
misconduct or gross misconduct, there should be an award for the respondent.
Consideration
Wood DP observed that grounds 1, 3 4, 5 and 6 are dependent upon the outcome of ground
2 - whether the insurer could raise the alcohol issue.
In Mateus at [46], Roche DP set out the factors relevant to the exercise of the discretion
under s 289A (4) WIMA, as follows: (a) the degree of difficulty or complexity to which the
unnotified issues give rise; (b) when the insurer notified that it wished to contest any
unnotified issue/s; (c) the degree to which the insurer has otherwise fulfilled its statutory
obligation to notify the worker of its decision disputing liability; (d) any prejudice that may
be occasioned to the worker, and (e) any other relevant matters arising from the particular
circumstances. He also stated that the following matters should be considered:
(a) a decision by an insurer to dispute a claim for compensation should not be made
lightly or without proper and careful consideration of the factual and legal issues
involved;
(b) any insurer seeking to dispute an unnotified matter is seeking to have a discretion
exercised in its favour and, accordingly, must act promptly to bring the matter to the
attention of the Commission and all other parties;
(c) any unreasonable or unexplained delay in giving notice of an unnotified matter will
be relevant to the exercise of the discretion;
(d) in exercising its discretion, the Commission may have regard to the merit and
substance of the issue that is sought to be raised;
(e) in assessing prejudice to the worker, it will be significant to consider when and in
what circumstances the worker was first made aware of the unnotified issue that is
sought to be raised;
(f) though it will be relevant to the exercise of the discretion to keep in mind that the
Commission must act according to equity, good conscience and the substantial
merits of the case, those matters will not be determinative, and
(g) the general conduct of the parties in the proceedings will also be relevant to the
exercise of the discretion. (emphasis in original)
DP Wood noted that the insurer has not explained the delay in notifying the worker of the
alcohol issue; the worker would be prejudiced if leave to raise the issue was granted; and
there was little evidence that alcohol was, on the balance of probabilities, a contributing
WIRO Bulletin Issue 23 | Page 5
factor to the accident. It was therefore appropriate for the Arbitrator to exclude the alcohol
issue from his consideration of the worker’s conduct and ground 2 failed.
However, the Arbitrator erred at law because he did not explain why he only considered
the conduct of driving “slightly” above the speed limit and using a mobile telephone in
making his findings regarding the nature of the worker’s conduct and he failed to consider
facts that were put to him in submissions and in evidence before him, namely: (i) the worker
was travelling at a relatively high speed on a two-way carriageway without barriers; and (ii)
while making a telephone call he took one hand off the steering wheel: see Northern NSW
Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, [171].
DP Wood revoked the Arbitrator’s findings and re-determined the following issues in
accordance with the decision in Chubb Security Australia Pty Ltd v Trevarrow [2004]
NSWCA 344; 5 DDCR 1:
(1) The identification of the actions constituting the conduct that resulted in the injury;
(2) Whether that conduct constituted serious and wilful misconduct pursuant to s 10 (1A)
WCA, to disentitle the worker to benefits under s 10 (1) WCA;
(3) Alternatively, whether the worker suffered a personal injury arising out of or in the
course of his employment, and if so;
(d) Whether the conduct was gross misconduct, taking him out of the course of his
employment.
DP Wood made the following findings:
In relation to (1):
The Police evidence indicates that the accident most likely occurred because of driver
distraction due to the use of, or distraction by, a mobile telephone. She accepted the
insurer’s argument that the conduct must be considered in its entirety, including the
circumstances in which the accident occurred.
In relation to (2):
The worker’s actions constituted serious and wilful misconduct under s 10 (1A) WCA and
he was therefore not entitled to benefits under s 10 (1) WCA. She held:
181. The serious nature of Mr Knapp’s conduct is reflected in the description of the
driving as “dangerous” driving in the criminal charges that were laid against him.
While those charges encompass the consequences of the conduct (death or grievous
bodily harm), which are not to be considered here, the legal descriptor is relevant to
the way Mr Knapp was driving when the collision occurred. As Wells J said:
The driving in a manner dangerous element of the offence is due to the
distraction and inattention that was caused by his use of the mobile phone in
combination with the excessive speed …
183. The risk of injury flowing from Mr Knapp’s conduct in those circumstances was
at least probable and on any view likely to cause significant injury.
She accepted the insurer’s argument that the seriousness of the conduct should be
considered according to contemporary social standards and it can be said that using a
hand held mobile telephone while travelling at speed and over the speed limit is a serious
matter. Also, due to Police advertising campaigns, the risk of injury from both speeding
and from using a hand-held telephone is well publicised and must be regarded as “common
knowledge”. As a road user and licensed driver, the risk of injury must have been apparent
to the worker, or at least he must have proceeded to act without regard as to whether it
WIRO Bulletin Issue 23 | Page 6
would cause injury. To determine otherwise would be contrary to current awareness of
road safety.
The worker did not challenge the deliberateness of his conduct in the sentencing
proceedings and he had the choice to pull off the road at a convenient place to make the
call to his supervisor, but chose not to do so. The inference drawn from the facts is that his
actions constitute wilful misconduct.
In relation to (3):
There was a causal, rather than a temporal connection with employment, and the worker
did not make the telephone calls in the course of his employment. However, the injuries
arose out of his employment as there was a direct causal link with it and the worker had
no other reason to telephone his employer:
211. It is clear from the above authorities that if the injury arose out of employment
the misconduct is irrelevant, even when the misconduct is such that it takes the
worker outside of the course of his employment.
However, DP Wood concluded that the worker’s injuries are compensable under s 4 (a)
WCA because they arose out of his employment. She therefore confirmed the COD and
remitted the matter to the Arbitrator to deal with weekly payments claim.
The nature of referral for assessment of the degree of permanent impairment under clause 11 & Part 2A of Schedule 8 of the Workers Compensation Regulation 2016
Matilda Cruises Pty Ltd v Sweeny - [2018] NSWWCCPD 37 – Deputy President Snell
– 31 August 2018
Note: WIRO has been advised that the insurer has lodged a Notice of Intention to Appeal against this decision in the Court of Appeal.
Background
The worker injured his right knee at work on 19 November 2004. The appellant accepted
liability. In February 2005, he underwent a surgery including an ACL reconstruction. On 22
February 2007, Dr Pillemer issued a MAC that assessed 12% WPI (right lower extremity
and on 13 April 2007, WCC issued a COD based upon the MAC. On 16 March 2010, he
underwent a revision ACL reconstruction. In 2010, he made a further claim under s 66
WCA and on 2 May 2012 and 22 May 2012, respectively, Dr Pillemer issued further MAC’s
that assessed 7% WPI. Those MAC’s were revoked upon appeal and a MAP issued a MAC
that assessed 12% WPI.
On 1 February 2017, the appellant gave the worker written notice that his entitlement to
weekly compensation would cease towards the end of the year by operation of s 39 WCA.
On 12 April 2017, Dr Pillemer issued a further MAC that assessed 12% WPI.
On 2 December 2017, the worker underwent right total knee replacement surgery.
On 24 January 2018, the worker’s solicitors advised the insurer by email of the recent
surgery and asked it to concede that maximum medical improvement had not yet been
reached and that the worker “was not stable for the purposes of assessment of WPI”.
However, the appellant responded:
Regarding maximum medical improvement, this is for the Workers Compensation
Commission to determine. Please apply this matter to the Commission and if they
WIRO Bulletin Issue 23 | Page 7
deem Mr Sweeny has not reached MMI [maximum medical improvement], then his
benefits will be reinstated and reviewed.
On 31 January 2018, the worker’s solicitors lodged an application with the WCC, seeking
an assessment under s319 (g) WIMA as to whether the degree of permanent impairment
is fully ascertainable. However, the appellant’s solicitors opposed the referral to an AMS
and argued that this was precluded by s 322A WIMA.
On 26 February 2018, Arbitrator Wynyard conducted an arbitration hearing and reported
the following arguments:
The appellant’s argument
Section 322A WIMA prevents a worker from having more than one assessment of
permanent impairment. Section 322A (3) prevents the referral of a medical dispute to an
AMS for assessment as the worker has been assessed twice since 19 June 2012. To the
extent that Sch 8, cl 28D of the Regulation permits one further assessment of permanent
impairment, this took place in 2017. The application is misconceived and should be struck
out. There is also no formal claim for weekly compensation that would enable the WCC “to
make orders resulting from the dispute.
The worker’s argument
The opening words of s 39 (3) WCA provide, “For the purposes of this section …” and the
subsection comprises “a direction as to a course that’s to be taken for determining and
controlling” the operation of s 39. Acceptance of the insurer’s argument would render s 39
“useless”, which could not have been the drafter’s intent.
Sections 39 (3) WCA and s 322A WIMA can’t sit together and the preferred interpretation
should be that which gives the most cogent effect to the purposes of the Act. The purposes
of the section “contemplate scenarios where a worker’s condition might deteriorate” and
the worker’s entitlement to weekly compensation will be affected if the assessment
provision in s 39 (3) can never be used.
Clause 28D of the Regulation should be put to one side, and the focus should be on s 39
WCA, which also has a role to play for workers injured after commencement of the Workers
Compensation Legislation Amendment Act 2012 (the 2012 Amending Act) and not just
existing recipients of weekly payments.
Decision at first instance
The Arbitrator held that “a claim” was made by seeking a referral to an AMS to determine
whether the permanent impairment was fully ascertainable and that the insurer invited the
worker to make that application.
There was no dispute that the worker was an existing recipient of weekly payments for the
purposes of Sch 6, Pt 19H, cl 1 WCA and that Sch 8, Pt 2A, cl 28C (a) of the Regulation
provided that s39 WCA did not apply if an assessment of permanent impairment was
pending and had not been made because an AMS had declined on the basis that maximum
medical improvement had not been reached and the degree of permanent impairment was
not fully ascertainable. This required an application to be made to an AMS.
The Arbitrator referred to the title of cl 11 of Sch 8 of the Regulation - “Lump Sum
Compensation: Further Claims” and said that the legislative power that enabled the worker
to make his further lump sum claim in 2017 was Sch 8, cl 11, and the MAC dated 24 April
2017, “was issued pursuant to that power”. Pt 2A of Sch 8 dealt with weekly payments and
cl 28C and cl 28D fell within this Part. The provision in cl 28D (2), that s 322A does not
prevent a further assessment being made, does not relate to an “additional lump sum
permitted by cl 11, “which in the end is the gravamen of the [appellant’s] submission”.
WIRO Bulletin Issue 23 | Page 8
The Arbitrator held that cl 28C (a) of the Regulation exempts a worker from the application
of s 39 of the 1987 Act, where an AMS has declined to assess permanent impairment on
the basis that maximum medical improvement has not been reached. Clause 28D of the
Regulation provides the mechanism whereby the application (that cl 28C (a) stipulates is
required) may be made. The one further assessment referred to in cl 28D (3) is that allowed
by cl 28 and not the additional lump sum claim permitted by Sch 8, cl 11.
He remitted the matter to the Registrar for referral to an AMS to assess the degree of WPI.
Leave to appeal
The insurer sought leave to appeal against the interlocutory decision under s 352 (3A)
WIMA and DP Snell granted leave. He stated:
26. …The dispute is one going to whether he is entitled, pursuant to Pt 2A of Sch 8
of the Regulation, to have a further assessment of the degree of permanent
impairment resulting from his injury. The purpose of the further MAC is to determine
whether he is entitled to weekly payments beyond an aggregate period of 260 weeks,
on the basis that his situation falls within cl 28C(a) of Pt 2A of Sch 8 of the Regulation.
If the appellant’s appeal succeeds, and the respondent is not entitled to have a
further assessment pursuant to cl 28D of the Pt 2A, he will have no further entitlement
to weekly payments of compensation, beyond those previously paid voluntarily, due
to the operation of s 39 of the 1987 Act.
27. The issue is a significant one between the parties, the outcome of which has the
potential to permanently conclude the respondent’s entitlement to weekly payments.
If the appeal is not determined at this point, the respondent would undergo medical
assessment by an AMS, and the appellant would then be potentially entitled to
appeal. Deputy President O’Grady has held that a MAC brought into being by reason
of an invalid referral must be treated as a nullity: Al-Nouri v Al-Nouri Pty Ltd: [2010]
NSWWCCPD 85, [60]. It is desirable that the validity of the referral be dealt with on
appeal, before the assessment by an AMS occurs. The granting of leave is desirable
for the proper and effective determination of the dispute. This is consistent with the
approach previously taken in a number of Presidential appeals, in circumstances
involving challenge to orders for referral to an AMS: Campbelltown Tennis Club Ltd
v Lee: [2013] NSWWCCPD 50, [18]– [22]. DP World Sydney Limited (formerly known
as Container Terminals Australia Pty Limited) v Kelly: [2011] NSWWCCPD 43, [13].
Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan:
2016] NSWWCCPD 23, [47]– [55].
Appeal
The appellant argued that the Arbitrator erred in finding that: (1) Sch 8, cl 28C of the
Regulation provided an additional right to an assessment by an AMS when an additional
AMS assessment had already occurred pursuant to cl 11; and (2) Sch 8, Pt 2A, cl 28C of
the Regulation provided a further right of AMS assessment separate to the right under Sch
9, cl 11, when that clause had not been relied upon by the worker and the appellant was
not asked to make submissions on that Part.
Submissions
Both parties filed written submissions. However, DP Snell referred the parties to his
decision in Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32 (Nicolia), which
dealt with the operation of Pt 2A of the Regulation, and he directed them to lodge further
submissions addressing:
WIRO Bulletin Issue 23 | Page 9
1. Whether the Arbitrator erred in his reasoning and orders, in determining the matter,
relying inter alia on Sch 8, Pt 2A of the Regulation and, to the extent to which it is
relevant, to address the applicability of the reasoning in Nicolia;
2. Any other matters the parties seek to address going to the application of s 322A
WIMA and its operation in concert with Sch 8 of the Regulation; and
3. Whether there is any reason why the issues of statutory interpretation cannot or
should not be decided in the appeal.
Consideration
DP Snell stated:
96. The preferable construction of sub-cl 28D (3) is that “only one further assessment
may be made” pursuant to Pt 2A of the Regulation. This construction is consistent
with the object of Pt 2A, as described in the Explanatory note concerning the Workers
Compensation Amendment (Transitional Arrangements for Weekly Payments)
Regulation 2016, which inserted Pt 2A in the Regulation. It is consistent with a worker
who is an ‘existing recipient’, who has previously been assessed, being entitled to
one further assessment for the purposes of determining his or her entitlement to
benefits. It follows that the respondent was entitled to the referral for further
assessment made by the Arbitrator, unless he had previously had a further referral
on the basis of Pt 2A.
97. For reasons given above, a referral for assessment of the degree of permanent
impairment, based on cl 11 (4) (c) of the Regulation, was available to the respondent
when the referral was made in matter no 629/17. I have concluded that such a referral
would not constitute a ‘further assessment’ within the meaning of cl 28D. It follows
that, if the referral for assessment in matter no 629/17 was pursuant to cl 11, the
respondent remains entitled to a ‘further assessment’ based on Pt 2A of the
Regulation.
The referral in 2017 involved only a ‘further lump sum compensation claim’ within the
meaning of cl 11 of the Regulation, as the worker’s other entitlements were being met
voluntarily by the appellant, and could only have been made based upon cl 11. There is no
basis for characterising it as being under Pt 2A. He therefore rejected ground (1) and
stated:
101… The Arbitrator dealt with the appellant’s submissions about ‘claim’ at [10]– [18]
of his reasons. The Arbitrator concluded that the email correspondence dated 24
January 2018 was “proof that the claim was made”. He noted the appellant
“acknowledged the claim and invited the [respondent] to make this application”. I
cannot see error in how the Arbitrator dealt with this aspect. The point the appellant
is making on the appeal may rather be that the earlier claim was concluded when a
MAC was issued and orders made in matter no 629/17. This is true in so far as the
claim on foot in matter no 629/17 is concerned. However, the exchange between the
parties, on 24 January 2018, raised a further ‘medical dispute’, the existence of which
was accepted by the appellant, in the response which it gave. It is a ‘medical dispute’
in which a MAC is “conclusively presumed to be correct”: s 326(1) of the 1998 Act.
This issue was not raised separately as a ground of appeal. It is preferable, it being
raised in the submissions, that it be dealt with.
DP Snell concluded that ground 2 did not arise as he had afforded the appellant procedural
fairness by considering the issues of statutory interpretation in the appeal. It was not
necessary to determine the Notice of Contention.
WIRO Bulletin Issue 23 | Page 10
WCC declines applications for recusal and reconsideration of a previous
Presidential decision
Mahal v The State of New South Wales (No 4) [2018] NSWWCCPD 38 – Deputy President Snell – 11 September 2018
Background
The appellant applied for reconsideration of the Deputy President’s appeal decision (Mahal
v The State of New South Wales (No. 3) [2018] NSWWCCPD 30 (the Mahal appeal
decision): see WIRO Bulletin Issue 21). The issue was confined to whether s 39 WCA
applies to the appellant.
The Mahal appeal decision was issued on 20 July 2018. It recorded that the appellant was
granted an extension of time to file and serve submissions in reply by 29 June 2018, but
that she did not file any submissions in reply or further approach the WCC.
However, on 24 July 2018, the appellant sent an email to President Keating and to the
Registry, which was copied to the solicitors for the respondent, in which she sought
reconsideration of the Mahal appeal decision. She stated that on 27 June 2018, she lodged
submissions in reply and a Certificate of Service with the WCC electronically, but the
appeal was decided without them being read. She asked DP Snell to recuse himself and
that the appeal be reconsidered by “another expert” under s 378 WIMA.
The email address used by the appellant to lodge her submissions in reply and certificate
of service was not the proper address under r 2.2 of the WCC Rules 2011. In her email to
President Keating DCJ dated 24 July 2018, she requested that “Acting President Snell”
recuse himself and sought reconsideration by “another expert” under s 378 WIMA.
The recusal application
The appellant stated that she had obtained “help” from Dr Scott Calnan and that her
submissions were “…an independent expert opinion on the subject of Administrative Law,
Constitutional law and Disability discrimination.” She argued, relevantly:
The decision of Acting President was made without reading/considering the
submissions prepared by a very expert person in the legal field. This is a legal bias
and technical ground for dismissing his decision. In the determination letter in
paragraphs 78–80 Acting President has expressed his opinion on the previous cases
highlighted by the respondent without reading my submissions on those cases.
On the ground of fairness Acting President Snell should recuse himself from the
matter….
The respondent noted that the only basis of the application was that DP Snell was not
provided with the appellant’s submissions in reply, but the appellant failed to articulate “the
asserted connection with the possibility of departure from impartial decision mak ing” that
was referred to in Ebner. Apart from the assertion of bias, no substantial argument was
made to establish any apprehension of bias and “[a]pparent bias cannot be shown by an
adverse conclusion in itself”, referring to Zanker v Kupsch [2014] SASCFC 13, [76]. There
was nothing to establish that the Deputy President’s conclusions were “based on anything
other than the totality of the evidence”, or any basis to conclude that in reconsidering the
matter, he would do so with any bias and there were no justifiable grounds for the
application.
In reply, the appellant referred to the “universal human tendency to attempt to adhere to a
judgment once formed even in the face of new and different information”. She also referred
to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75
WIRO Bulletin Issue 23 | Page 11
ALJR 277 (Ebner), [6]. And argued that the decision was “incomplete, unfair and unlawful
on the totality of the evidence”, as he “was not supplied all the submissions…”
Consideration of the recusal application
DP Snell noted that in Ebner, the High Court decided that the ordinary and correct practice
is for a judicial officer to whom a matter was allocated, and who was the subject of a recusal
application, to decide that application. He therefore decided the application on the papers.
DP Snell stated that the email dated 24 July 2018, suggested that the appellant alleged
apprehended bias and he stated:
15. In Michael Wilson & Partners Limited v Nicholls the plurality described the test:
It has been established by a series of decisions of this Court that the test to be
applied in Australia in determining whether a judge is disqualified by reason of
the appearance of bias (in this case, in the form of prejudgment) is whether a
fair-minded lay observer might reasonably apprehend that the judge might not
bring an impartial and unprejudiced mind to the resolution of the question the
judge is required to decide. No party to the present appeal sought in this Court,
or in the courts below, to challenge that this was the test to be applied: Nicholls,
[31].
16. Their Honours also referred to the two-step nature of such an application, which
had been described in Ebner, saying:
In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that
application of the apprehension of bias principle requires two steps. First, it
requires the identification of what it is said might lead the judge to decide a
case other than on its legal and factual merits. And second, there must be an
articulation of the logical connection between that matter and the feared
deviation from the course of deciding the case on its merits: Nicholls, [63]
DP Snell found that the events complained of could not give rise to a reasonable
apprehension, on the part of a fair-minded lay observer, that he would not bring an impartial
and unprejudiced mind to the reconsideration application and that the submissions in reply
could be appropriately considered in the reconsideration application. However, he held that
the appellant could not make out the second step identified in Ebner, namely articulation
of the connection between those events and the possibility of departure from impartial
decision making:
18. In Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 (Re JRL; Ex parte CJL),
Mason J said:
Although it is important that justice must be seen to be done, it is equally
important that judicial officers discharge their duty to sit and do not, by acceding
too readily to suggestions of appearance of bias, encourage parties to believe
that by seeking the disqualification of a judge, they will have their case tried by
someone thought to be more likely to decide the case in their favour: re JRL:
Ex Parte CJL, [5].
19. In Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR
679 (Jia Legeng). Gleeson CJ and Gummow J said:
The state of mind described as bias in the form of prejudgment is one so
committed to a conclusion already formed as to be incapable of alteration,
whatever evidence or arguments may be presented. Natural justice does not
require the absence of any predisposition or inclination for or against an
argument or conclusion.
WIRO Bulletin Issue 23 | Page 12
He declined the recusal application.
The reconsideration application
The respondent opposed the application and argued that the fact that the appellant “failed
to appropriately submit her reply… is not a ground for reconsideration.” It relied upon the
decision of Roche ADP (as he then was) in Samuel v Sebel Furniture Limited [2006]
NSWWCCPD 141; 5 DDCR 482 (Samuel), which summarised the principles governing
reconsiderations under s 350 (3) WIMA, as follows:
(1) the section gives the Commission a wide discretion to reconsider its previous
decisions (‘Hardaker’);
(2) whilst the word ‘decision’ is not defined in s 350, it is defined for the purposes of s
352 to include ‘an award, order, determination, ruling and direction’. In my view
‘decision’ in s 350 (3) includes, but is not necessarily limited to, any award, order or
determination of the Commission;
(3) whilst the discretion is a wide one it must be exercised fairly with due regard to
relevant considerations including the reason for and extent of any delay in bringing
the application for reconsideration (‘Schipp’);
(4) one of the factors to be weighed in deciding whether to exercise the discretion in
favour of the moving party is the public interest that litigation should not proceed
indefinitely (‘Hilliger’);
(5) reconsideration may be allowed if new evidence that could not with reasonable
diligence have been obtained at the first Arbitration is later obtained and that new
evidence, if it had been put before an Arbitrator in the first hearing, would have been
likely to lead to a different result (‘Maksoudian’);
(6) given the broad power of ‘review’ in s 352 (which was not universally available in the
Compensation Court of NSW) the reconsideration provision in s 350(3) will not
usually be the preferred provision to be used to correct errors of fact, law or discretion
made by Arbitrators;
(7) depending on the facts of the particular case the principles enunciated by the High
Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147
CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later
reconsideration proceedings if it unreasonably refrained from pursuing that claim or
defence in the original proceedings (‘Anshun’);
(8) a mistake or oversight by a legal adviser will not give rise to a ground for
reconsideration (‘Hurst’), and
(9) the Commission has a duty to do justice between the parties according to the
substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act): (Samuel
[58]).
The respondent argued that the principles numbered 4, 5, 8 and 9 above militate against
reconsideration and the merits of the appellant’s case lack substance or significance.
In reply, the appellant argued that insistence upon her compliance with rule 2.2 would
amount to insistence on formality and technicality and as a self-represented litigant, she
should not be held to the same standard as a legal representative. The guidelines also
speak of “mistake or oversight by a legal representative or agent, not an unrepresented
litigant” and reconsideration involving the mere “talking (sic) into consideration of the
appellant’s reply in the matter will not have the effect of unreasonably prolonging litigation.”
WIRO Bulletin Issue 23 | Page 13
She asserted that the WCC’s procedures “were equally responsible” for the confusion and
someone should have communicated with her or opened the former employee’s mailbox.
However, the appellant also sought to raise new matters, namely:
1. Presumption against invasion of significant rights
She referred to Buck v ComCare where Finn J said of the right to statutory
compensation:
…it is a right of sufficient significance to the individual in my view, that, where
there may be doubt as to Parliament’s intention, the courts should favour an
interpretation which safeguards the individual: [1996] FCA 1485; 66 FCR 359
(Buck), [20].
She argued that the Full Bench of the Federal Court applied that reasoning in
Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; 136 ALD 536, [34] and
the previous WCC decisions raised by the respondent are not binding as it is an
administrative body and not a court. The WCC should follow the reasoning in Buck,
and interpret ‘police officer’ “in the way most favourable” to her.
2. Constitutional Invalidity
In the alternative, s 39 WCA and cl 25 of Pt 19H of Sch 6 WCA are “invalid by virtue
of s 109 of the Constitution due to their inconsistency with provisions of the Disability
Discrimination Act 1992 (Cth)”. She stated:
As a result, neither s 39, nor Schedule 6, Part 19H, clause 25 of the [1998 Act]
could properly be relied upon by the Arbitrator in his determination as they are
constitutionally invalid and of no force or effect.
In relation to these issues, the respondent referred to Banque Commerciale SA v
Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 (Banque Commerciale), [18], where
Mason CJ and Gaudron J said:
The function of pleadings is to state with sufficient clarity the case that
must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In
Liquidation). In this way, pleadings serve to ensure the basic requirement
of procedural fairness that a party should have the opportunity of
meeting the case against him or her and, incidentally, to define the issues
for decision. The rule that, in general, relief is confined to that available on the
pleadings secures a party's right to this basic requirement of procedural
fairness. Accordingly, the circumstances in which a case may be decided on a
basis different from that disclosed by the pleadings are limited to those in which
the parties have deliberately chosen some different basis for the determination
of their respective rights and liabilities. (excluding citations) (emphasis in the
submissions)
The respondent relied upon the decision of the plurality in Water Board v Moustakas
[1988] HCA 12; 180 CLR 491 (Moustakas):
More than once it has been held by this Court that a point cannot be raised
for the first time upon appeal when it could possibly have been met by calling
evidence below. (emphasis in the submissions)
Determination of the reconsideration application
DP Snell stated that the application under s 378 WIMA was misconceived as the relevant
power is found in s 350 (3) WIMA. He decided to regard the application as if it was made
under s 350 (3) WIMA. This power is discretionary and he referred to Hardaker v Wright &
WIRO Bulletin Issue 23 | Page 14
Bruce Pty Ltd [1962] SR (NSW) 244 (Hardaker), in which Owen and Walsh JJ stated (in
discussing the equivalent provision in the 1926 Act):
Such reconsideration is not necessarily limited to an examination of changed
circumstances, or of fresh evidence concerning the original circumstances. It may, in
a proper case, extend to considering whether an error has been made, whether of
fact or of law, and to making such new or altered award as the circumstances, when
thus reconsidered, appear to require: (at p249).
Their Honours also adopted the principles stated by Street CJ in Hilliger v Hilliger (1952)
52 SR (NSW) 105 (Hilliger):
It is important, naturally, to keep well in mind the distinction between the existence
of the power and the occasion of its exercise, and courts should not lose sight of the
general rule that public interest requires that litigation should not proceed
interminably: (at p108)
Generally, reconsideration would not be appropriate if a party’s submissions were not
considered because they failed to lodge them with the Registry in accordance with the
2011 Rules and the WCC’s practice, but the appellant is self-represented and served her
submissions in time and attempted to lodge them electronically at an incorrect address.
Therefore, the interests of justice favoured reconsidering the Mahal appeal decision to
enable consideration of the submissions in reply.
DP Snell referred to the decisions of Court of Appeal in South Western Sydney Area Health
Service v Edmonds [2007] NSWCA 16 ((McColl JA, Giles and Tobias JJA agreeing) and
Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (McColl JA (Allsop P agreeing),
which considered the operation of s 354 WIMA. He noted that the submissions headed
“Presumption against invasion of significant rights” and “Constitutional invalidity” were not
part of the case presented at first instance before the Arbitrator, when the appellant was
legally represented, and they were not raised in her grounds of appeal. There was no
application to amend the grounds of appeal and the respondent objected to them being
raised as they are not relevant to the issue of whether the appellant was a police officer.
He stated:
64. This was the issue dealt with by the Arbitrator. My role on an appeal pursuant to
s 352 of the 1998 Act is to determine “whether that determination was or was not
affected by any error of fact, law or discretion, and to the correction of any such error”.
The submissions relating to the “Constitutional Invalidity” argument fall outside that
scope, and the respondent’s submission that they are not relevant to the issue in
dispute is correct. …
69. The appellant has not actually sought leave to raise these further issues, or to
amend her grounds of appeal. Rather, the appellant submits that the Commission is
required by law to consider any substantial argument that addresses whether there
has been an error of fact, law or discretion (that is, any appealable error), regardless
of what stage in the proceedings the argument is raised.
DP Snell observed that s 3 (d) WIMA includes a ‘system objective’ “to be fair, affordable
and financially viable” and s 3 (f) includes a ‘system objective’ that the other objectives of
that section are to be delivered “efficiently and effectively”. These objectives are not
assisted by permitting a party to raise matters late during an appeal, that were not raised
at an appropriate time. The scheme’s object must be considered in construing the Acts:
see Hunter Quarries Pty Ltd v Mexon as Administrator for the Estate of the Late Ryan
Messenger [2018] NSWCA 178, [64] – [66].
WIRO Bulletin Issue 23 | Page 15
He stated that s 354 does not “exonerate” the Commission from an obligation to apply rules
of law, including those related to procedural fairness” and it would be inappropriate and
contrary to authority to permit the appellant to raise these arguments for the first time, at
this stage of the proceedings. He held that the appellant had not made out any ground for
the rescission, alteration or amendment of the Mahal appeal decision dated 20 July 2018.
Accordingly, he confirmed that decision.
Worker or Deemed worker – Weighing the indicia of employment principles
Digby v Hyspec Construction & Roofing Pty Ltd [2018] NSWWCCPD 39 – President
Keating DCJ – 13 September 2018
Background
On/about 19 February 2017, the deceased approached the respondent seeking work as a
carpenter. He commenced working with the respondent from 20 February 2017. However,
on 21 February 2017, he died after being electrocuted while he was carrying out building
work with the respondent. The only issue was whether he was a worker or a deemed
worker at the time of his death.
Decision at first instance
On 13 February 2018, the appellant lodged an ARD, which alleged that the injury occurred
while the deceased was working as a carpenter at the direction of the respondent.
However, on 8 May 2018, Arbitrator McDonald conducted an arbitration hearing and on 5
June 2018, she entered an award for the respondent. In doing so she:
• Found that the relationship between the deceased and the respondent revealed few
of the indicia of employment and many that mitigated against it and that weighing the
indicia, the deceased was not a worker employed by the respondent at the date of
his death and he was also not a deemed worker;
• Found that much of the appellant’s evidence was “in a general form” and ‘reflective
of impressions that she and the deceased formed rather than providing
conversational context”, while the evidence of Mr Anderson (Director of the
respondent) was consistent with the evidence of Mr Walther (the other Director).
Where the appellant’s evidence conflicted with Mr Anderson’s evidence, she
preferred the latter and found that on 19 February 2017, Mr Anderson did not offer
the deceased a full-time position;
• Considered the relevant statutory provisions and relevant authorities including
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens).
Regarding “control”, she held that it was inevitable that Mr Anderson would exercise
a level of control over the worker that had to be done at the site because his company
was contracted to perform the work. She also accepted his evidence that he
expected that the deceased would know how to perform the tasks required of him
and that they worked as a team. However, the fact that Mr Anderson was in control
of the site did not inevitably lead to the conclusion that the deceased was a worker
and she considered Mr Anderson’s evidence that he retained the deceased as a
subcontractor; and
• Concluded that the deceased was a sole trader before 20 February 2017, as he was
providing his services to another company in the preceding week and he issued
invoices, used a business name and held an ABN. The invoices did not include GST,
but that was not determinative of his employment status. The text messages between
the deceased and Mr Anderson also indicated that the deceased considered himself
to be a sole trader, as he said that he had his own ute and tools and that he worked
as a sole trader before joining the Navy and he was again doing so. His request for
WIRO Bulletin Issue 23 | Page 16
information regarding contacts in the building industry suggested that he intended to
work as a subcontractor. She held that the reference to full-time work was only in the
context of considering the possibilities that may present in the future if the deceased
proved to be suitable. She concluded that the appellant’s evidence regarding her
discussions with the deceased about the terms of payment did not cause her to doubt
Mr Anderson’s evidence.
Appeal
The appellant alleged that the Arbitrator erred:
(1) in law when she failed to correctly apply the law relating to the task of weighing the
indicia of employment;
(2) in her fact finding when she concluded there were “few” indicia in favour of worker
and “many” in favour of independent contractor;
(3) in law when she failed to correctly apply the law relating to the task of weighing the
indicia of employment, to her apparent determined relevant indicia;
(4) in law when she failed to correctly apply the law relating to the task of weighing the
indicia of employment by applying a numerical approach rather than a weight
approach;
(5) in fact, and law when she proceeded on the basis that Geraghty CCJ in the first
instance in the matter of WorkCover Authority of NSW v Mackley [2006] NSWCA
204; 66 NSWLR 305; 5 DDCR 41 (Mackley) held that someone who performed work
under a casual and fleeting arrangement was not a worker;
(6) in her fact finding by failing to determine the canvassed issue that the deceased was
a casual employee and hence a worker for the purposes of the legislation;
(7) in the exercise of her discretion by taking into account an irrelevant matter being the
business name on invoices previously sent to different organisations;
(8) in respect of her further determination with respect to the alternative assertion of
deemed employment by concluding that there was no evidence of the end of the
deceased’s relationship with Boers Construction, and
(9) in respect of her further determination with respect to the alternative assertion of
deemed employment by incorrectly using a discretion in failing to take into account
the absence of GST charges and giving inappropriately excessive weight to the use
of a business name and ABN.
President Keating referred to the decision of Bromberg J in On Call Interpreters and
Translators Agency Pty Ltd v Commissioner of Taxation (No 3): [2011] FCA 366; 279 ALR
341 (On Call Interpreters), in which His Honour referred to the decision of the High Court
in Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 (Hollis). He stated:
208. Simply expressed, the question of whether a person is an independent
contractor in relation to the performance of particular work may be posed and
answered as follows:
Viewed as a ‘practical matter’:
(i) is the person performing the work an entrepreneur who owns and operates a
business, and,
(ii) in performing the work, is that person working in and for that person’s business
as a representative of that business and not of the business receiving the work?
WIRO Bulletin Issue 23 | Page 17
If the answer to that question is yes, in the performance of that particular work the
person is likely to be an independent contractor. If no, then the person is likely to be
an employee.
209. The question which this approach poses appears to me to be the central
question in the application of the totality test. The question provides the focal point
around which the indicia thrown up by the totality test may be examined. The central
question has two elements. The first is whether the person has a business. The
second is whether the work or the economic activity being performed is being
performed in and for the business of that person: Sweeney at [31]: (On Call
Interpreters, [207] - [209]).
Keating P made the following findings:
Ground (1): The Arbitrator correctly identified the indicia discussed in Stevens and was
conscious that control was a significant factor in determining whether the deceased was a
worker as defined in s 4 WCA. The totality of the relationship had to be considered and the
Arbitrator clearly had regard to the control issue in concluding that the deceased was not
a worker at the date of his death.
Ground (2): The Arbitrator was required to resolve the evidentiary conflict regarding the
deceased’s employment status and she preferred Mr Anderson’s evidence on that issue.
He stated:
107. In Midcoast County Council t/as Midcoast Water v Reed Constructions Australia
Pty Ltd [2011] NSWCA 268 (Midcoast County Council) Meagher JA (Basten and
Beazley JJA agreeing) said (at [32]):
The relevant principles as to fact finding on appeals by way of rehearing are
not in dispute. This Court must set aside challenged findings of fact which are
shown to be wrong. When addressing those challenged findings, the court
must weigh conflicting evidence and draw its own inferences and conclusions
from that evidence, giving due regard to the fact that it has not seen nor heard
the witnesses. Specifically, if a finding might be affected by the trial judge’s
impression about the credibility of a witness or witnesses, this court should
respect the advantage of the trial judge in that regard. Usually such a finding
should stand unless it is shown that the trial judge ‘has failed to use or has
palpably misused his advantage’ or acted on evidence which was ‘inconsistent
with facts incontrovertibly established’ or ‘glaringly improbable’: Devries v
Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
at 479, 480–481; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]–
[27].
The Arbitrator did not err in her fact finding when she concluded that there were “few”
indicia in favour of “worker” and “many” in favour of independent contractor”.
Ground (3): Keating P rejected the appellant’s submission that the Arbitrator should have
given extra weight to the indicia of control as being inconsistent with On Call Interpreters
and Hollis. He stated:
128. As demonstrated by the consideration in ground two, the Arbitrator dealt with a
range of indicia in determining the ultimate question. The deceased’s invoicing
practices immediately prior to his death was a relevant factor in determining that
question but it was not determinative. In any event, there is no evidence to suggest
that the Arbitrator gave more weight to the form of the prior invoices than she did to
the control issue.
WIRO Bulletin Issue 23 | Page 18
Ground (4): Keating P rejected the appellant’s submission that the Arbitrator’s use of the
word “few” in comparison with the word “many” illustrated that she approached the task of
weighing the indicia of employment as a “mere numerical analysis. The submission is
based upon a fundamental error, that control is the prominent factor and carries more
weight than other indicia. This is not an accurate statement of the law.
Ground (5): Keating P referred to Practice Direction 6 – Appeal Against a Decision of the
Commission Constituted by an Arbitrator, which requires the full and correct name of each
authority to be given and, if unreported, a copy of the decision must be attached to the
submissions. However, the unreported authority that the appellant’s counsel referred to
was not placed before the Arbitrator or before himself on appeal. On 27 August 2018, the
appellant was directed to lodge a copy of the decision in Mackley. He stated:
148. The reported decision of the Court of Appeal decision Mackley revealed the
facts in the first instance proceedings before Geraghty CCJ in which the “worker”
issue was decided. It stated that Mr Mackley was a carpenter doing carpentry work
on a house at Manilla in New South Wales. He had no employees; however, on one
particular occasion he sought the assistance of Mr McLeod who lived nearby. Mr
McLeod assisted Mr Mackley with certain tasks for a short period of time before he
was injured. The extract from the decision of Geraghty CCJ of the decision in
Mackley indicates that, on the facts of the case, his Honour was in considerable
doubt as to whether the injured Mr McLeod was a worker. It appears that the
determination that he was a worker was finely balanced and depended on the facts
of that case.
149. It appears that in the recording of Mr Stanton’s submission, the Arbitrator
mistakenly referred to the first instance decision of Geraghty CCJ as providing
authority for the proposition that someone who performed casual labour or fleeting
employment was not a worker. The import of Geraghty CCJ’s decision was to the
contrary…
152. As I have said, Geraghty CCJ’s decision appeared to turn on its own facts. It
does not appear to identify any statement of principle other than depending on the
facts, that fleeting or short-term employment may satisfy the definition of “worker”.
The application before the Arbitrator failed, not because the engagement was
fleeting, but because a careful weighing of the evidence favoured the conclusion that
the deceased was not a “worker”.
He was not satisfied that this affected the Arbitrator’s reasoning or the outcome.
Ground (6): Keating P held:
164. Notwithstanding a vigorous cross-examination, it was clear from the oral
evidence that Mr Anderson did not offer the deceased employment, casual or
otherwise. That evidence was corroborated by Mr Walther. I do not accept that the
quote cited by the appellant above was intended to give any contrary impression.
165. The issue before the Arbitrator was whether the deceased was a worker under
the legislation. She was not required to consider whether he was a causal employee.
A “casual” employee is not a concept recognised under the legislation. Therefore,
the Arbitrator did not err in not dealing with the appellant’s submission that the
deceased was a casual employee.
He rejected the submission that the Arbitrator failed to determine an issue in dispute.
Ground (7): Keating P held that it was relevant to consider the deceased’s history of
employment relationships and it was relevant that the deceased had raised invoices in a
business name, quoting an ABN, to organisations that he had contracted to immediately
WIRO Bulletin Issue 23 | Page 19
before his relationship with the respondent. This was not determinative of the employment
relationship with the respondent, but it was open to the Arbitrator to conclude that the use
of the business name and the ABN were factors supporting that he was an independent
contractor.
Ground (8): Keating P stated:
192. The evidence does not support an inference that the deceased decided to stop
working as an independent contractor in favour of taking up full-time paid work as an
employee of the respondent. Rather, the evidence supports an inference that the
deceased elected to contract with parties other than Boers Construction as an
independent contractor. That is not proof of an employment relationship of the nature
of a “worker” with the respondent. The evidence does not establish that the deceased
stopped trading in his business name or as a sub-contractor, as the appellant seeks
to suggest. To make such a finding would require the drawing of an inference which
is not available on the evidence presented.
Ground (9): Keating P rejected the submission that the Arbitrator failed to deal with the
GST issue when determining whether the deceased was a deemed worker. He stated:
203. I accept that the “indicia of employment” are relevant to the question of whether
the deceased was a worker under s 4 of the 1998 Act as distinct from the question
of whether the deceased was a deemed worker pursuant to cl 2 of Sch 1. However,
there will be aspects of the evidence dealing with the worker issue that are relevant
to a determination of whether the deceased was engaged in work that was incidental
to a trade or business regularly carried on by the deceased in his own name or a
business name. The appellant’s complaint is not whether the Arbitrator applied the
wrong test but whether she failed to consider GST in her analysis of the deemed
worker issue and the weight she attached to the ABN evidence in that analysis.
Therefore, in dealing with this ground, I have restricted my reasons to the particular
challenges to the Arbitrator determination on those matters.
All grounds of appeal failed and Keating P confirmed the Arbitrator’s determination.
Recommended