Employee Or Contractor? Court Examines Bricklayer's Status

BACKGROUND

The bricklayer, a skilled professional with 30 years of experience, had operated primarily as a subcontractor throughout his career. He often moved between jobs, choosing projects based on pay, working conditions, and location. Invoicing for his services varied, with some jobs invoiced using an ABN while others were paid in cash.

In August 2017, the bricklayer was contacted by a bricklaying business owner to assist with a project. The business was registered as a company, had WorkCover insurance, and engaged contractors as needed.

On August 21, 2017, while working at the job site, the bricklayer fell from a scaffold, injuring his right ankle. This incident triggered a WorkCover claim, leading to legal proceedings to establish his status as a worker under the Act.

CLAIM'S INITIAL ACCEPTANCE STIRS CONTROVERSY

Following the incident, the worker filed a WorkCover claim for compensation. He identified himself as a subcontractor in the claim form and stated that he began working for the employer on August 8, 2017, at an hourly rate of $37.50.

In response, the employer completed an Employer Injury Claim Report, indicating that the company rarely employed workers and that the worker was only contracted for two days.

Despite these conflicting accounts, the WorkCover claims agent accepted the claim on behalf of the employer's company. This acceptance later became a source of controversy during the court proceedings.

THE PARTIES CONTENTIONS

The worker submitted a "serious injury" application, which was rejected, leading to the current court proceedings. As a preliminary matter, the court had to determine whether the worker qualified as a "worker" within the meaning of the Act.

The employer contended that the worker was an independent contractor, not an employee. They highlighted that the worker had an active ABN and a history of operating as a subcontractor. The employer asserted that the arrangement was for a short-term project with no promise of continued employment.

On the other hand, the worker argued that he was an employee of the bricklaying business. He claimed that the business owner exercised control over his work, provided materials and equipment, and set his working hours.

Additionally, the worker asserted that he anticipated ongoing work based on the employer's statements about having "a lot of work on."

A CLOSE EXAMINATION OF THE FACTS

In determining whether the worker was an employee or a contractor, the court considered multiple factors:

• Control over the work
• Provision of tools and equipment
• Expectations of ongoing work
• Method of payment
• Tax arrangements and superannuation

The court emphasised the importance of examining the relationship's entirety, as highlighted in past cases.

"Modern authority affirms that the totality of the parties' relationship must be considered."

The court encountered challenges in evaluating the evidence, as much was based on recollections of verbal agreements from years ago. Both the worker and employer occasionally provided inconsistent or unreliable information.

In its observation, the court acknowledged the unreliability of some of the worker's evidence. However, the court emphasised that this unreliability did not necessarily imply a deliberate attempt to provide false information. The worker recalled events from many years ago, without objective evidence, and the arrangement with the employer was informal.

The court also examined the significance of the initial acceptance of the WorkCover claim. While this acceptance could be interpreted as an admission, the court cautioned against overstating its importance. The claims agent decided without access to all the evidence before the court.

After thoroughly evaluating the evidence and legal principles, the court concluded that the worker did not meet the definition of a "worker" outlined in the Act. The court's reasoning included several factors:

1. The worker's consistent work pattern over thirty years, along with the nature of the arrangements with the employer.

2. The limited terms discussed or agreed upon with the employer indicate a lack of formal employment.

3. The employer's limited control over the worker's methods and conditions during the incident in question.

These factors, when assessed in accordance with common law principles, supported the conclusion that the worker was not considered an employee of the business.

Additionally, the court acknowledged that classifying the worker as a "worker" would affect the worker's status over the past 30 years. This scenario would have conflicted with the worker's autonomy in selecting work, determining payment methods, and the absence of tax deductions, sick leave, holiday leave, and superannuation. Consequently, the court denied the claim and dismissed the application.