By Stuart Eustice, Partner, and Gregor Campbell, Lawyer  

Introduction

In this matter the Court was required to consider the definition of a ‘worker’ under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”).

Factual Background:

The Plaintiff was an experienced bricklayer who for the last 30 years operated as a sub-contractor, going from site to site, when the pay and the conditions, or the location, suited him. Sometimes he invoiced the work and was paid via an ABN, and at other times he worked for cash. He never employed staff, never held WorkCover insurance or ran a business.

The Plaintiff alleged that he was a “worker” for Mr Declan Hughes who operated a bricklaying business. Unlike the Plaintiff, Mr Hughes operated his business through a company, Belfast Construction Pty Ltd (“Belfast”), held WorkCover insurance and engaged contractors as needed.

In 2016, Mr Hughes advertised on Gumtree looking for a bricklayer. The Plaintiff answered the advertisement and did some work for Hughes, although whether that was for a day, or for several months, was not agreed between the parties.

The Plaintiff was contacted by Mr Hughes again in August 2017. While working on this job, on 21 August 2017, the Plaintiff fell from a scaffold and injured his right ankle.

The Plaintiff subsequently lodged a WorkCover claim in which he described himself as Mr Hughes’ sub-contractor and stated he had commenced working for the employer (Mr Hughes) on approximately 8 August 2017 at an hourly rate of $37.50.

In response to the Plaintiff’s claim, Mr Hughes recorded that Belfast did not usually have workers and that the Plaintiff was only a sub-contractor contracted for two days of work. Mr Hughes claimed that the Plaintiff had refused to provide an ABN and demanded cash on the last day. He also claimed that the Plaintiff had only worked two days, was paid $150 per day, and described the Plaintiff a “casual worker”.

Despite the varying descriptions of the Plaintiff’s employment status, his claim for statutory benefits under the Act was accepted. He later lodged a serious injury application which is how the issue came before the court for determination.

Submissions 

In their submissions before the Court, both the Plaintiff and the VWA disputed their original characterisations of the Plaintiff’s engagement the Plaintiff submitted that he was not a subcontractor but instead “a worker” for Belfast as he:

1. provided his labour and some hand tools only;
2. worked at the job sites with Mr Hughes each day;
3. worked full time hours; and
4. worked hours set by Hughes.

Whereas Belfast sourced the job, provided supervision, provided the materials and equipment beyond hand tools.

The VWA on the other hand submitted that the Plaintiff was an independent contractor as:

1. the Plaintiff had a registered ABN which remained active throughout his work.
2. there was no discussion of ongoing bricklaying services being required.
3. Mr Hughes provided only general supervision to the Plaintiff in relation to the provision of bricklaying services at the site.
4. the Plaintiff was at all material times free to provide bricklaying services to other parties.

Conclusion 

The Court looked at the initial acceptance of the claim and any admission against interest. The Court cautioned against the significance of this point alone noting the decision was made without all the evidence the Court had now seen.

It further applied the common law test set out in Elazac Pty Ltd v Shirreff and examined the totality of the relationship between the parties before concluding that the Plaintiff did not meet the definition of a “worker” under the Act.

In coming to this conclusion, the Court considered the following factors weighed most heavily against a finding that the Plaintiff was a “worker”.

1. There was no evidence of ongoing work other than that Mr Hughes required work at the specific job;
2. There was no contract of employment nor was there any discussion of taxation, holiday leave, annual leave, or superannuation;
3. There was no evidence that the Plaintiff had been engaged or paid by Belfast as Mr Hughes paid him directly in cash; and
4. The Plaintiff had for almost 30 years worked as a subcontractor and arranged his own work in the same manner in which he came into contact with Mr Hughes.

Relevance

In the modern “gig economy”, where the lines between subcontractor and employee are regularly blurring, cases like Birss along with recent High Court authorities of both Jamsek and Personnel Contracting, highlight the factors a court will look to when required to characterise an employment relationship.