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Contractor deemed worker

Pasqua v Morelli Constructions PL [GIO] [2009] NSWWCCPD 153. Roche DP. 02.12.09.

The appellant carpenter had commenced with the respondent in 1999. He hurt his back in 2005, received incapacity payments, and returned to full duties.

In mid 2007 he commenced his own carpentry business but a year later, approached Morelli for work, and did so on a contract basis from June until further back injury on 1 September 2008.

The fund agent denied worker in its s 74 notice. In proceedings, the respondent also disputed injury and incapacity issues.

Roche DP set aside Arbitrator Wynyard’s award respondent. The deputy president noted 1998 Act Sch 1 cl 2 Deemed employment of workers and Scerri v Cahill (1995) 14 NSWCCR 389, as well as detailed a retainer contract between the parties, and a GIO “Subcontractor Information Form” completed by the employer.

According to Roche DP:  “In his second statement, Mr Pasqua adds that he took no new work in his own business after starting with Morelli in June 2008 and that he worked full time with Morelli until his injury on 1 September 2008. Whilst working for Morelli he had no advertisements running for his own business in the local newspaper or in the Yellow Pages. He had no signage on his vehicle. He printed no new business cards for his business and he handed out no old business cards. He was directed which job to go to and when he arrived on site there was always someone to supervise his work. He felt he was ‘always under their control’. He worked fixed hours starting at 7.00 am and working until 3.30 pm for a fixed rate. [21]

“Mr Pasqua has also tendered a copy of his diary covering the period 9 June 2008 until 2 September 2008. The diary confirms that during the period covered Mr Pasqua only worked at the four job sites identified above. It also confirms that his usual hours were from 7.00 am until 3.30 pm.

“Mr Pasqua has also tendered certain tax invoices he submitted to Morelli between June and September 2008. The tax invoices are on the letterhead ‘Rocco Pasqua Carpentry’ and claim lump sums based on the hours worked plus 10 per cent for GST. Included on the bottom of the invoice are Mr Pasqua’s Australian Business Number and his licence number. Also in evidence are documents headed ‘Job Sheets’ under the heading of Rocco Pasqua Carpentry with the builder identified as Morelli Constructions. The job sheets set out the date, job site, work carried out, the time taken and total hours worked.” [23]

The arbitrator had found the appellant continuing in his own business.

The appellant cited Humberstone v Northern Timber Mills (1949) 79 CLR 389 per Dixon J at 401 on “trade”, and Wathen v AUT Holdings PL [1977] 51 WCR 1 per Mahoney JA: “…the worker had no trade or business other than what he was doing for the defendant. The case was therefore not ‘work incidental’ in the subsection. In my opinion, the learned Judge properly held that s 6(3A) applied to deem the worker to be a worker within the Act.”

According to Roche DP: “Later authority has established that it is not necessary to establish a ‘holding out’ before the Commission can find that a contractor is regularly carrying on a trade or business: Higgins v Jackson (1976) 135 CLR 174. The authorities are clear, however, that contractors who are not ‘in business for themselves’ are entitled to the benefits of the deemed worker provisions: Turner v Stewardson [1962] NSWR 137). This result is consistent with Cam v Cousins Interstate Transport PL [1964] NSWR 1288 where the applicant had regularly carried on the business of a carrier up until six months prior to his accident when he ceased his regular carrying business and operated his truck solely for the purpose of the respondent’s business. He had no business address or telephone book entry relating to an occupation or business as a general carrier and he did not advertise or hold himself out to the public as being in the trade or business of a carrier. It was held that he was entitled to the benefits of the deemed worker provisions under the Workers Compensation Act 1926. [51]

“The circumstances in Cam and Wathen are analogous to the present matter. Mr Pasqua clearly conducted a carpentry business until June 2008. From that time, however, his circumstances changed and he contracted exclusively for Morelli, but not as a part of a trade or business systematically or regularly carried on by him. As in Cam and Wathen, Mr Pasqua ceased conducting his business once he contracted exclusively with Morelli in June 2008. In these circumstances he is entitled to the benefit of the deemed worker provisions.” [52]

Substituted finding of deemed worker, remitted other issues, employer to pay appeal costs.

A: AM Legal. R: Turks Legal.

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