Ainsworth Investments Pty Ltd v Workers' Compensation Regulator [2026] QIRC 91

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Ainsworth Investments Pty Ltd v Workers' Compensation Regulator [2026] QIRC 091 PARTIES: Ainsworth Investments Pty Ltd (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2021/139 PROCEEDING: Appeal against a decision of the Workers’ Compensation Regulator DELIVERED ON: 26 March 2026 HEARING DATE: 28 September 2022 29 September 2022 10 November 2022 MEMBER: Dwyer IC HEARD AT: Brisbane ORDER: 1. The appeal is allowed. 2. The decision appealed against is set aside and another decision is substituted namely: a. That Mr Peter Gill was not a worker within the meaning of s 11 of the Workers’ Compensation and Rehabilitation Act 2003; b. That Mr Peter Gill’s claim for workers’ compensation dated 26 October 2020 is rejected. -- 1 of 23 -- 2 3. The Regulator pays the Appellant’s costs of the hearing. CATCHWORDS: WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – PERSONS ENTITLED TO COMPENSATION – WHO IS A WORKER OR EMPOYEE – where the appellant engaged an individual to perform carpentry work – where work performed by the individual was incident to a trade regularly carried on by him – where contract for works negotiated between the appellant and the individual – where contract oral – where contract allowed for individual to be accompanied by his son – where no contract between appellant and individual's son – where indicia considered – where individual had structured business affairs in a manner consistent with a sole trader – where GST recovered from appellant by individual – where BAS statements completed – where control over performance of work determined by individual – where tools provided by individual – where individual determined own hours of work – where individual had permission to delegate work to his son – where individual not a ‘worker’ LEGISLATION: Partnership Act 1891 (Qld) ss 5, 6 Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 11(1)(a), s 11(1)(a)(i), s 11(1)(a)(ii), Schedule 2. CASES: Alley v Workers’ Compensation Regulator [2025] QIRC 261 Australian Air Express Pty Limited v Langford [2005] NSWCA 96 Dietrich v Dare (1980) 30 ALR 407 Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119 -- 2 of 23 -- 3 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA1; (1986) 160 CLR 16 Tattsbet Ltd v Morrow [2015] FCAFC 62 Toowoomba Demolition and Earthmoving Pty Ltd ATF Castle Family Trust v Workers’ Compensation Regulator [2020] QIRC 030 Williamson v Suncorp Metway Insurance Ltd & Anor [2008] QSC 244 APPEARANCES: R. Varshney, Counsel instructed by Patinos Personal Lawyers for the Appellant S.P. Gray, Counsel, directly instructed by the Workers' Compensation Regulator Reasons for Decision [1] The singular issue for determination in these proceedings is whether Mr Peter Gill ('Mr Gill') is a 'worker' for the purposes of s 11 of the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act'). Introduction [2] Dr Gillian Alexis ('Dr Alexis') is the sole director of Ainsworth Investments Pty Ltd (‘the appellant’). At all material times the appellant was the registered owner of residential property situated in Toorbul in the State of Queensland ('the property'). [3] On or around 22 July 2019, the appellant entered into a building contract with Michael Frank Willcock as a builder to carry out renovation works to a house on the property (‘the building contract’).1 On or around 31 August 2019, in an arrangement wholly separate to the building contract, Dr Alexis (on behalf of the appellant) sought to engage an additional tradesperson initially to complete the project in a more timely manner.2 [4] Mr Gill is trade qualified as a carpenter. Mr Gill obtained his trade qualifications in 1972 and has worked as a carpenter variously as an employee or sole trader since that time. Relevantly, since 2017 his income tax returns indicate he predominately earned his income as a sole trader through the provision of carpentry services.3 1 Bundle of documents with respect to registration, insurance and QBCC records involving Mr Michael Frank Willcock tendered on 29 September 2022 ('Exhibit 5'). 2 T 1-21 – T 1-22. 3 Exhibit 9. T3-55 to T3-61. -- 3 of 23 -- 4 [5] Mr Gill was recommended to Dr Alexis through ‘word of mouth’ amongst the local community. On or around 31 August 2019, Mr Gill attended the property at the invitation of Dr Alexis. On that date, Mr Gill agreed to undertake carpentry works on the property. In the course of these discussions Mr Gill asked Dr Alexis if his son, Mr Adam Gill, could assist with the carpentry works. Dr Alexis agreed. The full particulars of this engagement will be discussed later in these reasons. [6] Mr Gill and his son commenced the carpentry works on 3 September 2019. They arrived together each day in the same vehicle. They supplied all of their own tools which they transported to the site with them on the first day and subsequently stored on site in a large storage container (that they also brought with them on their first day). They worked together each day except one day when Mr Adam Gill was unwell and neither of them attended. [7] On 27 September 2019, in the course of providing the carpentry works, Mr Gill fell from an elevated deck, injuring his right hip. On 26 October 2020, Mr Gill lodged an application for workers' compensation nominating dislocated right hip as his injury. WorkCover Queensland ('WorkCover') accepted the claim for permanent disability assessment ('the WorkCover decision'). Relevantly, the Workcover decision concluded that Mr Gill was ‘worker’ within the meaning of the WCR Act. [8] The appellant subsequently applied to the Workers' Compensation Regulator ('the respondent'), seeking review of the WorkCover decision. [9] On 16 August 2021, the respondent confirmed the decision of WorkCover, determining that Mr Gill was a 'worker' within the meaning of s 11 of the WCR Act ('decision of the respondent'). [10] On 13 September 2021, the appellant appealed to the Queensland Industrial Relations Commission ('the Commission') against the decision of the respondent. [11] A hearing of the appeal included evidence from Dr Alexis and Mr Gill. The evidence is discussed in more detail later in these reasons. Suffice to say the nature of the arrangement entered into between the appellant and Mr Gill will be determinative of the singular controversy confronting the Commission in these proceedings. [12] The starting point for considering the question of whether Mr Gill is a ‘worker’ within the meaning of the WCR Act will be a consideration of the relevant definition contained at s 11 of the WCR Act and the accompanying authorities. Relevant Statutory Provisions [13] Section 11 of the WCR Act sets out a definition of the term ‘worker’. Section 11 of the WCR Act relevantly defines "worker" as: -- 4 of 23 -- 5 11 Who is a worker (1) A worker is— (a) a person who— (i) works under a contract; and (ii) 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; or (b) a person who is a regulated worker under the Fair Work Act 2009 (Cwlth) if— (i) a minimum standards order, minimum standards guideline or collective agreement applies to, or covers, the person under chapter 3A of that Act; and; (ii) the person is prescribed by regulation to be a worker. (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. [14] The question in this matter turns exclusively on whether Mr Gill was a ‘worker’ within the meaning of s 11(1) of the WCR Act. The respondent conceded that Mr Gill was not a ‘worker’ within the meaning prescribed by Part 1, Schedule 2 of the WCR Act.4 [15] For completeness I note that Mr Gill is not excluded from the definition of ‘worker’ pursuant to any of the exclusions prescribed by Part 2 of Schedule 2 of the WCR Act. In particular, as I explain later in these reasons, I do not consider that Mr Gill was in partnership with Mr Adam Gill. [16] In the circumstances, the only statutory pathway that might lead to Mr Gill being found to be a ’worker’ within the meaning of the WCR Act would be via s 11(1)(a). Relevant legal principles [17] There are innumerable comprehensive summaries of the well established principles relevant to the determination of the character of contractual relations regarding work.5 Each summary traverses the distinguishing features between a ‘contract of service’ and 4 Respondent’s written submissions filed 19 April 2023 at [52]. 5 See for example the recent summary by Vice President O’Connor in Alley v Workers’ Compensation Regulator [2025] QIRC 261 at [59] – [76]. -- 5 of 23 -- 6 a ‘contract for services’ and each invariably lists the familiar indicia referred to by courts and tribunals determining the character of a particular contract for labour. [18] It is unnecessary in these reasons to undertake the exercise of locating and distilling legal principles from any or all decisions dealing with the same question. One comprehensive summary of the key principles will suffice. Given the similarity between some of the key factual issues with this matter, I am particularly drawn to the summary provided by Deputy President Merrell in Toowoomba Demolition and Earthmoving Pty Ltd ATF Castle Family Trust v Workers’ Compensation Regulator6 where he states: The Act [14] Part 4 of the Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Act 2013 amended the definition of 'worker' in s 11 of the Act to its current definition. [15] In respect of that amendment, the Explanatory Notes to the Industrial Relations (Transparency and Accountability of Industrial Organisations) and other Acts Amendment Bill 2013 provided: 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. [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. [17] The construction of a statute commences with a consideration of the words of the provision and its context, and context is understood in its widest sense and includes the surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole; and the context extends to the 'mischief' or defect in the law which is sought to be 6 [2020] QIRC 030 at [14]-[33]. -- 6 of 23 -- 7 remedied, such that the mischief may point most clearly to what it is the statute seeks to achieve. … [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,…. The mischief was remedied, in part, 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. … [22] The distinction between an employee and an independent contractor is rooted fundamentally in the difference between a person who serves his or her employer in the employer's business and a person who carries on a trade or business of their own. [23] The law has not been able to identify a single test to be applied in determining whether a given relationship is one of employment or one for the provision of services. The law adopts, instead, a multi-factorial approach. The answer to the question of whether a person is an employee or an independent contractor is to be found not merely from the contractual terms between the parties, but from the system operated under the terms and the work practices imposed by the putative employer which establish the totality of the relationship between the parties. [24] A number of indicia have been referred to in the decided cases. They include: • the terms of the contract; • the intention of the parties; • whether tax is deducted; • whether subcontracting is permitted; • whether uniforms are worn; • whether tools are supplied; • whether holidays are permitted; • the extent of control of, or the right to control, the putative employee whether actual or by law; • 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; -- 7 of 23 -- 8 • for the benefit of whom does the goodwill of the business belong; and • how 'business-like' is the alleged business of the putative employee – are there systems, manuals and invoices? [25] Other indicia are: • the right to have a particular person do the work; • the right to suspend or dismiss the person engaged; • the right to exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like; • whether the work involves a profession, trade or distinct calling on the part of the person engaged; • the provision by the person of his or her own place of work or his or her own equipment; • the creation by the person of goodwill or saleable assets in the course of his or her work; and • the payment from the remuneration of business expenses of any significant proportion. [26] In Tattsbet Ltd v Morrow, Jessup J held that in contemporary Australia, it is impossible to ignore and difficult to deprecate the taxation implications of the mode of operation which parties to a relationship have voluntarily adopted; such that it is now no longer just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor and his or her compliance with the regulatory requirements which apply to the provision of services by persons who are not employees, that point quite strongly against the relationship being characterised in that way. [27] In considering these criteria, the authorities make plain certain principles that assist in reaching a conclusion. [28] First, the label which the parties place on their relationship is not conclusive; the parties cannot deem the character of their relationship to be something it is not. However, if the relationship is ambiguous, the parties can remove that ambiguity by the very agreement they make with each other and the actual terms and terminology of the contract will always be of considerable importance. [29] Secondly, the assessment of the totality of the relationship is not to be undertaken mechanically by checking lists of indicia which decided cases have identified as tending towards or against characterising a person as either an employee or an independent contractor. The indicia can be no more than a guide to the existence of the relationship of employer and employee; the ultimate question will always be whether a person is acting as an employee of another or on that person's own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance. [30] Thirdly, of the indicia of employment, it is clear that the right to control remains an -- 8 of 23 -- 9 important consideration in many cases, which may be found in a right to organisation and allocation of work, as much as in some theoretical right to say how actual work should be done. [31] Fourthly, the circumstance that the business enterprise of a party said to be an employer is benefited by the activities of the person in question cannot be a sufficient indication that the person is an employee. [32] Fifthly, if the putative employee's circumstances exhibit the characteristics of a business, that will undoubtedly be a matter proper to be taken into account, so long as sight is not lost of the question itself, which is not whether the person is an entrepreneur, but whether he or she is an employee. [33] Finally, the object of the exercise is to paint a picture from the accumulation of detail; and the overall effect can only be appreciated by standing back from the detailed picture which has been painted and by viewing it from a distance and making an informed, considered, qualitative appreciation of the whole. (Emphasis added, citations omitted) [19] In broad terms, what can be appreciated from consideration of these observations is that the exercise of identifying the existence and character of any contract between Mr Gill and the appellant will require a consideration of the whole of the agreement. By identifying each of the relevant features apparent from the evidence, the nature of the contract between the appellant and Mr Gill emerges. [20] Importantly, the exercise of characterising the contract will not be as simple as applying a checklist of indicia but rather, it requires a balancing of competing and often contradictory factors to arrive at an overall impression of the true nature of the agreement of the parties. Submissions [21] Each of the parties filed written submissions. In both instances the submissions were comprehensive and of assistance to the Commission. I do not intend to restate the submission of each party in these reasons. It is unnecessary to do so because, on matters relevant to the singular question for determination, each party identified the relevant indicia and then each undertook broadly the same exercise of applying them to the contract between Mr Gill and the appellant and inviting the Commission to apply more (or less) weight to those items in the overall balancing exercise. The point of difference in the parties’ submissions was the conclusion each invited the Commission to reach with respect to the character of the contract between Mr Gill and the appellant. [22] Some matters contained in the submissions of each party were irrelevant or of little weight in my overall consideration of the nature of the relationship between Mr Gill and the appellant. For example, there was extensive discussion around the commercial or trading status of the appellant corporation. This was irrelevant to the question of whether -- 9 of 23 -- 10 a contract was formed between the appellant and Mr Gill. Further, there was considerable time spent on the registration details of Mr Gill with the QBCC. There was no evidence that Mr Gill sought to be engaged as a builder or that he held out or otherwise relied on his QBCC registration to secure the contract with the appellant. His QBCC registration status was irrelevant to the matters in issue. [23] It will be apparent from the reasons that follow which of the parties’ submissions I considered relevant. In addition to the irrelevant matters identified above, to the extent any submission has not been expressly dealt with in these reasons it may be assumed to be my view that it is either irrelevant, incorrect, or inconsequential (or a combination of all three). [24] Notwithstanding the overall helpful nature of the submissions of each party and the outcome that each contends for, it is ultimately for the Commission to form its own view as to the true character of the relationship between Mr Gill and the appellant by reference to the evidence. [25] It is noted that the respondent has conceded that it does not rely on the extended definition of ‘worker’ found at Schedule 2 of the WCR Act. I consider that to be an appropriate concession given the facts of this matter, namely, that Mr Gill was engaged in a contract incident to a trade he regularly carried on.7 In the circumstances I intend to limit my consideration to the definition of ‘worker’ found at s 11(1) of the WCR Act. Witnesses [26] While numerous documents (including invoices and tax returns) have been tendered as evidence in these proceedings, the arrangement between Mr Gill and the appellant was entirely oral. Moreover, the only persons privy to the precise terms of the arrangement were Mr Gill and Dr Alexis (on behalf of the appellant).8 It is therefore their evidence that warrants the closest consideration. [27] It was my observation that both Mr Gill and Dr Alexis gave evidence that was, at times, self-serving. Each of them demonstrated they had some insight into the fundamentals of the issue in dispute, though each lacked the sophistication to disguise their more disingenuous attempts to reconstruct the facts in a manner favouring their preferred characterisation of the arrangement. Despite these occasional and evenly matched displays of insincerity, it was not sufficient to undermine the otherwise generally reliable nature of the evidence that each of them gave. Ultimately, where it mattered, each of them gave evidence that was largely consistent with the other, such that the terms of the arrangement they entered into can be readily understood. 7 See WCR Act, Schedule 2, Part 1, 3(a). 8 While there was some evidence that Mr Gill’s wife was also present when he met with Dr Alexis, there is no clear evidence that she was privy to the discussions in any material way or at all. In any event, there is little dispute between Mr Gill and Dr Alexis as to what they agreed to. (T 1-20, Line 45). -- 10 of 23 -- 11 [28] On the other hand, the evidence of Mr Gill’s son, Mr Adam Gill impressed me as wholly frank and direct, and it was ultimately of great assistance in clarifying certain important aspects of the arrangement that are discussed later in these reasons. [29] By contrast, the evidence of Mr Gill’s long serving accountant, Mr Robert Birch, was a transparent display of sophistry. In an entirely unprofessional and partisan manner, Mr Birch gave sworn evidence to the Commission that he had always considered that ‘ABN income’ (like that included in the returns he prepared for Mr Gill) was, in effect, a sham perpetrated by employers seeking to avoid WorkCover or superannuation obligations.9 The inference from this evidence was that persons engaged pursuant to such arrangements (including Mr Gill) were actually employees. [30] This assertion by Mr Birch entirely contradicted the evidence contained in the multiple tax returns that he, in his professional capacity, had completed for Mr Gill from 2017 onwards. In those returns Mr Birch described Mr Gill’s income as being sourced in ‘carpentry services’. Relevantly, Mr Birch also routinely completed Business Activity Statements (‘BAS’) for Mr Gill each quarter for many years, something he (as an accountant) would know was entirely unnecessary for a person lawfully regarded as a PAYG employee. [31] It is difficult to reconcile how an accountant could assert he considered Mr Gill was effectively an employee for tax purposes in such stark contrast to the tax returns and BAS statements he had completed for him. The evidence of Mr Birch is even more perplexing when one considers that, as an accountant and tax agent, Mr Birch will have lodged Mr Gill’s tax returns and BAS statements with the Australian Tax Office (‘ATO’) declaring them to be true and correct. But according to Mr Birch’s evidence before the Commission, they were not a true reflection of Mr Gill’s status as he saw it. [32] Mr Birch offered no cogent response to my query about this contrast.10 It is unclear whether Mr Birch was called as an ‘expert’ on the characterisation of workplace relationships but in my view he most certainly was not. Whatever the case might be, he has demonstrated himself to be entirely unreliable in respect of any opinion offered as to the whether Mr Gill might or might not be regarded as a PAYG taxpayer. [33] The only remaining witness was Mr Warren Davies. His evidence was of little to no assistance to the Commission on the matters in issue and it is unnecessary to consider his evidence. 9 T2 – 37, ll 35-45. 10 T2-28, ll 1-23. -- 11 of 23 -- 12 Was there a contract? [34] The starting point in answering this question is to establish whether any form of contract existed between the putative employer and worker. The evidence of both Mr Gill and Dr Alexis plainly reveals the requisite elements of offer, acceptance and consideration. In simplest of terms, Dr Alexis required a person (with the relevant expertise) to perform certain carpentry or building tasks on her property. Following a meeting with Mr Gill at the property and some general discussion about what was required, Mr Gill agreed to perform the tasks. Further, Mr Gill agreed to perform those tasks in return for payment of an agreed monetary sum. [35] The absence of any written record of the arrangement is not a barrier to concluding the existence of a contract. In the circumstances, as a consequence of the discussion between Mr Gill and Dr Alexis on or about 31 August 2019 I am satisfied that a contract existed between the parties. What were the terms of the contract? [36] Despite subtle variance in the recollections of Mr Gill and Dr Alexis, the broad similarity in their respective evidence on key issues allows for reliable identification of the terms of the agreement. [37] There was no dispute that Mr Gill and Dr Alexis met at the building site by mutual arrangement on or about 31 August 2019. There is no dispute that they discussed the terms of engagement at that meeting, settled on those terms, and that those terms were subsequently put into effect in the subsequent weeks. The work to be performed [38] The evidence of each Mr Gill and Dr Alexis was that they spent their time at the site on 31 August 2019 initially discussing the nature of the work being done by the builders as part of the building contract. This conversation then turned to the type of tasks Dr Alexis required Mr Gill’s assistance with. [39] While some initial specific tasks were discussed, it would seem that the contract was not restricted to a single specific task or project but rather, appeared to be ancillary to the main building project being undertaken by the registered builder on site. It would best be described as a contract to perform general carpentry works.11 11 T 1-21 to T 1-22; T 1-45 to T 1-46; T 3-25 to T 3-26; T 3-110, ll 3-4. -- 12 of 23 -- 13 Method of performance of work [40] While an initial task to be undertaken by Mr Gill was identified, it seems other carpentry tasks were routinely communicated over the course of the contract.12 [41] Dr Alexis required someone with carpentry or building skills to perform this work. Neither Dr Alexis nor her partner had these skills, and her existing builders had no capacity, hence the need to engage someone with the skills of Mr Gill. The evidence uncontroversially demonstrates that Dr Alexis would routinely communicate what she wanted done to Mr Adam Gill. Having communicated her request, it was then a matter for Mr Gill and Mr Adam Gill, using their trades expertise, to determine for themselves how those tasks would be completed, which of them would perform what parts, and to then complete them.13 [42] I am therefore satisfied that it was a term of the contract that, save for the direction from Dr Alexis to undertake certain tasks, the manner and method of performance of the work was determined by Mr Gill in accordance with his trade skills and expertise. The length of the engagement [43] The parties appear to concur that Dr Alexis was desirous of having the entire building project completed in a timely manner with some evidence suggesting that Christmas was the proposed finish date.14 While the contract cannot be properly described as being for a fixed term, it certainly had an anticipated outer limit. The completion dates for such projects are notoriously difficult to predict and those working in that industry (like Mr Gill) would be well familiar with the uncertainties. That said, an indication that the building works were hoped to be completed by Christmas that year could not, at least at the outset, have reasonably produced an expectation that the contract would extend indefinitely into the future. [44] While the precise tenure of the contract was indiscernible, it had to be plainly understood between the parties that the contract length would be determined by the duration of the building project. Hours of work [45] Dr Alexis did not stipulate hours of work. Dr Alexis informed Mr Gill the site would be open from 6am to 6pm each day. The site was locked each night at 6pm. This was a practice of the building contractor performing the main building works on site and was already in place before any contract was made with Mr Gill.15 12 T 3-28, ll 44-49 to T 3-29, ll 1-15; T 3-110, ll 5-10. 13 T 1-23, ll 15-25; T 3-28, ll 44-49 to T 3-29, ll 1-15; T 3-110, ll 15-25. 14 T 1-22, ll 1-10; T 3-26, ll 15-16. 15 T T 1-22, ll 30-40; T 1-40, ll 5-10. -- 13 of 23 -- 14 [46] It was Mr Gill who stipulated his preferred hours of work (6:30am-2pm) which Dr Alexis did not seek to change.16 [47] In the circumstances I conclude that the reference by Dr Alexis to the gates being locked was merely an indication of the limitations of access to the site. There is no evidence that Dr Alexis stipulated a start or finish time for work by Mr Gill and that, subject to access to the site, Mr Gill worked hours of his own choosing. Remuneration [48] Both Mr Gill and Dr Alexis agree that the work was to be performed at an hourly rate of $60 per hour. Dr Alexis was confident that she had proposed $60 per hour ‘plus GST’.17 Mr Gill was less clear about whether he quoted the inclusion of GST, though he was far from certain either way.18 [49] I consider that this divergence is one example of where Mr Gill’s evidence strayed into a self-serving reconstruction of his recollections. I do not accept his doubts about his recall were genuine. Every single invoice issued by Mr Gill to the appellant was for $60 per hour plus GST. This evinces a compelling contemporaneous record of the agreed remuneration. [50] I find that the rate of remuneration agreed between Mr Gill and the appellant was $60 per hour plus GST. Taxation on remuneration [51] There is no evidence that any person concerned with the formation of the contract discussed or agreed on any aspect of PAYG income tax being withheld. Further, there is no evidence from the subsequent conduct of the parties that any such term was agreed. [52] The invoices issued by Mr Gill and paid by the appellant did not include (or contemplate) deductions for taxation. Plainly, it can be inferred that it was agreed that the remuneration for the work performed by Mr Gill was not subject to taxation. Leave entitlements [53] There is no evidence that any person concerned with the formation of the contract discussed or agreed on any form of leave entitlements being included in the terms of the contract. Further, there was evidence that Mr Gill elected to take a day off when Mr Adam Gill was unwell. He did not seek to characterise his absence by reference to any 16 T 3-79, ll 43 - 47 to T 3-80, ll 1-20. 17 T 1-22, ll 25-30. 18 T 3-27, ll 45-49. -- 14 of 23 -- 15 leave entitlement, it appeared to be leave taken entirely at his unilateral discretion.19 His subsequent invoice did not include a request for payment on that date. [54] Further, on the date of Mr Gill’s accident, as he had only begun work for the day at the time of his fall, he did not invoice for his work on that date. [55] I am therefore satisfied that the contract did not include any agreement for leave entitlements. Tools of trade [56] During his initial discussion with Dr Alexis, Mr Gill confirmed that he would supply his own tools necessary for the performance of the work. The evidence of Mr Gill, Dr Alexis, and Mr Adam Gill confirms that, from the first day of work on the site, Mr Gill brought and used his own tools to perform the assigned work. Further, he brought a large locking storage container in which to secure his tools on the site overnight. [57] With the exception of one saw blade, supplied somewhat spontaneously for convenience, all tools were supplied and maintained by Mr Gill.20 [58] By contrast, there is no dispute that building materials required for the works undertaken were supplied by the appellant. That said, there is no evidence as to whether the materials required for the assigned tasks were substantial. [59] In those circumstances I am satisfied that the contract required Mr Gill to supply tools of trade, while the appellant would supply the building or other materials (if any) required for the tasks being performed. Delegation of work [60] During his meeting with Dr Alexis, Mr Gill informed her that he had a son (Mr Adam Gill) who was also a qualified carpenter. Mr Gill enquired whether there would be ‘enough work for both of them’.21 Mr Gill was, in effect, proposing that he undertake the work with Mr Adam Gill. Dr Alexis agreed to Mr Gill being accompanied in the work by Mr Adam Gill. Dr Alexis considered that Mr Gill and Mr Adam Gill ‘were a package’.22 [61] In my view, there has been a persistent mischaracterisation of this feature of the contract between Mr Gill and the appellant since the inception of the workers’ compensation claim. The respondent has proceeded at all times as if Mr Adam Gill was separately 19 T 1-49, ll1-10; T 3-31, ll 5-10. 20 T 1- 48, ll 35-40; T 3-116, ll 1-15. 21 T 1-22, ll 15-25; T 1-46, ll 25-40; T 3-26, ll 14-20. 22 T 1-22, ll 20-25; T 1-46, ll 25-40. -- 15 of 23 -- 16 contracted to the appellant. Conversely, the appellant has attempted to argue that that Mr Gill and Mr Adam Gill were operating as a partnership. Both characterisations are incorrect. [62] At the outset it is relevant to note that there is no evidence that Mr Adam Gill ever met or spoke to Dr Alexis (or any representative of the appellant) before commencing work on the site. His presence on the site from day one arose solely as consequence of the agreement made between Mr Gill and Dr Alexis, namely, that Mr Gill could be accompanied in the work by his son. [63] Given the informality of the contract between Mr Gill and the appellant, neither party turned their mind to a formal characterisation of the role of Mr Adam Gill. What is certain though, is that there was never any ‘meeting of the minds’ between Dr Alexis and Mr Adam Gill that is crucial to the formation of a separate contract between them.23 In simple terms, there was no offer and no acceptance. In the absence of those fundamental elements of a contract, there was no contract. [64] While it might be argued that Mr Gill negotiated a contract as some form of informal agent for Mr Adam Gill, there was no evidence led from Mr Gill about such an arrangement or whether that was even Mr Gill’s intention. While the informality of the contract is an impediment to a precise conclusion, the facts that are before the Commission are most consistent with evidence of an agreement between the appellant and Mr Gill that allowed Mr Gill to delegate some (or all) of the work under his contract to Mr Adam Gill. [65] The evidence of how the contract was performed only reinforces this conclusion. The evidence from Mr Gill and Mr Adam Gill was consistent as to how they received instructions from the appellant. Their evidence was that the tasks they were asked to complete under the contract would be communicated to Mr Adam Gill (usually by Dr Alexis) and then he would relay that information to Mr Gill.24 Having been assigned a task, they would then decide between themselves how it was to be divided.25 [66] It would appear that, having communicated her wishes as to the task she required performed, Dr Alexis had no preference as to which of Mr Gill or Mr Adam Gill was the one to perform it. [67] That is to say, while Dr Alexis negotiated a contract with Mr Gill, it is clear that she was content for him to be accompanied in the work by Mr Adam Gill. Her directions to Mr Adam Gill and her payment of invoices under his name (submitted each week by Mr 23 Williamson v Suncorp Metway Insurance Ltd & Anor [2008] QSC 244; see also Dietrich v Dare (1980) 30 ALR 407 at 411. Note, while these authorities pertain to contracts of service, the principle is equally apposite to a contract for services. 24 T 3-28, ll 40-49 to T 3-29, ll 1-15; T 3-110, ll 5-10. 25 T 1-23, ll 15-25; T 3-110, ll 20-25. -- 16 of 23 -- 17 Gill) are not inconsistent with an agreement that Mr Adam Gill was a delegate for Mr Gill and that the requested work would be completed by one or both of them. In particular, it is clear that Dr Alexis expressed no preference for tasks to be completed by specific reference to which of them should be the one to complete it. [68] In the circumstances I consider that a term of the contract was that Mr Gill had permission to delegate work to be performed to Mr Adam Gill and he did. Conclusion – terms of contract [69] Despite the informality of the arrangement entered into between the appellant and Mr Gill, the broadly consistent evidence given by Dr Alexis and Mr Gill allows me to conclude each of the terms set out above were terms of the contract. While there may be others, it is these terms that are material to my consideration. [70] Having established the existence of a contract, the requirements of s 11(1)(a)(i) of the WCR Act are met. It is now necessary to consider whether Mr Gill is engaged under this contract as an ‘employee’ in accordance with the terms of s 11(1)(a)(ii) of the WCR Act. Contract of employment? [71] For the reasons that follow I have concluded that Mr Gill was engaged under a contract for services and was not an employee within the meaning of s 11(1)(a)(ii) of the WCR Act. [72] The test for whether Mr Gill was engaged under a contract of employment requires consideration of the relevant indicia. For the sake of brevity I do not intend to slavishly step through every one of the well-known indicia identified earlier in these reasons, analysing their application (if any) to these facts. Instead, I consider it sufficient to consider only the indicia that most clearly illuminate the nature of the contract in this matter. [73] Like all disputes of this nature the indicia may, more or less, point to different conclusions about the character of a contract. The presence of different indicia favouring conflicting characterisations is the very reason the character of the contract is disputed. It is the task in every case for the relevant decision maker to balance the identified indicia in each given factual scenario before them and to determine, on the whole, the nature of the contract. [74] In this matter there are aspects of the contract that, considered in isolation, could be consistent with a contract of employment. For example, the fixed hourly rate of remuneration, paid in a regular and systematic fashion, is not inconsistent with the manner of payment of wages to an employee. The absence of entitlement to annual or sick leave does not discount a similar characterisation given it is consistent with features -- 17 of 23 -- 18 of casual employment. The supply of building materials might also be consistent with an employment contract when contrasted with usual arrangements with building contractors. [75] But importantly in this matter, while these features could support a characterisation of the contract between the appellant and Mr Gill as one of employment, they are not exclusively features of employment and are equally capable of being consistent with the profile of a contract for services. What is critical to determining which characterisation is the most correct in this matter is the complexion these features take on when considered in the context of the contract as a whole. In this matter there are a number of other indica that are exclusive (or at least more typical) to a contract for services, and it is against those indicia that these ‘employment’ characteristics must be balanced. Control [76] Despite many decades of jurisprudence and the identification of a multitude of indicia, control over the work and the manner in which it is performed remains an important indicator of a contract for services.26 In this matter it is plain on the facts that Mr Gill exercised full control over the manner in which the work was performed. Despite the fact that Dr Alexis routinely told Mr Gill what task she wanted completed (via Mr Adam Gill), it was Mr Gill who, through his expertise in carpentry, determined how the work would be performed (and by who). Mr Gill exercised all relevant control over the performance of the appointed tasks. Tools of trade [77] Not only did Mr Gill exercise control of the manner in which the work was performed, but he also supplied all tools of trade necessary to perform that work. It is trite to note that such a feature is generally consistent with a contract for services. Hours of work [78] The facts demonstrate that Mr Gill had total autonomy with respect to the hours he worked or whether he worked at all.27 While he exercised that autonomy within the confines of the broader opening hours of the site, he was entirely able to dictate when he arrived and when he left. He was also able to simply not attend when, on one occasion, Mr Adam Gill was unwell. [79] There was no evidence that Dr Alexis required Mr Gill to attend the site between stipulated hours. Contractors will invariably be subject to an expectation that they will perform the services they were engaged to perform within certain time constraints. Such 26 Stevens v Brodribb [1986] HCA 1; (1986) 160 CLR 16. 27 T 3-79 to T 3-80. -- 18 of 23 -- 19 expectations are consistent with fundamental express and implied terms of contracts for services where e.g. a task or tasks need to be completed within a broader time period. [80] In this matter Dr Alexis had (apparently) expressed an expectation of the entire project being completed ‘by Christmas’.28 The performance of the contract therefore required routine attendance to perform the agreed tasks not just for the obvious reason of completing them, but in order to maintain the confidence of the appellant that the tasks or the project will be completed within the expected time frame. The routine attendance at site by Mr Gill for these reasons does nothing to detract from the genuine autonomy he exercised over his hours of work. The ‘usual business’ of Mr Gill [81] In order to be remunerated Mr Gill would issue an invoice. Unlike some contractor arrangements where e.g. an invoice is issued at completion or some designated stage of a project, it was agreed he would invoice routinely on a weekly basis. While regular periodic payments might mimic the pattern for weekly wages, they are also not inconsistent with a contract for services performed with respect to a diverse project, on a week-by-week basis. The facts of this matter plainly support the latter conclusion. [82] While the invoices in evidence are somewhat rudimentary, they have the appearance of genuine invoices in every respect, including reference to Mr Gill’s ABN. I note they were produced from a template invoice used previously by Mr Gill in his business activities.29 They are not documents created specifically by Mr Gill to access payments in this contract. [83] Further, while there was evidence that Mr Gill had worked in a variety of capacities from 1972 (including periods as an employee of a construction company), the evidence before the Commission confirmed that since at least 2017, he had been operating as a sole trader providing carpentry services. There was little to no evidence as to the actual work he performed during that time, but the manner in which he worked was contemporaneously reflected in his annual tax returns.30 Those tax returns unequivocally disclose that Mr Gill (and his accountant) considered he was operating a business providing carpentry services. Consistent with this, Mr Gill levied GST on the appellant with every invoice he issued and submitted BAS statements. [84] When contemplating the true nature of a contract for labour it is impossible to ignore the broader business conduct of the putative employee.31 The administrative complexities necessary for even the smallest of businesses and sole traders in this modern era 28 T3-26, ll 15-20 29 T 3-29, ll 45-47 to T 3 – 30, ll 1-15. 30 Exhibit 9. 31Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46. See also Toowoomba Demolition and Earthmoving Pty Ltd ATF Castle Family Trust v Workers’ Compensation Regulator [2020] QIRC 030 at [26]. -- 19 of 23 -- 20 inevitably create a contemporaneous catalogue of material that reveals how they viewed themselves in the relevant relationship, and heed must be given to that. Issuing invoices, levying GST, submitting BAS statements, and declaring to the ATO (via an accountant) that one is a sole trader earning income through the provision of carpentry services are overwhelmingly indicative of a person conducting a business. Such matters must weigh heavily against a finding of a contract of employment. Right to delegate [85] A long-recognised feature of a contract of service is personal service. A right to delegate some or all of the labour being performed has often been found to be incompatible with a contract of service.32 [86] In Australian Air Express Pty Limited v Langford33 the New South Wales Court of Appeal observed: A contract of employment carries an obligation of personal service. Accordingly a power to delegate the performance of a contract tells against there being an employment relationship. Thus in Australian Mutual Provident Society v Allen and Another [1978] UKPC 7; (1978) 52 ALJR 407 at 410 (sub nom. Australian Mutual Provident Society v Chaplin and Another), the Privy Council concluded that a power of unlimited delegation was “almost conclusive against the contract being a contract of service”. In Stevens (at 26) Mason J referred to AMP v Chaplin and remarked that “[t]he power to delegate is an important factor in deciding whether a worker is a servant or an independent contractor”. Wilson and Dawson JJ also attached significance to this factor, saying (at 38) that “an unlimited power of delegation of this kind was viewed as being almost conclusive against the contracts being a contract of service in AMP Society v Chaplin”. In Ready Mixed (at 515), however, McKenna J observed that although “[f]reedom to do a job either by one’s own hand or by another’s is inconsistent with a contract of service ... a limited or occasional power of delegation may not be”. … In my view, even if it be the case that the respondent had only a right to delegate his work during a period of leave, that was, as the primary judge properly held, a significant factor. …such a right was inconsistent with the personal obligation inherent in a contract of employment. [87] As noted earlier in these reasons, each of the parties fundamentally misunderstood the impact on the contract of the circumstances under which Mr Adam Gill came to be working on the site and performing labour. [88] The appellant’s characterisation of the relationship between Mr Gill and Mr Adam Gill as a ‘partnership’ was not entirely misconceived in circumstances where the term is not 32 Andrew Stewart, Andrew Stewart's Guide to Employment Law (Federation Press, 7th ed, 2021), at 55-56 [3.10]. 33 [2005] NSWCA 96 at [56]-[64] (per McColl J, with whom Ipp J and Tobias J agreed). -- 20 of 23 -- 21 defined in the WCR Act. But the submission of the appellant was unsupported by any evidence of such an arrangement between Mr Gill and Mr Adam Gill other than references to assertions they made about working as a team etc.34 [89] While the working arrangement between Mr Gill and Mr Adam Gill might have been a ‘partnership’ in colloquial terms, it had none of the requisite characteristics to meet the legal definition of such an entity.35 [90] The appellant offered no submission as to why I ought to accept a wider, less technical, construction of the term ‘partnership’ as that term is found in Sch 2, Part 2(1)(c) of the WCR Act. I do not intend to deal with the issue in these reasons. I consider it sufficient to conclude that, in the absence of comprehensive compelling submissions, I see no reason to conclude that the term ‘partnership’ in Sch. 2 of the WCR Act should be read in any way inconsistent with the legal definition of that term. And in circumstances where there is no evidence that the arrangement between Mr Gill and Mr Adam Gill meets that definition, I conclude they are not a partnership. [91] For the respondent’s part, it would appear they have largely not considered the impact of the presence of Mr Adam Gill in their overall submissions about Mr Gill’s contract. They appear to have done this on the erroneous assumption that Mr Adam Gill worked under a separate contract. In fairness to the respondent there are some features of the arrangements that have the superficial appearance of a separate contract between Mr Adam Gill and the appellant. But on closer examination it is apparent those features do not support that conclusion. [92] In particular, the fact that Mr Adam Gill issued invoices in his own name would appear to indicate he was a separate entity, separately engaged by the appellant. But the effect of this is bluntly negated by the absence of evidence of any contract made between Mr Adam Gill and the appellant as discussed earlier in these reasons. [93] The evidence demonstrates that the practice of issuing separate invoices was little more than an administrative convenience for Mr Gill and Mr Adam Gill to split fees for the work they collectively performed under the contract between the appellant and Mr Gill. It was Mr Gill who prepared the invoices for both he and Mr Adam Gill, and it was Mr Gill who submitted them (together) to Dr Alexis each week.36 Indeed, the invoices of both Mr Gill and Mr Adam Gill are made from the same template document and, on the 34 See T 3-47, ll 1-20 for example. The transcript is replete with similar references. 35 See Partnership Act 1891 (Qld) ss 5 and 6. Note, the appellant’s contentions about ‘partnership’ under the QBCC legislation are irrelevant for the reasons already set out. The appellant further, more broadly, contends it is a partnership at [136] of the written submissions filed on 5 April 2023. 36 T 3-81, ll 35-49; T 3-113, ll15-25. Note, Mr Gill even continued to submit the invoices for Mr Adam Gill after he ceased working on the site due to his injury (T3-81, ll 40-47). -- 21 of 23 -- 22 only exhibit of an invoice ‘from’ Mr Adam Gill before the Commission, the handwriting is identical to the invoices issued by Mr Gill and includes Mr Gill’s ABN.37 [94] I note there was evidence of some alleged partial degree of dyslexia from Mr Adam Gill that might offer an explanation for this practice however, it was not offered as such.38 In my view, even if it was, it would not sufficiently outweigh the effect of the broader factual circumstances that explain how Mr Adam Gill came to be working on the site i.e. as a consequence of Mr Gill asking Dr Alexis if Mr Adam Gill could accompany him on the site and Dr Alexis permitting that. While the express use of the term ‘delegation’ is absent, this arrangement represents a right by Mr Gill to be assisted in his work under the contract by his son and, necessarily, to delegate some or all of the tasks. [95] The contract is therefore not a contract for personal service, and this is especially evident from the fact that Dr Alexis made no enquiry as to the precise nature of the tasks Mr Gill proposed Mr Adam Gill would perform, nor did she give any specific direction to either of them personally at any time during the conduct of the contract. In particular, the evidence of Mr Adam Gill as to how tasks were communicated clearly demonstrated that Dr Alexis gave directions focused on the completion of a task and was otherwise unbothered as to which of them performed it.39 [96] While distinctions may arise in individual cases, a right to delegate work under a contract for labour is prima faci a feature that sits in stark contrast to the recognised features of a contract of employment.40 In this matter, unlike some instances where the right to delegate is conferred conditionally, or is never used or tested, the right was exercised daily by Mr Gill and without any limitation being imposed by the appellant. [97] In my view the practical operation of this contract reveals that Mr Adam Gill was, by agreement of the appellant, the delegate of Mr Gill. As a consequence of this conclusion alone, I am able to find that Mr Gill’s contract was not one of personal service and therefore not a contract of employment. [98] For completeness I would add that, even if I am incorrect in this conclusion, the other indicia already discussed in the reasons are also compelling enough, alone and together, to favour a conclusion that the contract of Mr Gill with the appellant was a contract for services. 37 See Exhibit 2. Note, the printed details at the top right of the form contain an ABN belonging to Mr Adam Gill, but the handwritten portion on the mid-left side of the invoice includes Mr Gill’s ABN. 38 T 3-109. 39 T 3-110, ll 1-15. 40 See Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119 at [228] and Tattsbet Limited v Morrow [2015] FCAFC 62 at [67] as but two contrasting examples. -- 22 of 23 -- 23 Conclusion [99] The task of the Commission in determining whether Mr Gill was a worker within the meaning of s 11 of the WCR Act required balancing the competing indicia. It will never be the case in such contests that all indicia favour a single outcome. The facts of this matter reveal a number of indicia that, considered together, overwhelmingly favour a finding that Mr Gill was working under a contract for services. This is so regardless of the existence of some indicia that might favour a finding to the contrary. [100] In particular, the manner in which Mr Gill conducted his business both prior to entering the contract and while he was performing it unquestionably demonstrate that he regarded himself as a sole trader providing carpentry services. His control over the manner in which the work was performed and his ability to share that work by delegation to Mr Adam Gill collectively outweigh any other indicia tending to support a conclusion to the contrary. [101] In all of these circumstances I conclude that Mr Gill was not an employee within the meaning of s 11(1)(a)(ii) of the WCR Act. It follows that I find that Mr Gill was not a ‘worker’ within the meaning of the WCR Act. Orders [102] For all of the foregoing reasons I make the following Order: 1. The appeal is allowed. 2. The decision appealed against is set aside and another decision is substituted namely: a. That Mr Peter Gill was not a worker within the meaning of s 11 of the Workers’ Compensation and Rehabilitation Act 2003; b. That Mr Peter Gill’s claim for workers’ compensation dated 26 October 2020 is rejected. 3. The Regulator pays the Appellant’s costs of the hearing. -- 23 of 23 --