Alley v Workers' Compensation Regulator [2025] QIRC 261

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Alley v Workers' Compensation Regulator [2025] QIRC 261 PARTIES: Kayle Clyde Alley Appellant v Workers' Compensation Regulator Respondent CASE NO: WC/2023/79 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 30 September 2025 HEARING DATES: 26 November 2024 27 November 2024 MEMBER: O'Connor VP HEARD AT: Cairns ORDERS: 1. The appeal is allowed. 2. The review decision of 7 March 2023 be set aside. 3. The Appellant's claim for workers' compensation be returned to WorkCover to be considered according to law. 4. The Respondent pay the Appellant's costs of the hearing to be agreed or failing agreement to be the subject of an application to the Commission. -- 1 of 22 -- 2 CATCHWORDS: WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – PERSONS ENTITLED TO COMPENSATION – WHO IS A WORKER OR EMPLOYEE – where the Appellant contracted with Global Aircraft Services Pty Ltd – where the Appellant's application for workers' compensation was rejected by WorkCover Queensland on the basis that the Appellant was not a 'worker' within the meaning of the Workers' Compensation and Rehabilitation Act 2003 – where the Appellant sought review of the WorkCover Queensland decision by the Respondent – where the Respondent confirmed the WorkCover Queensland decision – where appeal by the Appellant against review decision of the Respondent – whether Appellant deemed to be a worker within the meaning of sch 2 pt 1 s 5 of the Workers' Compensation and Rehabilitation Act 2003 – held that the Appellant is a worker within the meaning of sch 2 pt 1 s 5 of the Workers' Compensation and Rehabilitation Act 2003 – Respondent's review decision set aside – parties to be heard as to costs LEGISLATION: Workers' Compensation and Rehabilitation Act 2003 (Qld), s 11, CASES: Attorney-General (NSW) v The Perpetual Trustee Company Ltd (1952) 85 CLR 237 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 Damevski v Giudice (2003) 133 FCR 438 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 -- 2 of 22 -- 3 Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 Simon Blackwood (Workers' Compensation Regulator) v Blue Wren Holdings Pty Ltd [2014] ICQ 11 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Swift Placements Pty Ltd v WorkCover Authority (NSW) (2000) 96 IR 69 WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254 APPEARANCES: Mr M. Horvath and Ms K. Milana of counsel instructed by Turner Freeman Lawyers for the Appellant Mr S. Gray of counsel instructed directly by the Workers' Compensation Regulator for the Respondent Reasons for Decision [1] The sole issue for determination in these proceedings is whether the Appellant, Kayle Clyde Alley, is a 'worker' for the purposes of s 11 the Workers' Compensation and Rehabilitation Act 2003 ('WCR Act'). The Facts [2] Global Aircraft Services Pty Ltd ('GAS') is a company operating a labour hire business for various customers in the aircraft industry, including Jet Aviation Australia Pty Ltd ('Jet Aviation'). Since 30 May 2018, GAS held a labour hire licence.1 [3] GAS had a series of written contracts with Jet Aviation. The first of those commenced on 1 January 2021 and was to operate for one year.2 There was then a subsequent contract 1 Agreed bundle of documents tendered on 26 November 2024, 32 ('Exhibit 1'). 2 Ibid 46-62 ('Contract GAS with Customer 2021'). -- 3 of 22 -- 4 commencing on 13 February 2023, operational for two years.3 Each of the contracts are in substantially identical terms. [4] The arrangement involved a typical triangular labour hire relationship in which there was a contract between the worker (Appellant) and a labour hire company (GAS); a contract between the labour hire company and a third-party client (Jet Aviation), under which the labour hire company agreed to provide workers to Jet Aviation; and no contract between the worker and the client. [5] Under the contracts, GAS had to hold a labour hire licence.4 It supplied 'labour hire services'5 at a set rate6 in response to written requests by Jet Aviation.7 The set rate could only be varied by legislative changes or mutual written agreement between the parties.8 [6] The contracts were non-exclusive.9 [7] GAS was to send weekly invoices based on timesheets, using the standard hourly rates, and had to give a discount on a sliding scale.10 [8] While Jet Aviation was obliged to provide information about its training, orientation, inductions, policies and procedures,11 it retained the final discretion whether to accept any particular person.12 GAS had training obligations of its own.13 Jet Aviation also had to provide a safe workplace.14 [9] GAS and its personnel had to comply with any reasonable directions by Jet Aviation.15 [10] GAS had to pay its personnel16 and hold workers' compensation insurance, as required by law.17 [11] If Jet Aviation employed one of the supplied personnel at any time in the first 90 days of the supply, it had to pay a specified rate of compensation to GAS.18 3 Ibid 63-78 ('Contract GAS with Jet 2023'). 4 Contract GAS with Customer (n 2) cl 14; Contract GAS with Jet 2023 (n 3) cl 15. 5 Contract GAS with Customer (n 2) cl 2(a). 6 Ibid cl 2(b). 7 Ibid cl 2(c). 8 Ibid cl 2(b). 9 Ibid cl 2(a); Contract GAS with Jet 2023 (n 3) cl 2 2(a). 10 Contract GAS with Customer (n 2) cl 8(a)-(b); Contract GAS with Jet 2023 (n 3) cl 9(a)-(b). 11 Contract GAS with Customer (n 2) cl 3(a); Contract GAS with Jet 2023 (n 3) cl 3(a). 12 Contract GAS with Customer (n 2) cl 3(b); Contract GAS with Jet 2023 (n 3) cl 3(b). 13 Contract GAS with Customer (n 2) cl 7(a); Contract GAS with Jet 2023 (n 3) cl 7(a). 14 Contract GAS with Customer (n 2) cl 6(a); Contract GAS with Jet 2023 (n 3) cl 6(a). 15 Contract GAS with Customer (n 2) cl 6(f); Contract GAS with Jet 2023 (n 3) cl 6(f). 16 Contract GAS with Customer (n 2) cl 15(a)(iv); Contract GAS with Jet 2023 (n 3) cl 16(a)(iv). 17 Contract GAS with Customer (n 2) cl 15(a)(iv); Contract GAS with Jet 2023 (n 3) cl 16(a)(iv). 18 Contract GAS with Customer (n 2) cl 2(g); Contract GAS with Jet 2023 (n 3) cl 2(g). -- 4 of 22 -- 5 The Appellant [12] The Appellant was born on 9 August 1974.19 He is a qualified spray painter. [13] The Covid-19 Pandemic had an impact on the Appellant's job prospects. Border closures made it difficult for the Appellant to find work. He applied for approximately 12 positions. One was a contract position, and the balance were full-time roles. The Contract with GAS [14] Sometime in mid-2021, the Appellant reached out to Mr Tom Johnson, a person he knew from his previous employment at Sky Tech. The Appellant at that time was a contractor with National Aerospace Services and Mr Johnson held the position of Quality and Safety Manager. [15] The Appellant emailed Mr Johnson and attached his CV. By this time, Mr Johnson was working for Jet Aviation through GAS. [16] The Appellant received a telephone call from Bronwynne Cook from GAS. During the telephone conversation, the Appellant was advised about a temporary position, while Jet Aviation's paint shop lead hand, Wade Atkinson was away on leave.20 The Appellant's evidence in respect of the telephone call was as follows: THE APPELLANT: In the call, she discussed the duration of the contract. She discussed the payrate. She discussed where the job will be, what it'd be about. We discussed DAMP, which is a drug and alcohol test, which was mandatory to get into Jet Aviation, and she discussed induction to be done at Jet Aviation's premises.21 [17] The Appellant was sent a document.22 He read it, signed it and emailed it back to GAS on 8 February 2021. The Appellant and GAS entered into a written contract.23 [18] The relationship between GAS and the Appellant was governed by the contract. There was no contractual relationship between the Appellant and Jet Aviation. [19] What started as a temporary position, became a two-year engagement. It only ended when the Appellant was injured in February 2023.24 19 Appellant's amended statement of facts and contentions filed 22 November 2024, [1]; Respondent's amended statement of facts and contentions filed 22 November 2024, [1]. 20 T1-15 ll 14-7. 21 T1-15 ll 3-7. 22 Exhibit 1 (n 1) 33 ('Independent Contractor Agreement dated 5 February 2021'). 23 Appellant's amended statement of facts and contentions filed 22 November 2024, [5]; Respondent's amended statement of facts and contentions filed 22 November 2024, [5]. 24 Appellant's Submissions filed 27 November 2024, [22]. -- 5 of 22 -- 6 [20] It is not in dispute between the parties that the written contract contains all the terms and conditions between the contracting parties and thereby determines the relationship between them.25 It is also accepted that no valid exceptions apply.26 [21] The Appellant was to be an 'independent contractor' providing labour to a specific GAS customer, Jet Aviation located at the Cairns Airport ('the hanger').27 [22] The Appellant was paid a fee for his labour, by GAS, at an hourly rate (inclusive of superannuation) plus GST,28 and was responsible for his tax obligations for the supplied labour.29 He was to invoice GAS at the end of each week30 and would be paid within 14 days.31 [23] GAS was not warranting any minimum amount of work.32 [24] The Appellant was advised by GAS of unilateral rate increases every six to 12 months. The Appellant's evidence was: MR HORVATH: The rate that you told us about, whether it's 48.50 or 45.80, whatever it was, did that ever change? THE APPELLANT: In my time at GAS, it did. MR HORVATH: All right. How did that come about? THE APPELLANT: We got increases. I think it could be six monthly or yearly, but when I – when I had my accident, I was on $55. MR HORVATH: Tell me how you were advised that there was going to be a change in the rate? THE APPELLANT: Via communication with GAS. MR HORVATH: How started that discussion? THE APPELLANT: It was just the text sent by them. MR HORVATH: Did you ever ask for an increase in the rate? THE APPELLANT: Never.33 25 Appellant's amended statement of facts and contentions filed on 22 November 2024, [6], [7(a)]. 26 Ibid [7](b)-(d); Respondent's amended statement of facts and contentions filed on 22 November 2024, [7(b)]. 27 Independent Contractor Agreement dated 5 February 2021 (n 22) cl 2.1(a), sch 1 item 6. 28 Ibid cl 7.8, cl 7.3, cl 7.4, sch 1 item 6. 29 Ibid cl 7.2. 30 Ibid cl 7.10. 31 Ibid cl 7.11. 32 Ibid cl 2.1(c). 33 T1-18 ll 3-14. -- 6 of 22 -- 7 [25] The contract identified the Appellant as a 'contractor' and provided for the Appellant to work in his personal capacity under an ABN,34 devote his time exclusively to the performance of labour to the particular customer of GAS.35 The contract further specified that the Appellant could not subcontract out the labour36 but could have his own personnel.37 [26] The Appellant accounted for his own tax before and during the contract period.38 He became registered for GST in March 2022 and started invoicing it from that time.39 He claimed expenses and deductions as per accounting advice. [27] GAS had to provide supervision, tools, training, a safe system of work, and notification of any new hazards or risks.40 [28] Under the contract, GAS had to obtain workers' compensation insurance for the Appellant, as he was a sole trader (if he was not a sole trader, he would have to provide his own workers' compensation insurance).41 [29] For the first three weeks, the Appellant worked six days a week (Monday to Saturday 6.00 am to 4.30 pm). When Mr Atkinson returned from leave Saturdays became 6.00 am to 11.30 am. Those adjusted working hours became the Appellant's regular weekly shifts plus overtime when requested by Mr Atkinson, Mr Johnson or Nicholas York, who was a licensed aircraft maintenance engineer and a director of GAS at the relevant time. [30] If the Appellant was sick, he had to ring Mr Atkinson, his direct report at Jet Aviation.42 It was a requirement from GAS that the Appellant had to apply for leave. If he wanted leave, he had to obtain a GAS leave form from Mr Johnson's office, get Mr Atkinson to sign it, and send the form to Ms Cook at GAS.43 [31] The contract provided that the Appellant was to be provided with direction and supervision by Jet Aviation.44 Further, he was to strictly comply with GAS' and Jet Aviation's procedures, processes45 and policies. 34 Independent Contractor Agreement dated 5 February 2021 (n 22) sch 1 item 2. 35 Ibis cl 3(c). 36 Ibid cl 5. 37 Ibid cl 4.1(a), (p), (q). 38 Exhibit 1 (n 1) 110-153. 39 Ibid 229-270. 40 Independent Contractor Agreement dated 5 February 2021 (n 22) cl 4.2(a). 41 Ibid cl 6(b). 42 T1-31 ll 42-46. 43 T1-32 ll 4-24. 44 Independent Contractor Agreement dated 5 February 2021 (n 22) sch 2. 45 Ibid. -- 7 of 22 -- 8 [32] Mr Atkinson, Mr York, and Mr Johnson of Jet Aviation directed the Appellant on the tasks to be performed. [33] The Appellant's evidence was that over the two-year period at Jet Aviation, Mr York would "… basically ran jobs and, on his particular jobs that he ran, he would allocate us to different zones on whatever he required painting."46 [34] In respect of Jet Aviation, Mr Atkinson would give the Appellant directions. The Appellant's evidence was: MR HORVARTH: So what types of directives would you get from him about the tasks you were doing? THE APPELLANT: Wade Atkinson printed out a job list per aircraft and we'd sit down and go through it and he would tell me which jobs were priority and which weren't, and I had to do jobs in order of importance and, as completed, Wade would sign them off. MR HORVARTH: And then Mr Johnson, Tom Johnson, did you mention him giving you directives? THE APPELLANT: Correct. It would be in the same capacity as Nicholas York where he would come to us with jobs in order of importance at whichever stage they were, whether just needed to be alodine and primed and he'd complete – his crew would complete a job and we would go back in and top coat it, but it was exactly similar his and – and Nicholas York's.47 [35] The Appellant did not work for any other customer or at any other location. He did not have any staff, let alone have any staff, who could perform any of his duties of a spray painter. The Injury [36] At approximately 5.45 am on 29 February 2023, the Appellant drove to the carpark of the hanger. After parking his car, he went to exit the vehicle, slipped and hit his back against the frame of his car. As a consequence, the Appellant suffered an injury said to be an aggravation to his lower back. [37] On 22 February 2023, the Appellant lodged an application for compensation with WorkCover Queensland. 46 T1-21 ll 24-6. 47 T1-24 ll 12-22. -- 8 of 22 -- 9 [38] On 7 March 2023, WorkCover determined that the Appellant was not a 'worker' under s 11 of the WCR Act and rejected his application. It is accepted that WorkCover did not decide whether there was an incident and an injury.48 [39] On 9 March 2023, the Appellant sought a review of that decision by the Workers' Compensation Regulator.49 [40] On 5 June 2023, the Regulator confirmed WorkCover's decision. It is against that decision that the Appellant now appeals. Relevant Statutory Provisions [41] Section 5 of the WCR Act relevantly provides: 5 Workers’ compensation scheme (1) This Act establishes a workers’ compensation scheme for Queensland— (a) providing benefits for workers who sustain injury in their employment, for dependants if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits; and (b) encouraging improved health and safety performance by employers. … (3) There is some scope for the application of this Act to injuries sustained by persons other than workers, for example— (a) under arrangements for specified benefits for specified persons or treatment of specified persons in some respects as workers; and (b) under procedures for assessment of injuries under other Acts by medical assessment tribunals established under this Act. [42] Section 11 of the WCR Act sets out who is a worker and includes a person who works under a contract of service. Section 11 of the WCR Act defines "worker" as: 11 Who is a worker (1) A worker is a person who – (a) works under a contract; and (b) 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. 48 Appellant's amended statement of facts and contentions filed 22 November 2024, [12]. 49 Appellant's Form 9 – WCR notice of appeal filed on 6 June 2023. -- 9 of 22 -- 10 (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. [43] The term "contract of service" is defined in an inclusive, but not exhaustive way, and is as follows: "contract of service includes an apprenticeship contract or traineeship contract under the Vocational Education, Training and Employment Act 2000."50 [44] The term "contractor" is defined in the WCR Act in these terms: "contractor means a person who has contracted with someone else for the performance of work or provision of a service."51 [45] By s 11(2) of the WCR Act, the definition of "workers" is extended to include the persons described in Part 1 of Schedule 2. Section 11(3) identifies those persons who are not "workers" by eliminating persons described in Part 2. [46] Part 1 of Schedule 2 of the WCR Act provides: Part 1 Persons who are workers 1 A person who works a farm as a sharefarmer is a worker if— (a) the sharefarmer does not provide and use in the sharefarming operations farm machinery driven or drawn by mechanical power; and (b) the sharefarmer is entitled to not more than 1/3 of the proceeds of the sharefarming operations under the sharefarming agreement with the owner of the farm. 2 A salesperson, canvasser, collector or other person (salesperson) paid entirely or partly by commission is a worker, if the commission is not received for or in connection with work incident to a trade or business regularly carried on by the salesperson, individually or by way of a partnership. 3 A contractor, other than a contractor mentioned in part 2, section 4 of this schedule, is a worker if— 50 Workers' Compensation and Rehabilitation Act 2003 (Qld) s 7, sch 6 ('WCR Act'). 51 Ibid. -- 10 of 22 -- 11 (a) the contractor makes a contract with someone else for the performance of work that is not incident to a trade or business regularly carried on by the contractor, individually or by way of a partnership; and (b) the contractor— (i) does not sublet the contract; or (ii) does not employ a worker; or (iii) if the contractor employs a worker, performs part of the work personally. 4 A person who is party to a contract of service with another person who lends or lets on hire the person's services to someone else is a worker. 5 A person who is party to a contract of service with a labour hire agency or a group training organisation that arranges for the person to do work for someone else under an arrangement made between the agency or organisation and the other person is a worker. 6 A person who is party to a contract of service with a holding company whose services are let on hire by the holding company to another person is a worker. 7 A person (an intern), other than a person mentioned in chapter 1, part 4, division 3, subdivision 1, 2, 3 or 4, is a worker if the person— (a) is performing work for a business or undertaking without payment of wages to gain practical experience in the type of work performed by the business or undertaking, or to seek to obtain a qualification; and (b) would be a worker if the work performed by the person were for the payment of wages.52 [47] Part 2 of Schedule 2 of the WCR Act provides: Part 2 Persons who are not workers 1 A person is not a worker if the person performs work under a contract of service with— (a) a corporation of which the person is a director; or (b) a trust of which the person is a trustee; or (c) a partnership of which the person is a member; or (d) the Commonwealth or a Commonwealth authority. 2 A person who performs work under a contract of service as a professional sportsperson is not a worker while the person is— 52 WCR Act (n 50) sch 2 pt 1 (emphasis added). -- 11 of 22 -- 12 (a) participating in a sporting or athletic activity as a contestant; or (b) training or preparing for participation in a sporting or athletic activity as a contestant; or (c) performing promotional activities offered to the person because of the person's standing as a sportsperson; or (d) engaging on any daily or other periodic journey in connection with the participation, training, preparation or performance. 3 A member of the crew of a fishing ship is not a worker if— (a) the member's entitlement to remuneration is contingent upon the working of the ship producing gross earnings or profits; and (b) the remuneration is wholly or mainly a share of the gross earnings or profits. 4 A person who, in performing work under a contract, other than a contract of service, supplies and uses a motor vehicle for driving tuition is not a worker. 5 A person participating in an approved program or work for unemployment payment under the Social Security Act 1991 (Cwlth), section 601 or 606 is not a worker. 6 A person is not a worker if— (a) the person works for another person under a contract; and (b) a personal services business determination is in effect for the person performing the work under the Income Tax Assessment Act 1997 (Cwlth), section 87-60. Consideration [48] The sole question for determination on this appeal is whether the Appellant is a worker for the purposes of s 11 of the WCR Act. For present purposes, it must be determined whether the Appellant is engaged under a 'contract of service' or a 'contract for services'. [49] In Marshall v Whittaker's Building Supply Co,53 Windeyer J expressed the view that the distinction between a servant and an independent contractor: "is rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own".54 The distinction is between a person who serves and a person who conducts a business. 53 (1963) 109 CLR 210. 54 Ibid 217. -- 12 of 22 -- 13 [50] It is well recognised that the employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment.55 [51] The question is whether the Appellant falls within a particular statutory definition to be brought within the statutory scheme. Those issues will be determined upon a proper construction of the relevant statutory provisions. [52] The starting point in assessing the question is s 11(1) of the WCR Act. By s 11(1) a person who contracts with an employer is a "worker" provided PAYG is payable. The section operates to apply the test for a PAYG employee under the income tax legislation.56 [53] The definition of 'worker' in s 11(1) was introduced into the WCR Act in 2013. The Explanatory Notes to the Bill introducing that definition relevantly 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…57 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.58 [54] Subsection (1)(b) of s 11 specifically refers to "… an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cwlth), schedule 1, part 2-5." If the Appellant was determined to be a worker for the purposes of s 11(1) then there would be no requirement to proceed to a consideration of the extended definition. [55] It is conceded in the Appellant's Amended Statement of Facts and Contentions that as a matter of fact, the Appellant was paying tax and accounting for GST and as a result he is not a PAYG employee under the Taxation Administration Act 1953 (Cth). 55 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169, 178. See also WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 95, [56]. 56 Simon Blackwood (Workers' Compensation Regulator) v Blue Wren Holdings Pty Ltd [2014] ICQ 11. 57 Explanatory Note, Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Bill 2013 (Qld) 3. 58 Ibid 16. -- 13 of 22 -- 14 [56] The express wording of s 11(1) of the WCR Act, is to cover workers who are employees, for whom PAYG tax instalments are required to be withheld. The Appellant does not qualify as a "worker" by reason of s 11(1) of the WCR Act. [57] Moreover, it is the clear intention of the legislature that some other persons will be taken to be workers if they meet one of the descriptions in sch 2 pt 1 to the WCR Act. [58] Whilst the Appellant is not a worker for the purposes of s 11(1), it is contended that he is a worker under s 11(2) and sch 2 pt 1 s 3 or alternatively under s 5 of sch 2 pt 1. [59] Section 11 and Schedule 2 of the WCR Act are concerned with the status of a potential employee and a potential employer while work is being performed. Section 11 and Schedule 2 draw a distinction between a "worker" and "contractor". [60] Schedule 2 was first inserted to the WorkCover Queensland Act 1996 (Qld) by the Workplace Health and Safety and Other Acts Amendment Act 2003 (Qld). It was carried over with the enactment of the Workers' Compensation and Rehabilitation Act 2003 (Qld), as the Explanatory Note to the Workers' Compensation and Rehabilitation Bill 2003 (Qld) explains: The Bill carries over and amends schedule 2, Part 1 of the WorkCover Queensland Act 1996, inserting a new provision specifying that any person who works for another person under a contract (regardless of whether the contract is a contract of service) is a "worker" unless the person can satisfy all three elements of a results test, or it can be shown that a personal services business determination is in effect for the person under the Income Tax Assessment Act 1997 (Cwlth). The three elements of the results test to be satisfied are that: • The person performing the work is paid to achieve a specified result or outcome. • The person performing the work has to supply the plant and equipment or tools of trade needed to perform the work. • The person is, or would be, liable for the cost of rectifying any defect in the work performed. A person who works for another person under a contract would ordinarily be a person who works for labour only or substantially for labour only, or a person who seeks to receive a reward mainly for his or her personal efforts or skills. However, for the purposes of the results test, it does not matter whether the contract is a contract of service, a contract for services, or any other type of contract. For example, a contract which is substantially for supplying or selling goods, granting a right to use property, or providing the use of an asset may involve some degree of labour which is incidental or ancillary to the main purpose of the contract. The provision of labour would not be the substantial intent of the contract and section 1A would not apply because the contract does not substantially concern one person working for another person. In determining the main purpose of the contract, it may be necessary to look past the contract to the true nature of the agreement between the two parties. In order to prove that an individual is not a "worker", all three elements of the results test must be met. -- 14 of 22 -- 15 Despite the results test, a person will not be considered to be a worker if they have a personal services business determination under the Income Tax Assessment Act 1997 (Cwlth), section 87-60. This section specifies the matters about which the Commissioner of Taxation must be satisfied in order to make a determination that a person is performing work and receiving income as a personal services business. In the event of an application for compensation being lodged, all of the information available at the time of the claim may be considered. This is in keeping with the current common law as enunciated by the High Court of Australia in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 and Hollis v Vabu Pty Ltd (2001) HCA 44 that there is no single objective test for deciding who is an "employee" or "worker" and that all of the circumstances of a case must be considered, on an individual case by case basis. Part 1 does not therefore seek to replace or codify the common law meaning of "employee" or "worker".59 [61] The law with respect to who is and who is not an employee has been considered in two High Court of Australia decisions namely, Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd60 ('Personnel Contracting') and ZG Operations Australia Pty Ltd v Jamsek.61 [62] Each of those cases instructs that where the terms of a party's relationship have been committed comprehensively to a written contract, the validity of which is not challenged as a sham, and where the terms of that contract have not been varied, waived or the subject of an estoppel, or statutory intervention, the legal rights and obligations established by that contract are decisive of the character of the relationship. Moreover, the cases confirm that a description in a written contract by the parties, of the nature of their relationship, is not decisive as to the nature of that relationship if, properly construed, the terms of the contract inform otherwise. [63] In Personnel Contracting, the High Court undertook a comprehensive examination of the principals governing the distinction between employees and independent contractors. [64] The High Court held (by majority) that a 22-year-old labourer who was engaged by a labour hire company as an "independent contractor" was an employee of the labour hire company. [65] The facts in Personnel Contracting were as follows. Personnel Contracting trading as Construct is a labour hire company which engages workers to supply labour to building clients. In 2016, Personnel Contracting engaged the services of Mr McCourt and entered into a written agreement with him. After the execution of the agreement, Personnel Contracting contacted Mr McCourt and offered him work at a building site of Hanssen Pty Ltd ('Hanssen'), one of their major clients. Mr McCourt commenced basic labouring work on site with Hanssen, under Hanssen's direct supervision. Mr McCourt did not sign 59 Explanatory Note, Workers' Compensation and Rehabilitation Bill 2003 (Qld) 181–2 (emphasis added). 60 (2022) 275 CLR 165 ('Personnel Contracting'). 61 (2022) 275 CLR 254. -- 15 of 22 -- 16 a contract with Hanssen. Mr McCourt ceased working with Personnel Contracting and Hanssen on 30 June 2017. [66] Mr McCourt and the Construction, Forestry, Maritime, Mining and Energy Union commenced proceedings against Personnel Contracting for compensation and penalties under ss 545, 546 and 547 of the Fair Work Act 2009 (Cth). Mr McCourt claimed that he was a 'common law employee' of Personnel Contracting, and that Personnel Contracting had not paid him according to his entitlement pursuant to the Building and Construction General On-site Award 2010. [67] The majority of the High Court focussed on two primary factors that led to the result that Mr McCourt was an employee: 1. Under the contract between Personnel Contracting and Mr McCourt the overall right to control the work of Mr McCourt (rather than the detail of the actual exercise of control) rested with Personnel Contracting, including its right to control the provision of Mr McCourt's labour to its customers; and 2. Mr McCourt's obligation to work for Personnel Contracting's customer, and his entitlement to be paid for that work was central to Personnel Contracting's business of supplying labour to builders, such that it was clear under the contract that Mr McCourt's work was dependent upon, and subservient to, Personnel Contracting's business. [68] Kiefel CJ and Keane and Edelman JJ were critical of the multifactorial approach, under which courts assess the totality of the parties' relationship by considering a broad range of factors. [69] In reviewing the relevant authorities, the High Court considered that the multifactorial test approach evolved since Stevens v Brodribb Sawmilling Co Pty Ltd 62 and Hollis v Vabu Pty Ltd 63 had led to a departure from key authorities in determining the characterisation of a relationship by reference to the rights and obligations committed to writing by the parties in a contract. The High Court wrote: 55 To the extent that it has been supposed that a departure from the long-standing approach predating, but exemplified in, Chaplin and Narich was required by this Court's decisions in Stevens and Hollis, that understanding is also not correct. In neither Stevens nor Hollis did this Court suggest that, where one person has done work for another pursuant to a comprehensive written contract, the court must perform a multifactorial balancing exercise whereby the history of all the dealings between the parties is to be exhaustively reviewed even though no party disputes the validity of the contract.64 62 (1986) 160 CLR 16. 63 (2001) 207 CLR 21. 64 Personnel Contracting (n 60) [55]. -- 16 of 22 -- 17 [70] Their Honours went on to observe: 58 Uncertainty in relation to whether a relationship is one of employment may sometimes be unavoidable. It is the task of the courts to promote certainty with respect to a relationship of such fundamental importance. Especially is this so where the parties have taken legitimate steps to avoid uncertainty in their relationship. The parties' legitimate freedom to agree upon the rights and duties which constitute their relationship should not be misunderstood. It does not extend to attaching a "label" to describe their relationship which is inconsistent with the rights and duties otherwise set forth. To do so would be to elevate their freedom to a power to alter the operation of statute law to suit themselves or, as is more likely, to suit the interests of the party with the greater bargaining power. 59 Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide-ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require. 60 In this respect, the principles governing the interpretation of a contract of employment are no different from those that govern the interpretation of contracts generally. The view to the contrary, which has been taken in the United Kingdom, cannot stand with the statements of the law in Chaplin and Narich. 61 The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider "the totality of the relationship between the parties" by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties' contract, and not simply an aspect of how the parties' relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.65 [71] The importance of the contract terms stressed above does not mean that the parties can attach a "label" or description to the relationship that is inconsistent with the rights and duties set out in the contract. Thus, in Personnel Contracting, the Court held that the description of the worker as an independent contractor did not change the character of the relationship established by the rights and obligations in the contract (which was one of employment). 65 Personnel Contracting (n 60) [58]-[61] (emphasis added). -- 17 of 22 -- 18 [72] Kiefel CJ, Keane, Edelman, Gordon and Steward JJ considered that a Court may look beyond a written contract and consider the conduct of the parties in circumstances where: • the contract is an oral contract, or is partly written and partly oral to determine when the contract was formed and the contractual terms that were agreed; • the terms of the written contract have been varied; • the terms of the written contract are being challenged as invalid (for example, being a sham); and • a party to the contract asserts rectification, estoppel or any other legal, equitable or statutory rights or remedies.66 [73] In determining whether the worker works in the business or enterprise of the purported employer, the High Court considered that understanding and characterising the core nature of the putative employer's business was relevant in interpreting the terms of the written contract.67 [74] As was observed by the High Court: The marketability of Construct's services as a labour-hire agency turned on its ability to supply compliant labour; without that subservience, that labour would be of no use to Construct's clients. That right of control was therefore the key asset of Construct's business. Its significance was not diminished by the circumstance that the minutiae of Mr McCourt's performance of daily tasks were at the direction of Hanssen. Indeed, the right of control held by Construct over Mr McCourt explains why there was no need for any contractual relationship between Mr McCourt and Hanssen in order to support Hanssen's ability to issue day-to-day directions to Mr McCourt.68 [75] Kiefel CJ, Keane, Edelman JJ69 and Gageler and Gleeson JJ70 considered that it would be useful to consider whether the worker performed their work in the engaging entity's business or in an enterprise of their own. [76] The High Court concluded that a significant aspect of the contractual relationship that indicated employment was the extent and degree to which the putative employer could control the work being done by the person, which indicates that they are working in the putative employer's business.71 66 In ZG Operations Australia Pty Ltd v Jamsek (2022) 275 CLR 254, Kiefel CJ, Keane and Edelman JJ (at [8]-[9]), in applying this principle from Personnel Contracting, explained it in terms that day-to-day performance may be looked at where the conduct of the parties results in the written terms and conditions being superseded. 67 Personnel Contracting (n 60) [73-74], [77] and [88], per Kiefel CK, Keane and Edelman JJ, at [174], per Gordon J, with whom Steward J relevantly agreed, and at [113], per Gageler and Gleeson JJ. 68 Personnel Contracting (n 60) [76]. 69 Ibid [39]. 70 Ibid [113]. 71 Ibid [61], [113]. -- 18 of 22 -- 19 [77] Let me first turn to s 11(2) sch 2 pt 1 s 5 of the WCR Act. Under that provision, a person is a worker if: (a) a person is a party to a contract of service with a labour hire agency; and (b) the labour hire agency has an arrangement between it and another party for the person to do work for the other party. [78] The case advanced by the Appellant was that: (a) the Appellant had a contract of service with GAS because the contract provided that: (i) GAS had the obligation to provide workers' compensation insurance for the Appellant; (ii) GAS had an obligation to pay the Appellant's superannuation; (iii) GAS had control over the Appellant through exclusive devotion of time; no subcontracting of labour; the obligation to provide supervision, tools, training, systems of work and notification of risks; and the obligation of the Appellant to follow to follow GAS and Jet Aviation procedures, processes and policies. (b) GAS was a labour hire agency; (c) Jet Aviation and GAS had an arrangement by which GAS provided Jet Aviation with the labour hire services; and (d) under the arrangement, the Appellant performed spray painting work for Jet Aviation.72 [79] As the High Court reasoned in Personnel Contracting, the assessment of the true nature of the employment relationship must focus largely upon the questions of control of how, where and when work is performed, and whether under the terms of the contract the person is contracted to work in the business or enterprise of the purported employer. [80] GAS was a labour hire business. The Appellant entered into a contract with Gas. It is clear from the contract and from the evidence before the Commission that the Appellant was under the direction and supervision of Jet Aviation. 72 Appellant's amended statement of facts and contentions filed 22 November 2024, [22]. -- 19 of 22 -- 20 [81] The obligation on the Appellant was his promise to GAS as expressed in the Schedule 2 of the contract to work as directed by GAS or by its customers. Schedule 2 relevantly provides: SCHEDULE 2 Contract Services to be provided The contractor shall provide Aircraft Maintenance Engineering Labour and Services, consistent with the qualifications an experience of the Contractor set out in Item 3 of Schedule 1, to GAS for its Customer Aircraft Owners. The contractor will provide the Labour and Services strictly in accordance with the procedures, processes and policies of Customer Aircraft Owner and GAS. Workplace direction and supervision will be provided by the Customer Aircraft Owner.73 [82] Once the Appellant was assigned to Jet Aviation, he was obliged to devote himself exclusively to the performance of labour to the particular customer of GAS.74 It was only by reason of the Appellant's promise to GAS that he was bound to work as directed by Jet Aviation. As the evidence suggests, the work required to be undertaken by the Appellant did not involve, on his part, the exercise of any discretion. [83] The right to control had been shared with or devolved to a third party. When an employer engages subordinated labour, and appoints another to direct the labour, and the right of the other to direct the labour derives from the employer, then the direction of the labour by the other evidence, control by the employer.75 [84] As the plurality observed in Personnel Contracting: … the existence of a right of control by a putative employer over the activities of a putative employee serves to sensitise one to the subservient and dependent nature of the work of the employee, so as to assist in an assessment of whether a relationship is one of employer and employee."76 [85] The Appellant provided no tools, just his labour; he had to personally perform the work, and it could not be delegated. The Appellant worked subject to the control of GAS and had no right to exercise any control over what work he was to perform or how it was carried out. [86] The hours of work were set, but not by him. He had to apply for leave and have that leave approved. 73 Independent Contractor Agreement dated 5 February 2021 (n 22) sch 2 (emphasis added). 74 Contract GAS with Jet 2023 (n 3) cl 3(c). 75 Attorney-General (NSW) v The Perpetual Trustee Company Ltd (1952) 85 CLR 237, 299-300; Swift Placements Pty Ltd v WorkCover Authority (NSW) (2000) 96 IR 69, [43]-[44]; Damevski v Giudice (2003) 133 FCR 438, [77]-[78]. 76 Personnel Contracting (n 60) [73]. -- 20 of 22 -- 21 [87] The Appellant's rate of pay was paid by the hour and not for the performance of a task. The rate was set by GAS in accordance with the contract and when it increased it was not the subject of any negotiation. The Appellant was paid regularly each week. [88] The Appellant was dependent on GAS' business. That labour was subordinate or subservient to the core business being carried on by GAS.77 The Appellant therefore was not, in any meaningful sense, carrying on a business on his own account. [89] Notwithstanding the description of the Appellant as an "Independent Contractor", the 'label' chosen by the parties to describe the relationship is not determinative of the characterisation; that is for the Commission to determine as a matter of law. Conclusion [90] The evidence is that the Appellant was engaged by GAS, a labour hire agency under a contract to supply nothing but his labour to a single customer, Jet Aviation. The Appellant's obligation to work for GAS' customer, and his entitlement to be paid for that work was central to GAS' business of supplying labour. [91] The Appellant was required to supply his labour for the duration required by Jet Aviation. Importantly, when supplying his labour, the Appellant was to strictly comply with GAS' and Jet Aviation's procedures, processes and policies. Moreover, he was to be provided direction and supervision by Jet Aviation. The control of the Appellant was such that there was no need for a direct contract between the Appellant and Jet Aviation. The right of control of the Appellant was an asset of GAS' labour hire business. [92] The work carried out by the Appellant was for the benefit of both GAS and Jet Aviation. By supplying his labour to GAS, the Appellant was at the same time supplying his labour to Jet Aviation for the purposes of Jet Aviation's business. It could not be said that the Appellant was in any meaningful sense in business for himself. [93] The Appellant's work was dependent upon and subservient to GAS's business. It follows therefore, that the relationship between the Appellant and GAS is properly characterised as a contract of service and not a contract for service. [94] For the reasons expressed above, the Appellant is for the purposes of s 11(2) and sch 2 pt 1 s 5 of the WCR Act a "worker". [95] The Appellant raised an alternative argument in reliance on s 11(2) and sch 2 pt 1 s 3 of the WCR Act. However, in light of my conclusion reached above it is not necessary for me to consider that submission. 77 See Personnel Contracting (n 60) [89]. -- 21 of 22 -- 22 Orders [96] I make the following orders: 1. The appeal be allowed. 2. The review decision of 7 March 2023 be set aside. 3. The Appellant's claim for workers' compensation be returned to WorkCover to be considered according to law. 4. The Respondent pay the Appellant's costs of the hearing to be agreed or failing agreement to be the subject of an application. -- 22 of 22 --