Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 182

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 182 PARTIES: Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2015/148 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 27 October 2015 HEARING DATES: 10 August 2015 23 September 2015 (Respondent's submissions) 19 October 2015 (Appellant's submissions) 26 October 2015 (Respondent's submissions in reply) HEARD AT: Brisbane MEMBER: Industrial Commissioner Thompson ORDERS: 1. The Appeal is dismissed. 2. The Decision of Simon Blackwood (Workers' Compensation Regulator) dated 8 May 2015 is upheld. 3. The claim is one for acceptance. 4. The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant bears onus of proof - Standard of proof - Balance of probabilities - Witness evidence - Who is a worker - Employer-Employee or Employer- Contractor arrangement - Authorities - Legislation - Definition of "worker" - Australian -- 1 of 36 -- 2 Taxation Office - Taxation Administration Act 1953 (Cwlth) - Taxation Ruling TR 2005/16 - Fee-Splitting Agreement - Employee/Contractor Tool - Indicia subject to consideration when determining whether a person is an employee or contractor - Claimant was a "worker" - Claimant sustained an injury that arose out of her employment and that the employment was a significant contributing factor - Appeal dismissed - Decision of Regulator upheld - Claim is one for acceptance - Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of further application to the Commission. CASES: Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 550, Schedule 2 Taxation Administration Act 1953 (Cwlth) Stevens v Brodribb Sawmilling Co. Pty Ltd (1985- 86) 160 CLR 16 Global Plant Ltd v Secretary of State for Social Services [1972] 1 QB 139 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Curtis v Perth and Fremantle Bottle Exchange Co Limited [1914] HCA 21 On Call Interpreters & Translators v Commissioner of Taxation (No. 3) [2011] FCA 366 Abdulla v Viewdaze Pty Ltd trading as Malta Travel (2003) AIRC FB, PR 927971 Jones v Dunkel [1959] HCA 8 Oliver v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 078 ACE Insurance Limited v Trifunovski [2013] FCAFC 3 Gardiner v WorkCover/CGU (Country Metropolitan Agency Contracting Services) [2002] SAWCT 64 Australian Salaried Medical Officers Federation and Australian Capital Territory and the Australian Capital Territory Health Care Service v ACT Visiting Medical Officers Association PR958666 [2005] AIRC 525 Ellis v Wallsend Hospital (1989) 17 NSWLR 553 Explanatory Notes, Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Bill 2013 Queensland, Parliamentary Debates, Legislative Assembly, 5 June 2013, 1952 (J.P. Bleijie, Attorney-General and Minister for Justice -- 2 of 36 -- 3 Australian Government, Australian Taxation Office, Taxation Ruling - Income tax: Pay As You Go - withholding from payments to employees, TR 2005/16 Re Application By Donald Alexander Porter of An Inquiry Into An Election In the Transport Workers' Union of Australia [1989] FCA 226 APPEARANCES: Mr B. Wright of Counsel, instructed by Employer Services Pty Ltd for the Appellant. Mr F. Lippett, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent, for the hearing. Mr P. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent, for the submissions. Decision [1] Aus-Care Sports Medicine Pty Ltd as Trustee for Kelvin Grove Unit Trust (Appellant) lodged a Notice of Appeal with the Industrial Registrar on 4 June 2015 pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) released on 8 May 2015. [2] The decision of the Regulator was to set aside the decision of WorkCover Queensland (WorkCover) to reject an application for compensation from Louise Horrocks (Horrocks) and substitute a new decision to accept the application in accordance with s 32 of the Act. Relevant Legislation [3] The Legislation pertinent to this Appeal is s 11, Schedule 2 - Part 1 and s 32 of the Act: "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. (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." -- 3 of 36 -- 4 "Schedule 2 Who is a worker in particular circumstances 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 - (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." "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if - (a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or -- 4 of 36 -- 5 (b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury. Nature of Appeal [4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant. Standard of Proof [5] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities". Evidence [6] In the course of the proceedings, evidence was provided by four witnesses. [7] The Commission in deciding to précis the evidence of the witnesses and submissions notes that all the material has for the purposes of this decision been considered in its entirety. Witness Lists [8] The witnesses for the Appellant were:  Tarynn Sim (Sim); and  John Bell-Allen (Bell-Allen). [9] The witnesses for the Regulator were:  Louise McDaniel (McDaniel); and  Horrocks. Appellant Sim [10] Sim is employed by the Appellant in group administration and is also involved in the front-end management of the company. The business has 21 different facilities up and down the coast of Queensland as well as Darwin providing a range of services that includes:  sports medicine;  general practice; and  Radiology. [11] The Head Office is located in the Brisbane CBD with Sim having the overall responsibility for Human Resources (HR) for staff that included:  physiotherapists;  podiatrists;  massage therapists; -- 5 of 36 -- 6  sports doctors; and  receptionists. [12] Sim identified an Optima Sports Management form [Exhibit 1] which provided details relating to Horrocks' employment such as:  qualifications;  registration;  roster;  appointment times; and  uniforms. [13] All bookings regarding treatments are made by a receptionist in line with the hours of work determined by the individual clinician. In the case of Horrocks she undertook her own work with the ability to interact with the practice principal physiotherapist who would offer support to her and other physiotherapists. In terms of consultation charges there were set fees in place which according to Sim had some relationship to health fund requirements. The physiotherapists according to the evidence could charge a higher rate for a consultation if they chose, worked independently and there was no limit on the number of patients they could see in a day. The billing process involved the fee paid being processed through a clearing house with a fortnightly reconciliation being undertaken and an agreed percentage contained in the Fee-Splitting Agreement is paid to the clinician as part of a fortnightly reconciliation. [14] In order for Horrocks to practise as a physiotherapist with the Appellant there was a requirement for her to hold:  Registration with the Physiotherapist Board of Australia [Exhibit 2]; and  Certificate of Currency - insurance covering:  Medical Malpractice/Professional Indemnity;  Public Liability and Goods Sold and Supplied [Exhibit 3]. [15] In terms of the fee structure, Horrocks would receive 45 per cent of the consultation payment, receive as an incentive payment 10 per cent on stock sold to patients and 50 per cent of payments received for medico-legal reports. [16] A Fee-Splitting Agreement had been entered into by the Appellant (Cormist Pty Ltd - trading as Optima Sports Medicine) and Horrocks [Exhibit 4] which included at 4.2 the following provisions: "This Agreement is made between two (2) independent parties for the purpose of their mutual but independent benefit, and nothing herein contained shall entitle or expose any party to the rights or liabilities of employment." Further at 4.4: "'The Clinician' is entitled to the percentage of fees set out in the 'Schedule' hereto based on the expertise and professional ability of 'The Clinician' for the provision of service to a patient for the outcome of those services." [17] Sim's role included creating invoices on behalf of Horrocks (and other clinicians) which included making sure the Goods and Services Tax (GST) component was taken -- 6 of 36 -- 7 up correctly, as well as enabling the business to complete their Business Activity Statement (BAS) returns on time. Horrocks had her own Australian Business Number (ABN) number. There were periods of time when Horrocks chose not to attend the workplace and there were times when "she was in for a continuous timeframe". The working arrangement made no provision for any form of paid leave such as:  sick;  annual; or  personal carers. If Horrocks was at a time unwell her patients for that day would be cancelled and there was no way "anyone else could do the job on behalf" of Horrocks. [18] Sim had limited involvement with Horrocks' application for workers' compensation beyond providing to WorkCover a copy of the Fee-Splitting Agreement. On reviewing the Regulator's Reasons for Decision [Exhibit 6] which allowed for the acceptance of Horrocks' application, she had found the decision problematic regarding her status as an employee because she:  was not under a contract but party to a Fee-Splitting Agreement;  worked under an ABN; and  was not eligible for superannuation or Pay As You Go (PAYG) taxation deduction. In terms of control it was the case that no-one exercised any control over Horrocks or any of the physiotherapists. Horrocks name was listed on the Appellant's website and they provided a work area that contained a bed and minor pieces of equipment. The clinical records kept for patients attended by Horrocks were unable to be removed from site remaining the property of the patient. [19] Under cross-examination Sim confirmed that Fee-Splitting Agreement obligated the Appellant to attend to the billing and collection of fees to be put into a clearing account and to prepare a fortnightly statement but acknowledging the agreement did not provide that the invoices and statements were to be prepared on behalf of the clinician [Transcript p. 1-26]. The instruction to prepare the documents came from her Chief Executive Officer (CEO) (Bell-Allen). In respect of patient complaints that is a matter for the clinician in question with the Appellant not being in a position to impose a punishment on a clinician [Transcript p. 1-29]. Equipment provided for Horrocks' use included:  room;  examination table (bed);  oils (optional); and  towels. In effect all Horrocks had to do was to turn up on the day, treat patients and leave [Transcript p. 1-29]. [20] Sim was not present at Horrocks' interview leading up to her engagement but understood the interview had been conducted by the principal physiotherapist [Transcript p. 1-30]. Horrocks' agreement did not require her to find her own patients and required her to undertake work "within her initial dictated times that she said was -- 7 of 36 -- 8 available" [Transcript p. 1-30]. In terms of GST Sim's evidence was that Horrocks had never been required to pay such payment with those payments being made by the Appellant [Transcript p. 1-30]. Sim accepted there were limits imposed on physiotherapists as to how many patients they were able to see [Transcript p. 1-32]. [21] In re-examination Sim explained the operation of health fund payments and of the need for clinicians to provide authority for their provider numbers to be used. Clinicians were texted by receptionists to let them know what time their first payment had been booked in with payment only made for the work they do. In terms of GST not all of the billings attract GST but most did. Horrocks could change her hours of work by simply informing the receptionist of her preference. Bell-Allen [22] Bell-Allen, the CEO and Managing Director of the Appellant business gave evidence that when clinicians commenced practising at facilities operated by the business they were required to sign a Fee-Splitting Agreement. The origin of the agreement went to the introduction of the GST and all clinicians were required by the Australian Taxation Office (ATO) to have provider numbers and ABNs. The GST was applicable on some billings and exempted on others. At the end of each day clinicians are required to issue invoices [Exhibit 5] in accordance with the work analysis that is put out by the system once a fortnight. They are accredited service providers to the relevant health funds. [23] The rates paid to clinicians are of industry standards determined by actual market forces. The clinical records of patients are "technically the property of the practice" and reside on a server and should Horrocks decide to work somewhere else and a patient chose to follow her there was a code of ethics that required a patient and a clinician to sign a consent form to enable the information to be released. Clinicians are required by the Australian Health Practitioner Regulation Agency (AHPRA) to maintain professional indemnity to keep their registration. The business requires the clinician to carry their own disability income protection. [24] The Fee-Splitting Agreement sets out the format for the commercial relationship between the facilitator and the clinicians in relation to entitlements where the clinician is the service provider. The principal physiotherapists are basically there for junior people to consult with and to provide second opinions but do not have direct control over physiotherapists with regards to treatment or what they earn. The clinicians such as Horrocks are a "private practitioner, sole practitioner" with the Appellant's role being to administer and run the facility. The hours of business are controlled by the Appellant in agreement with the practitioners to support those hours. Horrocks, according to Bell-Allen, still worked some sessions, occasionally and he believed she undertook work at some other facility. [25] The Appellant is required to provide the infrastructure and support equipment necessary for the practitioners to conduct their service and uniforms are provided but there is no obligation to wear them. Income tax is not deducted on behalf of Horrocks nor does she receive a regular payment whether she works or not. Her income is generated from her billings derived for the period of the reconciliation and she receives no sick or holiday leave. -- 8 of 36 -- 9 [26] Under cross-examination Bell-Allen acknowledged items of stock sold by Horrocks had the GST component met by the business [Transcript p. 1-52]. Horrocks could if she wished dictate the fees she charged for consultations [Transcript p. 1-53]. Evidence was given of two clinicians who charged above the standard fees, each of whom had doctorates in sports medicine [Transcript p. 1-55]. A principal physiotherapist was able to question a treatment provided by a physiotherapist if they thought it was "clinically dangerous" [Transcript p. 1-55]. [27] In re-examination Bell-Allen's evidence was that the Fee-Splitting Agreement set the percentages but not the fees. Patients were generally referred to physiotherapists by general practitioners but could come off the street, although this rarely happened. A provider number held by clinician had to be specifically allocated to the address of that practice. Regulator McDaniel [28] McDaniel, an Appeals Officer with the Regulator, had the carriage of this Appeal before the Commission. In recent days she had been required to complete an employee/contractor report that required online activity through the ATO website and which was tendered in the proceedings [Exhibit 7]. The Report identified the following information that had been provided by McDaniel: "Work agreement Do you pay a company, partnership or trust (other than a labour hire firm) for the services of the worker? No Do you pay a labour hire firm for the services of the worker? No Is the worker an apprentice? No The worker's main activity or trade is: Physiotherapist Does the worker have an ABN? Yes Who does the work? Does the agreement you have give the worker the right to pay another person to do the work instead of them? No Basis of payment What is the basis for the amount you agree to pay the worker? The amount you pay the worker is based on a price per item or activity - for example a fruit picker who is paid a specific amount for a quantity of fruit that is picked, or a furniture upholsterer engaged in a furniture factory -- 9 of 36 -- 10 to cover couch frames using pre-cut fabric who is paid per couch completed. On what basis do you make the payment? An invoice you write for the worker Equipment, tools of trade, plant or vehicle Do you or the worker provide any equipment, tools of trade, plant or vehicles to perform the work (excluding incidental use)? Yes Plant and equipment and/or tools of trade needed to perform the work does not include:  a motor vehicle  tools of trade, or  heavy machinery. Who is responsible for providing the plant and equipment and/or tools of trade needed to perform the work? You the payer Rectification Is the worker liable for the cost of rectifying any defect in the work performed? Yes" [29] The decision with regards to the information provided was recorded as: "Whether a worker is an employee or contractor is determined by considering the whole working arrangement and examining the specific terms and conditions under which the work is performed. Based on the information you have provided, we consider your worker is an employee (for Commonwealth tax and superannuation purposes). This decision has been reached by applying the key indicators the courts use in determining whether a worker is an employee or contractor." [30] Under cross-examination McDaniel gave evidence that the purpose of the report was to run through the questions to see what the result would be if she had carried out the process as an Appeals Officer. The information relied upon had been obtained by reference to the file with McDaniel acknowledging she had not been required to perform these reports previously [Transcript p. 1-64]. In response to a question from the Commission on how the ATO document was considered, McDaniel replied: "I believe that they refer to the ATO rules when looking at worker in accordance with our Act, but again it's not a sole determinant that whatever that tool says is what the actual result will be." [Transcript p. 1-65] [31] McDaniel described the use of "different dropdowns" in completing the ATO employee/contractor report [Transcript p. 1-65] and confirmed that her response to -- 10 of 36 -- 11 the question "what is the basis for the amount you agree to pay the work" was the best of the dropdown options. Horrocks [32] Horrocks, a physiotherapist registered to practice in Queensland, is still employed part-time by the Appellant having commenced in February 2014. Horrocks who has an ABN and provider number was initially approached by someone from the business offering her a position and in the course of discussions was offered work on Tuesday and Thursday afternoons, subsequently she signed a Fee-Splitting Agreement. The starting time varied each afternoon depending upon how many patients there were and what times they were booked in to be treated. On the Monday and Wednesdays the receptionist would text to inform of her commencement time the next day. [33] There was no requirement to provide any equipment to undertake the role and she was paid a percentage of the set fee charged to the patient. There was a fee schedule at the front desk which identified the different fees and her name was included on the schedule. Each fortnight a pay statement was provided which matched with the fee charged to the patient. Horrocks gave evidence that she had never created any invoices and was provided with tax invoices [Exhibit 5] each month. The finish time for each shift depended on patient bookings with the clinic closing at 7.00 pm. For the work performed she received a payment into her bank account each fortnight and had never been required to pay GST on any of the money received nor was she given holiday pay, sick pay or superannuation. [34] Under cross-examination Horrocks remained unclear as to who contacted her regarding her position with the Appellant but believed it was after the "Masters" which finished in October/November 2013 [Transcript p. 1-71]. Her current working arrangements had her still at the Kelvin Grove facility on Thursdays (at her election) and worked at PhysioTec at Wellers Hill on Monday, Wednesday and Friday [Transcript p. 1-72]. Horrocks recalled signing the Fee-Splitting Agreement after having "briefly" looked at it acknowledging that it included an Appendix [Transcript p. 1-73]. At no point had Horrocks challenged the document or had a dispute under the terms of the document [Transcript p. 1-75]. Horrocks' evidence was that in terms of clause 4.2 of the Fee-Splitting Agreement she did not "understand the full rights and liabilities of employment" [Transcript p. 1-76]. Horrocks understood the requirement to maintain professional indemnity insurance and disability income insurance [Transcript p. 1-77]. [35] Regarding her absence from the Kelvin Grove facility over the past three to four weeks on a Tuesday it had been at her own election and she had worked elsewhere on those days [Transcript p. 1-77]. At the time she had requested the receptionist not to book in patients on certain days and there were other times when she requested time off that was approved [Transcript p. 1-78]. On commencement with the Appellant she was offered Tuesdays and Thursdays with her hours dependent on when patients were booked in [Transcript p. 1-79]. At other times she had "hours blocked out" to attend to matters on the basis of not being paid [Transcript p. 1-80]. On days when she was unwell her patient diary was closed off by the receptionist [Transcript p. 1-80]. [36] The working arrangements with regards to control was that the Appellant provided her with patients that she assessed and treated [Transcript p. 1-83]. Her pay went directly into her bank account and tax is paid on the earnings (later) by her [Transcript -- 11 of 36 -- 12 p. 1-84]. Horrocks appeared to have limited understanding of matters relating to ATO issues indicating she engaged an accountant to look after that aspect [Transcript p. 1-84]. She understood the employment arrangement had no "tax and super etcetera" [Transcript p. 1-85]. Horrocks did not understand whether the employment relationship was "normal or abnormal" just understanding she was to be paid a percentage and not receive annual leave and public holiday pay and that sort of thing [Transcript p. 1-85]. The reference in the agreement to "independent contractor" meant nothing to her [Transcript p. 1-85]. [37] Horrocks accepted that the Appellant had no control over her clinical performance, she was allowed to work elsewhere, advertise her services on the PhysioTec web page and provided no tools or equipment [Transcript p. 1-86]. Most patients were described as "walk in" and not referred by a general practitioner [Transcript p. 1-89]. In terms of her ABN she had claimed (for taxation purposes) courses she attended and text books she had purchased [Transcript p. 1-90]. The claim to WorkCover was made on the basis she had been injured at work and believed she was an employee [Transcript p. 1-91]. Submissions Regulator [38] The onus of proof is borne by the Appellant with the only issue for determination being whether Horrocks was a worker for Aus-Care Sports Medicine (Appellant). [39] The Regulator contended that it was fairly clear that the indicia largely pointed to Horrocks being an employee and not an independent contractor for a number of significant factors that included:  Appellant provided all of the equipment and supplies necessary for Horrocks to perform her work such as premises, ultra sound machines, exercise balls, oils etc;  Horrocks only supplied her time and did not hold herself out as being able to perform physiotherapy services effectively working as a casual employee;  Horrocks had not operated from her own premises nor did she create any goodwill;  Appellant had effectively controlled her work by sourcing clients, managing and arrangement appointments which controlled the hours she was required to work;  Appellant was responsible for the administration side of the business which included billing clients and preparing tax invoices;  ATO Employee/Contractor Tool which is utilised for the very purpose of determining a person's employment status determined Horrocks to be an employee;  Horrocks was provided with a specifically designed shirt that identified her as being an Aus-Care representative;  Appellant's website had Horrocks listed as one of the physiotherapists which the Regulator submitted equated to holding her out to the public as an employee of the business; and  Horrocks was unable to delegate her work to someone else in her place and bill the Appellant. -- 12 of 36 -- 13 Evidence [40] Questions were raised regarding the evidence of Sim with respect to the following:  was not present at the initial interview with Horrocks and the signing of documentation;  had limited knowledge of Horrocks' role and was not on site when she worked her shifts; and  evidence was at times the repeating of what Bell-Allen had informed her. [41] Sim's evidence should be given less weight than the evidence of Horrocks and where there was a conflict in the evidence of Horrocks should be preferred. [42] The evidence of Bell-Allen should be considered in the context of him not being present at the interview with Horrocks when she was engaged, had never met Horrocks and he had limited involvement with the day-to-day operations of the business at the coal-face. Where there was conflict between the evidence of Bell-Allen and Horrocks the evidence of Horrocks should be preferred particularly in regards to the circumstances of her engagement. [43] The Regulator noted that the Appellant had failed to call the principal physiotherapist (Adam Smith) who had conducted the interview with Horrocks and whose signature appeared on the Fee-Splitting Agreement. There was no apparent reason why he had not been called and it was submitted that the Commission was entitled to draw an inference that his evidence would not have assisted the Appellant. History and Background [44] The submission outlined the history relating to an injury suffered by Horrocks on 2 October 2014 which caused immediate pain in the low/central back region. The injury was reported to one of the senior physiotherapists and an application for compensation was lodged on 12 November 2014 in respect of a lower back injury. [45] WorkCover by reasons for decision (dated 22 December 2014) rejected the application finding that Horrocks had not provided sufficient evidence to establish that her employment was a significant contributing factor causing injury pursuant to s 32 of the Act. Horrocks had sought a review of WorkCover's decision and in a decision (dated 8 May 2015) the Review Unit set aside the rejection of the claim and substituted a new decision accepting the application. Relevant Legislation [46] The provisions of the Act dealing with the definition of "worker" was identified as:  s 11 of the Act; and  Schedule 2, Part 1 of the Act. -- 13 of 36 -- 14 Summary of Evidence Appellant's witnesses [47] The submission provided further commentary on the evidence given in the proceedings by Sim and Bell-Allen. In the case of Sim, evidence canvassed included:  Horrocks whilst the holder of an ABN did not create the invoice, that was done by Sim;  no annual, sick, personal carers or any paid leave was payable to Horrocks;  Sims denied having any ability to control Horrocks or that anyone else from the business had the right to control her;  clinical records of the patients remain with the Appellant and cannot be removed from site by Horrocks; and  fee-spitting agreement contains a restraint of trade clause which was more akin to an employment agreement than an independent contractor. [48] Under cross-examination her evidence included:  obligation on the Appellant to ensure that all fees payable to Horrocks were paid into a clearing account administered by the business. Horrocks had no physical involvement in obtaining payment for services rendered;  no sanction had ever been made by the business against any physiotherapist arising from a complaint;  the system of work was that Horrocks would be texted by a receptionist on the day prior to her work informing her what time to start and how many patients were booked in;  not a condition of Horrocks' employment that she find her own patients; and  all physiotherapists were required to participate in a weekend on-call roster. [49] The relevant evidence of Bell-Allen was said to include:  he had not signed the Fee-Splitting Agreement;  patient records were technically the property of the practice;  principal clinicians cannot control the physiotherapists in a clinical perspective with the individual practitioner responsible for their own patient outcomes;  Fee-Splitting Agreement confirms the infrastructure and support equipment for the physiotherapists to conduct their services; and  the wearing of the uniform was optional. [50] Under cross-examination Bell-Allen confirmed a number of issues that included:  another possible business structure would have been for Horrocks to personally invoice each patient for the services provided;  there was nothing in the Fee-Splitting Agreement that allowed for a different payment structure; -- 14 of 36 -- 15  Horrocks and other employees sell stock and supplies for which the business pays the GST; and  Horrocks could not delegate her work to another physiotherapist. Regulator's witnesses [51] The evidence of McDaniel related solely to the undertaking of the ATO Employee/Contractor Tool using the information on file. Under cross-examination she confirmed that two previous contractor tool reports had been completed by WorkCover as noted in the reasons for decision [Exhibit 6] both these reports found Horrocks to be an employee. [52] The evidence of Horrocks went to details surrounding the initial approach to work for the business and of the subsequent arrangements that included:  offered specific days of work;  starting times were varied depending on the number of patients booked in, effectively dictated by the business;  booking of patients were out of her control;  she took no equipment to work; and  played no part in the preparation of any documentation relevant to the treatment she provided. [53] Under cross-examination it was the evidence of Horrocks that:  she did not have a discount fee for patients;  she supplied no equipment;  patients were not specifically coming to her but were booked in by the business; and  patients had not followed her to a different practice. Documentary Evidence [54] The Regulator's decision was tendered by the Appellant and noted that on 24 November 2014 an ATO online tool had found Horrocks was an employee on the basis of factors that included:  her services were not through an alternative company, partnership or trust; and  she was not paid by a labour hire firm. The Review Officer was satisfied that Horrocks was a "worker" pursuant to s 11 of the Act. ATO Contractor Tool [55] The ATO tool report tendered by the Regulator (dated 6 August 2015) confirmed Horrocks' status as an employee rather than a contractor. -- 15 of 36 -- 16 Application of Law to Evidence [56] On 5 June 2013 the Queensland Parliament passed legislation (effective from 1 July 2013) which narrowed the definition of "worker" under the Act. Under the old legislation the definition of "worker" was broadly defined under the Act as "a person who works under a contract of service" and extended beyond employees. Under this definition a contractor was regarded as a "worker" if (among other things) the worker performed services under a contract for labour or substantially labour only. [57] The amending provisions now align with the ATO which defines a "worker" as 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 (Cwlth). [58] Under the new test, which is much narrower than the old test, the issue of control is still a significant factor in determining whether someone is actually an independent contractor or in fact an employee. The Regulator submits that some of the older authorities that were relevant under the old test remain relevant under the new test. These included:  Stevens v Brodribb Sawmilling Co. Pty Ltd1; and  Global Plant Ltd v Secretary of State for Social Services2. [59] The High Court of Australia in Hollis v Vabu Pty Ltd3 adopted a "multi-facet test" with the indicators of an employment relationship including:  "Control by the employer, for example instruction as to how to carry out duties, uniform and hours of work, etc. – control indicates an employment relationship.  The expression of the relationship by the parties in writing, such as calling a contract an 'Employment Contract' or a 'Service Agreement' is persuasive but not determinative.  The Terms of the contract, for example, is paid annual leave provided? - Employment entitlements such as annual leave, long service leave and parental leave are employment entitlements.  Was the worker in business on his/her own account? Were tax invoices rendered? Did the worker use their own ABN?  The worker operating an independent business indicates that the worker is an independent contractor.  Was the worker required to work exclusively for the organisation? Exclusivity of arrangement indicates an employment relationship.  Who provided the resources and equipment? An employer usually provides resources and equipment, whereas an independent contractor provides his/her own equipment.  The indicia of employment are not exhaustive and no one factor is necessarily determinative." 1 Stevens v Brodribb Sawmilling Co. Pty Ltd (1985-86) 160 CLR 16 2 Global Plant Ltd v Secretary of State for Social Services [1972] 1 QB 139 3 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 -- 16 of 36 -- 17 [60] In the present case the Commission was encouraged to give limited weight to how the Appellant characterised the nature of the relationship with the physiotherapists in the Fee-Splitting Agreement. On the reliance upon clauses 4.1 to 4.3 where the nature of the relationship between the parties is characterised as one of the principal and independent contractor it was well settled what a court will look at is the real substance of the relationship in question. In Curtis v Perth and Fremantle Bottle Exchange Co Limited4 Isaacs J said: "Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence. Many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance." [61] In the matter of On Call Interpreters & Translators v Commissioner of Taxation (No. 3)5 it was determined they were not independent contractors and despite some factual differences there were similarities in the two cases with there even being a stronger argument in the case of Horrocks who had to go to the premises of the putative employer to undertake her work. [62] In the matter of Abdulla v Viewdaze Pty Ltd trading as Malta Travel6 (Abdulla) there was a useful summary of the relevant indicia to be used in determining whether a person was an employee or independent contractor which included:  whether the putative employer exercises, or has the right to exercise, control over the manner in which the work is performed, place of work, hours of work;  whether the worker performs work for others (or has a genuine and practical entitlement to do so);  whether the worker has a separate place of work and or advertises his or her services to the world at large;  whether the worker provides and maintains significant tools or equipment;  whether the work can be delegated or subcontracted;  whether the putative employer has the right to suspend or dismiss the person engaged;  whether the putative employer presents the worker to the world at large as an emanation of the business;  whether income tax is deducted from remuneration paid to the worker;  whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks;  whether the worker is provided with paid holidays or sick leave;  whether the work involves a profession, trade or distinct calling on the part of the person engaged; and  whether the worker creates goodwill or saleable assets in the course of his or her work. 4 Curtis v Perth and Fremantle Bottle Exchange Co Limited [1914] HCA 21 5 On Call Interpreters & Translators v Commissioner of Taxation (No. 3) [2011] FCA 366 6 Abdulla v Viewdaze Pty Ltd trading as Malta Travel (2003) AIRC FB, PR 927971 -- 17 of 36 -- 18 [63] The submission provided extensive commentary on the Abdulla criteria that was said to confirm the outcome of the ATO Employee/Contractor Tool with the large majority of the criteria pointing to Horrocks being an employee rather than an independent contractor. [64] Consideration of Schedule 2, Part 1 of the Act whilst this provision has not fallen for consideration in any decision to date would assist the argument that Horrocks should be deemed a worker for the purposes of the Act. Conclusion [65] The Regulator submitted that the Appeal should be dismissed and the decision of the Review Unit (dated 8 May 2015) be confirmed. [66] The Regulator sought costs of defending the Appeal. Appellant [67] The basis of the Appeal was not that the Appellant suffered a workplace injury but rather that the Appellant was not a worker under the Act. Issues [68] It was submitted the issues in this matter were:  Was Horrocks a worker for the purposes of the Act?  If not then the claim for workers' compensation must fail.  Horrocks was operating her own business by way of a written agreement and was not an employee.  The Act provides that the test for whether a claimant is a worker or not is based on the Taxation Administration Act 1953 Schedule 1, Part 2-5.  The common law proposes a number to tests and indicia which are to be considered in each case.  The clear result of the application of these indicia is that Horrocks was not a worker under the Act. Legislation [69] Relevant legislation is s 11 of the Act: "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." [70] Schedule 2, Part 1 of the Act sets out who is a worker and who is not a worker in particular circumstances. [71] Only an individual can be a worker under the Act. -- 18 of 36 -- 19 [72] Changes to legislation in July 2013, Schedule 2, Part 1 of the Act now relevantly provide:  someone is a worker in particular circumstances (from 1 to 6). None of those deemed worker categories apply in the present circumstances;  someone is not a worker in particular circumstances (from 1 to 6). None of those deemed non worker categories apply in the present circumstances. Evidence Sim [73] Sim's evidence went to the circumstances of Horrocks' initial engagement and working arrangements beyond. There was no contest regarding Horrocks not receiving:  annual leave;  sick leave;  paid personal leave. In relation to payment, whilst some patients pay more than others, often determined by health fund scales, a percentage of the payment to Horrocks is deducted. If Horrocks was unable to attend for work, delegation in the truest sense is virtually impossible for a number of reasons including provider numbers, personal relationships and practicality of availability. It was common ground that Horrocks worked under an ABN, was not paid superannuation or had PAYG withheld. Sim confirmed she had never filled in an Employee Contractor Tool. In regards to goodwill and restraint it was the evidence of Sim that the medical records were always the property of the patient. [74] There was a principal physiotherapist in the practice but he was only ever a support person in the area of clinical physiotherapy. If there was a dispute about work there would be no sanction imposed on the physiotherapist. Horrocks was able to turn up for work at any time she wanted and it was clear that physiotherapists provide after-hours support to patients on a roster basis although there was no evidence led about Horrocks' participation. Bell-Allen [75] Bell-Allen gave evidence that the agreement between Horrocks and the business was a result of "HIC, DoHA, the Tax Office and AMA". Clinicians were required to have an ABN. The position relating to GST was dependent on whether the net income was less than $75,000 per annum. Clinicians were supposed to issue the invoices in accordance with the agreement and tax legislation however with the need for GST and its complications, there were complexities in clinicians getting it wrong, so Sim does this for them. [76] In relation to control Bell-Allen's evidence was this only limited to available opening hours. A physiotherapist could not delegate their work to a person who did not hold a provider number for that location. Uniforms were elective by the clinician. -- 19 of 36 -- 20 [77] Other matters of Bell-Allen's evidence included:  fees;  health fund controls;  no regulatory aspects of physiotherapists of the practice;  percentage paid to clinicians was set out in the Fee-Splitting Agreement; and  physiotherapy is referral based. McDaniel [78] McDaniel confirmed she had completed the ATO Contractor Employee tool on information obtained from the file. It was conceded that this was one tool that can be used in determining whether someone is a worker but also conceded that it is not determinative but was just one thing to consider along with the totality of the evidence. McDaniel had not been aware of what the other tools were. Horrocks [79] Horrocks held the following policies in undertaking her role as a physiotherapist:  Certificate of Currency for Indemnity insurance $60,000,000 in the aggregate with a limited of liability for medical malpractice of $20,000,000 and a public liability of another $20,000,000. [80] Horrocks worked at at least one other location as well as working for the Appellant business. On 11 February 2014 she executed a Fee-Splitting Agreement which identified fees to be collected and placed into a clearing account on the following basis of Horrocks receiving:  onsite revenue service - 40% of the fee;  Medico-Legal report fees - 50%; and  Out of clinic hours - 80%. The agreement does not provide a guaranteed income or hourly rate with payment made on the work performed. The restraint agreement is for three kilometres and one year. [81] The Fee-Splitting Agreement can be characterised as a percentage of fees that is charged by the facility to Horrocks for use of the facility. The facility prepares the report on which the fee-split is determined and raises invoices with a valid ABN for payment from a clearing account. At clause 4 of the agreement to which the parties agreed, states: "a. 4.1 there is no joint venture. b. 4.2 there is no employment. c. 4.3 that Mrs Horrocks, the clinician is acting on her own behalf and not as a servant or agent. d. 4.4 that the clinician is responsible for the outcome of those services. e. 4.5 that the facility company has no control in relation to the treatment, despite the fact that a senior clinician is on site for assistance." -- 20 of 36 -- 21 [82] The contract or agreement is clearly one between a facility provider and a clinician who operates their independent health practice within those facilities. Although the contract makes no mention of any responsibility for workers' compensation it is clearly implied that the parties were aware that sickness and accident insurance must be arranged by Horrocks and clause 4 excludes an employment relationship. Invoices were submitted under an ABN and a health registered Medicare provider number by Horrocks from 31 March 2014 until 31 May 2015. Evidence of Horrocks [83] Horrocks gave evidence that she had been offered Tuesday and Thursday afternoon sessions with starting times varying depending on how many patients were booked in. The agreement did not bind her to a fee structure and she varied her hours at whim depending on her circumstances. On the agreement Horrocks claimed she:  had only read the agreement briefly;  never challenged the document;  did not understand the rights and liabilities of employment; and  it provided her with work. Horrocks conceded that some days she had not worked at Kelvin Grove and had worked elsewhere on those Tuesdays. Other concessions from Horrocks included:  hours of work - finishing times could be 7.00 pm or 7.30 pm;  asked receptionist not to book in patients;  had time off from 20 December 2014 until 4 February 2015;  had commenced earlier when there was a cubical free;  when a person signed an agreement it represented a bargain had been struck;  not paid if no work performed;  was not penalised if she did not work (beyond not getting paid);  did not understand GST or concept of independent contractors;  there was no control over clinical performance;  looked after her own income tax;  had never asked another person to work on her days off; and  she claimed deductions for courses and text books. Discussion of Documents [84] In the Reasons for Decision (8 May 2015) the decision maker said that the online tool assists in determining if individuals or employers for the purpose of the PAYG holding under the Taxation Administration Act 1953 (Cwlth) Schedule 1, Part 2-5. On the Contractor Tool that was generated it was unclear who entered the data into the report. The Regulator led no evidence simply relying upon McDaniel. The only evidence that went to the Regulator's decision was a report (24 November 2012) which showed there seemed to be no consideration of any other factors than, there was no labour hire involved, no company partnership or trust and Horrocks was not an apprentice or trades assistant. [85] The only Contractor Tool which is in evidence was that of August 2015, after the decision had been made and is immaterial as it was not part of the evidence before the -- 21 of 36 -- 22 Regulator. The evidence [Exhibit 8] on the reports issued on a fortnightly basis went to the invoices created by Horrocks. Common Law [86] The issue of dichotomy is to be determined from the Common Law. If there is no contract of employment a person cannot be considered an employee and there are several groups of people in the workforce who do not have a contract of employment with a payer and are not considered to be employees. Independent contractors are excluded from the national workplace relations system and from WorkCover as a worker. The Respondent's Submissions [87] Elements of the Regulator's submission included:  conceded the Appellant provided equipment but hardly relevant for a physiotherapist;  Horrocks provided more than time, she provided expertise from three relevant degrees, skill and judgement, clinical independence and such a relationship is more likely to be that of an independent contractor;  Horrocks did not work as a casual employee and was not paid for her time;  the ATO Employee/Contractor Tool was completed by McDaniel and was a blunt tool of limited relevance and probity;  whilst a uniform was available there was no evidence led whether Horrocks wore the uniform;  a clinician's name on a website does not evidence an employee relationship; and  Horrocks' ability to delegate her work was not prohibited in the contract. [88] Further in response to the Regulator regarding Horrocks' evidence being preferred it was argued she was vague as to be either deliberately evasive, disingenuous or really did not pay much attention to anything about her practice. In any event her evidence cannot be preferred. Other matters responded to were:  days of work offered;  patient records;  restraint of trade;  control of Horrocks;  Contractor Tool - information placed into the tool and weight to be given;  fees and percentage paid;  Horrocks not understanding her contract is of no moment to her intentions; and  failure of the Regulator to call the senior physiotherapist - Jones v Dunkel7 inference should be made. 7 Jones v Dunkel [1959] HCA 8 -- 22 of 36 -- 23 Summary of the law on distinguishing employees from independent contractors [89] A number of authorities were cited regarding the law governing whether an individual was an employee or independent contractor. These included:  Hollis v Vabu Pty Ltd8;  Abdulla v Viewdaze Pty Ltd trading as Malta Travel9;  Oliver v Simon Blackwood (Workers' Compensation Regulator)10;  ACE Insurance Limited v Trifunovski11; and  Stevens v Brodribb Sawmilling Co. Pty Ltd12. [90] It was said that whether a worker is an employee or an independent contractor turns on consideration from Hollis v Vabu Pty Ltd13 with the ultimate question identified at paragraph 124(2) and (3) of the submissions: "2) The ultimate question will always be whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business on his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own. This question is answered by considering the totality of the relationship. 3) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant 'indicia' and the relative weight to be assigned to various 'indicia' and may often be relevant to the construction of ambiguous terms in the contract." [91] When considering all the "indicia" and it points one way so as to yield a clear result, the determination should be in accordance with that result. [92] The indicia in this case was:  the punitive employer exercises no control whatsoever over Horrocks - all indications are this supports - contractor arrangement;  Horrocks has a right to work for others and exercises that right - contractor arrangement;  Horrocks does advertise her services to the world at large but does work at a single location - could be indicative of employment arrangement;  Horrocks as a physiotherapist provided no significant equipment and this is not relevant - neutral;  in circumstances where Horrocks cancels patients if unwell she is free to delegate and refer to others in the practice - this is a practical difficulty ought to be considered - neutral;  any contractors have the rights to terminate with these rights arising from the executed contract only - neutral; 8 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 9 Abdulla v Viewdaze Pty Ltd trading as Malta Travel (2003) AIRC FB, PR 927971 10 Oliver v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 078 11 ACE Insurance Limited v Trifunovski [2013] FCAFC 3 12 Stevens v Brodribb Sawmilling Co. Pty Ltd (1985-86) 160 CLR 16 13 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 -- 23 of 36 -- 24  Horrocks not required to wear livery and no evidence she ever did - contractor arrangement;  no income tax deducted - contractor arrangement;  Horrocks paid purely on a percentage of fees monthly, there is no periodic payment - contractor arrangement;  Horrocks receives no paid holidays or sick leave - contractor arrangement;  Horrocks is a registered health practitioner with a bachelor degree and two Masters degrees therefore in a distinct trade - contractor arrangement;  Horrocks creates goodwill under her personal name and will have a following when she leaves the Appellant's facility - neutral; and  unknown whether Horrocks spends a significant portion of her remuneration on business expenses - neutral. Further Considerations [93] If the indicia points both ways the determination should be guided primarily by whether when viewed as a practical matter the individual in question "was or was not running his or her own business or enterprise with independence in the conduct of his or her operations as distinct from operating as a representative of another business with little or no independence in the conduct of his or her operations". [94] A number of additional authorities were cited included:  Gardiner v WorkCover/CGU (Country Metropolitan Agency Contracting Services)14;  Australian Salaried Medical Officers Federation and Australian Capital Territory and the Australian Capital Territory Health Care Service v ACT Visiting Medical Officers Association15; and  Ellis v Wallsend Hospital16 where the Full Bench stated that the following factors pointed to an independent contractor agreement:  the Claimant is a professional;  the claimant had a right to work for others and did so;  the work could be delegated;  PAYG tax was not deducted; and  no leave for holidays or sick leave. The issue of control cannot any longer be regarded as determinative with delegation and termination found to be irrelevant considerations in such an analogous medical setting. [95] The particular circumstances of this case were set out at paragraph 143 of the submissions: "1. The indicia predominantly favour an independent contractor characterisation. 14 Gardiner v WorkCover/CGU (Country Metropolitan Agency Contracting Services) [2002] SAWCT 64 15 Australian Salaried Medical Officers Federation and Australian Capital Territory and the Australian Capital Territory Health Care Service v ACT Visiting Medical Officers Association PR958666 [2005] AIRC 525 16 Ellis v Wallsend Hospital (1989) 17 NSWLR 553 -- 24 of 36 -- 25 2. The parties negotiated and executed a contract which characterises their relationship. 3. The Claimant conducted her practice substantially in accordance with this contract. 4. The Appellant conducted their business substantially in accordance with the contract by providing the facility. 5. The Clamant did not work for the Appellant, She worked for herself at this facility. She may not have a referral practice, but she was independent as to who she saw as a patient and when she saw them. 6. In the totality of the circumstances the balance is toward an independent health practitioner -who executed a contract that specifically states she is not an employee choosing to come and go on days she chooses and choosing to avail herself of a facility at her election to have a practice she could build and transport if she so wished outside the small (time and distance) restraint area. 7. The Clamant is not a worker pursuant to section 11 of the Act." [96] Orders ought were:  Appeal be granted and the claim for compensation declined; and  Regulator pay the Appellant's costs of and incidental to the Appeal. Regulator's Submissions in Reply [97] In reply, it was submitted that:  the evidence of Sim be given only limited weight;  the ATO Tool [Exhibit 7] position was misunderstood by the Appellant and is wrong in seeking to diminish the relevance of Exhibit 7 on the basis of the Appeal being a hearing de novo. The document was tendered without objection and the author was subject to cross-examination;  the ATO Tool performed by McDaniel merely confirmed the results of two ATO Contractor Tools undertaken by WorkCover and whilst the WorkCover documents were not before the Commission the results were confirmed in Exhibit 7; and  three ATO Contractor Tool tests confirmed Horrocks was an employee and it was significant that the Appellant despite every opportunity to perform the same process did not provide any evidence of doing so. [98] The submission took issue with regards to the evidence around the duties of a physiotherapist and the provision of equipment by the Appellant was said not to be a relevant consideration. This was misconceived and should be rejected for reasons that included:  evidence regarding physiotherapists only using their hands was from Sim who at best only had an "understanding";  the fact that the Appellant business provided full facilities for Horrocks to utilise in her provision of treatment to patients was ignored; and  Horrocks' evidence that the Appellant provided the following should be accepted:  cubicle;  bed; -- 25 of 36 -- 26  pillows, towels, strapping tape, measuring tools, exercise equipment and other items. [99] It was accepted that Horrocks had qualifications and a skill base but this placed her in no different position to skilled trades people like carpenters, plumbers and electricians who have been found to be employees under the Act despite operating under an ABN. There was no evidence that Horrocks held herself out to the public as being a physiotherapist, operated from her own premises or advertised her services. The issue of Horrocks having created goodwill was overstated. [100] The employment circumstances regarding the availability of cubicles and patients were factors under the control of the Appellant. The indicia all pointed to Horrocks being an employee and to suggest otherwise would be drawing a very long bow. Conclusion [101] In conclusion it was submitted the Appeal should be dismissed and the decision of the Review Unit (dated 8 May 2015) should be confirmed. [102] The Regulator sought costs of defending the Appeal. Conclusion [103] The matter for determination is the discrete point of whether for the purposes of s 11 of the Act, Horrocks was a worker on 18 September 2014 when she sustained an injury to her lower back at her place of work or in the alternate a contractor. [104] The issue of the injury sustained by Horrocks was not in the course of the proceedings resisted in any way by the Appellant and should it be the finding of the Commission that Horrocks in fact was a worker pursuant to s 11 of the Act then her claim for compensation would be one for acceptance. [105] Historically there have been numerous considerations of various Courts where they have been required to ascertain in particular circumstances the relationship between parties as to whether they were of an employer - employee arrangement or that of employer - contractor. As a consequence of these deliberations there is now a well- established body of case law pertaining to this factor upon which both parties have relied in the course of this case. These included:  Stevens v Brodribb Sawmilling Co. Pty Ltd17;  Hollis v Vabu Pty Ltd18;  On Call Interpreters & Translators v Commissioner of Taxation (No. 3)19;  Abdulla v Viewdaze Pty Ltd trading as Malta Travel20;  Oliver v Simon Blackwood (Workers' Compensation Regulator)21; and  ACE Insurance Limited v Trifunovski22. 17 Stevens v Brodribb Sawmilling Co. Pty Ltd (1985-86) 160 CLR 16 18 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 19 On Call Interpreters & Translators v Commissioner of Taxation (No. 3) [2011] FCA 366 20 Abdulla v Viewdaze Pty Ltd trading as Malta Travel (2003) AIRC FB, PR 927971 21 Oliver v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 078 22 ACE Insurance Limited v Trifunovski [2013] FCAFC 3 -- 26 of 36 -- 27 [106] There was a level of variance in the abovementioned decisions regarding the relevant indicia to be utilised when determining whether a person was an employee or a contractor with each of the case authorities adopting the necessary indicia fitting of the circumstances of the particular case subject of the hearing. [107] The legislation at the nub of the Commission's considerations in terms of this Appeal is s 11 and Schedule 2 of the Act: "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. (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." "Schedule 2 Who is a worker in particular circumstances Part 1 Persons who are workers … 3 A contractor, other than a contractor mentioned in part 2, section 4 of this schedule, is a worker if - (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." [108] The current definition of a worker passed the Queensland Parliament in June 2013 with the operative date being 1 July 2013. The Explanatory Notes regarding the amended provision stated: "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."23 23 Explanatory Notes, Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Acts Amendment Bill 2013 -- 27 of 36 -- 28 [109] In his second reading speech the Honourable J.P. Bleijie, (the then) Attorney-General and Minister for Justice, provided the following commentary: "The application of the tests in the existing definition of 'worker' have caused significant confusion around when an employer is required to hold a policy of insurance to cover a worker for a work related injury. It is noted the Housing Industry Association and the Master Builders Queensland, while preferring a definition of 'worker' based on GST transactions, consider the definition of 'worker' in the bill to provide much greater clarity on who is and who is not a worker than the existing definition and support it."24 [110] The intention of the Parliament was clearly to align the interpretation of the definition of worker to tests relied upon by the ATO who have developed an "Employee/Contractor decision tool" which allows for a person to respond to a series of questions online after which the program delivers a decision as to whether a person is an employee for Commonwealth tax and superannuation purposes or a contractor. In this case McDaniel undertook an exercise to determine whether Horrocks was an employee based upon the findings of the Employee/Contractor tool and in doing so relied upon information found in Horrocks file. The completed document [Exhibit 7] was tendered in the proceedings. [111] The Employee/Contractor decision tool document contained the following information regarding the purpose of the tool: "About this decision tool This Employee/Contractor decision tool:  provides guidance on the status of a worker - or class of workers - under the laws administered by the Commissioner of Taxation  is based on Taxation Ruling TR 2005/16 and Superannuation Guarantee Ruling SGR 2005/1 which discuss the various indicators the courts have considered in establishing whether a person, engaged by another individual or entity, is an employee within the common law meaning of the term." [112] The Taxation Ruling TR 2005/16 mentioned above references amongst other things the various indicators relied upon by the Courts in establishing whether a person is an employee or contractor and in respect of that process the Ruling contained the following passages: "A person who holds an Australian Business Number (ABN) may, depending on the circumstances, still be an employee for the purposes of section 12-35 of Schedule 1 to the TAA 1953." "The term 'employee' is not defined in the TAA 1953, therefore it has its ordinary meaning. In most cases, it will be self-evident whether an employer/employee or principal/independent contractor relationship exists. 24 Queensland, Parliamentary Debates, Legislative Assembly, 5 June 2013, 1952 (J.P. Bleijie, Attorney- General and Minister for Justice -- 28 of 36 -- 29 However, it is sometimes difficult to discern the true character of the relationship from the facts of the case as the intentions of the parties may be unclear or ambiguous, such as where the terms of the contract are disputed by the parties or are otherwise in apparent conflict. Because of these difficulties, the ordinary meaning of employee has been the subject of a significant amount of judicial consideration. These cases have discussed a number of factors that may be applied in determining whether an individual is a common law employee." "The relationship between an employer and employee is a contractual one. It is often referred to as a contract of service. Such a relationship is typically contrasted with the principal/independent contractor relationship that is referred to as a contract for services. An independent contractor typically contracts to achieve a result whereas an employee contracts to provide their labour (typically to enable the employer to achieve a result)." "The Courts have considered the common law contractual relationship between parties in a variety of legislative contexts, including income tax, industrial relations, payroll tax, vicarious liability, workers compensation and superannuation guarantee. As a result, a substantial and well-established body of case law has developed on the issue. There are often many relevant facts and circumstances, some pointing to a contract of service, others pointing to a contract for services. Whatever the facts of each particular case may be, there is no single feature which is determinative of the contractual relationship; the totality of the relationship between the parties must be considered to determine whether, on balance, the worker is an employee or independent contractor." "Consideration should be given to the various indicators identified in judicial decisions which have considered the employee/independent contractor distinction bearing in mind that no list of factors is to be regarded as exhaustive and the weight to be given to particular facts will vary according to the circumstances. Where a consideration of the indicia points one way so as to yield a clear result, the determination should be in accordance with that result."25 Fee-Splitting Agreement [113] There was no contest that the Appellant and Horrocks entered into the "Fee-Splitting Agreement" [Exhibit 4] executed on 11 February 2014 by both parties. The document (including Appendices) was of seven pages and contained a range of requirements to be met by the parties by virtue of the Agreement. [114] Whilst it is not the intention to include the full text of the Agreement in this decision, the following excerpts are reproduced:  The Facility Company shall: "2.1 Provide the following essential aspects of an allied health service to patients: Reception bookings and enquiries, supply of consumables including stationery. 25 Australian Government, Australian Taxation Office, Taxation Ruling - Income tax: Pay As You Go - withholding from payments to employees, TR 2005/16 -- 29 of 36 -- 30 2.2 Ensure that 'The Clinician' has access within normal operating hours to the premises, staff and equipment of 'The Facility Company' for such time and on such days as the parties may agree from time to time, in order for them to carry out their clinical responsibilities. 2.3 Promote the business of the facility in accordance with professional guidelines."  The Clinician shall: "3.2 Ascertain that as at the date of this agreement and all relevant times thereafter, 'The Clinician' is satisfied that the staff, premises, equipment, materials and facilities currently existing in the premises of 'The Facility Company' and owned, managed and operated by 'The Facility Company' are sufficient for the purposes of carrying out the roles of 'The Clinician' and the allied health services to be provided pursuant to the terms of this agreement…. 3.4 Be responsible for and maintain any professional indemnity, disability and income protection insurance required by 'The Clinician'."  The parties mutually agree that: "4.1 Nothing herein contained shall entitle or expose either party to any of the rights or any of the liabilities as a partner or joint venture or constitute in any way the relationship of partners or joint venture between them. 4.2 This Agreement is made between two (2) independent parties for the purpose of their mutual but independent benefit, and nothing herein contained shall entitle or expose any party to the rights or liabilities of employment. 4.3 In providing services to or treatment of a patient, 'The Clinician' shall act on his or her own behalf and not as servant or agent of 'The Facility Company'…. 4.6 'The Clinician' shall not be entitled to sell or otherwise assign the rights and obligations conferred on him or her by this agreement without the written consent of 'The Facility Company'… 4.11 'The Clinician' acknowledges that he or she shall not be entitled to any goodwill in the business of 'The Facility Company'." [115] The Appellant relied upon the Agreement to support the position of Horrocks having no entitlement to the rights or liabilities of employment as a consequence of having entered into the Agreement. Horrocks expressed an ignorance regarding the content of the Agreement or an understanding of how it impacted upon her which in some respects could be considered as disingenuous considering she is the holder of three degrees but nevertheless the Agreement "is what it is". -- 30 of 36 -- 31 [116] The Agreement required the Facility Company to provide or manage:  premises;  reception;  booking; and  enquiries. The Clinician had access within the normal operating hours of the business and on such days "as the parties may agree from time to time". Clearly the Clinician could not pursuant to the Agreement independently determine her days of work without the agreement of the employer. [117] The Agreement required the Clinician to provide a range of indemnities and insurances but absent from inclusion was any reference to workers' compensation which the Commission does not accept was an implied term of the Agreement despite the non-inclusion as submitted by the Appellant. [118] The purpose of the Agreement whilst twofold must also be considered on the name assigned to it as having the primary role of recording the remuneration arrangement of the Agreement whereby Horrocks was to receive certain percentages of the overall fee for various services. [119] An agreement entered into voluntarily as was the case in this particular instance does not necessarily have the effect of being binding in all circumstances and an agreement of this nature is not by references alone to employment entitlements, rights or liabilities a vehicle to remove such rights. In the case of workers' compensation that is a statutory entitlement enshrined in State of Queensland legalisation and quite simply not be traded away. [120] In the matter of Re Application By Donald Alexander Porter of An Inquiry Into An Election In the Transport Workers' Union of Australia26 Gray J in relations to terms of a contract stated: "A Court determining whether a particular relationship is that of employment or of some other kind can therefore only resort to the process of balancing all of the factors, or as they are called in Stevens and other cases, the 'indicia'. In truth, the result may be a matter of impression. It is unfortunate that this is so. It should not be necessary for people to obtain a decision of a court, in order to know the true nature of their relationship. Unfortunate or not, that is the case. Although the parties are free, as a matter of law, to choose the nature of the contract which they will make between themselves, their own characterisation of that contract will not be conclusive. A court will always look at all of the terms of the contract, to determine its true essence, and will not be bound by the express choice of the parties as to the label to be attached to it. As Mr. Black put it in the present case, the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck." 26 Re Application By Donald Alexander Porter of An Inquiry Into An Election In the Transport Workers' Union of Australia [1989] FCA 226 -- 31 of 36 -- 32 [121] It is my finding that the Fee-Splitting Agreement itself does not have the capacity to deny Horrocks the opportunity to submit a claim for workers'' compensation in this case on the basis of being excluded as not being a worker pursuant to s 11 of the Act. Employee/Contractor Tool [122] The inclusion of the reference to the Taxation Administration Act 1953 (Cwlth) at s 11(1)(b) of the Act allows for considerations around the definition of worker to take into account the criteria relied upon by the ATO to decide whether a person is an employee or contractor. [123] The Employee/Contractor Tool is a test that can be reasonably utilised in undertaking such a process to determine a person's status. [124] In this particular case McDaniel relying on information "on file" undertook an enquiry which produced the outcome of identifying Horrocks as an employee. The standing of this enquiry was challenged by the Appellant and in the absence of the material relied upon by McDaniel having been formally identified in the proceedings the Commission would place a lessor level of reliance on the content of the documentation [Exhibit 7]. [125] However the Commission is not prevented from applying the evidence before the proceedings against the criteria for consideration in the Employee/Contractor Report and in doing so reached the following position:  Do you pay a company, partnership or trust (other than a labour hire firm) for the services of the worker? The answer is no. The fee charged by Horrocks is processed through a clearing house with a payment in line with the agreed percentage remunerated to her on a fortnightly basis.  Do you pay a labour hire firm for the services of the worker? The answer is no. Payment arrangements as mentioned above excludes any reference to payment to a labour hire firm.  Is the worker an apprentice? The answer is no.  The worker's main activity or trade is: Horrocks is qualified in the State of Queensland as a Physiotherapist possessing the appropriate registration as required at WHEREAS(C) of the Fee-Splitting Agreement.  Does the agreement you have give the worker the right to pay another person to do the work instead of them? The answer is no. The Fee-Splitting Agreement at clause 4.6 states: -- 32 of 36 -- 33 "'The Clinician' shall not be entitled to sell or otherwise assign the rights and obligations conferred on him or her by this agreement without the written consent of 'The Facility Company'." A right exists whereby Horrocks is able to treat patients on premises owned by the Appellant but according to the Agreement cannot independently assign that right without the written consent of "The Facility Company". There was no evidence of Horrocks having assigned patient treatments during her employment.  Basis of payment What is the basis for the amount you agree to pay the worker? Horrocks is paid in the following percentage terms of the fees charged:  Hourly rate for on-site revenue 45%  Percentage External Billings Out of Clinic Hours 80%  On-Call After-Hours Phone $20 per weekend  Stock On-Sell Incentive 10%  Medico-Legal Reports 50% Equipment, tools of trade, plant or vehicle [126] The Appellant provides the premises, staff and equipment to enable Horrocks to perform the functions of a physiotherapist. These include:  a cubicle;  a treatment table; and  supply of consumables including stationery. The Appellant through the Fee-Splitting Agreement has the responsibility to provide the abovementioned items. Rectification [127] At clause 4.3 of the Fee-Splitting Agreement it states: "In providing services to or treatment of a patient, 'The Clinician' shall act on his or her own behalf and not as servant or agent of 'The Facility Company'." It is reasonable to accept based on the 4.3 content that rectification regarding treatment would be the responsibility of Horrocks. [128] On a comparison with the Employee/Contractor Report performed by McDaniel it becomes evident that the Commission's assessment had in fact mirrored to a significant extent the outcomes of Exhibit 7 and therefore it is on the balance of probabilities more likely than not that the criteria required to be considered in the ATO - Employee/Contractor Report would allow for a finding that Horrocks was an employee rather than a contractor. It is noted that there was a reliance by the ATO on "the key indicators the Courts use in determining whether a worker is an employee or contractor". -- 33 of 36 -- 34 Taxation [129] The Taxation Ruling TR 2005/16 states that: "A person who holds an Australian Business Number (ABN) may, depending on the circumstances, still be an employee for the purposes of section 12-35 of Schedule 1 to the TAA 1953." [130] In this case there is no dispute that Horrocks holds an ABN and it is also not of dispute that the employer does not withhold an amount of income tax from payments. The Commission is, on the evidence in terms of this issue, less than well placed to reach a conclusion on how this may impact on the definition of worker as opposed to contractor, however finds that in Re Application By Donald Alexander Porter of An Inquiry Into An Election In the Transport Workers' Union of Australia27 His Honour's comments regarding this issue are reasonably able to be considered as favourable in terms of the circumstances of this Appeal: "In many respects, the balancing of various factors once they are assembled is difficult. This is because many of the factors commonly relied upon prove to be of insubstantial weight upon proper analysis. For instance, a factor relied on commonly is whether or not income tax is deducted from the remuneration of a person before being paid to him or her. In the present case, reliance was placed on the fact that tax was deducted at the rate of fifteen per cent of the gross earnings of some owner drivers, pursuant to the prescribed payments scheme. No instalments of income tax were deducted from the remuneration of those persons under the pay as you earn taxation system. To place heavy reliance on this factor, however, is to assume that the payer has acted in accordance with the requirements of income tax legislation in choosing one type of deduction, rather than another." [131] The failure to deduct income tax from the payments made to Horrocks in this case do not inhibit a finding against her being a worker for the purposes of the Act. Indicia [132] There were a plethora of authorities cited in relation to the indicia's that ought to be subject to consideration when determining whether a person is an employee or contractor. To some extent the ATO has incorporated into their tool the various indicators considered by the Courts (without specifically identifying the various indicators). In the matter of Oliver v Simon Blackwood (Workers' Compensation Regulator)28 Swan DP relied upon the matter of Abdulla v Viewdaze Pty Ltd trading as Malta Travel29 as being "useful in determining the question of 'worker' verses 'contractor'." [133] For the purposes of this Appeal I intend to address some but not all of the indicia relied upon in Oliver v Simon Blackwood (Workers' Compensation Regulator)30 with 27 Re Application By Donald Alexander Porter of An Inquiry Into An Election In the Transport Workers' Union of Australia [1989] FCA 226 28 Oliver v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 078 29 Abdulla v Viewdaze Pty Ltd trading as Malta Travel (2003) AIRC FB, PR 927971 30 Oliver v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 078 -- 34 of 36 -- 35 the indicia excluded having been the subject of consideration in one form or another elsewhere in this decision. Whether the putative employer exercises, or has the right to exercise, control over the manner in which the work is performed, place of work, hours of work etc. [134] The evidence reveals that Horrocks was rostered to work on Tuesday and Thursday which were said to be the days offered at the time of engagement. There is no evidence of any standing to the contrary that Horrocks had the option of other days in lieu of the allocated days and accordingly it is the view of the Commission that the Appellant exercised control regarding the designated days of work applicable to Horrocks. Further the Fee-Splitting Agreement allowed Horrocks access to the facilities within normal operating days "as the parties may agree from time to time". As mentioned previously [paragraph 110] Horrocks could not independently determine her days of work. [135] In terms of the physiotherapy services offered by Horrocks the actual treatment by the virtue of her registration is under her control alone. [136] On the issue of control generally, in Hollis v Vabu Pty Ltd31 the Bench quoted Mason J in Stevens v Brodribb Sawmilling Co. Pty Ltd32: "…the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, 'so far as there is scope for it', even if it be 'only in incidental or collateral matters': Zuijs v Wirth Brothers Pty Ltd. Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered." [137] I am satisfied that Horrocks was the subject of control by the employer or the employer had the right to determine her place of work, days of work and hours of work which would support that she was an employee. Whether Horrocks can or does perform work for others [138] Horrocks was able to perform work for others with the evidence confirming she had undertaken work on one of her allocated days at another practice which would support the position of contractor more than employee. Whether Horrocks has a separate place of work and/or advertises her services to the world at large and whether the putative employer presents the worker to the world at large as an emanation of the business [139] There was no evidence of Horrocks having a separate place of work nor of her advertising her services to the world at large as a contractor may do. On the matter of advertising, the evidence was the Appellant featured Horrocks on their website as a physiotherapist thus presenting her to the world at large as an emanation of the business. 31 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 32 Stevens v Brodribb Sawmilling Co. Pty Ltd (1985-86) 160 CLR 16 -- 35 of 36 -- 36 Whether Horrocks creates goodwill or saleable assets in the course of her work [140] There was no evidence to support a finding that Horrocks would over time create goodwill from the business in fact the Fee-Splitting Agreement states at clause 4.11: "'The Clinician' acknowledges that he or she shall not be entitled to any goodwill in the business of 'The Facility Company'." [141] On consideration of the abovementioned indicia along with consideration of other indicia elsewhere in the decision I am satisfied it has been established subject to the requisite standard of proof that Horrocks was an employee as opposed to a contractor. Legislation [142] Under s 11(1)(a) and (b) of the Act when the evidence regarding Horrocks' employment circumstances is considered it is the finding of the Commission that she worked under a contract and for the purposes of assessment for a PAYG withholding under the Taxation Administration Act 1953 (Cwlth) Schedule 1, Part 2-5 was an employee. [143] Schedule 2 - Part 1 Persons who are workers - the provisions at 3(a) would on the evidence have been met to the extent that in the particular circumstances Horrocks could be found to be a worker. [144] At 3(b) of the Schedule, Horrocks on the evidence had not been found to have engaged in any of the following: "(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." Findings [145] On consideration of the evidence, material and submissions before the proceeding the following findings are made:  Horrocks was at the relevant time a "worker" pursuant to s 11 of Act; and  Horrocks on 18 September 2014 sustained an injury to her lower back that arose out of her employment and that the employment was a significant contributing factor to the injury. [146] The Appeal is dismissed and the decision of the Review Unit (dated 8 May 2015) is upheld with the claim by Horrocks for workers' compensation being one for acceptance. [147] The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission. [148] I order accordingly. -- 36 of 36 --