Blue Wren Holdings Pty Ltd v Q-COMP [2013] QIRC 76

CITATION: Blue Wren Holdings Pty Ltd t/a Civic Shower Screens AND Q-COMP (WC/2012/425) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Blue Wren Holdings Pty Ltd t/a Civic Shower Screens AND Q-COMP (WC/2012/425) COMMISSIONER THOMPSON 24 May 2013 DECISION Introduction [1] On 1 November 2012 Blue Wren Holdings Pty Ltd trading as Civic Shower Screens (Appellant) lodged with the Industrial Registrar a Notice of Appeal pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 3 October 2012. [2] Q-COMP had confirmed the decision of WorkCover to accept an application from Zbigniew Rusek (Rusek) for compensation in accordance with s. 11 of the Act. Relevant Legislation [3] The Legislation pertinent to this Appeal is s. 11 of the Act: "11 Who is a worker (1) A worker is a person who works under a contract of service. (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.". Nature of Appeal [4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls to 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 proceedings, evidence was given by two witnesses. [7] The Commission, in deciding to précis the evidence of the witnesses and also submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety. Witness Lists [8] The witness for the Appellant was: • Lance Styles (Styles). [9] The witness for Q-COMP was: • Zbigniew Rusek (Rusek). Appellant Styles [10] Styles, a Director of the Appellant, gave evidence that the company manufactures shower screens, mirrors and wardrobes and once manufactured, are installed in client's premises. He first met Rusek about 14 years previous when he [Rusek] was working as a contract installer for a company called Regency, who conducted a similar business to that of the Appellant. -- 1 of 9 -- 2 [11] In or around June 2011 he was approached by Rusek seeking work as a contract installer and at no time did he seek to be engaged as an Employee. Upon engagement, Rusek was required to: • provide a vehicle; • provide tools; • transport materials to site; and • perform installations. [12] At the time of Rusek's injury, there were around 20 Subcontractors who on the work day would find job sheets in a purposely allocated "pigeon hole" which would contain the following: • name of the client; • job address; • specifications of the job; and • drawing of the job. [13] The remuneration was pre-determined by rates contained in a list headed "Civic Shower Screens and Wardrobes - Shower Screen - Mirror - Wardrobe Door - Installation Charges" [Exhibit 2]. Each Contractor had the option of accepting or not accepting any job and should a job be rejected it would be placed on the list for the next day and allocated to another installer. [14] If there was acceptance, the Contractor would load the material into their van, proceed to the site and perform the installation. Generally, the Contractor would not be required to collect payment from the client, although there were exceptions to the rule in respect of cash on delivery (COD) jobs. [15] The vehicle used to transport the material was provided by the Contractor who was required to meet all running costs, including fuel. If the Contractor was not to supply their own vehicle, then they would have been unable to carry out their duties. [16] Additionally, they were required to have all tools associated with the installation, which included: • drills; • levels; • saws; • hand tools; • tape measures; and • a silicone gun (the silicone was provided by the Appellant). [17] The Subcontractor was to be contactable on their own mobile phone. [18] Payment was made to Rusek through an entity called Top Touch following receipt of tax invoices generated by Rusek. The Top Touch entity belonged to Rusek. [19] The Appellant placed no restrictions on Rusek performing any "outside work" beyond what he was contracted to undertake and in terms of the work from the Appellant, he was entitled to have other persons carry out the installation. Uniforms were not provided, however Rusek at times had worn a "high-viz" vest from another company. Any defects in delivery or installation were undertaken by Rusek for which no payment was made. [20] In addition to the Contractors, the Appellant engaged (at the time in question) around six full-time Employees who also carried out installations as well as some casual staff. These Employees were not required to provide their own mode of transport. [21] Costs associated with travel were, according to Styles, built into the rates payable. [22] Under cross-examination, Styles could not recall whether Rusek had asked him for a job or somebody else and had commenced working for the Appellant whilst Styles was overseas on holidays. On the provision of work clothing from the Appellant, a fluorescent green singlet was shown to Styles which had the company name on it, with there being acceptance that this was supplied to Rusek by the Appellant. Styles further accepted the proposition from Counsel that Rusek, in addition to the singlet, was given three altogether plus two sleeved pull-over shirts by stating "I don't know anything he was given, but if you're saying so, yes" [Transcript p. 1-20]. -- 2 of 9 -- 3 [23] Styles acknowledged that workers were supplied with: • a "high-viz" vest; • rivets; • screws; • methylated spirits; • rags; • double sided tape (for mirrors); and • silicone. [24] With regard to work processes, the Contractors and the clients would receive a text message the day prior to the installation. The (automatic) text message would provide the client with the installers name and mobile phone number for the purposes of coordinating any problems with the installer [Transcript p. 1-23]. [25] Styles acknowledged that at times Rusek had advised that he was unable to complete his run and would have to finish the work the next day but did not accept that Rusek was contacted during the day to see how his installations were progressing [Transcript p. 1-23]. Styles did not accept that in respect of a job at Scarborough he had agreed to a daily rate of $350 for Rusek to rectify another person's work [Transcript p. 1-24]. On some occasions, due to the size of a shower screen, Rusek would be provided with assistance on site. Additionally there were times when Rusek had delivered panels to site but undertaken no installation [Transcript p. 1-24]. [26] In regards to a period in early 2012 when Rusek's vehicle was being repaired, Styles was unaware that he had been given a company Ute indicating he was "not sure" [Transcript p. 1-24]. Q-COMP Rusek [27] Rusek, currently unemployed, gave evidence that prior to working for the Appellant, his previous Employer went bankrupt leaving him without work. He indicated that he was contacted by Dave La Noel with whom he had previously worked and who was working for the Appellant, suggesting that he should contact the company about work. Rusek's evidence was that he rang Styles whom he had known as the previous owner of Regency Shower Screens and later came to the factory where he was taken around by Styles and shown the setup of the factory. A short time later he started work as a shower screen installer, which required him to provide: • a van (vehicle); • two cordless drills; • drill bits; and • a level. [28] The use of the van to him was obvious as that "was the deal" with other companies. [29] The Appellant, for the purposes of the installation work, provided: • silicone; • rivets; • screws; • methylated spirits; • double sided tape; and • shower screens and handles. [30] The evidence on the daily duties indicated that he commenced at around 4.00 a.m. when he would arrive at the factory and collect the job tickets from the allocated pigeon hole. He would load the material and drive to the job. If there were any problems associated with the allocated work there was an employee named Michael who would provide assistance. Rusek was not aware whether he was a Manager or not but suggested that "he was a person responsible in the morning for everything that was happening in the factory" [Transcript p. 1-30]. At no time had he ever rejected a job and was of the opinion that he would not be able to without causing some dispute with the owner. Rusek confirmed the process of notification to clients and himself on the day before an installation, to be that given in evidence by Styles. In the course of the employment he may have had contact with Styles during the day but according to his evidence "not many times" [Transcript p. 1-31]. In fact he could only recall one discussion apart from saying hello in the factory [Transcript p. 1-32]. [31] On the occasion that he was given access to a company vehicle, his evidence was that his van had gearbox trouble, requiring it to be off the road for seven to eight days and Styles allowed him to use his Ute for that -- 3 of 9 -- 4 period of time. On the provision of clothing supplied by the Employer, it was his evidence that he was given two T-shirts and three singlets by Michael and they had a "Civic emblem on top" [Transcript p. 1-33]. The clothing was provided a "few" months after he commenced work with the Appellant. The invoices provided by him on completion of the installations were taken from an invoice book provided by the Appellant. [32] Under cross-examination, Rusek's evidence was that he operated a business of installing shower screens and "the like" under the name of Top Touch, having an Australian Business Number (ABN) which had been provided to the Appellant [Transcript p. 1-35]. He operated a van for which he was responsible for maintaining, registering and insuring. With regards to payments he accepted that he was paid a rate for jobs allocated to him and never received payment for overtime. On jobs where he was required to remove an existing shower screen he was able to claim extra money [Transcript p. 1-36]. For rectification of his own work he received no payment if he was at fault. He used his own mobile phone and from time to time the Appellant would contact him on that number. [33] On the provisions of clothing from the Appellant, Rusek conceded that he was never instructed to wear the clothing and it was his choice whether he wore it or not [Transcript p. 1-36]. The invoices were completed by him and he was paid the total amount shown on the invoice in addition to the Goods and Services Tax (GST). The invoice would be presented each day or on some occasions the next day. On his tax returns, he listed monies that were received from the Appellant as "business income" [Transcript p. 1-37]. Further questions were put to the witness about his 2011/2012 tax return where he confirmed that the sum of $50,673 was from his business of installing shower screens with the Appellant. It was accepted that the tax return [Exhibit 7] included claims for: • maintenance of his vehicle; • maintenance of tools (purchasing of tools for carrying out work for the Appellant); • petrol for the vehicle; • telephone; • electricity (for charging power tools); and • clothing (shoes, socks, shorts, shirt). Rusek conceded that he provided his own clothing [Transcript p. 1-40]. [34] In response to a question from the Commission surrounding payment from the Appellant, Rusek's evidence was that the monies were paid into a bank account under his name. He confirmed that Top Touch was a trading name as was not a corporate entity [Transcript p. 1-41]. [35] In re-examination, Rusek's evidence was that the name Top Touch was registered in 2002 and he did not pay an annual renewal fee for the name. On rectification work of other installers, he was paid an amount of ten dollars per job. Submissions Q-COMP [36] In written submissions, the background relating to the Application for Compensation was provided which included a quotation from the Review Officer (from Q-COMP) relating to their determination that Rusek worked for labour only, or substantially labour only: "I consider the information available supports that Mr Rusek was being remunerated for the installation of each item. He was being paid of the labour or substantially labour only work he completed. There is no evidence before me that any payment was made for anything other than labour.". [37] The Appeal required consideration of whether Rusek was a "Worker". [38] The Legislation relevant to the Appeal was identified as: • S. 11 - Who is a worker; • Schedule 2 - Part 1 - Who is a worker in particular circumstances - • Persons who are workers; and • Part 2 • Persons who are not workers. [39] The submission went to some detail regarding the Explanatory Memorandum associated with the introduction of Schedule 2 into Legislation, identifying the intention to include self-employed people and independent contractors within the definition of Worker. Within the Explanatory Notes, various Case Law was cited that -- 4 of 9 -- 5 provided support for the elements that apply for determining a person's status as a Worker or otherwise. The Case Law included the matters of: • Stevens v Brodribb Sawmilling Co Pty Ltd1; • Hollis v Vabu Pty Ltd2 (Hollis); • Federal Commissioner of Taxation v Barrett3; • Humberstone v Northern Timber Mills4; and • Montreal v Montreal Locomotive Works5. [40] The submission in regards to Hollis argued that the High Court of Australia had confirmed that all of the facts of the case must be examined which included: • control over the manner in which work is done; • method of remuneration; • entitlement to paid leave; • exclusivity of service; • assumption of risk for the work done; and • wearing of the "Employer's livery" and so on. [41] There were a number of issues addressed relating to the Notice of Appeal which contended that Q-COMP had not taken into consideration (adequately or at all) certain contractual arrangements between Rusek and the Appellant and the remuneration arrangements as it related to the use of his vehicle for the purposes of transporting materials. The submission further itemised the facts relied upon to support the grounds for appeal, some 17 in all, which included: • provision of an ABN; • provision and maintenance of a suitable work vehicle; • standard rate for each job; • required to deliver material to site (and in some cases not carry out the installation); • free to work for other principals at any time; • required to obtain and maintain his own accident and public liability insurance; and • ability to refuse to accept work. [42] In reality, those material facts were said to address the issue of whether or not Rusek worked under a contract of service, but did not materially assist with the determination of whether Rusek falls within the extended definition of work contained in the Act. [43] Other authorities cited included: • WorkCover Queensland v J.M. Kelly Project Builders Pty Ltd6; and • Brett Holt Plumbing Pty Ltd v Q-COMP Review Unit7. [44] The submission dealt with those cases. [45] Further in the matter of Robinson v Q-COMP 8 (Robinson) which was an Appeal to the Industrial Court from a decision in the Industrial Magistrates Court Queensland (Robinson v Q-COMP9), Magistrate Lee, the submission addressed the reasoning relied upon which determined in that matter that Robinson was not a worker in accordance with the Act and which was not disturbed in the Appeal by President Hall. [46] In this matter it was said that there was no compelling evidence that the notional allowance made for recompense for supply of vehicle and running costs was anything other than a motor vehicle allowance or travelling allowance that would ordinarily be paid to a worker. In all the circumstances Rusek was working for piecework rates for labour only or substantially labour only. 1 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] 160 CLR 16 2 Hollis v Vabu Pty Ltd [2001] HCA 44 3 Federal Commissioner of Taxation v Barrett [1973] 129 CLR 395 4 Humberstone v Northern Timber Mills [1949] 79 CLR 389 5 Montreal v Montreal Locomotive Works [1947] 1 DLR 161 6 WorkCover Queensland v J.M. Kelly Project Builder Pty Ltd [2003] QIC 131 7 Brett Holt Plumbing Pty Ltd v Q-COMP Review Unit [2005] 178 QGIG 255 8 Dean Robinson v Q-COMP (C/2009/30) - Decision http://www.qirc.qld.gov.au. 9 Robinson v Q-COMP MAG 32149/08 -- 5 of 9 -- 6 [47] The evidence overwhelmingly supports a finding of fact that Rusek was a Worker and the Appellant had not discharged the burden of proof to allow the Appeal to be upheld. [48] Additional oral submissions expanding on the content of the written submissions were made with argument around the authorities of Reliable Couriers v Q-COMP10(Reliable Couriers) and Robinson addressed at some length. It was the position of Q-COMP that Rusek's case was the same as Reliable Couriers and was different from Robinson's case in that Robinson was not only installing the metal work in question but manufacturing the product in his own businesses operated out of premises rented by him for that purpose. [49] In conclusion, it was stated that: • the Appeal be dismissed; • the decision of the Q-COMP Review Unit dated 3 October 2012 be confirmed; and • the Appellant pay Q-COMP's costs to be agreed or failing agreement to be the subject of further application to this Court. Appellant [50] The submission for the Appellant was that the matter to be determined in the Appeal was a "short point" with there being no need to address s. 11(1) of the Act as that refers to a person who works under a contract of service which simply does not arise in this matter. The question in this matter is whether Rusek is a Worker by virtue of the extended definition in Schedule 2 of the Act. [51] The fact that Rusek was required to provide a fully maintained vehicle to transport the items to the site and then carry out the installation is consistent with the authority of Robinson and for the purposes of Schedule 2 - Part 1-2 that he was not a Worker. In Robinson, the Magistrate concluded that the person was not a worker going on to state, at paragraph 72 of the decision "As to his remuneration, no tax was deducted from his payments. He was not given pay slips. He was not entitled to holiday or sick pay, though he was paid superannuation.". [52] In this matter, there was no evidence that Rusek was paid superannuation, however it was clear on his own evidence that he did not receive holiday pay, sick pay and claimed his payment through an invoice bearing his ABN. He was also paid an amount for the GST. It was argued that nothing turned on the use of the business name Top Touch. Rusek provided a substantial piece of equipment in the form of the vehicle that he used to deliver the items to site and then install them. [53] In the decision of President Hall, in Robinson, the submission went to paragraph 8 which was described as the important passage where it was stated "Quite apart from the circumstance that the Appellant had to pay the rent for the shed from the monies paid to him". Apart from renting the shed he also paid for the Utility which was used to transport the gates to the intended destination. The conclusion was that it was not open to find that Robinson was working for substantially labour only, even if the shed was set aside, as he had to provide and maintain the Utility for transport purposes. [54] Rusek's evidence was that he had to provide a vehicle and if he did not then there was no job. Putting aside that there was a slight period of a few days when the Employer provided transport whilst his vehicle was off the road, for almost the entire period of employment in order to carry out the job he provided the vehicle. It did not matter what portion of the set rate he was paid was for the van as the rate encompassed picking up items, delivering them to site and then installing those items. [55] On whether Rusek was able to reject a job or not was not of issue because he was not an Employee in the ordinary sense and the point really is that he provided the vehicle. [56] The authority of Reliable Couriers according to the submission, was inconsistent with what happened in Rusek's work environment. In the case of the couriers subject of the Reliable Couriers decision, they were contactable through the day, through the use of a sophisticated radio network and were allocated various jobs in the course of the day with no certainty of what their job would be whereas Rusek's evidence was that he was clear at the beginning of the morning what work he was allocated for the day. More importantly was the requirement for the couriers to maintain radio communication throughout the day whilst Rusek had his own mobile phone and not an Employer supplied and operated communication system. [57] Based upon the decision of Robinson, Rusek simply could not be a Worker for the purposes of Schedule 2, Part 1-1 of the Act and Schedule 2 - Part 1-2 is also a difficulty for him in that he was paid to achieve a specific result or outcome and that he supplied plant and tools of trade needed to perform the work. The evidence of 10 Reliable Couriers v Q-COMP [2005] 180 QGIG 130 -- 6 of 9 -- 7 Rusek on the matter of rectification of any defect associated with his own work was that he had to go back and fix it for which he would not be paid additional monies. Conclusion [58] The matter for determination is whether, for the purposes of the Act, Rusek was a Worker, therefore entitled to benefit from a claim for Workers' Compensation for a personal injury arising out of, or in the course of, employment, if the employment was a significant contributing factor to the injury. [59] In terms of s. 11 of the Act, I accept the argument of the Appellant that Rusek was not a Worker by virtue of being a person who works under a contract of service and this is supported by the evidence of by Styles and Rusek in their descriptions of the terms of employment. However, the provisions of Schedule 2 provide the legislative framework upon which the employment circumstances are defined for persons who are Workers or not Workers aside from the provisions of s. 11 of the Act. [60] The relevant sections of Schedule 2 in terms of Rusek's employment status are: "Part 1 Persons who are workers 1 A person who works under a contract, or at piecework rates, for labour only or substantially for labour only is a worker. 2 A person who works for another person under a contract (regardless of whether the contract is a contract of service) is a worker unless - (a) the person performing the work - (i) is paid to achieve a specified result or outcome; and (ii) has to supply the plant and equipment or tools of trade needed to perform the work; and (iii) is, or would be, liable for the cost of rectifying any defect in the work performed…". [61] The arrangement between the Appellant and Rusek in respect of remuneration was in the form of installation rates that were paid for the differing types of installation carried out by him. They were in written form, tendered in the proceedings [Exhibit 2] and included for example the following rates in respect of shower screens: TRADE HI-RISE SHOWERSCREENS Euro - Front Only Up to 3 panels $25 $28 Euro - Front & Side Up to 3 panels $28 $32 Euro - Splayed Hob Must be braced $40 $50 Extra Panel $5 $5 Euro Platinum Front & Side Up to 3 panels $35 $45 Euro Platinum Splayed Must be braced $45 $55 Framed Fix & Swing Must be braced $18 $23 Panel & Rod - Framed Must be braced $15 $20. [62] There was a component for travel outside of the general Brisbane area which was identified also in the payment structure: TRAVEL Toowoomba Per Trip $80.00 NA Sunshine Coast Per Trip $80.00 NA West of Ipswich Central Per Showerscreen $10.00 NA South of Chinderah Per Showerscreen $10.00 NA. [63] In terms of travel costs, apart from those identified they were, according to the evidence of Styles, built into the rates in the remuneration schedule. [64] The evidence points to Rusek in accepting the jobs, being paid to achieve a specified result or outcome as a result of performing the set installation. -- 7 of 9 -- 8 [65] In evidence, Rusek confirmed that he was required to provide a vehicle which he described as being obvious to him as that was the "deal" also with other companies. There was also a requirement to provide work tools that included: • cordless drills; • drill bits; and • levels. It was also evidenced (by Styles) that materials were provided by the Appellant that included: • a "high-viz" vest; • rivets; • screws; • methylated spirits; • rags; • double sided tape (for mirrors); and • silicone. [66] The evidence of Styles was also that Rusek had to, as part of the employment, provide a vehicle, tools, transport materials to site and then perform the installations. There were occasions when Rusek had transported materials to a site but was not required to undertake the installation. [67] In Hollis, McHugh J at paragraph 71 in respect of employees who provide their own motor vehicles, stated: "If the couriers were confined to bicycle riders, there would be much force in the contention that, on the classical tests, they were employees. That is because the couriers were subject to extensive control and direction - always a strong indication that the worker is an employee. But the couriers included those who provided their own motor vehicles. Given the course of authority in this Court concerning workers who provide their own equipment, it seems impossible to say that those couriers who provided their own motor vehicles were employees. The right to supervise or direct the performance of a task cannot transform into a contract of service what is in substance an independent contract and, when a person has to provide equipment such as a motor vehicle, the conventional view is that the person is not an employee. In principle, there can be no distinction between those couriers working for Vabu who provide their own bicycles and those couriers who provide their own motor vehicles.". [68] In the Reliable Couriers decision, President Hall stated, in respect of Employees who provide their own motor vehicles for work: "Notwithstanding the decision in Hollis v Vabu Pty Ltd, op cit, the conventional view continues to be that the person who has to provide expensive items of equipment such as a motor vehicle is not an employee, compare Hollis v Vabu Pty Ltd, op cit at paragraphs 22 and 47 per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ and para 50 per McHugh, Green v Q-Comp (2005) 178 QGIG 75 at 77 and Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 at para 31…". [69] In the Robinson matter, President Hall once again dealt with the provision of a vehicle (by Robinson) to be used in the course of performing work stating: "Quite apart from the circumstance that the Appellant had to pay the rent for the shed from the monies paid to him for his labour, he also paid for the utility which he used to transport the gates to the intended destination. A conclusion that the Appellant was working substantially for labour only, was not open.". [70] In the case of Rusek, it is not of question that he provided a vehicle for the purposes of his employment and was solely responsible for meeting all maintenance and running costs. [71] As was the case with Robinson it is not open, based on the issue of the provision of the vehicle by Rusek, to find that for the purposes of the Act he was working for substantially labour only. [72] The evidence before the proceedings in respect of defective work that may have come to notice following an installation performed by Rusek was that he would undertake such rectification whilst receiving no additional payment. -- 8 of 9 -- 9 [73] There were a number of other considerations to be made in respect of the working arrangements under which Rusek was engaged, which included: • the option to accept or not accept any job that was offered; • there was no restrictions on Rusek performing "outside work" for other persons; and • Rusek was entitled to engage other persons to undertake the work offered by the Appellant. [74] Whilst there was no evidence that Rusek availed himself of any of the abovementioned arrangements, the Commission is satisfied on the evidence that they were options that were genuinely available to him had he chosen to go down that path. [75] On the matter of payment, it was not disputed that he would provide an invoice for the work performed and that the payment would be made in accordance with the rates identified in the installation rates. I accept the proposition of the Appellant that nothing much turns on the fact that Rusek used the business entity Top Touch in the invoicing process. [76] In terms of taxation, Rusek was paid GST for the work he performed and had the responsibility to remit such payments to the Australian Taxation Office (ATO) as well as to make tax instalments to the ATO for monies received from the Appellant for work performed by him. [77] There was no evidence to support that Rusek had access to entitlements generally received by Employees in the form of: • holiday pay; • sick leave; and • superannuation. [78] On the matter of clothing, it would seem that there was clothing provided that had identification markings which identified the Appellant business and that whilst Rusek had at times chosen to wear such apparel, I accept that he had the option to not wear the clothing and on occasion exercised that option. [79] The level of communication between Rusek and the Appellant in the course of the work day was at best strictly limited with Rusek's own evidence being he could only recall one occasion where the Appellant had contacted him by ringing on his mobile number which Rusek funded. There was no reasonable comparison to be made between the circumstances of Rusek and the persons mentioned in the Reliable Couriers decision. Finding [80] The Commission, having considered the evidence, material and submissions, finds that the Appellant has established, on the balance of probabilities, that Rusek, through the provision of a fully maintained vehicle for the purposes of performing work offered by the Appellant was not, as such, working for substantially labour only and therefore in accordance with the provisions of Schedule 2 - Part 1 (2)(a)(ii) of the Act was not a Worker. [81] The Appellant, relying on the appropriate standard of proof, was also able to establish that the provisions of Schedule 2 - Part 1 (a)(i) and (iii) of the Act were enlivened to the extent that Rusek does not meet the requirements of Schedule 2 - Part 1-1 that he is "A person who works under a contract, or at piecework rates, for labour only is a Worker". [82] As a consequence of those findings, Rusek is found not to be a Worker for the purposes of s. 11 and Schedule 2 of the Act. [83] Therefore the Appeal is upheld and the decision of the Q-COMP Review Unit of 3 October 2012 is set aside and Rusek's Application for Compensation is not one for acceptance. [84] The matter of costs is reserved. [85] I order accordingly. J.M. Thompson, Commissioner. Hearing Details: 2013 22 April 24 May Released: 24 May 2013 Appearances: Dr M. Spry of Counsel, instructed by Ms T. Knight of Cooper Grace Ward for the Appellant. Mr S. Gray of Counsel, instructed by Q-COMP. -- 9 of 9 --