Daly & Q-COMP [2009] ICQ 11 (2009) 192 QGIG 119

[Extract from Queensland Government Industrial Gazette, dated 16 October, 2009, Vol. 192, No. 7, pages 119-120] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate Kevin Daly AND Q-COMP (C/2009/23) PRESIDENT HALL 5 October 2009 DECISION By a Notice of Claim for Damages dated 10 September 2007, Kevin Daly (the Appellant) made a claim to WorkCover Queensland for a work-related injury. The injury was said to have been suffered on 8 December 2004 when he fell whilst performing work at the site of the "Melbourne Hotel" in West End. By a letter dated 16 January 2008, WorkCover Queensland rejected the claim. The claim was rejected on the ground that the Appellant was not a "worker" as defined at s. 11 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). The Appellant sought a Review of that decision. By a decision of 4 March 2008, Q-COMP confirmed the decision of WorkCover Queensland. On 31 March 2008, the Appellant appealed to the Industrial Magistrates Court. By a decision dated 14 April 2009 and delivered on that date, the Industrial Magistrates Court dismissed the appeal. By an Application to Appeal dated 7 May 2009, the Appellant seeks an order of this Court setting aside the decision of the Industrial Magistrate and recognising the Appellant's entitlement under the Act. There may be some issue whether a 21 day time limit applies to s. 561(1) of the Act. As a matter of prudence the Appellant sought and was granted an extension of time. The Appellant was born on 23 November 1939. He retired from his engagement with a Shire Council in the early to mid 1990's. Shortly thereafter, he commenced to perform work for Daly Constructions Queensland Pty Ltd (Daly Constructions). It is common ground that the alter ego of Daly Constructions is the Appellant's son, Steven Daly. The company secretary is the Appellant's daughter-in-law, viz., Mrs Jacqueline Daly. The only witness in the Appellant's case was the Appellant himself. The Appellant's wife attended at the Industrial Magistrates Court. The Appellant's Counsel, in opening, contemplated the possibility of calling the Appellant's wife, but in the event, did not do so. Consistently with the decision in Jones v Dunkel (1959) 101 CLR 295, the Industrial Magistrate took the view that Mrs Daly had not been called because her evidence would not have assisted the Appellant's case. The Appellant's evidence was that he had been working for Daly Constructions for the past 14-16 years. (Steven Daly, who was called by Q-COMP, gave evidence that the work commenced in 1996.) He told the Industrial Magistrates Court that he worked as a general labourer. On occasions when he was the only person to attend at a site, he took his own tools. On other occasions, he used tools provided by his son. He had not been told by Daly Constructions that he might not work for others. In fact he had not done so for remuneration. He had performed voluntary work for other family members. He asserted that his son told him what to do, but accepted that when he declared his unavailability for work or unwillingness to perform work, his son always acquiesced. As to payment, it was the evidence of the Appellant that at irregular intervals his son would supply him with a document describing the hours which he had worked since last being paid. That document was accompanied by a cheque which paid for those hours. The Appellant would then supply his son with an invoice charging for the hours worked. The invoice was prepared by the Appellant's wife and was in the name of L. & K. Daly. It is common ground that L. & K. Daly is a partnership and that the partners are the Appellant and his wife. It is also common ground that L. & K. Daly has an ABN number and completes a BAS statement. However, the Appellant, who claimed not to understand what a group certificate was, asserted that he did not understand financial matters and left all financial and taxation matters to his wife. (One can understand why the Industrial Magistrate was attracted to the view that Mrs Daly had not been called because she would not have assisted the Appellant's case.) For completeness, I should add that the cheque was invariably* paid into the partnership account. [*On one occasion the money was paid by direct transfer. The direct transfer system was abandoned because the Appellant and his wife were not comfortable with it.] Steven Daly and his wife were called as witnesses by Q-COMP. The method of payment outlined by the Appellant was confirmed. The peculiarity of the invoice issuing after receipt of the cheque seems to have been regularised by post- dating the invoice. It was Steven Daly's evidence that Daly Constructions had no employees and that the Appellant was a sub-contractor like everyone else. It was also his evidence that his father was engaged to "do what he could". Given the Appellant's age and the family relationship, that evidence seems to me to be entirely credible. It must be squarely borne in mind that it was the Appellant who carried the onus of proof. Given the inadequacy of detail relating to the internal affairs of the partnership in circumstances in which that detail might have been provided, it seems to me to be entirely unexceptional that the Industrial Magistrate announced that His Honour was not prepared to go behind the transaction as it appeared to be. On the analysis that Daly Constructions had entered into a series of contracts with a partnership trading on its own account, a finding that the Appellant was a worker within s. 11(1) of the Act, viz., "a person who works under a contract of service", was not open. Even if that hurdle might have been -- 1 of 2 -- 2 overcome, the Appellant faced another hurdle in that the Industrial Magistrate rejected the Appellant's claim that his son told him what work to perform and (rightly) found that the Appellant chose his work. Whatever role the "control test" continues to discharge in Australian employment law, it has always been about control not over what work is to be performed, but over the manner of performance of the work. Here, the alleged employer did not have control even over what work the Appellant performed. The extended definition of "worker" at Schedule 2, Part 1 of the Act relating to persons who work under a contract for labour only avails the Appellant not at all. The evidence did not go to those issues. For example, there was no evidence that the partnership might not have engaged a third party to perform the work. If it be objected that such an approach ignores the family relationships, the inevitable rejoinder is that if more evidence about the "family" nature of the transactions had been led it may have been found that there was no intention by any participant to be legally bound. I dismiss the Appeal. I reserve all questions as to costs. Dated 5 October 2009. D.R. HALL, President. Released: 5 October 2009 Appearances: Mr A. Fitzsimons, instructed by ALC Lawyers for the Appellant. Mr S. Sapsford, directly instructed for the Respondent. Government Printer, Queensland The State of Queensland 2009. -- 2 of 2 --