Facts
In Cagney v D&J Building Contractors Pty Ltd [2024] QDC 162, the District Court of Queensland considered the question of whether the injured person was a “worker” under s11 of the Workers’ Compensation and Rehabilitation Act (“WCRA”).
The injured person lodged a worker’s compensation claim after suffering injury falling from a ladder on a building site. The employer, D&J Building Contractors Pty Ltd did not agree the injured person was a worker and sought a review of WorkCover Queensland’s decision to accept the compensation claim. The employer argued the injured person was engaged as a contractor for a single day’s work on a cash in hand basis. The Workers’ Compensation Regulator confirmed WorkCover’s decision that the injured person was a worker. The employer did not appeal the decision and compensation was paid.
After the compensation claim concluded, the injured person served a Notice of Claim for Damages. At that point, WorkCover defended the claim on the basis the injured person was not a worker under the WCRA. The injured person argued that WorkCover should be estopped from disputing he was a worker.
Decision
The District Court of Queensland ultimately ruled WorkCover was not estopped from asserting the injured person was not a worker and found, in fact, he was not a worker.
Estoppel?
The Court highlighted three key factors that need to be met for the employer to be estopped from disputing whether the injured person was a worker.
First the question of whether the injured person is a worker needed to be the same question that had previously been decided. This was not a point of concern for the District Court.
Secondly, the original decision of whether the injured person was a worker needed to be a judicial decision that was final in nature. The District Court found the decision by the Workers’ Compensation Regulator to confirm WorkCover’s decision was not a judicial decision that was final in nature.
Thirdly, the parties to the original proceeding needed to be the same as the second proceeding. In this case, the review decision was between the employer and the Regulator whereas the damages claim was between the injured person and the alleged employer/WorkCover.
Having determined that the issue of ”worker” could be re-agitated in the damages claim, the Court had to decide if the injured person was, or was not, a worker.
Worker?
To be considered a “worker” under s11 of the WCRA, the injured person needed to work under a contract and be an employee for PAYG withholding purposes. In the absence of a written employment contract, the totality of the employment relationship is considered to determine the terms of employment. The Court was satisfied the relationship between the parties did not amount to an employment relationship due to the limited terms and duration.
The Court used the recognised “own business/employer’s business” dichotomy to conclude the injured person was engaged in contract for services (independent contractor) and not a contract of service (employment relationship). Further, in deciding the ‘central issue’ of whether or not a person is a “worker“, the Court considered the injured person’s level of control over the work and control over how the work was to be completed.
The Court further considered the two-tiered relationship between an employee and employer; where at the first tier there is an exchange of work for renumeration and at the second tier, there is a promise to employ and be employed.Â
The Court relied on the following facts in finding the employment relationship was a contract for services and the injured person was not a “worker” as defined under s11 of the WCRA:
- The injured person described himself as a self-employed builder who charged an hourly rate, with GST, to those who contracted his services and as a qualified tradesperson contracting in his own right offered to perform work on the building site;
- The mutual obligation between the parties was for the injured person to provide his professional trade skills, for one day only and to be renumerated a reasonable amount to be paid in cash;
- The injured person was not considered an employee for the purposes of PAYG withholding tax, as the agreed payment arrangement was to be paid in cash with no tax withheld; and
- The injured person had control over how the work was to be performed.
On the above basis, the Court found the injured person was not a worker.
Relevance
This case highlights that findings of the Workers’ Compensation Regulator are not binding in a subsequent damages claim. Issues that are considered in the compensation claim such as whether the injured person is a worker, whether work is a significant contributing factor to an injury, whether the injury is medically caused by the work incident or whether the injury is sufficiently connected to the state of Queensland, can all be reassessed during a later damages claim.
