IN THE MAGISTRATES' COURT OF VICTORIA / (Not) Restricted

AT MELBOURNE

Case No. B10409928

Joel Masters / Plaintiff
v
GA and JD Brown / Defendants

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MAGISTRATE / Mr B. Wright
WHERE HELD:
DATE OF HEARING: / 2 December 2011
DATE OF DECISION: / 14 December 2011
CASE MAY BE CITED AS: / Masters v Brown
MEDIUM NEUTRAL CITATION:

D E C I S I O N

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Catchwords:

Workers Compensation – Rejection of Claim – Whether Plaintiff Carpenter was a “Worker” or “Deemed Worker” – Accident Compensation Act 1985 (Reprint No. 15) ss 5, 8 and 9

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APPEARANCES: / Counsel / Solicitors
For the Plaintiff / Mr C Hangay / Slater and Gordon
For the Defendant / Mr M Richards / Lander and Rogers
!Undefined Bookmark, I

HIS HONOUR:

1Mr Masters is a qualified carpenter who severely cut his right hand on a drop saw on 19 April 2010 (“the incident”). The only dispute at issue in these proceedings is the nature of his work relationship with the defendants.

2Mr Masters' primary position is that he was a “worker” employed as a carpenter. Alternatively, he submits that he is a “deemed worker” pursuant to s.8 or s.9 of the Accident Compensation Act 1985 (“the Act”) as set out in Reprint No. 15.

3The defendant submits that at all times he was a contractor falling outside the provisions of the former s.8 and s.9, and is not a “worker” or “deemed worker”.

4Both Mr Masters and Mr Geoff Brown, who is the younger of the defendants, gave evidence before me.

5Mr Masters qualified as a carpenter and gained his ticket in 2004. He had his own utility vehicle and some tools for carpentry work. He was 25 years old at the time of the incident.

6Prior to performing duties for the defendants, he worked for about three or four builders as a carpenter working for what he described as wages, annual leave and other benefits and otherwise work in circumstances where he paid his own tax and did not receive superannuation, annual leave or other benefits.

7He did not have any business name and worked alone. There was no partnership with his domestic partner or anybody else. He did not employ anybody. He agreed that he claimed vehicle expenses and depreciation as well as tool depreciation in his tax returns describing himself therein as providing, "carpentry services".

8He had been looking for work in early 2010 and found out through a mutual acquaintance that the defendants had plenty of work. He telephoned them and arranged to meet them at their home in about late January or early February 2010. He had an interview in their kitchen.

9The defendants are respectively a son and father. Mr John Brown is a supervisor for Simonds Homes. In that capacity he allocates works to the business effectively run by his son Mr Geoff Brown, who is not a qualified carpenter but has learned carpentry through his father.

10Simonds Homes builds new houses up to the lockup stage. Mr John Brown would allocate work to his son to undertake fit out work on these new homes. This work involves such aspects as doors, architraves and eaves work. Both Mr Masters and Mr Geoff Brown agreed that Simonds Homes required the work always to be done to a high standard. Their work always complied with that requirement.

11At the initialinterview, the defendants asked about Mr Masters' qualifications and experience. They told him they had plenty of work for a year or so. It was agreed that he would be paid $33 per hour, which both witnesses agreed was the "standard rate" for a carpenter. Mr Geoff Brown said he would pay that rate for an employee, though heformally denied employing the plaintiff.

12There was no discussion about tax or leave. It was assumed that Mr Masters would pay his own tax and there would be no paid leave.Mr Masters did not charge any GST in respect of the amounts paid by the Browns.

13Mr Masters said that Mr Geoff Brown would ring the night before if work was available. Alternatively, he would be told so on site. Occasionally, he would also ring Mr Geoff Brown.

14Work was not available every day and was dependant on the jobs availability and more importantly, delivery of materials. All these materials were ordered and paid for by the defendants.

15Mr Masters said the prior nightly phone calls were shared about 50/50. Initially Mr Geoff Brown denied telephoning Mr Masters at all on the nights before, but later agreed he "may" have telephoned Mr Masters at times. Again, Mr Masters stated that he would always go to Mr Brown's house at about six o'clock and then would either travel with him, or take his own car.

16Mr Geoff Brown denied he drove Mr Masters about half the time. This was generally dependant on whether Mr Geoff Brown had to go to a separate building site later and that was thus not able to take Mr Masters back from the job.

17Like all carpenters Mr Masters had a large number of tools, including hand saws, tape measures and even a drop saw and nail gun. However, if he went to a site in Mr Brown's car he would only take his own smaller tools and otherwise use Mr Brown's tools, which were mainly larger tools on site such as the drop saw, nail gun and ladders.

18Mr Masters would always be told by Mr Geoff Brown what work he was to do, for example, whether he was to do doors, architraves or any other task. When he finished a particular task or tasks, he would ask Mr Brown what to do next. If he was on the site alone he would always ringMr Brown and ask whether there was anything further to do before he left.

19Mr Brown said he expected Mr Masters to do the work himself and not get anyone else to do it for him. He expected Mr Masters' work to be of a high standard. He said Mr Masters complied with that standard. Otherwise, there was no supervision.

20Mr Masters would invoice weekly for the number of hours and days at the rate of $33 per hour, upon which he would be paid. There were two exceptions. Firstly, Mr Masters said he was paid cash for the first two weeks without the invoice, for work commencing 15 February 2010 in which he worked "almost every day". This was not disputed in cross-examination.

21Mr Geoff Brown said he never paid without an invoice and did not pay any cash, always using a cheque. However, he conceded he did not know whether Mr Masters worked for the two weeks from 15 February (as stated in the claim form), which was the two weeks prior to the first agreed invoice date 24 February 2010.

22The only other exception was that it was agreed he was paid for two weeks at the end of the period immediately up to the date of the incident without an invoice. Otherwise, it was agreed that Mr Masters put in six invoices specifying 14 days work

23He took one week prearranged leave without pay by the defendant during the relevant period as well. Thus, allowing for that week leave and public holidays, Mr Masters worked between two thirds and three quarters of the possible working days between 15 February and the date of injury on 19 April 2010 (“the relevant period”).

24Mr Masters stated, and Mr Geoff Brown did not disagree, that he did not work for anyone else in the relevant period.

25Mr Masters said he would not have done so without checking with Mr Brown first as he did not want to leave him in the lurch. Mr Brown said that he could have worked for someone else if he had wanted to.

26It seems that Mr Masters worked for a full day on most, if not all days, he actually worked for the Browns. Based on the hours specified in the invoices, it is hard to see there were any part days worked at all in that period.

27Work was never conducted at weekends. Mr Brown would be working either on the same site, or at another site where he would be contacted by mobile telephone by Mr Masters.

28Both agreed that Mr Masters had breaks during the day. Mr Masters said it was morning smoko and half an hour for lunch, though Mr Brown said that he could have a break whenever he liked. I found that difficult to accept as flat hours and hourly rates were charged in the invoice.

29The defendants' case was not assisted by the fact that Mr Geoff Brown came to court without any records whatsoever. At times, he was vague in his evidence. At other times, he made general statements, which he later retracted or varied in cross-examination.

30I do not propose to repeat the classic testsand case law in relation to the differentiation between employee and contractor. In a very recent case of Elazac Pty Ltd v. Shirreff[2011] VSCA 405 (delivered on 1 December 2011), the Court of Appeal referred (at para. 30) to the classic cases such as Stevens v. Brodribb in 1986 through to Hollis v. Vabu in 2001.

31As the Court of Appeal pointed out, later authorities set out the “control” test itself is not determinative as it once was. The issue of “control” is one of a number of possibly relevant factors, though it is obviously still an important one.

32Indeed, as submitted by counsel for the defendants one must look at the totality of the relationship between the parties. The Court of Appeal in ElazacPty Ltd v. Shirreff then went on to list eight relevant factors in determining the relationship between the purported employer/head contractor and employee/ subcontractor.

33I will now consider those eight aspects in detail. Firstly, Mr Geoff Brown supervised Mr Masters' performance of work in that Mr Masters was required to work each job or task to a specific high standard. He was interviewed beforehand as to his ability and experience in working to that standard. Ina manner of speaking it could be said that he was not told how to hammer a nail, but was required to have the nail in a certain place and standard. This would be no different to a builder dealing with employee carpenters on a normal building site.

34The Browns were clearly interested in always ensuring that Mr Masters' work was done to a high standard to preserve the relationship with Simonds Homes.

35Clearly, Mr Masters was to provide his own work and skill. Rather than supply of goods, he purchased and provided no materials whatsoever. He used the materials supplied bythe Browns or Simonds Homes. He used his own small tools on most occasions. On the occasions he was driven by Mr Geoff Brown, he would use all other tools, especially the larger tools and equipment, belonging to the Browns.

36Mr Masters could only work the hours and days the same as Mr Brown. He rang Mr Brown before leaving each site and asked him for any further work if Mr Brown was not on the same site. Neither worked at weekends. Although he could leave early if desired, with the agreement of Mr Brown, this was used sparingly at the very least.

37Clearly, the method of payment being an agreed hourly rate for actual hours worked is a significant pointer to Mr Masters being an employee.

38There was no payment on the basis of output or production. Indeed, Mr Brown said that he would pay the same rate for an employee. I find that Mr Masters worked full time being about eight hours on most, if not all, of the days worked. The only reason Mr Masters did not work any day during the relevant period was the limitation of houses not being completed to lockup stage and the availability and delivery of materials on site.

39He and Mr Brown worked approximately the same number of hours and commenced each day at almost the same time. Obviously, the lack of income tax deductions and payment of leave and superannuation is more, though not completely, an indication of a contractor relationship.

40Non-payment of leave would be consistent with casual employment. Equally, the non-payment of superannuation and the non-deduction of taxation instalments may well reflect the view taken by a putative employer about the status of a worker (see, Macro Investments v. Amor(2004) SAIR Comm. 9).

41Mr Masters employed nobody, and indeed never had. He would not have been allowed to delegate or get anybody to do the same tasks for the Browns in his place. Mr Geoff Brown made this clear. Mr Masters did not work in partnership with any tradesman, or even his own domestic partner as a bookkeeper, which is not unusual for contractors.

42Finally, there is the question as to whether Mr Masters considered himself to be an independent contractor. Mr Masters did not appear to appreciate the distinction in his own evidence, talking in terms of whether he was paid leave or whether he was not, which he did on different occasions. Obviously he was short of work and looking to earn money.

43I accept his evidence that he saw Mr Brown as providing regular or relatively regular work for a year or so. I accept that he did not contemplate working for others. He did not look for other work, despite the limited number of days he actually performed for the Brown's being of some significance. During the relevant period, he did not work for the Browns on about a quarter to a third of possible work days.

44The fact that his work for the Browns was less than five days per week on average does not make it a contractor situation. Neither, was the fact that he was a qualified carpenter and Mr Brown was not (see,Elazac v. Shirreff(supra) at para. 23).

45I am satisfied the relationship of Mr Masters and the Browns was one of employer/employee for the reasons I set out above, in considering the totality of his relationship. The fact he did not work every day, or occasionally for less than a full day, is consistent with casual employment as well.

46If I had found Mr Masters to be a contractor I believe that there would have been difficulty in determining him to be a “deemed worker” pursuant to ss.8-9 of the Act at the relevant time. If he had been regarded as a contractor to these defendants then he clearly was working as a carpenter in a usual trade or otherwise, not taking work outside the scope of that business or trade. Similar considerations would exclude him if he was a contractor from s.9 because of s.9(1)(e)(v).

47However as I have stated, I have already determined that Mr Masters' was a worker as defined in s.5 of the Act, insofar as his relationship with the Browns were concerned.

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VCC:..JAG / 1 / DECISION