SPE Pty Ltd v Q-COMP

30 March 2010, Commissioner Asbury

Mr A Herbert of Counsel, instructed by Clinton Mohr solicitors for the appellant

Mr A Fitzsimons of Counsel, instructed by ALC lawyers for the Claimant

Mr Geoff Stenson of Counsel, directly instructed by Q-COMP

Key words – Slashing and earthmoving operator - 60–physical– Appeal dismissed, Significant sections considered: –

Schedule 2 Part 1 s2 - A person who works for another person under a contract (regardless of whether the contract is a contract of service) is a worker unless the person is performing the work—

• is paid to achieve a specified result or outcome; and
• has to supply the plant and equipment or tools of trade needed to perform the work; and
• is, or would be, liable for the cost of rectifying any defect in the work performed.

Head Note

The Claimant was engaged in work operating earthmoving equipment to slash grass. On 10 April 2008 the Claimant was slashing a property owned by the Appellant. Upon slashing the said property he ran over a gas cylinder that was concealed in the grass. The slasher blades hit the cylinder, erupting the content and causing an explosion. The explosion caused severe burns to the Claimant’s body.

A Notice of Claim for Damages was submitted to WorkCover Queensland (Insurer) on behalf of the Claimant indicating that the Claimant had sustained ‘serious burns to his legs, torso and arms’ resulting in ‘residual scarring’.

The Insurer undertook the necessary investigations, and provided a written notice of their decision to accept the Claimant’s Claim for Damages, pursuant to section 11 of the Act.

The Appellant lodged a review with Q-COMP who eventually confirmed the Insurer’s decision that the Claimant was a worker for the purposes of the Act. The Review Officer decided that the Claimant was a worker as he was engaged substantially for labour only.

An appeal was lodged with the Queensland Industrial Relations Commission. The Appellant argued that the Claimant was excluded from being a worker because each of the disqualifying factors in Schedule 2 Part 1 of the Act operated with respect to the contract between the Claimant and the Appellant.

It was contended by Q-COMP and counsel for the Claimant that the Claimant was a worker because Schedule 2 Part 1 sections 2(a)(i) and (iii) did not apply. Whilst they conceded that the Claimant had to supply his own tools, it was argued that the contract was not for a specified result or outcome and the Claimant was not liable for rectifying any defect in the work performed.

Commissioner Asbury stated that the Claimant was quite clearly not working under a contract for labour only or substantially for labour. Commissioner Asbury stated that in order for the disqualifying provision in section 2(a)(i) of Schedule 2 Part 1 to operate, it will be sufficient if the contract specifies a result or outcome and the person performing work to bring about that result or outcome is paid to achieve it. Section 2(a)(i) does not require the contract price to be agreed in advance.

Commissioner Asbury determined that the Appellant had failed to establish that the Claimant was a person who was paid to achieve a specified result or outcome. The contract between the Claimant and Appellant was uncertain. The result or outcome was variously described by witnesses as slashing the block, clearing the block or slashing and tidying the block. It is clear that the Claimant could not achieve the outcome on his own and required the assistance of another contractor who was also paid by the Appellant. The Commissioner did not accept that the contract was one under which the Claimant is or would be liable for the cost of rectifying any defect in the work performed. The appeal was dismissed.

This decision has been appealed to the Queensland Industrial Court