John Joseph Torrisi v Q-COMP
Date of decision:
Mr Greggery
of Counsel, instructed by Connolly Suthers Lawyers
for the appellant
Ms McClymont
of Counsel, directly instructed by Q-COMP
Key words – Builder – 47 – Injury Type: multiple
– Appeal Outcome: appeal dismissed – Significant sections considered:
s11(1) A worker is a person who works under a contract of service
schedule 2 part 1(1) A person who works under a contract or at piecework
rates for labour only or substantially for labour only is a worker
schedule 2 part 1(2) A person who works for another person under a
contract is a worker unless the person (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
Head Note
The appellant sustained multiple
injuries on 19 October 2004 when he fell from a ladder onto a cement floor
while performing building work on a shed for the putative employer.
The appellant lodged a notice of
claim for damages with WorkCover Queensland on 15 October 2007, and stated that
he was employed by the putative employer as a building labourer. By written
notice dated 18 March 2008, WorkCover advised of their decision that the appellant
was not considered to be a ‘worker’ within the meaning of section 11 of the Workers' Compensation and Rehabilitation Act
2003. The appellant lodged an application for review of this decision with
Q-COMP, and by written notice dated 24 July 2008, Q-COMP confirmed WorkCover’s
decision. The appellant lodged an appeal of Q-COMP’s
decision to the Industrial Magistrates Court.
On appeal, the Magistrate found
neither the evidence of the appellant nor the putative employer to be entirely
credible or reliable, but overall favoured the evidence of the putative
employer as more reliable than that of the appellant. The Magistrate found that
in relation to the work involving reduction of a shed, the appellant and
putative employer entered into a contractual relationship. In considering
whether the appellant worked under a contract of service, the Magistrate
accepted that the contract was for a fixed sum, and rejected the claim that the
appellant was paid at an hourly rate. The Magistrate also rejected the
submission that the appellant was under the control of the putative employer in
relation to how the work was to be performed. The Magistrate further considered
a number of other indicia to conclude that the appellant was an independent contractor
and not employed under a contract of service.
In considering whether the appellant
worked under a contract for labour only or substantially for labour only, the
Magistrate noted that the appellant provided significant tools and equipment to
perform the work, used his own vehicle to transport these items, and arranged
for a labourer to help with performing the work. On this basis, the Magistrate
concluded that the appellant did not work under a contract for labour only or
substantially for labour only. In considering whether the appellant satisfied
the test in schedule 2 part 1(2) of the Act, the Magistrate concluded that on
the weight of evidence, the provisions of section (2)(a)(i)
(ii) and (iii) should be answered in the affirmative to determine that the
appellant was not a ‘worker’ within the meaning of the Act. The appeal was
dismissed.