Workers Compensation/Workplace – CBD Law

Contractor or Employee?

Hillary Morris — Sat, 01 Apr 2017 00:36:43 +0000

Outsourcing is a major feature of today’s labour market and many companies and businesses hire independent contractors with the intention of avoiding a whole raft of employment obligations including annual leave, long service leave, sick leave and statutory payments such as workers compensation, superannuation and payroll tax.

But just because an employer has outsourced its services and personnel by engaging a contractor, does not mean they have outsourced all their responsibilities.

Genuine independent contractors run their own businesses and control how and when they work and for whom. In contrast employees are usually subject to control by their employer as to how, when and where their work is performed. Their rate and method of pay is controlled by their employer and cannot pay someone else to perform their work.

However, even though a worker may be labelled a ‘contractor’ as opposed to an ‘employee’, depending on their individual circumstances a contractor may be treated as an employee for the purposes of workers compensation and other workplace entitlements.

The criteria for assessing whether a contractor could be deemed an employee includes but is not limited to the following:

1. The contractor does not have employees or subcontract out the work.

2. There is an ongoing exclusive nature to the agreement between the contractor and the business or company

3. Hours of work are determined by the business or company and not the contractor

4. The rate and method of payment are set by the business or company and not the contractor

5. The contractor wears a uniform supplied by the business or company

6. The contractor uses tools and equipment provided by the business or company

No one factor is determinative and the totality of the working relationship is taken into consideration.

In a well known High Court case, a bicycle courier who rode his own bicycle and was paid according to the number of successful deliveries he made but who had to wear the company uniform and was told when to work and how much to charge was deemed to be an employee despite being a contractor by title.

Care should be taken to properly describe the true nature of an employment arrangement in an employment contract as opposed to merely relying on a title given to the worker. Contact CBD Law to discuss your employment arrangements.

Consumer Protection from Unfair Contracts

Hillary Morris — Sat, 01 Apr 2017 00:28:41 +0000

On 12 November 2016, the existing unfair contract term protections for consumers have been extended to cover standard form contracts for small businesses. A summary can be found on the ACCC website on by clicking this link.

Whether a term is fair or not is considered in context of the contract as a whole. It could be for example the “automatic rollover” clauses that have become more common in supply contracts. Those clauses were a “catch” because you could automatically be locked in for another 12 month term of a contract if you did not give at least 6 months’ notice that you did not want to renew.

Thousands of Workers Lose Benefits

Hillary Morris — Fri, 31 Mar 2017 05:13:57 +0000

Very interesting statistics from the Sydney Morning Herald today – article below. This change was introduced by the current NSW Liberal Government and has had severe implications for injured workers.

http://www.smh.com.au/nsw/thousands-lose-workers-compensation-benefits-with-new-scheme-report-20150305-13vmho.html

Medical Specialists Appeal Panel

Hillary Morris — Fri, 31 Mar 2017 03:56:35 +0000

No jurisdictional error found in worker’s compensation case – NSW Supreme Court
The NSW Supreme Court was asked by worker to consider whether a decision by the Workers’s Compensation Commission approved medical specialists appeal panel was afflicted by jurisdictional error. The decision regarded a worker’s degree of permanent impairment. The worker , Mr El Masri sought to quash their decision and remit that decision to the Registrar of the Worker’s Compensation Commission for a new decision to be made. He was unsuccessful and costs awarded against him.

Mr El Masri worked at Woolworths as a storeman and packer and was required to do repetitive lifting, bending and carrying of boxes and bags. In 2001, he developed groin pain and a further incident occurred in 2003. In 2006, Mr El Masri was made redundant from Woolworths and had been unable to find other suitable employment since then. He suffered from a pre-existing condition of ankylosing spondylitis or inflammation of the spine which affected his neck, mid-back and lower back.

Mr El Masri sought compensation from Woolworth’s for permanent impairment. To be entitled to work injury damages, the degree of permanent impairment must be 15% or more. There was a dispute over the degree of impairment. The Worker’s Compensation Act requires workers involved in such a dispute to be evaluated by ‘approved medical specialists’. Mr El Masri was assessed by the approved medical specialist as having 23% impairment but 80% of that was deducted due to the pre-existing condition. This resulted in Mr El Masri being assessed at having 5% impairment.

Mr El Masri disputed the deduction made for the proportion of impairment due to the pre-existing condition. The statutory presumption is that 10% should be deducted. Woolworths claimed that the whole of the impairment was due to the pre-existing condition.

Because Mr El Masri’s injury occurred prior to June 2012, the previous legislation regarding permanent impairment applied to him and at 5% permanent impairment he was entitled to some compensation, but not work injury damages. Under the new legislation, a worker is required to reach 10% permanent impairment to claim any compensation.

El Masri appealed this decision and the Registrar of the Worker’s Compensation Commission was satisfied that one of the grounds of his appeal was made out. A medial appeal panel appointed by the Commission reassessed the decision and made a decision on the papers. They agreed with the approved medical specialist and El Masri was unsuccessful in his appeal.

El Masri then applied to the NSW Supreme Court for judicial review of that decision on the grounds that there was a failure to take into account a relevant consideration being the medical evidence from his doctor on the relationship between the plaintiff’s work and the deterioration of his condition. In addition, Mr El Masri claimed an error of law and also that there had been a failure by the medical appeal panel to provide reasons.

In a decision dated 26 September 2014, the Court found no jurisdictional error and proceedings were dismissed with costs.

Link to decision – El Masri v Woolworths Ltd [2014] NSWSC 1344 http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174438

McDonald’s ordered to pay $179,000 to man on rescue mission

Hillary Morris — Fri, 31 Mar 2017 03:54:24 +0000

A chef who fell and injured his wrist while rescuing a child stuck on a McDonald’s playground was successful in a personal injury claim for damages in NSW Court of Appeal. The Court found it was reasonably forseeable that a child would climb up the outside of the tunnels of the playground and that a person could slip and fall from the structure. The chef was awarded $179,000 including damages for past and future economic loss and non-economic loss.

http://www.smh.com.au/nsw/mcdonalds-ordered-to-pay-179000-to-man-who-fell-while-rescuing-child-from-playground-20150413-1mjxgi.html