The award rate or mate’s rates?

Key Points:
  • When determining whether there is an employment or contract relationship, it is important to look at all circumstances surrounding the agreement. ​

Picture this, you are a proprietor of a business and your mate has fallen on hard times. To help him out, you let him assist you in your business irregularly doing odd jobs and you give him a bit of money. Will this leave you open to a future workers compensation claim should he become injured?
 
Deputy President Wood was faced with this issue in Richardson v DF Haulage Pty Ltd [2018] NSWWCCPD.
 
The facts of this matter are quite tragic.
 
The worker was a truck driver for many years. Unfortunately, the worker had a stroke and had his truck driving licence suspended.
 
The director of DR Haulage Pty Ltd was a good friend to the worker. He knew he had fallen on hard times. As a result, he offered the worker employment as a truck driver as soon as he is licenced to drive.
 
In the meantime, the worker would go to the director’s premises on occasion and wash trucks. The worker’s wife and son would be present and payment was made with cash or sometimes food.
 
On 14 December 2014, tragically, the worker was killed when he was crushed between the cabin and the wheel of the truck.
 
The worker’s estate brought proceedings to the Commission asserting the worker was an employee.
 
In this regard, DP Wood stressed the principles of Ermongenous v Greek Orthodox Community of SA Inc [2002] 209 CLR 95 in that you need to look at the entirety of the relationship in order to determine whether a worker was engaged in a contract or service.
 
Ultimately, DP Wood concluded that there was not sufficient evidence to suggest the worker was engaged under a contract of service.
 
DP Wood acknowledged there was agreement between the worker and the director. However, she said that this relationship was created through friendship. She said that the worker was paid in infrequently and this would vary between money and food.
 
The worker’s estate has now filed an appeal in this matter.
 
Notwithstanding, this case reinforces the need for employers and insurers to look at the whole picture when deciding an individual is a worker or whether there is intention to create legal relations.

Post by Steven Diakiw and Najeh Marhaba 

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