Tommy Hans Pelligrini v Skevos Trikilis [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Angel J.
• Judgment Date: 30 October 1989
• Date: 30 October 1989
• Docket Number: No. 283 of 1989

(1989) 63 NTR 5

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Angel J.

No. 283 of 1989

Tommy Hans Pelligrini

and

Skevos Trikilis

Counsel for the appellant: J.Waters

Counsel for the respondent: A. Wyvill

Cases referred to:

Buchanan and Brock Pty Ltd v Harris (1957) 98 CLR 22

George Hudson Ltd v Australian Timber Worker's Union (1922) 32 CLR 413

Vacher and Sons Ltd v London Society of Compositors (1913) AC 107

Work Health Act (NT) ss. 3,4(1), 53,58,59.

Workers Compensation — Independent contractor — existence of exemption certificate under Act — whether conclusive that appellant not a worker — exemption certificate subject to condition that inapplicable when its holder remunerated on regular time basis — whether condition valid —

JUDGE1

1 On the 19th January 1988 the appellant, a bricklayer, was injured at his place of work whilst being disarmed after attacking a labourer with a trowel. The attack followed an argument as to whether the labourer could borrow the appellant's hammer.

2 The learned Magistrate from whom this appeal proceeds held that the appellant was not a ‘worker’ within the meaning of that term in the Work Health Act because the appellant held a current exemption certificate pursuant to s. 58 of the Act. The learned Magistrate further held that if, contrary to his opinion, the appellant was a ‘worker’ he nevertheless failed for he was injured other than in the course of work, the attack with the trowel constituting a break from work. In the course of his reasons the learned Magistrate referred to a number of decisions on the meaning of the expression ‘out of or in the course of his employment’.

3 Traditionally the common law and workers compensation legislation have recognised a distinction between workers and independent contractors. Workers have always been regarded as covered by the provisions of the legislation and independent contractors outside of it. Whether a person is a worker or an independent contractor has traditionally depended upon whether the person was working pursuant to a contract of service or a contract for services.

4 The appellant's entitlement to compensation depends on whether he can bring himself within s. 53 of the Work Health Act which relevantly provides:

‘..where a worker suffers an injury..there is payable by his employer to the worker..such compensation as is prescribed’.

5 ‘Worker’ is defined by s. 3 of the Act as meaning a natural person other than, inter alia, an independent contractor. ‘Independent contractor’ is defined as meaning a natural person with a current exemption certificate pursuant to s. 58 of the Act. ‘Injury’ is defined as meaning a physical or mental injury ‘arising..out of or in the course of his employment’.

6 Section 58 of the Act provides that a person may apply for an exemption certificate. As can be seen from the provisions of that section, the application is made to the Work Health Authority which may issue a certificate subject to such terms and conditions as it thinks fit. Sub-section 2 of s. 59 provides that a person who breaches a condition imposed by the Authority is guilty of an offence. In the present case a ‘condition’ of the exemption certificate issued to the appellant was in the following terms:

‘This certificate is invalid whilst the holder is receiving remuneration or payment for services provided on an hourly, daily, weekly or other regular time rate except where the basis is used to establish a contract price agreed to at the commencement of a job’.

7 The learned Magistrate did not make any finding as to whether the hourly rate at which the appellant was paid was on the basis of an agreed contract price. The learned Magistrate held that the ‘condition’ was null and void. I shall return to this matter later.

8 Section 58 of the Act has certain features. The Act does not spell out from what a person is exempted if given a certificate, though it is tolerably clear. I think it means exemption from eligibility for compensation. It is further to be noted that under sub-s. (1) a person is not obliged to obtain an exemption certificate. It is undoubtedly a discretionary matter. As can be seen from s. 58 sub-s.(5) the effect of a certificate is to disbar a person from claiming compensation ‘in respect of the death of or injury to the exempted person occurring or sustained in or as a result of an activity to which the exemption relates’.

9 The appellant argued that according to general law principles he, whilst ‘employed’ by the respondent, was a worker rather than an independent contractor, that, as a result of condition 3, the certificate was not issued in respect of such work and that, as a consequence, he can claim compensation. It was argued that the traditional dichotomy between worker and independent contractor had to be analysed as a matter of fact in each case notwithstanding the definition of worker and independent contractor in the Act. It was said that it is well known in the building industry that tradesmen sometimes work as independent contractors and sometimes as employees under contracts of service. In other words, it was said, depending on the characteristics of the particular ‘employment’, i.e. whether one of service or for services, a person is covered or not covered by the Act as the case may be.

10 I reject this submission.

11 It seems to me the argument takes no account of the general intendment of s. 58 sub-ss.(1) and (5) and the definitions of ‘worker’ and ‘independent contractor’. As I have pointed out, a person may but is not obliged to obtain an exemption certificate. It follows from that, I think, that read with the definitions of worker and independent contractor, the old difference between a worker and an independent contractor is cast aside. A natural person who does work pursuant to a contract for services i.e. a traditional independent contractor squarely falls within the definition of ‘worker’ if he does not hold an exemption certificate. Furthermore, it is clear from s. 58(5) that the effect of a certificate once issued is to extract the person to whom a certificate is issued from the provisions of the Act only in so far and to the extent that the person is engaged in work covered by the certificate. I think the fallacy in the appellant's argument lies in categorising the ‘activity’...